Mg v Director of Public Prosecutions

[2007] NSWCCA 260

New South Wales
Court of Criminal Appeal

CITATION:	MG v DIRECTOR OF PUBLIC PROSECUTIONS [2007] NSWCCA 260
HEARING DATE(S):	28 August 2007
JUDGMENT DATE:	30 August 2007
JUDGMENT OF:	Basten JA at 1; Latham J at 19; Rothman J at 20
DECISION:	(1) Order that the Director take steps to have a further background report prepared with respect to the offences for which the applicant stands convicted. (2) Stand the matter over to Registrar Drennan’s list at 9.00am on 30 August 2007 to fix a date for hearing.

CATCHWORDS:	CRIMINAL PROCEDURE - sentencing - Children (Criminal Proceedings) Act 1987 (NSW) s 25 - background report - further report ordered - Roos v Director of Public Prosecutions (1994) 34 NSWLR 254 distinguished
LEGISLATION CITED:	Children (Criminal Proceedings) Act 1987 (NSW), ss 11, 25 Children (Criminal Proceedings) Regulation 2005 (NSW), cl 6
CASES CITED:	Roos v Director of Public Prosecutions (1994) 34 NSWLR 254
PARTIES:	MG – Appellant Director of Public Prosecutions - Respondent
FILE NUMBER(S):	CCA 2002/4784
COUNSEL:	T. Game SC – Appellant D. Arnott SC - Respondent
SOLICITORS:	Nyman Gibson Stewart – Appellant S. Kavanagh – Solicitor for Public Prosecutions - Respondent

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	01/11/0612
LOWER COURT JUDICIAL OFFICER:	Finnane DCJ
LOWER COURT DATE OF DECISION:	11 October 2002

CCA 2002/4784

BASTEN JA
LATHAM J
ROTHMAN J

30 August 2007

MG v DIRECTOR OF PUBLIC PROSECUTIONS

Judgment

1 BASTEN JA: An application for leave to appeal was listed before the Court on Tuesday, 28 August 2007 in relation to the sentences imposed on the applicant by Finnane DCJ on 11 October 2002.

2 The Crown concedes that the sentencing must be reconsidered for two reasons. First, the applicant was originally sentenced following convictions in two separate trials. In the first trial, he was convicted of 10 sexual offences committed on 10 August 2000 in relation to two young women aged 17 and 18 years. In the second trial, he was convicted of four offences in relation to conduct on 30 August 2000, involving one girl. In relation to the latter offences, a retrial was ordered by this Court in 2004, as a result of which he was subsequently acquitted of the charges. The second basis for re-sentencing is that a co-accused who the Director states was guilty of a similar level of culpability, was re-sentenced by this Court in 2005.

3 Although it will not be necessary to consider the facts of the matter in any detail at this stage, it should be noted that there is a statutory constraint on publication or broadcasting of names of the parties or of other persons involved in proceedings, pursuant to s 11 of the Children (Criminal Proceedings) Act 1987 (NSW). That prohibition has application in the present case.

4 When the matter came on for hearing, counsel for the applicant drew the Court’s attention to s 25 of the Children (Criminal Proceedings) Act, which, the Director accepts, has application in the present case. The operative part of that section provides:

“ 25 Background reports
…
(2) A court shall not sentence a person to whom this section applies to a term of imprisonment … in connection with an offence unless:
(a) a background report, prepared in accordance with the regulations, has been tendered in evidence with respect to the circumstances surrounding the commission of the offence … .”

5 Once it was accepted that this Court should re-sentence the applicant, that provision was engaged.

6 Pursuant to the Children (Criminal Proceedings) Regulation 2005, “background reports” are required to be in a particular form and to deal with specified matters. Thus, cl 6 of the Regulation provides:

“ 6 Background Reports
For the purpose of section 25(2)(a) of the Act, a background report must be in such form as the Attorney-General may from time to time approve and must deal with such of the following matters as are relevant to the circumstances surrounding the commission of the offence concerned:
(a) the person’s family background,
(b) the person’s employment,
(c) the person’s education,
(d) the person’s friends and associates,
(e) the nature and extent of the person’s participation in the life of the community,
(f) the person’s disabilities,
(g) the person’s antecedents,
(h) such other matters as the Children’s Court may require,
(i) such other matters as the prosecutor considers appropriate to include in the report.”

7 A background report was prepared for the original sentencing hearing. Although the Court was not taken to the document for the purposes of the present application, the report before the sentencing judge appears to have been one dated 22 August 2002, prepared by a Juvenile Justice Counsellor, Sex Offender Program and the Clinical Coordinator, Sex Offender Program at Baxter Juvenile Justice Centre.

8 The provision in paragraph 6(h) of the Regulation permitting the report to deal with such matters as the Children’s Court may require, would appear to have no operation, the report being prepared for the purposes of the District Court. Whether other matters were considered appropriate for inclusion, beyond those specified in paragraphs (a)-(g), pursuant to paragraph (i) by “the prosecutor” is not known. The indictment dated 29 April 2002 was signed by a Crown prosecutor on behalf of the Director of Public Prosecutions and it may be assumed that either the Crown prosecutor or the Director would constitute the “prosecutor” for this purpose.

9 For the applicant it was contended that the report has two major failings. First, it dealt with “offences” of which the applicant has been acquitted. Secondly, it contained an assessment of “risk” which purported to assess risks of recidivism for different kinds of offence. Whether that material was properly included in the statutory background report need not be considered for present purposes. It is sufficient to note that the assessment was affected by convictions for offences of which the applicant has now been acquitted.

