Barrett v Director of Public Prosecutions

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Barrett v Director of Public Prosecutions [2006] NSWCCA 210

FILE NUMBER(S):
2005/2398

HEARING DATE(S): 7 February 2006

DECISION DATE: 14/07/2006

PARTIES:
Stephen Barrett - Appellant
Director of Public Prosecutions - Respondent

JUDGMENT OF: Hunt AJA Adams J Latham J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/62/0283

LOWER COURT JUDICIAL OFFICER: Phegan DCJ

COUNSEL:
AC Haesler SC - Appellant
RD Cogswell SC/L Judd - Respondent

SOLICITORS:
S O'Connor - Appellant
S Kavanagh - Respondent

CATCHWORDS:
Criminal Law: revocation of s 12 bond where sentence originally imposed contrary to law; whether Magistrate exercising power under s 43 Crimes (Sentencing Procedure) Act 1999 when imposing different sentence after revocation; whether revocation appealable under s 11 Crimes (Local Courts Appeal and Review) Act 2001

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999
Crimes (Local Courts Appeal and Review) Act 2001
Criminal Appeal Act 1912

DECISION:
Time for filing Stated Case extended to 30 November 2005
The Court answers Question 1: "Does not arise"
The Court answers Question 2 (by majority) : "Does not arise".

JUDGMENT:

