The State of Western Australia v Wallam
[2008] WASCA 117 (S)
THE STATE OF WESTERN AUSTRALIA -v- WALLAM [2008] WASCA 117 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASCA 117 (S) | |
| THE COURT OF APPEAL (WA) | 11/01/2009 | ||
| Case No: | CACR:1/2008 | 14 MAY, 20 AUGUST & 16 DECEMBER 2008 | |
| Coram: | McLURE JA MILLER JA MURRAY AJA | 5/06/08 | |
| 11/01/09 | |||
| 18 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| A | |||
| PDF Version |
| Parties: | THE STATE OF WESTERN AUSTRALIA BRUCE TIMOTHY JAMES WALLAM |
Catchwords: | Appeal Application to reopen appeal and amend effected orders made on original appeal No inherent power to reopen Extent of power under Sentencing Act 1995 (WA), s 37 |
Legislation: | Sentencing Act 1995 (WA), s 37 Sentencing Regulations 1996 (WA), reg 5 |
Case References: | Bailey v Marinoff (1971) 125 CLR 529 Burrell v The Queen [2008] HCA 34; (2008) 82 ALJR 1221 DJL v The Central Authority (2000) 201 CLR 226 Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400 Gamser v The Nominal Defendant (1977) 136 CLR 145 Gould v Vaggelas (1985) 157 CLR 215 Grierson v The King (1938) 60 CLR 431 Ho v Director of Public Prosecutions (1995) 37 NSWLR 393 Lashansky v Legal Practitioners Complaints Committee [2005] WASCA 217 Liddington v The State of Western Australia [2005] WASCA 60 (S) Marshall v The Honourable MacTiernan MLA Minister for Planning and Infrastructure (2003) 128 LGERA 231 Mustafa v The Queen [2002] WASCA 357; (2002) 27 WAR 73 The State of Western Australia v Richards [2008] WASCA 134 The State of Western Australia v Wallam [2008] WASCA 117 Tolmie (1994) 72 A Crim R 416 Traegar v Pires de Albuquerque (1997) 18 WAR 432 WCW v The State of Western Australia [2008] WASCA 232 Yates v The State of Western Australia [2008] WASCA 144 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : THE STATE OF WESTERN AUSTRALIA -v- WALLAM [2008] WASCA 117 (S) CORAM : McLURE JA
- MILLER JA
MURRAY AJA
DECISION : 12 JANUARY 2009 FILE NO/S : CACR 1 of 2008 BETWEEN : THE STATE OF WESTERN AUSTRALIA
- Appellant
AND
BRUCE TIMOTHY JAMES WALLAM
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : HASLUCK J
File No : INS 2 of 2007
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Catchwords:
Appeal - Application to reopen appeal and amend effected orders made on original appeal - No inherent power to reopen - Extent of power under Sentencing Act 1995 (WA), s 37
Legislation:
Sentencing Act 1995 (WA), s 37
Sentencing Regulations 1996 (WA), reg 5
Result:
Application dismissed
Category: A
Representation:
Counsel:
Appellant : Ms L Petrusa & Mr J Mactaggart
Respondent : Mr S B Watters & Mr A C McIntosh
Solicitors:
Appellant : Director of Public Prosecutions (WA)
Respondent : Thames Legal
Case(s) referred to in judgment(s):
Bailey v Marinoff (1971) 125 CLR 529
Burrell v The Queen [2008] HCA 34; (2008) 82 ALJR 1221
DJL v The Central Authority (2000) 201 CLR 226
Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400
Gamser v The Nominal Defendant (1977) 136 CLR 145
Gould v Vaggelas (1985) 157 CLR 215
Grierson v The King (1938) 60 CLR 431
Ho v Director of Public Prosecutions (1995) 37 NSWLR 393
Lashansky v Legal Practitioners Complaints Committee [2005] WASCA 217
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Liddington v The State of Western Australia [2005] WASCA 60 (S)
Marshall v The Honourable MacTiernan MLA Minister for Planning and Infrastructure (2003) 128 LGERA 231
Mustafa v The Queen [2002] WASCA 357; (2002) 27 WAR 73
The State of Western Australia v Richards [2008] WASCA 134
The State of Western Australia v Wallam [2008] WASCA 117
Tolmie (1994) 72 A Crim R 416
Traegar v Pires de Albuquerque (1997) 18 WAR 432
WCW v The State of Western Australia [2008] WASCA 232
Yates v The State of Western Australia [2008] WASCA 144
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1 McLURE JA: By applications dated 15 July 2008 and 3 September 2008 the appellant applies to recall the orders made by the court in The State of Western Australia v Wallam [2008] WASCA 117 (Wallam) on 5 June 2008. In Wallam, the State of Western Australia (State) successfully appealed against a sentence of 12 months' imprisonment for the offence of causing bodily harm with intent contrary to s 304(2) of the Criminal Code (WA) (Code).
