Achurch v The Queen (No 2) - [2013] NSWCCA 117

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Achurch v R (No 2) [2013] NSWCCA 117
Hearing dates: 24/10/2012, 04/12/2012
Decision date: 22 May 2013
Before: Bathurst CJ at [1]
McClellan JA at [104]
Johnson J at [111]
Garling J at [1]
Bellew J at [164]
Decision:
1 The application made by the applicant under s 43 of the Crimes (Sentencing Procedure) Act 1999 on 22 March 2012 be dismissed.
2 The Notice of Motion filed by the applicant on 28 March 2012 be dismissed.

Catchwords:
CRIMINAL LAW - application to reopen Crown appeal to Court of Criminal Appeal against sentence - applicant convicted and sentenced for three offences - supply MDMA - supplying a commercial quantity of MDMA - supplying a large commercial quantity of methylamphetamine
SENTENCING - Crown appeal upheld prior to High Court of Australia decision in Muldrock v The Queen [2011] HCA 39 - whether s 43 of Crimes (Sentencing Procedure) Act 1999 is available to correct error of law in application of the sentencing principles in R v Way [2004] NSWCCA 131 - whether, applying the correct principles, the sentences for the offences were contrary to law
Legislation Cited: Crimes (Appeal and Review) Act 2001
Crimes (Sentencing Procedure) Act 1999
Crimes Amendment (Review of Convictions and Sentences) Act 1996
Criminal Appeal Act 1912
Criminal Procedure Act 1986
Drug Misuse and Trafficking Act 1985
Justices Act 1902
Motor Traffic Act 1909
Periodic Detention of Prisoners Act 1981
Probation and Parole Act 1983
Road Transport (General) Act 2005
Cases Cited:
Alcan (NT) Alumina Pty Limited v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27
Application of El Hani [2007] NSWSC 330
Application of Pearson [1999] NSWSC 143; (1999) 46 NSWLR 148
Baxter v R [2007] NSWCCA 237; (2007) 173 A Crim R 284
Butler v R [2012] NSWCCA 23
CIC Insurance Limited v Bankstown Football Club Limited [1997] HCA 2; (1997) 187 CLR 384
Director of Public Prosecutions (Vic) v Edwards [2012] VSCA 293
Douar v R [2005] NSWCCA 455; (2005) 159 A Crim R 154
Erceg v District Court (NSW) [2003] NSWCA 379; (2003) 143 A Crim R 455
Fernando v Commissioner of Police (1995) 36 NSWLR 567
Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
Ho v Director of Public Prosecutions (1995) 37 NSWLR 393
House v The King [1936] HCA 40; (1936) 55 CLR 499
Khoury v R [2011] NSWCCA 118; (2011) 209 A Crim R 509
Larkin v Parole Board (1987) 10 NSWLR 57
Marinellis v R [2006] NSWCCA 307
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Meakin v Director of Public Prosecutions [2011] NSWCA 373; (2011) 216 A Crim R 128

Melville v The Queen [1999] NTCCA 55; (1999) 9 NTLR 29
Melville v The Queen [1999] NTSC 56; (1999) 105 A Crim R 421
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
Network Ten Pty Limited v TCN Channel Nine Pty Limited [2004] HCA 14; (2004) 218 CLR 273
Ng v R [2011] NSWCCA 227; (2011) 214 A Crim R 191
O'Neil-Shaw v R [2010] NSWCCA 42
R v Achurch [2011] NSWCCA 186; (2011) 216 A Crim R 152
R v Denning (Court of Criminal Appeal, 15 May 1992, unreported)
R v Finnie (No 2) [2004] NSWCCA 150
R v Higgins [2002] NSWCCA 407; (2002) 133 A Crim R 385
R v JW [2010] NSWCCA 49; (2010) 77 NSWLR 7
R v Kinsella (Court of Criminal Appeal, 4 November 1983, unreported)
R v Knight [2007] NSWCCA 283; (2007) 176 A Crim R 338
R v Koloamatangi [2011] NSWCCA 288
R v Maclay (1990) 19 NSWLR 112
R v Mai (1992) 26 NSWLR 371
R v NZ [2005] NSWCCA 278; (2005) 63 NSWLR 628
R v Petrou (Court of Criminal Appeal, 13 February 1990, unreported)
R v Sellars [2010] NSWCCA 133
R v Skaf [2005] NSWCCA 297
R v Smith [2004] NSWCCA 69
R v Tangen (Court of Criminal Appeal, 21 June 1996, unreported)
R v Tolmie (1994) 72 A Crim R 416
R v Visconti (1982) 2 NSWLR 104
R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
R v Wickham [2004] NSWCCA 193
Re Bolton; Ex parte Beane [1987] HCA 12; (1987) 162 CLR 514
Riley v Parole Board of New South Wales (1985) 3 NSWLR 606
Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252
Siganto v R [1998] HCA 74; (1998) 194 CLR 656
Staats v The Queen [1998] NTCCA 13; (1998) 101 A Crim R 461
Urriola v R [2012] NSWCCA 95
Varley v Attorney General (NSW) (1987) 8 NSWLR 30
Williams v R [2012] NSWCCA 172
Wise v R [2006] NSWCCA 264
Category: Principal judgment
Parties: Brian Achurch (Applicant)
Regina (Respondent)
Representation: Counsel:
Mr TA Game SC; Mr D Barrow (Applicant)
Ms S Dowling (Respondent)
Solicitors:
Catherine Hunter (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2007/8068

Judgment

BATHURST CJ and GARLING J: Mr Achurch (the "applicant") was convicted following a trial on one count of supplying a prohibited drug (MDMA) contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 ("DMT Act") ("Count 1"). He was sentenced on that count to a fixed term of imprisonment of two years and three months commencing on 16 August 2006 and concluding on 15 November 2008. The offence carried a maximum penalty of 15 years' imprisonment with no standard non-parole period.

The applicant was also convicted on one count of supplying a commercial quantity of a prohibited drug (MDMA) contrary to s 25(2) of the DMT Act ("Count 2"). He was sentenced on that count to a term of imprisonment comprising a non-parole period of four years commencing on 16 August 2006 and expiring on 15 August 2010 with no balance of term. The offence carried a maximum penalty of 20 years' imprisonment with a standard non-parole period of 10 years.

The applicant was also convicted on one count of supplying a large commercial quantity of a prohibited drug (methylamphetamine) contrary to s 25(2) of the DMT Act ("Count 4"). He was sentenced to a non-parole period of five years commencing on 16 August 2007 and expiring on 15 August 2012 with a balance of term of eight years expiring on 15 August 2020. The offence carried a maximum penalty of life imprisonment and a standard non-parole period of 15 years.

The Crown appealed against the sentences under s 5D of the Criminal Appeal Act 1912. The grounds of appeal were as follows:

"Ground 1 - his Honour erred in failing to determine the objective criminality of Count 1;

Ground 2 - his Honour erred in failing to determine adequately where Count 2 lay in the range of objective seriousness for offences of that type;

Ground 3 - his Honour erred in failing to determine adequately where Count 4 lay in the range of objective seriousness for offences of that type;

Ground 4 - his Honour failed to have adequate regard to the standard non-parole period for Count 2;

Ground 5 - his Honour failed to have adequate regard to the standard non-parole period for Count 4;

Ground 6 - his Honour gave excessive weight to the Respondent's medical condition;

Ground 7 - the sentences are individually, and as aggregated, manifestly inadequate."

The Court of Criminal Appeal held that Ground 1 disclosed an error of process which could be considered in the context of the determination of the seventh ground: R v Achurch [2011] NSWCCA 186; (2011) 216 A Crim R 152 at [61]. The Court held that Grounds 2, 3, 4, 5, 6 and 7 were made out: Achurch at [103], [141], [161].

In the result the Court of Criminal Appeal made the following orders:

"1. Crown appeal allowed.

2. Sentences imposed on the Respondent in the District Court on 6 August 2010 quashed.

3. In their place, the Respondent is sentenced as follows:

(i) on the first count, sentenced to a fixed term of imprisonment of two years and three months commencing on 16 August 2006 and expiring on 15 November 2008,

(ii) on the second count, sentenced to a non-parole period of six years commencing on 16 August 2007 and expiring on 15 August 2013 with a balance of term of two years commencing on 16 August 2013 and expiring on 15 August 2015,

(iii) on the fourth count, sentenced to imprisonment by way of a non-parole period of 11 years commencing on 16 August 2008 and expiring on 15 August 2019, with a balance of term of five years commencing on 16 August 2019 and expiring on 15 August 2024.

4. The Respondent will be eligible for release on parole on 16 August 2019."

Following this judgment the High Court delivered judgment in Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120. It will be necessary to say something more about the judgment, but for present purposes it overruled the decision of this Court in R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168, so far as it determined the approach to sentencing in respect of sentences which carried a standard non-parole period: Muldrock at [25].

On 22 March 2012, the applicant made an application under s 43 of the Crimes (Sentencing Procedure) Act 1999 ("Sentencing Procedure Act"). The orders sought as set out in the Notice of Motion filed on 28 March 2012 were to the following effect:

"(1) The application to re-open the proceedings subject to the Crown appeal is granted.

(2) The sentences imposed upon the applicant by the Court of Criminal Appeal on 16 August 2011 are quashed.

(3) The Crown appeal be reheard or, subject to the orders of the Court, be re-listed for further hearing on a date to be fixed by the Registrar."

Section 43 of the Sentencing Procedure Act provides as follows:

"43(1) This section applies to criminal proceedings (including proceedings on appeal) in which a court has:

(a) imposed a penalty that is contrary to law, or

(b) failed to impose a penalty that is required to be imposed by law,

and so applies whether or not a person has been convicted of an offence in those proceedings.

(2) The court may reopen the proceedings (either on its own initiative or on the application of a party to the proceedings) and, after giving the parties an opportunity to be heard:

(a) may impose a penalty that is in accordance with the law, and

(b) if necessary, may amend any relevant conviction or order.

(3) For the purposes of this section, the court:

(a) may call on the person to whom the proceedings relate to appear before it and, if the person does not appear, may issue a warrant for the person's arrest, or

(b) if of the opinion that the person will not appear if called on to do so, may, without calling on the person to appear before it, issue a warrant for the person's arrest.

(4) Subject to subsection (5), nothing in this section affects any right of appeal.

(5) For the purposes of an appeal under any Act against a penalty imposed in the exercise of a power conferred by this section, the time within which such an appeal must be made commences on the date on which the penalty is so imposed.

(6) In this section:

impose a penalty includes:

(a) impose a sentence of imprisonment or a fine, or

(b) make an intensive correction order, home detention order or community service order, or

(c) make an order that provides for an offender to enter into a good behaviour bond, or

(c1) make a non-association order or place restriction order, or

(d) make an order under section 10, 11 or 12, or

(e) make an order or direction with respect to restitution, compensation, costs, forfeiture, destruction, disqualification or loss or suspension of a licence or privilege."

The applicant contends that as a result of the application of the principles set out in Muldrock, the sentence imposed upon him by the Court of Criminal Appeal was contrary to law and the Court should reopen the proceedings under s 43(2) and impose a penalty in accordance with law.

These proceedings are the first of a number of potential proceedings challenging sentences which were imposed in reliance on the principles laid down in Way. The Court has been constituted as a five person bench to consider whether it is appropriate to use the review mechanism in s 43 to reconsider such sentences.

The judgment of the Court of Criminal Appeal

The principal judgment in the Court of Criminal Appeal was delivered by Johnson J. Garling J, whilst agreeing with Johnson J, made some additional observations. Macfarlan JA agreed with Johnson J and with the additional observations of Garling J.

In relation to Count 1 which did not carry a standard non-parole period, Johnson J after referring to Khoury v R [2011] NSWCCA 118; (2011) 209 A Crim R 509, held that the principles of sentencing required at least some assessment of the objective gravity of the offence which was not done by the sentencing judge: Achurch at [59]. Johnson J described this as an error of process which could be dealt with under Ground 7.

Johnson J upheld Grounds 2, 3, 4 and 5 and held that in this respect the impact of the errors made by the sentencing judge was significant. In the course of considering those grounds, he made the following remarks:

"[76] As the Respondent had been convicted after trial, the standard non-parole periods with respect to the second and fourth counts had direct application by force of statute, and not merely as a guidepost on sentence following a plea of guilty: R v Way [2004] NSWCCA 131; 60 NSWLR 168 at 184 [68].

[77] When sentencing for offences for which Parliament has provided a standard non-parole period, it is necessary for Judges to specify where the offences lie on the range of objective seriousness for those crimes: R v Sellars [2010] NSWCCA 133 at [12]; R v McEvoy at [87].

[78] The sentencing Judge imposed non-parole periods for the second and fourth counts which were very significantly below the standard non-parole period for each offence. The further downwards the sentencing Judge moves from the standard non-parole, the greater the need for close examination of the findings, in particular concerning the objective seriousness of the offence: R v Knight [2007] NSWCCA 283; 176 A Crim R 338 at 341 [4]. There is, of course, a statutory obligation to give reasons for increasing or reducing the standard non-parole period: s.54B(4) Crimes (Sentencing Procedure) Act 1999.

[79] With respect to the second count, a standard non-parole period of 10 years was prescribed. The sentencing Judge initially imposed a fixed term of imprisonment for four years. After the inability to make such an order had been raised by the Crown, his Honour stated that a non-parole period of four years would be fixed.

[80] In reality, his Honour set a fixed term of imprisonment, an approach which was contrary to statute: s.45(1) Crimes (Sentencing Procedure) Act 1999;Hristovski v R [2010] NSWCCA 129 at [7].

[81] Accordingly, error has been demonstrated concerning the sentence imposed on the second count. Further, I am satisfied that error has been demonstrated with respect to the reasons given by the sentencing Judge concerning the role of the standard non-parole period on sentence. His Honour explained why such a non-parole period (effectively a fixed term) was imposed because 'this offence is significantly less substantial in terms of culpability than a mid range offence for such an offence'.

[82] The sentencing Judge had made no specific findings concerning the offence contained in the second count. As a result, this conclusion was opaque. Although Mr Brady made submissions by reference to the facts of the second count in support of a contention that this finding was open to the sentencing Judge, these were not findings made by his Honour and, in my view, do not leave reasonably open the conclusion expressed by his Honour to explain the sentence passed on this count. This error was compounded by the finding of 'special circumstances' recorded on the back of the indictment, said to be because the criminality of the offence was 'well below mid range of seriousness'. Such an approach involved a clear and impermissible double counting of this factor. More to the point, his Honour did not fix any balance of term. The sentence was, in reality, a fixed term.

[83] I am satisfied that error of process, and error in substance, has been demonstrated concerning the sentence passed on the second count.

[84] With respect to the fourth count, counsel for the Respondent conceded that one of the two factors referred to by the sentencing Judge did not bear upon the objective seriousness of the offence so that error was demonstrated in this respect. There was a live issue in the District Court as to whether the fourth count lay above the mid-range (the Crown submission) or below the mid-range (the defence submission). His Honour did not refer to this controversy or resolve it. An analysis of these submissions, in my view, could not place this offence below the mid-range."

Johnson J upheld Ground 6, holding that it was not open to the sentencing judge to find that this was an exceptional case which "permitted, in reality, the Respondent's medical condition to become the dominant and controlling factor on sentence at the expense of the objective seriousness of his crimes": Achurch at [140].

Johnson J upheld Ground 7, holding that the sentences in respect of Counts 2 and 4 were manifestly inadequate. However, he was not persuaded that this was the case in respect of the sentence imposed for Count 1. In relation to Counts 2 and 4 he made the following comments:

"[155] I am persuaded that an effective fixed term of imprisonment for four years on the second count is manifestly inadequate in the circumstances of this case. Although that offence involved an offer to supply 1,000 MDMA pills without an actual supply being involved, it is important to bear in mind that agreement to supply or offers to supply prohibited drugs each constitute transactional activities that play an important and central role in the chain of drug trafficking: Vu v R [2006] NSWCCA 188 at [88]. The sentencing Judge found that the Respondent was a principal in relation to the second count and that he was motivated by profit. The Respondent was convicted after trial and the standard non-parole period had direct application. In my view, it was appropriate to place this offence at the middle of the range of objective seriousness. The Respondent was entitled to a measure of mitigation because of his medical condition. Beyond that, there was really nothing operating in the Respondent's favour on the subjective side of the case.

...

[157] The fourth count involved a very serious offence where more than two-and-a-half times the large commercial quantity of methylamphetamine was to be supplied. I am well satisfied that a non-parole period of five years is manifestly inadequate for this offence."

Johnson J then proceeded to resentence the applicant in the manner in which we have indicated. In doing so he made the following remarks:

"[165] In my view, having regard to the objective seriousness of the second offence and after taking into account the Respondent's subjective circumstances, a non-parole period of six years ought be imposed for this offence. As the Respondent's medical condition has been taken into account in the determination of sentence, it is not appropriate to double count that factor in his favour by way of a finding of 'special circumstances' under s.44(2) Crimes (Sentencing Procedure) Act 1999: R v Way at 201 [185]. Accordingly, for this offence, the appropriate sentence is one of a non-parole period of six years with a balance of term of two years.

[166] In my view, the fourth count may be properly characterised as lying in the middle of the range of objective seriousness. The Respondent is entitled to have his subjective factors, principally his medical condition, taken into account to mitigate penalty. In my view, a non-parole period of 12 years is appropriate for this offence. Once again, the Respondent is not entitled to have his medical condition double counted in his favour by way of a finding of 'special circumstances'. For this offence, I would impose a non-parole period of 12 years with a balance of term of four years."

Garling J, whilst agreeing with Johnson J, made the following additional remarks:

"[179] The difference in the sentences imposed by the trial judge and that thought appropriate by this Court, focuses attention on the existence of, and role to be played by, standard non-parole periods.

[180] A standard non-parole period is to be considered together with the maximum penalty imposed by the legislature for an offence: R v Way [2004] NSWCCA 131; 60 NSWLR 168 at 182 [50]. The statutory maximum, here life imprisonment, reflects the seriousness of the offence in the eyes of the public and the policy of the legislature: Way at [53].

[181] The standard non-parole period, here 15 years imprisonment, is the legislature's expression of its intention as to the minimum period of actual imprisonment: Way at [53].

[182] The consequences of the prescription of a standard non-parole period is, or may well be, to change, by increasing, an established sentencing pattern: Way at [54], R v AJP [2004] NSWCCA 434; 150 A Crim R 575.

[183] Whilst the existence of a standard non-parole period is not again a mandatory sentence, nevertheless where the relevant offence, as was here the case, falls within the mid-range of objective seriousness, and the conviction follows a trial, then proper attention must be paid by a sentencing judge to the legislation, and to the two statutory benchmarks and reference points, namely the maximum sentence and the standard non-parole period.

[184] In this case, insufficient weight was given by the learned sentencing judge to these matters with the result that his sentence was to a significant degree manifestly inadequate."

The issues in the application

The issues raised by the application may be summarised as follows:

1 What is encompassed by the phrase "imposed a penalty that is contrary to law" in s 43(1) of the Sentencing Procedure Act?

2 Was the penalty imposed in the present case contrary to law?

3 If the answer to the second question is in the affirmative and the Court exercises its discretion to impose a penalty in accordance with law, is the penalty imposed by reference to the circumstances as they existed at the time the primary judge imposed the original sentence, or is it imposed by reference to the circumstances which exist at the time the discretion under s 43(2) is exercised?

4 If the answer to the second question is in the affirmative, what sentence should be imposed?

Legislative background

We have set out s 43 of the Sentencing Procedure Act above. The power to reopen proceedings when a penalty imposed was contrary to law has its origins in this State in s 100HA of the Justices Act 1902, which commenced on 1 January 1987. In the course of the Second Reading Speech introducing the section, the Attorney General made the following comments:

"The purpose of this bill is to amend the Justices Act to give magistrates the power to reopen the hearing of a criminal matter following the imposition of a penalty which is contrary to law. A magistrate in this State does have limited power to reopen a hearing, but this is only where a conviction or penalty has been recorded in the absence of the person. The bill does not, therefore, introduce a completely new power, but extends the jurisdiction to those cases where a sentencing error has been made. The provisions of the bill are similar to those currently existing in Tasmania, Western Australia and Queensland. The proposed section 100HA will allow an application to be made to a magistrate for the reopening of a hearing by either party where it is contended that the sentence imposed was contrary to law. The magistrate will also be able to reopen the matter without any application having been made. This does not mean that these provisions can be used in order to review a sentence or to allow either party to have another bite of the cherry. It will only allow the magistrate to correct a sentence which is patently in error.

...

...There may be, from time to time, other cases where the need to correct technical errors will occur.

As I have already said, the power can in no way be used to review a sentence where the defendant is of the opinion that it is too heavy or where the prosecution feels it is too light. The power can be used only where there has been a mistake.

...

...The bill will allow for the quick, efficient remedy of technical errors without imposing further large costs upon the parties involved."

The power contained in s 100HA of the Justices Act was extended to all Courts by the Criminal Procedure (Amendment) Act 1988. This Act replaced s 100HA by inserting s 19 into the Criminal Procedure Act 1986, which commenced on 26 February 1989. That section and the sections which replaced it have been in substantially the same form as the present s 43 of the Sentencing Procedure Act (although the current s 43(3) commenced with the Sentencing Procedure Act on 3 April 2000 and there have been a number of amendments to s 43(6) none of which are relevant for present purposes). In the Second Reading Speech introducing s 19 of the Criminal Procedure Act, the Attorney General made the following comments:

"... It is important to note that this provision can only be used where there has been a technical error in the sentence imposed. The new section cannot be used to review a penalty by way of appeal. An example of such an error is the imposition of a disqualification period below that which is required by the Motor Traffic Act 1901. This is a quite different mechanism to that of appeal.

...

The new section provides that on its own motion or on the application of either party, the court can reopen the proceedings. The parties are then given an opportunity to be heard. The section also provides that the time within which any appeal is required to be made under any Act shall commence from the date upon which the new penalty is imposed. This is important legislation. The need for it has been highlighted by the introduction of the Probation and Parole Act 1983. The complexity of this and other legislation that judicial officers have to grapple with in the courts on a daily basis has invariably led to technical errors being made. It is vital that judicial officers have a simple procedure available to them to correct such errors. The Government has identified a gap in law in this area and has moved quickly to close it. The legislation will be a useful tool of the Justices Act and throughout the judicial system."

It would appear in this material that it was not the legislature's intention for the section to have a broad operation. It is necessary to interpret the words of the statute in context and to not substitute the words of the relevant Minister's Second Reading Speech: Re Bolton; Ex parte Beane [1987] HCA 12; (1987) 162 CLR 514 at 518; Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 at [31]-[32]. However, the words of the statute are capable of being read narrowly. The expression "contrary to law" would on one view refer to a sentence which could not be lawfully imposed as distinct from one arrived at by an erroneous process of reasoning. This would include sentences falling outside a statutory maximum or minimum provided for by legislation or a miscalculation of start dates or parole periods. Such a construction derives some support from context; in particular, the fact that the power under the section is conferred on the same court which imposed the penalty and, most importantly, on the existence of a right to appeal against sentence contained in s 5(1)(c) and s 5D of the Criminal Appeal Act.

However, courts have consistently given what is now s 43 of the Sentencing Procedure Act a broader interpretation. Neither party has submitted that any of the cases which gave a broad interpretation were incorrectly decided.

Judicial consideration of s 43 and its interstate equivalents

(a) New South Wales

In R v Petrou (Court of Criminal Appeal, 13 February 1990, unreported), the sentencing judge fixed a non-parole period he was not empowered to fix in conjunction with a head sentence he had imposed. On being made aware of this error, the sentencing judge exercised the power under the then predecessor to s 43, s 19 of the Criminal Procedure Act, to impose a new head sentence consistent with the non-parole period he thought appropriate. On appeal, each of Finlay J and Hunt J (as his Honour then was) said the section should be construed liberally. Hunt J stated the purpose of the section in the following terms:

"Section 19 of the Criminal Procedure Act 1986 was, it seems to me, inserted by the legislature primarily in order to permit the judge who made the original error to correct it, without the affected party having either to appeal or to rely upon some administrative action being taken to ensure that the proper penalty is imposed. The section does, of course, permit errors to be corrected on appeal as well, but the object to which I have referred appears to me to have been paramount. Against that background, the definition of 'penalty' which the section itself provides should, in my view, be read as widely as possible to include any necessary part of the sentence imposed."

The third judge, Allen J, agreed with each of the other judges.

Although each of the judges in Petrou said that the section should be construed liberally, the use made of the section in that case was to do no more than correct a technical error which had led to the head sentence being one which could not be lawfully imposed.

In R v Denning (Court of Criminal Appeal, 15 May 1992, unreported) the sentencing judge imposed a penalty on the appellant, who was then serving a life sentence and certain other sentences, which was contrary to law by reason of misinformation given to the sentencing judge about the determinative sentences then being served. It was common ground that the sentence was a penalty contrary to law within the meaning of s 24, the then predecessor to s 43 of the Sentencing Procedure Act. The sentencing judge exercised his power to resentence but in doing so declined to take into account events which had occurred between the time the original sentence was imposed and the time of resentencing. Each member of the Court agreed that the sentencing judge had erred in failing to take subsequent events into account, although they differed as to the outcome. In relation to the question of whether subsequent matters should be taken into account, Carruthers J made the following remarks:

"It was submitted to Judge Shillington on behalf of the applicant that in determining whether he should exercise his powers under s.24, he should take into consideration the events which had occurred after 21 July 1989 and receive in evidence the material (such as the report by Dr Wendy Roberts) which was before Wood J. directed towards the applicant's rehabilitation. His Honour rejected these submissions expressing the view that if the correct information had been placed before him on 21 July 1989 he would have directed that the sentence imposed by him commence at the expiration of the accumulated twenty-one and a half years. His Honour took the view that his function under s.24 was confined to the correction of the error which occurred.

In my respectful view, his Honour made an error of law in this regard. Section 24 posed two questions for the Court. Firstly, there was the question whether the earlier proceedings should be reopened. In the event that such question was answered in the affirmative, there was the question whether the Court should amend the earlier order. Particularly bearing in mind that two years and four months had expired since the earlier order was made, it was, in my view, incumbent upon his Honour to receive evidence of what had relevantly transpired in the intervening period. The proceedings before Wood J. were unquestionably relevant, as was the cogent evidence of rehabilitation."

Smart J dealt with the matter as follows:

"The judge in re-sentencing applies the law which existed at the time the original sentence was imposed he takes into account the circumstances of the offence or offences and the position at the time of the imposition of the original penalty. However, he must consider what has happened since that penalty was imposed and the circumstances which then exist. The court is not limited to the position as at the imposition of the original penalty. Different considerations govern appeals. Inter alia, time limits apply to appeals and applications for leave to appeal by prisoners and substantial delay is often fatal to a Crown appeal. Further, under s. 24, the original sentence was not in accordance with the law and the reconsideration represents the first occasion on which a penalty in accordance with the law is imposed.

When the court is considering the imposition of a penalty that is in accordance with the law, the court does not simply look at the penalty originally imposed, decide whether it was in accordance with the law and, if not, what the correct penalty would have been at that date. The court looks at all the circumstances including what has happened since the imposition of the original penalty."

Grove J in agreeing with the other members of the Court emphasised that it does not strain the provision to give the fullest relief which could be comprehended within the concept of correction.

R v Tolmie (1994) 72 A Crim R 416 was a successful Crown appeal. The error that was the subject of the successful appeal was pointed out to the sentencing judge who was requested to review the sentence under the then equivalent of s 43. Hunt CJ at CL said the section did not permit a rehearing on the merits: Tolmie at 420. Smart J adhered to the views he expressed in Denning, whilst Badgery-Parker J did not express a view on the question.

In Ho v Director of Public Prosecutions (1995) 37 NSWLR 393, Kirby P, with whom Gleeson CJ and Sheller JA agreed, dealt extensively with the construction of the then predecessor to s 43, s 24 of the Criminal Procedure Act.

His Honour (at 402-403) made six observations concerning the operation of s 24, five of which are relevant to the present case:

"(1) The section appears in remedial legislation designed to permit, as Pt 7 of the Act makes clear, 'Correction of sentencing errors'. Given the remedial purposes of the section, it should not be subjected to a narrow construction: see R v Petrou (Court of Criminal Appeal, 13 February 1990, unreported).

(2) That a broad interpretation of the section was intended by parliament is confirmed, not only by the general purpose of the section and the broad definition of terms provided in s 24(7) of the Act. It is also confirmed by the Second Reading Speech of the Attorney-General introducing the measure: see New South Wales Parliamentary Debates (Legislative Assembly), 21 September 1988 at 1673. He stated that its object was to provide 'a simple procedure to correct sentencing errors in criminal proceedings'. He went on to explain:

'The availability of this procedure will enable matters to be dealt with expeditiously. It will relieve appellate courts of unnecessary work and is a further step in the implementation of the Government's undertaking to reduce court delays. ... It is an important and practical step and savings to the Government and the administration of justice will be substantial.'

These considerations are not irrelevant given the limitations upon the facility of appeal in criminal matters such as the present, and the limitations upon (and technical requirements of) judicial review as well as the public and private costs that are involved in correcting mistakes of a simple character by such procedures. Reinforced by the minister's explanation of the legislation to parliaments this Court should afford the language of the section the broadest available construction so as to achieve its stated objects;

(3) There are limits relevantly derived from the requirement that the penalty must be 'contrary to law'. Such limitations have been revealed in earlier cases: see, eg, Boyd v Sandercock; Ex parte Sandercock [1990] 2 Qd R 26, where the Queensland Full Court analysed the equivalent provisions of s 147A of the Justices Act 1886 (Qld). In the end, the Court must adhere to the requirements of Parliament as expressed in the statutory language: Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 518. It must do so even if this results in a conflict with the stated intentions of the minister;

(4) It is to be noted that the phrase used in s 24(1)(a) is not 'imposed a penalty that is not provided by law'. A broader adjectival phrase is used to describe the 'penalty' which authorises the application of the section. It is enough that that penalty is 'contrary to law'. It is a part of the law of sentencing that where a person has, in respect of an event of which that person is convicted and stands for sentence, already served some time in custody, the sentencing judge should take such period into account. Ordinarily, the judge should give credit to the offender for time already served. To fail to consider this is an error of law in the exercise of the sentencing discretion. The resulting penalty is then one 'contrary to law';

(5) Differing views have been expressed by judges concerning the breadth of the phrase 'contrary to law' in s 24. Certainly, the section is not intended to permit a general rehearing of sentencing proceedings on the merits: see, eg, Shortland v Heath [1977] WAR 61 at 62f; R v Williams; Ex parte Biggs [1989] 1 Qd R 594 at 597. Differences were also expressed by the members of the Court of Criminal Appeal in R v Tolmie (1994) 72 A Crim R 416 at 420, 421. However, whilst avoiding a re-hearing of the merits of the penalty, it is common ground that the purpose of the section is to permit the correction of mistakes where 'such correction would have saved the cost, delay and expense involved in having to institute an appeal' (see R v Tolmie (at 420)) or, I would add, in being obliged to seek judicial review. For the correction of arguable mistakes in sentencing, the section should be given the widest possible operation."

Two matters should be noted. First, Kirby P stated that the section should be given the widest possible operation. He considered that the words "contrary to law" had a broader operation than "not provided by law", and stated that an error of law in the exercise of sentencing discretion means the resulting penalty is contrary to law. Second, notwithstanding the width of the provision, he did not consider the section extended to permit a rehearing on the merits. That would tend to support the limitation placed on the operation of the section by Hunt CJ at CL in Tolmie. The same limitation was held to apply to the section by this Court in R v Smith [2004] NSWCCA 69 at [40] (per Studdert J, McColl JA and Howie J agreeing).

In R v Finnie (No 2) [2004] NSWCCA 150 Howie J, with whom Spigelman CJ and Dunford J agreed, extensively reviewed the authorities considering the section and agreed that it should be given a liberal interpretation. His Honour reached the following conclusions:

"[31] In my view there has not been disclosed any error of law made by this Court in the sentencing of the respondent which would attract the operation of s 43. It is not a case such as Ho v DPP where the Court failed to take into account a relevant sentencing fact or principle. Nor is it a case where this Court incorrectly applied a relevant sentencing principle or applied a principle later found to have been erroneous. This Court had a discretionary decision to make on the material before it as to when the sentences imposed by it were to commence. Provided that discretion was exercised in a principled way, and there has been no suggestion that it was not, no error of law could arise.

[32] There is no doubt, in my mind, that the section can be engaged as a result of an erroneous finding of fact or an omission to find, or take into account, a relevant fact. As Angel J points out, the section does not use the expression 'error of law'. Further, there is no requirement that any error be identified except in the outcome of the sentencing proceedings. It does not matter whether the sentencing court made a mistake of law or of fact in arriving at a penalty that was contrary to law or in failing to impose a penalty in accordance with the law. It is not difficult to imagine a situation where a sentencer misunderstood or overlooked a fact in evidence before the court and as a result imposed a sentence that fell within the scope of the provision. A not uncommon example would be where the failure to take into account the existence of a particular traffic conviction resulted in the court failing to impose the disqualification period mandated by statute where such a prior conviction exists. Where a relevant error is established, the section is engaged and, at least in so far as the jurisdiction of the court to reopen the sentencing proceedings is concerned, it is unnecessary for the court to determine how the erroneous sentence came about."

In R v Tangen (Court of Criminal Appeal, 21 June 1996, unreported) Badgery-Parker J, with whom Gleeson CJ and Hidden J agreed, gave the provision a similarly wide interpretation. His Honour also considered that matters which had occurred after the original sentence was passed should be taken into account:

"If it were necessary to choose between the views expressed by the court in Denning, and the possibly more restrictive views of s24 expressed by the President and by Hunt, CJ at CL in Ho and in Tolmie respectively, I would prefer the former which appears to me more readily to accommodate the full purpose of s24. In any event, as counsel for the appellant pointed out, the remarks in both Ho and Tolmie were clearly obiter. This court should, in my view, follow Denning and should, in the words of Grove J. construe the section 'so as to include scope for the fullest relief which fairly can be comprehended within the concept of correction'. That means, in a case such as Denning, where much time has passed between the original sentencing and the re-opening of the sentencing proceedings, that the court must be not only at liberty to, but bound to, have regard to what has transpired in the interim; and, in a case where the delay problem does not intrude, must at least be authorised by the section to amend the sentence, and if necessary entirely to re-sentence, in order to produce that result which the sentencing judge originally intended to be achieved by the sentence which he originally but invalidly imposed."

It should be noted that in that case there was a concession during the course of argument that the Court could take into account matters which occurred after the original sentence.

In Erceg v District Court (NSW) [2003] NSWCA 379; (2003) 143 A Crim R 455, McColl JA, with whom Palmer J agreed, stated that the section should be given the widest possible construction. Her Honour stated that in the resentencing process, matters occurring subsequent to the original sentence should be taken into account following Tangen and Denning, in preference to the more restrictive views in Ho and Tolmie: Erceg at [104]-[107]. The third judge, Sheller JA, did not consider the question.

The section was most recently considered by the Court of Appeal in this State in Meakin v Director of Public Prosecutions [2011] NSWCA 373; (2011) 216 A Crim R 128. In Meakin, it was submitted that a District Court judge erred in refusing to reopen sentencing proceedings under s 43 on the basis that an automatic disqualification period imposed under the Road Transport (General) Act 2005 had not been taken into account. The Court held that there was no error in refusing to reopen in circumstances where the matter had not been raised in the original sentencing proceedings. However, Beazley JA (as her Honour then was) made the following comments concerning s 43:

"[27] Section 43 is a remedial legislative provision and is to be given a broad construction so as to achieve its legislative purpose, namely, the provision of a simple procedure to correct sentencing error: see R v Tolmie [2004] NSWCCA 396; Ho v DPP (1995) 37 NSWLR 393, per Kirby P at 402; Erceg v The District Court of New South Wales & Anor [2003] NSWCA 379; 143 A Crim R 455. See also the Second Reading Speech, where the Minister stated that the object of s 43 was to provide a 'simple procedure to correct sentencing errors' and as a means of 'correcting mistakes of a simple character' (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 21 September 1988 at 1673).

[28] Section s 43 is not concerned with the correction of all sentencing errors. Rather, the section is engaged where there is a sentencing error that falls within the terms of the statute, namely, where the court had imposed a sentence that was 'contrary to law' or where the court had failed to impose a penalty that was required to be imposed by law: see R v Finnie (No 2) [2004] NSWCCA 150. It is the former error that is in issue in this case, that is, whether the sentence relating to the licence disqualification period was imposed 'contrary to law'.

[29] Section 43 is not confined to error in respect of the existence or terms of a statutory provision. It is sufficient that the penalty imposed was contrary to principles of law as expounded in the case law: see Ho per Kirby P at 402-403. See also Staats v The Queen (1998) 123 NTR 16; Melville v The Queen (1999) 150 FLR 296. In Ho Kirby P pointed out at 403, in obiter comments in respect of the Criminal Procedure Act 1986, s 24 (the predecessor provision to s 43), that the phrase 'contrary to law' is wider than the phrase 'imposed a penalty that is not provided by law'. His Honour referred to the common law sentencing principle that where, prior to sentence, a person has spent time in custody in respect of an offence, the trial judge should take the period of pre-sentence custody into account. Ordinarily, credit should be given for the time served. A failure to consider this would be an error of law in the sentencing discretion and the resulting penalty would be 'contrary to law' within the meaning of s 43.

...

[92] A failure to be aware of such statutory provisions may result in a sentence that is manifestly inadequate or excessive. It is a different question as to whether that constitutes a sentencing error that is 'contrary to law' within s 43. In my opinion, that question can be answered fairly readily. As I have discussed, the effect of the authorities is that s 43 looks to the outcome of the proceedings. It is the sentence imposed which must be 'contrary to law'. That is, there must be an error in the sentence imposed with the consequence that some different sentence is required. Thus a sentence that is greater or less than that prescribed will be a sentence imposed that is 'contrary to law'. For example, if a sentence is imposed in respect of a high range PCA, when the offence was a mid or low-range PCA, there will be a sentence imposed that is 'contrary to law'."

On one view, her Honour in [92] was expressing a somewhat narrow view of the scope of s 43. However, her remarks in that paragraph must be read in conjunction with her earlier comments. Rather than expressing a narrow view, her Honour was focusing on the fact that the provision looks to the outcome of the proceedings and the fact that what needs to be considered is the lawfulness of the sentence as distinct from the process of reasoning on which the sentence was based.

A number of other cases have recognised that there are limitations on the width of the section. In R v Skaf [2005] NSWCCA 297, the sentencing judge erred in imposing the same sentence for an offence in which the applicant was a principal in the second degree as one which he imposed for an offence in which the applicant was a principal in the first degree. The Court declined to remit the matter to the sentencing judge to correct the error and had reservations as to whether s 43 could be used for that purpose: Skaf at [44].

In Wise v R [2006] NSWCCA 264, the original sentencing judge fixed the sentence without imposing a non-parole period as required by s 44(1) of the Sentencing Procedure Act for reasons that did not comply with s 45(1) of that Act. Subsequently after a breach for a recognizance, another judge purported to vary the sentence imposed by fixing a non-parole period. It was held that he had no power to do so. Rothman J, with whom Spigelman CJ and Howie J agreed, explained the position in the following terms:

"[14] Further, if the original sentence by Blackmore DCJ was imposed contrary to s.44(1) or s.45(2) of the Crimes (Sentencing Procedure) Act, the provisions of s.43 of that Act would be available to reopen the proceedings and re-sentence according to law: s.43(2)(a). However, Charteris DCJ did not have this power because, as previously stated, the original sentence of Blackmore DCJ purported to give a reason in accordance with the requirements of s.45(2) of the Act. While the reason given was inadequate and not one which would allow a judge not to fix a non-parole period, the sentence was not 'contrary to law' for the purpose of s.43. It was a sentence that suffered from error of law which required correction on appeal, but only on appeal."

This case seems to be the only authority which gives direct support to the narrow construction of the section to which we have referred in [22] above.

(b) Interstate cases

Each party in their submissions referred to a number of interstate cases dealing with equivalent provisions. A number of those decisions concerned the extent to which the equivalent sections could be used to correct errors of fact, an issue which does not arise in the present case.

In Staats v The Queen [1998] NTCCA 13; (1998) 101 A Crim R 461, Martin CJ (at 469) said that the equivalent section in the Northern Territory was limited to errors of law in relation to the imposition of the sentence and that it did not extend to the correction of reasons or the review of the exercise of a discretionary judgment. Angel J (at 471) stated that it at least extended to an error of law.

In Melville v The Queen [1999] NTCCA 55; (1999) 9 NTLR 29, the Court of Criminal Appeal in the Northern Territory, whilst holding it had no jurisdiction to correct an error made by the sentencing judge, considered the scope of the equivalent section. Kearney J, with whom Martin CJ and Priestley J agreed, reached the following conclusions:

"[27] In my opinion, the Queensland, New South Wales and Western Australian authorities - see pars [22] and [23] - and what was said in Staats (supra) in par [24] support the view that s 112(1) empowers the sentencing court to correct errors of law. I consider, bearing in mind Kirby P's observations in Ho v Director of Public Prosecutions (supra) in par [23], that those errors encompass errors of the type said to have arisen in this case. That is to say, s 112(1) enables the correction of an error of law in sentencing when, in the course of a binding decision in the appellate hierarchy in another case, it is stated that the sentence in the instant case was not imposed in accordance with the law which governs the proper exercise of the sentencing discretion. I consider that this beneficial interpretation of s 112(1)(a), a remedial provision, results in its operation being fairer and more convenient; this interpretation provides in the Territory a convenient means of correcting an error of this type. The operation of a statute is relevant to the meaning to be given to its terms; see generally Cooper Brookes (Wollongong) Pty Ltd v The Commissioner of Taxation (Cth) (1981) 147 CLR 297 at 320-321, per Mason and Wilson JJ."

Subsequently in Melville v The Queen [1999] NTSC 56; (1999) 105 A Crim R 421, Kearney J granted relief under the section. The circumstances were somewhat similar to the present case. The error of law which led to the application was that subsequent to the original decision of the Court of Criminal Appeal dismissing Mr Melville's appeal against sentence, the High Court in Siganto v R [1998] HCA 74; (1998) 194 CLR 656 overruled the basis upon which the appeal was dismissed. However, Kearney J at [13] took the view that he could not take into account changed circumstances since the date of the original sentence in resentencing Mr Melville.

The parties' submissions

The applicant submitted that although s 43 was often used to correct minor sentencing errors, its scope is far wider. The applicant relied in that context on the cases that we have referred to above in submitting that the section should be given the widest possible interpretation; in particular, Meakin, Finnie (No 2), Denning, Erceg, Ho and the Northern Territory cases. The applicant submitted that Erceg and Meakin correctly stated the scope of the section. In these circumstances, the applicant submitted that it was appropriate to correct sentences passed on an incorrect application of Div 1A of the Sentencing Procedure Act and, in particular, sentences affected by the error identified by the High Court in Muldrock.

The applicant submitted that the passages of the judgment of Johnson J and Garling J which we have set out above, demonstrated that the Court in hearing the appeal adopted the approach to standard non-parole periods identified as erroneous by the High Court in Muldrock. In particular, the applicant submitted that the Court erred in holding that the sentencing judge was in error by: (i) upholding Grounds 2 and 3 of the Notice of Appeal; (ii) giving determinative significance to the nominated standard non-parole periods; (iii) adopting an erroneous approach to the assessment of objective circumstances; and (iv) overstating the significance of the fact that the applicant had been convicted after a trial.

In supplementary submissions the applicant submitted that Grounds 2 to 5 of the appeal in light of Muldrock should have been dismissed. The applicant submitted that the sentencing judge, consistent with what was declared to be the correct approach in Muldrock, took into account the existence of the standard non-parole period as well as the maximum penalty for the offence.

In relation to Ground 6, the applicant said that what was required of the sentencing judge, consistent with the approach identified in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at 378, was to identify all factors relevant to the sentencing decision, discuss their significance and make a value judgment as to the appropriate penalty. The applicant submitted that the primary judge in fact undertook this task and pointed to factors considered by the primary judge. In particular, the applicant submitted that the primary judge:

"Noted the actual charges that the applicant had been convicted of committing...
Observed that as a consequence of his pleas of not guilty, the applicant was not entitled to any reduction for the utilitarian value of the pleas...
Noted the particular standard non-parole periods that applied to counts 2 and 4...
Observed that the maximum penalty for count 4 was life imprisonment...
Recited the offender's criminal history and observed there was nothing in his history akin to the gravity of count 4...
Noted that co-offenders had been dealt with but their circumstances were not comparable because the offender was a principal...
Concluded that no sentence other than full time imprisonment was appropriate...
Recited the facts...
Concluded the conduct was organised criminal activity, but that it was a 'bumbling enterprise'...
Accepted that damage and injury would have been caused had the drugs entered the community...
Characterised the offender's contact with the criminal law as 'a life of persistent minor criminality' except for one offence of armed robbery...
Noted the very substantial delay between the offender's arrest and sentence, a period of almost four years on remand...
Reviewed the offender's subjective circumstances...
Analysed the extent of his health problems...
Considered Dr Luxton to be well placed to proffer the opinion that:
The offender has advanced kidney disease with a high likelihood of progression to dialysis dependence.
His medical conditions put him at risk of severe illness and early mortality.
That whilst dialysis will be available as a prisoner the gaol environment may not provide optimal medical care.
It is reasonably likely that prolonged incarceration will significantly reduce his life expectancy, although the number of variables made it not possible to quantify this...
Observed that he had been referred to authorities dealing with imprisonment of persons with illnesses and indicated that he understood that in the case of very serious illness, such as to constitute a threat to life and a grave impairment of the quality of life. In such cases what was required was a sentence of imprisonment no longer than is necessary to serve the purposes of punishment...
Concluded that the illnesses suffered by the offender were 'sufficiently significant' to constitute an exceptional reason why, in sentencing for the principal offence, it was appropriate to set a non-parole period 'significantly lower than otherwise would be the case'...
Decided to impose concurrent sentences for counts 1 and 2.
Partially accumulated the sentence for count 4.
Backdated the sentences to 16 August 2006, the date the offender entered custody."

It was submitted that in that context the decision of the Court of Criminal Appeal on Ground 6 was arrived at because of the role attributed to the relevant standard non-parole periods.

In relation to Ground 7, the applicant submitted that the conclusion that the sentence was manifestly inadequate was arrived at because of the determinative significance of the standard non-parole period. The applicant accepted that the non-parole period imposed by the sentencing judge extended considerable leniency, but submitted that the reasons extracted in par [47] above warranted his conclusion. The applicant submitted that there was no double counting as a result of the finding of special circumstances based on the health of the applicant, as the head sentence remained very substantial.

The applicant properly accepted that in considering these matters the Crown was entitled to recast the grounds of appeal against the sentence imposed to take account of what was decided in Muldrock.

The Crown submitted that s 43 did not apply. First, it submitted that s 43 is directed to error in the sentencing process which has led to the imposition of a sentence that is measurably wrong with a consequence that some different sentence is required. The Crown submitted that s 43 was not applicable when the error did not have any operative effect on the length of the sentence, or when the error could, rather than must, lead to a different penalty. Second, it submitted that there was no operative error of the type identified in Muldrock.

