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Court of Criminal Appeal 13 December 2013

Harris v Harrison

[2013] NSWCCA 314

Other
CRIMINAL LAW PLEA OF GUILTY SENTENCE PLEA OF GUILTY SENTENCE

Citation: Harris v Harrison [2013] NSWCCA 314
Court: Court of Criminal Appeal, New South Wales
Date: 13 December 2013
Judges: Beazley P (with McCallum J and Schmidt J agreeing)

Background

The appellant was convicted in the Land and Environment Court of intentionally or recklessly interfering with or disconnecting water metering equipment at a large farming property near Hay, New South Wales, contrary to s 91K(1) of the Water Management Act 2000. He entered a plea of guilty and was sentenced to a fine of $28,000. The sentencing judge, Pepper J, also made a publication order under s 353G(1)(a) of the Act requiring the appellant to place advertisements in two rural newspapers within 28 days, stating that he had been found guilty and fined.

The appellant filed a notice of appeal against sentence and sought, by interlocutory application, a stay of the publication order pending the appeal. His application for a stay before Pepper J had already been refused. The central concern was that, if the advertisements were published before the appeal was heard, any successful appeal against the publication order would become meaningless.

The prosecutor opposed the stay on two grounds that shifted during argument: first, that the publication order was not amenable to appeal and therefore no stay jurisdiction existed; and second, that the appellant had effectively consented to the publication order by negotiating its terms. Both arguments were ultimately not pressed to a final determination.

  • What is the appropriate legal test for granting a stay of orders made by the Land and Environment Court sitting in its criminal jurisdiction?
  • Whether the publication order formed part of the "sentence" and was therefore amenable to appeal under the applicable statutory regime.
  • Whether, applying the relevant test, a stay should be granted in the circumstances of this case.

Decision

Beazley P identified the applicable test as that stated in Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685, the established Court of Appeal authority governing the grant of stays pending appeal. No separate or different test applies simply because the order originates from the Land and Environment Court exercising criminal jurisdiction.

On the jurisdictional question, the Court declined to make a final determination, as the prosecutor expressly chose not to press the point for fear of creating an issue estoppel before the substantive appeal. Beazley P nonetheless observed that the argument that the publication order fell outside the definition of "sentence" was not inarguably correct. The Act defines "sentence" to include any order made by the court of trial on convicting a person of an offence, and the power to make a publication order arose only upon conviction.

On whether a stay should be granted, the Court held that the appellant had demonstrated an arguable case on appeal. Crucially, if the appeal succeeded and the publication order was set aside or varied, a stay was necessary to preserve the utility of that aspect of the appeal. Once the advertisements were published, no appellate remedy could undo the reputational and practical effect of that publication.

The Court also rejected the prosecutor's suggestion that publication could proceed with a rider noting the matter was under appeal. Beazley P found this alternative unsatisfactory: it raised unresolved questions about compliance with the original order and, more fundamentally, the appellant had established the conditions for a full stay.

Orders Made

  • Order 6 made by Pepper J on 17 July 2013 (the publication order) stayed pending the determination of the appeal.
  • The respondent ordered to pay the applicant's costs of the application.

Key Takeaways

  • The Alexander v Cambridge Credit Corp Ltd test governs applications for a stay of orders made by the Land and Environment Court in its criminal jurisdiction; no distinct or modified test applies in that context.
  • A publication order made under s 353G(1)(a) of the Water Management Act 2000 is arguably a component of the "sentence" for appeal purposes, given that the court's power to make such an order arises only upon conviction; the Court of Criminal Appeal left this question open for full argument on the substantive appeal.
  • Where an appellant demonstrates an arguable case and shows that the appeal would be rendered nugatory without a stay, the stay should be granted in full rather than replaced with a qualified or partial order.
  • Negotiating the terms of a publication order after a sentencing judge announces an intention to make one does not amount to consent to the making of the order itself.
  • Costs followed the event on an interlocutory stay application in the Court of Criminal Appeal, with the successful applicant awarded costs against the respondent prosecutor.

Legislation and Cases Referenced

Legislation
- Water Management Act 2000 (NSW), ss 91K(1), 353A, 353G, 363B
- Criminal Appeal Act 1912 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Land and Environment Court Act 1979 (NSW)
- Interpretation Act 1987 (NSW)
- Judiciary Act 1903 (Cth)

Cases
- Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685
- Harrison v Baring (No 2) [2012] NSWLEC 145
- Harrison v Harris (No 3) [2013] NSWLEC 140
- O'Brien v Australian Securities and Investments Commission [2009] NSWCA 312; 74 ACSR 324
- Porteous & Others v Inspector McMartin [2005] NSWIRComm 122
- Stampalia v The Stewards of The Western Australian Trotting and Association & Anor [1999] WASC 7
- Trlin v Marac Finance Australia Ltd (Court of Appeal, 4 March 1985, unreported)
- Waller v Todorovic (Court of Appeal, 21 December 1979, unreported)