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Court of Criminal Appeal 15 August 2022

R v Perrin

[2022] NSWCCA 170

Assault & violenceTheft & propertyDomestic & family violencePublic order & justice offences
CRIME APPEAL AND REVIEW STATED CASE QUESTION OF LAW APPEAL AND REVIEW STATED CASE

Citation: R v Perrin [2022] NSWCCA 170
Court: NSW Court of Criminal Appeal
Date: 15 August 2022
Judge(s): Ward P, Harrison J, Wright J (Wright J delivering the leading judgment)

Background

The offender had accumulated a series of sentences arising from domestic violence offending between 2015 and 2017, as well as later assault and property offences. By late 2020, his earlier sentences had all expired, but he remained in custody on remand awaiting sentencing for fresh charges. When the Local Court sentenced him in June 2021 for those fresh charges, it imposed an aggregate sentence of five years.

On appeal to the District Court, the sentencing judge considered that section 58 of the Crimes (Sentencing Procedure) Act 1999 (NSW) was engaged. That provision relevantly prohibits the Local Court, or the District Court on appeal, from imposing a new sentence that would end more than five years after the date on which an "existing sentence" began. The District Court judge concluded that the new sentence had to expire by 21 September 2024, calculated from the start of the offender's earliest period in custody in September 2019, and varied the sentence accordingly.

The Director of Public Prosecutions sought a case stated to the Court of Criminal Appeal under section 5B(2) of the Criminal Appeal Act 1912 (NSW), raising questions about the proper construction of section 58.

  • Whether section 58 constrains only the extent of accumulation of sentences, or also constrains the length of a new sentence that may be imposed.
  • Whether "existing sentence" is determined as at the date the new sentence is imposed, or as at the date the new sentence commences.
  • Whether section 58 is engaged when the offender is not serving any sentence of imprisonment at the time of sentencing.
  • Whether section 58 is engaged when the new sentence is made cumulative on a sentence that has already expired by the time of sentencing.
  • Whether it was appropriate for the Court to answer the stated questions at all, given the District Court judge's understanding of section 58.

Decision

Wright J (with Ward P and Harrison J agreeing) held that section 58 does more than merely limit accumulation: it effectively constrains the length of any new sentence the Local Court or District Court on appeal may impose. This conclusion was required because the practical operation of the five-year ceiling directly limits how long a new sentence can run, not merely how sentences are stacked together.

The Court held that whether an "existing sentence" exists must be assessed at the date the new sentence is imposed, not at the date from which it is made to commence. An "existing sentence" within the meaning of section 58(4) is an unexpired sentence. If no sentence is being served at the moment of sentencing, there is no existing sentence and section 58 is not engaged.

It followed that section 58 did not apply to the offender's sentencing. By the time the Local Court sentenced him in June 2021 (and when the District Court varied that sentence on appeal), the offender was not serving any sentence of imprisonment. His earlier sentences had all expired in November 2020. The fact that the new sentence was made cumulative on those expired sentences did not bring section 58 into operation.

Because the District Court had proceeded on the erroneous view that section 58 constrained the available sentence, the sentence imposed on appeal was affected by legal error. The Court of Criminal Appeal quashed that sentence and remitted the matter to the District Court for the appeal to be determined according to law.

Orders Made

  • Question (a) answered: No. Section 58 does not constrain the length of a sentence where the offender is not serving any sentence of imprisonment at the time of sentencing.
  • Question (b) answered: No. Section 58 does not constrain the length of a sentence where the offender is not serving any sentence at the time of sentencing, even if the new sentence is made cumulative or partly cumulative on a sentence that has already been served.
  • The sentence imposed by Haesler SC DCJ on 17 August 2021 is quashed.
  • The matter is remitted to the District Court for the sentencing appeal to be determined according to law.
  • The matter listed in the District Court arraignment list in Wollongong on 30 August 2022 for mention.

Key Takeaways

  • Section 58 of the Crimes (Sentencing Procedure) Act 1999 (NSW) constrains the length of a new sentence the Local Court or District Court on appeal may impose, and is not limited to constraining how sentences are accumulated against one another.
  • Whether an "existing sentence" exists for the purposes of section 58 is determined at the date of imposition of the new sentence, not at the date from which the new sentence is backdated to commence.
  • Where the offender is not serving any sentence of imprisonment at the time the new sentence is imposed, section 58 has no operation, even if the new sentence is structured as partly cumulative on earlier, expired sentences.
  • A sentence that has expired before the date of the new sentencing is not an "unexpired sentence" and therefore does not qualify as an "existing sentence" under section 58(4).
  • In upholding the DPP's case stated, the Court of Criminal Appeal confirmed that the stated questions were properly before it because the practical effect of section 58 on sentence length meant that a "constraint on length" had arisen on the appeal to the District Court within section 5B(1) of the Criminal Appeal Act 1912.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 24, 47, 53A, 53B, 55, 58
- Criminal Appeal Act 1912 (NSW), s 5B
- Crimes (Appeal and Review) Act 2001 (NSW), ss 11, 17, 20, 30
- Crimes Act 1900 (NSW), s 444 (now repealed)
- District Court Act 1973 (NSW), ss 9, 166

Cases:
- Perrin v R [2021] NSWDC 408
- Stoneham v Director of Public Prosecutions (NSW) [2021] NSWSC 735 (discussed with approval)
- Huynh v R (2021) 105 NSWLR 384; [2021] NSWCCA 148
- Huynh v R [2008] NSWCCA 216; 188 A Crim R 287
- Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
- Williams v The Queen (1986) 161 CLR 278; [1986] HCA 88
- Regina v The Queen [2004] NTCCA 9; 149 A Crim R 583