Gelle v Director of Public Prosecutions (NSW)

[2017] NSWCA 245

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Gelle v Director of Public Prosecutions (NSW) [2017] NSWCA 245

Hearing dates:

18 September 2017

Decision date:

27 September 2017

Before:

Basten JA at [1];
Leeming JA at [35];
White JA at [96]

Decision:

1. Dismiss the proceedings brought by the applicant.

 

2. Order that the applicant pay the costs of the Director of Public Prosecutions in this Court.

3. If the grant of bail to the applicant made on 18 September 2017 does not now cease to have effect pursuant to s 12(1)(b) of the Bail Act 2013, bail is hereby revoked.

Catchwords:

JUDICIAL REVIEW – supervisory jurisdiction – judgment of District Court on appeal from Local Court – criminal jurisdiction – challenge to conviction – challenge to sentence of imprisonment to be served by way of intensive correction order – whether District Court had failed to rehear the proceedings – whether denial of procedural fairness in re-imposing further sentence imposed in Local Court – whether jurisdictional error established

CRIME – appeal – procedure – nature of rehearing in District Court – sentence of imprisonment to be served by way of intensive correction order – how stay on execution of sentence effected by Crimes (Appeal and Review) Act 2001 (NSW) s 63 and Supreme Court Act 1970 (NSW) s 69C

Legislation Cited:

Bail Act 2013 (NSW), s 12
Crimes (Administration of Sentences) Act 1999 (NSW), ss 83, 90, 91, 162, 164, 254; Pt 3, Div 3
Crimes (Appeal and Review) Act 2001 (NSW), ss 5, 11, 17, 18, 19, 20, 28, 63, 68
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 7, 12, 69, 71; Pt 2, Divs 2, 3
Crimes Act 1900 (NSW), ss 61N, 447A
Criminal Appeal Act 1912 (NSW), s 18
District Court Act 1973 (NSW), s 176
Supreme Court Act 1970 (NSW), ss 69, 69A, 69B, 69C, 69D

Cases Cited:

AG v Director of Public Prosecutions (NSW) [2015] NSWCA 218
Firth v Director of Public Prosecutions [2013] NSWCA 403
Garde v Dowd (2011) 80 NSWLR 620; [2011] NSWCA 115
Hansell v Director of Public Prosecutions (NSW) [2016] NSWCA 311
Lazarus v Independent Commission Against Corruption [2017] NSWCA 37
McKellar v Director of Public Prosecutions (NSW) [2011] NSWCA 91
Morgan v District Court of New South Wales [2017] NSWCA 105
Parker v Director of Public Prosecutions (1992) 28 NSWLR 282
The Queen v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170; [1981] HCA 74
Whan v McConaghy (1984) 153 CLR 631; [1984] HCA 22
Whiteside v Director of Public Prosecutions [1999] NSWCA 454
Yousaf v Director of Public Prosecutions [2012] NSWCA 397

Category:

Principal judgment

Parties:

Warren Douglas Gelle (Applicant)
Director of Public Prosecutions (NSW) (First Respondent)
District Court of NSW (Second Respondent)

Representation:

Counsel:
G James QC; WS Tuckey (Applicant)
A Mitchelmore (First Respondent)

  Solicitors:
Macquarie Lawyers Burwood (Applicant)
Director of Public Prosecutions (NSW) (Second Respondent)

File Number(s):

2016/314893

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

27 June 2016

Before:

Colefax DCJ

File Number(s):

2014/156526

Judgment

1. BASTEN JA: The applicant, Warren Douglas Gelle, was convicted in the Local Court of committing an act of indecency towards a person of or above the age of 16 years, an offence which was said to have occurred while the complainant was waiting at a bus shelter at Rouse Hill. The offence occurred on 10 May 2014. The applicant was sentenced to a term of 12 months imprisonment which was to be served by way of an intensive correction order (ICO). The order was stated to commence on 12 June 2015, being the date on which it was imposed. The order ran, absent revocation, until the end of the sentence to which it related. [1]

   1. Crimes (Administration of Sentences) Act 1999 (NSW), s 83.

2. On 16 June 2015 the applicant lodged an appeal to the District Court. The matter was listed for hearing in the District Court at Parramatta on 8 February 2016. At that stage the applicant was represented. The order was not stayed by the lodging of the appeal. It was then thought that as the applicant had not been complying with the terms of the order a warrant may have issued. On 8 February 2016 Judge Colefax made three orders, being (i) a stay of the orders made by the Local Court; (ii) an order setting aside any warrant issued for the arrest of the applicant, and (iii) an order granting bail on three conditions including that the applicant be of good behaviour, reside at a specified address and not enter the area where the offending was said to have occurred.

3. On 27 June and 23 September 2016 the appeal was heard by Colefax DCJ. What happened then and thereafter will be addressed below; it is presently sufficient to say that the judge dismissed the appeal against conviction and “confirmed” the conviction. He also allowed the appeal against sentence, but imposed a further sentence of imprisonment for 12 months, to be served by way of an intensive correction order, with a commencement date of 23 September 2016. (The “Court Order Notice” stated both that sentence was to commence on 26 September 2016 and on 23 September 2016; however, as at that date s 71 of the Crimes (Sentencing Procedure) Act 1999 (NSW) provided that an ICO “commences on the date on which it is made.”)

4. The matter before this Court (in its supervisory jurisdiction) is an application to set aside the judgment and orders of the District Court. For reasons noted by Leeming JA, this Court can only interfere if jurisdictional error is established on the part of the District Court judge. For the reasons given by Leeming JA, I agree that the conviction is not attended by such an error. The situation with respect to the sentences imposed by the District Court judge is more complicated and is addressed below.

Review of sentence

5. The statutory provisions relating to an appeal from the Local Court to the District Court with respect to a sentence imposed by a magistrate should be simplicity itself. They start well. An appeal against sentence is said to be “by way of a rehearing of the evidence given in the original Local Court proceedings, although fresh evidence may be given in the appeal proceedings.”[2] The powers of the court are simply stated as being to determine the appeal, “(a) by setting aside the sentence, or (b) by varying the sentence, or (c) by dismissing the appeal.”[3]

   2. Crimes (Appeal and Review) Act 2001 (NSW) (“Appeal and Review Act”), s 17.

   3. Appeal and Review Act, s 20(2).

6. Before turning to the orders in fact made in the District Court, it is convenient to note two other provisions of the Appeal and Review Act. First, there is a general provision relating to the execution of sentences pending appeal, namely s 63. So far as relevant, that provision reads:

63   Stay of execution of sentence pending determination of appeal

(1)   This section applies to:

(a)   any sentence, …

…

in respect of which an appeal or application for leave to appeal is made under this Act.

(2)   The execution of any such sentence … is stayed:

(a)   except as provided by paragraphs (b) and (c), when notice of appeal is duly lodged, or

(b)   in the case of an appellant whose appeal is the subject of an application for leave, when leave to appeal is granted, or

(c) in the case of an appellant who is in custody when the appeal is made or leave to appeal is granted, when the appellant is entitled to be released from custody on bail under section 14 of the Bail Act 2013 or bail is dispensed with under that Act.