The Crown submitted that it was not the legislative intention that s 43 would cut across the regime for criminal appeals. It submitted that if the expression "contrary to law" were taken to include any error of legal principle appearing in the exercise of sentencing discretion, it would encourage the regular re-agitation of sentencing proceedings before the Court. It submitted that in those circumstances, the appropriate construction of s 43 was that endorsed by Allsop P and Beazley JA in Meakin and discussed by Hunt CJ at CL in Petrou and Tolmie.

The Crown submitted that what was sought in the present case by the applicant was in effect a rehearing on the merits. It highlighted the difficulty that in the present case the appeal was allowed on multiple bases, only some of which related to the sentencing judge's approach to the standard non-parole periods. It pointed to the fact that the significance of the non-parole period may vary from case to case: R v Koloamatangi [2011] NSWCCA 288 at [21]. In that case Basten JA also noted that the Court in Muldrock supra did not suggest that a conventional assessment of the objective offending according to a scale of seriousness was to be eschewed: Koloamatangi at [19]. Further, the Crown submitted that courts have made it clear that, notwithstanding the engagement of the two-step process of reasoning contrary to Muldrock, the sentences imposed may be correct: Williams v R [2012] NSWCCA 172 at [2]; Butler v R [2012] NSWCCA 23 at [26].

Dealing with the present case the Crown submitted that in respect of Grounds 2, 3, 4 and 5 no proper assessment was made of the objective gravity of the offence. The Crown submitted that the Court of Criminal Appeal correctly held that the sentencing judge erroneously took into account subjective factors in assessing the objective gravity of Count 4 and gave excessive weight to the fact that the drugs were intercepted prior to distribution. The Crown submitted that the Court of Criminal Appeal correctly held that insufficient weight was given by the sentencing judge to the matters referred to by Johnson J in support of his finding of objective seriousness, namely, the principal role of the applicant in the drug operation, the large quantity of drugs, the profit motive and the fact that the supply was not an isolated incident. The Crown submitted that an instinctive synthesis approach to sentencing would yield the result arrived at by the Court of Criminal Appeal.

In supplementary submissions filed in anticipation of the hearing on 4 December 2012, the Crown submitted that when the objective seriousness of the offending is considered together with the applicant's subjective case and the statutory guideposts of the maximum penalty and the standard non-parole period, the Court would conclude that the sentence imposed in R v Achurch supra was appropriate and would impose the same penalty.

Alternatively, the Crown submitted that if the Court considered the correct course was to reconsider the District Court sentence, then a reformulated Crown appeal would lead to the same conclusion. It pointed to the factual findings made by Johnson J to which we have referred above, and submitted that in those circumstances a finding that Counts 2 and 4 were in the midrange of objective seriousness was justified. The Crown repeated its submission that assessment of the objective seriousness of the offence remains an essential element of the process of instinctive synthesis in sentencing. The Crown submitted that the sentencing judge erred in holding that the offence was significantly less substantial in terms of culpability than a midrange offence. It submitted that the sentence imposed failed to reflect the criminality involved in the offence and was manifestly inadequate in the sense that it was unreasonable or plainly unjust.

In her submissions at the hearing, counsel for the Crown did not challenge any of the decisions to which we have referred above and accepted that s 43 should be given a liberal construction. However, she submitted the focus has to be on the penalty imposed rather than the process of reasoning which led to its imposition.

Consideration

We have set out the issues raised by the application in [19] above. We shall deal with each of them to the extent necessary in turn.

Question 1: What is encompassed by the phrase "imposed a penalty that is contrary to law" in s 43(1) of the Sentencing Procedure Act?

The construction of s 43 must begin with a consideration of the text itself which is the surest guide to legislative intention. The question may require consideration of the context, which includes the general purpose and policy of the provision and the mischief it is seeking to remedy: Alcan (NT) Alumina Pty Limited v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [47].

The use of the words "contrary to law" in s 43(1)(a) and "required to be imposed by law" in s 43(1)(b) could be read as extending no further than to either the imposition of penalties which there was no power to lawfully impose, or failing to impose a penalty which was mandatory to impose in the circumstances. That limited construction derives some support from the fact that it is the court which imposes the sentence that has the power to reopen the proceedings. In addition, the provision in subs (4) states that subject to subs (5), s 43 has no effect on any right of appeal. It also deals with the mischief which the Second Reading Speech indicated was intended to be dealt with by the legislation.

However, the words in question are open to a wider interpretation and courts have consistently construed the section more liberally.

In circumstances where no challenge is made to those decisions it would be inappropriate to construe the provision in the narrow fashion to which we have referred. These cases make it clear that the section can apply in circumstances where the penalty, whilst within the range of penalties which as a matter of power could be imposed, is not one which would be imposed if correct sentencing principles were applied.

That does not mean that s 43 is a proxy for an appeal. On a sentence appeal, once error is established s 5D and s 6(3) of the Criminal Appeal Act provide that the court, if it is of the opinion that some other sentence whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor. By contrast, the jurisdiction conferred by s 43(1)(a) of the Sentencing Procedure Act only arises if the penalty imposed is contrary to law.

The difference, in our opinion, is this. In an appeal against sentence under s 5(1) or s 5D of the Criminal Appeal Act, the jurisdiction to impose a different sentence is enlivened upon error being demonstrated, although the court must be satisfied that a different sentence is warranted in law. By contrast s 43(1) of the Sentencing Procedure Act focuses on the outcome. For there to be jurisdiction, error must be identified and it must be shown that the error led to a penalty which was not otherwise open to the court to impose.

Such a conclusion, in our opinion, gives effect to the words of the section. It is also consistent, in our opinion, with the approach taken by Beazley JA in Meakin at [92], the decision in Wise, and the statements made by Kirby P in Ho and Hunt CJ at CL in Tolmie that the section does not entitle an applicant to a rehearing on the merits. The construction also does not appear to us to be inconsistent with any of the other decisions considering the section or its equivalents to which we have referred above (see [24]-[43]).

It must be accepted that such a construction involves consideration of the matters which arise under s 43(2) in determining whether or not the precondition to jurisdiction contained in s 43(1) is satisfied. However, that seems to be inevitable once it is accepted that the jurisdiction is wider than the narrow construction to which we have referred in [59] above.

In that context one other matter should be noted. Section 43 is a discretionary provision designed principally, in our opinion, to correct manifest error. Generally speaking the only circumstances in which it should be exercised is where the error in question is apparent from the sentence itself, not from an analysis of the legal reasoning which underpins the sentence. Thus it would be available to correct sentences which fell outside statutory minimum or maximum penalties or where it is an error of computation or the like. It should not be used as an alternate to an appeal. To do otherwise would effectively lead to a lack of finality in criminal proceedings and potentially bring the administration of justice into disrepute.

It follows that s 43 should not be used as a vehicle to review what might colloquially be described as Muldrock appeals with a possible exception of cases where it is alleged the Court of Criminal Appeal erroneously sentenced on the basis of Way. In the case of sentences imposed by other Courts the appropriate course, in our opinion, is for an application for leave to appeal to this Court to be made out of time. It would be up to the Court hearing the application for leave to establish whether it was appropriate for leave to be granted.

Notwithstanding, it is appropriate in the present case to consider whether the preconditions to the exercise of jurisdiction under s 43 of the Sentencing Procedure Act are made out. This is for two reasons. First, the court in question is the Court of Criminal Appeal which subject to special leave to the High Court being granted is the final court of appeal for criminal matters. Second, as we stated earlier, the case has been brought before the court to enable it to consider whether an application under s 43 is an appropriate method to deal with applications for resentencing by persons who claim they have been wrongly sentenced as a result of the application of the principles laid down by this Court in Way.

Question 2: Was the penalty imposed in the present case contrary to law?

The answer to this question depends on two subsidiary questions. First, was there error in the reasoning of the Court of Criminal Appeal in allowing the appeal? Second, if there was, did it lead to the imposition of a penalty that is contrary to law?

In our opinion, the reasoning of the Court of Criminal Appeal did demonstrate error. Paragraphs [76], [77] and [78] of the judgment of Johnson J which we have set out above, demonstrate that his Honour was applying the approach to sentencing for offences with standard non-parole periods set out in Way which was overruled in Muldrock. In particular, the High Court held that the standard non-parole period was no more than a legislative guidepost contrary to par [76] of his Honour's judgment. The focus on the standard non-parole period in pars [77] and [78] also seems to us to place it as a benchmark above and beyond its use as a legislative guidepost forming one of the factors to be taken into account as part of the approach to sentencing described by McHugh J in Markarian at 378. This was said to be the correct approach in Muldrock at [26]. Further, the approach by his Honour in pars [76]-[78] seems to adopt the two stage approach to sentencing suggested in R v Knight [2007] NSWCCA 283; (2007) 176 A Crim R 338 at [4] and R v Sellars [2010] NSWCCA 133 at [11], which was said to be inappropriate in Muldrock at [25]-[28].

Similarly, Garling J in his additional remarks expressly stated that the correct approach to sentencing was that set out in Way.

Further, it may be assumed in these circumstances that the Court in determining that the sentence was manifestly inadequate adopted the approach suggested in Way, Knight and Sellars in resentencing the applicant. This is apparent from the statement by Johnson J in par [76] that the standard non-parole period had direct application in relation to Counts 2 and 4. It is also apparent from what appears to be the two stage approach adopted in resentencing on Count 4 (par [166]).

It follows that the reasoning of the Court of Criminal Appeal was erroneous having regard to the subsequent decision in Muldrock. However, that still leaves open the question of whether the penalty was contrary to law. It would be contrary to law if the application of the correct principles led to the conclusion the Crown appeal should have been dismissed. If on the other hand after applying the correct principles it remains that the sentencing judge was in error in his approach to sentencing, then the relevant question is whether or not the Court of Criminal Appeal sentencing in accordance with the correct principles could have imposed the penalty which was in fact imposed on the applicant.

It is convenient to first consider the question of whether the penalties imposed were contrary to law. This question involves a consideration of all of the facts, matter and circumstances relevant to the imposition of the sentence by the Court of Criminal Appeal.

It was obvious from the facts that the applicant was engaged in the supply of illicit drugs, in effect, on demand. He employed others to assist him in this illegal enterprise. In particular, he stored drugs at premises which he once occupied, but which, by the time of the activities referred to in Count 4, were occupied by one of his "employees". When those premises were searched, in addition to the indicia of drugs supply and sale, including a notebook which constituted a drug ledger recording amounts of monies and drugs, 2.6 kilograms of methylamphetamine were found in a garage of the premises. The garage was guarded by several dogs and the drugs were concealed in a rather sophisticated way in six individual resealable plastic bags.

The total quantity of drugs discovered at those premises was two and a half times the large commercial quantity of the drugs.

The sentencing Judge found correctly that the offences "... were all organised and planned, these were not 'one off' activities. The sequence of events points to planning ...". His conclusion that the offences were not spur of the moment activities, but were organised, was well justified.

These conclusions were amply based on the facts that the applicant employed others to undertake his work for him, engaged in sophisticated means of guarding the drugs which were hidden, and adopted covert language when describing his dealings on the telephone.

It is relevant to note that the applicant was 47 years old at the time of the offences, and is now 54 years old. He has a significant prior criminal history, including a number of terms of full-time imprisonment. His past record includes armed robbery.

Prior to his arrest for the present offences on 16 August 2006, the applicant was released from custody on 17 May 2005, having served a term of imprisonment for receiving, goods in custody and possession of a prohibited weapon and a prohibited drug. The offences for which the respondent was before the Court, were committed in the period from 7 March 2006 to 30 May 2006. He had been released from his latest period of imprisonment for less than 12 months before he embarked upon the commission of these offences.

The principal issue so far as the applicant's subjective circumstances were concerned, related to his complex state of health and his medical conditions.

At the time of original sentencing in the District Court, the sentencing judge found that the applicant had the following medical conditions:

(a) Type 1 Diabetes Mellitus (insulin dependent, with associated medical complications);

(b) Hypertension;

(d) Congestive cardiac failure;

(e) Chronic Obstructive Pulmonary Disease due to smoking; and

(f) Peripheral Vascular Disease and Dyslipidaemia.

At that time, it was anticipated that within the next few years the applicant would require dialysis treatment for his chronic kidney condition. At the hearing of the Crown appeal before the Court of Criminal Appeal, these conditions continued. Additional medical evidence was adduced by both the applicant and the Crown.

