Stoneham v Director of Public Prosecutions (NSW)

[2021] NSWSC 735

Supreme Court

New South Wales

Medium Neutral Citation:

Stoneham v Director of Public Prosecutions (NSW) [2021] NSWSC 735

Hearing dates:

17 June 2021

Decision date:

24 June 2021

Jurisdiction:

Common Law

Before:

Ierace J

Decision:

(1)   Quash the sentence imposed on the plaintiff in the Local Court on 14 October 2020;

(2)   Remit the matter to the Local Court for sentence according to law.

Catchwords:

APPEALS – Procedure – Adjournment – Where Magistrate adjourned sentence proceedings pursuant to s 40 of the Criminal Procedure Act 1986 (NSW) to avoid operation of s 58 of the Crimes (Sentencing Procedure) Act 1999 (NSW) – Whether Magistrate erred in interpretation of s 58 – Whether incorrect interpretation of s 58 enlivened s 52 of the Crimes (Appeal and Review) Act 2001 (NSW)

ADMINISTRATIVE LAW – Whether Magistrate’s decision to adjourn sentence proceedings a reviewable error of law – Jurisdictional error

Legislation Cited:

Crimes (Appeal and Review) Act 2001 (NSW), s 55

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 47, 58

Crimes Legislation Further Amendment Bill 2003 (NSW)

Criminal Procedure Act 1986 (NSW), s 40

Interpretation Act 1987 (NSW), s 34

Supreme Court Act 1970 (NSW), ss 69, 75

Cases Cited:

Al-Kateb v Godwin (2004) 219 CLR 562; [2004] HCA 37

Brough v Director of Public Prosecutions [2014] NSWSC 1396

R v West [2014] NSWCCA 250

Category:

Principal judgment

Parties:

Daniel Stoneham (Plaintiff)
Director of Public Prosecutions (NSW) (First Respondent)
Local Court of New South Wales (Second Respondent)

Representation:

Counsel:
Mr S Fraser (Plaintiff)
Mr D Kell SC; Ms E Jones (First Respondent)
Submitting Appearance (Second Respondent)

Solicitors:
Legal Aid New South Wales (Plaintiff)
Solicitor for Public Prosecutions (First Respondent)
Crown Solicitor’s Office (Second Respondent)

File Number(s):

2020/362806

 Decision under appeal 

Court or tribunal:

Local Court

Date of Decision:

14 October 2020

Before:

Gibson LCM

File Number(s):

2020/46429; 2019/399947

Judgment

1. HIS HONOUR: By a summons filed on 22 December 2020, the plaintiff sought prayers by way of appeal or, alternatively, judicial review in respect of a sentence imposed on him on 14 October 2020 by Magistrate J Gibson, sitting at Mount Druitt Local Court.

2. The first and second defendants to the summons were police prosecutors. The third defendant was the Local Court of New South Wales. By a notice filed on 19 January 2021, the Director of Public Prosecutions of New South Wales (“the first respondent”) took over the proceedings for the first and second defendants. The third defendant (“the second respondent”) filed a submitting appearance on 10 February 2021.

3. The orders sought were as follows:

Appeal pursuant to s 52 of the Crimes (Appeal and Review) Act 2001 (NSW)

1. An order pursuant to s 55(2)(a) of the Crimes (Appeal and Review) Act 2001 (NSW) (“CARA”) setting aside the sentence imposed by Magistrate Gibson on the plaintiff on 14 October 2020 at Mount Druitt Local Court.

2. An order pursuant to s 55(2)(b) of CARA varying the sentence imposed by Magistrate Gibson.

3. In the alternative to the order sought in (2) above, an order that the matters be remitted to the Local Court to be dealt with according to law.

4. Costs.

5. Such further orders as the Court sees fit.

In addition and/or in the alternative

Application pursuant to ss 69 and 75 of the Supreme Court Act 1970(NSW)

1. To the extent necessary, an order extending the time for the filing of the summons.

2. Pursuant to s 75 of the Supreme Court Act 1970 (NSW), a declaration that the Local Court erred when adjourning the proceedings on 28 August 2020.

3. Pursuant to s 69(3) of the Supreme Court Act, an order in the nature of certiorari quashing the sentence imposed by Magistrate Gibson on 14 October 2020 in the Local Court.

4. An order in the nature of mandamus remitting the matters to the Local Court to be dealt with according to law.

5. Costs.

6. Such further orders as the Court sees fit.

   4. The basis of the application was submitted to be an error of law which is, simply stated, that on 28 August 2020, Gibson LCM exceeded his judicial authority by adjourning the sentence proceedings expressly in order to avoid a legislative constraint upon the imposition of sentences in the Local Court which limits the length and accumulation of sentences to no more than 5 years.

   5. The first respondent conceded that Gibson LCM fell into jurisdictional error in making the decision to adjourn the sentence proceedings and that it would be appropriate for this Court to quash the sentence imposed, which would have the effect that the sentence proceedings stand to be determined by the Local Court in accordance with law; in other words, an order remitting the matter to the Local Court for a fresh sentence hearing would be unnecessary.

   6. Section 55 of CARA relevantly provides as follows:

   “55   Determination of appeals

   (1)   The Supreme Court may determine an appeal against conviction:

   (a)   by setting aside the conviction, or

   (b)   by setting aside the conviction and remitting the matter to the Local Court sitting at the place at which the original Local Court proceedings were held for redetermination in accordance with the Supreme Court’s directions, or

   (c)   by dismissing the appeal.

   (2)   The Supreme Court may determine an appeal against sentence:

   (a)   by setting aside the sentence, or

   (b   by varying the sentence, or

   (c)   by setting aside the sentence and remitting the matter to the Local Court sitting at the place at which the original Local Court proceedings were held for redetermination, in relation to sentence, in accordance with the Supreme Court’s directions, or

   (d)   by dismissing the appeal.

   …”

   7. Sections 69(3) and 75 of the Supreme Court Act are in the following terms:

   “69   Proceedings in lieu of writs

   …

   (3)   The jurisdiction of the Court to grant any relief or remedy in the nature of a writ of certiorari includes, if the Court is satisfied that the ultimate determination of a court or tribunal in any proceedings has been made on the basis of an error of law that appears on the face of the record of the proceedings:

   (a)   jurisdiction to quash the ultimate determination of the court or tribunal, and

   (b)   if the Court determines that, as a matter of law, only one particular determination should have been made by the court or tribunal, jurisdiction to make such judgment or orders as are required for the purpose of finally determining the proceedings.

   …

   75   Declaratory relief

   No proceedings shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby and the Court may make binding declarations of right whether any consequential relief is or could be claimed or not.”

   8. The relevant provision is s 58 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the CSP Act”), which provides as follows:

   “58   Limitation on consecutive sentences imposed by Local Court

   (1)   The Local Court may not impose a new sentence of imprisonment to be served consecutively (or partly concurrently and partly consecutively) with an existing sentence of imprisonment if the date on which the new sentence would end is more than 5 years after the date on which the existing sentence (or, if more than one, the first of them) began.

   (2)   Any period for which an existing sentence has been extended under this or any other Act is to be disregarded for the purposes of this section.

   (3)   This section does not apply if—

   (a)   the new sentence relates to—

   (i)   an offence involving an escape from lawful custody, or

   (ii)   an offence involving an assault or other offence against the person, being an offence committed (while the offender was a convicted inmate) against a correctional officer or (while the offender was a person subject to control) against a juvenile justice officer, and

   (b)   either—

   (i)   the existing sentence (or, if more than one, any of them) was imposed by a court other than the Local Court or the Children’s Court, or

   (ii)   the existing sentence (or, if more than one, each of them) was imposed by the Local Court or the Children’s Court and the date on which the new sentence would end is not more than 5 years and 6 months after the date on which the existing sentence (or, if more than one, the first of them) began.

   (3A)   In addition, this section does not apply if the new sentence relates to an offence against the regulations under the Crimes (Administration of Sentences) Act 1999) involving—

   (a)   introducing or supplying (or attempting to introduce or supply) a drug, alcohol or other substance prohibited by those regulations into a place of detention, or

   (b)   introducing or supplying (or attempting to introduce or supply) syringes into a place of detention, or

   (c)   possessing an offensive weapon or instrument within the meaning of the Crimes Act 1900, or

   (d)   possessing a mobile phone, a mobile phone SIM card or mobile phone charger (or any part of these).

   (4)   In this section—

   existing sentence means an unexpired sentence, and includes any expired sentence or unbroken sequence of expired sentences with which the unexpired sentence is being served consecutively (or partly concurrently and partly consecutively).

   sentence of imprisonment includes an order referred to in section 33 (1) (g) of the Children (Criminal Proceedings) Act 1987.”

   9. The legislative power to adjourn criminal proceedings derives from s 40 of the Criminal Procedure Act 1986 (NSW), which provides as follows:

   “40   Adjournments generally

   (1)   A court may at any stage of criminal proceedings adjourn the proceedings generally, or to a specified day, if it appears to the court necessary or advisable to do so.

   (2)   An adjournment may be in such terms as the court thinks fit.

   (3)   A matter that is adjourned generally must be listed before the court or a registrar not later than 2 years after the adjournment.

   (4)   Without limiting subsection (1), a court may, at the request of an accused person, adjourn criminal proceedings if it appears to the court that a variance between any process or document by which the proceedings were commenced and the evidence adduced in respect of the offence charged in that process or document is such that the accused person has been misled by the variance.”

Background to the application

10. The background to the application is as follows.

11. On 15 December 2017, the plaintiff was sentenced in the District Court for multiple serious driving offences to an aggregate sentence of 6 years imprisonment with a non-parole period of 4 years, backdated to commence on 12 September 2014. The non-parole period expired on 11 September 2018 and the total sentence was set to expire on 11 September 2020.

12. The plaintiff was twice released to parole and on each occasion committed further serious driving offences, to all of which he pleaded guilty. On the second occasion, on 9 January 2020, he was sentenced for three offences by Gibson LCM, receiving a Community Correction Order (“CCO”) for each offence pursuant to s 8 of the CSP Act, two being for a period of 2 years and one for 12 months.

13. On 12 February 2020, the plaintiff was arrested and charged with further serious driving offences in breach of the three CCOs. On 4 March 2020 his parole was revoked. The adjusted date of expiration of the balance of his parole was 2 October 2020.

14. On 7 May 2020, the Office of the Director of Public Prosecutions (“ODPP”) elected to proceed by indictment in the District Court on the fresh charges but on 10 July 2020, it advised the Local Court that it had withdrawn its election. On that date, the matter came before Magistrate Toose, who called up the CCOs and noted that the plaintiff wished to enter pleas of guilty to the fresh charges. Her Honour adjourned the matter for sentence in relation to the fresh charges and the matters that were the subject of the CCOs.

15. On 21 August 2020, following pleas of guilty, the plaintiff again came before Gibson LCM for sentence, for those further matters and for the breaches of the three CCOs. His Honour expressed a preliminary view that only a sentence of imprisonment was appropriate but noted that such a sentence would contravene s 58 of the CSP Act, since any such fresh sentence of imprisonment that was not wholly concurrent with the existing sentence would exceed the 5 year maximum period. His Honour expressed interest in adjourning the matter pursuant to s 40 of the Criminal Procedure Act to a date after 2 October 2020, so that the effect of s 58 could be avoided. The police prosecutor informed his Honour that “I don’t think I could seek for it to go over”. The solicitor for the plaintiff opposed the adjournment, submitting that the proposed course would be an abuse of process. His Honour stood the matter over to 28 August 2020 for further submissions.

16. On 28 August 2020, Gibson LCM delivered a judgment which had the hallmarks of a sentence judgment, up to the point at which he said:

“That brings me to a point where I would impose a sentence upon [the plaintiff]. Section 58 of [the CSP Act] operates so that as of today the greatest that I could impose upon [the plaintiff] would be a three year [CCO]. It is in those circumstances that I deem it necessary to consider whether the interests of justice require an adjournment so that he can be sentenced after his existing sentence concludes, which is at a time shortly after 2 October 2020.

…

I have carefully considered whether or not, if I were to adjourn these proceedings to a time after [the plaintiff’s] existing sentence concluded, whether there would be an abuse of process or whether, on balance, the interests of justice would not be served. It is clear to me, on the basis of the material before me, that only a sentence of full-time imprisonment, and a lengthy one, is appropriate for the reasons that I have set out in respect of [the plaintiff] …

…

In this case, in my view, the operation of s 58 would produce a result that would in no way satisfy the community that a judicial officer had properly exercised their sentencing discretion in respect of [the plaintiff]. I have taken into account that there is only a short period of time between now and 2 October 2020 before an appropriate sentence could be imposed. That is a matter that I have taken into account. Had there been a longer period, the balance of the interests of justice may have weighed in favour of [the plaintiff], but in these circumstances, given the lengthy period of time that I would propose to impose a sentence for, the short period of time militates in favour of the interests of justice requiring it to be necessary for the matter to be adjourned.

…

On that basis I propose to adjourn the proceedings … for judgment.”

17. When the matter again came before Gibson LCM, on 14 October 2020, he imposed a sentence of 3 years and 2 months imprisonment, with a non-parole period of 2 years. As to the commencement date of the sentence, his Honour said:

“That sentence will commence on 3 October 2020, being the first day after [the plaintiff’s] six year sentence concluded and he will be eligible for release on 2 October 2022 to supervised parole.”

