Citation: Lergou v Commonwealth Director of Public Prosecutions [2020] NSWSC 1461
Court: Supreme Court of New South Wales
Date: 22 October 2020
Judge(s): Cavanagh J
Background
The appellant had been sentenced in the Local Court and, following revocation of parole, appeared before a magistrate to have a non-parole period fixed for the unserved portion of his sentence. Magistrate McIntyre fixed the non-parole period on 28 August 2020. The appellant then filed a summons in the Supreme Court seeking to vary that non-parole period under s 19AY(5)(c) of the Crimes Act 1914 (Cth).
The appellant contended that the magistrate had made a series of errors in the sentencing exercise, including failing to give adequate weight to significant delay between the Commonwealth obtaining the information necessary to revoke parole and the eventual execution of the warrant, and failing to give sufficient weight to the assistance he had provided to law enforcement authorities.
The respondent, the Commonwealth Director of Public Prosecutions, opposed the appeal. The matter was heard urgently, with the Court undertaking to deliver its decision within days.
Legal Issues
- Whether an appeal under s 19AY(3) of the Crimes Act 1914 (Cth) is a hearing de novo or an appeal by way of rehearing requiring demonstrated error
- Whether the magistrate erred by failing to account for an initial factual misstatement (subsequently corrected before orders were made)
- Whether the magistrate failed to have regard to the delay between the revocation decision and execution of the warrant, and any resulting "uncertain suspense" suffered by the appellant
- Whether the magistrate gave insufficient weight to the appellant's assistance to law enforcement authorities
Decision
Nature of the appeal. Cavanagh J held that an appeal under s 19AY(3) of the Crimes Act is an appeal by way of rehearing in the third sense described in Lacey v Attorney-General (Qld) (2011) 242 CLR 573, not a hearing de novo. His Honour followed the Queensland Court of Appeal's decision in R v Cant [2014] QCA 334 on this point, applying the principle from Farah Constructions that intermediate courts should not depart from interstate interpretations of Commonwealth legislation unless plainly wrong. The appellant's reliance on Engelbrecht v DPP (NSW) [2016] NSWCA 290 to argue that R v Cant was plainly wrong did not succeed, as the statutory provisions considered in Engelbrecht differed materially from s 19AY. Accordingly, the appellant was required to demonstrate error on the part of the magistrate.
Error 1: Factual misstatement. The appellant pointed to an initial misstatement made by the magistrate during the delivery of reasons. Cavanagh J found no error, because the magistrate had corrected the misstatement before formally making the orders. His Honour reasoned that permitting an appeal on the basis of a misstatement corrected before orders were entered would produce an unworkable result, and that the correction demonstrated the magistrate was aware of the issue before fixing the non-parole period.
Error 2: Delay. The appellant argued the magistrate had failed to give proper weight to the roughly four-month delay between the Commonwealth obtaining the relevant information and the execution of the warrant, during which he was kept in a state of uncertain suspense. Cavanagh J, having listened to the audio recording of the sentencing proceedings, was satisfied that the magistrate had specifically considered the delay and the relevant authorities, including R v Todd [1982] 2 NSWLR 517 and Mill v R (1988) 166 CLR 59. No error was established on this ground.
Error 3: Assistance to authorities. The appellant contended that his assistance to police should have led to a non-custodial outcome. Cavanagh J found the magistrate had properly considered the assistance and the relevant principles, including the appellant's motivation. The magistrate had declined to treat the assistance as warranting the elimination of any custodial component, and the appellant failed to demonstrate that the weight given to this factor was erroneous. As no error was established on any ground, the appeal and summons were dismissed.
Orders Made
- The appeal and summons were dismissed.
Key Takeaways
- An appeal under s 19AY(3) of the Crimes Act 1914 (Cth) is an appeal by way of rehearing in the error-based sense, not a hearing de novo. The appellant must demonstrate error on the part of the original decision-maker.
- Cavanagh J declined to depart from the Queensland Court of Appeal's construction of s 19AY in R v Cant, applying the principle that intermediate courts should not depart from interstate appellate decisions on Commonwealth legislation unless plainly wrong.
- A factual misstatement made during sentencing reasons does not constitute appellable error where the sentencing judge corrects the error before formally pronouncing orders.
- Under the principles in R v Todd and Mill v R, delay between an offender becoming liable to further sentence and the execution of a warrant is a relevant sentencing consideration, but the weight given to that factor remains a matter for the sentencing magistrate's discretion.
- Assistance provided to law enforcement authorities is a mitigating factor in sentencing, but it does not automatically result in the elimination of any custodial component. The sentencing court's assessment of the appropriate weight is a discretionary exercise.
Legislation and Cases Referenced
Legislation
- Crimes Act 1914 (Cth), ss 19AU, 19AW, 19AY
- Crimes (Appeal and Review) Act 2001 (NSW), ss 11, 17
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10A
- Criminal Code (Cth), ss 11.1, 307.1
- Drug Misuse and Trafficking Act 1985 (NSW)
Cases
- Lacey v Attorney-General (Qld) (2011) 242 CLR 573; [2011] HCA 10
- Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22
- Engelbrecht v Director of Public Prosecutions (NSW) [2016] NSWCA 290
- Cant v Commonwealth Director of Public Prosecutions [2014] QSC 62
- R v Cant [2014] QCA 334
- Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485; [1993] HCA 15
- Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; [2000] HCA 47
- R v Todd [1982] 2 NSWLR 517
- Mill v R (1988) 166 CLR 59; [1988] HCA 70
- Blanco v R [1999] NSWCCA 121; 106 A Crim R 303
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534
- R v Cramp [2004] NSWCCA 264
- R v Gay [2002] NSWCCA 6
- Sabra v R [2015] NSWCCA 38
- Hudson v R [2016] NSWCCA 278
- R v Schwabegger [1998] 4 VR 649