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Court of Criminal Appeal 21 July 2003

Regina v CJP; Regina v CAD; Regina v MES [2003] NSWCCA 187 revised - 10

[2003] NSWCCA 187

Sexual offences
CRIMINAL LAW SENTENCING CROWN APPEALS PLEAS OF GUILTY WHETHER ANY SENTENCES VALIDLY IMPOSED

Citation: Regina v CJP; Regina v CAD; Regina v MES [2003] NSWCCA 187
Court: NSW Court of Criminal Appeal
Date: 21 July 2003
Judges: Sheller JA, Hidden J, Carruthers AJ

Background

Three respondents (referred to by their initials) had each pleaded guilty at the Campbelltown District Court to sexual offences involving children. The matters were heard together by an Acting District Court Judge, and sentences were purportedly imposed on 4 December 2002.

The Director of Public Prosecutions filed Crown appeals in February 2003, contending the sentences were inadequate. When the appeals came before the Court of Criminal Appeal in May 2003, the Court identified significant jurisdictional and procedural problems with the way the sentences had been imposed, and adjourned for written submissions from all parties on those questions.

The central difficulties were twofold: first, that sentences had apparently been endorsed by the judge on the Committal for Sentence Form in the absence of the parties; and second, that written reasons for the sentences were not published until approximately three months after the sentences were imposed.

  • Whether sentences endorsed by a District Court judge on a Committal for Sentence Form, in the absence of the parties, were validly imposed
  • Whether a delay of approximately three months between the imposition of sentences and the publication of reasons rendered those sentences invalid
  • Whether the requirement for contemporaneous reasons is a necessary element of valid sentencing
  • Whether the Crown appeals could proceed, or whether all matters had to be remitted to the District Court for re-sentencing

Decision

The Court found that the sentencing proceedings for all three respondents had miscarried. In the case of CJP, the sentencing process was found to have been fatally flawed for reasons connected with the way sentences were purportedly imposed in the absence of the parties, rendering those sentences not according to law.

In relation to CAD and MES, the Court found that even accepting the premise that the judge intended to sentence both respondents on 4 December 2002, the delay of almost three months before written reasons were published could not satisfy the requirement that reasons accompany the sentence contemporaneously. The Court emphasised that contemporaneous reasons are not merely desirable but are a legal requirement of valid sentencing.

The Court confirmed that the principle of contemporaneity in the delivery of reasons is of general application and is not confined to any one of the three matters before it. Because none of the sentences had been validly imposed, there was nothing upon which the Crown appeals could effectively operate. The appropriate course was to quash all purported sentences and remit each matter to the District Court for sentencing to be carried out in accordance with law, including the provision of contemporaneous reasons.

Orders Made

For each of the three respondents (CJP, CAD, and MES), the Court made identical orders in the following terms:

  • A declaration that the sentences purportedly imposed at the Campbelltown District Court on 4 December 2002 and 28 February 2003 were not according to law and are quashed
  • The sentencing proceedings remitted to the District Court of New South Wales (Criminal Jurisdiction) for sentence according to law, including the publication of contemporaneous reasons, pursuant to s 12(2) of the Criminal Appeal Act 1912
  • The Crown appeal in each matter accordingly quashed

Key Takeaways

  • A sentence imposed in the absence of the parties, by endorsement on a Committal for Sentence Form, may not be a valid sentence according to law in New South Wales.
  • Contemporaneous reasons are a legal requirement of valid sentencing, not simply a matter of good judicial practice. A delay of approximately three months between the imposition of a sentence and the publication of reasons was found to be plainly incompatible with this requirement.
  • Where sentences are found to be invalid for procedural reasons, Crown appeals against those sentences cannot proceed on their merits. The appropriate remedy is to quash the purported sentences and remit the matters for lawful re-sentencing.
  • The principle requiring contemporaneous reasons applies generally across sentencing proceedings; it is not limited to any particular category of offence or to cases involving Crown appeals.
  • Procedural defects in the sentencing process can render sentences void regardless of whether the parties initially raise the issue, as the Court of Criminal Appeal identified the problems in this case of its own motion.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW): ss 4, 61J, 61J(1), 61N(1), 66C(1), 66C(2), 78L, 345, 580E(2), 580E(4)
- Crimes (Sentencing Procedure) Act 1999 (NSW): ss 22(2), 22(4), 32, 33, 44, 62(1), 70, 70(3)
- Criminal Appeal Act 1912 (NSW): s 12(2)
- District Court Rules: Pt 31 r 9

Cases:
- AB v The Queen (1999) 198 CLR 111
- Ebatarinja v Deland (1998) 194 CLR 444
- Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378
- Jago v District Court (NSW) (1989) 168 CLR 23
- Kunnath v The State [1993] 1 WLR 1315
- Lawrence v The King [1933] AC 699
- Pearce v The Queen (1998) 194 CLR 610
- Pettit v Dunkley [1971] 1 NSWLR 376
- Public Service Board (NSW) v Osmond (1986) 159 CLR 656
- R v Cornwell [1972] 2 NSWLR 1
- R v Julie Ann Duffy [1999] NSWCCA 321
- R v Thomson; R v Houlton (2000) 49 NSWLR 383
- R v JCE (2000) 120 A Crim R 18
- R v Jones (No 2) (1972) 1 WLR 887
- Richmond Newspapers v Virginia 448 US 555 (1980)
- Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247