Andrew John Farrell v The Queen
[2010] VSCA 251
•20 September 2010
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| ANDREW JOHN FARRELL | S APCR 2010 0139 |
| Applicant | |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | NETTLE and HARPER JJA and T FORREST AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 20 September 2010 | |
DATE OF JUDGMENT: | 20 September 2010 | |
DATE OF ORDERS: | 22 September 2010 | |
MEDIUM NEUTRAL CITATION: | [2010] VSCA 251 | |
JUDGMENT APPEALED FROM: | DPP v Farrell (Unreported, County Court of Victoria, Judge Pullen, 16 December 2009) | |
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CRIMINAL LAW – Sentence – Using a carriage service to access child pornography, using a carriage service to make available child pornography and possession of child pornography – Intention that offender be sentenced to a total effective sentence of 3 years’ imprisonment with 10 months to be served before being released on a recognisance of $800 to be of good behaviour for 20 months – Combination of Commonwealth and State offences – Structure of sentence imposed not reflecting the sentencing judge’s intention – ‘Slip rule’ – Sentence quashed and offender re-sentenced – R v Saxon [1998] 1 VR 503 considered – Crimes Act 1958 (Vic), s 568(4) – Sentencing Act 1991 (Vic), s 104A – Crimes Act 1914 (Cth), s 20(1)(b).
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr S Gillespie-Jones | Paul Vale Criminal Law |
| For the Crown | Mr D D Gurvich | Solicitor for Director of Public Prosecutions (Cth) |
NETTLE JA:
I invite Harper JA to deliver the first judgment.
HARPER JA:
Following a plea of guilty, the applicant was convicted of two offences against the Commonwealth Criminal Code 1995 and of one offence against the Victorian Crimes Act1958. Each of the three counts involved child pornography.
The transcript of the sentencing remarks of the sentencing judge and of the two hearings which followed leave no room for doubt. Her Honour intended that the applicant be sentenced to a total effective sentence of three years' imprisonment, but that after ten months actual incarceration he be released on a recognisance pursuant to s 20(1)(b) of the Commonwealth Crimes Act1914.
The judge was aware of the difficulties in framing appropriate orders for punishment where the applicable law has two jurisdictional sources. In this case, the relevant Commonwealth legislation was to be found in the Criminal Code and the Crimes Act1914, which the applicable State law was to be found in the Crimes Act1958 and the Sentencing Act1991. Before pronouncing sentence, her Honour therefore sought and obtained the assistance of counsel for the Director of Public Prosecutions (Commonwealth) and counsel for the applicant. Thus armed, the judge sentenced the applicant to two years' imprisonment on Count 1 (using a carriage service to access child pornography), two years' imprisonment on Count 2 (using a carriage service to make available child pornography), and 12 months' imprisonment on Count 3 (possession of child pornography). She directed, pursuant to s 15 of the Sentencing Act, that the sentence on Count 3 was to commence on that day, 16 December 2009. She further directed, this time pursuant to s 19 of the Crimes Act (Cth), that the sentence on Count 1 commence five months later (that is, on 16 May 2010) and the sentence on Count 2, seven months after that (and therefore on 16 December 2010, 12 months after the date of sentence). She then ordered ‘that the prisoner be released after serving ten months of the term of imprisonment from 16 October 2010 by recognisance of $800 to be of good behaviour for 20 months.’ Pursuant to s 18 of the Sentencing Act, her Honour declared that the applicant had been in custody for 14 days in respect of the sentences thus imposed, and that that period was to ‘be reckoned as a period of imprisonment already served under this sentence’.
Later that day (16 December 2009) the judge and the applicant signed a document headed ‘Order and Recognisance under Paragraph 20(1)(b)' by which the Court ordered ‘the release of the defendant … after serving five months of the term of imprisonment upon the defendant giving security by recognisance in the sum of $800.00 to comply with the … condition … that the defendant is to be of good behaviour for 20 months’. The document also recorded that the order ‘has been issued because … the Court sentenced the defendant to a term of 31 months' imprisonment commencing on 16 October 2010 [and] … has decided that the defendant be released after serving five months of the sentence … if the defendant complies with the conditions of this order’.