…

(3)   Subject to any order of the appeal court, a stay of execution continues in force until the appeal is finally determined.

(4)   Such an order is to be made only if the appeal court is satisfied, in proceedings on an application by the prosecutor, that the appellant has unduly delayed the appeal proceedings.

(5)   In this section, a reference to an appellant who is in custody includes a reference to a person who is the subject of an intensive correction order or home detention order within the meaning of the Crimes (Administration of Sentences) Act 1999.

7. Because the Local Court imposed a term of imprisonment subject to an ICO, the applicant was a person “who is in custody” for the purposes of s 63(2)(c), when the appeal was lodged, as provided in subs (5). Accordingly, the execution of the sentence was not stayed pending the appeal until he entered into a bail undertaking. That occurred on 8 February 2016; by then some 241 days had passed since the commencement of the ICO, or about two-thirds of its full term.

8. It seems likely that the treatment in s 63(5) of a person subject to an ICO as a person in custody seeks consistency with Pt 2 of the Crimes (Sentencing Procedure) Act, which includes intensive correction orders in Div 2 “Custodial sentences” (see s 7); on the other hand, suspended sentences of imprisonment (s 12) are in Div 3 “Non-custodial alternatives”. Nevertheless, the disparate treatment remains puzzling and led to the applicant apparently disregarding with impunity even the limited obligations imposed by the ICO.

9. The second provision of relevance is s 68 which provides:

68   Court may confirm or vary conviction or sentence with effect from earlier day

(1)   An appeal court may order that a conviction or sentence confirmed or varied by it on appeal, or any part of it:

(a)   is to take effect (as confirmed or varied) on and from a day specified in the order, or

(b)   in the case of a sentence that has been served in part, is to recommence (as confirmed or varied) on and from a day specified in the order,

being the day on which the order is made or an earlier day.

…

(2)   The order has effect despite any stay of execution that has been in force in respect of the sentence appealed against.

10. Pursuant to s 63(3), the statutory stay will automatically lift when the appeal is finally determined. The apparent purpose of s 68 is to allow the stay to be lifted from an earlier day to give the offender credit for any part of the sentence which has already been served.

Validity of sentencing in District Court – procedural unfairness

11. The submissions on behalf of the applicant were primarily directed to an alleged breach of procedural fairness, which had two elements. The first depended on a judgment given on 27 June 2016 in which the primary judge described the term of imprisonment as “somewhat severe” and expressed the view that it should be “10 months”, rather than 12 months. [4] It was submitted that the primary judge did not thereafter indicate, when the matter came back before him on 23 September 2016, that he intended to adopt the sentence imposed in the Local Court, namely 12 months imprisonment. The second aspect of the unfairness was said to derive from the fact that a new sentence was imposed, expressed to date from 26 September 2016, the applicant being given no opportunity to support a 10 month sentence and a starting date which gave credit for the period during which he had been subject to the earlier ICO. The applicant referred to the decision of this Court in Parker v Director of Public Prosecutions in support of the alleged unfairness. [5]

    4.    Judgment, 27 June 2016, p 2.

    5. (1992) 28 NSWLR 282 (Kirby P, Handley and Sheller JJA).

12. For the reasons given by Leeming JA, I do not believe there was any procedural unfairness; given the purpose of the adjournment to obtain an updated report on his eligibility for an ICO and given the manner in which the case proceeded on 23 September, the applicant had ample opportunity to make submissions on the aspects of the sentencing order which were then discussed. The prosecutor expressly sought a 12 month sentence, to which the applicant’s legal representative made no response; it cannot be said that he had no opportunity to do so.

Validity of sentence

13. Although not raised by the applicant, there was a separate question in relation to the validity of the order, namely as to whether it was intended to achieve an extraneous purpose and may inadvertently have placed the applicant at risk of double jeopardy. Because it is relevant to the orders which should be made by this Court, the issue should be exposed.

14. There are two material factors underlying this concern. The first is that the applicant was for about eight months subject to an ICO imposed by the Local Court which had not been stayed. To impose a new ICO with a fresh commencement date was, in effect, to extend the ICO from 12 months to almost 20 months. The second factor is that if he were subject to the ICO for almost eight months without complying with its terms he is at risk of an inquiry conducted by the Parole Authority pursuant to ss 90 and 162 of the Crimes (Administration of Sentences) Act 1999 (NSW). If satisfied that he failed to comply with his obligations under the order, the Parole Authority may revoke the ICO. The revocation order may be back-dated and the offender may be required to serve the balance of the sentence in custody, or be subject to a further ICO. [6] Whether the Parole Authority would in fact take such steps, and what the consequences might be, was not known to the primary judge at the time he imposed the fresh sentence. Further, so far as the evidence before this Court discloses, the primary judge had no information as to whether, and if so to what extent, the applicant had complied with the conditions of the ICO imposed by the Local Court.

    6. Crimes (Administration of Sentences) Act, s 164.

15. The effect of the sentence imposed in the District Court might have been achieved, on one view, by confirming the sentence imposed by the Local Court and varying the date on which it was to commence, or recommence, in accordance with s 68(1), rather than setting the sentence aside and imposing a fresh sentence. On another view, s 68(1) only permitted that course to be taken to the extent that the sentence under appeal had been stayed, either by operation of s 63, or by an order of the District Court. Nevertheless, both on the approach adopted by the primary judge (resentencing) and on a possible order under s 68, the clear purpose would be to ensure that the applicant was subject to an ICO for the full term of a 12 month sentence, on the assumption that the order made in the Local Court had, contrary to the fact, been stayed by the lodging of the appeal.

16. These circumstances are similar to those which arose in Whan v McConaghy. [7] In that case the appellant had been sentenced to a term of imprisonment to commence on a specified date; the sentence was to be served by way of periodic detention. Before he commenced to serve the sentence, he lodged an appeal and was granted bail. Because the sentences had been imposed in the District Court on appeal from the Local Court, the appeal he purported to lodge was incompetent. He then substituted a summons in the supervisory jurisdiction of this Court, as happened in this case. His application was in due course dismissed, but the sentences, which had not been stayed, had by that time expired. In this Court it was ordered by majority that the period on bail should not count as part of his sentences, and the commencement date was varied.

    7. (1984) 153 CLR 631; [1984] HCA 22.

17. In the High Court the joint reasons of Mason, Murphy, Wilson and Deane JJ held: [8]

“The fact that the applicant did not actually commence to serve the sentence of imprisonment did not, in itself, prevent the term of the sentence from commencing to run. In that regard, it is to be recalled that not even escape from custody had the effect, at common law, of preventing a term of imprisonment from continuing to run ….”

8.    Whan at 636.

18. The judgment considered whether the grant and continuation of bail had the effect of staying the sentence. The reasoning continued: [9]

“A stay of execution, as its name implies, operates directly on the judgment or order the subject of the stay. Bail, in the absence of the exercise of any associated or supplementary powers that may be available, merely authorizes the accused person to be at liberty notwithstanding the operation of the sentence. That being so, in the circumstances of the present case, at the time when the Court of Appeal purported to direct that the sentence of the applicant commence on a new and future date, the sentence of three months imposed had already run its term.”