Johnson J at [129] was satisfied that the two reports of Dr Luxton, fairly read, did not suggest any health difficulty for the applicant from the likely need for dialysis whilst in custody, but rather that the potentially adverse factor related to a potential difficulty in managing the applicant's fluid and dietary needs.

As Johnson J made clear in [135], this Court has repeatedly held that ill health cannot be allowed to become a licence to commit crime nor should offenders expect to escape punishment because of their ill health. Johnson J in [140] concluded that it was not reasonably open to the sentencing Judge to sentence the applicant on the basis that this was an exceptional case which permitted the applicant's medical condition to be the dominant and controlling factor on sentence at the expense of the objective seriousness of the offence.

It was not submitted that these conclusions were erroneous. Rather, the argument was advanced that insufficient weight had been attributed to the state of the applicant's health in resentencing by the Court of Criminal Appeal.

This Court has considered the correct approach to sentencing of offenders in cases where the offender has a serious health problem which is to be managed within the prison system. These principles acknowledge that there is a tension between the priority which the medical profession gives to a person's health, and the priority which this Court in the furtherance of the criminal justice system gives to it, because the criminal justice system has at its heart the welfare of the community generally and its protection: see R v Higgins [2002] NSWCCA 407; (2002) 133 A Crim R 385.

In dealing with the issue, this Court said in R v Wickham [2004] NSWCCA 193 at [18] that:

"One of the relevant considerations in determining what, if any, weight to give to [poor physical health], will be the seriousness of the offence. Another will be whether the medical condition existed at the time of the offence, and whether it has deteriorated in the period between the offence and sentence. Common humanity will sometimes require a court to consider a life-threatening physical illness as a matter of mitigation, even though the offender was suffering from such an illness at the time of the commission of the offence.

However, where ...the issue is one of the protection of the community, it may be that common humanity for the offender gives way to concern for potential victims."

The evidence before the sentencing Judge and the Court of Criminal Appeal did not permit of any conclusion that, with the exception of the need for Justice Health to manage and regularly monitor the applicant's fluid and dietary needs, there was any particular threat to the applicant's health which could not be adequately managed whilst in prison. The most significant feature of the applicant's health was that it was likely that his chronic kidney disease would require treatment by dialysis. Dialysis treatment by qualified staff is provided by Justice Health. Such treatment is overseen by specialists.

A careful review of the medical evidence does not permit of any conclusion that the applicant's life expectancy would be foreshortened by the fact that he was in custody.

Although in this Court, the applicant argued that the sentencing Judge in the District Court had correctly exercised his discretion with respect to the weight to be given to the applicant's medical condition, we are unable to agree. Acceptance of the applicant's submissions would involve a finding that Johnson J's conclusions, on the this issue, were erroneous.

We are well satisfied that clear error was demonstrated by the Crown with respect to the sentencing Judge's approach in the District Court on this issue. The reasoning of Johnson J was correct, and no error has been shown. The decision in Muldrock did not touch upon or affect the reasoning of Johnson J in respect of this medical condition issue. It follows, that an application of the correct principle would not have lead to the Crown appeal being dismissed. On the contrary, it was correctly upheld.

The issue which is now relevant for consideration is whether the Court of Criminal Appeal, applying correct principles, could have imposed the penalty for the offences which were in fact imposed on the applicant. In assessing this, it is necessary to draw attention to the matters of objective seriousness to which earlier reference has been made. As well, it is necessary to have regard to all of the other facts and matters which relate to this applicant.

At the time of the offences the applicant was 47 years old. He is now 54. He had a lengthy prior criminal history including three counts of armed robbery.

The offences were part of a planned and organised criminal activity committed for financial gain. The applicant showed no contrition. It cannot be said that the applicant has good prospects of rehabilitation. On the contrary, his past criminal record, and the seriousness of the offences of which he was convicted, tell against his prospects of rehabilitation.

The maximum terms of imprisonment, 20 years on Count 2, and life imprisonment on Count 4, and the standard non-parole periods applicable, namely 10 years on Count 2, and 15 years on Count 4, are legislative guideposts. The maximum penalty serves as an indication of the relative seriousness of the offence.

We are satisfied that an assessment of the objective criminality of these offences, and their seriousness, in light of what we have recounted, can properly be described as mid-range.

We have also had regard to all of the factors that are relevant to sentence. Those that are of particular significance and relevance have been discussed. Engaging in the "intuitive synthesis" sentencing approach required by Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at 378 [51], we are satisfied that the sentences which were imposed in the Court of Criminal Appeal were within the reasonable discretion of that Court and could in accordance with correct principle, have been lawfully imposed by the Court.

In our opinion the sentencing judge erred in his approach to sentencing such that the jurisdiction of the Court of Criminal Appeal under s 5D of the Criminal Appeal Act was enlivened. Further, the penalty imposed by the Court of Criminal Appeal was appropriate and thus not contrary to law within the meaning of s 43(1)(a) of the Sentencing Procedure Act.

Question 3: If the Court determines that the penalty imposed was contrary to law and exercises its discretion to impose a penalty in accordance with law, is the penalty imposed by reference to the circumstances as they existed at the time the primary judge imposed the original sentence, or is it imposed by reference to the circumstances which exist at the time the discretion under s 43(2) is exercised?

As this question does not arise, it is unnecessary to express a final view. However, our tentative view is that any penalty should be imposed by reference to the circumstances as they existed at the time of the original sentence rather than by the circumstances which exist at the time the discretion came to be exercised.

In our opinion, this approach is consistent with the fact that the power under s 43 of the Sentencing Procedure Act is more limited than the power of the court hearing an appeal under the Criminal Appeal Act. The power to impose a sentence that should have been imposed invites attention to the position as it was at the time of the original sentence. This, in our opinion, is consistent with what was said in Ho and Tolmie that the section does not provide for a rehearing on the merits. However, in circumstances where there is a conflict of authority on the issue and the matter does not directly arise, it is not necessary to express a final view.

Question 4: If the answer to the second question is in the affirmative, what sentence should be imposed?

This question does not arise.

Orders

In the circumstances we propose that, the following orders should be made:

1 The application made by the applicant under s 43 of the Crimes (Sentencing Procedure) Act 1999 on 22 March 2012 be dismissed.

2 The Notice of Motion filed by the applicant on 28 March 2012 be dismissed.

McCLELLAN JA: I have had the considerable benefit of reading, in draft, the reasons of Bathurst CJ and Garling J and the additional remarks of Johnson J. I agree with the orders proposed by Bathurst CJ and Garling J but wish to express my own reasons for dismissing the application.

As the judgment of Bathurst CJ and Garling J acknowledges, this Court has consistently given s 43 of the Crimes (Sentencing Procedure) Act 1999 a broad interpretation. The intermediate courts of appeal in other jurisdictions have likewise given a broad interpretation to equivalent provisions in their criminal appeal statutes. Johnson J's careful analysis of the extrinsic material reveals that the broad interpretation ascribed to s 43 by this Court is at odds with Parliament's intent in enacting the provision.

The preponderance of case law suggests that reasoning process errors, including errors of the kind described in House v The King [1936] HCA 40; (1936) 55 CLR 499, will furnish sufficient grounds for a court to reopen sentencing proceedings under s 43: see, for example, Erceg v District Court (NSW) [2003] NSWCA 379; (2003) 143 A Crim R 455; R v Finnie (No 2) [2004] NSWCCA 150 at [31]-[32] (Howie J, Spigelman CJ and Dunford J agreeing); R v Tangen (Court of Criminal Appeal, 21 June 1996, unreported); Ho v Director of Public Prosecutions (1995) 37 NSWLR 393 at 402-403 (Kirby P). Even if interpretive aids such as statutory context and the Minister's Second Reading Speech might point to a narrower construction of s 43, this Court cannot reconsider the scope of s 43 in circumstances where neither party has challenged the correctness of previous decisions concerning its application.

To my mind, this Court is bound by previous decisions to interpret s 43 in such a way that it encompasses errors of the type identified in Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120, however contrary to Parliament's intention that interpretation may be. However, no previous decision of this Court denies the fundamentally discretionary nature of an application brought under s 43 of the Act. It is always open to the Court of Criminal Appeal, or any other court called upon to reopen sentencing proceedings under s 43, to dismiss the application because it considers that other avenues of appeal for which the Criminal Appeal Act provides are better adapted to the issues an applicant seeks to raise.

Where an applicant seeks to argue that his or her sentence is affected by Muldrock error, the appropriate course is for the applicant to seek leave to appeal to this Court under s 5(1)(c) of the Criminal Appeal Act. That course is appropriate because of this Court's position at the apex of the State's criminal appeal hierarchy and the questions of principle involved in determining appeals that allege error of the type identified in Muldrock. The considerations of finality to which Bathurst CJ and Garling J refer at [66] of their reasons are also relevant in this regard. These are all compelling reasons why a lower court should, generally speaking, refuse an application to reopen sentencing proceedings where the applicant seeks to demonstrate that the reasoning process which underlay the sentence was erroneous. I agree with the Chief Justice and Garling and Johnson JJ that s 43 should ordinarily be reserved for the correction of patent error or, to use an administrative law term, that species of error known as "error of law on the face of the record".

Accordingly, although it is technically open to a court to reopen sentencing proceedings to correct for Muldrock error, it will not ordinarily exercise that discretion where doing so would bypass the avenue of appeal for which s 5(1)(c) of the Criminal Appeal Act provides.

Having said that, this is no ordinary case. The applicant submits that the Court of Criminal Appeal, rather than the original sentencing court, fell into error in resentencing the applicant on the basis of the erroneous decision of R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168, and s 5(1)(c) is therefore of no avail to the applicant. Accepting that it may be appropriate in such a case to entertain an application to reopen the proceedings in the exercise of the jurisdiction conferred by s 43 of the Crimes (Sentencing Procedure) Act, I would nevertheless dismiss the application because the sentence was not, for the reasons given by Bathurst CJ and Garling J, one that could not have been imposed bearing in mind the correct approach to sentencing set out in Muldrock.

JOHNSON J: I have had the considerable advantage of reading, in draft, the judgment of the Chief Justice and Garling J. I agree with their Honours' reasons and proposed orders.

I wish to explain, in a little greater detail, my reasons for supporting the conclusions of the Chief Justice and Garling J (in particular at [66]-[67]) concerning the operation of s.43 Crimes (Sentencing Procedure) Act 1999.

I have found troubling the determination of the issues posed by this application. Despite the clearly expressed narrow purpose of the statutory predecessors to s.43, to be found in available extrinsic material, the provision has been given a broad construction in decisions of this Court and the Court of Appeal.

From time to time, in considering s.43, Courts in this State have accepted the reasoning of decisions of intermediate appellate Courts in other States and Territories where there are equivalent provisions. Courts in other States and Territories have applied decisions of this Court or the Court of Appeal in construing analogous provisions in those jurisdictions.

In this way, a body of jurisprudence has developed concerning the construction of provisions such as s.43. As the Victorian Court of Appeal has observed recently (although there is no s.43 equivalent in that State), provisions of this type have been given a broad interpretation in Australian jurisdictions where there are such provisions: Director of Public Prosecutions (Vic) v Edwards [2012] VSCA 293 at [106]-[108], [218]-[220].

The comity principle applies where intermediate appellate Courts of other jurisdictions have construed provisions, in State or Territory legislation, which are identical or substantially similar to New South Wales provisions: Fernando v Commissioner of Police (1995) 36 NSWLR 567 at 584B, 587E, 589G, 593C; R v NZ [2005] NSWCCA 278; 63 NSWLR 628 at 664-668 [155]-[168]. There has been, in effect, a process of mutual acceptance of decisions concerning the construction of provisions substantially similar to s.43 in different Australian jurisdictions.

The parties before this Court did not submit that any earlier decision of a Court should be overruled. This Court is not bound by its earlier decisions or by decisions of the Court of Appeal, although it should only depart from them if satisfied that they are clearly wrong: R v Mai (1992) 26 NSWLR 371 at 380-381; Green v The Queen [2011] HCA 49; 244 CLR 462 at 490-491 [83]-[85]. We were not asked to so conclude in this case.

