Lazarus, Sandra v Director of Public Prosecutions (NSW)

Case •

[2019] NSWCA 125

•

29 May 2019

No judgment structure available for this case.

Court of Appeal


Supreme Court


New South Wales

  • Summary available
Medium Neutral Citation: Lazarus, Sandra v Director of Public Prosecutions (NSW) [2019] NSWCA 125
Hearing dates: 16 May 2019
Date of orders: 16 May 2019
Decision date: 29 May 2019
Before: Bell P and Basten JA at [1];
Simpson AJA at [49]
Decision:

(1)   Declare that:

 

(a)   warrants of commitment issued out of the District Court of NSW on 12 December 2017 in proceedings 2013/00076236 are valid and sufficient authority for the committal of Ms Sandra Lazarus forthwith to be conveyed to a correctional centre and kept in custody for the terms of her sentences; 
(b)   the sentences recorded in the said warrants as commencing on 12 December 2017, the execution of which was stayed, did not so commence but have now commenced on the date on which the statutory stay terminated, namely 8 May 2019;
(c)   the sentences recorded in the said warrants as commencing on 12 June 2018, the execution of which was stayed, did not so commence but will now commence 6 months after the date on which the statutory stay terminated, namely on 8 November 2019, and
(d)   the parole orders made in the District Court of NSW will commence at the expiry of the non-parole periods for each offence as calculated from the dates identified in (b) and (c) above.
(2)   Remit the matter to the District Court of NSW for the amendment of the warrants of commitment and parole orders in accordance with Order 1(b), (c) and (d) above.

(3) The oral application made by Mr Waterstreet on behalf of Ms Lazarus for a stay until 4pm Friday, 17 May 2019 pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 is refused.
Catchwords: PRACTICE AND PROCEDURE – judicial review – review of orders of District Court in its criminal jurisdiction on appeal from Local Court – offender subject to custodial sentence – effect of stay – date of commencement of sentences – amendment of warrants of commitment – Supreme Court Act 1970 (NSW), ss 69A, 69C, 69D
Legislation Cited:

Bail Act 2013 (NSW), ss 6, 12
Crimes (Administration of Sentences) Act 1999 (NSW), ss 126, 158
Crimes (Appeal and Review) Act 2001 (NSW), s 63, Part 7
Crimes (Appeal and Review) Act 2001 (NSW), ss 68, 78; Pt 7
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 47, 50, 62
Crimes Act 1900 (NSW), ss 178BB, 300
Criminal Appeal Act 1912 (NSW), s 18
Criminal Legislation Amendment Act 1996 (NSW), Sch 1, cl 1.8
Criminal Procedure Act 1986 (NSW), s 242
Interpretation Act 1987 (NSW), ss 33, 34
Justices Act 1902 (NSW), s 125B
Justices Legislation Amendment (Appeals) Act 1998 (NSW), Sch 2, cl 2.24
Sentencing Act 1989 (NSW), s 8
Supreme Court Act 1970 (NSW), ss 23, 69, 69A, 69C, 69D

Uniform Civil Procedure Rules 2005 (NSW), r 36.16
Cases Cited: Bagshaw v The Office of the Director of Public Prosecutions [2017] NSWCA 293
Blazevski v Judges of the District Court of New South Wales (1992-93) 29 ALD 197
Director of Public Prosecutions v Edwards (2012) 44 VR 114; [2012] VSCA 293
Erceg v District Court of New South Wales [2003] NSWCA 379; 143 A Crim R 455
Firth v Director of Public Prosecutions [2018] NSWCA 78
Gelle v Director of Public Prosecutions (NSW) [2017] NSWCA 245
Lazarus v Independent Commission Against Corruption (2017) 94 NSWLR 36; [2017] NSWCA 37
Lazarus v Independent Commission Against Corruption [2018] NSWCA 66
Lazarus v Independent Commission Against Corruption [2019] NSWCA 100
Majak v Rose (No 2) [2016] NSWCA 337
Morgan v District Court of New South Wales (2017) 94 NSWLR 463; [2017] NSWCA 105
Owners of Ship Shin Kobe Maru v Empire Shipping Co Inc (1994) 181 CLR 404; [1994] HCA 54
Parker v Director of Public Prosecutions (1992) 28 NSWLR 282
Tay v Director of Public Prosecutions (NSW) [2014] NSWCA 53; 239 A Crim R 138
Templeton (a pseudonym) v Director of Public Prosecutions (NSW) [2018] NSWCA 335
The Queen v Turnbull; Ex parte Taylor (1968) 123 CLR 28; [1968] HCA 68
Whan v McConaghy (1984) 153 CLR 631; [1984] HCA 22
Whiteside v Director of Public Prosecutions [1999] NSWCA 454
Williamson v The Inspector-General of Penal Establishments [1958] VR 330
Wishart v Fraser (1941) 64 CLR 470; [1941] HCA 8
Yousaf v Director of Public Prosecutions [2012] NSWCA 397
Category:Procedural and other rulings
Parties: Sandra Lazarus (Applicant)
Director of Public Prosecutions (Respondent)
Representation:

Counsel:
C Waterstreet (Applicant)
JE Davidson (Respondent)

  Solicitors:
Leigh Johnson Lawyers (Applicant)
Crown Solicitor (Respondent)
File Number(s): 2017/213601

Judgment

  1. BELL P and BASTEN JA: On 8 May 2019 this Court made orders dismissing a summons brought by Sandra Lazarus (and her sister Michelle Lazarus) seeking to review decisions made in the criminal jurisdiction of the District Court, on appeal from the Local Court. The effect of those orders was to lift a stay of the District Court order sentencing Sandra Lazarus to imprisonment for 21 months with an effective non-parole period of 13 months. The present matter relates to the effect of the lifting of the stay. At the conclusion of the hearing on 16 May 2019, on the application of the Director of Public Prosecutions, the Court made the following orders:

(1)   Declare that:

(a)   warrants of commitment issued out of the District Court of NSW on 12 December 2017 in proceedings 2013/00076236 are valid and sufficient authority for the committal of Ms Sandra Lazarus forthwith to be conveyed to a correctional centre and kept in custody for the terms of her sentences; 

(b)   the sentences recorded in the said warrants as commencing on 12 December 2017, the execution of which was stayed, did not so commence but have now commenced on the date on which the statutory stay terminated, namely 8 May 2019;

(c)   the sentences recorded in the said warrants as commencing on 12 June 2018, the execution of which was stayed, did not so commence but will now commence 6 months after the date on which the statutory stay terminated, namely on 8 November 2019, and

(d)   the parole orders made in the District Court of NSW will commence at the expiry of the non-parole periods for each offence as calculated from the dates identified in (b) and (c) above.

(2)   Remit the matter to the District Court of NSW for the amendment of the warrants of commitment and parole orders in accordance with Order 1(b), (c) and (d) above.

(3) The oral application made by Mr Waterstreet on behalf of Ms Lazarus for a stay until 4pm Friday, 17 May 2019 pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 is refused.

What follow are our reasons for making these orders.

  1. The District Court imposed the sentences and issued warrants of commitment on 12 December 2017. The warrants contained details of the length of each sentence, but also the dates of commencement and expiration of each sentence. Because the sentences had been stayed by s 69C(2) of the Supreme Court Act 1970 (NSW) for almost 17 months, the specified dates of commencement and expiration were incorrect. The question before the court was whether, and if so what, further orders or declarations should be made to indicate their current effect.

  2. In the judgment of 8 May 2019 this Court summarised its conclusions with respect to the sentences, relevantly for present purposes, in the following terms:

“[70]   It follows that the orders of the District Court made in relation to Sandra and Michelle stand and that, on the making of the order dismissing these proceedings, the stay of execution of the sentences imposed on each comes to an end: Supreme Court Act, ss 69C(2)(a), (4).

