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Court of Criminal Appeal 10 February 2004

Regina v Erceg

[2004] NSWCCA 15

Assault & violence

Citation: Regina v Erceg [2004] NSWCCA 15
Court: NSW Court of Criminal Appeal
Date: 10 February 2004
Judge(s): James J; Smart AJ

Background

The applicant pleaded guilty to assault with intent to rob in company (initially charged as robbery in company). On 28 November 2001, Taylor DCJ in the District Court sentenced the applicant and a co-offender. The intended head sentence of four years and four months was clear enough, but the non-parole period was ambiguous: it was uncertain whether his Honour meant three years or one year and four months.

Multiple warrants were issued stating the sentence in inconsistent terms, and correspondence between the Registrar and the judge failed to resolve the confusion. A further hearing before Taylor DCJ on 19 December 2002 purported to clarify the position, but the sentences he then imposed were later found by the Court of Appeal to be contrary to law.

The applicant sought leave to appeal against sentence in the Court of Criminal Appeal. That application had been argued in May 2003 but remained undetermined, pending related proceedings. The Court of Appeal delivered judgment on 19 December 2003, finding the purported sentences were unlawful and directing that the matter be placed back before Taylor DCJ under section 43 of the Crimes (Sentencing Procedure) Act 1999.

  • Whether the Court of Criminal Appeal should proceed to determine the applicant's leave to appeal against sentence, notwithstanding the Court of Appeal's finding that the sentence was contrary to law.
  • Whether the matter should instead be remitted to the District Court to exercise jurisdiction under section 43 of the Crimes (Sentencing Procedure) Act 1999 to reopen and correct the unlawful sentence.
  • Whether the Court of Criminal Appeal had power under section 12(2) of the Criminal Appeal Act 1912 to make an order facilitating that remission.

Decision

James J declined to determine the leave to appeal application. The Court of Appeal had already held that the purported penalty was contrary to law and had identified the appropriate remedy: remission to the District Court for action under section 43. James J considered it inappropriate for a two-judge bench of the Court of Criminal Appeal to proceed on the merits of the appeal in those circumstances.

James J acknowledged some doubt about whether any order from the Court of Criminal Appeal was strictly necessary for the District Court to exercise its section 43 jurisdiction, and further doubt about whether the Court of Criminal Appeal had power to make such a remission order. Nevertheless, his Honour concluded the Court should act in aid of the Court of Appeal and facilitate the course it had identified as appropriate.

Smart AJ agreed with the order, though he noted he would personally have preferred to dispose of the leave to appeal application outright. He observed that the non-parole period was due to expire around 1 May 2004 and urged Taylor DCJ to deal with the matter with extreme urgency. Smart AJ also noted a further correction was required: the District Court's records still referenced the original charge of robbery in company, when the applicant had in fact pleaded guilty to the superseding charge of assault with intent to rob in company.

Orders Made

  • The matter of the sentence imposed on Leon Erceg is remitted to the District Court for further consideration pursuant to section 43 of the Crimes (Sentencing Procedure) Act 1999, and in accordance with the reasons for judgment of the Court of Appeal of 19 December 2003.

Key Takeaways

  • The Court of Criminal Appeal confirmed it would act in aid of a Court of Appeal direction rather than proceed independently on the merits of a leave to appeal application, even where the underlying issue had been argued before it.
  • Under section 43 of the Crimes (Sentencing Procedure) Act 1999, the District Court's power to reopen a sentence is not confined to correcting matters of expression. The court may exercise a wide discretion taking into account all circumstances that have arisen since the original sentencing.
  • Where a sentence is found by a superior court to be contrary to law, a further appellate court will generally defer to the identified remedy rather than substitute its own course.
  • Procedural irregularities in recording and expressing a sentence can render it unlawful, even where the sentencing judge's substantive intention was discernible.
  • Accuracy in sentencing records, including the correct identification of the charge to which an offender actually pleaded guilty, is a distinct requirement that must be reflected in formal court documents.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), sections 43, 43(1)(a), 43(2), 48
- Criminal Appeal Act 1912 (NSW), section 12(2)

Cases cited: None cited in the judgment.