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7
Court of Criminal Appeal 17 May 2004

R v Finnie (No. 2)

[2004] NSWCCA 150

Other
CRIMINAL LAW AND PROCEDURE PROCEEDINGS AFTER SENTENCE APPLICATION TO RE OPEN SENTENCING PROCEEDINGS EXTENT OF JURISDICTION TO RE OPEN SENTENCING PROCEEDINGS.

Citation: R v Finnie (No. 2) [2004] NSWCCA 150
Court: New South Wales Court of Criminal Appeal
Date: 17 May 2004
Judge(s): Spigelman CJ, Dunford J, Howie J

Background

The respondent had been sentenced by the Court of Criminal Appeal in December 2002 following a successful Crown appeal against sentences originally imposed in the District Court. The Court of Criminal Appeal resentenced the respondent to a head sentence of 4 years 4 months with a non-parole period of 2 years 10 months. That sentence included a credit of 10 months for pre-sentence custody. The respondent's subsequent application to the High Court for special leave to appeal was refused.

The respondent then brought a fresh application seeking to re-open the sentencing proceedings under s 43 of the Crimes (Sentencing Procedure) Act 1999. His argument was that the Court of Criminal Appeal had miscalculated the period of pre-sentence custody to which he was entitled, because it was not aware of all relevant facts concerning an earlier periodic detention order and the consequences of its revocation.

The background involved a periodic detention sentence imposed in 1997, which was later revoked by the Parole Board after the respondent failed to attend. The respondent served the balance of that sentence as full-time custody from January to November 2000. During part of that period, he was also refused bail on fresh charges. The Court of Criminal Appeal, when resentencing, had credited only 10 months of pre-sentence custody rather than the 18 months calculated by the original sentencing judge.

  • Whether the sentence imposed by the Court of Criminal Appeal was "contrary to law" within the meaning of s 43(1)(a) of the Crimes (Sentencing Procedure) Act 1999, such that the proceedings could be re-opened.
  • Whether new material, not before the Court at the time of resentencing, could engage the jurisdiction under s 43 to correct an alleged error in determining the commencement date of the sentence.
  • What is the extent of the court's jurisdiction to re-open sentencing proceedings under s 43, particularly where the error alleged relates to factual findings rather than a legal defect in the sentence itself.

Decision

Howie J (with whom Spigelman CJ and Dunford J agreed) dismissed the application on the basis that the Court lacked jurisdiction to re-open the proceedings under s 43.

The new material advanced by the respondent concerned the operation of transitional provisions in Division 2 of Schedule 5 to the Crimes (Administration of Sentences) Act 1999, specifically Clause 31, which applied to sentences originally imposed under the Periodic Detention of Prisoners Act 1981. The respondent argued that the Parole Board had acted under a mistaken belief about the legislative framework and, had it applied the correct provisions, might have released him to parole earlier. This, he contended, would have shortened the period he was serving a sentence concurrently with being refused bail on the new charges, and the Court of Criminal Appeal should have credited him with a longer period of pre-sentence custody.

Howie J rejected this reasoning. Section 43 applies where a penalty is "contrary to law" or where a court has failed to impose a penalty "required by law." The sentence imposed by the Court of Criminal Appeal fell into neither category. The fact that additional factual material had not been placed before the Court at the time of resentencing did not mean the resulting sentence was unlawful. His Honour observed that s 43 does not confer jurisdiction to review a sentence merely because some injustice may have occurred at an earlier stage in the proceedings.

Howie J also declined to speculate on what the Parole Board might have done had it correctly applied the transitional provisions. He noted that s 50(1) of the Crimes (Sentencing Procedure) Act, which creates a presumption of parole release for sentences of three years or less, applies to courts at the point of sentencing and does not govern Parole Board decisions following breach of a periodic detention order.

Orders Made

  • The application to re-open the sentencing proceedings was refused.

Key Takeaways

  • Section 43 of the Crimes (Sentencing Procedure) Act 1999 confers jurisdiction to re-open sentencing proceedings only where the penalty imposed was contrary to law, or where a legally required penalty was not imposed. It does not extend to cases where a sentence was reached on an incomplete factual basis.
  • A sentence that is within the range permitted by law does not become "contrary to law" simply because new factual material, not previously before the court, might have led to a different outcome had it been available.
  • Alleged errors or injustices occurring at earlier stages of the process, such as a Parole Board's misapplication of transitional legislation, do not themselves engage the re-opening jurisdiction under s 43, even if those errors may have had downstream effects on the sentencing calculation.
  • Under the transitional provisions in Division 2 of Schedule 5 to the Crimes (Administration of Sentences) Act 1999 (Clause 31), a person serving full-time custody following revocation of a periodic detention order made under the 1981 Act became eligible for parole consideration from the date that clause commenced (3 April 2000), not from the earlier date of revocation.
  • The section 50(1) presumption favouring parole release for sentences of three years or less applies to courts at the point of sentencing; it does not govern Parole Board decisions arising from breach of periodic detention orders.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 43, 50(1)
- Crimes (Administration of Sentences) Act 1999 (NSW), Division 2 of Schedule 5 (Clause 31)
- Periodic Detention of Prisoners Act 1981 (NSW)
- Criminal Procedure Act 1986 (NSW), ss 19, 24
- Sentencing Act (WA), s 37
- Sentencing Act (NT), s 112
- Penalties and Sentences Act (Qld), s 188

Cases:
- R v Finnie [2002] NSWCCA 533
- Finnie v The Queen [2003] HCATrans 401
- R v Finnie [1999] NSWCCA 329
- R v Petrou (NSWCCA, 13 February 1990, unreported)
- Tolmie (1994) 72 A Crim R 416
- Ho v DPP (1995) 37 NSWLR 393
- Traegar v Pires de Albuquerque (1997) 18 WAR 432
- Shortland v Heath [1977] WAR 61
- Melville v The Queen (1999) 150 FLR 296
- Siganto v The Queen (1998) 194 CLR 656
- Staats v R (1999) 123 NTR 16
- R v McMahon [2002] QCA 18
- Erceg v District Court of NSW [2003] NSWCA 379