Director of Public Prosecutions v O'Brien (a pseudonym) (No 5)

[2025] ACTSC 13

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v O’Brien (a pseudonym) (No 5)

Citation: 

[2025] ACTSC 13

Hearing Date: 

3 February 2025

Decision Date: 

3 February 2025

Before:

Berman AJ

Decision: 

See [12]

Catchwords: 

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Pre-sentence report not prepared in compliance with legislation – application for an adjournment of sentence proceedings until after appeal is heard – sentence to follow a verdict

Legislation Cited: 

Crimes (Sentencing) Act 2005 (ACT), s 41

Cases Cited: 

Garay v R (No 2) [2022] ACTCA 16

Parties: 

Director of Public Prosecutions ( Crown)

Nathan O’Brien (a pseudonym) ( Offender)

Representation: 

Counsel

S Saikal-Skea ( DPP)

K Lee ( Offender)

Solicitors

ACT Director of Public Prosecutions

ACT Legal Aid ( Offender)

File Number:

SCC 95 of 2023

BERMAN AJ:

1․On 30 October last year, a jury found the young person before me today guilty of a number of counts on an indictment. The matter was listed for sentence today, 3 February 2025. That is even of itself a significant delay but one for which the parties are not responsible.

2․There is an application made by Mr Lee on behalf of the young offender that these sentence proceedings be adjourned. He makes that application on two bases, one of which I accept, and one of which I don't.

3․The first basis is that there has not been compliance with s 41 of the Crimes (Sentencing) Act 2005 (ACT). On 30 October 2024, I made an order that there be a pre-sentence report prepared. The pre-sentence report has been prepared. But it is common ground that that was prepared by Corrective Services and that the Director of Children and Youth Protection Services (CYP) had nothing to do with its preparation.

4․The problem is that s 41(7) says:

41 Pre-sentence reports—order

(7)The director‑general must arrange for an assessor to prepare a pre‑sentence report ordered by the court.

And subsection (8) makes it clear that in the case of a young offender, such as the present, the director-general referred to in subsection (7) is the Children and Youth Protection Services Director-General.

5․The prosecutor tells me, and I've got no reason to doubt this, that what has happened in this case is standard procedure in this jurisdiction. It may well be, but she also concedes that what has happened in this case does not comply with the legislation. There is no reason for me to do anything other than strictly apply the legislation, which means that the pre-sentence report before me today has not been prepared as the legislation requires. Accordingly, it is necessary for me to adjourn the sentence proceedings to allow a pre-sentence report to be prepared which does comply with the legislation.

6․The other reason that Mr Lee says the matters should be adjourned is this: the young person has appealed against his conviction to the Court of Appeal. A notice of appeal has been filed, but the matter has not yet been listed. Mr Lee says that in the circumstances of this case, what should happen is that the sentence proceedings should await determination of the conviction appeal.

7․As a matter of practical reality, that would delay the sentence proceedings for a significant time. The appeal has not yet been listed. Although an application for expedition has apparently been drafted, it has not yet been presented to the Court. The appeal is likely to be heard, I am told, in July this year. Then, of course, the Court would need to consider the matter and so the result could well be that in the event the appeal is dismissed, the young offender would not be sentenced until a year after the jury's verdict. A sentence following a guilty verdict is not some mere step in the criminal justice process. It should, to the contrary, be treated as a destination. The fact that, on occasions, verdicts and sentences are overturned on appeal does not detract from this important principle.

8․In opposing the application for an adjournment of these sentence proceedings until after the appeal is heard, the prosecution appropriately refers to the words of Chief Justice McCallum in Garay v R (No 2) [2022] ACTCA 16 at [8] - [15]. It's not necessary for me to read those paragraphs out beyond saying that I agree with everything her Honour says. In particular, at [12] her Honour explains the reasons why it is ordinarily the case, if not invariably the case, that sentence follows conviction even in circumstances where an appeal against that conviction has been filed.

9․Mr Lee accepts that Garay v R explains what should usually happen, but suggests that a different approach should be taken in this case. The matters he raises do not persuade me. Certainly, it is more significant for a young person to be sent to jail than an adult, but that does not, in my view, sufficiently detract from the fundamental proposition that sentence should follow soon after conviction. As I said before, sentence following conviction is not a step but a destination.

10․It's appropriate also that I say that the matters raised on appeal in the notice of appeal are not of such compelling nature that would suggest that the appeal must invariably be granted. For obvious reasons, it's inappropriate for me to explain in detail why that is the case, but I simply note that one of the matters to be raised on appeal is the severance of counts, but this Court has already ruled at a pre-trial hearing that the counts should not have been severed and an application for leave to appeal that ruling was rejected.

11․For those reasons, I will not delay sentencing the young person until after his conviction appeal has been heard.

Orders

12․I make the following orders:

(1)Adjourn the matter to Monday, 24 March 2025 at 2pm before Berman AJ.

(2)Order a pre-sentence report be prepared which complies with s 41(7) of the Crimes (Sentencing) Act 2005 (ACT), whereby the CYP Director-General arranges for the assessor to prepare the report.

(3)The pre-sentence report is ordered with the proviso that those conducting that assessment do not ask the young person anything regarding any count involving [redacted].

(4)List the matter before Berman AJ on Monday, 24 March 2025 at 2pm.

(5)Bail for the young person is to continue until the hearing before Berman AJ on Monday, 24 March 2025.

I certify that the preceding twelve [12] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Berman.

Associate:

Date: