Citation: R v Forrester [2000] NSWCCA 66
Court: NSW Court of Criminal Appeal
Date: 7 March 2000
Judge(s): Sheller JA, James J, Dowd J
Background
The respondent pleaded guilty to robbery in company and appeared for sentence before Judge Nader in the Newcastle District Court on 15 April 1998. Judge Nader deferred sentence and instead placed the respondent on a recognizance (a formal promise to be of good behaviour) for two years, on the basis that she had undertaken to assist law enforcement authorities.
The respondent did not fulfil that undertaking. When she appeared before a different judge, Judge Job, on 8 April 1999 on a separate charge of assault with intent to rob and wounding, Judge Job also dealt with the alleged breach of the recognizance. Having found that the respondent had breached the recognizance, Judge Job imposed a fixed term of six months imprisonment.
The Director of Public Prosecutions filed a notice of appeal on 18 August 1999, formally directed at the order made by Judge Nader. However, by the time the matter came before the Court of Criminal Appeal, the Crown's written submissions were entirely directed at the sentence imposed by Judge Job.
Legal Issues
- Whether the Crown's appeal, filed under section 5DA of the Criminal Appeal Act 1912 and directed at Judge Nader's order, was properly constituted when the Crown's actual argument targeted Judge Job's sentence.
- Whether the Court should allow amendment of the notice of appeal to redirect it against Judge Job's sentence under section 5D of the Criminal Appeal Act 1912.
Decision
The Court found that the appeal, as filed, was misconceived. The notice of appeal named Judge Nader's order as the subject of the appeal, but the Crown's entire case at the hearing was directed at the separate sentence pronounced by Judge Job. Those were different proceedings, different judges, and different provisions of the Criminal Appeal Act 1912.
Sheller JA noted that any appeal against Judge Job's sentence would need to proceed under section 5D of the Act, not section 5DA. James J observed that an appeal against Judge Nader's original order would technically have been available, since a deferral order under section 558(3) of the Crimes Act 1900 falls within the extended definition of "sentence" under the Criminal Appeal Act. However, that was not the case the Crown sought to argue.
When the Crown raised the possibility of amending the notice of appeal at the hearing, Sheller JA declined to grant any such amendment. His Honour emphasised that Crown appeals against the inadequacy of sentence are of an extraordinary nature, and that it was therefore inappropriate to permit amendment in those circumstances.
All three judges agreed the appeal should be dismissed.
Orders Made
- The appeal is dismissed.
Key Takeaways
- A Crown appeal against sentence must be directed at the correct order, made by the correct judge, and brought under the correct provision of the Criminal Appeal Act 1912; a mismatch between the notice of appeal and the Crown's actual case will be fatal to the appeal.
- Under section 558(3) of the Crimes Act 1900, a deferred sentence order does fall within the extended definition of "sentence" in the Criminal Appeal Act 1912, meaning such orders are capable of being the subject of a Crown appeal.
- In dismissing the appeal, the Court of Criminal Appeal declined to permit amendment of a misconceived notice of appeal, citing the extraordinary nature of Crown appeals against inadequacy of sentence as a reason for restraint.
- Where the Crown wishes to challenge a sentence imposed by one judge in proceedings that also involved an order by a different judge, separate and correctly targeted grounds of appeal are required for each.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), ss 5D, 5DA
- Crimes Act 1900 (NSW), s 558(3)
Cases cited: No cases were cited in the judgment.