[71]   There remains the question whether, as the DPP proposes by its notice of motion filed 9 November 2018, this Court should make any order under Supreme Court Act, s 69A(5) or 69D in relation to the date on which the sentences imposed on Sandra and Michelle commence or recommence and take effect.

[72]   In relation to Sandra, the orders made by Hoy DCJ on 12 December 2017 provided for her sentence for counts 1 to 7 to commence on 12 December 2017 and for the non-parole period in relation to her last expiring sentence for counts 24, 25, 27-31 and 40-53 to expire on 11 January 2019. As no part of that sentence has been served the removal of the stay of execution will permit Sandra to be taken into custody with the first of those sentences to commence at that time.”

  1. Contrary to the expectation of the Court set out above, and according to evidence filed on behalf of the Director, neither the police nor officers from the Department of Corrective Services were prepared to take the offender into custody on the basis of the orders made in the District Court, or the indication of the present effect of those orders contained in the judgment of this Court. On 10 May 2019, two days after judgment was delivered in this Court, the Director filed a notice of motion seeking orders designed to permit the offender to be taken into custody. On 13 May 2019, the Director filed a further notice of motion seeking, to the extent necessary, a variation of the orders made on 8 May 2019, pursuant to Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), r 36.16.

  2. The offender opposed the making of any further orders, contending that (i) by notice of motion filed on 9 November 2018 the Director had sought orders to the same effect as those now sought, which motion was dismissed by the orders made on 8 May 2019; (ii) the Court was functus officio in relation to the matters raised on the motion, and (iii) despite the stay, the periods of imprisonment have continued to run and have now expired.

  3. On 16 May 2019 the Director filed a further affidavit indicating that Corrective Services were prepared to receive the offender into custody, though the means of getting her there if she did not voluntarily surrender remained uncertain. What is not in doubt is that the sentences of imprisonment imposed by the District Court now stand and that the offender has not served any part of those sentences. The problem is said to arise because the warrants of commitment specify the dates of commencement of the sentences and the dates on which they expire. All of the non-parole periods, when imposed, had a date of expiry which has now passed.

Procedural background

  1. The offender was sentenced by Judge Hoy on 12 December 2017 for seven offences of making or using a false instrument, contrary to s 300(1) of the Crimes Act 1900 (NSW) (sentence warrant I), 20 further offences under the same provision (sentence warrant II), and 16 offences of obtaining a financial advantage by false or misleading statements, contrary to s 178BB of the Crimes Act (sentence warrant III). (These warrants were not before the Court prior to the 8 May judgment.) The warrants, each entitled “Sentence Warrant”, identify the relevant proceedings and offences and then state the sentences as, for example:

Term of sentence:

Commence:

Expire:

12 months

12 December 2017

11 December 2018

  1. With respect to each offence identified in sentence warrant I, the warrant recorded that the offender was sentenced to 12 months imprisonment, stated to commence on 12 December 2017, with a non-parole period of 9 months to commence on the same date. The expiry date of each sentence was entered as 11 December 2018 and, with respect to the non-parole periods, 11 September 2018.

  2. With respect to each of the 20 offences identified in sentence warrant II, the warrant recorded that the offender was sentenced to 15 months imprisonment, stated to commence on 12 June 2018 and expire on 11 September 2019. In each case a non-parole period of 7 months was recorded, said to commence on 12 June 2018 and expire on 11 January 2019. Accordingly, these sentences were accumulated by a period of 6 months on the sentences recorded in sentence warrant I.

  3. Finally, in relation to sentence warrant III, the warrant recorded that the offender was sentenced to 8 months imprisonment for each offence, stated to commence on 12 June 2018 and expire on 11 February 2019. In each case the non-parole was 6 months, and was therefore entirely concurrent with the longer non-parole period imposed for the offences in sentence warrant II, which were said to commence on the same date.

  4. Because the sentence with respect to each offence was less than 3 years the Court made an order directing the offender’s release on parole at the end of the non-parole period, in accordance with s 50 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Procedure Act”), as then in force.

  5. The evidence before the Court also revealed that the offender entered into a bail acknowledgement on 27 April 2015 with respect to her appeal to the District Court, requiring her to appear at the District Court in relation to her appeal. That grant of bail ceased to have effect when the District Court finally disposed of the appeal before it. [1] The appeal proceedings concluded on 12 December 2017 when the orders were made with respect to the appeal against her sentences. There has been no further need for a grant of bail and none has been made.

    1. Bail Act 2013 (NSW), s 12(1)(b) and s 6(1).

  6. As this Court noted in its judgment of 8 May 2019, the proceedings for review of the convictions entered and sentences imposed in the District Court invoked the supervisory jurisdiction of the Court pursuant to s 69 of the Supreme Court Act 1970 (NSW). The proceedings were not by way of appeal, but were in the original jurisdiction of the Court. Accordingly, the dismissal of the proceedings did not affect the orders made in the District Court. This Court did not resentence the offender, vary the orders made in the District Court, or substitute its orders for those of the District Court.

Statutory stays

  1. The stays resulted from the operation of s 69C of the Supreme Court Act, which relevantly provides:

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 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,

… .

(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.

  1. The reasoning of the Court in the passages set out at [3] above was that, the sentences being stayed upon the commencement of proceedings for judicial review in circumstances where the offender had never been taken into custody, the period of the sentences did not commence to run prior to the termination of the judicial review proceedings. The effect of s 69C(4) was to terminate the stay of execution on determination of the judicial review proceedings. The Court took the view that the period of imprisonment would not commence to run until the offender had been taken into custody pursuant to the existing warrants of commitment.

Power to make further orders

(a)   reopening orders made on 8 May

  1. There is no doubt that the Court has power to make further orders, in addition to those made on 8 May. The dismissal of the Director’s motion of 9 November 2018 occurred in circumstances where there was no evidence before the Court (i) as to the form of the warrants issued by the District Court, nor (ii) that the relevant authorities might not enforce the orders of the District Court sentencing the offender to imprisonment, without further orders.

  2. As explained in Tay v Director of Public Prosecutions (NSW),[2] where a statutory stay operates according to its terms, there is no need, nor is it appropriate, for the Court to make an order lifting or terminating the stay. It may nevertheless be appropriate to make a declaration if there appears to be doubt as to the operation of the statutory provisions in the circumstances of the case. [3] The Court now has before it evidence suggesting that declaratory relief may be required to ensure that the orders of the District Court are enforced.

    2. [2014] NSWCA 53; 239 A Crim R 138 at [4].

    3. Tay at [10].

  3. Further, to the extent that it is necessary to add to, and thus vary, the orders made and entered on 8 May 2019, the filing of a notice of motion by the Director within the period specified in UCPR r 36.16(3A) (14 days) enlivens the Court’s discretionary power to set aside or vary the judgment or orders as if they had not been entered. Accordingly the offender’s procedural objection to the Court considering the further application must be rejected.

(b)   power to make orders sought by Director

  1. It is necessary then to have regard to the statutory scheme with respect to the stay of orders made in the District Court pending determination of the proceedings in the supervisory jurisdiction of this Court. Those provisions need to be considered in the context of relevant general law principles and the legislative history of the statutory amendments.

  2. In addition to s 69C set out above, relating to the stay of execution of the convictions and sentences, the Supreme Court Act contains the following further provisions:

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.

…

(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.

…

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.

  1. The language of s 69D(2) is awkward; its apparent purpose is to provide that a sentence may be ordered to take effect from an earlier day, being a day on which the stay of execution was in force. Its effect is, therefore, similar to an initial sentencing in which pre-sentence custody is taken into account by backdating the commencement date of the sentence, even if the commencement date falls in a period when the offender was in fact at large.