2 All members of the court in Wallam concluded that the sentence of 12 months was manifestly inadequate. For the purposes of re-sentencing, the court had to determine whether cl 2(1) of sch 1 of the Sentencing Legislation Amendment and Repeal Act 2003 (WA) (Sentencing Amendment and Repeal Act), which requires the otherwise appropriate sentence to be reduced by one-third, applied to an offence under s 304(2) of the Code and whether s 41(4)(b) of the Criminal Appeals Act 2004 (WA) (Criminal Appeals Act) applied so as to exclude the operation of the common law principle giving recognition to the element of double jeopardy in re-sentencing following a successful appeal.
3 The majority (Miller JA and Murray AJA) held that cl 2(1) of sch 1 had no application to s 304(2) offences and that s 41(4)(b) applied to the re-sentencing of the respondent. The majority imposed a sentence of 3 years' imprisonment for the s 304(2) offence which they ordered to be served cumulatively with a sentence of 2 years and 6 months' imprisonment imposed for an offence of armed robbery. I concluded that cl 2(1) of sch 1 did apply to the re-sentencing. I also concluded that s 41(4)(b) of the Criminal Appeals Act was substantive, did not apply retrospectively and thus did not apply to the re-sentencing of the respondent. I would have imposed a term of 2 years and 4 months' imprisonment for the s 304(2) offence to be served cumulatively with the sentence of 2 years and 6 months for the armed robbery.
4 If the Court of Appeal varies a sentence it must send to various persons a memorandum setting out the result of the appeal (s 41(6) and s 42 of the Criminal Appeals Act). Rule 74(1) of the Criminal Procedure Rules 2005 (WA) imposes an obligation on the Registrar to issue a Certificate of conclusion of a criminal appeal which Certificate is stated in subrule 2 to be the formal record of the court and to form part of the Supreme Court's record. The Registrar issued a Certificate of conclusion dated 19 June 2008 which states the orders made by this court in Wallam.
5 On 17 June 2008 a coram of five members of this court determined that s 41(4)(b) of the Criminal Appeals Act was substantive and had no
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- retrospective operation; Wallam was overruled in that respect: The State of Western Australia v Richards [2008] WASCA 134. On 10 July 2008 a coram of five members of this court also determined that cl 2 of sch 1 applies to contraventions of s 304(2) of the Code and that Wallam should be overruled in that respect: Yates v The State of Western Australia [2008] WASCA 144.
6 The primary issue in this application is whether this court has the power to reopen and reconsider the orders made in Wallam. The power of an intermediate appellate court to reopen its orders was recently considered by the High Court in Burrell v The Queen (2008) 82 ALJR 1221. The issue in Burrell was whether the New South Wales Court of Criminal Appeal (CCA) could reopen and reconsider orders it made dismissing appeals against the appellant's conviction and sentence. The formal recording of the orders had been made in accordance with r 51 and r 53 of the Criminal Appeal Rules 1952 (NSW). The procedure in Western Australia for the formal recording of orders is materially the same as in New South Wales. It was subsequently discovered that the CCA had made a number of substantial factual errors in its reasons leading to the dismissal of the appeals. The CCA reopened, reconsidered and confirmed its original orders. The High Court held that the CCA did not have power to reopen the appeals after its original orders had been formally recorded.
7 The High Court in Burrell reaffirmed what was held in Grierson v The King (1938) 60 CLR 431 to the effect that the jurisdiction of the New South Wales CCA was statutory and that it had no jurisdiction to reopen an appeal which it had heard on the merits and finally determined. As stated by the majority in Burrell, the power to reopen the appellant's appeals and reconsider the orders it had made had to be found in 'the text of the governing statutes and any express or implied powers to be seen therein' [14], [22]. It is clear from Burrell that there is no inherent jurisdiction or power to do so. The court did not find it necessary to consider whether some forms of denial of procedural fairness could warrant drafting some exception upon the general rule stated in Grierson [26]. It is convenient to mention at this juncture that in the course of oral submissions, the appellant's counsel contended there had been a denial of procedural fairness in this case. The contention is entirely without merit. As noted by the majority in Burrell:
The parties to an appeal are given procedural fairness by allowing each a proper opportunity to make submissions before the court makes its decision. Once the court announces the decision it has made, any further
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- hearing is exceptional. To hold that parties must be given a sufficient opportunity to consider whether to ask for a further hearing would convert the exception into the rule. That step should not be taken [28].
