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Court of Criminal Appeal 17 May 2019

Robb v R

[2019] NSWCCA 113

Theft & property

Citation: Robb v R [2019] NSWCCA 113
Court: Court of Criminal Appeal (NSW)
Date: 17 May 2019
Judges: Bathurst CJ, Hamill J, N Adams J

Background

The appellant pleaded guilty in the Local Court to one count of robbery and was sentenced in the District Court on 3 August 2018. The District Court imposed a three-year sentence with an 18-month non-parole period, ordered to commence on 21 June 2018, the date the matter first came before the sentencing judge.

The appellant had been serving a separate sentence in a juvenile justice centre for earlier robbery offences when, on 18 June 2017, he committed the present offence while on day release. At that time, a parole order had been made by the Children's Court but had not yet taken effect. The appellant was still serving the non-parole period of the earlier sentence and had not been released to parole.

A significant complication arose when the Children's Court purportedly revoked the appellant's parole by order dated 18 June 2018, with retrospective effect from 31 October 2017. That revocation order was later apparently rescinded, with the Children's Court noting that the young person was not on parole at the time of the offence.

  • Whether the sentencing judge misunderstood the parameters of his discretion in selecting the sentence commencement date
  • Whether the sentencing judge mistakenly treated the appellant as having had his parole validly revoked
  • Whether a period of pre-sentence custody solely attributable to the present offence was improperly excluded from account
  • Whether the Children's Court had power under s 66 of the Children (Detention Centres) Act 1987 (NSW) to revoke the appellant's parole when he had not yet been released to parole
  • Whether the effect of accumulation on the ratio between the non-parole period and the total sentence was properly considered

Decision

The Court found that the Children's Court had no power under s 66 of the Children (Detention Centres) Act 1987 (NSW) to revoke the appellant's parole. That power can only be exercised "at any time after the release of a juvenile offender," and the parties accepted that "release" in this context meant release to parole. Because the appellant had not been released to parole at the relevant time, the purported revocation order was made without jurisdiction.

Bathurst CJ, with whom the other judges agreed, characterised the Children's Court's purported revocation as an administrative act rather than a judicial one. An administrative act made without jurisdiction is ineffective, meaning the revocation had no legal force and the appellant's parole status was unaffected by it.

The consequence was that the sole reason the appellant remained in custody after 26 July 2017 (when the non-parole period of his earlier sentence expired) was that bail had been refused for the robbery offence the subject of the present proceedings. The sentencing judge had proceeded on an erroneous factual basis in assuming that the custody during that period was entirely referable to the earlier sentence. The Court held that the sentence should therefore have commenced on 26 July 2017.

The Court resentenced the appellant accordingly, reducing the effective commencement date by almost a year. The result was that the appellant, who had already served the recalculated non-parole period, was ordered to be released forthwith.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed in the District Court quashed
  • In lieu thereof, the appellant sentenced to imprisonment comprising:
  • Non-parole period of 18 months commencing 26 July 2017 and expiring 25 January 2019
  • Balance of term of 18 months commencing 26 January 2019 and expiring 25 July 2020
  • Appellant released from custody forthwith

Key Takeaways

  • Under s 66 of the Children (Detention Centres) Act 1987 (NSW), the Children's Court may only revoke a juvenile offender's parole "at any time after the release" of that offender. A purported revocation made before the offender has been released to parole is made without jurisdiction and is legally ineffective.
  • A purported exercise of the parole revocation power under the Act is administrative rather than judicial in character. An administrative act made without jurisdiction does not achieve its intended legal effect.
  • Where a sentencing court proceeds on an erroneous factual basis about the cause of an offender's pre-sentence custody, the resulting commencement date for the sentence may constitute appellable error.
  • Pre-sentence custody that is solely referable to bail being refused for the offence being sentenced must be taken into account when fixing the commencement date of the resulting sentence.
  • The Court of Criminal Appeal confirmed that an incorrect commencement date, even where the length of the sentence itself is not in dispute, can constitute a misapplication of sentencing principle warranting appellate intervention.

Legislation and Cases Referenced

Legislation
- Children (Detention Centres) Act 1987 (NSW), s 66
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 47

Cases
- Callaghan v R [2006] NSWCCA 58; 160 A Crim R 145
- Kaderavek v R [2018] NSWCCA 92
- R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 107
- R v Moffitt (1990) 20 NSWLR 114
- White v The Queen [2016] NSWCCA 190; (2016) 261 A Crim R 302