  2. What is less clear is whether the constraint in s 69D(1) on the Court ordering that a sentence take effect from a day that is not later than the day on which the order is made limits the general power to determine the date on which the original sentence of imprisonment is to commence, pursuant to s 69A(5). If that were the intended result, it would mirror the general law with respect to the imposition of a sentence of imprisonment which is not, except in circumstances specified in s 47 of the Sentencing Procedure Act, permitted to commence on a day after the date it is imposed. The most common exception involves the imposition of a sentence to be accumulated on part or all of another sentence imposed at the same time, or currently being served. [4]

    4. Sentencing Procedure Act, s 47(2) and (4).

  3. It was accepted by the Director that the reference in s 69D(1) to “the day the order is made” is the day on which the order was made which had the effect of terminating the stay, rather than the date of the further proposed orders. Even if that were not correct, the date of the substantive judgment, which is an earlier date, could properly be specified.

  1. The history of ss 69A - 69D dates from the 1984 decision of the High Court in Whan v McConaghy. [5] Mr Whan had been sentenced to imprisonment (to be served by way of periodic detention) for a period of 3 months, the sentence being imposed on 9 August 1983 and stated to commence on 19 August 1983. After an attempted (incompetent) appeal, Mr Whan commenced proceedings by way of judicial review and was purportedly granted bail on 26 August 1983, which was later renewed. The judicial review proceedings were dismissed on 6 December 1983, the Court ordering that the time spent on bail should not count as part of his sentence and directing that the sentence should commence on 16 December 1983.

    5. (1984) 153 CLR 631; [1984] HCA 22.

  2. In noting this history, the joint reasons of four members of the Court (Mason, Murphy, Wilson and Deane JJ) observed that “[n]o order had, at any time, been made for the stay of execution of those sentences.” [6] Mr Whan had contended that “the unforeseen consequence of the grant and continuation of bail without any accompanying order that the execution of his sentence be stayed was that he had avoided serving the term of periodic detention to which he had been duly sentenced.” [7] The applicant had also contended that “in the absence of express statutory authority the Court of Appeal had no power to substitute a fresh order of commitment to prison for one the term of which had expired.” The Court accepted that the appeal court had no such power, but Mr Whan’s success turned on whether or not the term of imprisonment had in fact expired. The joint reasons stated:

“If the sentence does not itself direct that the term of imprisonment which the offender is ordered to serve be a period commencing on a particular day or if overriding statutory provisions do not have that effect, the term of imprisonment will ordinarily commence when the offender is taken into custody and begins to serve it. The framing of the sentence or the effect of overriding statutory provision can however, intentionally or inadvertently, be such that the imprisonment to which an offender is sentenced is imprisonment during a period which is identified by reference to a nominated specific commencing date. ... In the absence of statutory provision or valid court order to the contrary however, the term or period during which the offender is sentenced to be imprisoned will commence on the designated day.”

6.    Whan at 634.

7.    What at 635.

  1. The joint reasons further stated: [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.

  1. The judgment continued by reference to the effect of the bail orders which had been made and extended during the period of the review proceedings. Noting that the bail order “does not of itself interfere with the operation of the order [imposing the sentence]”, the judgment 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.”

9.    Whan at 638.

  1. Brennan J, writing separately but to the same result, noted that with respect to an appeal against sentence to the Court of Criminal Appeal, where bail is granted pending the appeal, s 18(3) of the Criminal Appeal Act 1912 (NSW) allows for the time during which the appellant is at liberty on bail to be reflected in the sentence still to be served. Section 125B of the Justices Act 1902 (NSW) had substantially the same effect in relation to an appeal from the Local Court, but did not apply to proceedings in the supervisory jurisdiction. Brennan J then turned to the question of the inherent jurisdiction of the Court and stated: [10]

“The inherent jurisdiction is not closely circumscribed, but it does not extend to sentencing a convicted person to a term of imprisonment in addition to, or in substitution for, a term of imprisonment which was not served because the court had bailed the prisoner during the term. If the processes of the court were abused by the seeking of bail, the suppression of the abuse lay in refusing bail or, perhaps, in revoking the bail once granted. If the seeking of bail in the present case were an abuse, it was not to be remedied by imposing what is in truth a new sentence. The Court of Appeal had no jurisdiction, either inherent or statutory, to make the order under appeal.”

10.    Whan at 642-643.

  1. Perhaps surprisingly, no steps were taken for more than a decade to provide for a statutory stay of execution. The issue arose again in 1992 in Parker v Director of Public Prosecutions. [11] Because the judgment of the District Court was set aside for want of procedural fairness, no question arose as to whether the sentence of imprisonment imposed in the District Court had in fact “continued to run and is now expired.” [12] The President identified the argument as “a troubling one”, [13] and remarked that “[t]he problem presented by these arguments having been brought to notice, it would be highly desirable that provision should be made to remove the doubt which is said to exist.” [14] Parker was referred to in the Explanatory Note to the 1995 Bill introducing the amendments which became s 69A and s 69B of the Supreme Court Act, [15] which stated:

“Sentences of convicted persons seeking judicial review

Proposed section 69A enables the Supreme Court, in proceedings for judicial review of a conviction or sentence for an offence, to commence or recommence an original sentence from a fresh date. This addresses concerns expressed by the Court of Appeal in cases such as Parker v Director of Public Prosecutions (1992) 28 NSWLR 282 at 298–299 and Blazevski v Judges of the District Court of New South Wales (1992-93) 29 ALD 197 at 202–203.

The proposed section also includes provisions similar to section 18 of the Criminal Appeal Act 1912 (as to be amended by the Courts Legislation Further Amendment Bill 1995) to enable the time a person has spent on bail or in special custody awaiting a determination in such proceedings to be reflected in the sentence to be served.”

11. (1992) 28 NSWLR 282 at 298-299 (Kirby P, Handley and Sheller JJA agreeing); see also Blazevski v Judges of the District Court of New South Wales (1992-93) 29 ALD 197 at 202–203 (Kirby P).

12.    Parker at 298D.

13.    Parker at 298E.

14.    Parker at 299B-C.

15. Criminal Legislation Amendment Act 1996 (NSW), Sch 1, cl 1.8.

  1. Sections 69C and 69D were introduced in 1998, [16] as the Explanatory Note to that Bill said, to reproduce provisions in the Justices Act 1902 which were to be repealed. Section 68 of the Crimes (Appeal and Review) Act 2001 (NSW) makes provision in similar terms with respect to appeals.

    16. Justices Legislation Amendment (Appeals) Act 1998 (NSW), Sch 2, cl 2.24.

(c)   effect of stay

  1. The effect of the statutory stay is undoubtedly to prevent the sentence running whilst judicial review proceedings are on foot. As the High Court explained in Whan, in the passage set out at [27] above, a stay of execution “operates directly on the judgment or order the subject of the stay.” A stay of execution of a sentence of imprisonment does not merely prevent a person being taken into custody and detained, it stays the operation of the order, so that the sentence does not run during the period of the stay. A consequential effect will be that a warrant of commitment will not, while the stay is on foot, provide “sufficient authority” for the arrest or detention of the offender, pursuant to s 62(3) of the Sentencing Procedure Act.

  2. To construe s 69C(2) of the Supreme Court Act as merely preventing the offender being held in custody, whilst the sentence continued to run, would be to deprive it of its intended effect and render it nugatory. Indeed, s 69C does not have the effect of entitling a person who is in fact in custody when the judicial review proceedings are commenced to be released; as subs (3) states, that will require a grant of bail and the stay will not operate while the person remains in custody. To read s 69C as allowing the sentence to continue to run while the person the subject of the sentence is at large, as suggested by counsel for the Ms Lazarus, is not open. At best, it would disregard the mandate in s 33 of the Interpretation Act 1987 (NSW) to prefer a construction that would promote the purpose or object underlying the provision to one which would not.