8 Of course, the outcomes in Grierson and Burrell relate specifically to the statutory regime in New South Wales. The question for this court is whether it has the statutory power (express or implied) to reopen and reconsider the orders made in Wallam. The power of the former Court of Criminal Appeal in this regard was considered in Mustafa v The Queen (2002) 27 WAR 73. Although the question was obiter, Malcolm CJ concluded that the Court of Criminal Appeal had the jurisdiction or power to recall or reopen a sentence notwithstanding the perfection of the order. Murray J came to a contrary conclusion. Steytler J did not decide the question.
9 In reaching his conclusion in Mustafa Malcolm CJ relied on former provisions of the Code, in particular, s 687(3), s 689(3) and s 697. Section 687(3) provided that:
The Court of Criminal Appeal shall, for the purposes of and subject to the provisions of this chapter, have full power to determine, in accordance with this chapter, any questions necessary to be determined for the purpose of doing justice in the case before the Court.
10 We have to determine the issue in the new statutory framework relating to the establishment of the Court of Appeal. There is no provision equivalent to s 687(3) in the current legislative scheme. Section 689(3) gave the Court of Criminal Appeal the power to re-sentence following a successful appeal, a similar power to that in s 31(5) of the Criminal Appeals Act.
11 Section 697 of the Code materially provided that the Court of Criminal Appeal may, if they think it necessary or expedient in the interests of justice:
… exercise in relation to the proceedings of the Court any other powers which may for the time being be exercised by the Supreme Court on appeals in civil matters, and issue any warrants necessary for enforcing the orders or sentences of the Court …
12 The current equivalent provision is s 40(1) of the Criminal Appeals Act which provides that for the purpose of dealing with an appeal, an appeal court may 'exercise any power that the Supreme Court may exercise in a civil case'. Malcolm CJ had earlier concluded in Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400, 407 that
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- the former Full Court had power in a civil case to reopen and reconsider its orders after they had been perfected, relying on Gould v Vaggelas (1985) 157 CLR 215.
13 The Chief Justice in Mustafa also relied on s 16(1) of the Supreme Court Act 1935 (WA) which he said invested the Supreme Court with the same inherent jurisdiction as the various courts at Westminster had at the commencement of the Supreme Court Ordinance 1861. He concluded:
In my opinion, the effect of the various provisions to which I have referred, coupled with the inherent jurisdiction of the court, is that the Court of Criminal Appeal does have jurisdiction or power to recall or reopen a sentence passed by the court and re-sentence the appellant, notwithstanding the perfection of the order imposing the sentence … [39].
14 In my respectful opinion, Malcolm CJ's conclusions in Mustafa and Esther Investments are contrary to the position consistently taken by the High Court in a number of cases including Grierson, Bailey v Marinoff (1971) 125 CLR 529, Gamser v The Nominal Defendant (1977) 136 CLR 145, DJL v The Central Authority (2000) 201 CLR 226 and Burrell.
15 The High Court in DJL v The Central Authority noted that it is important to bear in mind that the position respecting a revision of orders of superior courts of record at Westminster was of limited analogy because those courts did not exercise appellate jurisdiction. Further, it was of no assistance when considering the position of other courts to have regard to that of the High Court in the exercise of its entrenched jurisdiction as a court of final appeal or with respect to the Privy Council or the House of Lords: DJL [43]. Moreover, the decision in Esther Investments is inconsistent with subsequent appellate decisions in this State: Marshall v The Honourable MacTiernan MLA Minister for Planning and Infrastructure (2003) 128 LGERA 231 [29] - [31]; Lashansky v Legal Practitioners Complaints Committee [2005] WASCA 217.
16 My understanding of the law is that, in the absence of a statutory provision to the contrary and subject to certain narrow exceptions that do not apply in this case, a formally recorded order made by an intermediate appellate court cannot be reopened or reconsidered.