Given my acceptance of a proposition that it was her Honour's settled and manifest intention to ensure the applicant's release on 16 October this year, I read the reference in the ‘Order and Recognisance’ to the applicant's release after five months as evidence of her Honour's intention that he be released five months after commencement of his sentence on Count 1, that is, five months after 16 May 2010. The reference to ‘a term of 31 months' imprisonment’ is a reference to the total of (a) the seven months between 16 May and 16 December this year which the applicant was to serve after the sentence imposed on Count 1 began and before the beginning on 16 December of his sentence on Count 2, and (b) the 24 months of the sentence on Count 2 (which was to begin on that latter day, and was to end 24 months later – that is, on 16 December 2012 – less the 14 days served before 16 December 2009).
It follows that the reference in the ‘Order and Recognisance’ to ‘a 31 months' imprisonment commencing on 16 October 2010’ is a mistake. The date which should have been inserted is 16 May 2010.
The more serious mistake, given her Honour's intention that the applicant be released on 16 October this year, was to sentence him to 12 months' imprisonment on Count 3. This is so because the applicant cannot be released under a Commonwealth recognisance while serving a term of imprisonment imposed under State law.
The problem was first drawn to the judge's attention on 9 April this year in an email from Mr Ray Dickinson, the Manager, Central Prisoner Records, of Corrections Victoria. He first pointed out, in effect, that the total effective period of 31 months of imprisonment imposed on the first two counts began with the commencement of the term imposed on Count 1; and this was not 16 October, as stated in the ‘Order and Recognisance’, but 16 May. He next noted that an offender subject to a State sentence cannot be released pursuant to s 20(1)(b) of the Crimes Act (Cth) until that sentence has been ‘satisfied’. This would not occur until 14 days before 16 December 2010.
Concerned about the implications of this email, the judge reconvened the Court on 23 April. Counsel who had earlier appeared on the plea were in attendance, while the applicant himself watched and listened via video link from prison. Her Honour went to great pains to record her distress at the fact that the sentences she had gone to considerable lengths to ensure accurately reflected her intentions had failed to do so; and she went to like lengths to assure the applicant that he would not remain in prison for a day longer than 16 October (or, to reproduce only a few of the many ways in which she put it, ‘not one minute longer in custody’, and ‘[t]here is absolutely no change in [the] length [of time] he serves and I am most adamant that that is never going to happen … No extra day, no extra minute’).
I interpolate to note that, while the DPP has not sought to appeal the sentences handed down by her Honour, and while it is no part of the present application to examine the merits of her Honour's sentencing disposition in this case, the offending was serious, and the sentences merciful. It must not be thought that, by its silence on this topic, this Court is not concerned to emphasise that, as is so often the case, there were many innocent victims of the behaviours depicted in the material downloaded by the applicant, and (as her Honour was at pains to stress in her sentencing remarks) a large proportion of those behaviours were degrading and exploitative in the extreme.
It was agreed between both counsel and the judge that the reference in the ‘Order and Recognisance’ to 16 October was (as pointed out in paragraph [6] above) the mistake which it clearly was. The document was amended accordingly, and thus the correct date of 16 May was substituted for the incorrect date of 16 October. Counsel for the DPP also pointed out that the reference in both the record of orders made and the form of ‘Order and Recognisance’ to a period of good behaviour of 20 months seemed to be mistaken, because that 20 months would end six months before the end on 16 October 2012 of the total effective period of imprisonment. Such a result would create an anomaly.
Immediately after counsel had made this point, her Honour said:
Why did this happen, that there was this mistake? This is just appalling, I must say. I didn’t pick up on it. No I agree, but really I am not going to in any way, shape or form, extend the sentence that I imposed on Mr Farrell.
