R v KL [2023] NSWSC 1617

Supreme Court New South Wales

Medium Neutral Citation: R v KL [2023] NSWSC 1617 Hearing dates: 04 December 2023 Date of orders: 04 December 2023 Decision date: 04 December 2023 Jurisdiction: Common Law - Criminal Before: Garling J Decision: See [18] Catchwords: CRIME – sentencing – application to vacate sentence proceedings – where Offender was informed less than a week before sentence of Crown's intention to require him as a witness in separate murder trial – delay in notifying the Offender entirely unexplained – where Juvenile Justice Report was provided less than a week before sentence – report raises new issues and requires further psychological or psychiatric evidence – case on sentence not ready to proceed – sentence proceedings vacated Legislation Cited: Government Information (Public Access) Act 2009 Cases Cited: Not Applicable Texts Cited: Not Applicable Category: Procedural rulings Parties: The Crown (Crown) KL (Offender) Representation: Counsel: F Gray (Crown) B Rigg SC / S Talbert (Offender)

Solicitors: Director of Public Prosecutions (Crown) AA Criminal Lawyer (Offender) File Number(s): 2022/198810 Publication restriction: Not Applicable

EX TEMPORE JUDGMENT 1. These proceedings have been fixed for sentence today, 4 December 2023 and tomorrow, 5 December 2023. 2. By a Notice of Motion filed late on Friday afternoon, 1 December 2023, the Offender seeks the vacation of the sentencing proceedings due to commence today and for further orders to be made. The order sought in the Notice of Motion arises from a combination of sorry circumstances for which neither the offender nor the Crown can claim any credit. 3. On 29 November 2023, namely last Wednesday, the Crown notified the Offender's lawyers of an intention by court order to require the Offender to give evidence in the capacity as a bystander and witness to a series of events giving rise to a criminal trial involving multiple accused which has been fixed for hearing on 1 July 2024 in this Court. 4. In any sentencing proceedings, the question of whether an offender is to give future evidence as a Crown witness, either unwillingly or willingly, is a matter upon which an offender is entitled to reflect, to give earnest consideration and obtain legal advice. That need is more acute where the offender is a juvenile who may take far more time to consider and review their position and obtain advice than any adult in the same position. Ultimately, of course, it is not necessarily the offender's choice because if there is a court order that he attend and give evidence he is obliged to do so on pain of being found possibly to be in contempt of court. However, a wholly insufficient period of time has elapsed to enable proper consideration to be given to that notification. Quite why the Office of the Director of Public Prosecutions, knowing that this matter had been specially fixed for two days, and had been specially fixed for some months, chose that time to notify the Offender is wholly unexplained. 5. The second matter is that the contents of a Juvenile Justice Report dated 30 November 2023, came to the attention of the parties at or about that time and was subject to discussion, appropriately, between the Offender and his lawyers on 1 December 2023. Neither party can explain why it is that such a report, which is regularly required for sentencing proceedings, was only prepared on 30 November 2023. 6. I am informed, and entirely accept, that efforts have been made for some time to obtain that report. The report appears on its face to be a detailed and thorough one. It raises in it a number of issues which have not previously been considered by the specialist psychologist retained to give evidence on behalf of the Offender, and also raises some matters which have not previously been available to or been considered by the Offender's lawyers. 7. Consequent upon the receipt of that report and obtaining further information, it has become apparent that the Offender's lawyers need to explore in far greater detail the factual matters touched upon in that report and their effect, psychologically or psychiatrically, on the Offender, not only now for the purpose of sentencing, including consideration of rehabilitation and the making of any orders with respect to the location at which the Offender, if found to have committed any criminal offence, will serve his imprisonment, but having regard to the timing of the particular events, may also raise a question as to whether the Offender's capacity and attitude to his offence was affected by a substantial impairment of his mind. If there was such an impairment, it may be that the Offender would wish to make an application to withdraw his plea. 8. Given that the Offender, who, as I have said earlier, is still a juvenile, has pleaded guilty to murder, an offence said to have been committed when he was about 14 years and seven months old, the Court has to be cautious to ensure that any such plea remains, if it is appropriate, or, subject to any application and the evidence on any such future application, he be permitted to withdraw that plea. 9. Again, these are matters that require careful consideration by the Offender's lawyers and for the Offender's lawyers to have the benefit of any expert opinion to assist them in that consideration. If it turns out that the expert opinion supports an application for a change of plea and such an application is made or, alternatively, in the absence of such application, if the additional expert opinion is relevant on sentence, the Crown itself may well need to obtain an expert report responding to that material. It is not possible to know that yet, but it does indicate that any sentence proceedings today would be an incomplete exercise. 10. Finally, it appears from the material set out in the affidavit of the Offender's solicitor that he has been taking steps for at least six weeks, if not longer, to obtain copies from the Frank Baxter Youth Detention Centre of records made by a treating psychologist, including obtaining a report from that psychologist. 11. I pause here to note that the request was made for documents which relate to the Offender and his treatment, counselling and the like, which would be relevant to matters advanced on sentence. No doubt those records would be contained, at least in part, in the client information management system held by the Juvenile Justice system. There may be other records as well. There seems to have been no difficulty making those records available to the authors of the Youth Justice Report provided to the Court, but since 17 October 2023, the steadfast and unyielding conduct of bureaucracy has stood in the way of the Offender obtaining these essential records. 12. After an email request for records was made, it took the recipient a week to tell the Offender's lawyers that such a request needed to be made in accordance with the Government Information (Public Access) Act 2009. After such an application was sent two weeks later, it appeared that the application had been received, but that the Management of the Frank Baxter Youth Justice Centre had not yet provided a response. 13. Ten days later, another officer, not from the Frank Baxter Youth Justice Centre, but rather from a branch of the Department responsible for Juvenile Justice, enquired of the Offender's solicitor whether they still wanted the documents. Given that there had been no withdrawal of a request, such a question is, frankly, astonishing. 14. A week later the Offender's solicitor was invited by another member of the bureaucracy to chase up the request. Notwithstanding all of that, nothing has happened. 15. In the meantime, the records have been freely accessed by other people for the purpose of providing the Court with a report. The bureaucratic attitude to the request, in light of the fact that these sentencing proceedings were fixed for today, is simply astonishing. It is certainly unacceptable. 16. All of these matters have meant that the Offender's case on sentence is not ready to proceed. This is regrettable. The Court set aside two days for the hearing of this plea and that allocation has been set down for many months. The family of the deceased have been expecting the sentence hearing to be heard today and for the matter to be resolved, save only for the imposition of a sentence by the Court. No doubt the preparation for and thinking about all of the matters in advance of today has been very debilitating for the family of the deceased. As well, the family of the Offender have had to prepare themselves for this proceeding and, importantly as well, so has the Offender. All of these people are adversely affected by all of these matters. Judicial resources have also been affected adversely by the wastage of time. 17. Notwithstanding all of those matters, the interests of justice require this proceeding to be vacated today. I will make the order sought in the Notice of Motion.