17 There is no general power, express or implied, given to the Court of Appeal in the Supreme Court Act, the Criminal Appeals Act, the rules of court or any other statute to which we were referred to reopen and
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- reconsider perfected orders, civil or criminal. The respondent relied on s 58(1)(m) of the Supreme Court Act. That gives the Court of Appeal jurisdiction to hear and determine all proceedings required by any State or Federal Act or the rules of the Supreme Court to be heard or determined by the Court of Appeal. That provision alone is of no assistance to the respondent.
18 However, s 37 of the Sentencing Act 1995 (WA) (the Sentencing Act) contains an express power to reopen and reconsider a sentence. The section provides:
37. Correction of sentence
(1) If a court sentences an offender in a manner that is not in accordance with this Act or the written law under which the offence is committed, the court may recall the order imposing the sentence and impose a sentence that is.
(2) The powers in subsection (1) may be exercised by a court on its own initiative or on an application by the offender or the prosecutor made in accordance with the regulations, but in any event the court must give all parties the opportunity to be heard.
(3) If a court’s order imposing a sentence contains a clerical mistake or an error arising from an accidental slip or omission, the court may correct it at any time on its own initiative without recalling the order, but the court must ensure that all parties and relevant authorities are notified of the correction.
(3a) A sentence imposed or corrected under this section has effect from the time at which the recalled or incorrect sentence had effect, unless the court orders otherwise.
(4) This section does not affect any right of appeal against a sentence.
(5) In this section -
sentence includes an order in addition to sentence.
20 The Court of Appeal has authority to sentence an offender if it upholds an appeal. The Court of Appeal may only allow an appeal
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- against sentence if a different sentence should have been imposed: s 31(4)(a) of the Criminal Appeals Act. Under s 31(5), if the Court of Appeal allows an appeal it must set aside the sentence and -
(a) may instead impose a new sentence that is either more or less severe; or
(b) may send the charge back to the court that imposed the sentence to be dealt with further.
This section is in addition to and does not affect the operation of the Sentencing Act 1995 except as expressly stated.
22 Thus, unless expressly excluded, the powers and duties imposed on courts in the Sentencing Act apply to the Court of Appeal when exercising its power under s 31(5)(a) of the Criminal Appeals Act. That includes s 37 of the Sentencing Act. This conclusion is consistent with the outcome in Liddington v The State of Western Australia [2005] WASCA 60 (S).
23 The State also contends that the errors made by the majority in Wallam are incapable of being corrected under s 37 because the nature of the errors are such that it has not been established that the sentence is 'not in accordance with this Act or the written law under which the offence is committed'. The argument is as follows. The reference in s 37(1) to 'this Act' is a reference to the Sentencing Act 1995 and any subsidiary legislation made under the Sentencing Act. A reference to 'written law under which the offence is committed' is, in the circumstances of this case, a reference to the Code. As the errors in Wallam did not involve a departure from the provisions of the Sentencing Act or the Code, s 37 does not apply.
24 It is necessary to begin by considering the scheme and scope of the Sentencing Act. It provides an overarching framework within which courts are empowered and required to sentence. It does not purport to be an exclusive code in relation to sentencing matters. It is to be implied as a matter of construction of the Sentencing Act as a whole that common law sentencing principles are intended by the legislature to continue to apply unless expressly or impliedly excluded. That continuation of common law principles is preserved by the Sentencing Act. One such common law
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- principle not expressly or impliedly excluded by the text of the Sentencing Act is that in determining the appropriate sentence under s 6 of the Sentencing Act, the availability of remission and/or parole are irrelevant sentencing considerations. Another common law principle not expressly or impliedly excluded by the text of the Sentencing Act is the double jeopardy principles in relation to re-sentencing.
25 I turn now to the State's submissions, starting with the failure by the majority to apply cl 2(1) of sch 1. Clause 2(1) of sch 1 requires that where the court proposes to impose a fixed term it must impose a term that is two-thirds of the fixed term that it would have imposed under the 'old provisions' being a reference, among other things, to the Sentencing Act 1995 (WA) as it stood prior to the commencement of the Sentencing Amendment and Repeal Act in August 2003.
26 Schedule 1 is contained in the Sentencing Amendment and Repeal Act. The primary purpose of the Sentencing Amendment and Repeal Act was to amend the Sentencing Act. Section 22 of the Sentencing Amendment and Repeal Act provides:
22. Transitional provisions
Schedule 1 has effect in relation to the amendments effected by this Division.
27 This division in s 22 is a reference to div 4 which deals with the amendments to the Sentencing Act on the subject of imprisonment. By s 29(1) of the Sentencing Amendment and Repeal Act, the Sentence Administration Act 1995 (WA) was repealed. Section 29(2) provided that sch 1 has effect in relation to the repeal effected by subsection 1. The effect of div 4 of the Sentence Administration and Repeal Act was to abolish the virtually automatic one-third remission on sentences. The purpose of cl 2(1) of sch 1 was to ensure the abolition occurred without increasing the time spent in custody.
28 As explained in Yates, the effect of cl 2(1) of sch 1 is not transitional in the ordinary sense. Clause 2(1) applies to offences committed both before and after the commencement of the Sentencing Amendment and Repeal Act. Its continuing relevance is reflected in the fact that sch 1 of the Sentencing Amendment and Repeal Act is set out in full in footnote 8 to the Sentencing Act. However, footnotes and endnotes are solely for the convenience of the reader and are not part of the Act: Interpretation Act 1984 (WA), s 32(2).
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29 However, cl 2(1) of sch 1 modifies the operation and scope of the Sentencing Act. It does so in the following way. If regard is had solely to the express and implied powers and duties in the text of the Sentencing Act, the sentencing court would be obliged to impose the appropriate sentence without regard to the presence or absence of remission. Thus to sentence in accordance with the text of the Sentencing Act (without regard to cl 2(1)) would produce an error.
30 Like cl 2(1) of sch 1, s 41(4)(b) of the Criminal Appeals Act also modifies the operation and scope of the Sentencing Act. But for that section, the fact that an accused was being re-sentenced after a successful appeal would be a mandatory relevant consideration that decreased the extent to which the offender should be punished and is thus a mitigatory factor for the purpose of s 8(1) of the Sentencing Act. However, s 41(4)(b) directs that what was a mandatory relevant consideration is now a mandatory irrelevant consideration. Although the text of the Sentencing Act is not altered, the modifications have the same effect, being to change the operation and effect of that Act.
31 Amendments to an Act may be made directly by textual change to the principal Act or indirectly by what is described as the referential system: see Pearce DC and Geddes R, Statutory Interpretation in Australia (6th ed, 2006) [1.38], [7.1], [7.26]. The latter occurs where a later Act changes the way in which an existing Act is to operate. It is manifest in this case that the legislature intended cl 2(1) of sch 1 and s 41(1)(b) to be read as one with the Sentencing Act; the express and implied provisions of the Sentencing Act are subject to those provisions. Thus the question is whether the statutory reference in s 37(1) 'to this Act' is to the Sentencing Act as amended, directly and indirectly, from time to time. In my view it is. Accordingly, the errors enliven this court's jurisdiction under s 37.
32 The word 'may' in s 37 preserves to the sentencing court a discretion whether or not to recall the order: Traegar v Pires de Albuquerque (1997) 18 WAR 432. This court has determined that Wallam was wrong on the two grounds forming the basis of the s 37 application, and there is no suggestion it should decline to exercise its discretion if it is enlivened. Moreover, this case does not raise for determination the question whether the power in s 37 is limited to the correction of the particular error/s enlivening the discretion. Conflicting views have been expressed in New South Wales on that issue: Tolmie (1994) 72 A Crim R 416, 420, 421; Ho v Director of Public Prosecutions (1995) 37 NSWLR 393, 402 - 403.
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33 I would recall the orders made by the court in Wallam. As the orders I foreshadowed in Wallam were in accordance with the law, I would make those orders which in substance were that: (1) the appeal be allowed; (2) the sentence for the s 304(2) offence be set aside; (3) in lieu thereof, a sentence of 2 years and 4 months' imprisonment be imposed to be served cumulatively with the sentence imposed for the armed robbery; and (4) the appellant be eligible for parole.
34 MILLER JA: I have had the opportunity of reading in draft the reasons for judgment of Murray AJA. I agree with those reasons and I agree that the application should be dismissed.
35 I would only add that the provisions of reg 5 of the Sentencing Regulations 1996 (WA), which are headed 'Correction of Sentence' (s 37) support the conclusion that s 37 of the Sentencing Act1995 (WA) deals with the sentencing process in a court of first instance, not the Court of Appeal. Regulations 5(4) and (6) make reference to 'the offender and the prosecutor' and 'an offender or a prosecutor' respectively and I consider that the deliberate use of the words 'the prosecutor' is an indication that the provisions of s 37 are intended to apply only to courts of first instance. The word 'prosecutor' is not defined in either the Sentencing Act1995 or the Sentencing Regulations 1996, but it has a particular meaning in criminal proceedings, applying to the person who prosecutes the accused person in the court of first instance.