  3. The mischief to which the provision was directed was clearly stated in Whan, Parker and Blazevski and was identified in the Explanatory Note, to which reference may be had in interpreting the amendments, pursuant to s 34(2)(e) of the Interpretation Act. The limited construction proposed by the offender would also disregard the approach consistently adopted to the operation of these provisions in this Court: see Whiteside v Director of Public Prosecutions; [17] Yousaf v Director of Public Prosecutions; [18] Tay; Majak v Rose (No 2); [19] Lazarus v Independent Commission Against Corruption; [20] Gelle v Director of Public Prosecutions (NSW),[21] and Bagshaw v The Office of the Director of Public Prosecutions. [22] It is not insignificant that, in Lazarus v Independent Commission Against Corruption, Leeming JA observed with respect to a stay pending appeal:[23]

“The statutory stay of execution serves an important purpose, for it is important that the right of appeal from a conviction or sentence not be rendered nugatory because the sentence has been fully served by the time the appeal is heard.”

The same principle applies to the stay in the supervisory jurisdiction.

17. [1999] NSWCA 454 at [29]-[35] (Mason P, Handley and Stein JJA).

18. [2012] NSWCA 397 at [52]-[53] (Barrett JA, McColl and Meagher JJA agreeing).

19. [2016] NSWCA 337 at [16]-[17] (McColl, Basten and Leeming JJA).

20. (2017) 94 NSWLR 36; [2017] NSWCA 37 at [28], [32] (Leeming JA, McColl and Simpson JJA agreeing).

21. [2017] NSWCA 245 at [22], [31] (Basten JA), [42]-[45] (Leeming JA).

22. [2017] NSWCA 293 at [9]-[10] (White JA, following Tay).

23. Lazarus at [28].

Exercise of power

  1. Now that the stay has terminated, subject to any order of the Court made pursuant to s 69A(5) or s 69D, the sentence has commenced to run.

  2. Where a person is to be sentenced to a term of imprisonment, the common practice is to ensure that the person is in court, if not in custody, at the time the sentence is imposed. The attendance of the offender who is on bail pending sentence would usually be a requirement of the bail conditions. If the person is not in attendance, and therefore cannot be taken immediately into custody, the imposition of the sentence is usually delayed. However, this Court, in dismissing the judicial review proceedings, had no power to sentence Ms Lazarus. A delay in delivering judgment in her absence appeared to the Court unnecessary, for the reasons explained in the final paragraphs of the judgment. To address apparent doubts as to the legal status of the offender’s sentences and the power to take her into custody, the Director sought orders in the following terms:

“2. The Court orders, pursuant to section 69A(5) of the Supreme Court Act 1970, that the sentences imposed on Sandra Lazarus by the Local Court on 27 April 2015, as varied by the District Court on 12 December 2017, are to commence to take effect from the day on which she is taken into custody.

3.   In the alternative to order 2, the Court declares that the sentences imposed on Sandra Lazarus by the Local Court on 27 April 2015, as varied by the District Court on 12 December 2017, are to commence and take effect from the day on which she is taken into custody and will conclude 1 year and 9 months thereafter, with a non-parole period to conclude 1 year and 1 month after the commencement of the sentences.

4.   In the further alternative to order 2, the Court orders, pursuant to section 69D of the Supreme Court Act 1970, that the sentences imposed on Sandra Lazarus by the Local Court on 27 April 2015, as varied by the District Court on 12 December 2017, are to commence and take effect from the day on which this order is made.

5. The Court declares that the warrant of commitment issued by the District Court in proceedings 2013/00076236 is and remains valid and is sufficient authority for Ms Sandra Lazarus to be conveyed to a correctional centre or police station, and kept in custody for the term of her sentence, pursuant to s 62 of the Crimes (Sentencing Procedure) Act 1999.

6. In the alternative of order 5, the Court issues a further warrant of commitment in respect of Ms Sandra Lazarus, pursuant to s 62 of the Crimes (Sentencing Procedure) Act 1999.

7. In the further alternative to order 5, the Court issues a warrant permitting the arrest of Ms Sandra Lazarus and her conveyance to a correctional centre, to be kept in custody for the term of her sentence, pursuant to the Supreme Court Act 1970, s 23.”

  1. It is convenient to deal with the claims for relief in the order set out above. However, it should be noted that the relevant sentences are those imposed by the District Court, not those imposed by the Local Court as varied by the District Court. [24]

    24. Wishart v Fraser (1941) 64 CLR 470; [1941] HCA 8; Morgan v District Court of New South Wales (2017) 94 NSWLR 463; [2017] NSWCA 105 at [32]; Firth v Director of Public Prosecutions [2018] NSWCA 78 at [25]; Templeton (a pseudonym) v Director of Public Prosecutions (NSW) [2018] NSWCA 335.

  2. First, claims (2) and (3) sought an order that the sentences “are to commence and take effect from the day on which she is taken into custody.” This order presumes that s 69A(5) is not limited by the constraint imposed by s 69D on orders having effect from a future date. It also assumes that such an order would refer to a “specified” day. The correctness of both assumptions is attended by some degree of doubt. On the other hand, if s 69D had been intended to restrict the operation of s 69A(5), it would have been straightforward to amend the earlier provision to impose the restriction. Further, s 69A(5) specifically applies only to sentences of imprisonment; s 69D operates more broadly. Thus, in accordance with the general principle against reading limitations into powers conferred on a superior court, not subject to an express limitation, s 69A(5) should be given full effect. [25] However, the main operation of s 69D is likely to be with respect to sentences of imprisonment, so that an express limitation on specifying a later date would be ineffective. It might appear anomalous if s 69D were construed so as not constrain the power conferred under s 69A(5). There is also authority concerning the meaning of “specified” in differing contexts, but if it is to be a date in the past, this issue does not arise. As the Director was satisfied with 8 May, it is not necessary to decide the correctness of the assumptions. Accordingly, an order in the terms of either claim (2) or (3) was not made.

    25. Owners of Ship Shin Kobe Maru v Empire Shipping Co Inc (1994) 181 CLR 404 at 420-421; [1994] HCA 54.

  3. Claim (4) accepted that an order cannot be made pursuant to s 69D which has effect in the future. It sought an order that the sentences are to commence and take effect from the day on which this order is made. That would fall within the terms of s 69D and be an appropriate order, if the sentences had not already commenced to run. The view adopted above is that the sentences in sentence warrant I commenced on the date on which the statutory stay terminated, which was the date on which judgment was delivered, namely 8 May 2019. (The sentences in sentence warrants II and III will commence 6 months later in accordance with the order for accumulation.) A declaration would be available that the sentences took effect on that date. Such a declaration was therefore made, consistent with the relief sought in claim (5).

  4. Claim (6) proposed that this Court issue a warrant of commitment pursuant to s 62 of the Sentencing Procedure Act. However, s 62 confers power on a court which has sentenced an offender: that is not this Court. Further, a warrant of commitment which in terms complied with s 62 was issued immediately following the sentencing in the District Court, although the dates set out have been rendered incorrect by the statutory stay.

  5. Finally, claim (7) sought the issue of an amended warrant, pursuant to s 23 of the Supreme Court Act. Although in Whan the High Court denied that the Court had inherent power to impose a fresh sentence for one which had expired, the issue of a warrant with respect to a sentence which has not expired is a different exercise. Indeed, it is an administrative function. Nevertheless, it seemed preferable to direct that the District Court, as the sentencing court with statutory power under s 62 of the Sentencing Procedure Act, undertake that function. There can be no suggestion that the power under s 62 cannot be exercised from time to time, and a warrant amended to accord with the dates of the sentence as varied by the stay, and in accordance with the orders made by this Court. Indeed, it would be wrong for the District Court to allow warrants to stand in terms which did not reflect the sentences imposed by it. [26]

    26. Erceg v District Court of New South Wales [2003] NSWCA 379; 143 A Crim R 455 at [25] (Sheller JA, in dissent but not as to this principle), [166] (McColl JA), [188] (Palmer J).

