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. Summary of Facts 8 An associate of a gang known as Sing Wa was attacked by persons believed to be members of a rival gang, Sing Ma. Members of the Sing Wa gang and their associates, including the applicant, sought to avenge that attack. The two victims were identified to the applicant and others as being present at poolhall premises in Campsie known as Lahood's on 10 November 1997. Neither victim was, in fact, a member of the Sing Ma gang. 9 After the decision had been made to attack Tremain Watene and GF, MTN sent a JD to get a knife, JD being the person who had wrongly identified the two victims as members of Sing Ma. JD brought back a long knife which he gave to MTN in the presence of a number of the group including the applicant. The applicant and MTN entered Lahood's and attacked GF, the applicant punching him in the stomach, MTN stabbing him in the shoulder. Other members of the group attacked Tremain Watene throwing bottles, hitting him with pool cues, punching and kicking him. 10 The applicant and MTN entered the attack on Tremain Watene, the applicant stabbing him in the back with a small pocketknife given to the applicant by MTN. The fatal stab wound, which was struck by MTN, was 130mm deep and penetrated heart and lung. 11 JD was charged with murder but the DPP accepted an offer of a plea to Assault Occasioning Actual Bodily Harm and Affray, on the understanding that evidence would be given by JD against MTN. JD was sentenced to two years imprisonment by way of periodic detention for the charge of Assault Occasioning Actual Bodily Harm and was placed on a twelve month's good behaviour bond for the Affray. Another of the group, Nasr, was originally charged and committed for murder. He also agreed to give evidence against MTN and he was sentenced to eighteen months periodic detention for Assault Occasioning Actual Bodily Harm with a concurrent sentence of twelve months for Affray. 12 HDN, one of the group, pleaded guilty to Assault Occasioning Bodily Harm and Affray and was sentenced to penal servitude for two years and ten months with a minimum term of twenty two months and eighteen days expiring on the day the sentence was imposed. Grounds of Appeal 13 The first ground of appeal was that the proceedings miscarried because of the failure to comply with s25 of the Children (Criminal Proceedings) Act 1987 ("the Act"). 14 The relevant section is set out below: s25 (1) This section applies to a person: (a) who has pleaded guilty to an offence (other than contempt of court) in, or has been found guilty or convicted of an offence (other than contempt of court) by, a court, (b) who was a child when the offence was committed, and (c) who was under the age of 21 years when charged before the court with the offence. (2) A court shall not sentence a person to whom this section applies to a term of imprisonment, or make an order under section 33(1)(g) in respect of the person, 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, and (b) copies of the report have been given to the child and any other person appearing in the proceedings, and (c) the court has, subject to the rules of evidence, taken into account the matters contained in the report and any submissions made in relation to those matters by the persons referred to in paragraph (b). This section is mandatory in its terms. The applicant is covered by s25 (1) of the Act. 15 Regulation 6 under the Act provides as follows: 6 For the purposes 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. 16 A pre-sentence report applicable for an adult was ordered and prepared and was admitted in evidence which, as submitted by the Crown with some cogency, covered most of the matters which would be contained in the report under Regulation 6 under the Act. 17 However, an examination of the report shows that there has not been strict compliance with Regulation 6(d), (e) and (f). It is not suggested that officers preparing probation and parole reports are not experienced at dealing with young people but, as submitted by Ms Flannery on behalf of the applicant, reports under s25 of the Act are prepared by juvenile justice officers specially trained for dealing with juvenile offenders and a pre-sentence report does not, in fact, comply with the protective and special purposes of the Act to protect children. 18 It is my view, therefore, that although many of the aspects required by the above cited regulation were before the court it was not an adequate covering of the matters required by the mandatory provision of the Act and it is my view, therefore, that his Honour erred in failing to comply with s25 of the Act. 19 It is not appropriate, therefore, to deal with the second ground of appeal which was: that his Honour failed to give sufficient weight to the applicant's youth at the time he committed the offences. 20 It is perhaps appropriate to note that the applicant was fifteen years old when he committed the offences and the penalty imposed was a substantial penalty for someone of the applicant's age at the time of the offence. This matter, for the reasons set out herein, obviously will be a matter for reconsideration, as indeed will all relevant sentencing factors, when the matter comes up for reconsideration if the orders that I propose come into effect. 21 This is not necessary to decide the ground argued by the applicant that the sentences imposed were manifestly excessive but some comment should be made about the principle of totality about which there was discussion during the hearing of the application and in the submissions of the applicant and the Crown. 22 It was submitted that his Honour did not turn his mind to the total criminality involved in the offences in that the applicant, if released at the end of the non-parole period imposed by his Honour, will have been in continuous custody for seven years and two months. 23 His Honour, in fact, referred to and applied the principle of totality in relation to the imposition of the three concurrent sentences from the same date and the fact that the commencement of the sentence was backdated to take into account the whole period of pre-service custody which his Honour took into account. There has, in fact then, been partial accumulation of the existing sentence and the newly imposed sentences. 24 Notwithstanding that for an offender of some fifteen years of age the total non-parole period and total sentences will cumulatively be a very lengthy period, it has not been demonstrated that, in fact, there is an error in the application of the principle of totality as such and this ground is, therefore, not made out. 25 Although this court clearly has the power to re-sentence the applicant if this application is granted, the court would require a report under the Act and there will be considerable difficulties in reconstituting the court with its present members and it is, therefore, appropriate that the matter be referred back to his Honour for re-sentencing in that event. 26 The orders, therefore, that I would propose are as follows: i. That leave to appeal be granted; ii. That the appeal be allowed and the sentences thereby imposed by O'Keefe J be quashed; and iii. That the matter be referred back to his Honour for re-sentencing. ********** Last Modified: 10/30/2009 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.