REGINA v CVH [2003] NSWCCA 237

New South Wales Court of Criminal Appeal

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 COURT Supreme Court JURISDICTION : LOWER COURT 70012/01 FILE NUMBER(S) : LOWER COURT O'Keefe J JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 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 makes the non-parole period for the manslaughter offence a period of just over five years and two months on top of the two year term the applicant would serve in any event, for the existing conviction.