R v King
[2005] NSWCCA 296
•25 August 2005
NEW SOUTH WALES COURT OF CRIMINAL APPEAL
CITATION: Regina v King [2005] NSWCCA 296
FILE NUMBER(S):
2005/927
HEARING DATE(S): 25 August 2005
JUDGMENT DATE: 25/08/2005
PARTIES:
Regina
Vincent Patrick King
JUDGMENT OF: Sully J Hidden J Hall J
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 04/11/1098
LOWER COURT JUDICIAL OFFICER: Berman DCJ
COUNSEL:
P. Miller - Crown
G. R. Heathcote - Respondent
SOLICITORS:
D.P.P. - Crown
Legal Aid - Respondent
CATCHWORDS:
LEGISLATION CITED:
Crimes Sentencing Procedure Act 1999 (NSW)
DECISION:
Appeal dismissed
JUDGMENT:
- 2 -
IN THE COURT OF
CRIMINAL APPEAL
2005/927
SULLY J
HIDDEN J
HALL J25 August 2005
REGINA v Vincent Patrick KING
Judgment
SULLY J: This is a Crown appeal against a decision of His Honour Judge Berman SC in the District Court at the Downing Centre. His Honour was dealing with a charge of conspiracy to defraud to which Mr King, the respondent to the application, had pleaded guilty.
His Honour adjourned until 23 September next, and pursuant to s.11 of the Crimes Sentencing Procedure Act 1999(NSW) further consideration of the matter; and, as things stand, that is what is going to happen: the matter will go back before his Honour on that day, presumably for the passing in proper form of a sentence determinative of the matter.
I would wish to say for myself that I think there is more than just passing substance in the submission of the Crown that the s.11 order was not correctly made in point of principle; but I have to say that the central issue for this Court, it seems to me, comes down to an issue of utility in the sense discussed in the judgments of the Court in the matters of Anderson (unreported) NSWCCA 25 June 1996 and Parker (unreported) NSWCCA 13 December 1993.
I observe, so that there will be no doubt about it on the next occasion, that with great respect to his Honour the learned primary Judge, I consider that it was unwise to say in terms, as his Honour did, that although he was expecting that the offender would still receive a sentence involving some form of punishment, "most likely periodic detention" would be the sentence if the necessary statutory prerequisites were fulfilled. I do not say that in the spirit of pre-empting at all what ought to happen properly on the next occasion. I observe simply that in my respectful opinion it would have been wiser, the decision having been taken to give the s.11 order, to have let the adjournment run its course without saying anything more about what might happen, or should happen, or could possibly happen, on the adjourned occasion.
Be all that as it may, and for the further reasons the development of which will appear sufficiently, I apprehend, in what has been recorded of the interchanges between Counsel for the Crown and the Court, I do not think that this is a matter in which the Court would be justified in intervening at this stage of the process. If the sentence to be imposed, that is to say, the substantive sentence to be imposed in four weeks time, is imposed in terms which are demonstrably appealable, then the Crown is in no way prejudiced by what will be done with this morning's application. The Crown will have every opportunity, as indeed it had in Parker and Anderson to come back before the Court for some proper correction appropriate to the then demonstrated facts and circumstances of the ultimate outcome of the sentencing process.
In all of those circumstances I am of the opinion the present appeal should be dismissed; and that is the order I would propose.
HIDDEN J: I agree.
HALL J: I agree with the order of Sully J.
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