Later, however, the judge asked counsel for the DPP to take her through the orders which should be made to correct the errors. She then said ‘So there's no change there, … good’ when, for a reason which escapes me, counsel put to her that orders should provide that the applicant be of good behaviour for 20 months. In my opinion, the applicant should be required, as a condition of any recognisance, that he be of good behaviour for the 26 months which will remain of his sentence should he be released on 16 October. The absence of such a condition in any order and recognisance to which he is subject would be an anomaly.
Her Honour then agreed that the sentence on Count 3, that is the State sentence, should be reduced to ten months' imprisonment, commencing on 16 December 2009. There was, however, no discussion about how this was to be done.
Still concerned that the problems discussed on 23 April might not have been entirely solved, the judge on 27 April called the parties into court again. In particular, she doubted whether s 104A of the Sentencing Act (a provision which does not seem to have been mentioned on 23 April) gave her power to correct the State sentence. The section provides, so far as is presently relevant, that the judge who passed sentence may amend it if satisfied that it contained an accidental slip, or that it failed to deal with a matter that it would undoubtedly have dealt with had the judge's attention been drawn to the omission. On the other hand, the power is to be exercised only up until the end of the fourteenth day after the sentence was passed; and April is much further than that from December.
The applicant now relies on sub-s 6 of the section, which provides that it does not take away power possessed by a judge at either common law or under statute.[1] This was not an argument put to her Honour on 27 April. Rather, counsel for the DPP argued that only the Court of Appeal had the power to make the orders which must be made if the intention of the judge is to be given effect.
[1](6) This section does not take away from—
(a)any power possessed by a judge or magistrate under statute or at common law; or
(b)any right to appeal against, or to seek leave to appeal against or a review of, a judgment or sentence that any party to a criminal proceeding otherwise has.
And so the matter comes before us. On 17 May, the applicant filed an application for an extension of time within which to appeal, and a notice of application for leave to appeal against sentence. In the circumstances, neither application is opposed, although the DPP has a different view about the appropriate means of rectifying a mistake which both parties accept was made, and which both likewise accept should be rectified.
The first issue is whether leave to extend time should be granted. In my opinion, it should. I would order accordingly.
There are four grounds of appeal. First, that the judge 'erred in sentencing the applicant to a sentence which she did not intend.' Secondly, that her Honour erred in failing to apply the ‘slip rule’. Thirdly, that she erred in holding that her power under the ‘slip rule’ was constrained by s 104A of the Sentencing Act. And finally, that she erred in failing to comply with s 16(4)(a) of that Act.
The last ground is unsupportable, unless one takes it to be in reality the foundation for an argument that the section, by sub-s (6), opens the way for the exercise of the power given either by the ‘slip rule’, or the wider power to which this Court referred in the following passage from R v Saxon:
It is well established that any court has inherent jurisdiction to correct a judgment or order made by it but which, owing to error, does not give effect to what the court intended by its pronouncement. That is this case. In De Zylva,[2] the Court of Criminal Appeal said at 208: ‘But any court has an inherent jurisdiction to correct any judgment or order which owing to error does not give effect to that which the court intended to do. It is a power which is essential to ensure that justice is done. It is not possible pursuant to the power to vary an order which the court intended to make but an error in an order can be correct so as to do justice and to give effect to the court's intention.'
… [W]e see no reason why the County Court, as a sentencing court in this instance, should not have acted (had it been asked to do so) as the Full Court did in De Zylva, making a supplementary order directing that the details on the back of the presentments be amended and the quadruplicate corrected in consequence. Ordinarily, that would be the simplest way in which to correct the sort of recording mistake that was made here.[3]
[2](1988) 38 A Crim R 207.
[3][1998] 1 VR 503, 507–508.
R v Saxon, however, was concerned with the discrepancy between what the sentencing judge said and what was then recorded. Here, the ‘Record of Orders Made’ accurately reflects what her Honour said when pronouncing sentence; but what she then said did not accord with the effect which she intended the sentence should have. It is clear from her sentencing remarks that her Honour wanted to impose a total term of three years' imprisonment with the offender serving ten months of that term in custody; but this was not achieved.
