(a) New South Wales
24In R v Petrou (Court of Criminal Appeal, 13 February 1990, unreported), the sentencing judge fixed a non-parole period he was not empowered to fix in conjunction with a head sentence he had imposed. On being made aware of this error, the sentencing judge exercised the power under the then predecessor to s 43, s 19 of the Criminal Procedure Act, to impose a new head sentence consistent with the non-parole period he thought appropriate. On appeal, each of Finlay J and Hunt J (as his Honour then was) said the section should be construed liberally. Hunt J stated the purpose of the section in the following terms:
"Section 19 of the Criminal Procedure Act 1986 was, it seems to me, inserted by the legislature primarily in order to permit the judge who made the original error to correct it, without the affected party having either to appeal or to rely upon some administrative action being taken to ensure that the proper penalty is imposed. The section does, of course, permit errors to be corrected on appeal as well, but the object to which I have referred appears to me to have been paramount. Against that background, the definition of 'penalty' which the section itself provides should, in my view, be read as widely as possible to include any necessary part of the sentence imposed."
25The third judge, Allen J, agreed with each of the other judges.
26Although each of the judges in Petrou said that the section should be construed liberally, the use made of the section in that case was to do no more than correct a technical error which had led to the head sentence being one which could not be lawfully imposed.
27In R v Denning (Court of Criminal Appeal, 15 May 1992, unreported) the sentencing judge imposed a penalty on the appellant, who was then serving a life sentence and certain other sentences, which was contrary to law by reason of misinformation given to the sentencing judge about the determinative sentences then being served. It was common ground that the sentence was a penalty contrary to law within the meaning of s 24, the then predecessor to s 43 of the Sentencing Procedure Act. The sentencing judge exercised his power to resentence but in doing so declined to take into account events which had occurred between the time the original sentence was imposed and the time of resentencing. Each member of the Court agreed that the sentencing judge had erred in failing to take subsequent events into account, although they differed as to the outcome. In relation to the question of whether subsequent matters should be taken into account, Carruthers J made the following remarks:
"It was submitted to Judge Shillington on behalf of the applicant that in determining whether he should exercise his powers under s.24, he should take into consideration the events which had occurred after 21 July 1989 and receive in evidence the material (such as the report by Dr Wendy Roberts) which was before Wood J. directed towards the applicant's rehabilitation. His Honour rejected these submissions expressing the view that if the correct information had been placed before him on 21 July 1989 he would have directed that the sentence imposed by him commence at the expiration of the accumulated twenty-one and a half years. His Honour took the view that his function under s.24 was confined to the correction of the error which occurred.
In my respectful view, his Honour made an error of law in this regard. Section 24 posed two questions for the Court. Firstly, there was the question whether the earlier proceedings should be reopened. In the event that such question was answered in the affirmative, there was the question whether the Court should amend the earlier order. Particularly bearing in mind that two years and four months had expired since the earlier order was made, it was, in my view, incumbent upon his Honour to receive evidence of what had relevantly transpired in the intervening period. The proceedings before Wood J. were unquestionably relevant, as was the cogent evidence of rehabilitation."
Smart J dealt with the matter as follows:
"The judge in re-sentencing applies the law which existed at the time the original sentence was imposed he takes into account the circumstances of the offence or offences and the position at the time of the imposition of the original penalty. However, he must consider what has happened since that penalty was imposed and the circumstances which then exist. The court is not limited to the position as at the imposition of the original penalty. Different considerations govern appeals. Inter alia, time limits apply to appeals and applications for leave to appeal by prisoners and substantial delay is often fatal to a Crown appeal. Further, under s. 24, the original sentence was not in accordance with the law and the reconsideration represents the first occasion on which a penalty in accordance with the law is imposed.
When the court is considering the imposition of a penalty that is in accordance with the law, the court does not simply look at the penalty originally imposed, decide whether it was in accordance with the law and, if not, what the correct penalty would have been at that date. The court looks at all the circumstances including what has happened since the imposition of the original penalty."
Grove J in agreeing with the other members of the Court emphasised that it does not strain the provision to give the fullest relief which could be comprehended within the concept of correction.
28R v Tolmie (1994) 72 A Crim R 416 was a successful Crown appeal. The error that was the subject of the successful appeal was pointed out to the sentencing judge who was requested to review the sentence under the then equivalent of s 43. Hunt CJ at CL said the section did not permit a rehearing on the merits: Tolmie at 420. Smart J adhered to the views he expressed in Denning, whilst Badgery-Parker J did not express a view on the question.
