Citation: Regina v Lowe [2006] NSWCCA 10
Court: NSW Court of Criminal Appeal
Date: 2 February 2006
Judge(s): Grove J; Rothman J
Background
The applicant had pleaded guilty before Gibson DCJ in the District Court to a charge of intimidation under s 562AB of the Crimes Act 1900, arising from conduct directed at a former partner between July 2001 and January 2002. The maximum penalty for that offence is five years imprisonment. At the same hearing, an appeal from a Local Court conviction for assault occasioning actual bodily harm was also dealt with, resulting in a two-year good behaviour recognisance in place of the original custodial sentence.
For the intimidation offence, Gibson DCJ imposed a fixed term of twelve months imprisonment, wholly suspended on the applicant entering a twelve-month good behaviour recognisance. The applicant lodged a notice of intention to appeal in September 2004 but did not file the substantive notice of appeal until August 2005, after the entire suspended sentence period had already expired.
By the time the matter came before the Court of Criminal Appeal, the applicant appeared without counsel and sought both an adjournment (to pursue a future challenge to his guilty plea) and leave to appeal against the severity of the sentence. The Crown did not allege any breach of the recognisance during its operative period.
Legal Issues
- Whether leave to appeal against the severity of the sentence should be granted, given the suspended sentence had already expired
- Whether the sentencing judge erred in failing to consider non-custodial alternatives
- Whether the sentencing judge erred in not fixing a non-parole period or giving reasons for not doing so
- Whether the sentencing judge failed to take the guilty plea into account
- Whether the twelve-month wholly suspended sentence was manifestly excessive
- Whether an adjournment should be granted to allow the applicant to later contest his guilty plea
Decision
Grove J refused both the adjournment and leave to appeal. On the adjournment, the court took the view that, given all the surrounding circumstances, there was no basis to delay the hearing further. The applicant's stated intention to later challenge his guilty plea did not provide sufficient grounds to adjourn an application that was already well overdue.
On the substantive grounds, Grove J found all four asserted errors to be without merit. The judge's failure to explicitly incant non-custodial alternatives was not an error in the circumstances, as it was clear from the transcript that his Honour had considered and rejected those submissions. The absence of a formal non-parole period was technically observable but entirely without consequence: because the sentence had expired, the applicant could never be committed to custody under it, making any remedy on that ground meaningless.
The argument that the guilty plea was not taken into account was also rejected. Grove J noted that the entire hearing had been conducted with the plea of guilty as its focal point, and the failure to expressly name it in the remarks on sentence did not establish error. The sentence itself, twelve months imprisonment wholly suspended, was not found to be manifestly excessive given the persistent and serious nature of the harassing conduct.
Rothman J agreed with Grove J's reasons and the proposed orders.
Orders Made
- Leave to appeal refused
Key Takeaways
- Where a suspended sentence has fully expired before an appeal is determined, and no breach occurred during the operative period, any practical remedy has been extinguished and an appellate court will decline to grant leave on that basis alone.
- Delay in prosecuting a sentence appeal is a significant factor against the grant of leave, particularly where the entire operative period of the sentence has elapsed by the time the notice of appeal is finally filed.
- A sentencing judge's failure to explicitly state that a guilty plea was taken into account does not establish error if the conduct of the hearing makes it evident the plea was at the centre of the proceedings.
- Technical non-compliance with an obligation to fix a non-parole period carries no practical consequence where the nature of the sentence means the offender could never be committed to custody under it.
- Refusing an adjournment to allow a later challenge to a guilty plea is appropriate where the substantive appeal is already without merit and the application has not been pursued with timely diligence.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 562AB (intimidation offence, maximum five years imprisonment)
Cases cited: No cases were cited in the judgment.