9.    Whan at 638.

19. Finally the joint judgment concluded that this Court “(a) had no inherent jurisdiction to substitute a fresh order of commitment for a sentence which had expired, and (b) had no statutory power, similar to that possessed by the Court of Criminal Appeal, to vary the sentence so as to take account of the period spent on bail.” [10]

    10.    Whan at 639.

20. In the present case, the sentence imposed in the Local Court was stated to commence on a particular date and continued to run for some 241 days. The automatic stay which applies to non-custodial sentences imposed in the Local Court upon lodging an appeal did not apply because this was a custodial sentence. The statutory stay was only engaged when the applicant was granted bail. Consistently with the proposition accepted in Whan, absent some statutory provision to the contrary, the sentence of imprisonment continued to run whether or not the offender was in custody or in fact complying with the ICO. As noted in Whan, [11] there has long been legislation in this State providing that (i) a prisoner who escapes while serving a sentence does not continue to serve the sentence while at large,[12] and (ii) an offender at liberty on bail pending appeal to the Court of Criminal Appeal does not continue to serve his or her sentence. [13] (The Crimes (Administration of Sentences) Act, s 254 extends the term of a sentence of a person who “is unlawfully absent from custody” by the period of such absence, but that Act does not treat a person serving a sentence by way of an ICO as “in custody”: see s 91(1)(b).)

    11.    Whan at 635.

    12. Then found in the Crimes Act 1900 (NSW), s 447A; see now Crimes (Administration of Sentences) Act, s 254.

    13. Criminal Appeal Act 1912 (NSW), s 18(2).

21. The statutory regime in this case differs from that in Whan. The District Court had power to set aside the sentence imposed by the magistrate, or vary it, or dismiss the appeal. [14] It also had power, if it confirmed or varied the sentence, to specify the day on which it took effect. [15] Although the primary judge did not use the power to confirm or vary, he achieved a similar result by allowing the appeal, setting aside the sentence and imposing a new sentence in relevantly similar terms, but commencing on the date the new sentence was imposed.

    14. Appeal and Review Act, s 20.

    15. Appeal and Review Act, s 68.

22. The relevance of Whan in the present case lies in the proposition that absent a relevant statutory provision, a sentence which has commenced to run will not cease to run until it expires. A provision which stays a sentence, or provides that a particular period will not count towards the sentence, reverses that effect. However, until the grant of bail, no provision having that effect was, on the submissions before this Court, engaged in the present case. Accordingly the sentence imposed in the Local Court ran for 241 days.

23. The effect of the resentencing was to allow the Court to disregard that period, as if it had not been part of the sentence imposed in the Local Court. The new sentence treated the old sentence as not having been served in any part. Indeed, that appears to have been the intended purpose of the new sentence. However, arguably that purpose did not constitute a proper exercise of the sentencing power, but rather an extraneous or improper consideration. [16] The sentence imposed by the Local Court had in fact run, and the applicant had been subject to obligations pursuant to it, for two-thirds of its term. Those facts are not removed by setting aside the original sentence. It follows that the sentence imposed in the District Court may have been imposed for an extraneous (and in that sense improper) purpose.

    16. The Queen v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170 at 233 (Aickin J); [1981] HCA 74.

19. The point is illustrated by the concern that a warrant might well have already issued for the arrest of the applicant for non-compliance with the terms of the Local Court ICO. Whether the District Court had power to set aside such a warrant was not addressed, no doubt because no such warrant appears to have issued; the point is that by setting aside on the appeal the sentence imposed by the Local Court, the District Court did not undo retrospectively all that had gone before.

20. However, as this issue was not addressed in the District Court, or in this Court, it provides no basis for setting aside the sentence of the District Court; accordingly I agree with Leeming JA that the application must be dismissed.

Relief

26. There remains a question as to what orders this Court should make in these circumstances. The application for relief in the supervisory jurisdiction of the Court was made pursuant to s 69 of the Supreme Court Act 1970 (NSW). The powers of the Court are referred to in s 69B:

69B   Other powers in relation to claimants for judicial review of convictions and sentences

(1)   In determining proceedings for judicial review in relation to a conviction or sentence for an offence, the Court may make an order quashing either the conviction of, or the sentence imposed on, the claimant, or quash both the conviction and the sentence.

(2)   This section applies to judicial review of orders made by the Local Court or the District Court despite anything contained in the Crimes (Appeal and Review) Act 2001.

27. The issue as to appropriate orders is complicated by the fact that, for reasons analogous to those that applied to the Local Court sentence, the sentence imposed by the District Court was not stayed until, at the hearing of the application in this Court, bail was granted, thus engaging the stay. At that point, the sentence had a mere five days to run. The stay will be automatically lifted by the delivery of this judgment, when bail will be revoked.

28. The statutory provisions giving rise to this result are to be found in ss 69C and 69D of the Supreme Court Act, but it is necessary to refer first to s 69A:

69A   Releases on bail and custody of claimants seeking judicial review of conviction or sentence

(1) This section and section 69B apply to proceedings in the Court by a convicted person (the claimant) seeking judicial review in relation to a conviction or sentence for an offence.

(2)   A claimant who is not released on bail must, pending the determination of the proceedings, be treated in such manner as may be directed by regulations made under the Crimes (Administration of Sentences) Act 1999 (which is referred to in this section as special treatment).

(3)   The time during which a claimant is at liberty on bail (pending the determination of the proceedings for review) does not count as part of any term of imprisonment under the claimant’s sentence.

(4)   The time during which an appellant receives special treatment counts as part of any term of imprisonment under the claimant’s sentence. However, if the Court is satisfied that the claim was unarguable or frivolous, the Court may order that the time in custody with special treatment does not count.

(5)   In determining proceedings for judicial review, the Court may order that the imprisonment under the original sentence of imprisonment is to commence or recommence on a day specified by the Court.

29. Section 69A(3) mirrors s 18(2) of the Criminal Appeal Act in providing that whilst a person seeking judicial review of a sentence is at liberty on bail, that period does not count as part of any term of imprisonment. However, until the applicant was granted bail, that provision did not apply. (So far as appears, there are no relevant regulations governing “special treatment”.)

30. Sections 69C and 69D read as follows:

69C   Stay of execution of conviction, order or sentence pending review

(1) This section and section 69D apply to proceedings in the Court for judicial review of a determination made by the District Court in appeal proceedings relating to a conviction or order made by the Local Court (or part of such a conviction or order) or sentence imposed by the Local Court.

(2)   The execution of the following is stayed when proceedings seeking judicial review are commenced:

(a)   a sentence imposed as a consequence of a conviction,

(b)   any order other than an apprehended violence order under the Crimes (Domestic and Personal Violence) Act 2007.

(3)   Subsection (2) does not apply to a person (the claimant) who is in custody when proceedings seeking judicial review are commenced unless and until the claimant is entitled to be released on bail under the Bail Act 2013, or bail is dispensed with.

(4)   The stay of execution continues until the proceedings for judicial review are finally determined, subject to any order or direction of the Court.

