Citation: Sahartor v R [2020] NSWCCA 36
Court: NSW Court of Criminal Appeal
Date: 13 March 2020
Judges: Meagher JA, Johnson J, Hamill J
Background
The applicant had been sentenced on 7 December 2017 to three years' imprisonment, with a non-parole period of one year, following his conviction for reckless grievous bodily harm under s 35 of the Crimes Act 1900 (NSW). That sentence was ordered to commence partway through an existing sentence for an unrelated offence, being armed with intent to commit an indictable offence.
In October 2018, the Court of Criminal Appeal quashed the conviction and sentence for the earlier unrelated offence. This created a situation where the commencement date of the grievous bodily harm sentence may have needed adjustment to account for the time the applicant had actually spent in custody before the quashed sentence began.
The applicant sought to have the commencement date of the grievous bodily harm sentence varied. By the time the application was heard, significant time had passed, further sentences had been imposed, and the applicant was on parole. The application was resisted by the Crown, which raised jurisdictional objections.
Legal Issues
- Whether the application was properly brought as an appeal against sentence under the Criminal Appeal Act 1912 (NSW) or as an application under s 59 of the Crimes (Sentencing Procedure) Act 1999 (NSW)
- Whether the Court had jurisdiction to entertain either form of application
- Whether any error in the sentencing judge's reasons could be identified to enliven appellate intervention
- Whether the Court should exercise its discretion under s 59 to vary the commencement date, given the extensive delay and intervening events
Decision
Hamill J, with whom Meagher JA and Johnson J agreed, found that the application was properly characterised as one under s 59 of the Crimes (Sentencing Procedure) Act 1999 rather than as a sentence appeal. Section 59 exists precisely to allow a court to adjust the commencement date of one sentence when a separate, related sentence has been quashed or varied. No error in the reasoning of the sentencing judge could be identified, so there was no basis to grant leave to appeal against sentence. The leave application was dismissed.
On the s 59 application, the Court accepted that had the matter been raised promptly, some adjustment to the commencement date would likely have been made. The presiding judge in the 2018 appeal had flagged the possibility, but the parties did not pursue it at that time. The applicant's affidavit, which was unchallenged, established that the delay was not his personal fault: he had understood the adjustment would be made automatically and had relied on his previous lawyers to attend to it. The Court noted that the applicant's current legal team bore no responsibility for the delay.
Despite its sympathy for the applicant's position, the Court refused the s 59 application in the exercise of its discretion. The core difficulty was that during the period of delay, further sentences had been imposed and parole orders had been made by the Parole Authority. Varying the commencement date at this late stage would effectively render nugatory those decisions. The applicant was already at large on parole, and there was no evidence before the Court about the practical consequences of varying the commencement date or what steps the applicant might take if his parole conditions were lifted. The "egg could not be unscrambled" on the available evidence.
The Court noted, in terms framed as a reminder to practitioners generally, that where a sentence is quashed and there may be a flow-on effect on the commencement of an unrelated sentence, a s 59 application should be brought without delay, whether the person is in custody or on parole.
Orders Made
- The application for leave to appeal against sentence is dismissed.
- The application pursuant to s 59 of the Crimes (Sentencing Procedure) Act 1999 (NSW) is refused.
Key Takeaways
- Section 59 of the Crimes (Sentencing Procedure) Act 1999 (NSW) provides the appropriate mechanism for adjusting the commencement date of a sentence when a separate sentence, around which the first was structured, has been quashed. A sentence appeal is not the correct vehicle where no error in the sentencing judge's reasoning can be identified.
- The Court of Criminal Appeal confirmed that the availability of s 59 as an alternative remedy is itself a powerful reason to refuse leave to appeal against sentence, particularly where there has been significant delay in prosecuting that appeal.
- Under s 59, the court exercises a discretion. Even where delay in bringing the application is attributable to the applicant's former lawyers rather than the applicant personally, delay that has allowed intervening events, including further sentences and parole orders, to occur may be fatal to the application.
- Refusing the application in this case rested heavily on the absence of evidence. Without material addressing the practical consequences of varying the commencement date, the Court could not properly exercise the discretion in the applicant's favour.
- Where a sentence is quashed on appeal, the parties and the court hearing the appeal should consider at that point whether any adjustment to the commencement date of a related sentence is required under s 59. As Spigelman CJ observed in R v Pham, in the normal course the prosecutor should raise the issue with the bench quashing or varying the sentence.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 33, 35
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 59
- Criminal Appeal Act 1912 (NSW), s 6
- Criminal Appeal Rules (NSW)
- Mental Health (Forensic Provisions) Act 1990 (NSW)
Cases:
- Sahartor v R [2018] NSWCCA 236 (the earlier appeal quashing the unrelated conviction)
- Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 (nature of a sentence appeal; error required to enliven appellate intervention)
- R v Pham [2004] NSWCCA 263 (prosecutor's duty to raise s 59 adjustment with the bench)
- Allan v R (No 2) [2011] NSWCCA 27