29In Ho v Director of Public Prosecutions (1995) 37 NSWLR 393, Kirby P, with whom Gleeson CJ and Sheller JA agreed, dealt extensively with the construction of the then predecessor to s 43, s 24 of the Criminal Procedure Act.
30His Honour (at 402-403) made six observations concerning the operation of s 24, five of which are relevant to the present case:
"(1) The section appears in remedial legislation designed to permit, as Pt 7 of the Act makes clear, 'Correction of sentencing errors'. Given the remedial purposes of the section, it should not be subjected to a narrow construction: see R v Petrou (Court of Criminal Appeal, 13 February 1990, unreported).
(2) That a broad interpretation of the section was intended by parliament is confirmed, not only by the general purpose of the section and the broad definition of terms provided in s 24(7) of the Act. It is also confirmed by the Second Reading Speech of the Attorney-General introducing the measure: see New South Wales Parliamentary Debates (Legislative Assembly), 21 September 1988 at 1673. He stated that its object was to provide 'a simple procedure to correct sentencing errors in criminal proceedings'. He went on to explain:
'The availability of this procedure will enable matters to be dealt with expeditiously. It will relieve appellate courts of unnecessary work and is a further step in the implementation of the Government's undertaking to reduce court delays. ... It is an important and practical step and savings to the Government and the administration of justice will be substantial.'
These considerations are not irrelevant given the limitations upon the facility of appeal in criminal matters such as the present, and the limitations upon (and technical requirements of) judicial review as well as the public and private costs that are involved in correcting mistakes of a simple character by such procedures. Reinforced by the minister's explanation of the legislation to parliaments this Court should afford the language of the section the broadest available construction so as to achieve its stated objects;
(3) There are limits relevantly derived from the requirement that the penalty must be 'contrary to law'. Such limitations have been revealed in earlier cases: see, eg, Boyd v Sandercock; Ex parte Sandercock [1990] 2 Qd R 26, where the Queensland Full Court analysed the equivalent provisions of s 147A of the Justices Act 1886 (Qld). In the end, the Court must adhere to the requirements of Parliament as expressed in the statutory language: Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 518. It must do so even if this results in a conflict with the stated intentions of the minister;
(4) It is to be noted that the phrase used in s 24(1)(a) is not 'imposed a penalty that is not provided by law'. A broader adjectival phrase is used to describe the 'penalty' which authorises the application of the section. It is enough that that penalty is 'contrary to law'. It is a part of the law of sentencing that where a person has, in respect of an event of which that person is convicted and stands for sentence, already served some time in custody, the sentencing judge should take such period into account. Ordinarily, the judge should give credit to the offender for time already served. To fail to consider this is an error of law in the exercise of the sentencing discretion. The resulting penalty is then one 'contrary to law';
(5) Differing views have been expressed by judges concerning the breadth of the phrase 'contrary to law' in s 24. Certainly, the section is not intended to permit a general rehearing of sentencing proceedings on the merits: see, eg, Shortland v Heath [1977] WAR 61 at 62f; R v Williams; Ex parte Biggs [1989] 1 Qd R 594 at 597. Differences were also expressed by the members of the Court of Criminal Appeal in R v Tolmie (1994) 72 A Crim R 416 at 420, 421. However, whilst avoiding a re-hearing of the merits of the penalty, it is common ground that the purpose of the section is to permit the correction of mistakes where 'such correction would have saved the cost, delay and expense involved in having to institute an appeal' (see R v Tolmie (at 420)) or, I would add, in being obliged to seek judicial review. For the correction of arguable mistakes in sentencing, the section should be given the widest possible operation."
31Two matters should be noted. First, Kirby P stated that the section should be given the widest possible operation. He considered that the words "contrary to law" had a broader operation than "not provided by law", and stated that an error of law in the exercise of sentencing discretion means the resulting penalty is contrary to law. Second, notwithstanding the width of the provision, he did not consider the section extended to permit a rehearing on the merits. That would tend to support the limitation placed on the operation of the section by Hunt CJ at CL in Tolmie. The same limitation was held to apply to the section by this Court in R v Smith [2004] NSWCCA 69 at [40] (per Studdert J, McColl JA and Howie J agreeing).