…

(6)   In this section, a reference to a person who is in custody includes a reference to a person who is the subject of an intensive correction order, or home detention order, within the meaning of the Crimes (Administration of Sentences) Act 1999.

69D   Court may confirm conviction or order with effect from an earlier day

(1)   The Supreme Court may order that a conviction, order or sentence that is the subject of proceedings, or any part of it:

(a)   is to take effect on and from a day specified in the order, or

(b)   in the case of a sentence that has been served in part, is to recommence on and from a day specified in the order,

being the day the order is made or an earlier day.

(2)   The order has effect even though a stay of execution may have been in force in respect of the sentence that is the subject of the proceedings.

31. It may be seen that s 69C is to similar effect as s 63 of the Appeal and Review Act (although not in identical terms). Section 69D reflects the terms of s 68 of the Appeal and Review Act. Importantly, this Court now has powers which it did not have when Whan was decided. Nevertheless, to the extent that the Court held in Yousaf v Director of Public Prosecutions [17] that, absent a stay, the offender “has not yet commenced to serve his sentence”, it would be, in my view, a holding based on a misunderstanding of the operation of the statute and should not be followed.

    17. [2012] NSWCA 397 at [50]-[51] (Barrett JA, McColl and Meagher JJA agreeing).

32. One issue is whether, in exercise of the powers set out above, this Court can (and should) vary the starting date of the sentence imposed in the District Court, despite the fact that almost the full term has run without any stay being in place. One reason why the Court might wish to recommence the sentence for a longer period than the outstanding balance is that the applicant is said not to have complied with the conditions of the ICO imposed by the District Court. However, precisely the same problems arise in that regard as arose in the District Court. First, if this Court were to vary the commencement date, without setting aside the sentence imposed in the District Court, the applicant would remain at risk of enforcement proceedings being taken by the Parole Authority, for breach of the obligations imposed by the District Court ICO. Despite statements made from the bar table, there is no evidence before this Court as to the extent to which (if any) the applicant has complied with his obligations under the ICO. On one view, even if the Court has power to adjust the commencement date of the sentence, to do so without further investigation would be an inappropriate exercise of the power and the matter should properly be left to the Parole Authority.

33. Furthermore, there may be a real doubt as to whether the power conferred by s 69D was intended to operate in circumstances where there had been no stay of execution. If it were not so intended, there would be an implied restriction on the power, namely that it is not to be exercised except to address the consequences of a stay. In practical terms, there has been no stay in the present case. (This was not an issue addressed in Whiteside v Director of Public Prosecutions. [18] )

    18. [1999] NSWCA 454 (Mason P, Handley and Stein JJA).

34. In these circumstances, I would make the following orders:

1. Dismiss the proceedings brought by the applicant;

2. Order that the applicant pay the costs of the Director of Public Prosecutions in this Court;

3. If the grant of bail to the applicant made on 18 September 2017 does not now cease to have effect pursuant to s 12(1)(b) of the Bail Act 2013, bail is hereby revoked.

35. LEEMING JA: Mr Warren Douglas Gelle was convicted in the Local Court of New South Wales on a charge of committing, on 10 May 2014, an act of indecency towards a person of or above the age of 16 years, contrary to s 61N(2) of the Crimes Act 1900 (NSW). A Magistrate sentenced Mr Gelle to a term of imprisonment of 12 months, to be served by way of an “intensive correction order” pursuant to s 7 of the Crimes (Sentencing Procedure) Act 1999 (NSW). Section 7(1) provides that:

“A court that has sentenced an offender to imprisonment for not more than 2 years may make an intensive correction order directing that the sentence be served by way of intensive correction in the community.”

36. It will be necessary in order to address a number of aspects of the proceedings brought by Mr Gelle in this Court to consider with some precision the making and operation of intensive correction orders. Part 5 of the Crimes (Sentencing Procedure) Act contains procedures for the making of intensive correction orders. Relevantly,

1. the power was available notwithstanding the sexual nature of Mr Gelle’s offence, because the victim was not a person under the age of 16 and the elements of the offence did not include sexual intercourse: s 66;

2. the court was required first to form the view that “no sentence other than imprisonment is appropriate and that the sentence is likely to be for a period of no more than 2 years”, before referring the offender for assessment under s 70 as to the suitability of the offender for intensive correction in the community: s 69;

3. the court was then required to have regard to the assessment report prepared under s 70 of the Act: s 67(2)(a);

4. the power required the court to be satisfied that Mr Gelle was a suitable person to serve the sentence by way of intensive correction in the community, that it was appropriate in all the circumstances that the sentence be served by way of intensive correction and that Mr Gelle had signed an undertaking to comply with the obligations imposed by the order: s 67(1).

37. Mr Gelle has a lengthy criminal history of offences similar to that which is the subject of the present litigation. This includes convictions for wilful and obscene exposure in January 1983 and July 1984, offensive behaviour (exposing person) in October 1984, obscene exposure in January 1991, wilful and obscene exposure in a public place or near a school in February 1998, August 2003, March 2004, May 2007, June 2009 and December 2009. All of those were convictions in the Local Court, but the last mentioned was the subject of an appeal to the District Court, which in June 2010 confirmed Mr Gelle’s conviction. Mr Gelle has also been found guilty of two domestic violence offences in March 2015 in the Local Court.

38. After finding Mr Gelle guilty of the offence with which Mr Gelle had been most recently charged, the Magistrate was taken to Mr Gelle’s criminal antecedents. The Magistrate expressed the view, in light of that history, that an intensive correction order might be appropriate, expressing himself as follows:

“[O]ne, it will have the effect of doing some community service, it’s a gaol term, but secondly, it’s a forced way of getting him to go and get some treatment. Do you want to be heard in relation to that? He’s gone past the suspended sentence stage.”

39. The Crown accepted the appropriateness of that course, and, in accordance with s 69 of the Crimes (Sentencing Procedure) Act, the Magistrate referred Mr Gelle for assessment. The matter returned to the Local Court on 12 June 2015. Mr Gelle had been assessed to be suitable for an intensive correction order, and he had signed an undertaking that he would serve the sentence by way of intensive correction order. The terms of the order made by the Local Court were that Mr Gelle be of good behaviour, that he not commit any further offences, that he reside at an approved address, that he comply with the directions of a supervisor, that he submit to alcohol and drug tests, surveillance and monitoring, receive home visits, participate in any activities to address his offending behaviours, and undertake 32 hours of community service work. The materials do not disclose how burdensome compliance with the conditions which imposed positive obligations would have been because, in the circumstances described below, it was accepted that Mr Gelle – apparently with the acquiescence of the appropriate government department – never undertook any of those obligations.

40. Mr Gelle exercised his right to appeal against his conviction and sentence pursuant to s 11 of the Crimes (Appeal and Review) Act 2001 (NSW). The notice of appeal is dated 16 June 2015 and it appears that it was filed on or shortly after that date. The appeal against conviction was dismissed by the primary judge (Colefax DCJ) on 27 June 2016. The appeal against sentence was allowed (in circumstances to which it will be necessary to return in more detail below), and “in order that proper effect can be given to the intent of the Local Court” Mr Gelle was sentenced to a term of imprisonment of 12 months to date from Monday 26 September 2016 to be served by way of an intensive correction order.

