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7
Court of Criminal Appeal 5 September 2006

WISE v REGINA

[2006] NSWCCA 264

Theft & property
CRIMINAL LAW APPEAL CAPACITY TO APPEAL ERROR OF LAW EXCHANGES DURING SENTENCES RELEVANCE OF SUMMARY DISPOSAL

Citation: Wise v Regina [2006] NSWCCA 264
Court: New South Wales Court of Criminal Appeal
Date: 5 September 2006
Judge(s): Spigelman CJ, Howie J, Rothman J

Background

The applicant pleaded guilty to three offences: two counts of break, enter and steal (committed in 2002 and 2003) and one count of receiving stolen property (committed in 2004). In February 2005, Blackmore DCJ sentenced him to 350 hours of community service for one count, a 15-month suspended sentence for another, and a good behaviour bond for the third. Blackmore DCJ did not fix a non-parole period for the 15-month suspended sentence, citing only that the applicant would be subject to another bond at that time.

The applicant complied with none of the community service order and was arrested for further offences in June 2005. Applications were made to revoke the various sentencing orders. Charteris DCJ subsequently revoked the suspended sentence and bonds, and resentenced the applicant. In doing so, Charteris DCJ also purported to fix a non-parole period on the count that had carried the suspended sentence.

The applicant sought leave to appeal all three sentences imposed by Charteris DCJ, arguing errors of law, procedural deficiencies, and manifest excess. The Court also raised of its own motion questions about the validity of the sentence on Count 1 and the capacity to appeal it.

  • Whether Charteris DCJ had jurisdiction to fix a non-parole period when revoking the suspended sentence (section 12 bond) on Count 1, given that Blackmore DCJ had not originally fixed one
  • Whether Blackmore DCJ's original failure to fix a non-parole period complied with sections 44 and 45 of the Crimes (Sentencing Procedure) Act 1999
  • Whether any exchanges during sentencing constituted appealable error
  • Whether the fact that the offences were dealt with summarily before committal was relevant to the sentences imposed
  • Whether Charteris DCJ displayed apprehended bias by indicating the intended sentence for Count 3 before that count was formally before the court
  • Whether the sentences were manifestly excessive

Decision

The Court found that Blackmore DCJ had erred in failing to fix a non-parole period for the 15-month term imposed on Count 1. Under section 44(1) of the Crimes (Sentencing Procedure) Act 1999, a court imposing a sentence of imprisonment must fix a non-parole period unless the circumstances in section 45 apply. Blackmore DCJ's stated reason for not doing so, namely that the applicant would be subject to another bond, did not satisfy section 45(2) and was not a proper basis for departing from the statutory obligation.

The Court then considered whether Charteris DCJ had jurisdiction to remedy this when revoking the suspended sentence. There is statutory power to resentence upon revocation of a section 9 bond or a community service order, but no equivalent power exists in relation to a section 12 recognisance (suspended sentence). Charteris DCJ therefore lacked jurisdiction to vary the sentence on Count 1 by fixing a non-parole period. The Court of Criminal Appeal itself corrected Blackmore DCJ's original error by quashing that sentence and imposing a fresh sentence with the required non-parole period.

On the remaining grounds, the Court dismissed the appeals. The exchanges during sentencing did not amount to appealable error. The fact that the matters had been dealt with summarily before committal was not a relevant mitigating factor at the level it was pressed. The apprehended bias argument concerning Charteris DCJ's indication about Count 3 failed: it had not been raised below, and, critically, counsel had specifically requested that Count 3 be listed before Charteris DCJ after the indication was given, making it unavailable as a ground of complaint. The Court also found that the sentences imposed by Charteris DCJ were, if anything, lenient, and no manifest excess was established.

Rothman J noted, applying R v Simpson, that even where error is established, the Court must be satisfied it would impose a less severe sentence before interfering. That condition was not met beyond the correction of Blackmore DCJ's error on Count 1.

Orders Made

  • Leave to appeal granted
  • The sentence imposed by Blackmore DCJ on 4 February 2005 in relation to Count 1 (break, enter and steal, 10 March 2003) quashed
  • In lieu, the applicant sentenced on Count 1 to a non-parole period of 9 months commencing 26 October 2005 and expiring 25 July 2006, with a balance of term of 6 months commencing 26 July 2006 and expiring 25 January 2007
  • Otherwise, the appeal dismissed

Key Takeaways

  • Under section 44(1) of the Crimes (Sentencing Procedure) Act 1999, a sentencing court imposing a term of imprisonment must fix a non-parole period; a bare reference to the existence of a concurrent bond does not satisfy section 45(2) as a reason for departing from that obligation.
  • No jurisdiction exists, equivalent to that available when revoking a section 9 bond or community service order, to resentence or vary a sentence when revoking a section 12 suspended sentence. Charteris DCJ therefore could not cure Blackmore DCJ's error in that way.
  • The Court of Criminal Appeal confirmed it has power to correct the original sentencing error directly, quashing Blackmore DCJ's order and substituting a compliant sentence in its place.
  • Where an applicant's counsel has affirmatively requested that a matter be listed before a particular judge, a subsequent complaint of apprehended bias or prejudgment by that judge will not be available on appeal.
  • In dismissing the bulk of the appeal, the Court reaffirmed that established error alone does not warrant interference with a sentence; the appellate court must also form the requisite opinion, per R v Simpson, that a different sentence is warranted and should have been imposed.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 12, 44, 45, 99
- Crimes (Administration of Sentences) Act 1999 (NSW), s 115
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- R v Simpson (2001) 53 NSWLR 704
- R v El Masri [2005] NSWCCA 167
- Barret v DPP [2006] NSWCCA 210
- R v Tolley [2004] NSWCCA 165
- R v Graham [2004] NSWCCA 420
- Pelechowski v Registrar, Court of Appeal (1999) 198 CLR 435
- Calvin v Carr [1980] AC 574
- R v Millar [2005] NSWCCA 202
- R v Pham [2005] NSWCCA 94
- Veen v The Queen (No 2) (1988) 164 CLR 465