AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 30 April 2004

Regina v Hall

[2004] NSWCCA 127

Drugs
CRIMINAL APPEAL BAIL PENDING APPEAL SENTENCE CONTINUES TO RUN

Citation: Regina v Hall [2004] NSWCCA 127
Court: NSW Court of Criminal Appeal
Date: 30 April 2004
Judges: Handley JA, Dowd J, Greg James J

Background

The appellant pleaded guilty in the Local Court to supplying ecstasy, a prohibited drug, and was committed to the District Court for sentence. Maguire DCJ sentenced him to two years' imprisonment with a non-parole period of twelve months, to be served by way of periodic detention, commencing 22 August 2003.

The appellant sought leave to appeal against that sentence and was admitted to bail pending the appeal. The Court of Criminal Appeal granted leave but dismissed the appeal on the merits.

Before delivering its decision, the Court reserved judgment specifically to consider a discrete question: whether it had power, upon dismissing the appeal, to adjust and restart the sentence so as to account for time the appellant had spent on bail while the appeal was pending.

  • Whether the sentence and periodic detention order continued to run during the period the appellant was on bail pending his appeal
  • Whether the Court of Criminal Appeal had power, upon dismissing the appeal, to adjust or restart the sentence to account for time spent on bail
  • Whether any implied power existed to make such an order

Decision

The Court confirmed that the sentence and the order for periodic detention had continued to run throughout the bail period, applying the High Court's decision in Whan v McConaghy (1984) 153 CLR 631. Bail pending appeal does not suspend a sentence already running.

The Court then turned to whether it could restart or adjust the sentence to account for the time lost. Formerly, s 18(3) of the Criminal Appeal Act 1912 had expressly conferred that power on the Court. However, that provision was repealed by the Courts Legislation Further Amendment Act 1995 and replaced by s 18(2) in its current form. The Court found that the amended provision did not confer any equivalent power to substitute a fresh commitment order after the sentence had already been running or had expired.

The Crown submitted that an implied power existed for the Court to make orders dealing with the original sentence when exercising its appellate function. Greg James J rejected that submission directly. The Court of Criminal Appeal is a creature of statute under s 3 of the Criminal Appeal Act, with no jurisdiction beyond what the Act confers. Its power to intervene on sentence is found exclusively in s 6 of that Act, exercisable only where a different sentence is warranted. No broader implied power was available.

The practical result was that the sentence, the non-parole period, and the periodic detention order had all been running since their original imposition, and the expiry dates remained unchanged. The appellant was bound only to serve the balance of his original sentence, and his bail terminated upon the Court's orders.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A sentence and periodic detention order continue to run during the period an appellant is on bail pending a sentence appeal, consistent with Whan v McConaghy (1984) 153 CLR 631.
  • Repeal of the former s 18(3) of the Criminal Appeal Act 1912 removed the Court of Criminal Appeal's express power to adjust and restart a sentence to account for time spent on bail after an appeal is dismissed.
  • The Court of Criminal Appeal is a creature of statute, and its powers are confined to those expressly conferred by the Criminal Appeal Act or necessarily implied for the operation of those powers. No implied power to restart a sentence was found to exist.
  • Without an express statutory power, dismissal of a sentence appeal where the appellant has been on bail does not entitle the court to re-start or extend the sentence to compensate for time served on bail.
  • Under s 83(1)(a) of the Crimes (Administration of Sentences) Act 1999, a periodic detention order continues to impose reporting obligations for the balance of the original sentence, unaffected by the bail period.

Legislation and Cases Referenced

Legislation:
- Crimes (Administration of Sentences) Act 1999 (NSW), ss 82(1), 83(1)(a), 85
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 6(1), 44(1), 47(1), 70
- Criminal Appeal Act 1912 (NSW), ss 3, 6, 18(2), formerly 18(3)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Justices Act 1902 (NSW), s 51A
- Periodic Detention of Prisoners Act 1981 (NSW), s 8
- Courts Legislation Further Amendment Act 1995 (NSW)

Cases:
- Whan v McConaghy (1984) 153 CLR 631
- Regina v Carrion (2002) 128 ACR 29
- Regina v Nunan [1999] NSWCCA 117
- Wilson v Department of Corrective Services (1997) 93 ACR 301