Co v Director of Public Prosecutions

[2020] NSWSC 1123

Supreme Court

New South Wales

Medium Neutral Citation:

CO v DPP [2020] NSWSC 1123

Hearing dates:

19 August 2020

Date of orders:

19 August 2020

Decision date:

19 August 2020

Jurisdiction:

Common Law

Before:

N Adams J

Decision:

(1) Leave is granted to file the Summons out of time pursuant to r 51B(6) of the Supreme Court Rules 1970 (NSW) (“SCR”).

(2) Electronic service of the Summons upon the defendant is permitted pursuant to r 51B(12) SCR.

(3) The date of the final hearing of the Summons is abridged pursuant to r 51B(15) SCR.

(4) The appeal under s 52(1) of the Crimes (Appeal and Review) Act 2001 (NSW) is allowed.

(5) The control orders made under s33(1)(g) Children (Criminal Proceedings) Act 1987 (NSW) by Magistrate Day in the Children’s Court at Orange on 12 June 2020 are set aside and the matter remitted to the Children’s Court at Orange to be dealt with in accordance with this decision pursuant to s 55(2)(c) of the Crimes (Appeal and Review) Act.

(6) The matter is next listed for mention at the Children’s Court at Orange on 24 August 2020.

(7) No order is made as to costs. The parties have liberty to apply within 14 days should a costs order be sought.

Catchwords:

CRIME — appeal and review — appeal from Children’s Court and Local Court to Supreme Court — by person convicted or sentenced on a question of law alone — provision of background report — s 25 of the Children (Criminal Proceedings) Act

Legislation Cited:

Children (Criminal Proceedings) Act 1987 (NSW), s 19, s 25, s 33(1)(g)

Children (Detention Centres) Act 1987 (NSW)

Crimes (Appeal and Review) Act 2001 (NSW), s 52(1) and 55(2)

Cases Cited:

BT v R (2012) 227 A Crim R 354; [2012] NSWCCA 276

CTM v Regina [2007] NSWCCA 131

ID, PF and DV v Director General, Department of Juvenile Justice (2008) 73 NSWLR 158; [2008] NSWSC 966

Regina v CVH [2003] NSWCCA 237

Category:

Principal judgment

Parties:

CO (Plaintiff)
Office of the Director of Public Prosecutions (Defendant)

Representation:

Counsel:
Mr N Broadbent (Plaintiff)
Ms V Garrity (Defendant)

Solicitors:
Legal Aid NSW (Plaintiff)
Solicitor for Public Prosecutions (Defendant)

File Number(s):

2020/00241408

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Children’s Court and Local Court

Date of Decision:

12 June 2020

Before:

Magistrate Day

File Number(s):

2020/161323, 2020/76162, 2019/243521, 2019/255548, 2019/306039

Judgment (revised from ex tempore)

1. By way of summons filed in court today, the plaintiff CO seeks an order pursuant to ss 52(1) and 55(2) of the Crimes (Appeal and Review) Act 2001 (NSW) setting aside control orders imposed on him under s 33(1)(g) of the Children (Criminal Proceedings) Act 1987 (NSW) at the Children's Court in Orange by Magistrate Day on 12 June 2020.

2. The matter came before me in my capacity as duty judge on an urgent basis. For reasons I will set out below, I propose to make the orders sought today.

3. An affidavit sworn by Mr Gerry Stapleton of today's date, 19 August 2020, was relied upon by the plaintiff. It sets out the procedural history of the matter, and explains the delay in this matter coming before this Court. Mr Stapleton is a solicitor at Legal Aid New South Wales and acts for the plaintiff. There was no objection to this affidavit. It sets out the following background.

4. The plaintiff was born on 8 November 2001. He reached the age of 18 years on 8 November 2019. Apart from his criminal history, no subjective circumstances were put before the Court in support of the summons. I am satisfied that this matter can be determined without that material.

5. On Friday, 29 May 2020, the plaintiff was arrested and charged with the following offences:

1. Break and enter a dwelling house where $4,315 was stolen. This offence was committed between 13 February 2019 and 14 February 2019, although the Court Attendance Notice (“CAN”) was not served until 30 May 2020. The plaintiff was 17 years old at that time.

