Regina v DT [2004] NSWCCA 349

New South Wales Court of Criminal Appeal

CITATION : Regina v DT [2004] NSWCCA 349 HEARING DATE(S) : Tuesday 5 October 2004 JUDGMENT DATE : 5 October 2004

JUDGMENT OF : McClellan AJA at 1, 35; Grove J at 2; James J at 36 DECISION : APPEAL ALLOWED, IN PART

CATCHWORDS : CRIMINAL LAW AND PROCEDURE - SENTENCE - CROWN APPEAL - RESPONDENT PRESENTED IN CHILDREN'S COURT AND LATER IN DISTRICT COURT - INVALIDITY OF SENTENCE TO ADULT COMMUNITY SERVICE ON ONE COUNT - SUSPENDED SENTENCE - UNUSUALLY LONG DELAYS IN MATTERS BEING DEALT WITH - REHABILITATION IN THE INTERIM - NECESSITY TO RETURN MATTER TO PRIMARY SENTENCING COURT - DISCRETION WHEN DEALING WITH CROWN APPEALS LEGISLATION CITED : Children (Community Service Orders) Act 1987 Crimes (Sentencing Procedure) Act 1999 PARTIES : Regina v DT FILE NUMBER(S) : CCA 2004/1921 (60125/04) COUNSEL : G.I.O. Rowling (Crown/Applicant) R. Hulme SC (Respondent) SOLICITORS : S. Kavanagh (DPP) S. O'Connor (Respondent)

LOWER COURT District Court JURISDICTION : LOWER COURT 03/21/3168 FILE NUMBER(S) : LOWER COURT Moore ADCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 2004/1921 (60125/04)

McCLELLAN AJA GROVE J JAMES J

Tuesday 5 October 2004 REGINA v DT

1 McCLELLAN AJA: I will ask Grove J to deliver the first judgment. 2 GROVE J: This appeal comes before the court on a Crown appeal asserting the inadequacy of sentences imposed in the Campbelltown District Court by Moore ADCJ on 28 January 2004. 3 As will appear from matters which I will later recite, there have arisen unusual difficulties in relation to this appeal and it will provide no basis for precedent in other cases. 4 The respondent, when aged just short of eighteen years, joined with other youths and older men in serious criminal activity, all of which occurred on Wednesday 2 May 2001 at the Liverpool Catholic Club. 5 Disguised, a group of approximately eight offenders entered the club while at least two of them were armed with machetes. There were numerous offences committed in and against patrons of the club. The respondent was arrested shortly after the offence. 6 The prosecution of proceedings against him took an unfortunate turn. 7 Initially, investigators were, no doubt by reason of the disguises worn by the offenders, unable to identify the roles of each in the particular crimes. In original charges it was proposed that the respondent would be brought before and dealt with in the Children's Court. It is apparent from the papers before the court that representatives of the prosecution and the respondent were engaged in what may be described as "negotiations" as to what appropriate charges should be brought against the respondent. It was plain that the respondent did not deny being one of the intruders involved in entry into the club, it is equally plain that difficulty was being encountered in specifying appropriate charges to reflect his involvement and that, once these could be determined, the respondent was willing to acknowledge his responsibility by plea. 8 In any event, by February 2002 the Director of Public Prosecutions, in correspondence, indicated that certain particular charges would be laid against the respondent and concluded his letter with these observations: "This office would not seek to have the matter committed to the District Court for sentence although I note that it is ultimately a question for the court and not a matter for the DPP to make an election."