41. At all stages in the Local Court and initially in this Court, Mr Gelle was unrepresented. In the District Court, Mr Gelle was represented by counsel who did not appear in this Court.

42. Section 63 of the Crimes (Appeal and Review) Act applies such that the execution of most sentences imposed by the Local Court is automatically stayed when an offender exercises his or her right of appeal to the District Court. The purpose and operation of that statutory stay is discussed in Lazarus v Independent Commission Against Corruption [2017] NSWCA 37 at [28]. However, special provision is made in s 63 in the case of a person who is the subject of an intensive correction order. The general rule in s 63(2)(a) that the execution of the sentence is stayed by the lodging of a notice of appeal is subject to the exception in 63(2)(c). Section 63(2)(c) provides that where “an appellant who is in custody when the appeal is made”, the sentence is stayed only “when the appellant is entitled to be released from custody on bail under section 14 of the Bail Act 2013 or bail is dispensed with under that Act.” Section 63(5) provides that “a reference to an appellant who is in custody includes a person who is the subject of an intensive correction order …”.

43. The sentence imposed by the Local Court was expressly stated to commence “today, on 12 June 2015”. Section 71(1) of the Crimes (Sentencing Procedure) Act now provides that an intensive correction order commences on the date on which it is made, but in June 2015 it required the court “to fix the date of commencement of the sentence so that the date of commencement is no later than 21 days after the date on which the order was made.” Accordingly, when the notice of appeal was filed a few days later, Mr Gelle was taken to have been in custody by reason of s 63(5), and did not obtain an automatic stay. Although the purpose of equating the position of offenders serving an intensive correction order with offenders who are in fact in custody is far from clear, it was common ground (and indeed a central aspect to the challenge to the sentence imposed by Colefax DCJ) that the sentence had not been stayed.

44. Accordingly, for the period from 12 June 2015, Mr Gelle appears to have been in breach of the intensive correction order imposed on that day (which he was challenging). He was exposed, at least in theory, to the sanctions in Division 3 of Part 3 of the Crimes (Administration of Sentences) Act 1999 (NSW), which included a formal warning, the imposition of a period of up to 7 days home detention, or suspending or revoking the order (which in turn could lead to the issue of a warrant for his arrest and his imprisonment for the balance of the term).

45. When the matter was listed for allocation of a date before Colefax DCJ on 8 February 2016, the Crown drew this to the Court’s attention, and on that day, his Honour granted bail to Mr Gelle and made orders staying the orders of the Local Court and setting aside any warrant which might have been issued for his arrest. Mr Gelle’s counsel had said that “a warrant may be in existence given the fact that he has not commenced that order”. It is not necessary to determine whether the District Court had power to set aside any warrant issued for the arrest of Mr Gelle; nor to decide whether the District Court had power to stay the orders of the Local Court, (neither of which matters was the subject of submissions in this Court). Once the District Court granted bail s 63(2)(c) was engaged and the statutory stay was effected by s 63(2)(a).

46. The consequence was that when the District Court heard and determined Mr Gelle’s appeal, he had at no stage complied with any of the conditions of his intensive correction order which imposed positive obligations upon him, notwithstanding that some 241 days of the term of that sentence had elapsed. To be fair, it was said from the Bar table, without evidence but also without opposition, that the relevant government department was aware that an appeal was pending and proceeded on the basis that the order was automatically stayed.

47. It was for that reason that in determining the sentence appeal, the primary judge allowed the appeal and resentenced Mr Gelle to a term of imprisonment of 12 months commencing 26 September 2016 to be served by an ICO.

48. No further appeal lies, and Mr Gelle has invoked this Court’s supervisory jurisdiction to review both decisions of the District Court. It is well established that the effect of s 176 of the District Court Act 1973 (NSW) is that an applicant must establish jurisdictional error on the part of the District Court: see for example Garde v Dowd (2011) 80 NSWLR 620; [2011] NSWCA 115 at [10] and Morgan v District Court of New South Wales [2017] NSWCA 105 at [32]. The application in this Court proceeded on that basis. There were two grounds of review, for which leave was sought and granted at the commencement of the hearing:

1. His Honour failed to exercise jurisdiction under s 18 of the Crimes (Appeal and Review) Act 2001 by failing to undertake a rehearing on the evidence in the conviction appeal;

2. His Honour erred by failing to ensure the applicant was afforded natural justice upon the sentence appeal.

Ground 1: jurisdictional error in relation to the appeal against conviction

49. Before the Local Court, the Crown case comprised evidence from the complainant and two arresting police officers, all of whom described Mr Gelle committing an act of indecency at a bus station in Rouse Hill. The police officers gave evidence of conduct by Mr Gelle at the same location, 14 days later, which suggested that Mr Gelle had a tendency to commit acts of indecency in public places. Their evidence was admitted in the Local Court, although no notice of tendency or coincidence evidence had been served by the Crown.

50. The Magistrate’s decision ultimately resolved to a preference, to the criminal standard, of the evidence of the complainant, over the denials of Mr Gelle, who gave evidence before the Magistrate. The dispositive part of the Magistrate’s reasons was as follows:

“When you take into account what the police officers had seen and observed two weeks later, the way in which [the complainant] gives her evidence and what she said and did, and whilst the defendant has no obligation on him, once he does give evidence, that evidence is entitled to be weighed. He says, ‘I have an itch and I need to scratch it and I do so unknowingly at times.’ But there is a clear difference between scratching your leg or your calf or your knee or your stomach, or he made gestures about scratching his stomach or his arm or his shoulder, there is a real big difference between that and putting your hand down your pants at the time.

There is evidence from police officers that when they searched him, he had no underpants on and he had effectively an erection. There is evidence from those sources that does, to my mind, corroborate in some of the aspects of what [the complainant] says, although they are time apart, that is, 14 days apart.

All in all, at the end of the day, having seen and observed both of the parties, as I said, there is no obligation on Mr Gelle and there is no inference to be drawn, but having seen everybody, that is, the two main divergent persons who tell different stories, on issues of credit, I do accept the evidence of [the complainant] in preference to that of Mr Gelle. Having accepted her evidence as to where it differs from that of Mr Gelle, I then would find that on the day in question, he was standing there, he did have his hands down his pants, he was masturbating at the time in and around her vicinity, and I even recall her saying at one stage she could see it, referring, I take it, to his penis when he pulled his pants up. But that act of masturbation in that public place is, to my mind, an offensive conduct, and I do not think there is any issue with that, and I would also find that it is in effect an act of indecency in her presence.”

51. In this Court, Mr Gelle submitted that the Magistrate relied upon tendency and coincidence evidence to support the complainant’s credibility which should not have been admitted, and further submitted that the Magistrate had “dealt impermissibly with the question ‘why would the complainant lie?’”, “failed to deal with the unchallenged evidence that the accused had psoriasis”, and “failed to comply with his own directions in relation to ‘word-on-word cases’ and decided on the basis of preference”.

