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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
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 charges of supplying a prohibited drug (heroin) on an ongoing basis, covering two consecutive periods in mid-2019. Two additional offences were listed on a Form 1 to be taken into account at sentencing: a third period of ongoing heroin supply, and a charge of knowingly participating in and directing a criminal group.

The sentencing judge imposed an aggregate term of 3 years and 8 months imprisonment, with a non-parole period of 21 months, taking the Form 1 offences into account. The appellant did not challenge the sentence itself, but argued that three procedural irregularities in the Form 1 process meant the judge was not entitled to take those offences into account.

The three irregularities were: the Form 1 referred to one principal offence when the appellant had been charged with two; the Form 1 was not signed by or on behalf of the Director of Public Prosecutions; and the sentencing judge did not directly ask the appellant whether she wanted the further offences taken into account.

Legal Issues

  • Whether the absence of a signature by or on behalf of the Director of Public Prosecutions on the Form 1, in breach of section 32(4)(c) of the Crimes (Sentencing Procedure) Act 1999 (NSW), precluded the judge from taking the additional offences into account.
  • Whether the failure to identify which of the two principal offences the Form 1 attached to rendered the taking into account of the additional offences erroneous.
  • Whether the sentencing judge's failure to directly ask the appellant if she wanted the further offences taken into account, as contemplated by section 33(1), constituted reversible error.
  • Whether the sentencing judge had double-counted the Form 1 offences in calculating the aggregate sentence.

Decision

Issue 1: Missing Director's signature

The court held that the absence of the Director's signature did not preclude the judge from taking the Form 1 offences into account. Section 32(6) provides that failure to comply with section 32 does not invalidate the sentence, and the Form 1 formed part of the prosecutor's exhibit bundle (at [12]-[13]). In practical terms, the statement of agreed facts, signed by a solicitor for the Director and identifying the Form 1 offences by sequence number, made clear that the Director consented to those matters being taken into account. No party suggested otherwise (at [14]).

Issue 2: Ambiguity as to the principal offence

The Form 1 referred to one offence of "ongoing supply" when in fact the appellant had been charged with two. The court accepted there was an ambiguity, but found it carried no material prejudice (at [15]-[16]). The Director's written submissions and the parties' oral submissions made clear, by common understanding, that the Form 1 attached to the first of the two supply offences (sequence 3), and the judge sentenced accordingly. The ambiguity was resolved by agreement and had no practical significance (at [17]).

Issue 3: Failure to ask the appellant directly

The appellant contended that section 33(1) required the judge to personally put the question to her, and that her counsel's acknowledgment of the Form 1 was insufficient. The court rejected this, following the approach in Kabir v R. Where an offender's intention to have further offences taken into account is unequivocally demonstrated, reading section 33(1) as imposing a mandatory condition requiring the judge to pose the question is a triumph of form over substance (at [37]-[38]). The court noted that the appellant's counsel expressly acknowledged the Form 1 and indicated it was to be taken into account, and the appellant had signed both the Form 1 and the statement of agreed facts (at [20], [39]). No misunderstanding or doubt about the appellant's intention arose, and the omission was accordingly immaterial (at [40]).

Issue 4: Alleged double-counting

The court rejected the contention that the judge had double-counted the Form 1 offences in arriving at the aggregate sentence. The judge's reasons made plain that the Form 1 offences were taken into account only in determining the appropriate individual sentence for the principal offence (sequence 3), before the aggregate was calculated (at [43]-[46]). The form of the order reflected that the Form 1 matters had been dealt with, which served the appellant's own interest by recording that those offences could not be prosecuted again.

Orders Made

  • Leave to appeal against the sentence imposed in the District Court on 1 April 2021 was granted.
  • The appeal was dismissed.

Key Takeaways

  • Under section 32(6) of the Crimes (Sentencing Procedure) Act 1999 (NSW), non-compliance with the formal requirements of section 32, including the absence of the Director's signature, does not invalidate a sentence, and will not constitute reversible error where no party suffered any practical prejudice (at [12]-[14]).
  • Where a Form 1 fails to identify which of multiple principal offences the additional charges attach to, that ambiguity can be resolved by the parties' common understanding and conduct at the hearing, without the ambiguity itself constituting irreparable error (at [15]-[17]).
  • A sentencing court is not required to pose the section 33(1) question directly to the offender in circumstances where the offender's intention to have further offences taken into account has been unequivocally demonstrated through the conduct of represented counsel (at [37]-[39]).
  • In dismissing the appeal, the Court of Criminal Appeal confirmed and applied the reasoning in Kabir v R, extending to the state provision in section 33 the principle that a legally represented person may indicate a wish to have Form 1 offences taken into account through counsel (at [38]).
  • Procedural formalities under Part 3, Division 3 of the Crimes (Sentencing Procedure) Act remain important in principle, but appellate intervention for non-compliance requires some basis for suspecting actual misunderstanding, unfairness, or prejudice to the offender (at [39]-[40]).

Legislation and Cases Referenced

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

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