Accordingly, I acknowledge and accept the conclusions of the Chief Justice and Garling J based upon these earlier decisions. However, that does not mean that s.43 is available for ready use by first-instance courts as a substitute for an appeal. The discretionary remedy in s.43 may apply readily to patent, technical or calculation errors. Beyond that, the statutory scheme in this State for appeal from, or review of, sentences is a powerful and controlling consideration where a s.43 application invites a Court to consider arguments moving beyond these limited classes of error.

What follows is intended to emphasise the importance of the discretionary brake which applies where a s.43 application is made. Two particular features will be emphasised. Firstly, the narrow origins of the provision, and the need to ensure that the provision is not used as a proxy for an appeal. Secondly, the nature and scope of appeals from, and review of, sentencing decisions on indictment will be addressed, to allow a clearer understanding of areas where s.43 ought not have practical operation.

The Origins of s.43

The principle of finality is a fundamental aspect of the justice system, applicable to sentencing as well as other areas of criminal and civil law: Ng v R [2011] NSWCCA 227; 214 A Crim R 191 at 194 [5]. Once sentence is passed, a sentencing Judge is functus officio, subject to appeal or review or application of any statutory or common law principle which allows correction of any order made: Director of Public Prosecutions (Vic) v Edwards at [156]-[157].

In this case, the Court of Criminal Appeal had determined a Crown appeal against sentence under s.5D Criminal Appeal Act 1912. The s.43 application is brought with respect to orders made in upholding that Crown appeal.

The Chief Justice and Garling J have referred (at [20]-[22]) to the legislative history of s.43 and its predecessor provisions.

As noted at [58], the construction of s.43 commences with a consideration of the text itself, with regard to its context, including the general purpose and policy of the provision and the mischief it was seeking to remedy. Context is to be understood in its widest sense, including the existing state of the law: CIC Insurance Limited v Bankstown Football Club Limited [1997] HCA 2; 187 CLR 384 at 408. The context of s.43 includes the statutory scheme for appeals against sentence in this State: cf Network Ten Pty Limited v TCN Channel Nine Pty Limited [2004] HCA 14; 218 CLR 273 at 280-281 [11]-[13].

In the 1986 Legislative Assembly second reading speech concerning s.100HA Justices Act 1902 (referred to by the Chief Justice and Garling J at [20]), the Attorney General, Mr Sheahan, said that the section "will only allow the magistrate to correct a sentence which is patently in error". The Attorney General observed that such "a provision is necessary because on occasions magistrates are handing down sentences which they do not have the power to impose".

The Attorney General pointed to two specific areas of sentencing which had highlighted the problem to be addressed by the legislation. These were periods of disqualification under the Motor Traffic Act 1909 and sentences passed under the Periodic Detention of Prisoners Act 1981. In the area of disqualification, mistakes were being made by Magistrates by way of imposition of periods of disqualification which were less than the prescribed statutory minimum period. In the area of periodic detention, sentences of imprisonment by way of periodic detention had been imposed even though the person was not eligible for periodic detention in accordance with the statutory criteria. The Attorney General continued (at page 3592) (emphasis added):

"These are two examples of the types of situations where the power contained in this bill might be required. There may be, from time to time, other cases where the need to correct technical errors will occur."

The second reading speech in the Legislative Council concerning s.100HA Justices Act 1902 was delivered by the Hon JR Hallam. The Minister commenced his second reading speech in the following way (Legislative Council, 18 November 1986, Hansard, pages 6512-6514) (emphasis added):

"At present, there is no simple mechanism in the Local Courts for the correction of technical sentencing errors. This has meant that a defendant who receives an invalid sentence must use up the precious time of the Supreme Court in having the sentence quashed and the matter reheard. The purpose of this bill is to remedy this situation by giving magistrates the power to reopen a hearing where a sentence that has been imposed is contrary to law."

Soon after, the Minister observed that errors to which the provision would apply "are those which occur when a magistrate purports to impose a penalty not within his or her power".

After noting the two areas mentioned by the Attorney General in the Legislative Assembly (disqualification and periodic detention), the Minister concluded the second reading speech in the following way (emphasis added):

"I emphasize again that the power given by this bill cannot be used as a general power of review or as an appeal process. The power to reopen exists only where there has been a patent error of law in the sentence imposed. The bill will allow for the quick and effective correction of errors made in sentencing in the local courts. It is of benefit to defendants who, through no fault of their own, receive sentences that are invalid. It is also of benefit to the community by reducing the demands on the precious time available in the higher courts of this State."

In 1988, the provision contained in s.100HA Justices Act 1902 was relocated and inserted as s.19 Criminal Procedure Act 1986, with application to all courts exercising criminal jurisdiction.

In the course of the second reading speech, the Attorney General, Mr Dowd, said (Legislative Assembly, 21 September 1988, Hansard, pages 1673-1674) (emphasis added):

"It is important to note that this provision can only be used where there has been a technical error in the sentence imposed. The new section cannot be used to review a penalty by way of appeal. An example of such an error is the imposition of a disqualification period below that which is required by the Motor Traffic Act 1901. This is a quite different mechanism to that of appeal."

In explaining the purpose of the provision, the Attorney General referred to a further area of mischief to which the provision could apply (emphasis added):

"The new section provides that on its own motion or on the application of either party, the court can reopen the proceedings. The parties are then given an opportunity to be heard. The section also provides that the time within which any appeal is required to be made under any Act shall commence from the date upon which the new penalty is imposed. This is important legislation. The need

for it has been highlighted by the introduction of the Probation and Parole Act 1983. The complexity of this and other legislation that judicial officers have to grapple with in the courts on a daily basis has invariably led to technical errors being made. It is vital that judicial officers have a simple procedure available to them to correct such errors. The Government has identified a gap in law in this area and has moved quickly to close it. The legislation will be a useful tool of the Justices Act and throughout the judicial system."

It may be observed from the second reading speeches concerning the 1988 amendments that it was not said that s.19 Criminal Procedure Act 1986 was to have wider application than s.100HA Justices Act 1902, with the obvious exception that the former provision applied to all courts and not just the Local Court.

It is noteworthy that the Probation and Parole Act 1983 attracted specific mention in the 1988 second reading speech. The complications of that statute were notorious. As Kirby P observed in Larkin v Parole Board (1987) 10 NSWLR 57 at 58, there "are few less satisfying tasks than the elucidation of the Probation and Parole Act 1983" with its "tortuous language being the subject of numerous judicial cris-de-coeur". The complications which that statute presented to sentencing Judges imposing terms of imprisonment (involving calculations and starting dates) were such that there lay within the Act an unusual provision which allowed the Parole Board to amend the sentencing order of a court in the case of "patent error": Riley v Parole Board of New South Wales (1985) 3 NSWLR 606; Larkin v Parole Board. It may be no accident that express reference was made in the 1988 second reading speech to the ability of the then s.19 Criminal Procedure Act 1986 to allow a sentencing court to correct errors under the Probation and Parole Act 1983. I observe that the types of error under that Act were technical (usually mathematical) ones concerning calculations and starting dates. The types of error did not lead to a re-exercise of sentencing discretion in accordance with one set of principles in place of those applied in the original sentence. The process was invariably one of adjustment only.

In 1989, the Probation and Parole Act 1983 was repealed and the Sentencing Act 1989 was enacted, with its "truth in sentencing" object: R v Maclay (1990) 19 NSWLR 112 at 121-122. What was considered to be a more straightforward statutory sentencing regime was implemented.

Although the provision enacted in 1988 was moved (and became s.24 Criminal Procedure Act 1986) and moved again to become s.43 Crimes (Sentencing Procedure) Act 1999, no amendment has been made which widens the object and purpose of the provision beyond that enacted in 1986 and 1988. It may be seen that the provision, as enacted, was intended to apply to patent, technical or calculation errors which could be corrected readily on a reopening of the original sentence proceedings without troubling an appellate Court, let alone the Supreme Court on an application for prerogative relief. It was stressed in the relevant second reading speeches that the provision was not to operate as a broader form of appeal or review.

Provisions for Appeal or Review of Sentences in New South Wales

The context in which this provision operated, and continues to operate, includes the statutory scheme for appeals from, and review of, sentence in New South Wales.

A number of statutes make elaborate provision for appeals against sentence in this State. These provisions provide part of the context in which s.43 operates. The relevant statutes provide that:

(a) appeals may be brought on sentence by both the convicted person or the prosecutor from the Local Court to the District Court under the Crimes (Appeal and Review) Act 2001 (part of the statutory scheme which replaced the Justices Act 1902);

(b) although not often utilised, an appeal may be brought from the Local Court to the Supreme Court with respect to sentence under the Crimes (Appeal and Review) Act 2001;

(c) where an offender is sentenced on indictment in the Supreme Court or the District Court, the offender may seek leave to appeal against sentence under s.5(1)(c) Criminal Appeal Act 1912;

(d) where an offender is sentenced on indictment in the Supreme Court or the District Court, the Crown may appeal against sentence under s.5D Criminal Appeal Act 1912.

A well-established body of jurisprudence has developed concerning these various avenues of appeal.

I leave aside provisions for appeal from sentencing decisions of the Land and Environment Court and the Industrial Court of New South Wales. Those Courts do not deal with indictable offences. That said, s.43 applies to all sentencing Courts in this State, including those Courts.

As the standard non-parole period system applies only to offences prosecuted on indictment, attention will be confined to appeals to the Court of Criminal Appeal.

The Court of Criminal Appeal is a court of error: R v Visconti (1982) 2 NSWLR 104 at 108. Error must be demonstrated on a sentence appeal brought by an offender in accordance with the principles in House v The King [1936] HCA 40; 55 CLR 499: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 370-371 [25]. If such error is demonstrated, before the Court may proceed to resentence the offender on appeal, the Court must form a positive opinion that some other sentence is warranted in law and should have been passed: s.6(3) Criminal Appeal Act 1912.

If error is demonstrated on an offender's appeal, the Court of Criminal Appeal may receive further evidence for the purpose of determining whether the question under s.6(3) should be answered in favour of the offender, with a lesser sentence being imposed. Under s.6(3), the Court re-exercises the sentencing discretion, taking into account all relevant statutory requirements and sentencing principles, with a view to formulating the positive opinion for which the subsection provides: Baxter v R [2007] NSWCCA 237; 173 A Crim R 284 at 287 [19].

In addition, since 1987, s.12(2) Criminal Appeal Act 1912 permits the Court to remit a matter to the Court of trial for determination. The power in s.12(2) has been exercised from time to time on sentence appeals to this Court, in particular where there has been a significant passage of time between the imposition of the original sentence in the District Court and the hearing of the appeal in the Court of Criminal Appeal, and where substantial additional or updated evidence may be adduced at the resentencing hearing. Where the Court of Criminal Appeal has found error and has determined that intervention under s.6(3) is warranted, the Court may elect to remit the matter to the first-instance Court for a Judge of that Court to resentence the offender upon the basis of evidence adduced at that hearing: Douar v R [2005] NSWCCA 455; 159 A Crim R 154 at 181-182 [145]-[146]; O'Neil-Shaw v R [2010] NSWCCA 42 at [32]-[34], [57]; Urriola v R [2012] NSWCCA 95 at [50]-[52].

On a Crown appeal under s.5D Criminal Appeal Act 1912, it is necessary for the Crown to establish error in accordance with the principles in House v The King: Markarian v The Queen at 370-371 [25]-[28]. If error is demonstrated, the Court considers whether to exercise its discretion to resentence the offender: R v JW [2010] NSWCCA 49; 77 NSWLR 7.

On an offender's appeal or a Crown appeal, s.7(1A) Criminal Appeal Act 1912 enables the Court to vary other sentences even though those sentences were not challenged directly on appeal: Marinellis v R [2006] NSWCCA 307 at [13].