52. But the application in this Court must focus upon the decision in the District Court: Garde at [11]-[13]. I now turn to that decision and the way in which the appeal was conducted.

53. Mr Gelle’s appeals against conviction and against sentence were heard separately. The primary judge excluded some of the evidence which had been adduced before the Magistrate (the tendency evidence of police officers on another occasion) and admitted fresh evidence of the applicant’s chronic psoriasis. The entirety of his Honour’s reasons upholding the conviction are as follows:

“Warren Gelle has appealed against the conviction entered against him in the Local Court on 17 April 2015. He was convicted on that date for the offence of committing an act of indecency towards a person above the age of 16 years.

The prosecution case was that on 10 May 2014 [the complainant] was sitting at the bus shelter at Rouse Hill and, at that time, the appellant was in the immediate vicinity. It was approximately 5pm, maybe a little later, and getting on towards dark.

The complainant gave evidence that she observed the appellant to walk right in front of her and he had a visible erection. Her immediate reaction was to be unsettled. The evidence of the complainant was that he walked a short distance away and put his arm in his pants and then began to conduct himself as if he were masturbating. Most of the time from this distance the appellant had his back to the complainant. He continued to move his in an up‑and‑down fashion consistent with masturbation.

In addition to these activities, the appellant, according to the complainant, did not stay in a stationary position, but rather on three occasions he proceeded towards her and peered at her and then retreated.

The appellant gave evidence before the learned Magistrate that he suffered from a condition called psoriasis and that that condition was one that affected a significant part of his body. He contended that if he had been moving his arm on that night in the manner described by the appellant, it was an unconscious reaction to the psoriasis and that he was in all probability scratching.

The Crown’s case against the appellant was a circumstantial evidence case. In that circumstance, bearing in mind the burden of beyond reasonable doubt which rests on the prosecution, if there is an hypothesis reasonably consistent with innocence available to an accused, then the circumstantial evidence case must fail.

When one puts together the fact of the erection, the fact of the hand actions, the fact that at some point the complainant saw him with his hand in his pants and the activity of advancing upon the complainant peering at her and retreating on three occasions, I am not satisfied that there is a reasonably available inference consistent with innocence.

In my view the prosecution case was made out and the conviction appeal is accordingly dismissed.”

54. Mr Gelle’s principal complaint is that the primary judge should have, but failed to, “form his own judgment about the facts”. It is said that:

“His Honour’s judgment did not purport to resolve the factual disputes raised between the complainant and applicant but appears to have adopted uncritically the findings of the Magistrate. Furthermore, his Honour did not purport to review the credit findings of the Magistrate.”

55. This was said to amount to jurisdictional error because it did not involve the rehearing required by s 18 of the Crimes (Appeal and Review) Act. That section provides that the appeal “is to be by way of rehearing on the basis of evidence given in the original Local Court proceedings”, subject to the possibility that, with leave, fresh evidence might be given (s 18(2)) and, in the circumstances specified in s 19 (broadly, that there are either “special” or “substantial” reasons in the interests of justice), a person might attend and give evidence.

56. In order to evaluate this ground, it is necessary to refer in some detail to what occurred in the District Court. The appeal against conviction was heard on 27 June 2016. The Crown tendered a documentary case, including the Local Court transcript leading to the conviction. The defence advised that leave had been granted to adduce fresh evidence, going to Mr Gelle’s skin condition. There followed this exchange:

“HIS HONOUR: Does this fresh evidence go to the credit of the complainant?

HARRISON: No, it goes essentially to the credit of Mr Gelle ...”

57. Counsel for Mr Gelle gave a précis of the case on appeal, as to which senior counsel for the applicant in this Court emphasised the following:

“Essentially the highest that the prosecution case can go is what she says that she sees of Mr Gelle on this particular day. Mr Gelle gave evidence and he asserts that he was suffering from psoriasis in the sense that he was scratching. It’s word against word. That is as far as the Crown case goes and that’s where the doctor’s evidence goes in terms that he was suffering from psoriasis and he was scratching this particular day.

HIS HONOUR: Word against word, so her credit is involved.

HARRISON: Credit is involved.

HIS HONOUR: How could his Honour have granted fresh leave? How can I possibly assess word against word?

HARRISON: It is word against word, but the issue goes in terms of the doctor’s evidence as simply supporting Mr Gelle, because Mr Gelle gave evidence that he was suffering from psoriasis, he says in his very opening statement he suffers from chronic psoriasis.

HIS HONOUR: I’ll read this, but if it’s along the lines that I fear, I’ll have to review his Honour’s ruling, because if there’s an attempt to establish credit or overcome credit findings by fresh evidence, then I will [un]pick his Honour’s order, but I’ll just see what happened in the Local Court first.

HARRISON: I understand, but it’s not going to that issue.”

58. The primary judge then rejected the evidence of the events of 24 May, because no tendency notices were given. Immediately upon returning to Mr Gelle’s application to adduce fresh evidence, his Honour said:

“HIS HONOUR: I’ll hear you now on the question of fresh evidence. I think that it can be properly admitted without doing injustice to the findings of credit but I’ll just have to see the material first.”

59. The Crown objected to the tender and part of that objection was upheld. No complaint was made in that respect by Mr Gelle in this Court.

60. At the commencement of the parties’ submission, the primary judge raised the following with counsel for Mr Gelle:

“HIS HONOUR: Your biggest problem is this, Mr Harrison, if I can cut to the chase, you’ve got the young lady who says she saw an erection and not challenged, and whether or not he’s got psoriasis, that’s her unchallenged evidence which the magistrate accepted.”

61. Mr Gelle was critical of the description of the complainant’s evidence as “unchallenged”. The complainant had not been cross-examined by Mr Gelle in the Local Court (then appearing for himself) on that issue. However, it was submitted that her evidence was not unchallenged, insofar as Mr Gelle himself gave evidence before the Magistrate denying that he had an erection or was masturbating.

62. Counsel for Mr Gelle told the primary judge in response:

“HARRISON: ... The highest the prosecution case can be put is that the complainant sees hand movement from below the elbow upwards and a jerking moment. That is totally consistent with scratching. Now being a circumstantial case, and as your Honour is totally aware obviously of the law in regards to circumstantial cases, it must be consistent with guilt and inconsistent with any rational hypothesis that is inconsistent with guilt.”

63. It may be doubted that the Crown case was a circumstantial case in the conventional sense: there was direct evidence of a witness, and the main question was characterising what the complainant saw and its reliability. It may also be doubted that, notwithstanding what was said on behalf of Mr Gelle, that this was the highest the Crown case went. As was submitted by the Crown before the primary judge, the complainant’s evidence was not merely as to the movements of his hand, but also “accompanied by him coming forwards, peering at her and then going back again at least three times. She’s very careful to say it wasn’t just once, that certainly happened a number of times.”

64. In light of that summary, it is now possible to address Mr Gelle’s submissions.

65. First, the primary judge was not asked at any stage in the parties’ submissions to make findings of, or to evaluate the Magistrate’s findings of, credibility.