18. In order to accommodate the period of 5 months that the plaintiff had been in custody in relation to these matters, which Gibson LCM recognised could not be done by back-dating the sentence, he reduced the sentence by a period of 5 months. The effect of the sentence was that the plaintiff was subject to sentences of imprisonment for a continuous period of 9 years and 2 months.

The plaintiff’s submissions

19. The plaintiff submitted that Gibson LCM’s judgment on 28 August 2020 appeared to be founded on a particular interpretation of the terms “existing sentence” and “unexpired sentence”:

“The Magistrate apparently favoured a view that those terms meant ‘existing and unexpired at the time sentence is imposed’. The plaintiff contends that the terms should instead be read as meaning, existing and unexpired ‘at the time the new sentence commences’.”

20. The plaintiff submitted that Gibson LCM’s interpretation, although correct as a literal or grammatical interpretation, did not convey the meaning the legislature intended, which is what his Honour should have given effect to: see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [78]. The plaintiff submitted that the purpose of s 58 of the CSP Act was to limit the power of the Local Court to impose cumulative sentences, which is the appropriate context within which the meaning of the term “unexpired sentence” is to be interpreted, inevitably leading to its meaning being “unexpired at the time the new sentence commences”.

21. The plaintiff sought support for its preferred interpretation, pursuant to s 34(2)(e) of the Interpretation Act 1987 (NSW), in the explanatory memorandum to the Crimes Legislation Further Amendment Bill 2003 (NSW), which introduced an amendment to s 58 of the CSP Act that extended the maximum period of limitation. The explanatory memorandum stated that the Bill:

“… extends the 3-year period … to 5 years, so that a Local Court will now be prohibited from imposing a sentence of imprisonment on a person so as to result in his or her being subject to consecutive sentences of imprisonment totalling more than 5 years.”

22. The plaintiff submitted that if Gibson LCM was correct in his interpretation of the section, there was no impediment to the effect of the provision being routinely avoided in the same way as it had been in this instance.

23. The plaintiff further submitted that a relevant principle in the interpretation of s 58 of the CSP Act is that it cannot be construed so as to impact on the liberty of offenders, unless that legislative intention is apparent in unambiguous language: see Al-Kateb v Godwin (2004) 219 CLR 562; [2004] HCA 37 per Gleeson CJ, at [19]:

“In exercising their judicial function, courts seek to give effect to the will of Parliament by declaring the meaning of what Parliament has enacted. Courts do not impute to the legislature an intention to abrogate or curtail certain human rights or freedoms (of which personal liberty is the most basic) unless such an intention is clearly manifested by unambiguous language, which indicates that the legislature has directed its attention to the rights or freedoms in question, and has consciously decided upon abrogation or curtailment.”

24. To the extent that s 58 of the CSP Act may operate to the benefit of an offender, the plaintiff noted that as much has been acknowledged previously by this Court: Brough v Director of Public Prosecutions [2014] NSWSC 1396 at [56].

25. In other sections in the same Division and Part of the CSP Act (Div 2, Pt 4) as s 58, the provisions are enlivened by an express reference to “when being sentenced”, suggesting that if the legislature intended by s 58 that it would apply only to sentences accumulated on a sentence unexpired when an offender is being sentenced, it would have included an express provision to that effect.

26. The plaintiff submitted that the reduction of the sentence by 5 months by Gibson LCM in order to compensate for the inability to backdate it without contravening s 58, was not a valid exercise of power. The plaintiff submitted that the reasoning of the Court of Criminal Appeal in R v West [2014] NSWCCA 250 was applicable to his Honour’s method of avoiding the effect of s 58. In that case, a Judge of the District Court revoked an offender’s bail and stood over a sentence proceeding for three months in order to increase the offender’s pre-sentence custody. The sentencing judge indicated he wished to sentence the offender by way of an Intensive Corrections Order (“an ICO”), which was a sentencing option made available by s 7 of the CSP Act as a means of serving a sentence of imprisonment in the community if (at that time) it was a sentence for a period of 2 years or less. A longer period of pre-sentence custody would have made an ICO a feasible sentencing option. In West, Adamson J, Hoeben CJ at CL and R A Hulme J agreeing, referred to s 24(a) of the CSP Act, stating:

“40 It is within the power of a sentencing judge either to backdate a sentence or to commence a sentence from the date of its imposition. What the Act requires is that any time for which the offender has been held in custody be taken into account in sentencing: s 24(a) …

41 … It was not, in my view, a valid exercise of the power to revoke bail to order the accused into custody for the evident purpose of having this period ‘count’ in terms of a sentence by reason of s 24(a). In substance, his Honour contrived a further period of custody with a view to making an ICO at the later date, when that was not an available sentencing option having regard to s 7 of the [the CSP Act] …

42 … The reason the sentencing judge did not back-date the sentence was that it would have made patent the unavailability of an ICO and his Honour's non-compliance with the constraint in s 7 of [the CSP Act]. This was not a valid exercise of his Honour’s discretion not to make a direction pursuant to s 47(2) of [the CSP Act] to backdate the sentence.