32In R v Finnie (No 2) [2004] NSWCCA 150 Howie J, with whom Spigelman CJ and Dunford J agreed, extensively reviewed the authorities considering the section and agreed that it should be given a liberal interpretation. His Honour reached the following conclusions:
"[31] In my view there has not been disclosed any error of law made by this Court in the sentencing of the respondent which would attract the operation of s 43. It is not a case such as Ho v DPP where the Court failed to take into account a relevant sentencing fact or principle. Nor is it a case where this Court incorrectly applied a relevant sentencing principle or applied a principle later found to have been erroneous. This Court had a discretionary decision to make on the material before it as to when the sentences imposed by it were to commence. Provided that discretion was exercised in a principled way, and there has been no suggestion that it was not, no error of law could arise.
[32] There is no doubt, in my mind, that the section can be engaged as a result of an erroneous finding of fact or an omission to find, or take into account, a relevant fact. As Angel J points out, the section does not use the expression 'error of law'. Further, there is no requirement that any error be identified except in the outcome of the sentencing proceedings. It does not matter whether the sentencing court made a mistake of law or of fact in arriving at a penalty that was contrary to law or in failing to impose a penalty in accordance with the law. It is not difficult to imagine a situation where a sentencer misunderstood or overlooked a fact in evidence before the court and as a result imposed a sentence that fell within the scope of the provision. A not uncommon example would be where the failure to take into account the existence of a particular traffic conviction resulted in the court failing to impose the disqualification period mandated by statute where such a prior conviction exists. Where a relevant error is established, the section is engaged and, at least in so far as the jurisdiction of the court to reopen the sentencing proceedings is concerned, it is unnecessary for the court to determine how the erroneous sentence came about."
33In R v Tangen (Court of Criminal Appeal, 21 June 1996, unreported) Badgery-Parker J, with whom Gleeson CJ and Hidden J agreed, gave the provision a similarly wide interpretation. His Honour also considered that matters which had occurred after the original sentence was passed should be taken into account:
"If it were necessary to choose between the views expressed by the court in Denning, and the possibly more restrictive views of s24 expressed by the President and by Hunt, CJ at CL in Ho and in Tolmie respectively, I would prefer the former which appears to me more readily to accommodate the full purpose of s24. In any event, as counsel for the appellant pointed out, the remarks in both Ho and Tolmie were clearly obiter. This court should, in my view, follow Denning and should, in the words of Grove J. construe the section 'so as to include scope for the fullest relief which fairly can be comprehended within the concept of correction'. That means, in a case such as Denning, where much time has passed between the original sentencing and the re-opening of the sentencing proceedings, that the court must be not only at liberty to, but bound to, have regard to what has transpired in the interim; and, in a case where the delay problem does not intrude, must at least be authorised by the section to amend the sentence, and if necessary entirely to re-sentence, in order to produce that result which the sentencing judge originally intended to be achieved by the sentence which he originally but invalidly imposed."
34It should be noted that in that case there was a concession during the course of argument that the Court could take into account matters which occurred after the original sentence.
35In Erceg v District Court (NSW) [2003] NSWCA 379; (2003) 143 A Crim R 455, McColl JA, with whom Palmer J agreed, stated that the section should be given the widest possible construction. Her Honour stated that in the resentencing process, matters occurring subsequent to the original sentence should be taken into account following Tangen and Denning, in preference to the more restrictive views in Ho and Tolmie: Erceg at [104]-[107]. The third judge, Sheller JA, did not consider the question.
36The section was most recently considered by the Court of Appeal in this State in Meakin v Director of Public Prosecutions [2011] NSWCA 373; (2011) 216 A Crim R 128. In Meakin, it was submitted that a District Court judge erred in refusing to reopen sentencing proceedings under s 43 on the basis that an automatic disqualification period imposed under the Road Transport (General) Act 2005 had not been taken into account. The Court held that there was no error in refusing to reopen in circumstances where the matter had not been raised in the original sentencing proceedings. However, Beazley JA (as her Honour then was) made the following comments concerning s 43:
"[27] Section 43 is a remedial legislative provision and is to be given a broad construction so as to achieve its legislative purpose, namely, the provision of a simple procedure to correct sentencing error: see R v Tolmie [2004] NSWCCA 396; Ho v DPP (1995) 37 NSWLR 393, per Kirby P at 402; Erceg v The District Court of New South Wales & Anor [2003] NSWCA 379; 143 A Crim R 455. See also the Second Reading Speech, where the Minister stated that the object of s 43 was to provide a 'simple procedure to correct sentencing errors' and as a means of 'correcting mistakes of a simple character' (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 21 September 1988 at 1673).
