Citation: R v GSH [2009] NSWCCA 67
Court: Court of Criminal Appeal, New South Wales
Date: 27 February 2009
Judge(s): Grove J, Buddin J, Price J
Background
The Crown appealed to the Court of Criminal Appeal against a sentence imposed by Coorey DCJ in the District Court at Campbelltown, on the ground that the sentence was manifestly inadequate. The respondent had been convicted on three counts following a jury trial in February 2008 and was sentenced in September 2008.
On the day of the scheduled hearing, the respondent indicated he was contemplating an appeal against his conviction, not merely the sentence. He had sought legal aid funding for that conviction appeal and had lodged a notice of appeal to the Legal Aid Review Committee, with a merit advice already provided in his favour.
The matter before the court on 27 February 2009 was therefore procedural: whether to proceed with the Crown's sentence appeal immediately, or to adjourn so that both the sentence and any conviction appeal could be heard together by the same bench.
Legal Issues
- Whether the hearing of the Crown's sentence appeal should be vacated to allow the respondent's contemplated conviction appeal to be resolved and heard at the same time
- Whether delay caused by an adjournment could later be relied upon by the respondent in opposing the Crown appeal
- Whether it was desirable for the same bench to hear both the sentence and conviction issues together
Decision
Grove J noted that the Crown's concern about further delay was legitimate. The court acknowledged that delay in Crown appeals can carry weight in the exercise of a court's residual discretion to dismiss such an appeal, since time spent in uncertainty can itself be a factor favouring the respondent. To address this concern, the court made clear that any delay flowing from the adjournment granted on this occasion could not later be relied upon by the respondent to support such a submission.
Grove J expressed the view that having a differently constituted bench deal with the conviction question separately from the sentence question was undesirable, if it could practically be avoided and there was no prejudice to either party. On the facts, no such prejudice was identified.
On that basis, Grove J concluded the adjournment application should succeed. Buddin J and Price J agreed. The hearing was vacated and the matter referred for further directions.
Orders Made
- The hearing listed for 27 February 2009 was vacated.
- The matter was directed to be placed in the Registrar's next call-over list for further directions.
Key Takeaways
- The Court of Criminal Appeal confirmed it is generally undesirable for a differently constituted bench to hear a conviction appeal separately from a related Crown sentence appeal, where hearing both together is practicable and causes no prejudice to either party.
- A respondent to a Crown appeal may ordinarily rely on delay as a factor supporting the exercise of residual discretion to dismiss that appeal; however, the court here made clear that delay arising from an adjournment granted at the respondent's request on these terms could not later be used for that purpose.
- Delay caused by late finalisation of legal aid funding arrangements was accepted as a practical explanation, even though the notice to the Legal Aid Review Committee was only signed on the day of hearing.
- Procedural fairness considerations supported allowing the respondent adequate opportunity to pursue a conviction appeal before the court determined the sentence question.
- Under s 5D of the Criminal Appeal Act 1912, the Crown may appeal against a sentence on the ground of manifest inadequacy; this decision did not reach the merits of that ground.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), s 5D (Crown appeal against sentence on ground of manifest inadequacy)
Cases: No cases were cited in the judgment.