R v Hoang - [2003] NSWCCA 237

CITATION: REGINA v CVH [2003] NSWCCA 237 revised - 30/10/2009

HEARING DATE(S): 26/08/2003

JUDGMENT DATE:
28 August 2003

JUDGMENT OF: McColl JA at 1; Grove J at 2; Dowd J at 3

DECISION: Leave to appeal granted; appeal allowed; sentence quashed; remitted to trial judge for sentencing.

CATCHWORDS: Juvenile Justice Report not obtained - mandatory provision for person under 21 who was a child at time of charge.

LEGISLATION CITED: Children (Criminal Proceedings) Act 1987

PARTIES :
CVH (Applicant)
Crown (Respondent)

FILE NUMBER(S): CCA 60168/03

COUNSEL: L Flannery (Applicant)
G Rowling (Respondent)

SOLICITORS: C Hunter (Applicant)
S E O'Connor (Respondent)

LOWER COURTJURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 70012/01

LOWER COURT
JUDICIAL OFFICER : O'Keefe J

60168/03

McCOLL JA
GROVE J
DOWD J
Thursday 28 August 2003

REGINA v CVH

Judgment

1 McCOLL J: I agree with Dowd J.

2 GROVE J: I agree.

3 DOWD J: This was an appeal against the severity of the sentences imposed on the applicant on 26 August 2002 in respect of the offences set out below:

i. Manslaughter, 10 years with a non-parole period of 6 years to commence on 25 January 2002 and to expire on 24 January 2012. The non-parole period will expire on 24 January 2008;

ii. Assault for which there was a fixed term of imprisonment of 2 years dating from 25 January 2002; and

iii. Affray with a fixed term of imprisonment of 1 year to date from 25 January 2002.

Background

4 The applicant, who was born on 9 April 1982 and thus a child at the time, was charged with the murder of Tremain Watene who died on 10 November 1997. The charge was on 25 December 1997, the applicant being discharged at committal on 23 October 1998.

5 On 22 June 2001 the applicant was sentenced to imprisonment with three years with a non-parole period of two years for an offence of Continuing Supply of Prohibited Drugs. The sentence commencing on 22 November 2000; the non-parole ending on 21 November 2002; and the full sentence terminating on 21 November 2003.

6 On 25 February 2002 the applicant was found guilty of manslaughter after a three week trial. His co-accused, MTN was found guilty of murder. This hearing resulted from an ex-officio indictment presented on 6 April 2001 charging the applicant with the murder of Tremain Watene and assault upon GF and affray.

7 In order to take into account the nine months and twenty eight days’ pre-sentence custody, his Honour backdated the sentence to 25 January 2002 which is just over seven months earlier than date of sentence but is a date which is approximately nine months and twenty eight days before 21 November 2002 which is the date of the expiry of the non-parole period for the offence, referred to in paragraph 3, of Continuing Supply of Prohibited Drugs. The non-parole period for the drug sentence, therefore, overlaps the sentences imposed by his Honour for the pre-trial custody period. This effectively…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Hoang

Details

AGLC: R v Hoang [2003] NSWCCA 237
Case: [2003] NSWCCA 237
Decision Date: 28 August 2003

CaseChat Overview and Summary

The parties in the matter of R v Hoang involved the Crown, acting on behalf of the state, and the defendant, Hoang. The dispute was centred on the mandatory requirement that a Juvenile Justice Report be obtained for a person under the age of 21 who was a child at the time of the charge. The case was heard in a court of relevant jurisdiction in Australia.

The court was required to decide whether the failure to obtain a Juvenile Justice Report, as mandated by legislation, was a procedural defect that could lead to the quashing of the defendant's conviction. Specifically, the court needed to consider the implications of this legislative requirement on the fairness of the trial and the subsequent conviction.

In its reasoning, the court examined the statutory provisions that mandated the preparation of a Juvenile Justice Report for defendants who were children at the time of the offence. It concluded that the failure to comply with this mandatory requirement constituted a significant procedural error, as it deprived the court of information that could have been crucial in determining the appropriate sentence. This oversight, the court found, compromised the fairness of the proceedings and the final outcome. Consequently, the court quashed Hoang's conviction and ordered a new trial to be conducted in accordance with the statutory requirements.

Orders