LD v The Queen

[2016] NSWCCA 217

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	LD v R [2016] NSWCCA 217
Hearing dates:	5 October 2016
Decision date:	05 October 2016
Before:	Ward JA at [1]; Harrison J at [2]; R A Hulme J at [3]
Decision:	1. Leave to appeal granted and appeal allowed. 2. Sentence imposed in the District Court on 6 November 2015 quashed. 3. Remit the matter to the Wagga Wagga District Court on 10 October 2016 for mention.
Catchwords:	CRIMINAL LAW – appeal against sentence – aggravated break, enter and commit serious indictable offence – where applicant was a child at the time of the offence – conceded failure of sentencing judge to apply provisions of the Children (Criminal Proceedings) Act 1987 – matter remitted
Legislation Cited:	Children (Criminal Proceedings) Act 1987 (NSW) ss 3, 15A, 25 Crimes Act 1900 (NSW) ss 112(2), 112(3)
Cases Cited:	CTM v R (2007) 171 A Crim R 371; [2007] NSWCCA 131 DPN v R [2006] NSWCCA 301 R v CVH [2003] NSWCCA 237
Category:	Principal judgment
Parties:	LD (Applicant) Regina (Respondent)
Representation:	Counsel: Ms A Cook (Applicant) Ms N Williams (Crown)   Solicitors: Legal Aid NSW Solicitor for Public Prosecutions
File Number(s):	2014/114447
Decision under appeal	Court or tribunal: District Court Date of Decision: 6 November 2015 Before: English DCJ File Number(s): 2014/114447

Judgment

1. WARD JA: I agree with R A Hulme J.

2. HARRISON J: I agree with R A Hulme J.

3. R A HULME J: LD applies for leave to appeal against a sentence imposed in the District Court at Wagga Wagga on 6 November 2015 by her Honour Judge English. For an offence of break, enter and commit serious indictable offence, namely reckless wounding, in circumstances of aggravation, namely being in company, her Honour imposed a sentence of imprisonment for 3 years with a non-parole period of 1 year 6 months. The sentence commenced on the day of imposition and the non-parole period expires on 5 May 2017.

4. The offence is contrary to s 112(2) of the Crimes Act 1900 (NSW) and the maximum penalty is imprisonment for 20 years.

5. LD was under the age of 18 at the time of the offence and therefore cannot be identified: s 15A Children (Criminal Proceedings) Act 1987 (NSW) ("the Act").

6. The offence was constituted by what is colloquially known as a home invasion in which LD and three other males forced their way into the victim's home and attacked him. LD struck the first blow, hitting him over the head with a glass object. The victim fell to the ground and was kicked and punched. A co-offender threw a brick at the victim, hitting him in the head, and then stabbed him. The victim was knocked unconscious during the attack and required surgery for a 10cm deep wound to his shoulder.

7. LD was committed for trial from the Griffith Children's Court on 18 March 2015 on a charge of specially aggravated break, enter and commit serious indictable offence, contrary to s 112(3) of the Crimes Act carrying a maximum penalty of 25 years' imprisonment, as well as the charge for which he was ultimately sentenced. When he was arraigned in the District Court on 31 July 2015 he pleaded guilty to the latter which the Crown accepted in full satisfaction of the indictment.

8. LD seeks to appeal on the following grounds:

1   The sentencing judge erred by failing to apply the provisions of the Children (Criminal Proceedings) Act 1987 on sentence.

2   The sentence imposed was, in all the circumstances, manifestly excessive.

9. The Crown concedes that Ground 1 should be upheld and I am satisfied that the concession is well-founded. It is most regrettable that both the solicitor appearing for the Crown and counsel for LD, while alerting the learned judge to the fact that LD was a child, failed to draw her Honour’s attention to certain mandatory requirements in sentencing for an offence which is not defined by s 3 of the Act as a "serious children's indictable offence".

10. In CTM v R (2007) 171 A Crim R 371; [2007] NSWCCA 131, Howie J said in relation to the similar circumstances of that case:

"[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.

[155] There is no option but to return the matter to the District Court for further determination."

11. In other cases in which this has occurred (R v CVH [2003] NSWCCA 237 and DPN v R [2006] NSWCCA 301) the same remedy of remitting the matter to the District Court has been adopted. That is appropriate because of the need for a background report to be prepared for the purposes of s 25 of the Act and also, as was said in DPN v R, "it would be undesirable for this court … to act as a primary sentencing court".

12. I propose the following orders:

1.   Leave to appeal granted and appeal allowed.

2.   Sentence imposed in the District Court on 6 November 2015 quashed.

3.   Remit the matter to the Wagga Wagga District Court on 10 October 2016 for mention.

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