  6. There is no doubt that the extant warrants of commitment, the execution of which has been stayed, but no longer is stayed, provide sufficient authority for the Sheriff’s officers to convey the offender to a correctional centre and deliver her into the charge of the Governor of the correctional centre,[27] to be held in accordance with s 62(3) of the Sentencing Procedure Act. The stay of execution rendered the commencement and expiry dates recorded in the warrants inaccurate. A declaration by this Court as to the effects of the stay has provided sufficient authority for that course to be taken.

    27. Williamson v The Inspector-General of Penal Establishments [1958] VR 330 at 334 (Smith J, Gavan Duffy and Adam JJ agreeing); The Queen v Turnbull; Ex parte Taylor (1968) 123 CLR 28 at 35-36 (Barwick CJ), 40 (McTiernan J), 41 (Taylor J), 45 (Windeyer J) and 51 (Owen J); [1968] HCA 68.

Further stay sought

  1. The problem which has been revealed in this case derives, in one part, from the abolition of remissions and the imposition of a requirement for a sentencing judge to specify the day on which a minimum or fixed term commences and the day on which the prisoner “will be eligible to be released from prison or on parole.”[28] This requirement led to the inclusion of the relevant specified dates in warrants of commitment. The other source of the problem was the provision of a stay in relation to proceedings brought for judicial review of the exercise of the District Court’s appellate criminal jurisdiction. Although s 69A(5) (and s 69D) recognised that orders might need to be made with respect to the effect of the stay in particular cases, the legislature does not appear to have appreciated that judicial review proceedings do not involve the exercise of appellate jurisdiction, and this Court is not a court sentencing an offender for the purposes of s 62 of the Sentencing Procedure Act.

    28. Sentencing Act 1989 (NSW), s 8(1).

  2. At the hearing of the Director’s notice of motion, counsel for the offender appeared to have been under a similar misapprehension, in that he sought to tender a medical report on the basis that this Court had a “discretion to vary the sentence as passed by Judge Hoy”. [29] That was not so. In the alternative, counsel submitted that this Court had a discretion as to whether to vary the commencement dates of the sentences, as they appeared in the warrants of commitment. The medical evidence was said to be relevant for that purpose. A certificate signed by a medical practitioner was tendered and marked for identification. [30] The same medical practitioner had provided a report prior to sentencing which stated that “Ms Lazarus is not medically suited nor fit to be placed in custody.” The updated report expressed the opinion that “Ms Lazarus is not medically or mentally fit to be placed in custody”, but noted that “she has immensely deteriorated over the 14 month period” from her sentencing on 12 December 2017. No details of the deterioration were identified.

    29.    Tcpt, 16/05/19, p 6(20).

    30.    Tcpt, pp 27(10)-(18); 28(32).

  1. The report was not in admissible form, not being annexed to an affidavit and there being no opportunity for the Director to question the medical practitioner. Indeed, the report was apparently only prepared in the form tendered after changes had been made at the request of counsel in the course of the hearing on 16 May. The report should not be admitted. Further, if admitted, it would have provided no basis for the Court to stay its hand in requiring that the offender now serve the sentence of imprisonment properly imposed on her in December 2017, to which she is now subject and which has commenced to run.

  2. The medical certificate was also sought to be deployed in support of an application for a stay of any orders which might be made having the effect of rendering the offender liable to be taken into custody, for a limited period, namely to 4pm on the day after the hearing. The purpose of the stay was said to be to allow the offender to make an application for an inquiry into her convictions and sentences under Pt 7 of the Crimes (Appeal and Review) Act 2001 (NSW).

  3. Part 7 (and its predecessors) permits an administrative inquiry into a conviction or sentence where legal rights of appeal have been exhausted. No doubt the offender technically satisfies that requirement. Nevertheless, it is unclear that there is any power to grant bail with respect to an offender serving a sentence where there is no right of challenge available to her. It is also doubtful that this Court, in the exercise of its supervisory jurisdiction, would have any power to stay the operation of a sentence for this purpose. However, assuming that such a power might be found in the jurisdiction conferred by s 23 of the Supreme Court Act, there was no evidence or submissions before this Court even hinting at a basis for such an inquiry. Ms Lazarus’ application appeared to have been a final and somewhat desperate attempt to continue to delay her commencing to serve the sentences. The application was refused.

  4. For the reasons outlined above, each sentence which was intended to have commenced on 12 December 2017 is now taken to have commenced on 8 May 2019; each sentence intended to have commenced on 12 June 2018 will be taken to commence on 8 November 2019. Similar adjustments will need to be made to the “sentence details” contained in the parole orders which accompany each warrant of commitment. Those adjustments to the warrants should be made in due course by an officer of the District Court. It was to this end that order (2) noted in [1] above was made.

Orders

  1. For these reasons the Court made the orders set out in [1] above at the conclusion of the hearing of the Director’s application.

  2. SIMPSON AJA: On 16 May 2019, on a notice of motion filed by the Director of Public Prosecutions (“the DPP”) on 10 May 2019, the Court made the orders set out at [76] below. What follows are my reasons for joining in those orders.

Background

  1. In November 2014 the respondent, Sandra Lazarus, was convicted in the Local Court of multiple offences of dishonesty committed over a period beginning in April 2008 and ending in November 2009. She was sentenced on 27 April 2015. She appealed to the District Court against both the conviction and sentences. By s 63(2)(a) of the Crimes (Appeal and Review) Act 2001 (NSW) (“the Appeal and Review Act”), on the filing of the appeal execution of the sentence was stayed. By s 63(3) the stay remained in force until the determination of the appeal. The respondent was granted conditional bail pending the hearing of the appeal. On 19 June 2017 the appeal against conviction was dismissed by the District Court. By reason of the undetermined sentence appeal the stay remained in place.

  2. The respondent (together with her sister, Michelle Lazarus, who was convicted of related offences but who is not party to the present proceedings) then filed, pursuant to s 69 of the Supreme Court Act 1970 (NSW), a summons seeking judicial review of the convictions, naming the Independent Commission Against Corruption and the DPP, respectively, as second and third respondents. By s 69C(2)(a) of the Supreme Court Act such an application operates as a stay of any sentence imposed as a consequence of a conviction.

  3. Subsections 69C(2) and (4) relevantly provide as follows:

“69C(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,

…

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

…”

  1. From the date of her initial conviction (November 2014) the respondent, by various legal manoeuvres, sought to impede the progress of the criminal proceedings, and, in particular, to prevent the appeal against sentence proceeding in the District Court. Those manoeuvres are largely detailed in Lazarus v Independent Commission Against Corruption [2018] NSWCA 66 per White JA, and also in Lazarus v Independent Commission Against Corruption (2017) 94 NSWLR 36; [2017] NSWCA 37.

  2. Notwithstanding those manoeuvres, on 12 December 2017 the respondent’s appeal against sentence was heard and determined in the District Court (Hoy DCJ). The stay of execution imposed by s 63 of the Appeal and Review Act terminated. Hoy DCJ varied the sentences that had been imposed in the Local Court. He sentenced the respondent to 3 tranches of concurrent sentences, the second and third tranches partially accumulated on the first, as follows:

  • Counts 1-7: imprisonment for 12 months commencing 12 December 2017 and expiring on 11 December 2018, with a non-parole period of 9 months, expiring on 11 September 2018;

  • Counts 8-18, Count 54-58: imprisonment for 8 months commencing on 12 June 2018 and expiring on 11 February 2019, with a non-parole period of 6 months, expiring on 11 December 2018;

  • Counts 24, 25, 27-31, and 40-53: imprisonment for 15 months, commencing 12 June 2018 and expiring on 11 September 2019 with a non-parole period of 7 months, expiring on 11 January 2019.

