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Court of Criminal Appeal 24 October 2018

R v White

[2018] NSWCCA 238

Assault & violence
SENTENCING SENTENCING PROCEDURE PROCEDURAL FAIRNESS

Citation: R v White [2018] NSWCCA 238
Court: Court of Criminal Appeal, New South Wales
Date: 24 October 2018
Judge(s): Bathurst CJ at [1]; Schmidt J at [14]; Hamill J at [15]

Background

The respondent pleaded guilty in March 2016 to wounding a person with intent to cause grievous bodily harm. Following a prolonged series of delays, including an unsuccessful application by the respondent to withdraw his guilty plea, the matter was eventually listed for sentencing in the District Court in late 2017.

On 23 November 2017, when the matter was listed for sentencing, the Crown's carriage solicitor was not in court. The sentencing judge, having learned that an ordered intensive corrections order assessment had not been prepared, raised the possibility of suspending a term of imprisonment. On 14 December 2017, the sentencing judge imposed a two-year term of imprisonment and suspended it under s 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

Both parties later agreed that neither had been given an opportunity to make submissions on the appropriateness of that sentence, and that the key report relied upon by the sentencing judge had not been formally placed before the court during the sentencing proceedings.

  • Whether the Crown had been denied procedural fairness during the sentencing proceedings by not being heard on the appropriateness of the sentence imposed.
  • Whether the original ground of appeal (manifest inadequacy) should be supplemented by an additional ground raising the procedural fairness issue.
  • What orders the Court of Criminal Appeal should make in response to the established denial of procedural fairness.

Decision

During the appeal hearing, the Court of Criminal Appeal identified that the central issue was not simply manifest inadequacy but rather a failure of procedural fairness. The Crown was granted leave to amend its notice of appeal to include a ground expressly directed at the sentencing judge's failure to hear from the Crown before imposing the suspended sentence.

Bathurst CJ found, on the agreed facts, that the Crown had been denied procedural fairness in the sentencing proceedings. His Honour was careful to note that the denial was inadvertent, not deliberate. Nevertheless, the error was sufficient to vitiate the sentencing process.

All three judges agreed that it would be inappropriate for the Court of Criminal Appeal to re-sentence the respondent in these circumstances. The appropriate remedy was to remit the matter to the District Court for determination in accordance with law, without the Court of Criminal Appeal making any comment on the appropriateness of the original sentence.

Orders Made

  • Leave granted to the Crown to amend the notice of appeal by adding the additional ground concerning the denial of procedural fairness.
  • Appeal allowed.
  • Sentencing proceedings remitted to the District Court for determination in accordance with law.

Key Takeaways

  • A sentencing court's failure to hear from the Crown before imposing sentence constitutes a denial of procedural fairness, even where that failure is inadvertent.
  • The Court of Criminal Appeal confirmed that procedural fairness operates as a ground of appeal in sentencing proceedings, distinct from a ground of manifest inadequacy.
  • Where a denial of procedural fairness has occurred at sentencing, the appropriate remedy may be remittal to the original court rather than re-sentencing by the appellate court.
  • An appellant may be granted leave to amend a notice of appeal during a hearing where the true legal issue becomes apparent in the course of argument.
  • Agreed facts between the parties, including acknowledgment that neither side made submissions and that key material was not formally before the court, were sufficient to establish the procedural fairness error.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 12 (suspended sentences, as in force at the relevant time)
- Criminal Appeal Act 1912 (NSW), s 5D(1) (Crown appeal against sentence)

Cases cited: None cited in the judgment.