DPN v Regina

[2006] NSWCCA 301

CITATION:	DPN v Regina [2006] NSWCCA 301
HEARING DATE(S):	Wednesday 23 August 2006
JUDGMENT OF:	Grove J at 1; Kirby J at 5; Hislop J at 6
EX TEMPORE JUDGMENT DATE:	08/23/2006
DECISION:	Sentence quashed.; Remitted to District Court for resentence
CATCHWORDS:	CRIMINAL LAW AND PROCEDURE - SENTENCE - TRIAL SOME YEARS AFTER OFFENCES - JUVENILE STATUS OF OFFENDER THEN - NOT ADVERTED TO IN SENTENCE HEARING - CONSENT BY CROWN TO REMISSION TO DISTRICT COURT FOR COMPLIANCE WITH CHILDREN (CRIMINAL PROCEEDINGS) ACT 1987
LEGISLATION CITED:	Children (Criminal Proceedings) Act 1987
PARTIES:	DPN v Regina
FILE NUMBER(S):	CCA 2006/1721
COUNSEL:	N. Noman (Crown) M. Avenell (Applicant)
SOLICITORS:	S. Kavanagh (Public Prosecutions) R. Fraser (Legal Aid Commission)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	05/21/3101
LOWER COURT JUDICIAL OFFICER:	Hughes DCJ
LOWER COURT DATE OF DECISION:	09/12/05
LOWER COURT MEDIUM NEUTRAL CITATION:	N/A

2006/1721

GROVE J
KIRBY J
HISLOP J

Wednesday 23 August 2006


DPN v REGINA

Judgment

1 GROVE J: This is an application for leave to appeal against a sentence following an imposition before Hughes DCJ at the Campbelltown District Court. The applicant was found guilty by a jury of the offences of aggravated sexual assault in company and robbery whilst armed with an offensive weapon. After conviction his Honour proceeded to sentence, hence this application before the court.

2 It is common ground between the applicant and the Crown that it appears that his Honour and, indeed, everybody else at the relevant time, may have overlooked the circumstance that the applicant was aged but sixteen years at the time of the commission of the offences. Accordingly, it was mandatory for the provisions of the Children (Criminal Proceedings) Act 1987 to be brought into play.

3 As it is, to say the least, uncertain as to whether his Honour was alive to that circumstance, the Crown has indicated that it would consent to the orders sought by the applicant, which are that the matter in effect be remitted to his Honour for the purpose of clarification or resentence, if that is thought to be required. In any event, it would be undesirable for this court, if the matters to which I have referred are established, to act as a primary sentencing court and, in my view, the stance of the applicant and the Crown ought be responded to.

4 Accordingly, I propose the following orders:

That leave to appeal against sentence be granted.
That the appeal be allowed and the sentence imposed in the District Court quashed.
The matter be remitted to the District Court for resentence.

5 KIRBY: I agree.

6 HISLOP J: I also agree.

7 GROVE J: The orders of the court will there be as I have proposed. It is to be observed we did not quash the convictions so he can be retained in custody.

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