[28] Section s 43 is not concerned with the correction of all sentencing errors. Rather, the section is engaged where there is a sentencing error that falls within the terms of the statute, namely, where the court had imposed a sentence that was 'contrary to law' or where the court had failed to impose a penalty that was required to be imposed by law: see R v Finnie (No 2) [2004] NSWCCA 150. It is the former error that is in issue in this case, that is, whether the sentence relating to the licence disqualification period was imposed 'contrary to law'.
[29] Section 43 is not confined to error in respect of the existence or terms of a statutory provision. It is sufficient that the penalty imposed was contrary to principles of law as expounded in the case law: see Ho per Kirby P at 402-403. See also Staats v The Queen (1998) 123 NTR 16; Melville v The Queen (1999) 150 FLR 296. In Ho Kirby P pointed out at 403, in obiter comments in respect of the Criminal Procedure Act 1986, s 24 (the predecessor provision to s 43), that the phrase 'contrary to law' is wider than the phrase 'imposed a penalty that is not provided by law'. His Honour referred to the common law sentencing principle that where, prior to sentence, a person has spent time in custody in respect of an offence, the trial judge should take the period of pre-sentence custody into account. Ordinarily, credit should be given for the time served. A failure to consider this would be an error of law in the sentencing discretion and the resulting penalty would be 'contrary to law' within the meaning of s 43.
...
[92] A failure to be aware of such statutory provisions may result in a sentence that is manifestly inadequate or excessive. It is a different question as to whether that constitutes a sentencing error that is 'contrary to law' within s 43. In my opinion, that question can be answered fairly readily. As I have discussed, the effect of the authorities is that s 43 looks to the outcome of the proceedings. It is the sentence imposed which must be 'contrary to law'. That is, there must be an error in the sentence imposed with the consequence that some different sentence is required. Thus a sentence that is greater or less than that prescribed will be a sentence imposed that is 'contrary to law'. For example, if a sentence is imposed in respect of a high range PCA, when the offence was a mid or low-range PCA, there will be a sentence imposed that is 'contrary to law'."
37On one view, her Honour in [92] was expressing a somewhat narrow view of the scope of s 43. However, her remarks in that paragraph must be read in conjunction with her earlier comments. Rather than expressing a narrow view, her Honour was focusing on the fact that the provision looks to the outcome of the proceedings and the fact that what needs to be considered is the lawfulness of the sentence as distinct from the process of reasoning on which the sentence was based.
38A number of other cases have recognised that there are limitations on the width of the section. In R v Skaf [2005] NSWCCA 297, the sentencing judge erred in imposing the same sentence for an offence in which the applicant was a principal in the second degree as one which he imposed for an offence in which the applicant was a principal in the first degree. The Court declined to remit the matter to the sentencing judge to correct the error and had reservations as to whether s 43 could be used for that purpose: Skaf at [44].
39In Wise v R [2006] NSWCCA 264, the original sentencing judge fixed the sentence without imposing a non-parole period as required by s 44(1) of the Sentencing Procedure Act for reasons that did not comply with s 45(1) of that Act. Subsequently after a breach for a recognizance, another judge purported to vary the sentence imposed by fixing a non-parole period. It was held that he had no power to do so. Rothman J, with whom Spigelman CJ and Howie J agreed, explained the position in the following terms:
"[14] Further, if the original sentence by Blackmore DCJ was imposed contrary to s.44(1) or s.45(2) of the Crimes (Sentencing Procedure) Act, the provisions of s.43 of that Act would be available to reopen the proceedings and re-sentence according to law: s.43(2)(a). However, Charteris DCJ did not have this power because, as previously stated, the original sentence of Blackmore DCJ purported to give a reason in accordance with the requirements of s.45(2) of the Act. While the reason given was inadequate and not one which would allow a judge not to fix a non-parole period, the sentence was not 'contrary to law' for the purpose of s.43. It was a sentence that suffered from error of law which required correction on appeal, but only on appeal."
This case seems to be the only authority which gives direct support to the narrow construction of the section to which we have referred in [22] above.