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75
Court of Criminal Appeal 10 August 2007

BAXTER v REGINA

[2007] NSWCCA 237

Also reported as (2007) 173 A Crim R 284
Public order & justice offences
CRIMINAL PRACTICE & PROCEDURE MISSTATEMENT OF MAXIMUM PENALTY WHETHER MATERIAL ERROR WHETHER FRESH EVIDENCE THEN ADMISSIBLE NO INCONSISTENCY EVIDENCE ADMISSIBLE

Citation: Baxter v Regina [2007] NSWCCA 237
Court: Court of Criminal Appeal, New South Wales
Date: 10 August 2007
Judge(s): Spigelman CJ; Kirby J; Latham J

Background

The applicant had been sentenced in the District Court by Norrish DCJ on 28 April 2006 following convictions on two counts, with additional charges dealt with on Form 1. In the course of sentencing, the judge misstated the maximum penalty applicable to one of the counts.

The applicant sought leave to appeal against sentence. A central procedural question arose as to whether, once an error in the sentencing process is identified, this Court may receive fresh evidence, including evidence of post-sentence conduct, when forming the opinion required by s 6(3) of the Criminal Appeal Act 1912 before re-sentencing.

The Crown argued that such fresh evidence was not admissible for that purpose, relying in part on the text of s 6(3) and on passages from earlier decisions of the Court of Criminal Appeal. The applicant contended otherwise, relying primarily on the Court's earlier decision in Douar v R (2005) 159 A Crim R 154.

  • Whether the misstatement of the applicable maximum penalty constituted a material error in the sentencing process.
  • Whether fresh evidence of post-sentence conduct is admissible when the Court of Criminal Appeal forms its opinion under s 6(3) of the Criminal Appeal Act 1912 as to whether some other sentence is warranted in law.
  • Whether there was any relevant inconsistency between the reasoning in Douar v R and earlier statements in R v Simpson and R v Johnson concerning the operation of s 6(3).
  • Whether re-sentencing on Count 1 was warranted in the circumstances.

Decision

The Court confirmed that Douar v R correctly stated the applicable principles and found no relevant inconsistency between that decision and the relevant passages in R v Simpson. Spigelman CJ observed that the passage from Simpson at [79] upon which the Crown relied addressed only the need for the Court to form a positive statutory opinion; it said nothing to confine the evidence the Court may receive in forming that opinion. The dominant verbs in s 6(3) are in the present tense, and the past tense phrase "should have been passed" is subsidiary, reflecting only the retrospective operative effect of an appellate intervention.

On the admissibility question, the Court held that evidence of post-sentence conduct is admissible when the Court is exercising its function under s 6(3). Johnson J's reasoning in Douar, resolving the textual ambiguity in favour of the established practice of receiving such evidence, was approved and applied.

Regarding the materiality of the error, Latham J confirmed that not every error in the sentencing process will enliven s 6(3). An error must be material in the sense that it could have affected the exercise of the sentencing discretion. A misstatement of maximum penalty affecting only a single minor count within a larger group of more serious offences carrying higher maxima may not meet that threshold. In this case, however, the error was found to be material.

The Court allowed the appeal on Count 1, quashed the sentence imposed below for that count, and re-sentenced the applicant taking into account the Form 1 charges. The sentence on Count 2 was confirmed.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence imposed by Norrish DCJ on Count 1 (including accompanying Form 1) quashed; in lieu thereof, a non-parole period of 3 years imprisonment commencing 27 February 2007 and expiring 26 February 2010 imposed, with a balance of term of 3 years expiring 26 February 2013.
  • Sentence on Count 2 (including accompanying Form 1) confirmed.

Key Takeaways

  • The Court of Criminal Appeal confirmed, consistently with Douar v R, that fresh evidence of post-sentence conduct is admissible when the Court forms its opinion under s 6(3) of the Criminal Appeal Act 1912 as to whether some other sentence is warranted in law.
  • No inconsistency was found between the reasoning in Douar v R and the passage from R v Simpson on which the Crown relied; that passage addressed the need for a positive statutory opinion, not the range of evidence available when forming it.
  • Under s 6(3), the dominant operative verbs are in the present tense; the phrase "should have been passed" is subsidiary and merely reflects the retrospective effect of appellate intervention when re-sentencing.
  • Materiality of error is a threshold requirement: only where an error in the sentencing process could have affected the outcome is s 6(3) enlivened and fresh evidence falls to be considered.
  • A misstatement of maximum penalty affecting a single, less serious count within a larger sentencing exercise involving counts carrying significantly higher maximum penalties is unlikely to meet the materiality threshold, though each case turns on its own facts.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5(1), s 6(3)
- Drug Misuse and Trafficking Act 1985 (NSW)
- Firearms Act 1996 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Douar v R [2005] NSWCCA 455; (2005) 159 A Crim R 154
- R v Simpson (2001) 53 NSWLR 704
- R v Johnson [2005] NSWCCA 186
- Dinsdale v The Queen (2000) 202 CLR 321
- House v The King (1936) 55 CLR 499
- R v Way (2004) 60 NSWLR 168
- Veen (No 2) v The Queen (1988) 164 CLR 465
- Markarian v The Queen [2005] HCA 25; (2005) 79 ALJR 1048
- Phillip Edward Smith v R [2007] NSWCCA 138
- R v Hemsley [2004] NSWCCA 228
- R v Lauritsen (2000) 114 A Crim R 333
- R v Israil [2002] NSWCCA 255
- R v Bottin [2005] NSWCCA 254
- R v Jeremy Paul Price [2005] NSWCCA 285
- R v Tadrosse (2005) 65 NSWLR 740; [2005] NSWCCA 145
- R v Burke [2002] NSWCCA 353