AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
3
Court of Criminal Appeal 13 September 2019

Purves v R

[2019] NSWCCA 227

Sexual offences
CRIMINAL PROCEDURE ADDITIONAL OFFENCES TAKEN INTO ACCOUNT CRIMES ACT 1914 (CTH), S 16BA PROCEDURAL FAILURE FAILURE TO ASK STATUTORY INQUIRIES REMITTAL TO DISTRICT COURT FOR SENTENCE

Citation: Purves v R [2019] NSWCCA 227
Court: NSW Court of Criminal Appeal
Date: 13 September 2019
Judge(s): Simpson AJA at [1]; Bell P at [8]; Fullerton J at [10]

Background

The applicant pleaded guilty in the Local Court to eight counts under the Criminal Code (Cth), all involving child abuse or the procurement of child abuse material. He was committed to the District Court for sentencing. In addition to the eight counts on the indictment, three further offences were to be taken into account at sentencing under s 16BA of the Crimes Act 1914 (Cth), a federal provision permitting additional offences to be considered when sentencing a convicted person.

On 2 August 2018, the District Court formally recorded convictions on all eight counts and imposed an aggregate sentence of 7 years and 6 months' imprisonment, with a non-parole period of 4 years and 6 months. The three additional offences were taken into account in the sentencing, but without completing the procedure that s 16BA requires.

The applicant sought leave to appeal against sentence. In responding to the application, the Director of Public Prosecutions (Cth) identified the procedural error, which then became the central issue before the Court of Criminal Appeal.

  • Whether the sentencing judge had complied with the statutory procedure required by s 16BA of the Crimes Act 1914 (Cth) before taking the additional offences into account.
  • Whether the Court of Criminal Appeal could itself remedy the procedural failure by undertaking the s 16BA procedure on appeal, relying on ss 19 and 20 of the Crimes Act.
  • Whether the sentence should be set aside and the matter remitted to the District Court for resentencing.

Decision

Section 16BA(1) sets out a specific procedure that must be followed before additional offences can be taken into account on sentencing. The court must be satisfied that a list of additional offences (in the prescribed form, signed by the DPP and the convicted person) has been filed, and that adopting the procedure is appropriate in all the circumstances. Critically, the sentencing judge must then ask the convicted person, in terms, whether they admit guilt of the additional offences and whether they wish those offences to be taken into account. If the person answers both questions affirmatively, the court may proceed. A further consequence of following the procedure is that no further proceedings can be taken in respect of those additional offences (unless the conviction itself is quashed or set aside).

None of this occurred in the District Court. The statutory inquiries were never made, the applicant never gave the required admissions, and the applicant never stated that he wished the additional offences to be taken into account. Despite this, those offences were factored into the sentence. Simpson AJA held that taking the additional offences into account without completing the required statutory steps constituted a fundamental error in the sentencing process.

The Crown argued that the Court of Criminal Appeal could cure the error by conducting the s 16BA procedure itself, pointing to ss 19 and 20 of the Crimes Act. The Court rejected that argument. Section 16BA(1) is explicit: the procedure must be undertaken by "the court before which the person is convicted," which in this case was the District Court of New South Wales. The Court of Criminal Appeal is not that court and cannot step into its place at this stage.

Because the error was fundamental and could not be remedied on appeal, the sentence was set aside and the matter remitted to the District Court for resentencing. Bell P noted that the technical question of whether the Court of Criminal Appeal could conduct the s 16BA procedure had not been argued or considered in an earlier decision (Sabel v R) that the Crown had sought to rely on, and that it should not be treated as authority on the point.

Orders Made

  • Leave granted to appeal against sentence.
  • Appeal allowed.
  • Sentence imposed by the District Court on 2 August 2018 set aside.
  • Proceedings remitted to the District Court pursuant to s 12 of the Criminal Appeal Act 1912 (NSW).
  • Matter listed in the District Court at 9.30am on Friday, 20 September 2019.

Key Takeaways

  • Under s 16BA(1) of the Crimes Act 1914 (Cth), a sentencing court must complete specific statutory steps before taking additional offences into account, including asking the convicted person whether they admit guilt of those offences and whether they wish them to be considered in sentencing. Omitting those steps is a fundamental procedural error.
  • The Court of Criminal Appeal confirmed that the s 16BA procedure must be carried out by the court before which the person was convicted. The statutory language is explicit on this point and admits no flexibility.
  • An argument that ss 19 and 20 of the Crimes Act 1914 (Cth) permit an appellate court to perform the s 16BA procedure was rejected. Those provisions do not override the specific requirement in s 16BA(1).
  • A prior Court of Criminal Appeal decision (Sabel v R) in which resentencing had occurred at appellate level with s 16BA offences factored in was distinguished: the technical question raised in Purves was neither argued nor addressed in Sabel, and the decision carries no authority on the point.
  • Where a fundamental sentencing error cannot be remedied by the appellate court, remittal to the original sentencing court is the appropriate remedy.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth), ss 16BA, 19, 20
- Criminal Code (Cth)
- Criminal Appeal Act 1912 (NSW), s 12

Cases:
- Sabel v R; R v Sabel [2014] NSWCCA 101; (2014) 242 A Crim R 49