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
Wednesday 23 August 2006
GROVE J2006/1721
KIRBY J
HISLOP J
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.
- AGLC
- DPN v Regina [2006] NSWCCA 301
- Case
- [2006] NSWCCA 301
- Decision Date
CaseChat Overview and Summary
The court considered that the juvenile status of the offender was a significant factor that should have been taken into account during the sentencing hearing. The court held that the failure to consider the offender's juvenile status constituted a substantial and significant irregularity that warranted a remission of the case to the District Court. The court emphasised the importance of ensuring that the Children (Criminal Proceedings) Act 1987 was complied with in all criminal proceedings involving juvenile offenders. The court noted that the Act was designed to protect the interests of juvenile offenders and to ensure that their unique circumstances were taken into account during the sentencing process.
Based on the above reasoning, the court remitted the case to the District Court for compliance with the Children (Criminal Proceedings) Act 1987. The court held that the failure to consider the offender's juvenile status during the sentencing hearing constituted a substantial and significant irregularity that could not be ignored. The court emphasised that it was essential to ensure that the rights of juvenile offenders were protected and that their unique circumstances were taken into account during the sentencing process. The court also noted that the Crown's consent to the remission of the case did not affect the court's obligation to ensure compliance with the Act.
In conclusion, the court held that the failure to consider the offender's juvenile status during the sentencing hearing constituted a substantial and significant irregularity that warranted a remission of the case to the District Court. The court emphasised the importance of ensuring that the Children (Criminal Proceedings) Act 1987 was complied with in all criminal proceedings involving juvenile offenders. The court held that it was essential to protect the rights of juvenile offenders and to take their unique circumstances into account during the sentencing process.
Orders
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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