R v Rowland No. Sccrm-00-245

[2000] SASC 460

R  v  ROWLAND
[2000] SASC 460

Court of Criminal Appeal: Doyle CJ, Olsson and Bleby J (Ex tempore)

1................ DOYLE CJ:..... I would dismiss the appeal.  I agree with the reasons given by Bleby J.

2................ OLSSON J:...... I also agree.

3................ BLEBY J:........ This appeal raises the issue of whether a judge of the District Court, sitting at Mount Gambier, correctly exercised his discretion to defer sentencing the appellant until the appellant had been tried in the Magistrates Court for other offences.

1. The appellant pleaded guilty in the District Court on 5 October 2000 to two counts of assault occasioning actual bodily harm.  The offences occurred on 17 March 2000.  A disputed facts hearing occurred in respect of these offences.  On 16 November 2000 the District Court judge made findings about the circumstances of each assault, and at the request of the prosecutor, remanded the appellant on bail to the next sessions of the District Court sitting at Mount Gambier.

2. The reasons advanced for the remand by the prosecutor were to enable other criminal proceedings pending in the Magistrates Court to be completed.  The charges before the Magistrates Court related to assaults alleged to have taken place seven days before the offences which were before the District Court judge.  The matters pending in the Magistrates Court are two alleged offences of assault occasioning actual bodily harm.

3. The prosecutor submitted that the matter in the Magistrates Court should be dealt with first, before the District Court judge sentenced the appellant on the charges before him.  She referred to the appellant’s extensive criminal history, which includes many offences of violence dating back to the 1970s, although declining in frequency in more recent years.  On this basis, it was argued that it would be unrealistic to sentence the appellant on the District Court offences if it later turned out that the appellant was guilty of similar offences which were committed seven days earlier.

4. Defence counsel argued that the appellant was entitled to be sentenced in a timely fashion, and should not have to endure the uncertainty which would follow from deferring sentence until the Magistrates Court proceedings were dealt with.  The District Court judge was told that the Magistrates Court trial had been listed for 29 January 2001.  The judge acknowledged the delay which had occurred in bringing the matters in the Magistrates Court to trial, caused in part, it seems, by a desire expressed in the Magistrates Court to await the outcome of the District Court proceedings.  As I have said, the judge ordered that the sentencing of the appellant for the matters before him would be adjourned until the next session of the District Court sitting at Mount Gambier.  He gave liberty to apply should any matters arise that needed to be brought to his Honour’s attention.

5. It is the order of adjournment that is the subject of this appeal.

6. The appellant claims that a right of appeal is conferred by s 352(1)(a)(iii) of the Criminal Law Consolidation Act 1935 which provides that an appeal lies against “a decision of the court to defer sentencing the convicted person....”. That provision was inserted by amendment by Act No 13 of 1999. Its apparent purpose was to enable an appeal to be brought against what is commonly known as a Griffiths remand: Hansard, Legislative Council, 18 November 1998 page 208, 8 December 1998 page 397 and 16 February 1999 page 679.

7. A Griffiths remand is a practice which is based on the decision in Griffiths v The Queen (1977) 137 CLR 293. This was not a Griffiths remand.  I am prepared to assume, without deciding, that the section applies to any adjournment of a sentencing hearing regardless of the reasons for it.

8. The District Court has power to adjourn any proceedings from time to time, or to a time to be fixed (s 22, District Court Act 1991). The question is whether the judge properly exercised the discretion on this occasion.

9. The appellant submits that a convicted person should be sentenced as soon as possible, both out of fairness to that person, and to be consistent with the principles of case flow management.  It is further submitted that there is no guarantee that the appellant will be sentenced in a timely fashion by the Magistrates Court.  It is said that there was no guarantee that the trial would commence on 29 January 2001 as then envisaged.  Indeed, this Court has now been informed that the trial has been deferred until 27 February 2001.  It is submitted that even if it were to commence as planned, there could be no assurance that the Court would not itself, if the appellant is convicted, adjourn the question of sentence for some considerable time.  The appellant also refers to the possibility of further delay through appeals against the Magistrate’s decision.

10. I accept that, generally speaking, a convicted person ought not be subjected to unreasonable delay before sentence is passed.  Indefinite delay may amount to a refusal to hear and determine a matter properly before the court: Matheson v Matheson [1952] VLR 27 per Herring CJ at 30. I have previously expressed concern at delay brought about by an uninvited and inappropriate Griffiths remand: Watson v Police (1998) 70 SASR 515 at 523. In that case the resultant delay was over two years after committing the first of three relatively minor offences. However, I also noted in that case (at 517) the need for co‑ordination of hearings involving one defendant and disparate offences, and the need to ensure that courts were fully apprised of relevant events occurring in another court so that appropriate action could be taken.

11. In this case, the District Court judge had the benefit of submissions of prosecution and defence counsel which directed his mind to the relevant considerations to be borne in mind in exercise of the discretion.  He acknowledged the force of the arguments urged by defence counsel, but in the exercise of his discretion decided to adjourn the sentencing proceedings.  In my opinion, it cannot be said that he erred in so doing.

12. The charges in the Magistrates Court are of a similar nature to those before the District Court.  The alleged offences are said to have occurred only a week or so before the offences presently before the District Court judge.

13. If the charges in the Magistrates Court are proved, the sentence imposed in the Magistrates Court may be a matter of substantial importance in crafting an appropriate penalty in the District Court. The present offences have a maximum penalty each of five years’ imprisonment: s 40, Criminal Law Consolidation Act.  The appellant has previously served terms of imprisonment for like offences.  If the appellant is convicted in the Magistrates Court, that fact may be taken into account “in an appropriate way and for appropriate purposes”: R v McInerney (1986) 42 SASR 111 per King CJ at 112 ‑ 113. The former Chief Justice went on to explain what some of those might be. Depending on the circumstances, there may also be questions of totality which need to be considered, and which might better be considered by the District Court in the light of any penalty imposed in the Magistrates Court.

14. On the other hand, the appellant will have endured a period of uncertainty for some months in waiting for his sentence on the District Court offences to be passed.

15. All those were matters bearing upon the exercise of the discretion of the District Court judge.  There is no reason to suggest that the exercise of that discretion has miscarried.  My decision is not affected in any way by the subsequent deferral of the Magistrates Court hearing.  If that has a material bearing on the adjournment, it can be considered by the District Court judge pursuant to the liberty to apply.  By granting liberty to apply his Honour has allowed for reconsideration of the position should events not unfold as anticipated.

16. Finally, it is claimed that the District Court judge’s exercise of the discretion was infected by appearance of bias in that he assumed that the appellant would be found guilty in the Magistrates Court proceedings and that the adjournment was granted upon that basis.  In my opinion, this submission lacks any foundation and has no substance.  The information records that the judge adjourned the sentencing “awaiting the outcome of other matters”.  The transcript of the proceedings before the judge indicates that he made no assumption that the appellant would be convicted in the Magistrates Court.

17. In my opinion there was no appealable error in the District Court judge’s exercise of his discretion to adjourn the proceedings.  I would dismiss the appeal.