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Local Court 16 June 2009

R V Jamieson

[2009] NSWLC 11

Traffic & driving
CRIMINAL LAW SENTENCING SUSPENDED SENTENCE SENTENCE CORRECTION

Citation: R v Jamieson [2009] NSWLC 11
Court: Local Court of New South Wales (Downing Centre)
Date: 16 June 2009
Judge(s): Magistrate David Heilpern

Background

The defendant, a man with a lengthy criminal record dating back to 1976 and numerous prior drink-driving and traffic offences, appeared before the Local Court in connection with fresh offences of driving while disqualified and low-range PCA. His appearance also triggered a breach inquiry, as the fresh offences were alleged to have violated an existing suspended sentence imposed under section 12 of the Crimes (Sentencing Procedure) Act 1999.

The suspended sentence in question had been imposed on 22 September 2008 for mid-range prescribed concentration of alcohol (PCA). That sentence was for a term of 12 months. The defendant's solicitor raised a preliminary objection: the 12-month term exceeded the maximum penalty lawfully available for the offence as charged.

Before the court could proceed to sentence the defendant for the fresh offences, Magistrate Heilpern was required to resolve whether the original sentence was legally flawed, who had jurisdiction to correct it, and what flow-on consequences any correction would have.

  • Whether the 12-month suspended sentence imposed for mid-range PCA exceeded the maximum penalty permitted by law
  • Whether this Local Court (rather than the original sentencing court) had jurisdiction to correct the error under section 43 of the Crimes (Sentencing Procedure) Act 1999
  • What effect a corrected sentence would have, including its commencement date
  • What appeal rights the defendant retained following any correction

Decision

On the sentencing error: Magistrate Heilpern found that the maximum term of imprisonment for the mid-range PCA offence was nine months, not 12 months. Under the Road Transport (Safety and Traffic Management) Act 1999, a 12-month maximum applies only to a "second or subsequent offence," which requires a prior conviction for either the same offence or a "major offence" within the preceding five years. Driving unlicensed, the defendant's relevant prior offence, does not constitute a "major offence" under the Road Transport (General) Act 2005. The sentencing magistrate on the earlier occasion appears to have treated it as one, which was the likely source of the error.

On jurisdiction to correct: The court confirmed that section 43 of the Crimes (Sentencing Procedure) Act 1999 confers jurisdiction on any Local Court magistrate to reopen proceedings and correct a sentence that is contrary to law. It is not confined to the original sentencing magistrate. In this case, the sentencing magistrate was on a regional circuit and unavailable in Sydney, making it practical for the present court to deal with the matter.

On commencement of a corrected sentence: Magistrate Heilpern held that a corrected sentence could be backdated to the date of the original sentencing error, citing Court of Criminal Appeal authority dealing with custodial sentences. The court also confirmed, drawing on Erceg, that when re-sentencing, the court may and must take into account circumstances that have arisen since the original sentence was imposed.

On appeal rights: The court confirmed that section 43(4) and (5) preserve the defendant's right of appeal following correction. The appeal period runs from the date the corrected penalty is imposed. The court noted that if the defendant exercised that right, it may be necessary to adjourn the fresh matters pending the outcome.

Orders Made

No orders were made in this decision.

Key Takeaways

  • A suspended sentence that exceeds the statutory maximum for the offence is a sentencing error correctable under section 43 of the Crimes (Sentencing Procedure) Act 1999, regardless of which magistrate originally imposed it.
  • Whether a mid-range PCA offence carries a maximum of nine months or 12 months turns on whether the offender was convicted of a "major offence" (as defined in the Road Transport (General) Act 2005) within the five years preceding conviction. Driving unlicensed does not satisfy that definition.
  • Under section 43, any Local Court may reopen proceedings to correct an unlawful sentence; the jurisdiction is not restricted to the original sentencing court, though referral back may be appropriate where the facts at sentence are contested or unclear.
  • A corrected sentence may be backdated to the original sentencing date, consistent with Court of Criminal Appeal practice in relation to custodial sentences.
  • When re-sentencing under section 43, the court applies the law as it stood at the time of the original sentence but is not limited to circumstances existing at that date. It must consider what has occurred in the intervening period.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 12, 43
- Road Transport (Safety and Traffic Management) Act 1999 (NSW), s 9 and Dictionary
- Road Transport (General) Act 2005 (NSW), s 188

Cases
- R v Cooke; Cooke v R [2007] NSWCCA 184
- Erceg v the District Court of New South Wales & Virgin v the District Court of New South Wales & Anor [2003] NSWCA 379
- Kwok v R (No 2) [2007] NSWCCA 314 (cited in reasons, not in metadata)