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." 9 Investigation, or at least analysis, of what had occurred at the club, apparently continued. This led to a further letter from the Director of Public Prosecutions on 8 May 2002, making reference to what was described as the "full facts" and observing that: "It appears that there has been a misconception on both sides (Crown and Defence) in terms of how your client can be sentenced." 10 There were then references to an intention to charge the respondent with offences different from those earlier indicated, and the letter concluded: "It is also the present intention of the Crown to seek to have the sentence proceedings dealt with in the District Court jurisdiction." 11 In the course of time applications were made for a stay of proceedings on behalf of the respondent and there were other matters not initiated by him which contributed towards delay. It does not seem profitable to investigate the detail as to the reasons for delay, what is now significant is that long delay did in fact occur. As I stated at the outset, the respondent appeared for sentence on 28 January 2004; that is almost two years nine months after the offence had been committed. The respondent first was brought before a court on 4 May 2001, that is within two days of the commission of the offence. A count has revealed that the current hearing is the thirty-eighth listing in a variety of courts since then. 12 I should record that submissions were made concerning the specific delay in instituting this appeal. The affidavit of Elsbeth Philpott sworn 1 October 2004 details the relevant circumstances and establishes that notification of intention to appeal and service of the notice were given in accordance with what was practicable. This is not a case where delay for reasons of dilatoriness leads to determination, but, as I have said, irrespective of cause time was elapsing. 13 The respondent was a young man with no prior convictions. Nevertheless, the offences which he committed on this occasion were of a very serious order. The actual charges eventually preferred against him all arose out of the events of the evening that I have mentioned. They were contained in two counts, the first a count of armed robbery and a second count charging robbery in company. Taken into account on a Form 1 were two further offences of robbery in company and an offence of being carried in a conveyance without the consent of the owner. 14 By the time the respondent appeared for sentence there had been what his Honour found to be "remarkable achievements" by him. He had obviously matured during the ensuing years and he had, in particular, gone with a group to spend time with indigenous people, both in Bourke and in Central Australia. Many people were able to inform his Honour as to how, after this, there had been a noticeable change for the better in his life. He has formed a stable relationship and become the father of a child. He has remained in steady employment. 15 It should be mentioned that the evidence showed that the plaintiff came from a close knit, supportive and spiritually sensitive extended family. It is unnecessary to detail the arrangements whereby he was brought up somewhat unusually within the extended family. 16 It was able to be detected that his fall from grace seemed to follow a trip to Hawaii for some six months in the year 2000 when he was trying out for a basketball scholarship. The arrangements for his residence had fallen through and, pursuant to ad hoc arrangements, he came under the influence of people who were, to say the least, undesirable. His family noticed that, when he returned home after failing to obtain the scholarship, there had been a change for the worse. That culminated in his participation in the very serious offences for which he stood for sentence. 17 The learned sentencing Judge was able to observe, however, that there was no evidence that the respondent took part in any of the physical acts of violence on the occasion, although his plea of guilty conceded that he was a principal in the sense that he remained nearby, ready to assist if called upon. His Honour's findings in this regard have not been the subject of challenge. 18 His Honour came to the conclusion that the whole of the circumstances were so truly exceptional that, despite the seriousness of the offences, non custodial sentences were appropriate. 19 What his Honour purported to do was to sentence the respondent on the first count to imprisonment for eighteen months commencing on 28 January 2004 and expiring on 27 July 2005, which he suspended upon the respondent entering a bond to be of good behaviour for the period of eighteen months. On the second count he ordered that the respondent serve five hundred hours community service. The matters on the Form 1 were taken into account on the sentence in respect of the first count. 20 The Crown has vigorously argued that, despite the favourable subjective circumstances of the respondent, the objective seriousness of his participation in these offences was such that his Honour ought have met them by the imposition of a sentence of full time custody. 21 There are, however, two matters which I regard as of signal importance in dealing with this particular Crown appeal. In different ways they touch upon the matter of delay. I have already adverted to the long delay between the commission of the offence and the appearance of the respondent for sentence and the further delay that has taken place pending the appeal to this court. 