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF CRIMINAL APPEAL

2005/2398
HUNT AJA
ADAMS J
LATHAM J
14 JULY 2006

BARRETT v DIRECTOR OF PUBLIC PROSECUTIONS
Judgment

HUNT AJA: This is a Stated Case initiated by Stephen Barrett, the defendant in proceedings in the Local Court. On 25 February 2004, he pleaded guilty to a charge of break enter and steal before Magistrate Moon, who imposed a sentence of imprisonment for twelve months, suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999 for a period of twelve months on condition that he enter into a good behaviour bond for that period. A condition of that bond was that he accept the supervision of the Probation and Parole Service and obey all reasonable directions, particularly in relation to drink and alcohol counselling. He was ordered to pay compensation of $400.
When the magistrate imposed the sentence of imprisonment for twelve months, he did not, as required by s 44(1) of the Crimes (Sentencing Procedure) Act, set a non-parole period for the sentence, nor did he, as required by s 45(2) of that Act, record his reasons for not setting a non-parole period. It seems that, at the time the sentencing process was undertaken in the present case, it was believed by some judicial officers that s 44(1) did not apply to a sentence of imprisonment which had been suspended pursuant to s 12 of that Act, and that it was not until the sentence was no longer suspended that the obligation under s 44(1) to set a non-parole period arose.
That belief was held by this Court to be wrong in Regina v Tolley [2004] NSWCCA 165. Howie J (with whom Hodgson JA and Levine J agreed) pointed out (at [24]–[25]) that it was expressly made clear by s 12(3) that a non-parole period had to be set at the time the sentence was imposed notwithstanding that the sentence had been suspended.
The defendant did not comply with the terms of his bond, in that he recommenced drinking alcohol, notwithstanding his attendance at an alcohol rehabilitation centre, and he failed to attend an appointment with the Probation and Parole Service. He was arrested and came before Magistrate Moon on 11 August 2005. The breach was admitted and, without giving the defendant the opportunity to be heard on what should be done in relation to the sentence, the magistrate revoked the bond and imposed a sentence consisting of a non-parole period of nine months with a balance of three months. The Stated Case describes this sentence as having been imposed "in lieu of the original 12 months sentence".
The defendant filed a notice of appeal on 20 August 2005, and the appeal came on for hearing before Judge Phegan in the District Court on 22 September. The Crown submitted that the notice of appeal was out of time, being outside the twenty-one days limit imposed by s 11 of the Crimes (Local Courts Appeal and Review) Act 2001, and outside the three months limit imposed by s 13 of that Act within which leave to appeal out of time may be sought. This submission necessarily assumes that the appeal was against the sentence of imprisonment for twelve months imposed by the magistrate on 25 February 2004.
In response, the defendant submitted that s 3 of the Crimes (Local Courts Appeal and Review) Act gave him the right to appeal from the revocation by the magistrate on 11 August 2005, and thus was in time. This submission was based on the argument that the magistrate had on that date imposed a different penalty to that originally imposed, having power to do so pursuant to s 43 of the Crimes (Sentencing Procedure) Act.
The judge accepted the submissions by the Crown and dismissed the appeal, on the basis that the District Court did not have jurisdiction to hear it. At the request of the defendant, he then stated the following questions for the determination of this Court:
1.Where a Local Court has reopened proceedings (s 43 Crimes (Sentencing Procedure) Act 1999) and then imposed a penalty, is that penalty able to be appealed pursuant to s 11 Crimes (Local Courts Appeal and Review) Act 2001?
2.Where a Local Court has revoked a s 12 Crimes (Sentencing Procedure) Act 1999 bond, is the decision to revoke and any consequent orders able to be appealed pursuant to s 11 Crimes (Local Courts Appeal and Review) Act 2001?
Section 43 of the Crimes (Sentencing Procedure) Act provides:
Court may reopen proceedings to correct sentencing errors
(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 a periodic detention 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 sentence imposed by the magistrate on 25 February 2004 without setting a non-parole period (as required by s 44) or recording his reasons for not doing so (as required by s 45) was a "penalty that is contrary to law" and could be reopened pursuant to s 43: Regina v Tolley at [25]. The magistrate’s failure to comply with those statutory provisions did not, however invalidate the sentence imposed (ss 44(3), 45(4)), so the warrant under which the defendant was placed in custody remains valid.
The Director has argued that, notwithstanding that it was open to the magistrate on 11 August 2005 to proceed pursuant to s 43 to correct the sentence he had imposed on 25 February 2004, he did not in fact do so. Apparently still unaware of Regina v Tolley, the magistrate proceeded in the mistaken belief that he was entitled to set a non-parole period once the bond had been revoked and the sentence was no longer suspended. Moreover, as s 43 is couched in discretionary terms, the magistrate was obliged to excise a discretion before reopening the original sentence, and he clearly did not purport to do so.
In my opinion, the Director's argument is correct. The first question for this Court's determination therefore does not arise. As to whether the second question arises — whether an appeal lies against the revocation of a s 12 bond leading to the sentence being no longer suspended — depends on an examination of the legal effect of what the magistrate did on 11 August 2005.
In my opinion, it was not open to the magistrate at that late stage to do what he should have done on the 25 February 2004 without first reopening that sentence in order to correct it. It follows that what the magistrate did on 11 August 2005 was either once more to impose “a penalty that is contrary to law” or, as the Stated Case has described it, to impose a fresh sentence “in lieu of” that which he believed he had imposed on 25 February 2004. The difficulty with the second alternative is that the magistrate did not purport to consider the sentence anew. He clearly accepted the total sentence of twelve months which he had previously imposed as still standing, and he merely purported to set a non-parole period. It follows that the magistrate once more imposed a penalty that is contrary to law. Moreover, as he failed to give the defendant the opportunity to be heard in relation to the non-parole period, it would be open to the defendant to seek prerogative relief from the Supreme Court if the non-parole period had been set in accordance with the law. As it was not, the second question for determination also does not arise.
The Director has submitted that what the defendant has to do now is to return to the magistrate and request him to reopen the sentence imposed on 25 February 2004 and, if the magistrate then reimposes the sentence consisting of a non-parole period of nine months with a balance of three months, he can appeal to the District Court within time. It is an unfortunate consequence of the magistrate's failure to comply with the statutory provisions to which reference has been made, but it seems to me to be an unavoidable consequence.
The Stated Case was filed out of time. The Director does not object to an extension of time being granted. I would therefore extend the time for filing the Stated Case to 30 November 2005. I propose that each question be answered: “Does not arise”.
Since drafting this judgment, I have read in draft the judgment prepared by Latham J. Although in my opinion the second question does not arise for determination in these proceedings, I agree with her opinion that an appeal against the revocation of a s 12 bond (so that the original sentence is no longer suspended) does not lie to the District Court pursuant to s 11 of the Crimes (Local Courts Appeal and Review) Act, because such a revocation is not a “consequence” of the conviction. A revocation of a s 12 bond does not follow as either the effect or the result of the conviction. The conviction is no more than a sine qua non of the revocation.
ADAMS J: I agree with Hunt AJA

