Director of Public Prosecutions v O'Brien (a pseudonym) (No 6)

[2025] ACTSC 100

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v O’Brien (a pseudonym) (No 6)

Citation: 

[2025] ACTSC 100

Hearing Date: 

21 March 2025

Decision Date: 

21 March 2025

Before:

Berman AJ

Decision: 

(1)       Vacate the listing before Berman AJ on Monday, 24 March 2025 at 2pm.

(2)       List the matter for sentence hearing before Berman AJ on 24 April 2025 at 10:00am with a view to sentencing the young offender on 28 April 2025.

Catchwords: 

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Pre-sentence report not prepared in compliance with legislation – parties request for the attendance of appropriate government officers at listing – order based on clear and unmistakable requirement in statute ignored – undertaking made to prepare or arrange for the preparation of a pre-sentence report

Legislation Cited: 

Crimes (Sentencing) Act 2005 (ACT), ss 40A, 41, 133B, 133E

Cases Cited:

DPP v O’Brien (a pseudonym) (No 5) [2025] ACTSC 13

Parties: 

Director of Public Prosecutions ( Crown)

Nathan O’Brien (a pseudonym) ( Offender)

Director-General of Community Services Directorate (Third Party)

Director-General of ACT Justice and Community Safety Directorate (Third Party)

Representation: 

Counsel

S Saikal-Skea ( DPP)

K Lee ( Offender)

M Gemmell (Third Party, Director-General of Community Services Directorate)

N Hancock (Third Party, Director-General of Justice and Community Safety Directorate)

Solicitors

ACT Director of Public Prosecutions

ACT Legal Aid ( Offender)

ACT Government Solicitor (Third Parties)

File Number:

SCC 95 of 2023

BERMAN AJ:

1․The sentence of the offender in this matter was listed for hearing next Monday, 24 March 2025 at 2pm. However, the parties have asked me to list this matter for mention today because they wish to vacate next Monday's hearing for reasons which will become obvious. I have done that. The matter is now listed for hearing on 24 April 2025.

2․The parties also asked that I arrange the attendance of appropriate officers from ACT Justice and Community Safety Directorate and ACT Corrective Services (Corrective Services). Representatives from both those organisations have appeared and are legally represented.

3․The history of this matter is this, the offender was found guilty of serious criminal offences by a jury on 30 October last year. I listed the matter for sentence on 3 February 2025 and ordered a pre-sentence report. On that date, 3 February 2025, Mr Lee applied for the sentence proceedings to be adjourned. There were two bases for that application, one of which I rejected but the other of which I accepted.

4․It was apparent that the pre-sentence report which had been prepared for that sentence date did not comply with s 41 of the Crimes (Sentencing) Act2005 (ACT) (Crimes Sentencing Act). In particular, the Director-General responsible for the Children and Young People Act 2008 (ACT) did not appear to have arranged for an assessor to prepare the report. Accordingly, for reasons I then gave, I vacated the sentence hearing and adjourned it to today.

5․The judgment wherein I made those orders is DPP v O’Brien (a pseudonym) (No 5) [2025] ACTSC 13. In that judgment I ordered:

A pre-sentence report be prepared which complies with s 41(7) of the Crimes (Sentencing) Act 2005 (ACT) whereby the Children and Youth Protection Services (CYP) Director-General arranges for the assessor to prepare the report.

6․On that day, 3 February 2025, that order was communicated to Youth Justice and Adolescent Services (Youth Justice) by email to the Youth Justice Court Orders’ email address. About an hour later an email was sent back to the registry saying that their office cannot comply with the order. I cannot understand why that office could not have simply asked the Director-General of CYP to arrange for an assessor to prepare the report as the legislation required.

7․In any case, in response to that email, a senior member of the Supreme Court registry wrote a return email in which the issue was explained with some clarity. It was pointed out that by reason of s 133B of the Crimes Sentencing Act, the offender was, for the purposes of sentencing, a young offender (this is the case even though he is at present over the age of 18) because he was under the age of 18 at the time of his offences.

8․The email from the registry also helpfully included extracts from the Crimes Sentencing Act, both ss 133B and s 41(8), which defines Director-General in s 41(7) to be the CYP Director-General where, as here, the offender is defined as a young offender. Despite this assistance the email the registry received in reply contained a lot of information but completely failed to deal with the fundamental issue which was preventing me sentencing the offender.

9․Those in Youth Justice should understand, but apparently did not, that on occasions they will be called upon to prepare pre-sentence reports on adults who are fully mature and perhaps even elderly, that being the result of s 133B. Even in such cases the particular requirements of pre-sentence reports for young offenders must be complied with, with those requirements to be found in s 133E, which specifies the additional pre-sentence report matters which a report for a young offender must address in addition to those relating to offenders who are not young offenders, see s 40A.

10․The result is that the attitude taken by Youth Justice and their refusal to comply with an order of the Supreme Court of the Australian Capital Territory, effectively meant that unless they changed their attitude, I could never sentence the offender. He would remain in legal limbo forever.

11․The harm that this is causing must be considerable, not only to the offender but also to the victims of his offending, who I am sure are anxious to put this matter behind them as far as they can. That harm is not due to any failing on the part of the Court, the parties, or any of the lawyers involved. Instead, the harm resulted from the refusal of Youth Justice to do what they have been ordered to do by this court.

12․No one should ignore a valid order of the Supreme Court, and they do so at their peril, particularly, as is the case here, where that order is based on the clear and unmistakable requirement in a statute.

13․Once the due date for the report had passed without the report being received in the registry, the parties asked me to list the matter for mention urgently and to arrange the attendance of representatives from Corrective Services and Youth Justice. This I did. I acknowledge that Corrective Services are probably innocent bystanders to a mess not of their making and not under their control, but I wanted them here to make sure there were no more cracks into which these sentencing proceedings could fall.

14․Today things have been achieved. Mr Gemmell, who appears for Youth Justice (of the ACT Community Services Directorate), apologised on behalf of his client and said that their report would now be prepared by the adjourned date of 24 April 2025. On behalf of his clients – the Director-General of the Community Services Directorate – he gave an undertaking:

[T]o prepare or arrange for the preparation of a pre-sentence report in the case of Nathan O'Brien (a pseudonym) such pre-sentence report complying with the Crimes (Sentencing) Act2005 (ACT), particularly ss 41 and 133E of that Act.

15․The undertaking further continues that Mr Gemmell's client:

[W]ill ensure that this report is available to the court when these sentence proceedings are next listed, 24 April 2025.

16․It is entirely regrettable that it has taken communications from my associates requiring people to attend with legal representatives to achieve what should have been achieved many weeks ago. That said, I appreciate the assistance of all the lawyers present here today in achieving the outcome, which means that I can now sentence Nathan O’Brien on the next occasion.

Orders

17․I make the following orders:

(1)Vacate the listing before Berman AJ on Monday, 24 March 2025 at 2pm.

(2)List the matter for sentence hearing before Berman AJ on 24 April 2025 at 10:00am with a view to sentencing the young offender on 28 April 2025.

I certify that the preceding seventeen [17] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Berman.

Associate:

Date: