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Court of Criminal Appeal 10 December 2001

REGINA v. POWICK

[2001] NSWCCA 512

Theft & property

Citation: [2001] NSWCCA 512
Court: NSW Court of Criminal Appeal
Date: 10 December 2001
Judge(s): Greg James J, Whealy J

Background

The applicant had been sentenced in the District Court at Gosford in May 1999 by Kirkham DCJ, and subsequently sentenced for separate offences in the Supreme Court by Ireland AJ. Critically, Ireland AJ's sentences were structured to commence at the conclusion of the Kirkham DCJ sentences, rather than running concurrently with them.

The applicant sought an extension of time to apply for leave to appeal against the Kirkham DCJ sentences, filing his notice in July 2001. He explained the delay by reference to advice he said he had received that the earlier sentences would be subsumed into Ireland AJ's sentences, making an appeal unnecessary. That expectation proved incorrect given how Ireland AJ structured the sentencing orders.

Separately, the applicant was already pursuing appeals against both his conviction and sentence before Ireland AJ, with those matters listed for hearing in Newcastle in March 2002.

  • Whether the applicant should be granted an extension of time to seek leave to appeal against the sentences imposed by Kirkham DCJ
  • Whether the sentences imposed by Kirkham DCJ were affected by error, including whether his Honour had incorrectly applied the guideline judgment in Regina v Henry
  • Whether the appeal should proceed immediately before a two-judge bench or be consolidated with the related Newcastle appeals before a three-judge bench

Decision

The Court identified a prima facie basis for granting the extension of time and for the appeal to proceed. The applicant's affidavit disclosed a sufficient foundation, and the Crown's own written submissions acknowledged that Kirkham DCJ appeared to have erroneously equated the applicant's offences with those addressed in the Henry guideline judgment. The Crown accepted that his Honour could not be regarded as having correctly applied Henry in all its aspects, though it maintained that some principles from that decision were applicable.

The Court then turned to the more immediate procedural question. If the appeal against the Kirkham DCJ sentences succeeded, consequential adjustments to the commencement dates of Ireland AJ's sentences would be required under s 59 of the Crimes (Sentencing Procedure) Act 1999. The commencement date of Ireland AJ's sentences was itself a live issue in the Newcastle appeals. This created a real risk that two differently constituted benches, including a two-judge bench and a three-judge bench, would each be addressing interconnected aspects of the applicant's overall sentencing without visibility of the complete picture.

The Court found it incongruous and procedurally unsound to allow that fragmentation to occur. Consolidating the matters before a single three-judge bench in Newcastle would allow the totality of the applicant's sentencing to be considered together. Any errors identified in individual sentences could then be remedied in a way that properly accounted for all circumstances. Both the applicant (on counsel's advice) and the Crown supported this course.

Orders Made

  • The matter was stood out of the 10 December 2001 list and referred to the Registrar's callover, to be fixed for hearing with the related conviction and sentence appeals in Newcastle on 25 and 26 March 2002.

Key Takeaways

  • Where multiple sentencing appeals are pending before the Court of Criminal Appeal and the outcome of one directly affects the structure of another, consolidating those appeals before a single bench avoids the risk of inconsistent or incomplete remedies.
  • A guideline judgment (here, Regina v Henry on armed robbery) must be applied correctly; the Crown's own concession that a sentencing judge appeared to have misapplied it provided sufficient basis for an extension of time and a prima facie case for leave to appeal.
  • Under s 59 of the Crimes (Sentencing Procedure) Act 1999, adjustments to sentence commencement dates flow consequentially from successful appeals, making it important that interdependent sentencing matters are addressed together.
  • Delay in filing an appeal notice may be explained where an applicant received advice that an appeal was unnecessary, and that advice subsequently proved to be founded on a mistaken premise about how later sentences would be structured.
  • Procedural efficiency and coherent sentencing outcomes, rather than strict adherence to the original listing, justified the adjournment in this case.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 59

Cases:
- Regina v Henry (1999) 46 NSWLR 346 (guideline judgment on sentencing for armed robbery)