A Community Correction Order Must Come with a Criminal Conviction

By Paul Gregoire and Ugur Nedim

In the early hours of 19 March 2020, a group of five school friends were gathered at a family home, when one of the four girls present asked the only boy if she could borrow his phone.

The then 15-year-old girl fled the premises with another, taking the 13-year-old boy’s device with her.

The boy subsequently set out with the two remaining girls to find his phone. However, not long after leaving, the two girls he was with forcibly dragged him back to the house located in a regional NSW town.

At that point, the thief reappeared, and all of the girls violently set upon the boy demanding his phone’s password.

The group then entered the house and the four girls laid into the boy some more. They kicked and punched him, as well as threatened to use weapons. This was all recorded on his phone. And the girls went on to bound his ankles and wrists together with duct tape, and tape his mouth shut.

From there, the four girls punched the boy repeatedly in the groin and burnt his arm with a cigarette lighter. They then held him down and cut off his hair with a pair of kitchen scissors, whilst also shaving off his eyebrows.

The boy was then taken back outside the house and kneed in the chest and groin, along with being struck in the head. This continued until he managed to escape his assailants, and he fled back to his parent’s house.

Wiping the conviction

The girl who took the phone pleaded guilty to specially aggravated detention of a person with the intention of gaining an advantage, contrary to section 86(3) of the Crimes Act 1900 (NSW). This crime carries a maximum penalty of 25 years imprisonment.

This kidnapping offence was specially aggravated as it was committed in company and involved actual bodily harm. And as it carries up to 25 years, it’s considered a serious children’s indictable offence, under section 3 of the Children (Criminal Proceedings) Act 1987 (NSW) (the Child Act).

The girl, who was 16 by the time she was sentenced, further pleaded guilty to two more charges.

One additional charge involved assault causing actual bodily injury in company, contrary to section 59(2) of the Crimes Act. This carries up to 7 years inside. Whilst the final count was for common assault, contrary to section 61 of the same Act, which carries 2 years prison and/or a fine of $5,500.

On 18 February last year, District Court Judge Sean Grant sentenced the girl to an 18-month community correction order (CCO) in relation to the aggravated take and detain charge. This included a 25 percent discount to the sentence due to the utilitarian value of her early guilty plea.

However, following sentencing, his Honour was concerned as to whether he should have recorded the kidnapping conviction, so he reopened the case. And on 24 March 2021, he varied the sentence by removing the recorded conviction, whilst maintaining the originally imposed CCO.

Dual appeals

The NSW Director of Public Prosecutions (NSW DPP) then appealed the revoking of the conviction to the NSW Court of Criminal Appeal (NSWCCA) last August, based on the grounds that the sentencing judge made an error in reopening the case, as well as in imposing a sentence contrary to law.

This prompted a cross-appeal from the girl’s legal team based on the grounds that the sentencing judge erred in imposing the conviction initially, that he failed to take into account the delay that saw her turn 16 prior to sentencing and that he failed to consider penalties that don’t require conviction.

Indictable offences

The NSWCCA justices pointed to section 14 of the Child Act, which stipulates that a court shall not record a conviction against an offence a person under 16 years of age has pleaded guilty to or been found guilty of, when this crime is dealt with summarily.

Indictable offences are more serious crimes that are usually heard by judges in the higher courts: District or Supreme. However, some can be heard in the Local Court, which means they are dealt with summarily by a magistrate, and at these times, the crimes carry lesser penalties.

But the kidnapping charge wasn’t dealt with summarily. Rather, in accordance with sections 16 and 17 of the Child Act, as the girl was a child at the time of committing a serious children’s indictable offence, and under 21 when going before the court, the crime was “dealt with according to the law”

Their Honours then cited the 2013 NSWCCA case R versus WKR, in which Justice David Hunt defined “dealt with according to the law” as “according to the principles of sentencing ordinarily applied by the courts, without reference to” the child-specific provisions within the Child Act.

According to the appeal justices, the initial judge wrongly interpreted subsection 14(2) of the Child Act to consider that it removed the need to record a conviction relating to an indictable offence, whereas it actually maintains that the charge should be dealt with in line with higher court practice.

Conviction was necessary

The NSWCCA then turned its attention to section 8 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act), which provides that a court may impose a community correction order, when it has “convicted a person of an offence” instead of sentencing them to time in prison.

Their Honours considered this in relation to whether a CCO requires the recording of a conviction. They compared section 8 to a number of other sections within the Sentencing Act – 9, 10 and 11 – where orders are imposed when a person is found guilty of an offence but no conviction is recorded.

The difference being that within section 8 a person is said to have been “convicted” of an offence, whereas the other three sections refer to a person being found “guilty” of a crime and not convicted of it.

So, with the sentencing judge moving to impose a CCO, the 16-year-old girl “had to be convicted”.

The orders of the day

Judge Grant determined to reopen the case to wipe the conviction, under the provisions of section 43 of the Sentencing Act, which permits the reopening of a case if a court has “imposed a penalty that is contrary to law”, or failed to impose one required by law.

As there was no contradiction to the law in the first instance, there was, therefore, no basis for the sentencing judge to have reopened the case, and further the subsequent removal of the conviction was contrary to the law.

So, both grounds of appeal put by the NSW DPP were upheld, and it followed that none of the cross-appeal grounds could succeed.

On 1 February this year, NSWCCA Justices Roderick Meagher, Robertson Wright and Des Fagan ordered that the decision of Judge Grant to remove the kidnapping conviction on 24 March 2021 be reversed, with the original conviction made on 18 February last year being reimposed.