Citation: Barrett v Director of Public Prosecutions [2006] NSWCCA 210
Court: NSW Court of Criminal Appeal
Date: 14 July 2006
Judge(s): Hunt AJA; Adams J; Latham J
Background
The appellant pleaded guilty to break, enter and steal in the Local Court in February 2004. The sentencing magistrate imposed twelve months imprisonment, suspended under s 12 of the Crimes (Sentencing Procedure) Act 1999, coupled with a good behaviour bond requiring alcohol counselling and supervision by the Probation and Parole Service. The magistrate did not set a non-parole period as required by s 44(1) of that Act, nor record reasons for not doing so as required by s 45(2), making the original sentence contrary to law.
The appellant later breached his bond by resuming alcohol use and failing to attend a Probation and Parole Service appointment. In August 2005, the magistrate revoked the bond and imposed a sentence consisting of a nine-month non-parole period with a three-month balance. The magistrate did not give the appellant an opportunity to be heard before doing so, and acted under the mistaken belief that a non-parole period could only be set once a suspended sentence was reactivated.
The appellant filed a notice of appeal to the District Court, arguing the August 2005 proceedings were fresh sentencing action, making the appeal timely. The District Court dismissed the appeal for want of jurisdiction, finding the only sentence against which an appeal could lie was the original February 2004 sentence, by which time the appeal was well out of time. The appellant then brought a Stated Case to the Court of Criminal Appeal.
Legal Issues
- Whether the magistrate was exercising the power under s 43 of the Crimes (Sentencing Procedure) Act 1999 to reopen and correct a sentence that was contrary to law when he acted in August 2005, and if so, whether the resulting penalty was appealable under s 11 of the Crimes (Local Courts Appeal and Review) Act 2001.
- Whether the decision to revoke a s 12 bond, and any consequent orders, was itself separately appealable under s 11 of the Crimes (Local Courts Appeal and Review) Act 2001.
Decision
Question 1: Was the magistrate exercising the s 43 correction power?
The Court held by majority that this question did not arise. Although the original sentence was indeed contrary to law and could have been corrected under s 43, the magistrate did not in fact proceed under that section. Apparently unaware of the Court of Criminal Appeal's decision in Regina v Tolley [2004] NSWCCA 165, the magistrate acted under the mistaken belief that a non-parole period simply became available upon revocation of the suspension. Section 43 is also expressed in discretionary terms, requiring the magistrate to consciously exercise a discretion to reopen proceedings. No such exercise occurred here.
Because the magistrate was not operating under s 43, the question of whether a s 43 penalty attracts a right of appeal under s 11 of the Crimes (Local Courts Appeal and Review) Act 2001 did not arise on the facts.
Question 2: Is the revocation decision itself appealable?
The majority answered that this question also did not arise, though one member of the Court (Latham J) answered it directly in the negative. Latham J reasoned that the right of appeal under s 3 of the Crimes (Local Courts Appeal and Review) Act 2001 extends to sentences and orders made "as a consequence of" a conviction. Revocation of a bond does not follow as a result of the original conviction. Rather, it follows from a finding that the offender has failed to comply with bond conditions, and is not causally connected to conviction in the sense required by the statute.
The Court also noted, without deciding the point, that it remained open to the appellant to seek to reopen the original February 2004 sentencing proceedings under s 43 of the Crimes (Sentencing Procedure) Act, which would then generate a fresh right of appeal to the District Court under s 43(4) and (5).
Orders Made
- Time for filing the Stated Case extended to 30 November 2005.
- Question 1 answered: "Does not arise."
- Question 2 answered (by majority): "Does not arise."
Key Takeaways
- A sentencing magistrate must consciously elect to exercise the s 43 discretion to reopen proceedings in order to correct a sentence that is contrary to law; a magistrate who acts without awareness of the error or the corrective power is not exercising that power, regardless of whether the circumstances would have permitted it.
- Under s 44(1) and Regina v Tolley, a non-parole period must be fixed at the time a sentence of imprisonment is first imposed, even where that sentence is suspended under s 12. The obligation does not wait until suspension is lifted.
- A sentence imposed without a required non-parole period, and without recorded reasons for its omission, is contrary to law within the meaning of s 43(1), but the invalidity does not of itself nullify the sentence or the associated warrant of commitment.
- The revocation of a s 12 bond is not an order made "as a consequence of" conviction for the purposes of the Crimes (Local Courts Appeal and Review) Act 2001; it follows from a finding of breach and is causally distinct from the original conviction.
- Where a sentence is reopened and corrected under s 43, s 43(5) provides that any appeal time runs from the date the corrected penalty is imposed, preserving a fresh appeal right at that point.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), particularly ss 12, 43, 44, 45, 98
- Crimes (Local Courts Appeal and Review) Act 2001 (NSW), ss 3, 11, 13
- Criminal Appeal Act 1912 (NSW), ss 2, 5B(2)
Cases:
- Regina v Tolley [2004] NSWCCA 165
- R v Graham [2004] NSWCCA 420; (2004) 62 NSWLR 252
- Erceg v District Court (NSW) (2004) 143 A Crim R 455