Citation: Betka v R; Ghazaoui v R; Hawchar v R (No 3) [2021] NSWCCA 121
Court: Court of Criminal Appeal (NSW)
Date: 15 June 2021
Judge(s): Fullerton J; Wilson J; Ierace J
Background
This decision is the third instalment in proceedings concerning, among others, an applicant who had been sentenced in the District Court in December 2019 to a term of imprisonment with a fixed non-parole period. The Court of Criminal Appeal had already amended its own resentencing orders once, on 6 August 2020, after the Crown identified an error in the non-parole period expiry date and the Court independently spotted what it took to be an arithmetic error in the sentence commencement date.
A further complication arose when the Commonwealth Parole Office identified, after the resentencing, that the Court's orders did not comply with the statutory framework governing federal sentences. Specifically, the orders did not account for a separate federal sentence (including a non-parole period) that had been imposed by Harrison J on 20 February 2020 for a terrorism offence, after the District Court proceedings but before the appeal was heard.
Neither the Crown nor the applicant had drawn the Court's attention to the interaction of that later sentence with the resentencing task. The result was that the orders made on resentence failed to comply with sections 19AD and 19AG of the Crimes Act 1914 (Cth), which impose specific obligations on a sentencing court when an offender is already subject to an existing federal non-parole period.
Legal Issues
- Whether the commencement date of the sentence required further correction, in light of the Crown's application under rule 50C(3) of the Criminal Appeal Rules establishing that 19 December 2017 (not 17 December 2017) was the actual date of arrest and remand.
- Whether the form of the non-parole period order required correction under section 19AH of the Crimes Act 1914 (Cth), given that the Court's resentencing had not complied with sections 19AD and 19AG.
Decision
On the commencement date question, the Court accepted that its earlier "correction" of 17 August 2020 had itself introduced an error. The Court had believed it was fixing an arithmetic mistake, but the actual date of arrest and remand was 19 December 2017, as confirmed by the sentencing judge's own revised remarks and by contemporaneous correspondence. The Crown's application under rule 50C(3) was made within time and was accepted by the applicant's representatives. The Court was satisfied it was in the interests of justice to exercise its power to correct the commencement date accordingly.
On the more substantive issue, the Court acknowledged that both the resentencing proceeding and the earlier sentence imposed by Harrison J had failed to engage with the requirements of sections 19AD and 19AG. Those provisions require a court sentencing a federal offender who is already subject to an existing federal non-parole period to take one of a limited number of prescribed steps, including fixing a single new non-parole period across all federal sentences. Where a terrorism offence is involved, section 19AG(5) further restricts the available options to the fixing of that single non-parole period.
Section 19AH empowers a court to correct a failure to fix a non-parole period properly, on application by the Attorney-General, the Director of Public Prosecutions, or the offender. The Court was told by the applicant's legal representatives that the proposed correction would not extend the minimum time the applicant spent in custody, as the corrected order would impose a single non-parole period of the same length as that already made. On that basis, no further submissions were sought and the Court exercised both its rule 50C power and its section 19AH power to recast the orders.
Orders Made
- The orders made on 6 August 2020 were set aside in their entirety.
- The applicant was sentenced to imprisonment for 6 years, to date from 19 December 2017.
- After taking into account the sentence imposed by Harrison J on 20 February 2020, and having regard to sections 19AD and 19AG of the Crimes Act 1914 (Cth), a non-parole period of 3 years and 6 months was imposed, to expire on 18 June 2021.
Key Takeaways
- Rule 50C(3) of the Criminal Appeal Rules permits the Court of Criminal Appeal to correct errors in its own orders, including where a prior correction was itself mistaken, provided the application is made within time and the interests of justice support the amendment.
- Under sections 19AD and 19AG of the Crimes Act 1914 (Cth), a court resentencing a federal offender who is already subject to a federal non-parole period must actively engage with those provisions and fix a single non-parole period across all relevant federal sentences; failure to do so is a legal error, not merely a formal omission.
- Section 19AH provides a mechanism for correcting an improperly fixed (or omitted) federal non-parole period at any time, on application by the Director of Public Prosecutions or other specified parties, without affecting the validity of the underlying sentence.
- The cascading errors in this matter arose partly because a subsequent federal sentence imposed after the District Court proceedings was not brought to the Court of Criminal Appeal's attention at the time of the resentencing hearing.
- Correcting the non-parole period under section 19AH does not necessarily alter the minimum period an offender serves in custody; in this case, the restructured order imposed a single non-parole period of the same duration as the one it replaced.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1914 (Cth), ss 19AD, 19AG, 19AH
- Criminal Code (Cth), s 119.1(2)
- Criminal Appeal Rules (NSW), r 50C(3)
Cases:
- Betka v R; Ghazaoui v R; Hawchar v R [2020] NSWCCA 191
- Betka v R; Ghazaoui v R; Hawchar v R (No 2) [2020] NSWCCA 199