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Supreme Court 22 March 2004

Regina v CVH

[2004] NSWSC 205

Assault & violenceHomicidePublic order & justice offences
CRIMINAL LAW MANSLAUGHTER ASSAULT AFFRAY PLEA OF NOT GUILTY KILLING IN COMPANY

Citation: Regina v CVH [2004] NSWSC 205
Court: NSW Supreme Court (Criminal Division)
Date: 22 March 2004
Judge(s): O'Keefe J

Background

The prisoner, CVH, was convicted by jury of the manslaughter of a young man, assault on a second victim, and affray, all arising from a group attack at an amusement and snooker centre at Campsie on 10 November 1997. The offences were committed in concert with others and were motivated by revenge. The prisoner was a youth at the time the offences were committed.

Following conviction in February 2002, the prisoner was originally sentenced in August 2002 to 10 years' imprisonment for manslaughter (with a six-year non-parole period), together with concurrent fixed terms for assault and affray. He appealed to the Court of Criminal Appeal on grounds of procedural non-compliance, insufficient weight given to his youth, and manifest excess.

The Court of Criminal Appeal found that the pre-sentence report did not strictly comply with regulations made under the Children (Criminal Proceedings) Act 1987, specifically provisions requiring the report to address the prisoner's friends and associates, community participation, and disabilities. The matter was remitted to the Supreme Court for resentencing, without the Court of Criminal Appeal determining whether the original sentence length was itself correct.

  • Whether the resentencing court should impose a reduced sentence for manslaughter, taking into account the deficiencies in the original pre-sentence process and all relevant subjective factors
  • The proper weight to be given to the prisoner's youth at the time of the offences under the Children (Criminal Proceedings) Act 1987
  • Whether special circumstances justified variation of the non-parole period relative to the head sentence
  • The appropriate concurrent structure of sentences for the assault and affray offences

Decision

O'Keefe J adopted the findings of fact from the original sentencing remarks and proceeded to resentence on the basis of a compliant pre-sentence report from the Department of Juvenile Justice. The court noted the objective seriousness of the manslaughter: it was a deliberate group crime involving planning, gratuitous violence, and a revenge motive, placing it in the middle range of culpability rather than at either extreme.

On subjective factors, the court gave significant weight to the prisoner's youth at the time of the offences, his expressed remorse, participation in educational courses while in custody, and what appeared to be a genuinely changed attitude since the original sentencing. These factors, assessed alongside the objective gravity of a killing committed in company by a group of young men, supported a modest reduction in sentence.

The court reduced the manslaughter sentence from 10 years to 8.5 years and the non-parole period from 6 years to 5 years, with the commencement date remaining 25 January 2002. The sentences for assault and affray were left unchanged. Those two sentences had already expired by the date of resentencing, so no alteration was required in respect of them.

The court also observed that, despite the mitigating personal factors, the seriousness of organised group violence demanded a sentence that communicated clear condemnation, even where the offender was young at the time.

Orders Made

  • Manslaughter: imprisonment for 8.5 years, commencing 25 January 2002 and expiring 24 June 2010; non-parole period of 5 years, commencing 25 January 2002 and expiring 24 January 2007
  • Assault: fixed term of 2 years, commencing 25 January 2002 and expiring 24 January 2004, concurrent with the manslaughter sentence
  • Affray: fixed term of 1 year, commencing 25 January 2002 and expiring 24 January 2003, concurrent with the manslaughter sentence

Key Takeaways

  • Non-compliance with the reporting requirements of the Children (Criminal Proceedings) Act 1987 and its regulations, specifically the provisions addressing a young offender's associates, community participation, and disabilities, was sufficient to require the Court of Criminal Appeal to remit the matter for resentencing, even where other aspects of the pre-sentence material were adequate.
  • A resentencing court may reduce a head sentence and non-parole period where a compliant pre-sentence report and updated information about rehabilitation and conduct in custody support a more favourable assessment of subjective factors.
  • Where an offence was committed as part of planned group violence motivated by revenge, courts will treat objective seriousness as a weighty factor even when the offender was a youth at the time, limiting the discount available for personal mitigating circumstances.
  • The Children (Criminal Proceedings) Act 1987 requires sentencing courts to give considerable weight to a young offender's age at the time of the offence, and that obligation applies on resentencing as much as at the original hearing.
  • Sentences for ancillary offences that have already expired by the time of resentencing do not require alteration, and the resentencing court may leave those terms undisturbed.

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW), s 25 and Regulation 6(d), (e) and (f)
- Crimes Act 1900 (NSW), s 24 (manslaughter, maximum 25 years)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 24

Cases:
- GDP (1991) 53 A Crim R 112
- Wong v The Queen (2001) 207 CLR 584