2. Larceny of a leather wallet between 6 May 2019 and 17 May 2019.

3. Larceny of a Billabong wallet between 16 May 2019 and 17 May 2019.

4. Knowingly be carried in a stolen conveyance between 16 May 2019 and 17 May 2019.

5. Attempt break and enter a dwelling in company and steal, namely, the BP service station, on 17 May 2019.

6. Knowingly be carried in a stolen conveyance on 17 May 2019.

7. Attempt to break and enter a dwelling house in company with intent to steal on 17 May 2019.

8. Attempt to break, enter and steal in a dwelling house on 17 May 2019.

9. Knowingly be carried in a stolen conveyance on 17 May 2019.

10. Knowingly be carried in a stolen conveyance between 31 May 2019 and 1 June 2019.

11. Larceny of $200 between 31 May 2019 and 1 June 2019.

12. Break and enter a dwelling in company with intent to steal between 31 May 2019 and 1 June 2019.

13. Break and enter a dwelling house in company with intent to steal on 1 June 2019.

14. Attempt break and enter a dwelling house in company with intent to steal on 1 June 2019.

15. Break and enter a dwelling house in company with intent to steal between 31 May 2019 and 1 June 2019.

16. Destroy property by means of fire whilst in company between 31 May 2019 and 1 June 2019.

17. Participating in a criminal group activity between 16 May 2019 and 1 June 2019.

6. The offences were all committed in Orange, Canowindra, Cowra and Cargo when the plaintiff was 17 years of age.

7. The plaintiff came before the Orange Local and Children's Court on Saturday, 30 May 2020, and was refused bail. He was charged not only with the 17 offences I have described, but also additional offences that were committed after he turned 18. By reference to his criminal history, those offences were two break, enter and steal offences and an assault occasioning actual bodily harm. It is for that reason that he stood to be sentenced both in the Local Court and Children's Court.

8. The plaintiff subsequently appeared before that court on Monday 1 June, Tuesday 9 June, and Friday 12 June. On 12 June 2020, he was sentenced by the learned Magistrate Day, in relation to both the Children's Court and Local Court matters. The plaintiff was on suspended control orders at the time of his arrest, and was called up in relation to those matters as well, those matters being: break and enter a dwelling house and commit larceny on 20 July 2019; failing to appear on 14 October 2019; break and enter a dwelling house and stealing on 7 August 2019; and attempting to break and enter with attempt to steal on 1 October 2019, being the Greengate Newsagency.

9. In relation to those 24 matters, the plaintiff received an aggregate control order of 12 months, to date from 29 May 2020 and expire on 28 May 2021. A non-parole period of 7 months was provided. He is eligible for release on parole on 28 December 2020. He did not receive a period of full time custody in relation to the Local Court matters; rather, he was placed on an intensive corrections order for 9 months in relation to one of the break and enter matters; a community corrections order for 18 months in relation to the other break and enter offence; and an intensive correction order of 3 months for the assault occasioning actual bodily harm.

The plaintiff’s appeal under the Crimes (Appeal and Review) Act

10. Mr Stapleton deposes that, on Thursday, 9 July 2020, he conducted an AVL conference with the plaintiff, who at that time was an inmate at Shortland Correctional Centre in Cessnock. Mr Stapleton was instructed to appeal the severity of the sentences imposed on him. Mr Stapleton then drafted and filed a notice of appeal to the District Court that day. On 24 July 2020, he drafted an application for leave to appeal and an amended notice of appeal.

11. On Wednesday, 5 August 2020, Mr Stapleton had a conference with the plaintiff to obtain detailed instructions in relation to the pending appeal. That appeal was due to be heard at the next circuit sitting at the Bathurst District Court. On 7 August 2020, the matter was first mentioned before his Honour Judge Turnbull SC. It was mentioned again on 13 August 2020, and given a hearing date of Friday, 14 August 2020.

12. As is the usual practice, the Director of Public Prosecutions appeared as the respondent to that appeal in the District Court. A copy of the Crown bundle was served on Legal Aid at Orange by way of email on Monday, 10 August 2020. There was no Background Report included in that bundle.

13. On Friday, 14 August 2020, Mr Stapleton spoke to the plaintiff, and was informed that no Background Report had ever been prepared for the Children's Court proceedings held in Orange on 12 June 2020.

14. The matter came on for hearing before Judge Turnbull on Friday, 14 August 2020. At that time, the plaintiff gave sworn evidence to the effect that no Background Report had ever been prepared. His Honour adjourned the proceedings part-heard to Wednesday, 19 August 2020, at 9am.

15. Following the adjournment of the matter, Mr Stapleton telephoned the Office of Juvenile Justice at Orange, and it was confirmed that the last Background Report prepared in relation to the plaintiff was on 13 January 2020, for the proceedings that were finalised in the Orange Children's Court on 15 January 2020. No report was ever prepared for the proceedings determined on 12 June 2020.