Also forming part of the statutory landscape for review of sentencing decisions are the provisions contained in Part 7 of the Crimes (Appeal and Review) Act 2001. This Part is the modern equivalent of s.475 Crimes Act 1900, which predated the criminal appellate system created by the Criminal Appeal Act 1912. An inquiry was directed in 1983 by Street CJ under s.475 Crimes Act 1900 into certain mitigating circumstances affecting the determination of sentence: R v Kinsella (Court of Criminal Appeal, 4 November 1983, unreported); Varley v Attorney General (NSW) (1987) 8 NSWLR 30 at 45-46.

The provisions now contained in Part 7 were amended in 1996 by the Crimes Amendment (Review of Convictions and Sentences) Act 1996, to provide expressly for a direction to be given concerning sentence only (under what is now s.79 Criminal (Appeal and Review) Act 2001): Application of Pearson [1999] NSWSC 143; 46 NSWLR 148 at 155 [23], 159 [45]; Application of El Hani [2007] NSWSC 330 at [21].

Operation of s.43

The extrinsic material made plain that a s.43 application was not a form of appeal or review.

The s.43 power is being exercised by a court at the same tier in the judicial hierarchy of courts which imposed the original penalty, although the judicial officer exercising the s.43 function may, or may not, be the original decision maker on sentence.

The examples provided by Ministers in the relevant second reading speeches illuminate the purpose of the section. A period of disqualification which was less than the statutory minimum is a clear example of this. An order of imprisonment by way of periodic detention, in circumstances where the offender did not satisfy the statutory criteria constituted a further example of the imposition of a penalty that was simply not available. A third area involved correction of errors under the Probation and Parole Act 1983, where calculation errors may have occurred which were clearly identifiable and capable of simple correction.

Of course, no exhaustive set of illustrations can be provided for cases where, for the purposes of s.43, a court has "imposed a penalty that is contrary to law" or has "failed to impose a penalty that is required to be imposed by law". However, the examples provided give content to the construction and operation of the section.

As observed earlier, the cases cited by the Chief Justice and Garling J include statements supporting a broad construction of s.43. It is pertinent, however, to note examples provided in two of these decisions to illustrate the operation of the section, after a general explanation of the provision had been given. These examples appear to echo examples provided by the Ministers in relevant second reading speeches.

The Chief Justice and Garling J refer (at [32]) to R v Finnie (No. 2) [2004] NSWCCA 150. There, Howie J (Spigelman CJ and Dunford J agreeing) made observations concerning s.43, before providing the following example at [32] (emphasis added):

"It is not difficult to imagine a situation where a sentencer misunderstood or overlooked a fact in evidence before the court and as a result imposed a sentence that fell within the scope of the provision. A not uncommon example would be where the failure to take into account the existence of a particular traffic conviction resulted in the court failing to impose the disqualification period mandated by statute where such a prior conviction exists. Where a relevant error is established, the section is engaged and, at least in so far as the jurisdiction of the court to reopen the sentencing proceedings is concerned, it is unnecessary for the court to determine how the erroneous sentence came about."

Reference is made by the Chief Justice and Garling J, at [36]-[37], to Meakin v Director of Public Prosecutions [2011] NSWCCA 373; 216 A Crim R 128. There, Beazley JA (as her Honour then was) said at 146 [92] (emphasis added):

"A failure to be aware of such statutory provisions may result in a sentence that is manifestly inadequate or excessive. It is a different question as to whether that constitutes a sentencing error that is 'contrary to law' within s 43. In my opinion, that question can be answered fairly readily. As I have discussed, the effect of the authorities is that s 43 looks to the outcome of the proceedings. It is the sentence imposed which must be 'contrary to law'. That is, there must be an error in the sentence imposed with the consequence that some different sentence is required. Thus a sentence that is greater or less than that prescribed will be a sentence imposed that is 'contrary to law'. For example, if a sentence is imposed in respect of a high range PCA, when the offence was a mid or low-range PCA, there will be a sentence imposed that is 'contrary to law'."

In effect, the applicant's submission is that s.43 allows a first-instance sentencing Judge (or another Judge of the same Court) to engage afresh in the process of instinctive synthesis for a standard non-parole period offence, by reference to principles in Muldrock v The Queen [2011] HCA 39; 244 CLR 120 in place of those in R v Way [2004] NSWCCA 131; 60 NSWLR 168, once R v Way error has been identified. This process would involve identification of relevant factors (including the standard non-parole period) and an assessment of their significance, followed by the making of a value judgment as to the appropriate sentence in the exercise of instinctive or intuitive synthesis: Markarian v The Queen at 375 [39], 378 [51]; Muldrock v The Queen at 131-132 [26]-[27].

What appears in the preceding paragraph describes the quintessential task of this Court on a sentence appeal, after error is established, on the pathway to the imposition of a substituted sentence under s.5D or s.6(3) Criminal Appeal Act 1912. To the extent that the construction of s.43 permits the prospect of the use of that provision in these circumstances, that construction runs up against the powerful conclusion that s.43 is not to be used in these circumstances, on discretionary grounds, because it would be an inappropriate proxy for an appeal.

Further, on a s.43 application, the powers contained in s.7(1A) Criminal Appeal Act 1912 would not apply to allow adjustment of sentences for offences without standard non-parole periods, for which an offender may have been sentenced at the same time as sentence for a standard non-parole period offence. Accordingly, correction of R v Way error on a s.43 application would not permit adjustment of surrounding sentences for other offences in a manner which could occur on a sentence appeal.

The appropriate course, where R v Way error is asserted by an offender in sentencing in the Supreme or District Courts, is application for leave to appeal under s.5(1)(c) Criminal Appeal Act 1912. In exercising that appellate function, if error is demonstrated, this Court may determine to resentence under s.6(3) or, in appropriate cases, use the s.12(2) remittal power to allow resentencing in the original sentencing Court.

All of this, to my mind, supports the approach of the Chief Justice and Garling J (expressed at [66]-[67]), which sees s.43 having practical application to patent, technical or calculation errors, but with a firm discretionary hand applying to confine its use to errors of that type, to avoid a first-instance Court, on a s.43 application, usurping the proper role of appellate courts.

The legislature may wish to revisit s.43. The narrow purpose of the provision, identified upon its introduction in the 1980s, has been affected by a broad construction applied by the Courts since then. In my view, it would be appropriate for the matter to be referred to the Attorney General for consideration of reform of s.43, in light of the issues ventilated in the judgments of the Court on this application.

Conclusions

In the most exceptional circumstances of this case, for the reasons given by the Chief Justice and Garling J (at [68]), I agree that it is appropriate to consider whether the preconditions to the exercise of jurisdiction under s.43 are made out.

I agree with the answers to Questions 2, 3 and 4 in the judgment of the Chief Justice and Garling J.

I agree with the orders proposed in the joint judgment.

BELLEW J: I agree with the orders proposed in the judgment of the Chief Justice and Garling J for the reasons which they express.

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Decision last updated: 22 May 2013

Medium Neutral Citation:	Achurch v R (No 2) [2013] NSWCCA 117
Hearing dates:	24/10/2012, 04/12/2012
Decision date:	22 May 2013
Before:	Bathurst CJ at [1] McClellan JA at [104] Johnson J at [111] Garling J at [1] Bellew J at [164]
Decision:	1 The application made by the applicant under s 43 of the Crimes (Sentencing Procedure) Act 1999 on 22 March 2012 be dismissed. 2 The Notice of Motion filed by the applicant on 28 March 2012 be dismissed.
Catchwords:	CRIMINAL LAW - application to reopen Crown appeal to Court of Criminal Appeal against sentence - applicant convicted and sentenced for three offences - supply MDMA - supplying a commercial quantity of MDMA - supplying a large commercial quantity of methylamphetamine SENTENCING - Crown appeal upheld prior to High Court of Australia decision in Muldrock v The Queen [2011] HCA 39 - whether s 43 of Crimes (Sentencing Procedure) Act 1999 is available to correct error of law in application of the sentencing principles in R v Way [2004] NSWCCA 131 - whether, applying the correct principles, the sentences for the offences were contrary to law
Legislation Cited:	Crimes (Appeal and Review) Act 2001 Crimes (Sentencing Procedure) Act 1999 Crimes Amendment (Review of Convictions and Sentences) Act 1996 Criminal Appeal Act 1912 Criminal Procedure Act 1986 Drug Misuse and Trafficking Act 1985 Justices Act 1902 Motor Traffic Act 1909 Periodic Detention of Prisoners Act 1981 Probation and Parole Act 1983 Road Transport (General) Act 2005
Cases Cited:	Alcan (NT) Alumina Pty Limited v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 Application of El Hani [2007] NSWSC 330 Application of Pearson [1999] NSWSC 143; (1999) 46 NSWLR 148 Baxter v R [2007] NSWCCA 237; (2007) 173 A Crim R 284 Butler v R [2012] NSWCCA 23 CIC Insurance Limited v Bankstown Football Club Limited [1997] HCA 2; (1997) 187 CLR 384 Director of Public Prosecutions (Vic) v Edwards [2012] VSCA 293 Douar v R [2005] NSWCCA 455; (2005) 159 A Crim R 154 Erceg v District Court (NSW) [2003] NSWCA 379; (2003) 143 A Crim R 455 Fernando v Commissioner of Police (1995) 36 NSWLR 567 Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 Ho v Director of Public Prosecutions (1995) 37 NSWLR 393 House v The King [1936] HCA 40; (1936) 55 CLR 499 Khoury v R [2011] NSWCCA 118; (2011) 209 A Crim R 509 Larkin v Parole Board (1987) 10 NSWLR 57 Marinellis v R [2006] NSWCCA 307 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Meakin v Director of Public Prosecutions [2011] NSWCA 373; (2011) 216 A Crim R 128 Melville v The Queen [1999] NTCCA 55; (1999) 9 NTLR 29 Melville v The Queen [1999] NTSC 56; (1999) 105 A Crim R 421 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 Network Ten Pty Limited v TCN Channel Nine Pty Limited [2004] HCA 14; (2004) 218 CLR 273 Ng v R [2011] NSWCCA 227; (2011) 214 A Crim R 191 O'Neil-Shaw v R [2010] NSWCCA 42 R v Achurch [2011] NSWCCA 186; (2011) 216 A Crim R 152 R v Denning (Court of Criminal Appeal, 15 May 1992, unreported) R v Finnie (No 2) [2004] NSWCCA 150 R v Higgins [2002] NSWCCA 407; (2002) 133 A Crim R 385 R v JW [2010] NSWCCA 49; (2010) 77 NSWLR 7 R v Kinsella (Court of Criminal Appeal, 4 November 1983, unreported) R v Knight [2007] NSWCCA 283; (2007) 176 A Crim R 338 R v Koloamatangi [2011] NSWCCA 288 R v Maclay (1990) 19 NSWLR 112 R v Mai (1992) 26 NSWLR 371 R v NZ [2005] NSWCCA 278; (2005) 63 NSWLR 628 R v Petrou (Court of Criminal Appeal, 13 February 1990, unreported) R v Sellars [2010] NSWCCA 133 R v Skaf [2005] NSWCCA 297 R v Smith [2004] NSWCCA 69 R v Tangen (Court of Criminal Appeal, 21 June 1996, unreported) R v Tolmie (1994) 72 A Crim R 416 R v Visconti (1982) 2 NSWLR 104 R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 R v Wickham [2004] NSWCCA 193 Re Bolton; Ex parte Beane [1987] HCA 12; (1987) 162 CLR 514 Riley v Parole Board of New South Wales (1985) 3 NSWLR 606 Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 Siganto v R [1998] HCA 74; (1998) 194 CLR 656 Staats v The Queen [1998] NTCCA 13; (1998) 101 A Crim R 461 Urriola v R [2012] NSWCCA 95 Varley v Attorney General (NSW) (1987) 8 NSWLR 30 Williams v R [2012] NSWCCA 172 Wise v R [2006] NSWCCA 264
Category:	Principal judgment
Parties:	Brian Achurch (Applicant) Regina (Respondent)
Representation:	Counsel: Mr TA Game SC; Mr D Barrow (Applicant) Ms S Dowling (Respondent) Solicitors: Catherine Hunter (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2007/8068