Citation: R v KL [2023] NSWSC 1617
Court: Supreme Court of New South Wales
Date: 4 December 2023
Judge(s): Garling J
Background
The offender, a juvenile who had pleaded guilty to murder alleged to have been committed when he was approximately 14 years and seven months old, was listed for sentencing proceedings on 4 and 5 December 2023. Those dates had been specially fixed for many months.
On the eve of the hearing, two significant developments emerged. Late on 29 November 2023, the Crown notified the offender's lawyers of an intention to require the offender to give evidence as a witness in a separate criminal trial listed for July 2024. Separately, a Juvenile Justice Report dated 30 November 2023, which raised issues not previously considered by the offender's retained psychologist or lawyers, was only provided to the parties at around the same time.
A further complication arose from an ongoing failure by the Frank Baxter Youth Detention Centre to produce the offender's psychological treatment records, despite requests stretching back at least six weeks. The offender's solicitor filed a Notice of Motion on 1 December 2023 seeking vacation of the sentencing proceedings.
Legal Issues
- Whether the sentencing proceedings should be vacated given the combination of late disclosure, the unresolved Juvenile Justice Report, and the outstanding psychological records
- Whether the late-disclosed Juvenile Justice Report raised issues potentially relevant to a partial defence of substantial impairment of mind, which could give rise to an application to withdraw the guilty plea
- Whether procedural fairness to a juvenile offender required further time to obtain legal advice on the implications of being required to give evidence in separate proceedings
Decision
Issue 1: Late notification of witness obligations
Garling J found that a wholly insufficient period of time had elapsed since the Crown's notification of 29 November 2023 to allow the offender to reflect on and obtain legal advice about the prospect of giving evidence in separate proceedings (at [4]). The court noted this need was more acute for a juvenile, and observed that the failure by the Office of the Director of Public Prosecutions to explain why this notification was made so close to the specially fixed sentencing date was wholly unexplained (at [4]).
Issue 2: The Juvenile Justice Report and potential withdrawal of plea
The court found the Juvenile Justice Report raised matters not previously available to either the retained psychologist or the offender's lawyers, including whether the offender's capacity and attitude to the offence had been affected by a substantial impairment of mind (at [6]-[7]). Given the offender had pleaded guilty to murder as a juvenile, the court held it must be cautious to ensure the plea remained appropriate or, if a properly supported application were made, that the offender be permitted to withdraw it (at [8]-[9]). Any sentencing hearing proceeding without resolution of these matters would be an incomplete exercise (at [9]).
Issue 3: Failure to produce psychological records
The court described the conduct of the relevant bureaucracy as "simply astonishing" and "certainly unacceptable" (at [15]). Despite requests made from at least 17 October 2023, the Frank Baxter Youth Detention Centre had produced no records, while those same records had been freely accessed by the authors of the Juvenile Justice Report provided to the court (at [11]-[15]). The court granted leave to file a subpoena for immediate production of the records (at [18]).
Overall conclusion
Garling J held that, notwithstanding the significant disruption to all parties, including the families of both the deceased and the offender, the interests of justice required the proceedings to be vacated (at [16]-[17]).
Orders Made
- The sentencing proceedings listed for 4 and 5 December 2023 were vacated.
- Leave was granted to the offender's solicitor to file and serve a summons or subpoena for production of all documents relating to psychological counselling sessions at Frank Baxter Youth Detention Centre, to be filed by 3pm and served electronically by 5pm on 4 December 2023.
- The summons or subpoena was made returnable before Garling J at 9:30am on 8 December 2023.
- Compliance with ordinary service rules was excused; service was to be effected by email with a covering letter noting the return date.
- Proceedings stood over for case management before Garling J to 1 March 2024, with the offender excused from attendance.
- Liberty to apply was granted to either party.
Key Takeaways
- Sentencing a juvenile who has pleaded guilty to murder requires the court to remain vigilant that the plea is and remains appropriate, particularly where late-emerging material raises the possibility of a partial defence such as substantial impairment of mind (at [7]-[8]).
- A guilty plea to a serious offence is not rendered immune from review simply because sentencing proceedings are imminent; new expert material may justify either an application to withdraw the plea or additional evidence on sentence, and the Crown may in turn need to respond (at [9]).
- The right of an offender, especially a juvenile, to obtain legal advice before sentencing proceedings includes sufficient time to consider the implications of being required to give evidence in separate criminal proceedings (at [4]).
- Where government agencies fail to produce an offender's own treatment records despite repeated requests, while simultaneously making those same records available to report writers for court purposes, the court may compel production by subpoena and describe such bureaucratic conduct as unacceptable (at [11]-[15]).
- Vacation of a specially fixed sentencing hearing will be ordered where the combined effect of late disclosure, unresolved expert evidence, and outstanding records means the hearing would be an incomplete exercise, even where that vacation causes significant distress to the families of all parties (at [16]-[17]).
Legislation and Cases Referenced
Legislation
- Government Information (Public Access) Act 2009
Cases
- Not Applicable