Citation: R v Smith [2005] NSWCCA 236
Court: NSW Court of Criminal Appeal
Date: 7 June 2005
Judge(s): Studdert J, James J, Howie J
Background
The respondent pleaded guilty in the Penrith District Court to breaking and entering a building and committing a serious indictable offence. Rather than proceeding to sentence, the sentencing judge convicted the respondent and adjourned the sentencing proceedings for ten months under section 11 of the Crimes (Sentencing Procedure) Act. The adjournment was intended to allow the respondent to undergo rehabilitation at the William Booth Institute in Surry Hills.
The Crown appealed against the order made on 7 March 2005. It became apparent that the sentencing judge had been given incorrect information about the respondent's parole status: her Honour believed the respondent was on parole at the time of sentencing, when in fact the Parole Board had revoked his parole on 16 December 2004.
Legal Issues
- Whether a sentencing judge is required to make findings of fact before making an order to adjourn sentencing proceedings under section 11 of the Crimes (Sentencing Procedure) Act
- Whether the sentencing process miscarried as a result of the failure to make those findings, compounded by the provision of incorrect information about the respondent's parole status
- What the appropriate remedy was, given that both parties acknowledged the error
Decision
The Court of Criminal Appeal held that the sentencing judge erred by failing to make findings of fact before making the adjournment order under section 11. The sentencing remarks recorded on 7 March 2005 contained no such findings. The Court noted that this requirement had been clearly established in R v Palu (2002) 134 A Crim R 174.
The respondent did not contest the appeal. He conceded both that the sentencing process had miscarried due to the absence of findings of fact, and that the error was compounded by the incorrect information given to her Honour about his parole status. Because her Honour understood the respondent to be on parole when he was not, the adjournment order served no practical utility.
Both parties agreed that re-sentencing by the Court of Criminal Appeal was not appropriate in the circumstances, and that the matter should be returned to the District Court to be dealt with afresh. The Court accepted that course and allowed the appeal.
Orders Made
- The appeal was allowed
- The order made by English DCJ in the Penrith District Court on 7 March 2005 was quashed
- The sentencing proceedings were returned to the District Court of New South Wales pursuant to section 12(2) of the Criminal Appeal Act
Key Takeaways
- Under section 11 of the Crimes (Sentencing Procedure) Act, a sentencing judge must make findings of fact before adjourning sentencing proceedings. Proceeding without those findings constitutes an error that will vitiate the order.
- The Court of Criminal Appeal confirmed the principle established in R v Palu (2002): the factual findings requirement is not a formality but a necessary precondition to a valid section 11 order.
- Incorrect information provided to a sentencing court about a defendant's parole status can independently undermine the validity of sentencing orders, particularly where the order's utility depends on that status.
- Where the sentencing process has miscarried in the court below and there is no adequate factual basis for the appellate court to re-sentence, returning the matter to the District Court for a fresh sentencing hearing is the appropriate remedy.
- Both parties' concession of error did not diminish the need for formal appellate orders: the Court of Criminal Appeal quashed the original order and remitted the proceedings under the Criminal Appeal Act.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act (NSW), ss 11, 12
- Criminal Appeal Act (NSW), s 12(2)
Cases:
- R v Palu (2002) 134 A Crim R 174