The gravamen of the applicant's grounds of appeal is that the sentencing judge made an error which she had power to rectify but failed in her attempt to do so. In those circumstances, this Court should, as stated under Ground 1 of the grounds of appeal impose ‘the sentence intended to be imposed by her Honour, the course that is unopposed by those prosecuting.’
The submissions of the DPP reflect this lack of opposition. The DPP submits that the Court should avail itself of the power given to it by s 568(4) of the Crimes Act (Vic). So far as is presently relevant, that section provides, in effect, that on an appeal against sentence the Court of Appeal shall, if it thinks that a different sentence should have been passed or a different order made, quash the inappropriate sentence and (by way of substitution for that inappropriate sentence) pass such other sentence or make such other order as is warranted in law and ought to have been passed or made in the first place.
In my opinion, that is the proper way to proceed. Given her Honour's clear intention, the sentence which ought to have been passed in the first place is a custodial sentence of ten months' imprisonment on Count 3 (the State count) commencing on 16 December 2009; a sentence of two years' imprisonment on Count 1, commencing on 16 May 2010; and a sentence of two years' imprisonment on Count 2, commencing on 16 December 2010, and therefore ending on 16 December 2012 (less the 14 days already served before sentence was pronounced). Her Honour should then have ordered that the applicant be released, under s 20(1)(b) of the Crimes Act (Cth) and after serving five months of the sentence on Count 1, on condition that he give security by way of recognisance in the sum of $800.00 and be of good behaviour for 26 months.
It is on this basis that the DPP submits that the appeal should be allowed, and the sentence on Count 3 quashed. In lieu of that sentence (the submission continues) the applicant should be sentenced to ten months' imprisonment. The Court should then exercise the power give to it by s 19AH(1) of the Crimes Act1914 and ‘make a recognisance release order that properly reflects her Honour's intention’. There should also be a declaration under s 18 of the Sentencing Act that the applicant has already served 293 days under the sentence thus imposed (this covers the period of 14 days before 16 December 2009, when sentence was first pronounced, until 20 September 2010).
I agree with these submissions. In these circumstances, I would make the following orders:
1. That the application for leave to appeal be granted and that the appeal be heard instanter and allowed.
2. That the sentence pronounced in the Court below be quashed and in lieu thereof the applicant be sentenced as follows:
1. On Count 3 – the applicant be sentenced to ten months' imprisonment;
2. On Count 1 – the applicant be sentenced to two years' imprisonment commencing on 1 October 2010;
3. On Count 2 – that the applicant be sentenced to two years' imprisonment commencing on 3 December 2010;
4. Pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth) the applicant be released after serving 2 days (inclusive of the first day) of his sentence on Count 1 on condition that he first enter into a recognisance in the sum of $800.00 to be of good behaviour for a period of 26 months from 3 October 2010;
5. Declare pursuant to s 18 of the Sentencing Act1991 that the applicant has been in custody in respect of the sentence pronounced on Count 3 for a period of 293 days, and that that period be reckoned as already having been served under that sentence.
6. Direct that the fact that the above declaration has made and its details be entered in the records of the Court.
Appropriate provision should also be made for the requirement in relation to the declaration that the applicant is a serious sexual offender.
NETTLE JA:
I agree.
T FORREST AJA:
I agree.
(Discussion ensued in relation to the commencement of the sentence, the taking of the recognisance order and the completion of the sex offender registration paperwork.)
NETTLE JA:
What we propose to do is to put over, either until next Thursday or sooner if it may be arranged by video link, the making of final orders and taking of the recognisance order.
(UPON RESUMPTION ON 22 SEPTEMBER 2010.)
NETTLE JA:
Mr Farrell, can you hear us?
OFFENDER:
Yes, I can, your Honour.
NETTLE JA:
Yes, thank you. The purpose of this morning is to make orders to give effect to the decision which we announced last Monday, to allow your appeal and in effect to give proper implementation to the intention of the sentencing judge that you be
released on a recognisance order on 3 October for a period of 26 months on entering into a recognisance of $800. Now, we have announced last Monday that we would do that. The purpose of this morning's exercise is to express those orders formally and to have you enter into the recognisance bond in order that you may be released on 3 October. Do you understand that?