36 MURRAY AJA: On 5 June 2008, this court allowed the appellant's appeal against a sentence of 12 months imprisonment for an offence of causing bodily harm with intent to harm, contrary to s 304(2)(a) of the Criminal Code. That sentence had been ordered to be served cumulatively upon a sentence of 2 1/2 years imprisonment imposed for an offence of armed robbery. The sentence for the offence of robbery was not the subject of the appeal. As to the sentence which was the subject of the appeal, the court, by majority, Miller JA and Murray AJA, allowed the appeal and substituted for the sentence of imprisonment for 1 year, a sentence of imprisonment for 3 years, again to be served cumulatively upon the sentence of 2 1/2 years imprisonment imposed for the armed robbery.
37 McLure JA agreed that the appeal should be allowed, and her Honour would have imposed a term of 3 1/2 years imprisonment but, applying the one-third reduction mandated by cl 2(1) of Sch 1, the transitional provisions to the Sentencing Legislation Amendment and Repeal Act2003 (WA), her Honour would have reduced that term to one
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- of 2 years and 4 months imprisonment. The majority had concluded that, on the proper interpretation of cl 2(1), it had no application to the case before the court, shortly put, because the offence defined by s 304 of the Criminal Code did not exist in the form charged at the time when the transitional provisions came into effect.
38 That view of the law was corrected in the case of Yates v The State of Western Australia [2008] WASCA 144, in which case the majority, Steytler P, McLure and Buss JJA, Martin CJ and Miller JA dissenting, held that in a case concerned with the offence defined in s 304(2) of the Code, cl 2(1) does have application, so that a court passing sentence for that offence, whether a single judge or the Court of Appeal re-sentencing an offender upon a successful appeal against sentence pursuant to the Criminal Appeals Act 2004 (WA), s 31(5), would be bound to reduce by one-third the sentence which it otherwise would have imposed. In this case, as has been seen, the majority decision merely set aside the sentence originally imposed and imposed a new sentence of 3 years imprisonment which was not the subject of that mandatory reduction.
39 Upon making that variation to the sentence originally imposed, the Court of Appeal was required by s 41(6) and s 42 to send a memorandum of its decision to the Chief Executive Officer of the Corrective Services Department and to the lower court, advising the result. That picture is completed by r 62 of the Supreme Court (Court of Appeal) Rules 2005. Upon the conclusion of a criminal appeal the registrar is to issue a Form 17, entitled 'Certificate of Conclusion of Criminal Appeal'. Under r 62(3), this constitutes 'the formal record of the Court of Appeal and forms part of the Supreme Court's record'. It must be sent to various officials who may need to know the result. If a warrant is issued, as was the case here, to enforce the order of the court, a copy of the Form 17 is to be sent with the warrant to those to whom the warrant is directed. Again, in this case, the Form 17 was attached to the warrant of commitment. The Form 17 Certificate of Conclusion is dated 19 June 2008.
40 If the order of the court by which the sentence was imposed was not perfected when judgment was given on 5 June 2008, it was certainly perfected by the issue of the Certificate of Conclusion on 19 June 2008.
41 On 15 July 2008, the respondent applied to recall so much of the judgment of the court as was inconsistent with the decision in Yates. The application did not say what the respondent thought ought to be done and it was, in any event, imperfectly supported in relation to the court's jurisdiction by written submissions. There was a hearing on 20 August, as a result of which the respondent expanded his application to seek an order
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- under s 37(1) of the Sentencing Act 1995 (WA). It is that application which is presently before the court.
42 I respectfully agree with McLure JA that this court has no general inherent power or jurisdiction to reopen concluded proceedings, as these are, once the final orders have become a matter of record. There have been a number of cases where that proposition has been considered. The most recent decision, which, in my respectful opinion, settles all controversy in relation to the question, is the decision of the High Court in Burrell v The Queen [2008] HCA 34; (2008) 82 ALJR 1221. Any power to reopen and reconsider concluded proceedings of a court of record must be conferred by statute.