The overall effective sentence was of imprisonment for 1 year and 9 months commencing on 12 December 2017 and expiring on 11 September 2019 with a non-parole period of 1 year and 1 month to expire on 11 January 2019.

  1. Because each sentence was of less than 3 years, s 50 (since repealed) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Procedure Act”) required that the sentencing judge direct that the respondent be released to parole at the expiration of the non-parole period. Hoy DCJ directed accordingly.

  2. In accordance with s 62 of the Sentencing Procedure Act the District Court issued three warrants (one for each tranche of sentences) for the committal of the respondent to a correctional centre. Subsections 62(1) and (3) provide as follows:

“62(1) As soon as practicable after sentencing an offender to imprisonment, a court must issue a warrant for the committal of the offender to a correctional centre.

…

(3) A warrant under this section is sufficient authority:

(a) for any police officer to convey the offender to the correctional centre or police station identified in the warrant, and

(b) for the governor of the correctional centre, or the person in charge of the police station, to keep the offender in his or her custody for the term of the sentence.

…”

Each warrant stated the commencement and expiration date of the sentences to which it related.

  1. At the same time, in accordance with s 50 of the Sentencing Procedure Act, the Court issued parole orders, the last of which directed the release of the respondent to parole on 11 January 2019. Each was a “statutory parole order” within the meaning of s 158 of the Crimes (Administration of Sentences) Act 1999 (NSW) (“the Administration of Sentences Act”).

  2. Sections 126 and 158 of the Administration of Sentences Act relevantly provide:

“126(2) An offender is eligible for release on parole only if:

(a) the offender is subject to at least one sentence for which a non-parole period has been set, and

(b) the offender has served the non-parole period of each such sentence and is not subject to any other sentence.

…

158(1) An offender who is subject to a sentence of 3 years or less, being a sentence for which a non-parole period has been set, is taken to be subject to a parole order (a statutory parole order) directing the release of the offender on parole at the end of the non-parole period.”

  1. The respondent was not taken into custody on the imposition of the sentences. That was because the view was taken that, on the commencement of the proceedings for judicial review of the convictions, s 69C(2)(a) of the Supreme Court Act operated to stay the execution of any sentence imposed thereafter.

  2. On 5 March 2018 the respondent filed in this Court an amended summons in which she specifically included in the application for judicial review the sentence orders of 12 December 2017. On 9 November 2018 the DPP filed a notice of motion seeking, with respect to the respondent, an order:

“… pursuant to section 69A(5) and/or section 69D of the Supreme Court Act 1970:

a. that the sentence imposed on Sandra Lazarus by the Local Court on 27 April 2015, as varied by the District Court on 12 December 2017, is to commence and take effect from the date of the determination of these proceedings …”

  1. Sections 69A(5) and 69D of the Supreme Court Act provide as follows:

“69A(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.

…

69D(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.”

  1. On 8 May 2019 this Court dismissed the amended summons: Lazarus v Independent Commission Against Corruption [2019] NSWCA 100. It also dismissed the DPP’s notice of motion of 9 November 2018. For that latter order, it gave its reasons as follows:

72. In relation to Sandra, the orders made by Hoy DCJ on 12 December 2017 provided for her sentence for counts 1 to 7 to commence on 12 December 2017 and for the non-parole period in relation to her last expiring sentence for counts 24, 25, 27-31 and 40-53 to expire on 11 January 2019. As no part of that sentence has been served the removal of the stay of execution will permit Sandra to be taken into custody with the first of those sentences to commence at that time.

…

74. In these circumstances there is no reason to make any order in aid of the application of s 69C(4). Furthermore, if the respondents wish to contend otherwise Uniform Civil Procedure Rules 2005, Pt 36 r 36.16(3A) enables them within the specified time to make an application to vary the orders I propose be made.”

  1. The DPP took steps to have the respondent taken into custody. Just what those steps were is unclear. However, the Office of the DPP was informed that the Department of Corrective Services took the view that it had “no jurisdiction” to apprehend the respondent, and that the warrants issued by the District Court had expired. The Department also advised that it relied on NSW Police to execute any warrants, and that:

“NSW Police have made it quite clear that they are unable to apprehend the offender without an arrest warrant … [and that] it is the opinion of both [the Department of Corrective Services] and the District Court that the Court of Appeal are the proper authority to issue such a warrant.”

The last statement was plainly wrong, and the Registrar of this Court correctly declined a request to issue a warrant.

  1. In these circumstances, on 10 May 2019 the DPP sought, by notice of motion, the following orders:

“Service

1. Pursuant to Uniform Civil Procedure Rules 2005, rule 18.4, the time for service of this motion be abridged to 3.30 pm on 10 May 2019, with service to be effected by email to [the solicitor for the respondent and the respondent].

Commencement of sentence

2. The Court orders, pursuant to section 69A(5) of the Supreme Court Act 1970, that the sentences imposed on Sandra Lazarus by the Local Court on 27 April 2015, as varied by the District Court on 12 December 2017, are to commence and take effect from the day on which she is taken into custody.

3. In the alternative to order 2, the Court declares that the sentences imposed on Sandra Lazarus by the Local Court on 27 April 2015, as varied by the District Court on 12 December 2017, are to commence and take effect from the day on which she is taken into custody and will conclude 1 year and 9 months thereafter, with a non-parole period to conclude 1 year and 1 month after the commencement of the sentences.

4. In the further alternative to order 2, the Court orders, pursuant to section 69D of the Supreme Court Act 1970, that the sentences imposed on Sandra Lazarus by the Local Court on 27 April 2015, as varied by the District Court on 12 December 2017, are to commence and take effect from the day on which this order is made.

Issue of warrant

5. The Court declares that the warrant of commitment issued by the District Court in proceedings 2013/00076236 is and remains valid and is sufficient authority for Ms Sandra Lazarus to be conveyed to a correctional centre or police station, and kept in custody for the term of her sentence, pursuant to s. 62 of the Crimes (Sentencing Procedure) Act 1999.

6. In the alternative to order 5, the Court issues a further warrant of commitment in respect of Ms Sandra Lazarus, pursuant to s. 62 of the Crimes (Sentencing Procedure) Act 1999.

7. In the further alternative to order 5, the Court issues a warrant permitting the arrest of Ms Sandra Lazarus and her conveyance to a correctional centre, to be kept in custody for the term of her sentence, pursuant to the Supreme Court Act 1970, s. 23.

8. Such further or other orders as the Court sees fit.”

  1. The notice of motion was supported by an affidavit sworn by Ryan Thomas, a solicitor employed in the Office of the DPP. Inter alia, Mr Thomas annexed to the affidavit evidence demonstrating that the Department of Corrective Services declined to act on the warrants issued by the District Court because it took the view (wrongly, as will be seen) that the warrants had expired.

  2. The notice of motion came before me, sitting as a single judge, on 13 May 2019. An affidavit affirmed on that day by Christopher Frommer (a solicitor employed in the Crown Solicitor’s Office) was provided. The DPP filed a further notice of motion seeking “to the extent necessary” that the orders sought in the 10 May 2019 notice of motion be made in the exercise of power conferred by Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), r 36.16(3A).

  3. UCPR r 36.16(3A) provides as follows:

“If notice of motion for the setting aside or variation of a judgment or order is filed within 14 days after the judgment or order is entered, the court may determine the matter, and (if appropriate) set aside or vary the judgment or order under subrule (1), as if the judgment or order had not been entered.”

That is, the DPP now sought variation of the orders of 10 May 2019.

