Citation: MG v Director of Public Prosecutions [2007] NSWCCA 260
Court: Court of Criminal Appeal, NSW
Date: 30 August 2007
Judges: Basten JA, Latham J, Rothman J
Background
The appellant was a young person who had been sentenced in the District Court in October 2002 following convictions in two separate trials for multiple sexual offences. The re-sentencing was required for two reasons: the appellant had subsequently been acquitted of offences from the second trial following a retrial ordered by the Court of Criminal Appeal in 2004, and a co-accused of comparable culpability had been re-sentenced by the same court in 2005.
Because the appellant was a young person, the proceedings engaged the Children (Criminal Proceedings) Act 1987 (NSW). A background report had been prepared for the original sentencing in 2002, but that report had been prepared by reference to all the offences originally before the court, including those for which the appellant was later acquitted. It also contained a risk-of-recidivism assessment shaped by those acquitted charges.
On re-sentencing, the Court had to determine whether the original report still satisfied the statutory requirements and, if not, whether the Court had power to order a fresh one.
Legal Issues
- Whether the existing background report remained a valid report for the purposes of s 25(2)(a) of the Children (Criminal Proceedings) Act 1987 (NSW), given that it addressed offences for which the appellant had since been acquitted
- Whether the Court of Criminal Appeal had power to order the preparation of a further background report in the absence of any express provision in the Act or Regulation conferring that power
- Whether Roos v Director of Public Prosecutions (1994) 34 NSWLR 254 precluded the ordering of a fresh report
Decision
The Director conceded that re-sentencing was required. Once that was accepted, s 25(2)(a) of the Children (Criminal Proceedings) Act was engaged, prohibiting the Court from imposing a term of imprisonment unless a compliant background report had been tendered in evidence.
The Court noted that the 2002 background report was compromised in two respects. First, it addressed offences for which the appellant now stood acquitted. Second, its risk assessment had been influenced by those same charges. Whether the report remained technically valid under s 25 was left open, but the Court was satisfied that a further report was warranted in any event.
The Director argued, relying on Roos v Director of Public Prosecutions, that the Court lacked power to order a fresh report because background reports under s 25 address only the circumstances surrounding the commission of the offence, which do not change over time. The Court distinguished Roos, observing that the question in that case was whether an earlier report could satisfy the requirements of s 25 in a higher court, not whether a court could order a supplementary report where the original had become unreliable. The Court's position in Roos was specifically that the existing report was sufficient; it did not consider whether additional material could be ordered.
On the question of power, the Court held that, where s 25 imposes an obligation not to sentence without a compliant report, that obligation carries with it an implied power to order such a report where necessary. The Court declined to proceed to the substance of the sentencing appeal until the further report was obtained, noting that the content of the new report and any admissibility disputes remained unknown.
Orders Made
- The Director was ordered to take steps to have a further background report prepared with respect to the offences for which the appellant stands convicted.
- The matter was stood over to Registrar Drennan's list on 30 August 2007 to fix a date for hearing.
Key Takeaways
- Under s 25(2)(a) of the Children (Criminal Proceedings) Act 1987 (NSW), a court cannot sentence a young person to imprisonment without a background report prepared in accordance with the Regulations; this obligation applies equally when the Court of Criminal Appeal undertakes a re-sentencing exercise.
- Although neither the Act nor the Regulation expressly confers power on the Court to order a background report, the Court of Criminal Appeal held that such a power is implied by the statutory obligation itself.
- Roos v Director of Public Prosecutions (1994) 34 NSWLR 254 was distinguished on the basis that it concerned whether an existing report was sufficient to satisfy s 25, not whether the court could order a fresh report where the original had been materially compromised by subsequent acquittals.
- A background report whose risk assessment is based partly on offences for which the person has been acquitted raises serious questions about its reliability for re-sentencing purposes, even if its formal validity under s 25 remains unresolved.
- Proceeding to hear the substantive sentencing appeal before a new background report was available was refused, given unresolved questions about the report's content and potential admissibility disputes.
Legislation and Cases Referenced
Legislation
- Children (Criminal Proceedings) Act 1987 (NSW), ss 11, 25
- Children (Criminal Proceedings) Regulation 2005 (NSW), cl 6
- Interpretation Act 1987 (NSW), s 32
Cases
- Roos v Director of Public Prosecutions (1994) 34 NSWLR 254