43 I note in passing that Burrell would settle the disagreement in this court which arose out of the contrary views expressed by Malcolm CJ and me (Steytler J not deciding) in Mustafa v The Queen [2002] WASCA 357; (2002) 27 WAR 73. That also was a case where the appellate court, the Court of Criminal Appeal, had been invited to recall a lawful sentence it had imposed within power, but which involved a mathematical error in reaching the term of the sentence ultimately imposed when a discount of 25% from a nominated starting point was made to provide the offender with a credit for a plea of guilty. There the appeal was to an inherent power in the court to reopen and resentence. It was not put that there was any statutory power pursuant to s 37(1) of the Sentencing Act.
44 That section provides:
37. Correction of sentence
(1) If a court sentences an offender in a manner that is not in accordance with this Act or the written law under which the offence is committed, the court may recall the order imposing the sentence and impose a sentence that is.
(2) The powers in subsection (1) may be exercised by a court on its own initiative or on an application by the offender or the prosecutor made in accordance with the regulations, but in any event the court must give all parties the opportunity to be heard.
(3) If a court’s order imposing a sentence contains a clerical mistake or an error arising from an accidental slip or omission, the court may correct it at any time on its own initiative without recalling the order, but the court must ensure that all parties and relevant authorities are notified of the correction.
- (3a) A sentence imposed or corrected under this section has effect from the time at which the recalled or incorrect sentence had effect, unless the court orders otherwise.
(4) This section does not affect any right of appeal against a sentence.
(5) In this section -
sentence includes an order in addition to sentence.
45 The first question is whether s 37 confers power on the Court of Criminal Appeal when it sentences an offender anew or by way of varying a sentence imposed by the court below. With respect for the contrary view, in my opinion it does not.
46 Section 37 is one of a number of provisions in Part 4 of the Sentencing Act dealing with 'the sentencing process'. Section 37(1) applies, 'if a court sentences an offender'. In my opinion, the power to recall a sentence and to resentence which, under s 37(2), may be exercised by the court on its own initiative or upon an application by the offender or the prosecutor, 'made in accordance with the regulations' is intended to be an expeditious, less costly process by which errors of the kind identified in s 37(1) may be corrected without the need for an appeal. Section 37(4) makes that clear by expressly preserving rights of appeal, the alternative process by which such errors may be corrected.
47 Where an application to correct a sentence is made by an offender or prosecutor it must be made pursuant to Part 3 of the Sentencing Regulations 1996 (WA). Regulation 5(2) requires that the application be lodged with the court that imposed the sentence. Other procedural provisions are made, designed to comply with the obligation to give the parties the opportunity to be heard. Regulation 5(6) provides that the court need not be constituted by the judicial officer who imposed the original sentence.
48 In my view, the above interpretation of s 37 is consistent with the interpretation which ought to be given to s 37A. That section deals with the case of an offender who is sentenced upon the basis of an undertaking to assist law enforcement authorities and who subsequently fails, wholly or partly, to fulfil the undertaking. Then the court may recall the order imposing the sentence and impose a different sentence. Again, any application must be made in accordance with the regulations and regs 5A and 5B provide the procedure. Section 37A(3) provides that the court's power to resentence may be exercised even if a reduced sentence has been varied on appeal, and under s 37A(4), a sentence imposed under the
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- section may itself be appealed. Again, therefore, one sees that this is a provision dealing with the sentencing process in a court of first instance, and the provision deals with the interface between the exercise of that power and rights of appeal.
49 Further, it is unnecessary to rely on s 37(3) of the Sentencing Act as the source of the slip rule insofar as it may be available to the Court of Appeal. In my view, it would have a broader power of that description, not applicable merely to sentences imposed by the court, derived from the general power provided in s 40(1)(l) that in dealing with an appeal, an appeal court may 'exercise any power that the Supreme Court may exercise in a civil case'.
50 Of course, I arrive at the conclusion to which I have come, that s 37 of the Sentencing Act has no application to the Court of Appeal, by a process of interpretation of s 37(1) in the statutory context in which it is to be found. There are no authorities of which I am aware which illuminate the point. It may have arisen in the recent case, WCW v The State of Western Australia [2008] WASCA 232 in the context of a resentencing exercise made necessary when the court allowed an appeal against conviction in part, quashing two convictions, but leaving others unaffected by the appeal, for which offences the appellant had been sentenced to imprisonment. In the course of that process the sentencing judge had made a mathematical error in the calculation of a term of imprisonment. Encouraged by the court, the appellant had the sentencing judge correct the error before the matter was returned to the Court of Appeal for resentencing.