  1. I took the view that such an application (relating, as it did, to orders made by the Court constituted by three judges) could not be dealt with by a single judge, and, accordingly, the President convened a three judge bench to hear the DPP’s applications, and listed the matter for hearing on 16 May 2019. During the course of the hearing counsel for the respondent (Mr Waterstreet) made an application for a stay, until 4.00pm on 17 May 2019, of any orders this Court may make. The purpose of the stay was said to be to enable the respondent to apply, under Part 7 of the Appeal and Review Act, for an inquiry into her conviction and/or sentence.

  2. On the day of the hearing, the DPP filed an affidavit that disclosed that the Department of Corrective Services had reconsidered its position with respect to the currency of the warrants, and now accepted (correctly) that the warrants (more accurately, the third of the three warrants) have not expired, and remains current until 11 September 2019. Mr Waterstreet expressly accepted that that was so. That warrant is therefore, by s 62(3) of the Sentencing Procedure Act, sufficient authority for the apprehension of the respondent and her detention until that date. It is not, however, as it stands, authority for the detention of the respondent beyond that date. Moreover, the parole orders made have not been shown to be defective, and, on their face, have the effect of entitling the respondent to liberty on parole from 11 January 2019.

  3. Mr Waterstreet filed written submissions opposing the orders. His principal point appeared to be that:

“The purpose, authority and jurisdiction of the Court of Appeal was concluded on 08 May 2019, as such the Court of Appeal became functus officio in relation to the sentence passed on Sandra Lazarus … The matter cannot be reopened in the Court of Appeal …”

  1. While expressly acknowledging the DPP’s reliance on UCPR r 36.16(3A), Mr Waterstreet appeared to contend that that rule has no application in sentencing proceedings. He referred to the decision of the Victorian Court of Appeal in Director of Public Prosecutions v Edwards (2012) 44 VR 114; [2012] VSCA 293, in which (he asserted) Weinberg JA and Williams AJA said:

“At common law, once a sentence is entered into the records of the court, the sentencing judge is functus officio and has no power to alter the sentence pronounced, even where that sentence is wholly invalid …”

The paragraph purports to be a quotation from the judgment, but it is wholly inaccurate. What their Honours said was:

“235   Once a judge of any court, whether it be a superior court of record or, as in the case of the County Court, an inferior court of record, has passed sentence, and that sentence has been entered into the records of the court, then, subject to legislative provision to the contrary, that judge is functus officio. That is so irrespective of whether the sentence itself can be challenged on the basis that it was beyond power. If the sentence is made in excess of jurisdiction, it can be rectified. The proper process is either to institute the appeal process set out in the Criminal Procedure Act 2009 or, in the case of the County Court, to seek certiorari.”

No doubt that is correct, but it is immaterial. This Court is not a sentencing court. The jurisdiction it is exercising is the very jurisdiction which their Honours said was the correct process to rectify sentences said to have been passed in excess of jurisdiction.

  1. The principal point made on behalf of the respondent – that this Court has no power to vary its own orders – is in direct contradiction of the power conferred by UCPR r 36.16(3A).

  2. In other arguments, Mr Waterstreet took issue with some of the detail of the affidavit evidence before the Court, issues which do not call for decision because the facts outlined above are not in dispute.

  3. Submissions were also made under the heading “Abuse of Human Rights”. Reference was made to the initial approach of government agencies (the Department of Corrective Services and NSW Police) concerning the authority to take the respondent into custody, and to the International Covenant on Civil and Political Rights. No article of that Convention was identified as having been contravened.

  4. There was, in truth, no valid argument advanced on behalf of the respondent why orders should not be made to give effect to the sentences imposed.

  5. Accordingly, at the conclusion of the hearing, the Court made the following declarations and orders:

(1) Declare that:

(a) warrants of commitment issued out of the District Court of NSW on 12 December 2017 in proceedings 2013/00076236 are valid and sufficient authority for the committal of Ms Sandra Lazarus forthwith to be conveyed to a correctional centre and kept in custody for the terms of her sentences;

(b) the sentences recorded in the said warrants as commencing on 12 December 2017, the execution of which was stayed, did not so commence but have now commenced on the date on which the statutory stay terminated, namely 8 May 2019;

(c) the sentences recorded in the said warrants as commencing on 12 June 2018, the execution of which was stayed, did not so commence but will now commence 6 months after the date on which the statutory stay terminated, namely on 8 November 2019, and

(d) the parole orders made in the District Court of NSW will commence at the expiry of the non-parole periods for each offence as calculated from the dates identified in (b) and (c) above.

(2) Remit the matter to the District Court of NSW for the amendment of the warrants of commitment and parole orders in accordance with Order 1(b), (c) and (d) above.

(3) Note that the reasons for these declarations and orders to be published in due course.

(4) The oral application made by Mr Waterstreet on behalf of Ms Lazarus for a stay until 4pm Friday, 17 May 2019 pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 is refused.

The consequences of the judgment of 8 May 2019

  1. Upon the dismissal of the respondent’s summons under s 69 of the Supreme Court Act, the stay of execution that operated by reason of s 69C(2) came to an end: s 69C(4). The judgment did not itself operate to adjust the commencement dates of the sentences. Power to make orders to that effect is conferred by s 69A(5), set out above. That was the power invoked by prayer 2 of the DPP’s 10 May 2019 notice of motion. Such a power is also conferred by s 69D, which the DPP had invoked in its 9 November 2018 notice of motion.

  2. It will be recalled that what was sought by prayer 2 of the notice of motion of 10 May was an order pursuant to s 69A(5) that the sentences (plural) imposed on 12 December 2017 “are to commence and take effect from the day on which [the respondent] is taken into custody”.

  3. There were at least three problems with the manner in which this proposed order was framed. First, “the sentences” imposed by the District Court were not all expressed to commence on the same day; the sentences were structured so as to provide for some accumulation, so that the sentences for the second and third tranches of offences commenced on dates later than 12 December 2017 (and had commensurate expiry dates). To order that all three sentences commence on the same date (as sought) would be to defeat the purpose of the structuring of the sentences. No reason was advanced why this Court should depart from the District Court structuring. Nor would such an order achieve the DPP’s purpose, which was to ensure that the respondent serves terms of imprisonment in accordance with the sentences imposed by Hoy DCJ. Second, it is doubtful that a sentence expressed to “commence and take effect on a day on which [the respondent] is taken into custody” is a sentence that “is to commence … on a day specified by the Court” as required by s 69A(5). Third (although the order was not sought under s 69D), such an order would not comply with the requirements of that provision that the sentence take effect on a specified day “being the day the order is made or an earlier day”. Plainly, s 69D does not contemplate specification of a day later than the date of the orders as would be the case were the orders sought in prayer 2 to be made.

  4. On the hearing, the DPP sought and was granted leave to amend prayer 2 of the notice of motion to seek an order specifying 8 May 2019 (the date of dismissal of the s 69 summons) as the date of commencement of the sentences. That recognised that, by s 69C(4) of the Supreme Court Act (subject to any order or direction of the Court), the stay of execution imposed by virtue of sub-s (2) continued in force [only] until the date of disposition of the judicial review proceedings. But the cessation of the stay of execution did not of itself affect the commencement date of the sentences, the first and second tranches of which had already expired. Even if it could be said that the cessation of the stay of execution had the effect of recommencing the sentences, that did not accommodate the staggered commencement dates. Section 69A(5) permitted adjustment of the commencement dates to allow for the structuring ordered by Hoy DCJ.

  5. Section 69A (with s 69B, which is of no present relevance) were introduced into the Supreme Court Act by the Criminal Legislation Amendment Act 1996 (NSW). Section 69A was said, in the Explanatory Note that accompanied the Bill that became the Act, to have been intended to address “concerns” expressed by the Court of Appeal in cases such as Parker v Director of Public Prosecutions (1992) 28 NSWLR 282 at 298-299 and Blazevski v Judges of the District Court of New South Wales (1992-93) 29 ALD 197 at 202-203.

