THE COURT: On 5 August 2020, in the disposition of an application for leave to appeal against the sentence imposed on Bilal Betka in the District Court on 2 December 2019, this Court made the following orders: [1]
1. The sentence imposed on the applicant in the District Court on 2 December 2019 is quashed.
2. In substitution the sentence imposed is as follows:
1. Imprisonment for 6 years to date from 19 December 2017 with a non-parole period of 3 years and 6 months expiring on 18 December 2021.
On 6 August 2020, the Court was alerted by the Crown to an error in the expiry date for the non-parole period. The Court independently identified what it considered was an error in the commencement date of the sentence.
In exercise of its powers under r 50C(3) of the Criminal Appeal Rules (NSW), the Court resolved to amend the orders it made on 5 August 2020 to correct those errors
Accordingly, the order made on 5 August 2020 was amended to read as follows:
Imprisonment for 6 years to date from 17 December 2017 with a non-parole period of 3 years and 6 months expiring on 16 June 2021.
The judgment was published to the parties on 6 August 2020 (Betka v R; Ghazaoui v R; Hawchar v R (No 2) [2020] NSWCCA 199).
On 20 August 2020, the Crown made a further application pursuant to r 50C(3) of the Criminal Appeal Rules (within time).
The application was limited to what it contended was an error in the commencement date of the sentence.
The application was supported by an affidavit from Mr Cameron McLeod, who identified himself as the Federal Prosecutor with carriage of the matter subject to the direction and control of the Commonwealth Director of Public Prosecutions.
In his affidavit of 20 August 2020, Mr McLeod deposed to receiving a copy of this Court's judgment in Betka v R; Ghazaoui v R; Hawchar v R (No 2) [2020] NSWCCA 199.
On 14 August 2020 Mr McLeod wrote to the Downing Centre District Court Registry and sought a copy of the warrant of committal and the orders made by the sentencing judge. Both documents cite 17 December 2017 as the commencement date for the sentence. It is the Crown's contention that the commencement date in the initial warrant of custody and in the initial orders made by the sentencing judge was "an administrative error" where the actual date of Mr Betka's arrest and remand was 19 December 2017.
Mr McLeod then confirmed with the Senior Federal Prosecutor of his office that on 18 December 2017 she had written to the judge's associate regarding what she had identified as an error in the orders made by the sentencing judge in relation to the commencement date of the sentence.
That error was ultimately corrected by the primary judge after the error was brought to her attention. An email sent by her Honour's associate on 23 December 2019 acknowledged the error and confirmed that it would be corrected when her Honour revised her reasons for sentence on her return from leave on 20 January 2020.
This Court can confirm that her Honour's revised sentencing remarks were included within the appeal papers although the reason for their revision was not the subject of any commentary in the hearing of the appeal. I note that the "administrative error", so-called, was replicated in the sentencing submissions filed by the applicant's counsel on the sentence appeal.
Accordingly, given that the Court's identification of what it described as an "arithmetic error" in the commencement date for the sentence was itself an error (and that the error was accepted by the applicant's legal representatives), and where the Court is otherwise satisfied that it is in the interests of justice that the power to correct that error under the Rules should be exercised, the commencement date for the sentence imposed by this Court on 5 August 2020 should be corrected to reflect the actual date of Mr Betka's arrest and remand in custody, namely 19 December 2017.
The making of that order was delayed and further complicated as a result of an email forwarded by the CDPP to the Court of Criminal Appeal Registrar on 2 November 2020.
In that email the Senior Federal Prosecutor advised that an issue with the sentence imposed by this Court on resentence had been identified by the Commonwealth Parole Office.
That error concerns the application of s 19AD of the Crimes Act 1914 (Cth).
That section requires a sentencing court to take one of a number of statutory options when sentencing a person who is, at the time of sentence, subject to an existing non-parole period in respect of a federal sentence or sentences:
19AD Persons already subject to a non‑parole period
(1) Where:
(a) a non‑parole period (in this section called the existing non‑parole period) has been fixed in respect of a federal sentence or federal sentences; and
(b) while the offender is serving the existing non‑parole period, a court imposes a further federal sentence on the person;
this section applies.
(2) Where this section applies, the court must, after considering the relevant circumstances, including:
(a) the existing non‑parole period; and
(b) the nature and circumstances of the offence or offences concerned; and
(c) the antecedents of the person;
do one of the following things:
(d) make an order confirming the existing non‑parole period;
(e) fix a new single non‑parole period in respect of all federal sentences the person is to serve or complete;
(f) where the court decides that, in the circumstances, a non‑parole period is not appropriate - cancel the existing non‑parole period and decline to fix a new non‑parole period.