LATHAM J: This matter comes before the Court by way of a stated case pursuant to s 5B of the Criminal Appeal Act 1912. Two questions of law have been framed for the Court’s determination. They are:-
i)Where a Local Court has re-opened proceedings (s43 Crimes (Sentencing Procedure) Act 1999) and then imposed a penalty, is that penalty able to be appealed pursuant to s11 Crimes (Local Court Appeal and Review) Act 2001.
ii)Where a Local Court has revoked a s12 Crimes (Sentencing Procedure) Act 1999 bond, is the decision to revoke and any consequent orders, able to be appealed pursuant to s11 Crimes (Local Court Appeal and Review) Act 2001.
The background to these proceedings commenced with the appellant’s arrest for an offence of Break, Enter and Steal, committed in Temora on 24 May 2003. The appellant pleaded guilty at Temora Local Court and was sentenced on 25 February 2004 to 12 months’ imprisonment, suspended pursuant to s 12 Crimes (Sentencing Procedure) Act 1999. No non-parole period was specified. A condition of the bond was that he accept the supervision of the Probation and Parole Service and obey all reasonable directions, particularly in relation to drug and alcohol counselling.
The appellant breached the bond and a warrant issued for his arrest on 31 August 2004. The appellant came before Cowra Local Court on 11 August 2005, at which time he admitted the breach. The Magistrate then revoked the bond and “imposed” a sentence of 12 months’ imprisonment with a non-parole period of 9 months.
The appellant lodged a Notice of Appeal on 20 August 2005 to the District Court, against the sentence imposed by the magistrate on 11 August 2005. On 22 September 2005 at Orange District Court, Phegan DCJ acceded to the Crown submission that the appeal was out of time and dismissed the appeal. The basis of the Crown’s submission was that the decisions of this Court in R v Graham [2004] NSWCCA 420 ; (2004) 62 NSWLR 252 and R v Tolley [2004] NSWCCA 165 inferentially established that, following the revocation of a s 12 bond, the “imposition” of a custodial penalty is neither a sentence nor a re-sentencing for the purposes of s 11 of the Crimes (Local Courts Appeal and Review) Act 2001. The sentence against which an appeal did lie was the sentence of 25 February 2004.
Phegan DCJ stated the case on 29 November 2005, following considerable delays in the provision of the relevant transcripts to the appellant’s counsel. An extension of time within which to file the proceedings in this Court is required and is not opposed by the Crown.
The framing of the first question proceeded from the appellant’s argument before Phegan DCJ in an attempt to overcome the obstacles identified by the Crown. The appellant submits that in imposing the 12 months term and 9 months non-parole period on 11 August 2005, the magistrate was acting under s 43 of the Crimes (Sentencing Procedure) Act 1999. That section allows a court to re-open proceedings to correct an error, either where the imposition of a penalty is contrary to law or where the court has failed to impose a penalty that is required to be imposed by law. The reference to “penalty” in the section “is to be read as widely as possible to include any necessary part of the sentence imposed”, including the non-parole period; Erceg v District Court (NSW) (2004) 143 A Crim R 455 at 475, per McColl JA.
It is said that when the magistrate imposed the suspended sentence on 25 February 2004, he failed to comply with s 44 of the Crimes (Sentencing Procedure) Act and thereby fell into error in the sense identified by s 43.
Section 44(1) requires a court to first set a non-parole period. Section 45 allows a court to decline to set a non-parole period. However, reasons for so declining must be given (s 45(2)). No reasons were provided by the magistrate for failing to specify a non-parole period. Indeed, there is nothing in the transcript of the proceedings which touches upon the question of a non-parole period or special circumstances. It is that error which the magistrate is purportedly correcting on 11 August 2005.
For my part, it is not altogether clear that the magistrate did not intend to decline to set a non-parole period. The failure to provide reasons is one indication of a failure to address the requirements of s 44 of the Crimes (Sentencing Procedure) Act, but the magistrate explicitly warned the appellant that a breach of the bond would result in a gaol term of 12 months. As against that, this Court’s decision in R v Tolley was not handed down until 3 months after the appellant was given the benefit of the suspended sentence. The operation of s 12 and the requirement to comply with ss 44, 45, 46 and 49 of the Crimes (Sentencing Procedure) Act, elucidated by Howie J’s judgment were perhaps not appreciated by some judges in the District Court (as Tolley demonstrates) and some magistrates in the Local Court. The Crown submissions and the appellant’s submissions on this appeal conceded as much.

I accept therefore that a penalty contrary to law was imposed on 25 February 2004 and that s 43 permitted the re-opening of the proceedings: R v Tolley at par 25.
Be that as it may, it does not follow that the discretion found in s 43(2) was being exercised by the magistrate on 11 August 2005. No reference was made to any error attending the earlier proceedings, no submissions were made as to the length of any non-parole period and no reference to s 43 appears from the transcript. The submissions of the appellant’s then legal representative and the magistrate’s references to the breach of the bond all point to the procedure mandated under s 98(2) and (3) and s 99(1)(c) of the Crimes (Sentencing Procedure) Act.
However, the argument in this Court proceeded along these lines; the Magistrate was not mindful of an exercised of power under s 42, but given that the only jurisdiction to correct the error inherent in failing to impose a non-parole period resides in s 43, this Court should determine that that was the jurisdiction exercised.
I do not accept that this Court ought adopt what is essentially a fiction. In my view, the Magistrate was operating on the assumption (wrong though it may have been) that upon revocation of the s 12 bond, he had the power at that stage to impose a non-parole period. He may well have had regard to s 99(1)(c) of the Crimes (Sentencing Procedure) Act which refers to the requirements of Part 4 and the setting of a non-parole period. A misconstruction of s 99 does not fundamentally change the nature of the proceedings on 11 August 2005.
For these reasons, I consider that Question 1 does not arise.

