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Court of Criminal Appeal 28 August 2003

REGINA v CVH [2003] NSWCCA 237 revised - 30

[2003] NSWCCA 237

Assault & violenceHomicide
JUVENILE JUSTICE REPORT NOT OBTAINED

Citation: REGINA v CVH [2003] NSWCCA 237
Court: NSW Court of Criminal Appeal
Date: 28 August 2003
Judge(s): McColl JA, Grove J, Dowd J

Background

The applicant was born in April 1982 and was fifteen years old when, in November 1997, he participated in a gang-related attack at a Campsie pool hall. The attack resulted in the death of one victim from a stab wound. The applicant was charged with murder in December 1997 and, following a three-week trial, was found guilty of manslaughter in February 2002.

At the sentencing hearing in August 2002, the trial judge (O'Keefe J) ordered an adult pre-sentence report rather than the background report specifically required under the Children (Criminal Proceedings) Act 1987. The applicant received a ten-year sentence for manslaughter, with a six-year non-parole period, together with concurrent fixed terms for assault and affray.

The applicant sought leave to appeal against the severity of those sentences, raising two grounds: the failure to obtain the mandatory statutory report, and the trial judge's alleged failure to give sufficient weight to the applicant's youth at the time of the offences.

  • Whether the sentencing court erred by failing to obtain a background report under section 25 of the Children (Criminal Proceedings) Act 1987 before imposing a sentence of imprisonment on a person who was a child when the offence was committed and under 21 when charged.
  • Whether the adult pre-sentence report actually obtained was an adequate substitute for the statutory report required by the Act and its regulations.
  • Whether the principle of totality was correctly applied, given the applicant's existing drug sentence and the sentences imposed at this hearing.

Decision

Section 25 of the Children (Criminal Proceedings) Act 1987 is mandatory in its terms. It requires that a background report, prepared in accordance with the regulations, be tendered in evidence before a court sentences to imprisonment any person who was a child when the offence was committed and was under 21 when charged. The applicant clearly fell within that provision.

The Court found that the adult pre-sentence report tendered at sentence did not satisfy the statutory requirement. Although the Crown submitted the report covered most of the matters listed in Regulation 6, the Court identified that it did not strictly address the applicant's friends and associates, participation in community life, or disabilities. Critically, the Court noted that background reports under section 25 are prepared by juvenile justice officers specially trained in dealing with young offenders, and that an adult probation and parole report does not fulfill the Act's protective purposes.

Having found that the sentencing proceedings miscarried on this ground, the Court did not need to determine whether the youth of the applicant was given insufficient weight. The Court also considered totality but found no demonstrated error in how O'Keefe J had applied that principle, noting the sentences had been made concurrent and backdated to account for pre-sentence custody.

Because a fresh report under the Act would be required before re-sentencing, and reconstituting the Court of Criminal Appeal for that purpose would present practical difficulties, the matter was remitted to O'Keefe J for re-sentencing.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed; all sentences imposed by O'Keefe J quashed.
  • Matter remitted to O'Keefe J for re-sentencing.

Key Takeaways

  • Section 25 of the Children (Criminal Proceedings) Act 1987 imposes a mandatory obligation: a court cannot sentence a qualifying person to imprisonment without first obtaining a prescribed background report; the provision admits no discretion.
  • An adult pre-sentence report does not satisfy the section 25 requirement, even where it incidentally covers some of the same subject matter as the statutory report, because juvenile justice officers have specialist training that probation and parole officers preparing adult reports do not.
  • The Court of Criminal Appeal confirmed that strict compliance with Regulation 6 is required, meaning the background report must address all applicable matters including the offender's friends and associates, community participation, and disabilities.
  • Where a sentencing court fails to comply with a mandatory statutory prerequisite of this kind, the resulting sentence is liable to be quashed on appeal regardless of whether other grounds of appeal are made out.
  • In upholding the appeal, the Court found no demonstrated error in the application of the totality principle, illustrating that overlapping and cumulative sentences will not be disturbed on totality grounds unless a specific error is established.

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW), section 25
- Regulation 6 made under the Children (Criminal Proceedings) Act 1987 (NSW)

Cases cited: None identified in the provided text.