51 The second question which arises upon the respondent's application, in the event that the court has jurisdiction to deal with the application under s 37(1) on its merits, is the question whether the majority decision to impose a sentence of 3 years imprisonment upon the respondent was to sentence the respondent, 'in a manner that is not in accordance with [the Sentencing Act] or the written law under which the offence is committed'.
52 To deal with the latter aspect first, s 304(2) of the Code provides that a person who commits the offence defined by that subsection, 'is guilty of a crime and is liable to imprisonment for 20 years'. It is obvious that a sentence of 3 years imprisonment is not a sentence which is, 'not in accordance with … the written law under which the offence is committed'.
53 I turn then to the question whether the failure of the majority in this case to give effect to cl 2(1) of Sch 1, the transitional provisions, enacted
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- by s 22 of the Sentencing Legislation Amendment and Repeal Act 2001,was to sentence the respondent 'in a manner that is not in accordance with' the Sentencing Act. Again, with respect to the contrary view, I think that is not the case.
54 The Sentencing Amendment Act 2003 relevantly altered the statutory framework provided by the Sentencing Act in respect of the operation of sentences of imprisonment. Formerly, they attracted an automatic remission of one-third of the term imposed, whether or not they were parole terms. The transitional provisions were intended to make provision for the impact of that sweeping legislative change upon existing and newly imposed terms of imprisonment.
55 Clause 2(1) has its effect in relation to sentences of imprisonment imposed, with or without parole eligibility, after the amendments came into operation. The court was directed to, 'impose a fixed term that is two-thirds of the fixed term that it would have imposed had the old provisions been in operation at the time of sentencing'. The purpose is clear. It was to prevent a sentence now imposed without the benefit of the automatic one-third remission being suddenly 50% more severe than would formerly have been the case.
56 But it is noteworthy that the clause operates upon a sentence which would have been imposed under the old provisions, ie, a sentence fixed by the ordinary process of the exercise of discretion having regard to the multitude of factors which affect that process. Clause 2(1) does not, of itself, amend the Sentencing Act or, by reference, any Act under which the sentence was imposed, or any available sentencing power. It does not render unlawful or beyond power a sentence which had formerly been within power.
57 A failure to apply cl 2(1) where it is required to be applied, as the majority in this case did, is not to impose a sentence beyond the power of the court, having regard to any provision of the Sentencing Act as amended in 2003. It was to commit an error, adversely affecting the exercise of discretion, which might be corrected on appeal if, in the final result, the exercise of sentencing discretion, having regard to all the circumstances of this case, might be seen to have miscarried, a proposition which would appear at best to be open to argument.
58 In Traegar v Pires de Albuquerque (1997) 18 WAR 432, the respondents had been sentenced in the Court of Petty Sessions for offences upon the basis that they had no prior convictions. In fact, each
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- respondent had at least one relevant prior conviction which made him liable to a statutory minimum penalty exceeding the penalty actually imposed. Steytler J, with whom Kennedy and Heenan JJ agreed, held that the power of the court to recall an order imposing a sentence which was conferred by s 37 of the Sentencing Act, arose where the sentence imposed, although in accordance with the relevant legislation on the facts known at the time of sentencing, was one which could not have been imposed, but a different sentence would have been required as a matter of law, had the true facts been known.
59 Consistently with that view, it seems to me that the discretion conferred by s 37(1) arises where a court sentences an offender in a manner that is not in accordance with the law in the sense that the sentence imposed is not one which could lawfully be imposed under the Sentencing Act or the law under which the offence was committed. Part 5 and subsequent parts of the Sentencing Act are devoted in the main to provisions which govern what may be done by way of sentence in particular cases. The available sentencing options are specified with some particularity, depending on the circumstances of the case and the terms of the statute defining the offence and providing for the punishment of the offender.
60 For these reasons, in my view the decision of the majority in this case by reason of the failure to apply cl 2(1) of the transitional provisions cannot be said to have resulted in the respondent being sentenced in a manner which is not in accordance with, in the sense that it is contrary to or not empowered by, any provision of the Sentencing Act.
61 I would therefore dismiss the application, but in parting with the case I would note that by s 137 of the Sentencing Act no provision of the Sentencing Act affects or limits the exercise of the Royal Prerogative of Mercy. A petition for the exercise of executive clemency would be one way in which the merits of the application now advanced by the respondent might be considered.
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