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Court of Criminal Appeal 22 December 2021

Dale v R

[2021] NSWCCA 320

Drugs
CRIME APPEAL AND REVIEW FURTHER OFFENCES TAKEN INTO ACCOUNT OFFENCES LISTED ON A FORM 1 PROCEDURAL IRREGULARITIES NO EVIDENCE OF PREJUDICE TO OFFENDER

Citation: Dale v R [2021] NSWCCA 320
Court: Court of Criminal Appeal, NSW
Date: 22 December 2021
Judge(s): Basten JA (with Davies J and Button J agreeing)

Background

The appellant pleaded guilty in the District Court to two counts of supplying a prohibited drug (heroin) on an ongoing basis, contrary to the Drug Misuse and Trafficking Act 1985 (NSW). She was sentenced to an aggregate term of 3 years and 8 months imprisonment, with a non-parole period of 21 months.

Two additional offences were listed on a Form 1 (a "List of Additional Charges"), which is the document used to formally bring further charges before a sentencing court so they can be considered without conviction. Under the relevant procedure in the Crimes (Sentencing Procedure) Act 1999 (NSW), a court may take such offences into account at the offender's request, subject to specific procedural requirements.

The sole ground of appeal was that the sentencing judge erred by taking the Form 1 offences into account despite three procedural defects in the form. No other aspect of the sentence was challenged.

  • Whether the sentencing judge erred in taking Form 1 offences into account when the form carried three procedural defects: failure to identify which of the two principal offences the Form 1 related to; absence of a signature from an authorised person on behalf of the Director of Public Prosecutions; and absence of the judge's certifying signature on the form.
  • Whether those defects, individually or collectively, required the appeal to be allowed.
  • What consequences, if any, flow from non-compliance with the formal requirements of Part 3, Division 3 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

Decision

Basten JA reviewed the three defects in detail. The first concerned ambiguity as to which principal offence the Form 1 was associated with, given there were two ongoing supply charges. The second was the absence of a DPP-authorised signature, as required by s 32(4)(c) of the Crimes (Sentencing Procedure) Act. The third was the judge's failure to complete the certificate on the form under s 35(1)(a), confirming that the offences had been taken into account.

Critically, s 32(6) of the Act expressly provides that failure to comply with the requirements of s 32 does not invalidate any sentence imposed for the principal offence. The Court found that this provision was determinative in relation to the signature defect. As for the ambiguity about which principal offence the Form 1 applied to, the Court found the answer was apparent from the sentencing remarks themselves: the judge clearly applied the Form 1 only to sequence 3, consistent with how the matter had been conducted throughout.

On the absence of the judge's certifying signature, the Court noted this was an administrative omission rather than a substantive error. The sentencing remarks themselves made plain that the offences had been taken into account. The Court found the order could be formulated to reflect that fact, serving the appellant's own interests by confirming the further offences had been dealt with and could not be the subject of fresh proceedings.

The Court also considered whether the judge had complied with the obligation under s 33(1) to directly ask the offender whether she wanted the further offences taken into account. The transcript did not clearly show this question being put, but the Court was satisfied, on the materials as a whole (including the signed statement of agreed facts and the conduct of the proceedings), that there was no evidence of prejudice to the appellant. Leave to appeal was granted, but the appeal was dismissed.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Section 32(6) of the Crimes (Sentencing Procedure) Act 1999 (NSW) expressly provides that non-compliance with the formal requirements for a Form 1 does not invalidate the sentence imposed for the principal offence, and the Court of Criminal Appeal confirmed this provision operates as a significant limiting factor on appeals based solely on procedural defects.
  • A failure to identify which principal offence a Form 1 is associated with may be cured where the sentencing remarks make the position unambiguous.
  • The Court of Criminal Appeal confirmed that the Form 1 procedure exists in part to protect the offender: a finding that the further offences were taken into account prevents subsequent prosecution for those offences unless the principal conviction is quashed.
  • No error will ground a successful appeal where the procedural irregularities caused no identifiable prejudice to the offender, particularly when the overall conduct of the proceedings demonstrates the offender's awareness and agreement.
  • Under s 33(1), courts are required to directly ask the offender whether they want further offences taken into account; compliance with this obligation remains important, and the Court reiterated that procedural formalities in the Form 1 process are a matter of significance.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 32, 33, 35, 53A; Part 3, Division 3
- Crimes (Sentencing Procedure) Regulation 2017 (NSW), cl 4
- Crimes (Sentencing Procedure) Regulation 2000 (NSW), cl 5
- Drug Misuse and Trafficking Act 1985 (NSW), s 25A
- Crimes Act 1900 (NSW), s 93T
- Criminal Procedure Act 1986 (NSW), s 182
- Crimes Act 1914 (Cth), s 16BA

Cases:
- R v Felton [2002] NSWCCA 443; 135 A Crim R 328
- Purves v R [2019] NSWCCA 227
- LS v R [2020] NSWCCA 27
- Kabir v R [2020] NSWCCA 139
- Pham v R [2021] NSWCCA 234
- Spence v Queensland (2019) 268 CLR 355; [2019] HCA 15