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Court of Criminal Appeal 28 July 2004

Regina v PHAM

[2004] NSWCCA 263

Other
MEANING OF 'COURT'

Citation: Regina v PHAM [2004] NSWCCA 263
Court: Court of Criminal Appeal, New South Wales
Date: 28 July 2004
Judge(s): Spigelman CJ, Hidden J, Buddin J

Background

The appellant had been sentenced by Sully J in a murder matter. He had also received a separate sentence from Acting Judge Stewart in an unrelated proceeding, with that sentence structured to commence at a time that took the Sully J sentence into account.

On 6 July 2004, a differently constituted bench of the Court of Criminal Appeal allowed the appellant's appeal from the Sully J sentence and ordered a new trial. That earlier bench had not been aware of the Acting Judge Stewart sentence when it made its orders.

The Crown then relisted the matter before the new bench (Spigelman CJ, Hidden J and Buddin J) seeking an order under s 59 of the Crimes (Sentencing Procedure) Act 1999 to vary the commencement date of the Acting Judge Stewart sentence, to reflect that the underlying sentence it had been anchored to had now been quashed.

  • Whether the Court of Criminal Appeal, as constituted by a different bench from the one that quashed the original sentence, had power under s 59 of the Crimes (Sentencing Procedure) Act 1999 to vary the commencement date of the other sentence.
  • Specifically, whether the word "court" in s 59 refers to the particular judges who constituted the bench that quashed the sentence, or to the Court of Criminal Appeal as an institution.

Decision

Section 59(1) provides that "a court that quashes or varies a sentence of imprisonment" may vary the commencement date of any other sentence imposed on that person. The critical question was whether the word "court" referred to the specific bench that had previously quashed the Sully J sentence, or to the Court of Criminal Appeal as an institution regardless of its composition.

Spigelman CJ held that "court" in s 59 refers to the institution, not to the particular judges comprising a given bench. His Honour drew on the decision of Kearney J in R v Wanambi (1998) from the Supreme Court of the Northern Territory, where a closely analogous provision was construed in the same institutional sense. That construction was adopted for s 59.

The Chief Justice emphasised that s 59 serves a pragmatic purpose: to ensure efficiency and expedition in criminal justice administration by allowing what is ordinarily a mechanical adjustment to sentence dates, without requiring a fresh appeal. A liberal construction of "court" best serves that purpose, since it avoids delay caused by the practical impossibility of reconstituting the same bench.

Spigelman CJ also noted that, in the normal course, these matters should be capable of being dealt with on the papers, and suggested that consideration be given to adding the s 59 power to the list of single-judge powers under s 22 of the Criminal Appeal Act 1912. As to a submission from the appellant's counsel that the Acting Judge Stewart sentence may need to be revisited if the appellant is acquitted at the new murder trial, the Chief Justice confirmed that nothing in the Court's orders would prevent a future application for leave to appeal against that sentence out of time.

Orders Made

  • The sentence imposed by Acting Judge Stewart on 19 September 2003 was varied pursuant to s 59 of the Crimes (Sentencing Procedure) Act 1999 so that:
  • The sentence commences on 24 March 2000 and expires on 23 September 2010.
  • The non-parole period commences on 24 March 2000 and expires on 23 March 2006.

Key Takeaways

  • The Court of Criminal Appeal held that "court" in s 59 of the Crimes (Sentencing Procedure) Act 1999 refers to the court as an institution, not to the particular judges who constituted the bench that quashed or varied the original sentence.
  • A differently composed bench of the same court therefore has power under s 59 to vary the commencement date of a related sentence, even where it was not the bench that made the original quashing order.
  • Under s 59, the adjustment of sentence commencement dates is ordinarily a mechanical exercise, and the section's pragmatic purpose favours a construction that minimises procedural difficulty and cost.
  • Spigelman CJ observed, by way of suggestion for future law reform, that the s 59 power could appropriately be added to the list of powers exercisable by a single judge under s 22 of the Criminal Appeal Act 1912.
  • A s 59 order varying sentence dates does not foreclose a later application for leave to appeal against the varied sentence out of time, where changed circumstances (such as an acquittal at a retrial) might warrant it.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 59
- Criminal Appeal Act 1912 (NSW), s 22
- Sentencing Act 1995 (NT), s 64(2)

Cases
- R v Ngoc Pham [2004] NSWCCA 190
- R v Wanambi (1998) Northern Territory Reports 1