16. Yesterday morning, on 18 August 2020, Mr Stapleton telephoned the Public Defenders’ office in Sydney, and was advised to contact Mr Broadbent of counsel. Mr Broadbent appears for the plaintiff today. Mr Broadbent advised Mr Stapleton that the relief sought could only be granted by the Supreme Court, and it is on that basis that the matter comes before me as a matter of urgency.

Relevant legislation

17. Section 25 of the Children (Criminal Proceedings) Act is in these terms:

25 Background reports

(1) This section applies to a person—

(a)   who has pleaded guilty to an offence (other than contempt of court) in, or has been found guilty or convicted of an offence (other than contempt of court) by, a court,

(b)   who was a child when the offence was committed, and

(c)   who was under the age of 21 years when charged before the court with the offence.

(2) A court shall not sentence a person to whom this section applies to a term of imprisonment, or make an order under section 33 (1) (g) in respect of the person, in connection with an offence unless—

(a)   a background report, prepared in accordance with the regulations, has been tendered in evidence with respect to the circumstances surrounding the commission of the offence, and

(b)   copies of the report have been given to the child and any other person appearing in the proceedings, and

(c)   the court has, subject to the rules of evidence, taken into account the matters contained in the report and any submissions made in relation to those matters by the persons referred to in paragraph (b).

(Emphasis added.)

18. Section 11 of the Crimes (Appeal and Review) Act provides that:

11   Appeals as of right

(1)  Any person who has been convicted or sentenced by the Local Court may appeal to the District Court against the conviction or sentence (or both).

19. Section 20(2) of the Crimes (Appeal and Review) Act provides that:

(2)  The District Court may determine an appeal against sentence—

(a)   by setting aside the sentence, or

(b)   by varying the sentence, or

(c)   by dismissing the appeal.

20. Section 52 of the Crimes (Appeal and Review) Act provides:

52   Appeals as of right

1. Any person who has been convicted or sentenced by the Local Court, otherwise than with respect to an environmental offence, may appeal to the Supreme Court against the conviction or sentence, but only on a ground that involves a question of law alone.

2. An appeal must be made within such period after the date of the conviction or sentence as may be prescribed by rules of court.

   21. Section 55(2) of the Crimes (Appeal and Review) Act provides:

55   Determination of appeals

(2)  The Supreme Court may determine an appeal against sentence—

(a)   by setting aside the sentence, or

(b)   by varying the sentence, or

(c)   by setting aside the sentence and remitting the matter to the Local Court sitting at the place at which the original Local Court proceedings were held for redetermination, in relation to sentence, in accordance with the Supreme Court’s directions, or

(d)   by dismissing the appeal.

Submissions

22. Mr Broadbent provided written submissions in which it was contended that there had been a clear breach of s 25 the Children (Criminal Proceedings) Act. This is an error of law that warrants remittal to the Children's Court for the matter to be dealt with according to law.

23. Ms Garrity of counsel appears for the DPP at the hearing today. She informed the Court that she has instructions from the Director that the error contended for in this matter has been established. The position of the DPP is that the orders sought in relation to the remittal of this matter to the Children's Court ought to be made by me.

24. I am satisfied that that concession is one properly made for the following reasons.

25. Section 25 of the Children's (Criminal Proceedings) Act sets out who a background report must be prepared in relation to. It must be provided in relation to a person who was under the age of 21 when charged before the Court. The plaintiff falls into that category.

26. Subsection (2) provides that a court shall not sentence a person to a term of imprisonment, unless a background report has been tendered in evidence.

27. For the purposes of s 25(2)(a), a background report must be in an approved form, and deal with matters relevant to the circumstances surrounding the commission of the offence. Those matters include the child's family background, employment, education, friends and associates, disabilities, antecedents, participation in the life of the community, and any other matters that either the Court requires or the prosecutor considers appropriate.

