Attorney-General of Queensland v Woodford

[1996] QCA 436

[1996] QCA 436

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 4422 of 1996.

Brisbane

[A-G v. Woodford]

BETWEEN:

ATTORNEY-GENERAL OF QUEENSLAND

(Defendant) Appellant

AND:

SANDRA LEE WOODFORD

(Plaintiff) Respondent

___________________________________________________________________________

Fitzgerald P.

Pincus J.A.
Derrington J.

___________________________________________________________________________

Judgment delivered 8 November 1996

Judgment of the Court

___________________________________________________________________________
ORDER NISI MADE ON 23 MAY 1996 DISCHARGED
___________________________________________________________________________

CATCHWORDS:     Sentence - re-opening sentence - factual error - prior convictions - District Court - District Courts Act 1967 (s. 30) - Penalties and Sentences Act 1992 - whether power to re-open sentence – whether Penalties and Sentences Act 1992 is a complete code – whether sentencing process complete.

Counsel:Mr M Byrne QC for the appellant.

Mr S Hamlyn-Harris Q.C. with him Mrs E Patten for the respondent.

Solicitors:Queensland Director of Public Prosecutions for the appellant.

Queensland Legal Aid Office for the respondent.

Hearing date:               31 October 1996.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 4422 of 1996.

Brisbane

BeforeFitzgerald P.

Pincus J.A.
Derrington J.

[A-G v. Woodford]

BETWEEN:

ATTORNEY-GENERAL OF QUEENSLAND

(Defendant) Appellant

AND:

SANDRA LEE WOODFORD

(Plaintiff) Respondent

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 8 November 1996

This is a challenge to an order made in the District Court by Judge Trafford-Walker, dismissing an application by the Crown for re-opening of a sentence.

Sandra Lee Woodford pleaded guilty in the District Court to one count of misappropriation with a circumstance of aggravation and was on 15 May 1996 sentenced to a suspended term of imprisonment and also placed on probation. That was done on the basis that she had no criminal history. Two days later, having discovered that Ms Woodford had previous convictions (entered under another name) the Crown asked the judge to re-open the sentence hearing, contending that his Honour had jurisdiction under the general law to do so. His Honour dismissed that application and now an order is sought against him under s. 30 of the District Courts Act 1967, requiring that the judge do what he had previously declined to do, that is, re-open the sentence hearing. The District Court is argued to have a relevant inherent power, but cf. Grierson (1938) 60 C.L.R. 431. Judge Trafford-Walker decided the case on the basis that the District Court would once have had authority to re-open the sentence hearing, but that this had been put an end to by the passage of the Penalties and Sentences Act 1992.

An application similar to that which failed below has been made, unsuccessfully, in the Supreme Court: Deacon (1993) 65 A.Crim.R. 261.  Deacon was initially sentenced on the basis of information placed before the court that he had produced 2 grams of heroin, that being the amount specified in the Third Schedule to the Drugs Misuse Act 1986. It was subsequently discovered that the amount was only 1.163 grams and an application was made for resentencing under s. 188 of the Penalties and Sentences Act 1992. Under subs. 2 of that provision:

"If a Court has in, or in connection with, a criminal proceeding (including a proceeding on appeal) –

(a)imposed a sentence that is not in accordance with the law; or

(b)failed to impose a sentence that the Court legally should have imposed; the Court (whether or not differently constituted) may reopen the proceeding."

Thomas J. pointed out that the jurisdiction under s. 188 arose, in the case in question, only if the sentence was "not in accordance with law". His Honour said, in effect, that a factual error was not enough. It was apparently not argued that there was jurisdiction apart from s. 188 to correct a sentence based on a factual error and the judge apparently assumed such a jurisdiction not to exist.

In Craig [1989] 2 Qd.R. 200, Williams J. held that a Supreme Court judge then had jurisdiction, limited in time, to resentence on the ground which is presently raised - i.e. on the basis that the original sentence was based on wrong information about the offender’s criminal history. His Honour held that the jurisdiction might be exercised at any time during the relevant 4 sittings, following Nam and Sansbury (1968) S.A.S.R. 107. As to the position in Tasmania, we refer to Bruce (1971) Tas.S.R. 22.

The parties in this case did not argue the question whether the jurisdiction the Supreme Court was held to possess in Craig survived the passage of the Penalties and Sentences Act 1992 and in particular did not discuss the possible application of s. 8 of the Supreme Court of Queensland Act 1991, in such a situation: see Pettigrew (C.A. No. 364 of 1995, C.A. No. 466 of 1995, 19 July 1996).  The only question argued was whether, on the assumption that prior to 1992 the District Court had the jurisdiction held (in Craig) to be possessed by the Supreme Court, it presently has such jurisdiction.  It should be noted that what is in issue is not the correction of a mere clerical or mechanical mistake, but an error of substance.  The sentence recorded was precisely that which the court intended; further, it was one which was unaffected by legal error.

Mr Byrne Q.C. for the Attorney-General pointed out that the Penalties and Sentences Act 1992 is not a complete sentencing code; important provisions relevant to the sentencing process are to be found elsewhere, for example, in the Corrective Services Act 1988 and the Juvenile Justice Act 1992. The question to be determined is whether s. 188, although not appearing in a comprehensive code of sentencing practice, should be "construed so as to oust the inherent jurisdiction": Harrison v. Tew [1990] 2 A.C. 523 at 534; see also Coles v. Burke (1987) 10 N.S.W.L.R. 429 at 437.

Here, there is no doubt that on 15 May 1996 the sentencing process was completed. But if the Crown argument is accepted, then the District Court has power to re-open the sentencing process, where the sentence imposed was based on a misapprehension as to the facts. Considerations of policy may be urged for and against the existence of such a power; it appears to us that the problem is best approached by inquiring whether the intention of the legislature was to prescribe, by s. 188 of the Penalties and Sentences Act 1992, only in part the circumstances in which, the court having completed its sentencing process and the exact sentence intended having been recorded, the sentence may be re-opened on the ground that an error of substance has been made.

It seems to us improbable that the legislature wished to preserve in parallel, so to speak, with the power of re-opening given by s. 188(2), a power to re-open on the ground of factual error a completed sentencing process. It will be noted that in subs. 3 of s. 188, the nature of the power and the procedure to be followed are further defined, and that in subs. 4 and subs. 5 the question of time limits for a re-opening application is dealt with. It is unlikely that the law relating to the time limits applicable to re-opening for legal error should have been intended to be quite different from that applicable to re-opening for factual error. More generally, one would have expected that, if s. 188 was not intended to cover the whole ground of re-opening a completed sentencing process on the ground of error of substance (other than that in the Magistrates Court), there would have been some indication to that effect in the section, or elsewhere in the Act. But as was pointed out at the hearing in this Court, s. 3(a) of the Penalties and Sentences Act 1992 sets out as a purpose of the Act "collecting into a single Act general powers of courts to sentence offenders", which supports the idea that an attempt has been made to treat the whole subject, except as to matters specifically covered by other statutory provisions.

It is desirable to add that the Penalties and Sentences Act 1992 might with advantage contain power to do what we have held, in this judgment, cannot presently be done. The Parliament might be asked to consider an amendment of s. 188 so as to enable the correction of a sentence (within some suitable time limit), where the original sentence has been based on a clear factual error.

Our conclusion, then, is that the learned primary judge was right in his view that there was no power, in the circumstances we have explained, to resentence Ms Woodford.  We would therefore discharge the order nisi made on 23 May 1996.