43 His Honour’s approach did not comply with s 7 of [the CSP Act]. Nor was it in accordance with appropriate sentencing practice, which is to impose a sentence once, rather than, as his Honour appears to have done, in two stages.

44 Effectively, his Honour imposed a sentence of two years and three months and directed that the latter two years of the sentence be served by an ICO. This sentencing option was not open to his Honour since s 7 of [the CSP Act] authorises an ICO only for sentences of no more than two years. One of the fundamental duties of judicial officers is to comply with legislation. The process the sentencing judge engaged in in the present case tended to subvert it …”

27. In this case, Gibson LCM similarly proceeded to sentence in two stages and adjusted the commencement date of the sentence to facilitate avoidance of a legislative provision that otherwise applied. The judgment on 28 August 2020 canvassed all the matters that were relevant to fixing the sentence and then the matter was stood over to a date after the expiration of the plaintiff’s then-current sentence for the sentence to be expressed with a back-date and formally handed down.

The first respondent’s submissions

28. In response to the application for judicial review, the first respondent conceded that the Local Court fell into jurisdictional error in adjourning the sentencing proceedings on 28 August 2020 since to do so was beyond the power of s 40 of the Criminal Procedure Act; its terms do not permit an adjournment so as to avoid the operation of an otherwise applicable statutory instrument. The first respondent submitted that the appropriate course is for the sentence to be quashed, which would have the effect that the plaintiff remains to be sentenced.

29. The first respondent submitted that the plaintiff’s appeal pursuant to s 55(2) of CARA should be refused. The literal construction of s 58 that was adopted by Gibson LCM is correct, as is apparent from s 47(6) of the CSP Act, which provides:

“A sentence of imprisonment (or an aggregate sentence of imprisonment) starts at the beginning of the day on which it commences or is taken to have commenced and ends at the end of the day on which it expires.”

30. The correct interpretation of s 58 is that it operates if, at the time the Local Court looks to “impose a new sentence”, there is an existing sentence; its application is not determined by whether there is an existing sentence at the time that the new sentence commences.

Consideration

31. I am of the opinion that Gibson LCM fell into judicial error in his judgment of 28 August 2020. The decision to adjourn the sentence proceeding part-heard to a date after 2 October 2020, in order to defeat the legislative intention that was apparent in s 58, was not a valid exercise of legislative power. While one can readily appreciate his Honour’s concern in view of the disparity between the period that the plaintiff had spent in custody exclusively on these matters and his view of the sentence that they warranted taking all relevant matters into account, he was nevertheless required to exercise his sentencing discretion within the bounds of s 58.

32. I note that the situation, and thus his Honour’s dilemma, only arose when the ODPP declined to continue with its election to proceed by way of indictment, which remains unexplained and strictly irrelevant to this application.

33. I decline to accept the plaintiff’s primary submission which it advanced in support of its preferred avenue of appeal pursuant to s 55(2) of CARA, being the plaintiff’s proposed interpretation of s 58. Section 58, in my view, obliges a sentencing magistrate to make its determination as to whether a new sentence of imprisonment would exceed the jurisdictional constraints of the provision as of the date that the sentence is to be imposed. In the context of this matter, that date was 28 August 2020. Were it otherwise, the purpose of the section would be avoided, thus thwarting the intention that is apparent from the terms of the legislation and extraneous material in the form of the explanatory memorandum to the Crimes Legislation Further Amendment Bill, as extracted at [21] above.

34. That being so, in view of how the application was framed, I am persuaded that the appropriate avenue for the appeal is by way of ss 69(3) of the Supreme Court Act, so that the sentence imposed by Gibson LCM is to be quashed.

35. Although, on one view, the quashing of the sentence would render unnecessary an order to remit the matter to the Local Court, there is a practical benefit in doing so, which is to avoid the matter languishing in a registry due to there being no apparent further step to be taken. For that reason, I will make an order of remitter.

36. I am advised that the parties have agreed that each will bear their own costs. Accordingly, I make no order as to costs.

Orders

37. I make the following orders:

1. Quash the sentence imposed on the plaintiff in the Local Court on 14 October 2020;

2. Remit the matter to the Local Court for sentence according to law.

**********

Decision last updated: 24 June 2021