CLN 2024

CLN 1 - May 2024

NSW Court of Appeal

DN v Secretary, Department of Communities and Justice [2023] NSWCA 321

CHILD WELFARE – Aboriginal children at risk of significant harm – parental responsibility conferred on Minister – children placed in care of non-Aboriginal carers – carers’ temporary visas expired – Minister consented to temporary removal of children to the UK – application by mother for parental responsibility – orders conferring parental responsibility on carers in the UK COURTS and JUDGES – Children’s Court – jurisdiction – child not present nor ordinarily living in New South Wales – parental responsibility conferred on Minister – child living with carers in the UK – order conferring parental responsibility on Minister rescinded – whether Court can make order conferring parental responsibility on carers – whether jurisdiction of inferior court more extensive than Supreme Court’s parens patriae jurisdiction STATUTORY INTERPRETATION – jurisdiction-conferring provisions – not to be read down by implied limitations – application – specialist courts – inferior courts – judicial institutional arrangements – legislative history – comity of nations – conflict of laws rules giving effect to foreign law

(Please note that the law has changed since this decision)

NSW Court of Criminal Appeal

BB v R [2024] NSWCCA 13

CRIME – Appeal against sentence – aggregate sentence - child sex offences – sentencing judge erred in finding that some counts were a “serious children’s indictable offence” within s 3 of the Children (Criminal Proceedings) Act 1987 – sentencing discretion unaffected by error –sentencing judge did not err in failing to take into account the lost opportunity of a different sentencing regime that would have been available had the applicant been prosecuted earlier - sentence not manifestly excessive.

R v IP [2024] NSWCCA 16

CRIME – Suppression and non-publication – protection for publishing or broadcasting the name of accused children and child victims under s 15A Children (Criminal Proceedings) Act 1987 (NSW) – whether publishing or broadcasting the deceased child victim’s name under the exception in s 15E Children (Criminal Proceedings) Act 1987 (NSW) would be likely to lead to the identification of the accused child – not a question of the possibility of identification by those in the community with personal knowledge of the circumstances of the alleged offence – whether the judgment published with the name of the deceased child would likely lead to the identification of the accused

MF v R [2024] NSWCCA 42

CRIME – appeals – appeal against sentence – whether sentencing judge failed to have regard to applicant’s youth in assessing moral culpability and the role of general deterrence – whether the relevance of the applicant’s youth to these factors adequately explained – relationship between moral culpability and objective seriousness

Supreme Court of New South Wales

R v RB [2024] NSWSC 471

BAIL – Aboriginal youth – multiple offences – whether unacceptable risks can be ameliorated by proposed conditions – a number of services actively engaged with by RB – close to age 18 – application for some of his other offences (part heard) to be dealt with under s 31(3) of the Children (Criminal Proceedings) Act 1987 (NSW) – s 22C commenced 3 April 2024 – applicability to the offending – Bail and Crimes Amendment Act 2024 (NSW) – tension with Children (Criminal Proceedings) Act – unfairly discriminatory against a class of children accused of crimes – police letters – expressed in generalities rather than facts – police letters expressing opinions as to whether a person should be released – Director of Public Prosecutions (NSW) v Tony Mawad [2015] NSWCCA 227 at [33]-[34] and [38]-[39] – s 22C does not apply as all alleged offending before s 22C commenced so no further relevant offence committed whilst on bail

R v KS (No 1) [2023] NSWSC 696

SENTENCE — Murder — Tragic loss of life — Second offence of grievous bodily harm with intent to cause grievous bodily harm — Where the offender was a child when offences were committed — Reduced capacity for consequential thinking — immaturity — History of depression — Excessive use of cannabis to self-medicate — Whether attributes personal to the young person operate to reduce the objective seriousness of the offences — Reduction in moral capability — Principles applicable to sentencing children

District Court of New South Wales

Secretary, Department of Communities and Justice v M & J (Pseudonyms) [2024] NSWDC 35

CARE APPEAL – construction of s 90A of the Children And Young Persons (Care and Protection) Act 1998 (NSW) – erroneously made prohibition order by Children’s Court set aside – Children’s Court had no statutory power to make that order after the proceedings had been finalised

Children's Court of New South Wales

Department of Communities and Justice (DCJ) and Paul [2024] NSWChC 1

CHILDREN – Care and Protection – costs – exceptional circumstances.

R v Thomas; R v Tony [2024] NSWChC 2

CHILDREN – Criminal Law – Committal - Charge certificate – Abuse of process - Stay

Department of Communities and Justice (DCJ) and the Yarran Taylor Children [2024] NSWChC 3

CHILD WELFARE — Care proceedings — Care order — Variation of care order — Realistic possibility of restoration — Section 79(10) special circumstances — Permanency planning not adequately addressed — Minute of Care order — Request that the decision is brought to the attention of Executive District Director — Request that the decision is brought to the attention of the Secretary

R v Ronald [2024] NSWChC 4

CHILDREN - Criminal Procedure - Voir dire - Admissibility of ERISP - Interviewing vulnerable people after legal advice

R v Kai [2024] NSWChC 5

CHILDREN – Crime – Assessment of seriousness in stolen car offences – Actions on breach of bonds – Totality – Bugmy factors – Special circumstances

Articles

Legal Aid Article: 'The Child Protection Convention and jurisdiction of the Children's Court' (PDF, 288.3 KB)

By Kerri Phillips and Cassandra Bennett, solicitors in the Appeals and Complex Litigation Unit, Family Law Division, Legal Aid NSW.

Why NSW has a fine problem: COVID kids report

By Dr Julia Quilter, Dr Luke McNamara, Dr Elyse Methven and Grace Bowles.