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Court of Criminal Appeal 28 April 1999

REGINA v NUNAN

[1999] NSWCCA 117

Also reported as 108 A Crim R 1
Drugs
CRIMINAL LAW SENTENCE TO COMMENCE ON SPECIFIED DATE BAIL PENDING APPEAL

Citation: Regina v Nunan [1999] NSWCCA 117
Court: NSW Court of Criminal Appeal
Date: 28 April 1999
Judge(s): Spigelman CJ, James J, Bell J

Background

The applicant was sentenced on 4 December 1997 to two concurrent fixed terms of ten weeks imprisonment for offences of cultivating a prohibited plant and supplying cannabis leaf. Shortly after sentencing, she applied for bail in the Supreme Court. On 15 December 1997, Hidden J granted bail on the assumption that an appeal had been lodged on her behalf.

In fact, no appeal had been lodged. The applicant had apparently been given the wrong form at the custodial centre and filled in a District Court appeal form, which was unsuitable for challenging a sentence imposed in the District Court. No notice of appeal to the Court of Criminal Appeal was ever filed. The applicant complied with her bail conditions throughout, not realising the error, until she eventually surrendered herself in August 1998.

Grove J subsequently extended time for the applicant to lodge an application for leave to appeal and granted fresh bail. The primary question before the Court of Criminal Appeal was whether, given the absence of any valid appeal, s 18(2) of the Criminal Appeal Act 1912 (NSW) had operated to pause the running of the sentence during the period of bail. If it had not, the sentence had already expired by its specified end date of 11 February 1998, and the appeal application was moot.

  • Whether the period of bail granted by Hidden J on 15 December 1997 counted as time served under the sentence, or was suspended from running by s 18(2) of the Criminal Appeal Act 1912 (NSW).
  • Whether s 18(2), which stops time running on a sentence while an appellant is "at liberty on bail (pending the determination of his or her appeal)", can apply where no appeal had in fact been lodged at the time bail was granted.
  • Whether the sentence had therefore expired by the time the matter came before the Court of Criminal Appeal in April 1999.

Decision

The Court held that s 8 of the Sentencing Act 1989 (NSW) applied, meaning the sentence commenced on the specified date of 4 December 1997 and ran continuously, unless a provision such as s 18(2) of the Criminal Appeal Act 1912 operated to interrupt it.

Spigelman CJ examined the terms of s 18(2), which suspends the running of a sentence only while an appellant is "at liberty on bail (pending the determination of his or her appeal)". His Honour applied the reasoning of the High Court in Whan v McConaughy (1984) 153 CLR 631, which had held that similar statutory language required the existence of an appeal "duly instituted". In this case, there was no appeal of any character to the Court of Criminal Appeal, let alone one that had been duly instituted.

The Crown argued that the purpose or intention of Hidden J was to release the applicant pending an appeal, and that all parties had assumed an appeal existed. Spigelman CJ rejected this, holding that purpose or intention cannot satisfy the statutory language of s 18(2). Provisions directly affecting the liberty of a person must be construed strictly, citing Re Bolton; Ex parte Beane (1987) 162 CLR 514. The bail granted by Hidden J, while not technically a nullity as an order of a superior court, was not authorised by the Bail Act 1978 because no appeal was pending.

Because s 18(2) did not apply, time continued to run on the sentence as originally imposed. The sentence therefore expired on 11 February 1998. There was accordingly no need to consider the application for leave to appeal on its merits. James J and Bell J agreed with the Chief Justice.

Orders Made

No orders were made in this decision.

Key Takeaways

  • Section 18(2) of the Criminal Appeal Act 1912 (NSW) operates to stop time running on a sentence only where the person is on bail pending an appeal that has actually been lodged. The provision does not apply where no appeal existed at the time bail was granted.
  • Under the High Court's reasoning in Whan v McConaughy, the statutory phrase "pending the determination of his or her appeal" requires an appeal to have been duly instituted. An assumed or intended appeal is insufficient.
  • Provisions that directly affect personal liberty must be construed strictly, consistent with the principle affirmed in Re Bolton; Ex parte Beane (1987) 162 CLR 514.
  • A superior court order, even one granted without proper statutory authority, is not a nullity and remains valid unless set aside. However, the absence of an underlying appeal means such bail cannot engage the suspensory effect of s 18(2).
  • Where s 18(2) does not apply, a fixed-term sentence imposed to commence on a specified date runs continuously under s 8 of the Sentencing Act 1989 from that date, regardless of whether the offender was at liberty during that period.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 18(2)
- Bail Act 1978 (NSW), ss 6(e), 28, 30, 30AA, 62
- Sentencing Act 1989 (NSW), s 8
- Drug Misuse and Trafficking Act 1985 (NSW), ss 23(1)(a), 25(1)
- Periodic Detention of Prisoners Act 1981 (NSW)

Cases
- Whan v McConaughy (1984) 153 CLR 631
- Re Bolton; Ex parte Beane (1987) 162 CLR 514
- Cameron v Cole (1943) 68 CLR 571