28. There is no doubt that s 25(2) is expressed in mandatory terms.

29. In his written submissions, Mr Broadbent has brought a number of decisions to the attention of the Court. In CTM v Regina [2007] NSWCCA 131 at [153] to [156], Howie J (with whom Hodgson and Price JJ) agreed, noted in that particular matter, that a failure to obtain a background report in accordance with s 25 of the Act renders the sentence invalid. His Honour stated:

“153 It was accepted by the Crown that the Judge had failed to take into account the provisions of the Children (Criminal Proceedings) Act when sentencing the appellant. Unfortunately the Judge seems to have given no consideration at all to the fact that the appellant was a child at the time of the commission of the offence. Therefore, he did not consider whether the appellant should be dealt with at law or in accordance with the provisions of Division 4 of Part 3 of that Act, a fundamental issue where an offence is not “a serious children’s indictable offence” as this offence was not. Nor did he apparently take into account s 6 or any other provision of the Act relevant to sentencing an offender who was under the age of 18 at the time of the offence. Most significantly he failed to obtain a background report in accordance with s 25 of the Act. The sentence was invalid: R v Hoang [2003] NSWCCA 237.

154 It is regrettable that neither counsel brought this to the Judge’s attention. In particular the Crown bears the obligation of ensuring that a Judge is aware of the jurisdiction that is being exercised. It was a serious failure of the Crown’s duty to the court that it permitted the Judge to sentence without bringing his attention to the relevant legislation.” (Emphasis added.)

30. His Honour then referred to the decision in Regina v CVH [2003] NSWCCA 237 as authority for the proposition that such a sentence imposed without a background report is “invalid”.

31. In the later decision of BT v R (2012) 227 A Crim R 354; [2012] NSWCCA 276 Basten JA considered the meaning of “invalid” in that context. His Honour was satisfied that the term was used in Regina v CVH to identify a sentencing exercise that was not carried out in accordance with the law, and thus warranting a grant of leave to appeal.

32. Johnson J briefly considered s 25(2) of the Children's (Criminal Proceedings) Act in ID, PF and DV v Director General, Department of Juvenile Justice (2008) 73 NSWLR 158; [2008] NSWSC 966. Although the issue in that case was the question of where a term of imprisonment was to be served, his Honour referred at [12] to the fact that a background report must be considered. At [189], when highlighting the difference between the Children (Detention Centres) Act 1987 (NSW) and the Children (Criminal Proceedings) Act, his Honour noted that a judicial order made under the Children (Criminal Proceedings) Act requires a judge to have regard to a background report, whereas decisions under the Children (Detention Centres) Act do not.

33. I have had regard to all of those decisions, and I am satisfied that the DPP concession is properly made in this matter.

34. Although there is a time limit imposed for the bringing of proceedings to this Court, I have had regard to the reason for the delay, and the abridging of time is not opposed by the DPP. Pursuant to the Supreme Court Rules, r 51B.15, an appeal under Pt 5 of the Crimes (Appeal and Review) Act is to be lodged within 28 days of the decision. The summons is filed in this matter out of time but I am satisfied it is appropriate for the Court to grant leave to file the summons out of time for the reasons I have already provided.

35. Section 55(2) of the Crimes (Appeal and Review) Act provides that this appeal can be determined by either (a) setting aside the sentence, (b), varying the sentence, or (c) by setting it aside and remitting it. I propose to make the order pursuant to 55(2)(c).

36. There is statutory power to remit the matter available under the Crimes (Appeal and Review) Act. Had there not been a statutory right of appeal of that nature, this decision would have been amenable to judicial review in the exercise of this Court’s supervisory jurisdiction. In failing to have regard to a mandatory consideration, the magistrate fell into jurisdictional error. However, I did not need to exercise the Court’s supervisory jurisdiction in this matter because I am satisfied that the appropriate relief is provided under the Crimes (Appeal and Review) Act.

Orders

37. Accordingly, I make the following orders:

1. Leave is granted to file the Summons out of time pursuant to r 51B(6) of the Supreme Court Rules 1970 (NSW) (“SCR”).

2. Electronic service of the Summons upon the defendant is permitted pursuant to r 51B(12) SCR.

3. The date of the final hearing of the Summons is abridged pursuant to r 51B(15) SCR.

4. The appeal under s 52(1) of the Crimes (Appeal and Review) Act 2001 (NSW) is allowed.

5. The control orders made under s33(1)(g) Children (Criminal Proceedings) Act 1987 (NSW) by Magistrate Day in the Children’s Court at Orange on 12 June 2020 are set aside and the matter remitted to the Children’s Court at Orange to be dealt with in accordance with this decision pursuant to s 55(2)(c) of the Crimes (Appeal and Review) Act. 

6. The matter is next listed for mention at the Children’s Court at Orange on 24 August 2020.

7. No order is made as to costs. The parties have liberty to apply within 14 days should a costs order be sought.

Decision last updated: 24 August 2020