(3) Where, under paragraph (2)(e), the court fixes a new single non‑parole period, it:
(a) is to be treated as having superseded the existing non‑parole period; and
(b) must not be such as to allow the person to be released on parole earlier then would have been the case if the further sentence had not been imposed.
(4) Where this section applies, the court must not make a recognizance release order.
(5) Where, under paragraph (2)(f), the court declines to fix a new non‑parole period, the court must:
(a) state its reasons for deciding that a non‑parole period is not appropriate; and
(b) cause the reasons to be entered in the records of the court.
Pursuant to s 19AG(5), those statutory options are limited to the fixing of a single non-parole period in respect of all federal offences that are to be served by an offender where one of the offences is a terrorism offence.
On 20 February 2020, Mr Betka was sentenced by Harrison J to a term of imprisonment of 3 years and 8 months with a non-parole period of 2 years and 9 months for engaging in hostile activity in a foreign country, a terrorism offence contrary to s 119.1(2) of the Criminal Code (Cth). I note that the non-parole period of 2 years and 9 months imposed by his Honour expired on 18 March 2021. His Honour imposed that sentence after the proceedings in the District Court from which the application for leave to appeal against sentence was brought and, accordingly, after the District Court had imposed a sentence of imprisonment of 6 years and 9 months and fixed a non-parole period of 4 years. His Honour's attention was not brought to the need for the sentence he imposed to comply with ss 19AD and 19AG of the Crimes Act (Cth).
Neither was the application of those sections brought to the attention of this Court by the Crown (or the applicant) in the event that the application for leave to appeal from the sentence imposed in the District Court was successful and the issue of resentence presented.
Thus, it would appear that the CDPP remained unaware of the error in the sentence imposed by Harrison J on 20 February 2020, and of the continuing impact of that error, until after Mr Betka was resentenced by this Court on 5 August 2020 and after it handed down its revised judgement amending those orders on 6 August 2020.
After receiving the correspondence from the CDPP alerting the Court to the error and to what it was contended was the Court's obligation under s 19AH to correct the error by setting aside the non-parole period imposed on 5 August 2020 and, in substitution, fixing a single non-parole period taking into account that part of the sentence imposed by Harrison J which included a non-parole period of 2 years and 9 months, the Registrar was asked by the Court to make contact with Mr Betka's legal representatives to alert them to the Crown's application and to seek their views before the Court made any orders for the filing of submissions, if necessary.
Section 19AH of the Crimes Act (Cth) provides:
19AH Failure to fix non‑parole period or make recognizance release order
(1) Where a court fails to fix, or properly to fix, a non‑parole period, or to make, or properly to make, a recognizance release order, under this Act:
(a) that failure does not affect the validity of any sentence imposed on a person; and
(b) the court must, at any time, on application by the Attorney‑General, the Director of Public Prosecutions or the person, by order, set aside any non‑parole period or recognizance release order that was not properly fixed or made and fix a non‑parole period or make a recognizance release order under this Act.
(2) A court shall not, for the purposes of subsection (1), be taken to have failed to fix a non‑parole period in respect of a sentence or sentences in respect of which it has made a recognizance release order or to have failed to make a recognizance release order in respect of a sentence or sentences in respect of which it has fixed a non‑parole period.
(3) Application under subsection (1) to the court that has sentenced a person may be dealt with by that court whether or not it is constituted in the way in which it was constituted when the person was sentenced.
In circumstances where the Registrar was ultimately advised that, as Mr Betka's legal representatives understood the Crown's application, it would not affect the minimum term Mr Betka would spend in custody, but rather that the sentencing order would be recast to impose a single non-parole period of the same length as that comprised in the sentencing order made on resentence (as amended), no further submissions were sought from either party.
Accordingly, in both the exercise of the power under r 50C of the Criminal Appeal Rules in so far as the commencement date of the sentence is concerned and on the Crown's further application in exercise of the power under s 19AH of the Crimes Act (Cth) insofar as the form of order for the making of a non-parole period is concerned, the Court makes the following orders:
The orders made by this Court on 6 August 2020 are set aside and in substitution thereof:
1. Bilal Betka is sentenced to imprisonment for 6 years to date from 19 December 2017.
2. After taking into account the sentence imposed by Harrison J on 20 February 2020, and having regard to the operation of ss 19AD and 19AG of the Crimes Act (Cth), a non-parole period of 3 years and 6 months is imposed, to expire on 18 June 2021.
[2]
Endnote
Betka v R; Ghazaoui v R; Hawchar v R [2020] NSWCCA 191.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 15 June 2021