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Court of Criminal Appeal 11 June 2013

Paul Darcey Armstrong v R

[2013] NSWCCA 137

Sexual offencesHomicide
CRIMINAL LAW APPEAL SENTENCE QUASHED

Citation: [2013] NSWCCA 137
Court: NSW Court of Criminal Appeal
Date: 11 June 2013
Judges: Simpson J; Harrison J; Bellew J

Background

The appellant had been serving a 17-year sentence for murder, commencing 4 December 2008, with a non-parole period expiring 3 June 2020. In earlier proceedings decided on 20 May 2013 ([2013] NSWCCA 113), the Court of Criminal Appeal quashed that conviction and ordered a new trial.

Separately, and following the original murder conviction, the appellant had been sentenced on 13 August 2010 by Murrell DCJ in the District Court for two unrelated offences of sexual intercourse without consent. Those sentences had never been appealed. They were structured to commence in 2018 and 2019, on the assumption that the murder sentence would still be running at that time.

Once the murder conviction was quashed, a gap emerged. The appellant was now on remand awaiting a new trial, yet the two remaining sentences were not due to begin for several years. Both parties jointly approached the Court to resolve this anomaly.

  • Whether the Court of Criminal Appeal had power under s 59 of the Crimes (Sentencing Procedure) Act 1999 to vary the commencement dates of the two unrelated sentences following the quashing of the murder conviction.
  • Whether the Court could alter the terms or non-parole periods of those sentences, rather than just their commencement dates.
  • Whether the Court's powers under s 7(1) and (1A) of the Criminal Appeal Act 1912 extended to sentences imposed in separate proceedings.

Decision

The Court confirmed it held power under s 59 of the Crimes (Sentencing Procedure) Act 1999 to vary the commencement dates of sentences imposed in other proceedings, once a sentence in the current appeal had been quashed. That power is expressly available on the application of any party to the proceedings involving the quashed sentence, and the Court may also act on its own initiative.

However, the Court emphasised the clear statutory limit in s 59(5): neither the term of a sentence nor its non-parole period can be altered under this provision. Only the commencement date is amenable to variation. Consistently with this, the Court also noted that its powers under s 7 of the Criminal Appeal Act 1912 to impose a different sentence are confined to sentences arising from the same trial, and do not reach sentences imposed in separate proceedings.

The Court accepted the joint submission that prompt clarification of the appellant's custodial status was warranted. His position as a remand prisoner facing a new trial carries different practical and legal consequences from that of a sentenced prisoner. Backdating the two sexual assault sentences to align with the original murder sentence commencement date resolved the gap without altering the length of either sentence or its non-parole period.

Orders Made

The Court varied the sentences imposed by Murrell DCJ on 13 August 2010 as follows:

  • Sexual intercourse without consent (count 1): fixed term of 2 years and 6 months, commencing 4 December 2008 and expiring 3 June 2011.
  • Sexual intercourse without consent (count 2): 4 years, 10 months and 17 days, commencing 4 December 2009 and expiring 20 October 2014, with a non-parole period of 2 years, 10 months and 17 days expiring 20 October 2012.

Key Takeaways

  • Section 59 of the Crimes (Sentencing Procedure) Act 1999 empowers a court to vary the commencement date of any sentence when another sentence imposed on the same person is quashed or varied, whether on the court's own initiative or on joint application.
  • The power in s 59 is expressly limited: it does not permit any alteration to the term of a sentence or its non-parole period, only to when the sentence begins.
  • The Court of Criminal Appeal's sentencing powers under s 7 of the Criminal Appeal Act 1912 are confined to sentences arising from the trial under appeal; they do not extend to sentences imposed in unrelated proceedings.
  • A quashed conviction can create a practical gap between a prisoner's custodial status and the scheduled commencement of other sentences, and s 59 exists as a mechanism to address that anomaly.
  • In dismissing any need to speculate about broader consequences, the Court of Criminal Appeal treated the appellant's changed status as a remand prisoner, rather than a sentenced prisoner, as sufficient justification for making the adjustment promptly.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 59
- Criminal Appeal Act 1912 (NSW), s 7(1) and (1A)
- Criminal Appeal Rules (NSW)

Cases:
- Paul Darcey Armstrong v R [2013] NSWCCA 113 (the earlier decision quashing the murder conviction)