22 This has had an unusual consequence in this particular case in that if full time custody were imposed, by reason of the lapse of time it is no longer possible for an order to be made that the respondent serve his sentence in a juvenile detention centre. That is because the option ceases to be available once an offender has, as the respondent has, attained the age of twenty one. 23 It might be observed that one co-offender had also been sentenced to non custodial penalty and that an appeal to this court was allowed when pursued by the Crown. Nevertheless, the consequence in that case was that that offender was ordered to serve twelve months in actual custody in a juvenile detention centre. Purely by reason of the lapse of time, such is no longer available to the respondent. 24 The second matter is the circumstance that it is acknowledged, both on behalf of the Crown and on behalf of the respondent, that the purported sentence on the second count was made without jurisdiction. The respondent is therefore, in the situation where almost three and half years have now passed since the commission of the offence and yet imposition of sentence cannot be finalised today. 25 There are several reasons for the invalidity of the sentence on the second count. One fundamental matter is that, by reason of the age of the respondent when the offences were committed, the Children (Community Service Orders) Act 1987 was applicable. Not only does it apply because of its own terms, but it can be observed that the parallel legislation applicable to adults expressly excludes its application to this respondent (see s 8(3), Crimes (Sentencing Procedure) Act, 1999). 26 One of the consequences is that, even if the learned sentencing judge had adverted to the correct legislation, there would have been, in the circumstances of this respondent, jurisdiction to make an order for community service not exceeding two hundred and fifty hours, whereas his Honour purported to impose five hundred hours. 27 I said that that was only one of the matters relating to the invalidity. It is common ground that, although there was oblique mention of recommendation in Juvenile Justice Reports which were before his Honour, there was neither appropriate undertaking sought from the respondent nor other requisite procedures undertaken in order to fulfil the statutory steps necessary to be taken in order to utilize community service as a sentencing option. 28 There is a discrete procedural matter, if I can so describe it, to which I should make reference, and that is, in imposing the sentence of eighteen months imprisonment on the first count, which his Honour suspended, he did not specify a non parole period. 29 There are complications which could follow intervention by this court simply to repair that omission. The power to suspend a sentence is vested by s 12 of the Crimes (Sentencing Procedure) Act 1999. S 12(3), subjected to stated exclusions, provides that Part 4 of the Act which deals with procedures for imprisonment does not apply. An exclusion in s 99(1) would operate in the event of revocation. The principal complication is in seeking to replicate the jeopardy to which the respondent would be subject if a non parole period were now to be set. The power to "backdate" a sentence is vested by s 47 which is within Part 4 and hence does not apply (s 12(3)) if sentence is suspended. 30 Although his Honour did not give a reason for declining to set a non parole period, his sentence is not invalidated thereby (see s 45(4)) and the most practical course, in the event that this court did not determine to impose a custodial sentence, was acknowledged by counsel to be to refrain from specification of a non parole period. 31 It does not seem to me that this court can deal with the second count. This court has no jurisdiction to act as a court of first instance sentencing and it is inevitable, therefore, that the matter will have to be returned to the primary court for that purpose. 32 Thus, although all of the criminal activity of the respondent was consequent upon a series of events on a single occasion, it will not be possible to deal with matters as a whole. 33 Irrespective of any view as to the inadequacy of the sentence on the first count, I do not consider that the interests of justice could be served by committing the respondent to custody after some three and a half years in the legal "system". The discretion of this court to dismiss a Crown appeal on sentence should be in any event invoked. The purported sentence on the second count is a nullity and the respondent is unsentenced in respect of it. 34 In order to accommodate these quite peculiar circumstances that have arisen I would propose the following orders: 1. To the extent that the Crown appeals against the sentence imposed upon the first count (in relation to which the matters on the Form 1 were taken into account) in the exercise of the Court's discretion, the Crown appeal be dismissed and the sentence imposed in the District Court confirmed. 2. In relation to the second count of robbery in company the appeal allowed and the purported sentence quashed by reason of its invalidity and the matter of sentence on the second count remitted to the District Court to be dealt with in accordance with law. 35 McCLELLAN AJA: I agree with the orders proposed by Grove J and with his reasons therefor. 36 JAMES J: I also agree. 37 McCLELLAN AJA: The court's orders accordingly will be as Grove J has announced. ********** Last Modified: 10/15/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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