Citation: Regina v King [2005] NSWCCA 296
Court: New South Wales Court of Criminal Appeal
Date: 25 August 2005
Judge(s): Sully J, Hidden J, Hall J
Background
The respondent, Vincent Patrick King, pleaded guilty in the District Court to a charge of conspiracy to defraud. The sentencing judge, Berman DCJ, made an order under section 11 of the Crimes (Sentencing Procedure) Act 1999 (NSW), which allowed the court to adjourn proceedings to assess the offender's prospects or circumstances before imposing a final sentence. The matter was stood over to 23 September 2005.
During proceedings, the sentencing judge also indicated that, if the necessary statutory prerequisites were satisfied, the likely outcome would be a sentence of periodic detention. The Crown appealed against the section 11 order before any final sentence was imposed.
Legal Issues
- Whether the section 11 adjournment order was correctly made as a matter of principle
- Whether this Court should intervene by way of Crown appeal at an interim stage of the sentencing process, before a substantive sentence had been imposed
- The utility of Crown appellate intervention at this point in the proceedings
Decision
Sully J acknowledged that the Crown's challenge to the section 11 order had "more than just passing substance" as a matter of principle. However, the central question was whether it was useful or appropriate for the Court of Criminal Appeal to intervene at this interim stage, before a final sentence had been passed.
Drawing on the principles discussed in Anderson and Parker, Sully J concluded that no intervention was warranted. The sentencing process had not yet concluded, and if the final sentence proved to be demonstrably appealable, the Crown would retain every opportunity to return to the Court at that point. Intervening now would serve no practical purpose.
Sully J also commented, without expressing it as a binding ruling, that it would have been wiser for the sentencing judge to have allowed the adjournment to run its course without signalling what the likely penalty might be. That observation was directed at the sentencing judge's indication that periodic detention was the probable outcome, which Sully J regarded as unnecessary and unwise, even if not grounds for intervention at this stage.
Hidden J and Hall J both agreed with Sully J's reasoning and proposed order.
Orders Made
- The Crown appeal was dismissed.
Key Takeaways
- The Court of Criminal Appeal confirmed that utility is a threshold consideration in Crown appeals: where the sentencing process remains on foot and the Crown retains a right to appeal against the ultimate sentence, intervention at an interim stage will generally not be justified.
- In dismissing the appeal, the Court left open the question of whether the section 11 adjournment order was correctly made in principle, with Sully J noting the Crown's submissions had real substance on that point.
- A sentencing judge who makes a section 11 adjournment order should, according to Sully J's observations, ordinarily allow the adjournment to run its course without indicating the likely sentencing outcome, even where the judge has formed a provisional view.
- No error was established sufficient to warrant intervention before a final sentence was imposed, given the Crown's ability to challenge any demonstrably erroneous sentence after it was handed down.
- The principles governing the utility of Crown appellate intervention, as discussed in Anderson and Parker, applied to restrain interference with the sentencing process at an interim stage.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 11
Cases:
- Anderson (unreported), NSWCCA, 25 June 1996
- Parker (unreported), NSWCCA, 13 December 1993