  6. The concerns expressed in Parker and Blazevski were about the power (or the absence of power) of this Court to make orders adjusting the commencement dates of sentences, execution which had been stayed pending determination of judicial review proceedings. A similar issue had previously arisen in Whan v McConaghy (1984) 153 CLR 631; [1984] HCA 22.

  7. Sections 69C and 69D were inserted into the Supreme Court Act two years later, in the context of extensive amendments, largely procedural, to justice administration legislation: Justice Legislation (Appeals) Act 1998 (NSW).

  8. Some tension between s 69D(1) and s 69A(5) is apparent. While both subsections confer on this Court a power to make an order specifying a new commencement date for a sentence that has been the subject of an application for s 69 review, execution of which has therefore been stayed by operation of s 69C(2), the s 69D power is confined to specifying the day on which the order is made, or an earlier day. It does not permit the Court, in effect, to post-date commencement of a sentence. The power conferred by s 69A(5) is not so confined.

  9. Section 69D was the subject of consideration by this Court in Whiteside v The Director of Public Prosecutions [1999] NSWCA 454. The Court (Mason P, Handley and Stein JJA) said:

“35 The power conferred by s69D necessarily requires this Court to assess the real impact of the sentence served or not served pending the application. The power (like the similar power in s133P of the Justices Act) may take account of punishment actually endured pursuant to orders that are about to be set aside or intended punishment avoided pursuant to the grant of bail pending the review proceedings (cf Whan v McConaghy (1984) 153 CLR 631). In order to do this the Court is not confined to a simple numerical exercise. While it is not exercising an appellate jurisdiction as on a rehearing, its power under s69D is obviously available to be used in a way that addresses the substantive issue as regards the reinstatement of the penalty that properly should have been served. The limit is that this power is only available to be exercised in the manner contemplated by s69D(1). (The District Court’s powers under s133(2) are wider in their terms.)”

The Court had earlier rejected a submission that s 69D conferred powers of which only the Crown could take advantage.

  1. There is no reason why the observations of the Court concerning s 69D should not apply equally to the power conferred by s 69A(5). The language of s 69A(5) is unambiguous. Pursuant to that subsection, this Court has power to adjust the commencement dates of the sentences, including by post-dating the commencement of the second and third tranches. That is in accordance with conventional sentencing practice. It is also in accordance with the stated purpose of the enactment of s 69A.

  2. The intention of the District Court was that the respondent would serve a sentence of 1 year and 9 months, of which 1 year and 1 month would be served in custody. She has not, to the date of the hearing of this application, served a day of that sentence. This is, in my opinion, precisely the circumstance (or one of the circumstances) to which s 69A(5) is directed, and it is that power that the DPP sought to have exercised.

  3. No adequate reason was advanced why the respondent should not now serve the sentences. In this respect it is appropriate to acknowledge that, during the course of the hearing, counsel for the respondent tendered what purported to be a medical certificate detailing certain conditions from which the respondent is said to suffer. The certificate, it was contended, was relevant to the exercise of the Court’s discretion in making (or not making) the orders sought. Objection to the admission of the medical certificate was taken. Determination of the objection was reserved

  4. The medical certificate was in a form commonly tendered in sentencing proceedings. It is not in a form appropriate for the consideration of a notice of motion invoking discretionary powers of this Court in proceedings for judicial review. I would reject the tender of the report.

  5. Even if the report were admitted, it could not have affected the outcome. When pressed to identify the orders that ought to be made in the exercise of discretion, counsel appeared to suggest that a lesser sentence should be imposed. Since this is not a sentencing court, nor a court to which appeals against sentence may be brought, that could only be achieved by the selection of earlier commencement dates of the sentences, such that the period to be served in custody is reduced or eliminated.

  6. In my opinion, the material contained in the medical report, even if it were admitted, would be insufficient to justify any orders that would have the practical effect of reducing the sentences imposed. Medical conditions are not uncommon in offenders serving terms of imprisonment, and the Department of Corrective Services is equipped to provide the necessary treatment.

  7. There is, therefore, no apparent reason why the respondent should not be required to serve sentences in accordance with those determined by the District Court on 12 December 2017. The DPP’s application for an order under s 69A(5) was unanswerable. The order sought in prayer 2 (as amended) is purely a reflection of the statutory provisions. That is why it was appropriate to make Declarations 1(b) and (c). In fact, since Declaration 1(b) is that the first of the sentences take effect from 8 May 2019, and the declaration was made on 16 May 2019, the respondent will in fact be required to serve something less than the stated term, depending on when she is taken into custody.

  8. For those declarations to be effective, appropriate and valid warrants are necessary. That is because it is warrants, not orders of a court, that authorise the detention of an offender: s 63(2) of the Sentencing Procedure Act. Declaration 1(a) clears any lingering doubt about the efficacy of the third of the existing warrants to authorise the apprehension and detention of the respondent, but that is effective only until 11 September 2019.

  9. In order to ensure the effectiveness of Declarations 1(b) and (c) it was necessary to make consequential orders. The authority pursuant to which an offender may be held in custody is a warrant issued (in this case) under s 62 of the Sentencing Procedure Act. By s 242 of the Criminal Procedure Act 1986 (NSW), a warrant must, inter alia, specify the period during which the offender is to be kept in a correctional centre. The existing warrants specify 12 December 2017 to 11 December 2018, 12 June 2018 to 11 February 2019 and 12 June 2018 to 12 December 2019 as the periods during which the respondent is to be kept in custody. Those dates no longer accord with the commencement and expiry dates of the sentences as declared by this Court. The third of the existing warrants is sufficient authority for the detention of the respondent until, but not beyond, 11 September 2019. There is presently no warrant that authorises her detention beyond that date. By prayer 6 of the notice of motion, the DPP sought the issue by this Court of warrants that accord with the revised sentence dates. It was accepted, however, that s 62 of the Sentencing Procedure Act provides no authority for that to be done. The power conferred by s 62 is limited to the sentencing court, which this Court is not.

  10. It will therefore be necessary for the existing warrants to be amended in accordance with those declarations in order to provide authority to a correctional centre to continue to detain the respondent beyond 11 September 2019. Amendment of warrants issued in the District Court under s 62 of the Sentencing Procedure Act is not a function, and is beyond the power, of this Court. It was for that reason that it was appropriate to make order 2, remitting the proceedings to the District Court for amendment of the warrants.

  11. What remained was the question of the parole orders. It was my view that, given the adjustment of the dates in the sentences, the parole orders made on 12 December 2017 were of no force or effect. Not least is that because, by s 126(2)(b) of the Administration of Sentences Act (set out above), the respondent is eligible for release on parole only if she has served the non-parole period of each sentence. She has not done so. She was therefore not eligible for release on parole. It was necessary to adjust the parole orders to accommodate the revised sentence dates. That was the reason for the declaration numbered 1(d).

  12. It remains to explain the reason for refusal of the application for stay of the orders of this Court until 4.00pm on 17 May 2019. The basis for the application was said to be to enable the respondent to apply for an inquiry into her convictions and/or sentences. Part 7 of the Appeal and Review Act provides a mechanism by which such an inquiry may take place. There is nothing to prevent the respondent from making such an application at any time. There is no provision in Part 7 that would prevent the sentences from running in the event that an application is made. Nothing would have been achieved by the ordering of a stay of execution of the orders of this Court for the purpose stated. It was therefore appropriate to refuse the application.

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Endnotes

Decision last updated: 29 May 2019

Most Recent Citation
Cases Citing This Decision

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Cases Cited

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Statutory Material Cited

15

Tay v Director of Public Prosecutions (NSW) [2014] NSWCA 53
Whan v McConaghy [1984] HCA 22
Whan v McConaghy [1984] HCA 22