OFFENDER:
I do, thank you.
NETTLE JA:
We will make the orders now and then we will have you sign the recognisance release order, once I have explained the terms of that to you.
The orders of the Court will be as follows:
1. The application for extension of time in which to apply for leave to appeal against sentence is allowed.
2. The appeal is treated as instituted and heard instanter and is allowed.
3. The sentences passed below are quashed and in lieu thereof the applicant is re-sentenced as follows:
On Count 3, to ten months' imprisonment;
On Count 1, to two years' imprisonment commencing on 1 October 2010.
On Count 2, to two years' imprisonment commencing on 3 December 2010.
4. Pursuant to sub-s 20(1) paragraph B of the Crimes Act1914 of the Commonwealth, it is ordered that the applicant shall be released after serving two days inclusive of the first day of the sentence imposed on Count 1 on condition that he first enter into a
recognisance in the sum of $800 to be of good behaviour for a period of 26 months from 3 October 2010.
5. Pursuant to s 18 of the Sentencing Act1991 it is declared that the number of days already served under the sentence imposed on Count 3 is 294 days and it is directed that the fact of the declaration and its details be entered in the records of the Court.
6. It is declared that the applicant has been sentenced in respect of Count 3 as a serious sexual offender.
7. Pursuant to s 11 of the Sex Offenders Registration Act2004, it is ordered that the applicant, being a person found guilty of three Class 2 offences within the meaning of Schedule 2 of that Act, shall comply with the reporting obligations of that Act and it is noted that under Part 3 of that Act, the applicant must continue to comply with the reporting obligations imposed by that part for life.
Now, Mr Farrell, the effect of the orders which we have just made are as follows. First, you will qualify to be released on 3 October conditional upon you first entering into the recognisance. And second, you will be bound as someone who has been sentenced as a serious sexual offender, to comply with reporting obligations under the Sex Offenders Registration Act for the remainder of your life. In order to give effect to those orders, two things are required. First, that you sign a recognisance release order. And I should explain to you, the effect of that is that $800 is provided by way of security for you to be of good behaviour for 26 months commencing on the date of your release.
If at any time you fail to be of good behaviour, which is to say commit a significant offence here or anywhere else, you are liable to forfeit that bond and to be further punished for breach of the bond, which could result in a further sentence of imprisonment. Do you understand that?
OFFENDER:
I do.
NETTLE JA:
The other document you will be required to sign is a document under the Sex Offenders Registration Act wherein is set out the reporting obligations to which you will be subject immediately upon your release. Have you yet been shown that document?
OFFENDER:
Yes, I have.
NETTLE JA:
Do you understand the obligations which are set out in it as to your reporting and times and places to which you must report?
OFFENDER:
Yes, I do.
NETTLE JA:
Could Mr Farrell now be given the recognisance release order for signature please.
You will see on the last page of that document there is provision for you to sign, Mr Farrell.
OFFENDER:
Yes, there is.
NETTLE JA:
That you have received the order and that you understand its terms and content.
OFFENDER:
Yes, I do.
NETTLE JA:
Are you prepared to sign that now as acknowledgment of that fact?
OFFENDER:
I am.
NETTLE JA:
Would you do so please.
That is to be returned to the prison officer and a copy will be provided to you immediately. The other document is the acknowledgment of your obligations to report under the Sex Offenders Registration Act. Do you have that there?
OFFENDER:
Yes, I do.
NETTLE JA:
And do you understand the obligations which are set out in that document as to your reporting following your release?
OFFENDER:
Yes, I do.
NETTLE JA:
Are you prepared to sign that document as acknowledging that fact?
OFFENDER:
Yes, I am.
NETTLE JA:
Would you do so please.
They should also be handed to the officer and a copy provided to you immediately.
Thank you, Mr Farrell, that concludes the formalities this morning.
OFFENDER:
Thank you very much.
NETTLE JA:
Thank you, gentlemen.
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