10 Counsel for the applicant contended either that the report no longer constituted a background report for the purposes of s 25 of the Children (Criminal Proceedings) Act, or, if it did so qualify, it was nevertheless unhelpful and the Court should order that a further report be prepared.

11 Counsel for the Director raised a doubt as to both limbs of the applicant’s contention. First, he contended that the report remained a valid background report, for the purposes of s 25 and no further report was required. The second stage of his argument went further, asserting that this Court had no power to order a further background report. He submitted that the report was required to deal with matters relevant to “the circumstances surrounding the commission of the offence concerned”, which could not include subsequent events. He sought support for that position in a decision of the Court of Appeal in Roos v Director of Public Prosecutions (1994) 34 NSWLR 254. In that case proceedings were taken to quash a control order made in the District Court, on appeal from the Children’s Court, on a number of grounds, including a failure to comply with s 25 of the Children (Criminal Proceedings) Act. The basis for the complaint was that, although a background report had been prepared for the purposes of the Children’s Court hearing, no fresh report was prepared or tendered in the District Court. The claimant’s contention was summarised by Handley JA (with whom, relevantly for present purposes, both Sheller JA and Powell JA agreed) in the following terms (p 260D-E):

“It was submitted that the section required an up-to-date report. However the ‘background report’ is not a pre-sentence report by another name. It is a report ‘with respect to the circumstances surrounding the commission of the offence’ which do not change with the passage of time.”

His Honour then referred to cl 6 of the Regulation, noting its content, and continued:

“However the statute requires a report ‘with respect to the circumstances surrounding the commission of the offence’ and if the Regulation required the report to deal with circumstances which were not in existence or known at the time of the offence it would be beyond power. In these circumstances, s 32 of the Interpretation Act 1987 requires the clause to be read down so as not to exceed the regulation-making power. Accordingly the 1993 background report satisfied the requirements of s 25(2) in the District Court and I reject this ground of challenge.”

12 A background report will always be prepared after the offence has been committed and indeed after the person has pleaded guilty or been found guilty or convicted of the offence: s 25(1)(a). It will therefore contain information which was unknown, at least to the authors, prior to the preparation of the report. If the young person has undergone medical or other tests following his or her arrest, the report may well contain information which was unknown to anyone at the time of the offence. Further, information may become known after the preparation of the report which suggests, or even demonstrates, that the report was incomplete or inaccurate.

13 For present purposes it is not necessary to determine whether there are circumstances in which a background report is demonstrated later to be so inaccurate, or to contain such extraneous material, that it should not be treated as a valid background report for the purposes of s 25(2). Nor is it necessary to consider the consequences of reliance upon such a report in relation to the sentencing proceedings.

14 In the present case, the existing report deals with offences other than those for which the applicant now stands convicted and accordingly not only deals with matters outside the scope of those required to be dealt with by the Act and Regulation, but deals with them on an entirely inappropriate basis. No doubt a report may properly deal with multiple offences: however, they must be offences to which the young person has pleaded guilty, been found guilty or has been convicted, as required by s 25(1)(a). The applicant seeks a fresh report and it would clearly assist this Court to have a report in proper form, whether s 25(2) has already been complied with or not.

15 It should be sufficient for this Court to indicate its wishes in that regard, but as there appears to be some doubt as to whether a second report can appropriately be prepared, the Court should, as requested, order the preparation of a further background report. Counsel for the Director noted, correctly, that no provision in the Act or Regulation expressly confers power on this Court to order a background report. However, it does not follow that this Court is impotent in the face of a statutory obligation not to sentence a person without such a report; the proper construction of s 25 is that it impliedly confers power on the Court to order such a report where necessary.

16 It was for these reasons that the Court made the order in the present case. In so ordering, the Court did not, and does not, reach any conclusion as to whether the existing report is a background report for the purposes of the sentencing to be undertaken in this Court. Nor does it reach any conclusion as to the admissibility of material contained in the existing report. Similarly, any dispute which may arise in relation to the further report will need to be dealt with by the Court as constituted for the sentencing hearing.

17 Although counsel for the applicant indicated that the arguments in relation to the application and appeal would fall within a small compass and suggested that they could be presented forthwith, allowing the parties an opportunity to make further submissions in writing following the receipt of the further background report, the Court did not accede to that suggestion. Whilst the Court is mindful of the passage of time since the commission of the offences for which the applicant stands convicted, it is not persuaded that the proposed course will necessarily achieve expedition. It is not yet known what will be in the further background report, nor whether it will lead to arguments as to admissibility. The possibility that this bench might need to reconvene for a further hearing militates against proceeding to a stage where the Court would be part-heard. Accordingly, the Court declined to hear further argument on the substance of the application and the appeal. The matter will need to be relisted at a time when the background report will have been obtained and dealt with in accordance with s 25(2)(a) and (b).

18 For these reasons, the Court made the following orders last Tuesday:

(1) Order that the Director take steps to have a further background report prepared with respect to the offences for which the applicant stands convicted.

(2) Stand the matter over to Registrar Drennan’s list at 9.00am on 30 August 2007 to fix a date for hearing.

19 LATHAM J: I agree with the reasons expressed by Basten JA.

20 ROTHMAN J: I agree with Basten JA.

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