66. It is true that when counsel then appearing for Mr Gelle sought to tender fresh evidence, he at one stage said that the material went to Mr Gelle’s credibility. However, at the end of the exchange, he acquiesced in the statement by the primary judge that there was not an attempt “to establish credit or overcome credit findings”. Were there any doubt about this, when the primary judge returned to the fresh evidence application, the primary judge made it clear that he was of the view that “it can be properly admitted without doing injustice to the findings of credit”.

67. It follows that, irrespective of the need to establish jurisdictional error, there was no error in failing to make credit-based findings. That was not how the appeal had been conducted. It is to be recalled, as Simpson JA observed in AG v Director of Public Prosecutions (NSW) [2015] NSWCA 218 at [103]:

“The fundamental task of a court is to exercise the jurisdiction conferred upon it, with the important proviso that that task is to be undertaken on the basis of the issues presented to the court for determination.”

68. Secondly, a review of his Honour’s reasons makes it plain that his Honour undertook his own review of the evidence before him (which in some respects was less than that before the Magistrate) and concluded that the evidence as a whole was not consistent with an innocent explanation. Mr James QC accepted that he had no difficulties with the test as formulated (which reflected that advanced by counsel then appearing for Mr Gelle, referred to above).

69. Thirdly, it is implicit that an appeal to the District Court in a case such as this, to the extent that the Court addresses testimonial evidence on the basis of the transcript, is restricted by an appreciation of the advantages enjoyed by the Magistrate: see McKellar v Director of Public Prosecutions (NSW) [2011] NSWCA 91 at [8]. There was no occasion for a “review of the Magistrate’s credit-based findings” at the level of detail contemplated by the applicant’s submissions.

70. Fourthly, it is plain that throughout the hearing of the appeal his Honour was aware of the limitations to which he was subject. It is also plain that his Honour did not merely adopt those findings uncritically.

71. There was no occasion for a lengthy judgment. The complainant had not been cross-examined so as to cause there to be any doubt as to the fact that she had seen Mr Gelle approaching her, at least three times, looking at her, with his hand in his pants and moving in a way which was consistent with masturbation. Although there was no reference in the reasons of the primary judge to the “unchallenged” evidence of the complainant, it was open to the District Court to accept that evidence which was on its face coherent and plausible, even though Mr Gelle denied it. It was amply open to the District Court to conclude that the fact that Mr Gelle was suffering from a skin condition did not give rise to a reasonable doubt. There was no error in his Honour reaching the view that the Crown had established to the criminal standard that Mr Gelle had committed an act of indecency in the presence of the complainant on 10 May 2014.

72. Finally, it is to be borne in mind that mere error of law on the face of the record of the District Court is insufficient to engage this Court’s supervisory jurisdiction. Much of the submissions advanced on behalf of Mr Gelle resembled those made in the Court of Criminal Appeal when hearing an appeal against conviction brought under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW). But Mr Gelle’s application to this Court in its supervisory jurisdiction is narrower than an appeal. Having regard to the absence of any error, it is not necessary to express a view as to what would be required in a case such as this to establish jurisdictional error.

73. This ground of review should be dismissed.

Ground two: Jurisdictional error in relation to the sentence appeal

74. There are two aspects to this ground of review. The first is relatively conventional. It is that on 27 June 2016, the primary judge indicated a view that the sentence might be reduced to 10 months. On that occasion, the primary judge (once again in accordance with the provisions in Part 5 of the Crimes (Sentencing Procedure) Act) referred Mr Gelle for an up to date assessment of his suitability for an intensive correction order. After hearing from the parties, he gave a short judgment in which he said that “A term of imprisonment of 12 months in these circumstances, even with the long history, does seem to me to be somewhat severe”. His Honour expressed a view that the term of imprisonment should be ten months, and to be served either by a bond (that is a suspended sentence) or by an intensive correction order. His Honour adjourned the hearing of the severity appeal until 23 September 2016. On that day, in light of the report, and after a further short hearing, his Honour imposed a fresh intensive correction order, with the same conditions as the earlier order, and one additional condition, namely, that Mr Gelle accept and continue to receive treatment prescribed by a medical practitioner.

75. The second aspect of this ground relied upon the fact that some 241 days had passed from the imposition of sentence of the Local Court and the grant of bail on 8 February 2016. This aspect of the ground was that a warning should have been given of the possibility that a new sentence would be imposed at the same length as that imposed by the Local Court, without giving credit for the 241 days already “served” (although it is not suggested that the applicant actually participated in any of the obligations of the ICO during that time). It must be said that there is something decidedly opportunistic about this aspect, which converts the mutual error on the part of Mr Gelle and the departmental officers into a denial of natural justice by the District Court.

76. Thus it was said that:

“Effectively, his Honour, without warning imposed a sentence heavier than imposed in the court below by restarting the sentence and effectively accumulating it on the 241 days served prior to the stay. His Honour also imposed an additional condition in addition to the mandatory condition. The overall effect was to double the sentence.”

77. The ground as formulated in Mr Gelle’s summons and written submissions was confined to natural justice. I do not consider there was any failure to accord natural justice.

78. Although his Honour’s brief “judgment” on 27 June 2016 expressed the view that a 10 month period of imprisonment, served either by way of intensive correction order of bond, seemed appropriate, that could be no more than a preliminary view, subject to change in light of the assessment he had ordered.

79. The Crown’s position was consistent: both on 27 June 2016 and on 9 September 2016 its submission was that a 12 month intensive correction order was appropriate and the sentence appeal should be dismissed. On the first occasion, it was submitted that the order was “entirely appropriate as it not only reflected the gravity of this offence, which is a serious offence with a victim, but also reflects his history, gives him the opportunity to have services and have supervision to try to prevent this type of conduct in the future ...” It was open to Mr Gelle to apply to withdraw his sentence appeal at that point or at any time prior to the orders made on 23 September 2016.

80. In relation to the second aspect, the fact that 241 days had elapsed before bail had been granted and the statutory stay effected by s 63 of the Crimes (Appeal and Review) Act engaged, it was common ground that Mr Gelle had served none of the sentence imposed by the Magistrate in terms of performing any positive obligations which it imposed. It is impossible to conclude that Mr Gelle or his counsel believed that the ten month period mentioned by the primary judge was in fact a period which took into account the 241 days which had elapsed, and involved a backdating of some eight months, followed by some two months only of actual compliance with conditions of a bond or an intensive correction order. It is plain that his Honour was expressing a view as to a sentence which would replicate the position which would have obtained had a statutory stay been in place when the appeal was commenced.

81. I would dismiss this ground.

82. During the hearing of Mr Gelle’s application in this Court, there were exchanges as to the availability of the power and the appropriateness of its exercise to re-impose an intensive correction order for the 12 months already ordered by the Local Court, disregarding the period of some 7 months which had elapsed before it was stayed upon the grant of bail. This was outside the scope of the amended grounds of review, and something which had not been raised in the parties’ written submissions.

