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Court of Criminal Appeal 5 October 2016

LD v R

[2016] NSWCCA 217

Assault & violenceTheft & property
CRIMINAL LAW APPEAL AGAINST SENTENCE MATTER REMITTED

Citation: LD v R [2016] NSWCCA 217
Court: Court of Criminal Appeal, NSW
Date: 5 October 2016
Judge(s): Ward JA, Harrison J, R A Hulme J (judgment delivered by R A Hulme J)

Background

The applicant, a juvenile offender referred to as LD, was sentenced in the Wagga Wagga District Court in November 2015 for aggravated break, enter and commit a serious indictable offence, namely reckless wounding in company, contrary to s 112(2) of the Crimes Act 1900 (NSW). The offence arose from a violent home invasion in which LD and three others forced entry into a victim's home and attacked him. LD struck the first blow with a glass object, and the victim suffered serious injuries, including a 10-centimetre deep stab wound to the shoulder requiring surgery.

LD had originally been committed for trial on a more serious charge carrying a maximum of 25 years' imprisonment, but pleaded guilty in the District Court to the lesser charge, which the Crown accepted in full satisfaction of the indictment. The sentencing judge imposed three years' imprisonment with a non-parole period of 18 months.

LD was under 18 years of age at the time of the offence. He applied to the Court of Criminal Appeal for leave to appeal against the sentence on two grounds.

  • Whether the sentencing judge erred by failing to apply the mandatory provisions of the Children (Criminal Proceedings) Act 1987 (NSW) when sentencing a child offender for an offence that did not fall within the Act's definition of a "serious children's indictable offence"
  • Whether the sentence imposed was manifestly excessive in all the circumstances

Decision

The Crown conceded, and the Court accepted, that Ground 1 was well-founded. The offence LD was sentenced for was not a "serious children's indictable offence" as defined in s 3 of the Children (Criminal Proceedings) Act 1987 (NSW). That distinction matters because different mandatory sentencing requirements apply, including the requirement under s 25 of the Act to obtain a background report before sentence is imposed.

The sentencing judge had not considered whether LD should be dealt with under the general law or under Division 4 of Part 3 of the Act, and had not obtained the mandatory background report. Both the Crown and defence were criticised for failing to draw the judge's attention to these requirements, despite both being aware that LD was a child. The Court quoted with approval the observation from CTM v R that the Crown bears a particular obligation to ensure the court is aware of the jurisdiction it is exercising.

Because the sentence was imposed without compliance with mandatory statutory requirements, it was invalid. The Court did not proceed to consider Ground 2 (manifest excess), as the appropriate remedy was to quash the sentence and remit the matter to the District Court for resentencing. Following the approach taken in R v CVH and DPN v R, the Court of Criminal Appeal declined to act as a primary sentencing court, particularly given the need for a background report to be prepared.

Orders Made

  • Leave to appeal granted and appeal allowed
  • Sentence imposed in the District Court on 6 November 2015 quashed
  • Matter remitted to the Wagga Wagga District Court on 10 October 2016 for mention

Key Takeaways

  • A sentence imposed on a child offender without compliance with the mandatory requirements of the Children (Criminal Proceedings) Act 1987 (NSW), including obtaining a background report under s 25, is invalid.
  • Where an offence does not fall within the statutory definition of a "serious children's indictable offence" under s 3 of the Act, the sentencing court must consider whether to deal with the offender under the general law or under Division 4 of Part 3 of the Act.
  • The Court of Criminal Appeal confirmed, following CTM v R, that the Crown carries a positive obligation to ensure the sentencing court is aware of the legislative framework governing the particular jurisdiction being exercised.
  • In cases where mandatory procedural steps under the Children (Criminal Proceedings) Act 1987 have been omitted, the established remedy is to remit the matter to the District Court rather than have the Court of Criminal Appeal act as a primary sentencing court.
  • The fact that both parties alerted the judge to the applicant's age, without going further and identifying the applicable statutory requirements, was insufficient to discharge their obligations to the court.

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW), ss 3, 15A, 25
- Crimes Act 1900 (NSW), ss 112(2), 112(3)

Cases:
- CTM v R (2007) 171 A Crim R 371; [2007] NSWCCA 131
- DPN v R [2006] NSWCCA 301
- R v CVH [2003] NSWCCA 237