Citation: [2015] NSWSC 15
Court: Supreme Court of New South Wales
Date: 30 January 2015
Judge(s): Davies J
Background
The offender was listed for sentencing before the Chief Judge at Common Law on 3 February 2015. Shortly before that date, an application was made to vacate the hearing on the basis that two categories of material required for the sentencing proceedings were not yet available.
The first was a pre-sentence report, which had not been completed due to delays within the Probation and Parole service. Relevant staff had been on leave, and an outstanding assessment had not yet been undertaken. The second concerned material relating to mitigating circumstances under s 21A(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW), connected to circumstances involving the offender's wife, which had been difficult to gather.
The Crown did not oppose the application for adjournment.
Legal Issues
- Whether the sentencing hearing scheduled for 3 February 2015 should be vacated given the absence of a completed pre-sentence report
- Whether the absence of material relevant to mitigating circumstances under s 21A(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW) provided further justification for an adjournment
Decision
Davies J granted the application and vacated the sentencing hearing. His Honour accepted that the delay in producing the pre-sentence report was attributable to administrative difficulties within Probation and Parole rather than to either party, and that the report would not be ready for several weeks.
His Honour noted that the pre-sentence report was necessary if the court was to impose parole conditions relating to treatment or residence. Without it, the court would not have the information needed to properly tailor those conditions.
In relation to the mitigating circumstances material, the court accepted that there had been genuine difficulty in gathering it and that it needed to be placed before the court before sentence could be imposed.
The proceedings were stood over for mention before the Chief Judge at 2pm on 3 February 2015. The offender was excused from attendance on that date and bail was continued on existing conditions.
Orders Made
- The sentencing hearing listed for 3 February 2015 was vacated
- The proceedings were stood over for mention before the Chief Judge at 2pm on 3 February 2015
- The offender was excused from attendance on 3 February 2015
- Bail was continued on existing conditions
Key Takeaways
- The Supreme Court vacated a sentencing hearing where a pre-sentence report was unavailable due to Probation and Parole administrative delays, confirming that such reports are necessary when the court may need to impose parole conditions relating to treatment or residence
- Under s 21A(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW), material relevant to mitigating circumstances must be before the court before sentence is imposed, and difficulty in gathering that material can justify adjourning a hearing
- An adjournment was appropriate where neither party was responsible for the delay and the Crown consented to the vacation of the hearing date
- This decision raises no point of principle and is confined to its procedural facts
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(3)
Cases:
- No cases were cited in this decision