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Court of Criminal Appeal 4 December 2007

Rickard v R

[2007] NSWCCA 332

Homicide
CRIMINAL LAW SENTENCING SUSPENDED SENTENCE BOND REVOKED NON PAROLE PERIOD PREVIOUSLY SET

Citation: Rickard v R [2007] NSWCCA 332
Court: Court of Criminal Appeal, New South Wales
Date: 4 December 2007
Judge(s): Handley AJA; Hoeben J; Smart AJ

Background

The applicant pleaded guilty to the manslaughter of her 13-month-old daughter, who drowned in a bath after being left unattended. In February 2006, the sentencing judge in the District Court imposed a two-year term of imprisonment with a 12-month non-parole period, but suspended the sentence under s 12 of the Crimes (Sentencing Procedure) Act 1999 on the condition that the applicant enter a two-year good behaviour bond.

The bond was revoked in early 2007, after legislative amendments to the Act took effect in November 2006. When the applicant's solicitor asked the sentencing judge to reconsider the non-parole period, the judge declined, concluding he had no power to do so. The judge then ordered the original sentence to take effect, with release on parole set for April 2008.

The applicant sought leave to appeal both the original sentence and the subsequent order following revocation, arguing the non-parole period was manifestly excessive and that the judge had erred in concluding he lacked power to revisit it.

  • Whether the original sentence had been formally "perfected" (that is, validly entered as a court record), and if not, whether the judge retained an inherent power to reopen it.
  • Whether, even if that power existed, there were grounds to exercise it in this case.
  • Whether the 2006 amendments to the Crimes (Sentencing Procedure) Act 1999 and their transitional provisions conferred power on the court, at the time of revoking the bond, to reset the non-parole period that had originally been set when the sentence was suspended.

Decision

On the question of perfection, the Court found that the original sentence had not been formally entered on the relevant document (the court attendance notice) as required by the District Court Rules. Accordingly, the sentence had not been perfected, and the sentencing judge did in fact retain an inherent discretionary power to reopen the proceedings. The judge had inadvertently erred in thinking otherwise.

However, the Court held that a mere power to reopen does not mean it should be exercised. Citing both R v Lapa (No 2) and the High Court's subsequent decision in Elliott v The Queen [2007] HCA 51, the Court confirmed that the power is exercised sparingly, with strong weight given to the finality of proceedings. The dominant consideration is whether a failure to reopen would cause a miscarriage of justice. No sufficient ground for reconsideration was established here.

On the legislative question, the Court examined the transitional provisions inserted by the Crimes and Courts Legislation Amendment Act 2006, particularly clause 56 of Schedule 2. The Court concluded that while sub-clause (2) extended the amended s 99 to revocation proceedings commenced before the amendments, sub-clause (3) expressly removed any duty to set a new non-parole period where one had already been set at the time of suspension. Critically, the transitional provisions did not go further to confer any positive power to reset that period.

The Court also affirmed a broader principle: amending legislation will not disturb sentences that have already become res judicata (that is, finally determined and no longer open to challenge) unless the legislation provides for that result in clear and unambiguous terms. The appeal was dismissed.

Orders Made

  • Leave to appeal granted from the decisions of 23 February 2006 and 2 April 2007.
  • Appeal dismissed.

Key Takeaways

  • A suspended sentence that has not been formally entered on the court record under the applicable rules has not been "perfected," meaning the sentencing court retains an inherent discretion to reopen the proceedings.
  • The discretion to reopen an unperfected sentence is exercised sparingly. Following Elliott v The Queen [2007] HCA 51, reopening is appropriate only where there has been a misapprehension of fact or law not caused by the neglect or default of the party seeking reconsideration.
  • Under the transitional provisions of the Crimes and Courts Legislation Amendment Act 2006, the court revoking a good behaviour bond was not required to set a fresh non-parole period where one had already been set at the time the sentence was suspended, and no power to reset it was conferred.
  • Amending legislation does not affect sentences that have already become res judicata (finally determined criminal proceedings) in the absence of clear statutory language to that effect.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the sentencing judge's conclusion about the transitional provisions was ultimately correct, even though the judge had been wrong to conclude he lacked all power to reopen the sentence.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 12, 43, 98, 99
- Crimes and Courts Legislation Amendment Act 2006 (No 107) (NSW), including Schedule 2, cl 56
- Criminal Procedure Act 1986 (NSW), s 15(2)
- District Court Act 1973 (NSW)
- District Court Rules 1973 (NSW), Part 53 r 12

Cases:
- Elliott v The Queen [2007] HCA 51
- R v Elliott [2006] NSWCCA 305
- R v Lapa (No 2) (1995) 80 ACR 398
- Maxwell v The Queen (1996) 184 CLR 501
- Smith v NSW Bar Association (1992) 176 CLR 256
- Lemm v Mitchell [1912] AC 400
- FEDFA v Broken Hill Pty Co Ltd (1913) 16 CLR 245
- Day v Kelland [1900] 2 Ch 745
- Re A Debtor (1936) Ch 237
- Wise v R [2006] NSWCCA 264
- R v Munday [1981] 2 NSWLR 177
- R v Ehrenburg (NSW CCA, 14 December 1990)