83. Accordingly, what follows lacks the benefit of full argument. However, my preliminary view is that the primary judge had power to determine the appeal against sentence by varying the sentence imposed: Crimes (Appeal and Review) Act, s 20(2)(b). His Honour also was also authorised to “exercise any function that the Local Court could have exercised in the original Local Court proceedings”: s 28(2). Those powers were conferred upon the District Court because Mr Gelle had invoked (unsuccessfully as it turned out) his right to appeal against the severity of the sentence which right carried with it the potential of obtaining a stay of execution pending the determination of that appeal.

84. As presently advised, I see no reason why those powers did not extend to allowing the appeal so as to achieve the evident intention of the order made by the Magistrate. The Director of Public Prosecutions directed the Court to what had been said of the differently worded power conferred on this Court by s 69D of the Supreme Court Act1970 (NSW) in Whiteside v Director of Public Prosecutions [1999] NSWCA 454 at [35], applied in Yousaf v Director of Public Prosecutions [2012] NSWCA 397 at [52]-[53], to “assess the real impact of the sentence served or not served pending the application”.

77. True it is that Mr Gelle had been at least in theory at risk of the various sanctions for which Division 3 of Part 3 of the Crimes (Administration of Sentences) Act 1999 (NSW) made provision, for the period from 12 June 2015 and 8 February 2016, but there is no evidence (nor indeed any suggestion) that there was ever any prospect of that occurring. To the contrary, it was said without objection that there had been a misunderstanding on all sides of the effect of Mr Gelle commencing his appeal.

Orders

86. I have concluded that there has not been shown to be any jurisdictional error in the orders made by the District Court. In the ordinary course, the application for judicial review in circumstances such as this would be dismissed.

87. Section 69C of the Supreme Court Act follows much the same structure as s 63 of the Crimes (Appeal and Review) Act. Once again, there is an automatic stay of execution of a sentence imposed by the Local Court when proceedings by way of judicial review are brought from a dismissal of an appeal to the District Court, and once again, there is an exception in the case of intensive correction orders. The section relevantly provides:

“(1) This section and section 69D apply to proceedings in the Court for judicial review of a determination made by the District Court in appeal proceedings relating to a conviction or order made by the Local Court (or part of such a conviction or order) or sentence imposed by the Local Court.

(2) The execution of the following is stayed when proceedings seeking judicial review are commenced:

(a) a sentence imposed as a consequence of a conviction,

(b) any order other than an apprehended violence order under the Crimes (Domestic and Personal Violence) Act 2007.

(3) Subsection (2) does not apply to a person (the claimant) who is in custody when proceedings seeking judicial review are commenced unless and until the claimant is entitled to be released on bail under the Bail Act 2013, or bail is dispensed with.

(4) The stay of execution continues until the proceedings for judicial review are finally determined, subject to any order or direction of the Court.

(5) [This deals with drivers’ licence disqualifications and is irrelevant.]

(6) In this section, a reference to a person who is in custody includes a reference to a person who is the subject of an intensive correction order, or home detention order, within the meaning of the Crimes (Administration of Sentences) Act 1999.”

88. Notwithstanding the history of the appeal in the District Court, and the similarity between s 63 of the Crimes (Appeal ad Review) Act and 69C of the Supreme Court Act, no application was made for bail to the Supreme Court until the conclusion of the hearing, and even then it was at this Court’s suggestion. The consequence is that the sentence imposed by the District Court continued to run from 26 September 2016 until 18 September 2017.

89. However, it was stated from the Bar table as a common position that although Mr Gelle had commenced to comply with the conditions to which he was subject, he ceased doing so, without fault on his part, on 20 December 2016, after his application in this Court had been filed. It seems that, once again, there was a misunderstanding of the operation of the automatic stay effected by s 69C.

90. There is a question, not without importance, as to whether this Court had power in a case such as this to alter the sentence imposed, even if no jurisdictional error is made out. On its face, that may seem counterintuitive. That question turns on the operation of s 69D of the Supreme Court Act:

“69D Court may confirm conviction or order with effect from an earlier day

(1) The Supreme Court may order that a conviction, order or sentence that is the subject of proceedings, or any part of it:

(a) is to take effect on and from a day specified in the order, or

(b) in the case of a sentence that has been served in part, is to recommence on and from a day specified in the order,

being the day the order is made or an earlier day.

(2) The order has effect even though a stay of execution may have been in force in respect of the sentence that is the subject of the proceedings.”

91. That power on its face appears to be available even if jurisdictional error is not made out. One possible occasion for its exercise might be if, through mistake, an applicant continues to serve a sentence confirmed by the District Court for some of time after the stay effected by s 69C takes effect. There may well be occasion in that circumstance to order that the sentence is taken to recommence from an earlier day, even if no jurisdictional error is made out, so as to give credit for the time served when the sentence had been stayed.

92. I have considered whether s 69D might support orders which would return Mr Gelle to the position which he believed he was in after 20 December 2016, namely, that his intensive correction order had been stayed and would resume in the event that his application in this Court were dismissed. However, I have concluded that it is not necessary to decide that question, which in any event was not the subject of submissions. That is because there are two (it is to be hoped) highly unusual circumstances attending this case. The first is that it is accepted that without fault attributable to him, Mr Gelle has proceeded for the last nine months on the basis that a stay was in place. The second is a peculiarity of this aspect of Mr Gelle’s challenge. It was open to Mr Gelle to apply to withdraw ground two of his summons at any time. If he did so at the hearing in this Court, then there would be only a matter of days of the sentence to run. Indeed, there was no explanation given for what Mr Gelle was seeking to achieve by ground two, which was to have the sentence set aside and the sentence appeal remitted to the District Court, where it was anticipated that a further assessment of his suitability for an intensive correction order would be conducted, which might in turn lead to the imposition of such an order.

93. In the unusual circumstances of this case, the Director of Public Prosecutions asked merely that the application be dismissed with costs in the event that no jurisdictional error was established. That is the appropriate order to be made.

94. Finally, I turn to costs. The litigation in this court is civil, and the ordinary rules as to costs apply: see for example Firth v Director of Public Prosecutions [2013] NSWCA 403 at [26] and Hansell v Director of Public Prosecutions (NSW) [2016] NSWCA 311 at [12]. Mr Gelle made no submission to the contrary.

95. Accordingly, I propose that the proceedings be dismissed, and that Mr Gelle pay the costs of the Director of Public Prosecutions. I also agree with the confirmatory order in relation to the revocation of bail proposed by Basten JA.

96. WHITE JA: I have had the advantage of reading in draft the reasons of Basten and Leeming JJA. I agree with Leeming JA’s reasons and the orders Basten JA and he propose.

97. I prefer to express no view on the matters raised by Basten JA at [13]-[24] of his Honour’s reasons under the heading “Validity of sentence”. As his Honour observes the issue there raised was not a ground of review and was not addressed in the parties’ submissions.

98. Issues as to the scope of the power conferred by s 69D have been identified by Basten and Leeming JJA. As Leeming JA observes (at [90]-[92]) it is not necessary in this case to decide the extent of the power conferred by s 69D. It is undesirable to attempt to do so where that question was not the subject of submissions.

**********

Endnotes

Amendments

27 September 2017 - Date of decision 27 September 2017.

Decision last updated: 27 September 2017