R v Ku, AAC, Wy, PAG, Ky, KZ, BBL, WZ and YC; ex parte

[2008] QCA 15

SUPREME COURT OF QUEENSLAND

CITATION:

R v KU & Ors; ex parte A–G (Qld) [2008] QCA 15

PARTIES:

R
v
KU
(respondent)
AAC
(respondent)
WY
(respondent)
PAG
(respondent)
KY
(respondent)
KZ
(respondent)
BBL
(respondent)
WZ
(respondent)
YC
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(applicant/appellant)

FILE NO/S:

CA No 343 of 2007
CA No 344 of 2007
CA No 345 of 2007
CA No 346 of 2007
CA No 347 of 2007
CA No 348 of 2007
CA No 349 of 2007
CA No 350 of 2007
CA No 351 of 2007
DC No 146 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence)
Sentence Appeal by A-G (Qld)

ORIGINATING COURT:

District Court at Aurukun and Cairns

DELIVERED EX TEMPORE ON:

13 February 2008

DELIVERED AT:

Brisbane

HEARING DATE:

13 February 2008

JUDGES:

de Jersey CJ, McMurdo P and Keane JA
Judgment of the Court

ORDER:

1.   That the time within which the Attorney-General might appeal is extended until 11 December 2007 for YC and 10 December 2007 for all other respondents

2.   That the Chief Executive is to prepare pre-sentence reports for AAC, YC, PAG, KY, KZ and BBL and provide them to the Court by 13 March 2008

3.   That the respondents file any additional evidence by 3 April 2008 or such further date as the Court subsequently directs and serve copies of that evidence on the applicant/appellant by that same date

4.   That the applicant/appellant should forthwith advise the respondents of any witness to be required for examination or cross-examination

5.   That the parties should advise the Registrar as soon as practicable of the expected length of the further hearing

6.   That the further hearing of the appeal be adjourned until a date to be fixed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE SENTENCE

Criminal Code Act 1899 (Qld), s 668E(3), s 671B(2)
Juvenile Justice Act 1992 (Qld), s 207

COUNSEL:

W Sofronoff QC SG with E S Wilson for the appellant
C R McDonald QC with A W Collins for the respondents

SOLICITORS:

Director of Public Prosecutions (Queensland) for the appellant
Aboriginal and Torres Strait Islander Legal Services for the respondents

THE CHIEF JUSTICE:  We are satisfied that the time within which the Attorney-General might appeal in these cases should be extended until the date of filing of the applications for extension, that is, in the case of YC, 11 December 2007, and in the cases of all other respondents, 10 December 2007, and the Court orders that the time be extended accordingly.  We will, in due course, publish our reasons for granting that extension.
The respondents seek an adjournment of the further hearing of the appeal in these circumstances, and the Attorney-General does not oppose that adjournment.  The purpose of the adjournment is to allow the respondents the opportunity to assemble further evidence to be placed before the Court.  That is an appropriate course for reasons going to the way the matter proceeded in the District Court, and that also will be dealt with in our forthcoming reasons.

In light of section 671B(2) of the Criminal Code the Attorney‑General would be prevented from any reliance on further evidence in support of a submission that the sentences should be increased. Indeed, the Court could not rely on any such new material to increase the sentences.

Now we are going to direct the filing of any further evidence and order presentence reports.  The question of the timeframe for that arises.  My own inclination was to ask the Chief Executive to prepare presentence reports within a month.
...
THE CHIEF JUSTICE:  We will direct the respondents to file any additional evidence by the 3rd of April 2008 or such further date as the Court subsequently directs and to serve copies of that evidence on the appellant by the same date.

The appellant should forthwith advise the respondents of any witness to be required at the resumed hearing for either examination or cross-examination.  In other words, if you want them to give their evidence orally you have to tell them, as well as cross-examination.

The Court's present inclination, in the event that it were inclined to allow any of the appeals, would be to proceed itself to resentence the respondents rather than remitting any resentencing to the primary Court. This Court obviously has power to proceed in that way under section 668E(3) of the Criminal Code.

The appellant is seeking increased penalties for the juvenile offenders. Presentence reports would first have to be obtained because of section 207 of the Juvenile Justice Act and should have been ordered by the sentencing Court in respect of all of the juvenile offenders.

This Court has all the powers of the original sentencing Court. This Court could not rely on such reports to increase penalties. That is because of section 671B(2) of the Criminal Code. Such a report could, in theory, lead the Court in the opposite direction or to confirm the penalties which were imposed. None was before the sentencing Court in the cases of AAC and YC. To regularise the situation there should be orders under section 207 of the Juvenile Justice Act that the Chief Executive prepare presentence reports in relation to those two respondents and provide them to this Court, with a request that that be done by the 13th of March 2008 which, Mr McDonald, is a fortnight before the date for your filing commitment, but to assist any resentencing up to date presentence reports should be available in respect of all juvenile respondents.

A similar order will, therefore, be made in respect also of PAG, KY, KZ and BBL.

We reserve, however, the question, what if any use may be made of such reports upon our further subsequent consideration of the matter.

Mr McDonald, who appears for the respondents, has raised the question of psychological assessment in respect of all respondents, which he hopes may be carried out within the Department of Youth Justice at Griffith University.  This Court does not have power to require the preparation and provision of such reports, but does request the head of the Department of Youth Justice at Griffith University to have prepared and furnished to the respondents up to date psychological assessments in respect of each of the respondents.  The request is that that be done by the 13th of March 2008.

THE CHIEF JUSTICE:  The parties should, as soon as practicable, advise the Registrar of the expected length of the further hearing.  The further hearing of the appeal is adjourned to a date to be fixed.

Finally, we emphasise the prime importance of ensuring that the appeals proceed to a conclusion without delay, having regard particularly to the interests of the parties, six of whom are juveniles, and the complainant and the community.  It is in that context that we emphasise the high desirability of the preparation of the pre-sentence reports and the Griffith University assessments without delay, and we would respectfully request both the Chief Executive and the University authority to ensure the deployment of resources as a matter of utter priority to the fulfilment of those tasks.

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