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Court of Criminal Appeal 8 June 2017

Shi v R

[2017] NSWCCA 126

Fraud & dishonesty
CRIMINAL LAW APPEAL

Citation: Shi v R [2017] NSWCCA 126
Court: Court of Criminal Appeal, NSW
Date: 8 June 2017
Judge(s): Hoeben CJ at CL; Harrison J and Bellew J

Background

The applicant was convicted after a seven-day trial in the District Court of offences under the Customs Act 1901 (Cth) and the Criminal Code 1995 (Cth). During his counsel's closing address, the applicant absconded. The trial continued in his absence, and a jury returned a conviction.

Sentencing proceeded on 19 June 2015, again without the applicant present. The sentencing judge imposed a term of four years' imprisonment with a non-parole period of two years and six months, but did not specify a commencement date. Instead, his Honour directed that the sentence would commence on a date to be backdated from the time of the applicant's eventual apprehension or surrender.

The applicant was arrested on 1 December 2015 and returned to court on 11 December 2015. His counsel sought an adjournment, suggesting the sentencing process may not have been complete. The sentencing judge refused that request on the basis that sentencing was already finalised, and then set the commencement and concluding dates of the sentence.

  • Whether the sentencing judge had power under s 47(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) to defer the commencement date of a sentence to an unspecified future date
  • Whether the sentencing judge erred in refusing to adjourn the proceedings on the applicant's return to court
  • Whether the Court of Criminal Appeal should re-sentence the applicant itself or remit the matter to the District Court

Decision

The Crown conceded that the sentencing judge erred in a significant respect. Section 16E of the Crimes Act 1914 (Cth) incorporates NSW law on the commencement of sentences when sentencing for Commonwealth offences, which meant s 47 of the Crimes (Sentencing Procedure) Act 1999 (NSW) applied. Under s 47(2), a court may only defer a sentence's commencement date where the sentence is to be served consecutively, or partly concurrently and partly consecutively, with another sentence. No such circumstance existed here, as the applicant was not serving any other sentence at the time.

The Court held that the sentence could therefore only have commenced on 19 June 2015, the date it was imposed, or on some earlier date. The deferred and unspecified commencement date adopted by the sentencing judge had no statutory foundation.

Additionally, the Court found that even if the above analysis were wrong, the refusal of the adjournment was itself an error. The sentencing judge declined to adjourn on the mistaken basis that the sentencing function was complete and the proceedings could not be reopened. That reasoning was erroneous and amounted to a miscarriage of the sentencing discretion.

On the question of remedy, the Court acknowledged the tension, identified in Betts v The Queen [2016] HCA 25, between re-sentencing under s 6(3) of the Criminal Appeal Act 1912 and remitting the matter under s 12(2) of that Act. Because the sentencing hearing had been tainted by procedural irregularity, and because neither the Court nor the applicant had the benefit of full evidentiary material and submissions that might be relevant on sentence, the Court determined that remittal to the District Court was the preferable course.

Orders Made

• The proceedings are remitted to the District Court of New South Wales for sentence according to law.

Key Takeaways

  • Under s 47(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), a court may only defer the commencement of a sentence to a future date where that sentence is to be served consecutively, or partly consecutively, with another sentence already being served. No other basis for deferral exists.
  • Section 16E of the Crimes Act 1914 (Cth) applies NSW sentencing law, including s 47 of the Crimes (Sentencing Procedure) Act 1999, to the commencement of sentences imposed for Commonwealth offences in NSW.
  • A sentencing court that sentences an offender in absentia does not necessarily exhaust its sentencing function such that it is powerless to adjourn proceedings when the offender is later returned before it.
  • Where sentencing proceedings have miscarried due to procedural irregularity, and the appellate court lacks the full evidentiary record and submissions relevant to sentence, remittal to the court below is generally preferable to the Court of Criminal Appeal re-sentencing the offender itself.
  • The tension between the power to re-sentence under s 6(3) of the Criminal Appeal Act 1912 and the power to remit under s 12(2) of that Act was noted as a consideration, consistent with the High Court's observations in Betts v The Queen [2016] HCA 25.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth), s 16E
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 47
- Criminal Appeal Act 1912 (NSW), ss 6(3), 12(2)
- Criminal Code 1995 (Cth), s 11.2A(1)
- Customs Act 1901 (Cth), s 23BAA(4)

Cases
- Betts v The Queen (2016) 90 ALJR 758; [2016] HCA 25
- Burbridge v R [2016] NSWCCA 128
- Payda v R [2013] NSWCCA 109