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Court of Criminal Appeal 17 May 2017

Mundine v R

[2017] NSWCCA 97

Assault & violence
CRIMINAL LAW APPEAL AGGREGATE SENTENCING SENTENCE

Citation: Mundine v R [2017] NSWCCA 97
Court: NSW Court of Criminal Appeal
Date: 17 May 2017
Judge(s): Basten JA; Adamson J; Campbell J

Background

The applicant was sentenced in the District Court on 27 September 2016 by Judge Colefax SC. He received an aggregate sentence of 4 years and 6 months imprisonment, with a non-parole period of 18 months, in respect of four offences including reckless wounding, assault occasioning actual bodily harm, and contravening an AVO.

On the day of sentencing, the judge directed that the applicant be released immediately on parole, his non-parole period having expired that day. This direction was made despite the aggregate sentence exceeding 3 years, the threshold at which s 50 of the Crimes (Sentencing Procedure) Act 1999 (NSW) operates to require automatic parole. The error arose because, had individual sentences been imposed, none would have exceeded 3 years.

The consequent confusion was substantial. The matter returned to the sentencing judge in December 2016 under s 43 of the Sentencing Procedure Act (which allows reopening of proceedings where a penalty contrary to law has been imposed), but no resentencing occurred. The applicant was eventually granted bail pending his appeal. He later came to be in custody on entirely separate charges, but appeared not to be serving the sentence imposed by Judge Colefax at all.

  • Whether the sentencing judge had power under s 50 of the Sentencing Procedure Act to direct the applicant's release on parole when the aggregate sentence exceeded 3 years
  • Whether s 43 of the Sentencing Procedure Act empowered the court to reopen proceedings and correct the erroneous parole direction
  • Whether the aggregate sentence was manifestly excessive
  • Whether the sentencing judge erred in the accumulation of component sentences and the application of totality principles
  • The correct legal and mathematical operation of s 53A aggregate sentences, including the role and proper description of "indicative" (or "putative") sentences
  • The jurisdictional limit imposed by a certificate under s 166(1) of the Criminal Procedure Act 1986 (NSW) on the sentence that could be imposed for a certificated offence

Decision

The parole direction error. The Court found that the sentencing judge had no power under s 50 to direct the applicant's release on parole when the aggregate sentence exceeded 3 years. Section 50 is engaged only where the sentence being considered does not exceed 3 years. An aggregate sentence of 4 years and 6 months fell outside that provision. The direction was therefore made without power.

The s 43 correction question. The Court considered whether s 43 could have been used to correct the erroneous parole direction. Basten JA expressed uncertainty as to whether the direction fell within the defined categories of "imposing a penalty" for s 43 purposes, noting the definition, while inclusive, did not clearly extend to a parole direction. Campbell J took a different view, concluding that s 43 did empower the sentencing judge to revoke the parole order, on the basis that making a parole order under s 50(1) forms part of imposing a sentence of imprisonment. Importantly, the Court emphasised that when reopening proceedings under s 43, the judge must actually make and enter an order: leaving the matter part-heard without a formal order was itself an error.

Aggregate sentences and "indicative" sentences. The Court examined how s 53A operates. The indications a court gives of what individual sentences "would have been" under an aggregate regime are not actual sentences imposed on the offender. Basten JA suggested calling them "putative sentences" rather than "indicative sentences" to reduce confusion. The Court also confirmed that the restrictions on commencement dates in s 47 do not apply to aggregate sentences, and that aggregate sentencing allows greater mathematical latitude in adjusting the statutory non-parole period ratio compared with individually accumulated sentences.

Resentencing. The Court of Criminal Appeal found error in the original sentencing and proceeded to resentence the applicant by imposing individual sentences rather than an aggregate. The appellate court confirmed it is not bound by a sentencing judge's decision to impose an aggregate sentence and may impose individual sentences if that is more appropriate in the circumstances. The certificate under s 166(1) of the Criminal Procedure Act operated as a jurisdictional cap on what sentence could be imposed for the relevant certificated offence.

Orders Made

  • Leave to appeal granted
  • Appeal upheld; sentence quashed
  • For the offence of contravening an AVO: sentence of imprisonment of 6 months (fixed term), commencing 28 March 2015, expiring 27 September 2015
  • For the offence of common assault: sentence of imprisonment of 9 months (fixed term), commencing 28 March 2015, expiring 27 December 2015
  • For the offence of assault occasioning actual bodily harm: sentence of 2 years imprisonment, commencing 28 June 2015 and expiring 27 June 2017, with a non-parole period of 1 year and 3 months commencing 28 June 2015
  • For the offence of reckless wounding: sentence of 2 years and 3 months imprisonment, commencing 28 June 2016 and expiring 27 September 2018, with a non-parole period of 3 months commencing 28 June 2016
  • Direction that the applicant be released to parole on 27 September 2016

Key Takeaways

  • Section 50 of the Crimes (Sentencing Procedure) Act 1999, which requires a court to direct release to parole, applies only where the relevant sentence does not exceed 3 years. A direction to release on parole made in connection with an aggregate sentence exceeding 3 years is beyond power.
  • Under s 53A, the indications given by a sentencing court of what individual sentences "would have been" are not actual sentences. The Court of Criminal Appeal suggested the term "putative sentences" better captures their legal status, emphasising that they are not imposed on the offender and do not carry the legal consequences of real sentences.
  • The restrictions on commencement dates in s 47 do not apply to aggregate sentences, and aggregate sentencing provides greater latitude in adjusting the statutory non-parole period ratio than accumulation of individual sentences does.
  • Where s 43 proceedings are reopened to correct a sentencing error, the sentencing judge must make and formally enter a correcting order. Adjourning without making any order leaves the matter unresolved and compounds the original error.
  • On resentencing, the Court of Criminal Appeal is not bound by the sentencing judge's decision to impose an aggregate sentence and may impose individual sentences if the circumstances make that more appropriate.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 22, 23, 43, 44, 47, 48, 50, 53A, 54B, 62
- Criminal Procedure Act 1986 (NSW), ss 165, 166, 167, 168, 268
- Crimes Act 1900 (NSW), ss 35, 59, 61; Sch 1
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 14
- Bail Act 2013 (NSW), s 22
- Criminal Appeal Act 1912 (NSW), ss 5, 6
- Crimes (Appeal and Review) Act 2001 (NSW), s 68A

Cases:
- Cross v R (No 2) [2012] NSWCCA 234
- Gall v R [2015] NSWCCA 69
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
- Parker v Director of Public Prosecutions (1992) 28 NSWLR 282
- Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
- Potts v R [2017] NSWCCA 10
- McCarthy v R (2011) 206 A Crim R 131; [2011] NSWCCA 64
- Musgrove v R (