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Court of Criminal Appeal 13 March 2020

Sahartor v R

[2020] NSWCCA 36

Assault & violence
CRIMINAL LAW CONSIDERABLE CONFUSION NATURE OF APPEAL JURISDICTION WHERE EXTENSIVE DELAY DISCRETIONARY CONSIDERATIONS

Citation: Sahartor v R [2020] NSWCCA 36
Court: Court of Criminal Appeal
Date: 13 March 2020
Judge(s): Meagher JA, Johnson J, Hamill J (judgment by Hamill J)

Background

The applicant had been convicted at a judge-alone trial of causing grievous bodily harm, reckless as to whether actual bodily harm was caused, under section 35 of the Crimes Act 1900 (NSW). He was sentenced on 7 December 2017 to three years imprisonment with a non-parole period of one year, commencing 7 August 2017. That sentence was structured to run during an existing, unrelated sentence for being armed with intent to commit an indictable offence.

In October 2018, the Court of Criminal Appeal allowed a separate appeal and quashed that earlier unrelated conviction and sentence. The quashing of that sentence had potential consequences for the commencement date of the grievous bodily harm sentence, because the two sentences had overlapped.

Although the possibility of a commencement-date adjustment was flagged in the earlier appeal proceedings, the applicant did not bring a formal application under section 59 of the Crimes (Sentencing Procedure) Act 1999 (NSW) until well over twelve months later. In the intervening period, the applicant was released to parole, committed further offences, had his parole revoked, and was later released again on a fresh parole order.

Legal Issues

  • Whether the application was properly characterised as an application for leave to appeal against sentence, or as an application under section 59 of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Whether there was a ground of appeal capable of impeaching the sentence imposed by the sentencing judge
  • Whether Criminal Appeal Rule 50C imposed a time limit on section 59 applications
  • Whether the court retained jurisdiction under section 59 to vary the commencement date despite the significant delay
  • Whether the discretion under section 59 should be exercised in the applicant's favour in the circumstances

Decision

Issue 1: Correct characterisation of the application

The court held that the application was properly determined under section 59 of the Crimes (Sentencing Procedure) Act 1999 (NSW), not as an application for leave to appeal against sentence (at [3]). No ground of appeal was identified that could impeach the sentencing judge's reasoning (at [3], [8]). A ground was belatedly filed only after the respondent challenged jurisdiction, but it had no merit. The existence of section 59 as a dedicated statutory mechanism for adjusting commencement dates was itself a powerful reason to refuse leave to appeal, particularly given the significant delay in prosecuting the appeal and filing any ground (at [11]-[12]).

Issue 2: Jurisdiction and time limits

The court rejected the respondent's submission that Criminal Appeal Rule 50C imposed a time limit on section 59 applications (at [20]-[21]). The phrase "on the quashing or variation of the other sentence" in section 59(3) identifies the jurisdictional trigger for the power, not a deadline by which the application must be brought (at [22]). The court also declined to accept that Allan v R (No 2) [2011] NSWCCA 27 was authority for applying Rule 50C to section 59 applications (at [21]).

Issue 3: Exercise of discretion under section 59

The court refused to vary the commencement date in the exercise of its discretion (at [35]). Several circumstances combined against the applicant. During the period of delay, the applicant had committed further offences, received additional sentences, had his parole revoked, and been the subject of multiple Parole Authority decisions (at [25]-[27]). Making an adjustment at that late stage would effectively render nugatory the Parole Authority's determinations, which were not themselves subject to appeal or judicial review (at [32]). The court accepted that the delay was not the applicant's fault, as he had relied on advice from his previous lawyers that the matter was in hand (at [34]). Despite considerable sympathy for the applicant's position, the court found the consequences of the delay too complex and speculative to remedy at that point: the "egg" could not be unscrambled (at [30], [35]).

Orders Made

  • The application for leave to appeal against sentence is dismissed.
  • The application pursuant to section 59 of the Crimes (Sentencing Procedure) Act 1999 (NSW) is refused.

Key Takeaways

  • Section 59 of the Crimes (Sentencing Procedure) Act 1999 (NSW) is the proper mechanism for adjusting the commencement date of an unrelated sentence when another sentence is quashed, and the existence of that mechanism is a powerful reason to refuse leave to appeal against sentence on that same basis (at [11]).

  • No time limit is imposed by section 59(3) requiring an application to be brought on the day the earlier sentence was quashed; however, extensive delay is a significant factor in the exercise of the discretion, particularly where events have intervened and circumstances have changed (at [22], [35]).

  • Criminal Appeal Rule 50C does not apply to section 59 applications: the rule concerns variations to the sentence that is itself the subject of the appeal, not a separate unrelated sentence (at [20]).

  • Where delay in bringing a section 59 application has allowed numerous intervening events, including further sentences and Parole Authority decisions, to accumulate, the court may refuse to make an adjustment on the basis that it cannot adequately account for those events or that doing so would render existing Parole Authority determinations nugatory (at [30], [32]).

  • Blamelessness for delay, while relevant and capable of attracting sympathy, is not determinative of the discretion under section 59; the court examines the full factual circumstances, including the complexity and uncertainty created by the passage of time (at [34]-[35]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Criminal Appeal Rules (NSW)
- Mental Health (Forensic Provisions) Act 1990 (NSW)

Cases
- Allan v R (No 2) [2011] NSWCCA 27
- Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
- R v Pham [2004] NSWCCA 263
- Sahartor v R [2018] NSWCCA 236