Citation: Roberts v R [2010] NSWCCA 256
Court: NSW Court of Criminal Appeal
Date: 5 November 2010
Judge(s): Howie AJ, Simpson J, Schmidt J
Background
The applicant had pleaded guilty to two offences in the District Court and was sentenced on both counts. He subsequently appealed to the Court of Criminal Appeal against his conviction on one count and sought leave to appeal against the sentence imposed on the other count.
The Commonwealth Crown conceded that the conviction appeal should succeed on one count and the conviction quashed. A question then arose as to how the remaining sentencing matter should be handled, and whether the Court of Criminal Appeal should deal with it directly or return the entire matter to the District Court.
The applicant argued that the whole matter should be remitted to the District Court, principally on the basis that the original sentencing judge had also sentenced two co-offenders and was therefore best placed to address all relevant sentencing issues, including parity between offenders.
Legal Issues
- Whether the conviction on the second count of the indictment should be quashed, given the Crown's concession that the appeal ought to be allowed.
- Whether the Court of Criminal Appeal had power to amend the indictment to particularise the remaining offence and proceed directly with the sentencing appeal.
- Whether the sentencing matter on the first count should be remitted to the District Court rather than dealt with by the Court of Criminal Appeal.
Decision
The Crown conceded the conviction appeal on the second count and agreed the conviction and sentence on that count should be quashed. The Court accepted that concession and allowed the appeal accordingly.
On the question of how to proceed with the sentencing matter, the Crown initially sought to have the Court amend the indictment and deal with the sentence appeal itself. However, during argument, Crown counsel acknowledged genuine doubt about whether the Court of Criminal Appeal held the power to amend an indictment in these circumstances.
Because of that uncertainty, and accepting the applicant's submission that the original sentencing judge was better positioned to deal with parity and other sentencing considerations, the Court determined that the appropriate course was to remit the first count to the District Court under section 12 of the Criminal Appeal Act 1912. The Court made no attempt to resolve the question of indictment amendment power, proceeding instead on the basis that the doubt itself justified remittal.
Orders Made
- The appeal against conviction on the second count of the indictment was allowed, and the conviction and sentence on that count were quashed.
- The matter in respect of the first count was remitted to the District Court under section 12 of the Criminal Appeal Act 1912.
Key Takeaways
- Where genuine doubt exists about whether the Court of Criminal Appeal has power to amend an indictment, that uncertainty can itself justify remitting the matter to the District Court rather than proceeding at appellate level.
- Parity considerations, specifically that the original sentencing judge had sentenced co-offenders, supported the case for remitting the sentencing matter rather than dealing with it on appeal.
- A Crown concession that a conviction appeal should be allowed does not automatically resolve how any related sentencing matter should be handled; that question requires separate consideration.
- Under section 12 of the Criminal Appeal Act 1912, the Court of Criminal Appeal may remit matters to the District Court, and that power was exercised here in respect of the outstanding sentencing count.
- The decision was delivered ex tempore (on the spot, without a reserved written judgment), reflecting that the procedural questions were resolved by consent and without extended argument.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), s 12
Cases cited: None referenced in the judgment.