R v Forrester

[2000] NSWCCA 66

CITATION:	R v FORRESTER [2000] NSWCCA 66
FILE NUMBER(S):	CCA 60472/99
HEARING DATE(S):	7 March 2000
JUDGMENT DATE:	7 March 2000
PARTIES :	Crown - Appellant Helen Forrester - Respondent
JUDGMENT OF:	Sheller JA at 1; James J at 10; Dowd J at 12

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	97/31/0282
LOWER COURT JUDICIAL OFFICER :	Nader DCJ

COUNSEL :	C K Maxwell QC - Crown C B Craigie- Respondent
SOLICITORS:	S E O'Connor - Crown T A Murphy - Respondent
CATCHWORDS:	CRIMINAL PRACTICE AND PROCDURE - CROWN APPEAL AGAINST SENTENCE - NOTICE OF APPEAL IN RESPECT OF ORDER BY ONE JUDGE BUT CROWN CASE DIRECTED TO SENTENCE PRONOUNCED BY ANOTHER JUDGE - APPEAL MISCONCEIVED - CRIMINAL APPEAL ACT 1912, ss5D, 5DA
LEGISLATION CITED:	Criminal Appeal Act 1912 Crimes Act 1900
DECISION:	Appeal dismissed

IN THE COURT OF

CRIMINAL APPEAL

60472/99

SHELLER JA
JAMES J
DOWD J

Tuesday, 7 March 2000

REGINA v Helen FORRESTER

JUDGMENT

1 SHELLER JA: In this matter on 18 August 1999 the Director of Public Prosecutions gave notice pursuant to s5DA of the Criminal Appeal Act 1912 that he desired to appeal to the Court of Criminal Appeal against sentence pronounced by his Honour Judge Nader at Newcastle District Court on 15 April 1998 when the respondent, Helen Forrester, appeared for sentence on a charge of robbery in company to which she had pleaded guilty.

2    For that offence on that occasion his Honour deferred sentence upon condition that the respondent enter a recognizance to be of good behaviour for two years on the ground that she receive a reduced sentence because of her undertaking to assist the law enforcement authorities. She failed to fulfil that undertaking.

3    On 8 April 1999, the respondent came before his Honour Judge Job at Newcastle District Court for sentence on another charge in relation to an offence of in company assaulting with intent to rob and at the time of that assault, wounding. On that occasion, Judge Job was invited to deal with what the Crown claimed was a breach of recognizance imposed by his Honour Judge Nader.

4    His Honour was told on behalf of the respondent that the respondent would no longer give evidence for the Crown and that appeared to be one of the main bases that his Honour Judge Nader gave her a recognizance on that occasion.

5    Judge Job recorded that Judge Nader said:

“In all of the circumstances of this case and especially in view of the last step taken by your client …. I think it would be quite inappropriate to send her to gaol, notwithstanding the extreme seriousness of the offence that she committed.”

6    In respect of that breach of recognizance which his Honour found, Judge Job sentenced the respondent to a fixed term of six months for that offence.

7 On this appeal the Crown has filed submissions which are directed to the sentence imposed by Judge Job on 8 April 1999. On that basis it appears that on its face the appeal as filed was misconceived. Any appeal against the sentence imposed by Judge Job by the Crown would be pursuant to s5D of the Act. One of the problems of appealing against any sentence imposed by Judge Nader was that his Honour deferred sentence.

8    When this matter was brought today to the attention of the Crown it was suggested that in reality the appeal was against Judge Job's sentence; the possibility was raised of some amendment being made to the notice of appeal. However, in my opinion, bearing in mind the extraordinary nature of Crown appeals against inadequacy of sentence it is inappropriate for the Court, even if such an amendment were pressed for, to grant it.

9    On the basis that the notice of appeal is formulated in a way which is misconceived, in my opinion, it should be dismissed.

10 JAMES J: I agree with the judgment of the presiding Judge. It would, I think, have been possible for the Crown to appeal against the order made by Judge Nader on 15 April 1998 because an order pursuant to s558(3) of the Crimes Act 1900 does fall within the extended definition of “sentence” in the Criminal Appeal Act.

11    The notice of appeal of 18 August 1999 was prepared on the basis of Judge Nader’s order. However, as the presiding Judge has demonstrated, the case the Crown now wishes to argue is quite a different case, directed not to the order made by Judge Nader but to the sentence passed by Judge Job and based on a different section of the Criminal Appeal Act. I agree with the orders proposed by the presiding Judge.

12    DOWD J: I agree with the orders proposed and the reason therefor of the presiding Judge. I also agree with the remarks of Justice James.

13    SHELLER JA: The order of the Court is the appeal is dismissed.

******