The second question raises more problematic issues concerning the construction to be given to relevant provisions in the Crimes (Local Courts Appeal and Review) Act 2001.
Section 11 of the Crimes (Local Courts Appeal and Review) Act grants an appeal as of right from the Local Court to the District Court to any person who has been convicted or sentenced. Section 3 of the Act defines "sentence" to mean (relevantly) :-
(a) any order made by a Local Court in respect of a person as a consequence of its having convicted the person of an offence, including :
(i) any sentence of imprisonment ( …) and
(ii) any community service order, good behaviour bond or fine, and
(iii) any order suspending execution of a sentence of imprisonment under section 12 of the Crimes (Sentencing Procedure) Act 1999,
(iiia) any non-association order or place restriction order under section 17A of the Crimes (Sentencing Procedure) Act 1999, and
(iv) any direction for compensation under section 71 or 77B of the Victims Support and Rehabilitation Act 1996, and
(v) any order or direction with respect to restitution, compensation, forfeiture, destruction, disqualification or loss or suspension of a licence or privilege, or
(b) any order made by a Local Court in respect of a person under section 10 or 11 of the Crimes(Sentencing Procedure) Act 1999 on finding the person guilty of an offence, or
(c) any order for restitution made by a Local Court in respect of a person under section 43 of the Criminal Procedure Act 1986, or
(d) any order for costs made by a Magistrate against a person in connection with committal proceedings taken against the person, or
(e) any order for costs made by a Local Court against a person in connection with summary proceedings taken against the person.

The appellant submits that an order by a Local Court revoking a section 12 bond and the sentence “imposed” following revocation is an order "in respect of a person as a consequence of its having convicted the person of an offence". According to this broad construction, the phrase in italics above encompasses any order that is made after conviction, that is, the order has no more than a temporal relationship to the conviction, as opposed to a causal one. Therefore, an appeal lies to the District Court from the revocation of the section 12 bond on 11 August 2005 simply because the revocation came after conviction. The appellant is driven to this construction in order to overcome the obvious response, namely that the revocation of the bond is not causally related to the conviction, rather it is arises directly out of proof of a breach and the exercise of powers under section 98(2) and (3) of the Crimes (Sentencing Procedure) Act.
I note in passing that the appellant seeks to distinguish this Court's decisions in Tolley and Graham on this aspect of the stated case on the basis that they were each concerned with the scope of an appeal from the District Court to this Court pursuant to the Criminal Appeal Act 1912. To the extent that a right of appeal against a revocation was doubted in the course of Beazley JA’s judgment in Graham (at 261), those remarks were obiter and the question ultimately remained unanswered. In any event, her Honour addressed her remarks to the ambit of the definition of "sentence" in section 2 of the Criminal Appeal Act.
In my view, the appellant's construction of section 3 of the Crimes (Local Courts Appeal and Review) Act does not stand up to scrutiny. The "orders" referred to in s 3(a) all directly arise from, or are causally related to, a conviction, whereas the “orders” referred to in (b), (c), (d) and (e) may be made independently of a conviction. The phrase "as a consequence of" should be accorded its ordinary meaning. According to the Oxford English Dictionary (2nd Ed), a consequence is “a thing or circumstance which follows as an effect or result from something preceding”. The revocation of a s 12 bond does not follow as an effect or result of the conviction recorded against the offender ; it is the effect or result of the satisfaction required under s 98(2) and (3) of the Crimes (Sentencing Procedure) Act (that the offender has failed to comply with a condition of the bond and the breach was not trivial) and the rejection of the alternatives to revocation. Similarly, following revocation, a sentence previously imposed and suspended takes effect : Tolley. To the extent that any “order” is made by a Magistrate re-activating the sentence, it is not made as a result of conviction, rather it is made as a result of the revocation.
Accordingly, I would answer the second question “No”.
Whilst not necessary to a resolution of the matter before the Court, I merely observe that, as the Crown has rightly submitted, it is open to the appellant to seek to re-open the sentence proceedings of 25 February 2004 pursuant to s 43 of the Crimes (Sentencing Procedure) Act for the reasons outlined above. Such a course would allow for an appeal to the District Court from the penalty imposed according to the law, pursuant to s 43(4).
I would extend the time for the filing of the proceedings in this Court, pursuant to s 5B(2) of the Criminal Appeal Act.
I would answer the first question: “Does not arise”.
I would answer the second question “No”.

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LAST UPDATED: 14/07/2006

[2006] NSWCCA 210

14 July 2006