Colin Dunstan v The Queen

[2003] ACTCA 22

COLIN DUNSTAN v THE QUEEN [2003] ACTCA 22 (27 November 2003)

EX TEMPORE JUDGMENT

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 19-2003
No. SCC 104 of 1999

Judges:         Crispin P, Connolly and Gyles JJ
Court of Appeal of the Australian Capital Territory
Date:            3 November 2003

IN THE SUPREME COURT OF THE       )          No. ACTCA 19-2003
  )          No. SCC 104 of 1999
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:COLIN DUNSTAN

Appellant

AND:THE QUEEN

Respondent

ORDER

Judges:  Crispin P, Connolly and Gyles JJ
Date:  3 November 2003
Place:  Canberra

THE COURT ORDERS THAT:

1. the appeal be dismissed.

IN THE SUPREME COURT OF THE       )          No. ACTCA 19-2003
  )          No. SCC 104 of 1999
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:COLIN DUNSTAN

Appellant

AND:THE QUEEN

Respondent

Judges:  Crispin P, Connolly and Gyles JJ
Date:  3 November 2003
Place:  Canberra

EX TEMPORE REASONS FOR JUDGMENT

CRISPIN P:

1. Having considered Mr Dunstan’s submissions I am nonetheless of the opinion that neither the general power provided by s 180 of the Legislation Act nor any other general statutory power authorised his Honour to revisit a sentence previously imposed and in relation to which he was functus officio.

1. Whatever the precise ambit of s 180 of the Legislation Act, it does not in my opinion extend to authorising an application for relief of that kind.  It follows that in my opinion the matter was not properly before the Chief Justice when he dealt with the matter on 29 May 2003 and it is therefore unnecessary for the Court to embark upon any examination of the particular issues raised before his Honour.

1. In my opinion, his Honour was correct to reject the application that was then before him.  I am not satisfied that any appellable error has been demonstrated.  Accordingly I would dismiss the present appeal.

I certify that the preceding paragraphs numbered one (1) to three (3) are a true copy of the Reasons for Judgment herein of his Honour, President Crispin.

Associate:

Date:     27 November 2003

IN THE SUPREME COURT OF THE       )          No. ACTCA 19-2003
  )          No. SC 104 of 1999
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:COLIN DUNSTAN

Appellant

AND:THE QUEEN

Respondent

Judges:  Crispin P, Connolly and Gyles JJ
Date:  3 November 2003
Place:  Canberra

EX TEMPORE REASONS FOR JUDGMENT

CONNOLLY J:

1. I would also dismiss the appeal. I am of the view that s 180 of the Legislation Act does not amount to a revisiting of the general proposition that a sentencing judge having imposed a sentence is functus, that’s a longstanding principle of law confirmed by the Full Court of the Federal Court.

1. I would only add that it confirms that view that in 2001 in a piece of legislation - the Rehabilitation of Offenders (Interim) Act - there is an express power granted to a sentencing judge who errs in failing to set or failing to properly set a non-parole period whereby the court may correct that error on the application of the President or the Attorney-General, the Director of Public Prosecutions or the Secretary of the Parole Board.

1. That clear provision in s 31(7) would clearly be unnecessary and inappropriate if the view of s 180 that you were advancing was correct, that it seems to me only confirms the view that s 180 whatever it does, does not vary the longstanding proposition that a sentencing judge having sentenced is functus.  On that basis I agree with what the President says.  His Honour the Chief Justice did not fall into error.

I certify that the preceding paragraphs numbered four (4) to six (6) are a true copy of the Reasons for Judgment herein of his Honour, Justice Connolly.

Associate:

Date:     27 November 2003

IN THE SUPREME COURT OF THE       )          No. ACTCA 19-2003
  )         No. SC 104 of 1999
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROMA JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:COLIN DUNSTAN

Appellant

AND:THE QUEEN

Respondent

Judges:  Crispin P, Connolly and Gyles JJ
Date:  3 November 2003
Place:  Canberra

EX TEMPORE REASONS FOR JUDGMENT

GYLES J: 

1. Yes I agree, there is an established appellate structure in this Territory in relation to criminal cases and the general kind of provision to which appeal is made here would not affect that appellate structure absent express legislative intervention.  I see none in the present case.  It is therefore not only unnecessary but inappropriate for this Court to say anything about the substance of the point, or points, which are sought to be now made.  If they have any life at all they would have to be exercised by way of appeal.

I certify that the preceding paragraph number seven (7) is a true copy of the Reasons for Judgment herein of his Honour, Justice Gyles.

Associate:

Date:     27 November 2003

Counsel for the Appellant:  Self represented

Counsel for the Respondent:  Mr R Refshauge SC

Solicitor for the Respondent:  ACT Director of Public Prosecutions

Date of hearing:  3 November 2003

Date of judgment:  3 November 2003