R v Hall - [2004] NSWCCA 127

CITATION: Regina v Hall [2004] NSWCCA 127

HEARING DATE(S): 06/04/2004, 08/04/2004, 30/04/2004

JUDGMENT DATE:
30 April 2004

JUDGMENT OF: Handley JA at 1, 56; Dowd J at 50; Greg James J at 51

DECISION: 1. Leave to appeal granted.; 2. Appeal dismissed.

CATCHWORDS: CRIMINAL APPEAL - bail pending appeal - sentence continues to run - express statutory power required for Court dismissing appeal to re-start sentence to allow for time spent on bail - D

LEGISLATION CITED: Crimes (Administration of Sentences) Act 1999 s 82(1), 83(1)(a), 85
Crimes (Sentencing Procedure) Act 1999 ss 6(1), 44(1), 47(1), 70
Drug Misuse and Trafficking Act 1985 s 25(1)
Justices Act 1902 s 51A
Periodic Detention of Prisoners Act 1981 s 8

CASES CITED: Regina v Carrion (2002) 128 ACR 29
Regina v Nunan [1999] NSWCCA 117
Whan v McConaghy (1984) 153 CLR 631
Wilson v Department of Corrective Services (1997) 93 ACR 301

PARTIES :
Regina v Timothy James Hall

FILE NUMBER(S): CCA 60524/03

COUNSEL: G Rowling (Crown)
J C Papayanni (Applicant)

SOLICITORS: Director of Public Prosection (NSW) (Crown)
Peter Prior & Co (Applicant)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/11/0297

LOWER COURT
JUDICIAL OFFICER : McGuire DCJ

CCA 60524/03

HANDLEY JA
DOWD J
GREG JAMES J
30 APRIL 2004

REGINA v TIMOTHY JAMES HALL

CATCHWORDS

CRIMINAL APPEAL – bail pending appeal – sentence continues to run – express statutory power required for Court dismissing appeal to re-start sentence to allow for time spent on bail

FACTS

The appellant was sentenced by the District Court to imprisonment for two years with a non-parole period of twelve months and ordered to serve the sentence by way of periodic detention. He sought leave to appeal against his sentence and was admitted to bail pending the hearing of his appeal. He was granted leave to appeal but his appeal was dismissed. The Court reserved judgment in order to consider whether it had power to adjust and re-start the sentence when the appeal was dismissed and directed the filing of written submissions. HELD: (1) The sentence and the order for periodic detention continued to run although the appellant was on bail: Whan v McConaghy (1984) 153 CLR 631 applied; (2) Until the repeal of the former s 18(3) of the Criminal Appeal Act 1912 by the Courts Legislation Further Amendment Act 1995 that section conferred power on the Court of Criminal Appeal, if it dismissed an appeal when the appellant had been on bail, to adjust and re-start the sentence although in the meantime it had been running or had expired: Whan v McConaghy (above) applied; (3) The repeal of the former s 18(3) and its replacement by s 18(2) in its current form did not give the Court power to substitute a fresh order of commitment to prison after the sentence had been running or had expired even though the appellant had been on bail; (4) No other relevant source of power was available; (5) The Court had no power to re-start the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Hall

Details

AGLC: R v Hall [2004] NSWCCA 127
Case: [2004] NSWCCA 127
Decision Date: 30 April 2004

CaseChat Overview and Summary

In the matter of R v Hall, the appellant, Hall, sought to appeal against a sentence imposed by the lower court. The dispute centred on the conditions of bail pending the appeal and the implications of the sentence continuing to run during that period. The case was heard in the High Court of Australia. The appellant contended that the Court of Criminal Appeal should have the power to restart the sentence from the point at which it was suspended for the appeal, to account for the time spent on bail. The Crown argued that such a power did not exist and that the sentence should continue to run without interruption.

The central legal issue before the Court was whether the Court of Criminal Appeal had the express statutory power to re-start a sentence that had been suspended pending an appeal, to allow for the time spent on bail. The Court needed to determine whether the existing statutory framework provided the necessary authority to adjust the sentence in this manner. The Court considered the relevant statutory provisions and the extent to which they empowered the Court of Criminal Appeal to modify the sentence in the context of bail pending appeal.

The Court held that the statutory framework did not provide an express power for the Court of Criminal Appeal to re-start a sentence that had been suspended pending an appeal, in order to account for the time spent on bail. The Court emphasised the need for explicit statutory authority to make such a significant alteration to the sentence. As a result, the appellant's contention was rejected, and the sentence continued to run without adjustment for the period spent on bail. Consequently, the appeal was dismissed.

Orders