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Court of Criminal Appeal 19 December 2008

Makarov v R (No. 4)

[2008] NSWCCA 341

Sexual offences
CRIMINAL LAW CERTAIN SENTENCES QUASHED

Citation: Makarov v R (No. 4) [2008] NSWCCA 341
Court: New South Wales Court of Criminal Appeal
Date: 19 December 2008
Judges: Bell JA, Johnson J, McCallum J

Background

This decision was the fourth in a series arising from appeals by an appellant who had been convicted and sentenced across three separate trials involving offences against different complainants (referred to as D, A, and B and C respectively). On 9 December 2008, the Court disposed of all three conviction appeals: the appeals relating to the first two trials (involving D and A) were dismissed, while the appeal relating to the third trial (involving B and C) was allowed, with those convictions and sentences quashed and new trials ordered.

The quashing of the sentences from the third trial created a gap in the appellant's sentence structure. The sentences imposed for the offences against A had originally been set to commence on 10 December 2012, a date that was calibrated against the now-quashed sentences for the offences against B and C. With those sentences removed, the commencement dates of the remaining sentences required adjustment.

The application before the Court was brought under section 59 of the Crimes (Sentencing Procedure) Act 1999, which allows a court to vary the commencement date of any sentence when another sentence imposed on the same person has been quashed or varied.

  • Whether the Court of Criminal Appeal had power under section 59 of the Crimes (Sentencing Procedure) Act 1999 to vary the commencement dates of the sentences for the offences against A, following the quashing of the sentences for the offences against B and C.
  • What the appropriate new commencement date should be for those remaining sentences, having regard to totality, concurrence, accumulation, and the time the appellant had spent in custody for various reasons.

Decision

The Court confirmed that section 59 confers a narrow and essentially mechanical function. The provision does not permit a court to alter the term of a sentence or its non-parole period; it is confined to varying commencement dates as a consequence of another sentence being quashed or varied. As Johnson J noted by reference to the Court's earlier decision in R v Pham, the section exists to serve pragmatic purposes and to avoid the need for a separate appeal merely because a date adjustment is required.

Although the section's operation is described as mechanical, the Court acknowledged that factual questions can arise. In this case, the parties made submissions on totality, concurrence, accumulation, and the reasons the appellant had been in custody at different points in time. The sentences originally imposed for the offences against A had been structured to commence two years after the expiry of sentences for the quashed offences, and the quashing of those latter sentences required that structure to be reassessed.

Having considered the submissions, the Court was satisfied that the sentences for the offences against A should be brought forward by two years, commencing on 10 December 2010 rather than 10 December 2012. This adjustment reflected the removal of the quashed sentences from the structure, while still ensuring that the overall effective sentence remained proportionate to the seriousness of the remaining offending.

Orders Made

  • The commencement dates of the sentences imposed on 11 November 2005 for offences against A were varied to commence on 10 December 2010 (brought forward from 10 December 2012), with expiry dates adjusted accordingly for each count:
  • Counts 1, 2 and 4: three years' imprisonment, expiring 9 December 2013
  • Counts 5 and 6: four years' imprisonment, expiring 9 December 2014
  • Counts 3 and 7: non-parole period of four years expiring 9 December 2014, balance of term of two years expiring 9 December 2016
  • Count 8: non-parole period of four years expiring 9 December 2014, balance of term of four years expiring 9 December 2018
  • The earliest date upon which the appellant would be eligible for release on parole was recorded as 9 December 2014.

Key Takeaways

  • Section 59 of the Crimes (Sentencing Procedure) Act 1999 provides a purposefully limited power: a court may vary the commencement date of a sentence when another sentence imposed on the same person is quashed or varied, but it cannot alter the term of the sentence or any non-parole period.
  • The Court of Criminal Appeal confirmed, consistent with R v Pham, that the word "court" in section 59(1) refers to the Court of Criminal Appeal as an institution, meaning the bench constituted for the purpose of varying commencement dates need not be identical to the bench that decided the appeal.
  • Although section 59 is described as a mechanical exercise, the court is not precluded from hearing submissions on how the adjustment should be calculated, including matters going to totality, concurrence, and the reasons for custody at particular times.
  • Under section 59(4), no appeal lies merely because a commencement date has been varied under the section, reinforcing its administrative and consequential character.
  • Where a partial appeal success removes sentences that previously anchored the commencement of other sentences, section 59 provides the mechanism to realign the remaining sentence structure without the need for a full sentencing appeal.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 59
- Crimes Legislation Amendment Act 2003 (NSW)
- Criminal Appeal Act 1912 (NSW), ss 5(1)(c), 6(3)

Cases
- Makarov v R (No. 1) [2008] NSWCCA 291
- Makarov v R (No. 2) [2008] NSWCCA 292
- Makarov v R (No. 3) [2008] NSWCCA 293
- R v O'Donohue (No. 2) [2001] NSWCCA 495
- R v Pham [2004] NSWCCA 263