Dacich v Director of Public Prosecutions

Dacich v Director of Public Prosecutions - [2021] NSWCA 275 - NSWCA 2021 case summary — Zoe

Judgment

THE COURT: On 26 August 2021 the applicant, Clare Margaret Dacich, filed a summons in the supervisory jurisdiction of this Court. The summons sought to set aside "the orders of Colefax SC DCJ made on the 5th of March [2021]". On that date, Judge Colefax heard and determined an appeal against a sentence imposed on the applicant in the Campbelltown Local Court. On 5 February 2021, Magistrate Stewart had sentenced the applicant, who had entered guilty pleas, for three offences of dishonestly obtaining a financial advantage, or causing a disadvantage by deception. The magistrate imposed an aggregate sentence of 18 months and fixed a non-parole period of 10 months. A commencement date was fixed as 2 February 2021.
The summons also referred to a judgment delivered on 18 August 2021 when Judge Colefax declined to reopen his sentencing judgment of 5 March 2021. The summons contained six grounds which failed to identify a jurisdictional error of any kind. On 29 October 2021 the applicant served, but did not file, an amended summons which contained the following three grounds: "1. In dismissing the appeal, the District Court fell into Jurisdictional error by failing to consider alternates to full time imprisonment as required by s 5(1) of the Sentenc[ing] Procedure Act 1999. 2. In refusing the application brought under s 43 of the Sentenc[ing] Procedure Act 1999 the District Court fell into Jurisdictional error by exceeding the Jurisdiction of the Court. 3. Whether in dismissing the appeal on 5 [M]arch 2021, s 20(2) the District Court fell into error, by varying the indicative terms of the sentences imposed s 20(1) in circumstances [where] the appeal had been dismissed and the Court had no power to vary the terms." Grounds 1 and 3 addressed the appeal; ground 2 addressed the reopening application. Ground 2 failed to identify any error at all, and the written submissions did little to clarify the position.
In so far as the applicant sought to review the judgment delivered on 5 March 2021, the proceedings were months out of time. [1] The commencement, within the three month time period for judicial review, of a reopening application under s 43 of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("Sentencing Procedure Act"), even if misconceived, provided a basis for an extension of time. An application was made promptly, then withdrawn, then reinstated on 9 June 2021. In this case, an extension should be granted: there was a timely challenge to the reopening judgment and the extension is not opposed by the Director.
The amended summons, dated 28 October 2021, was prepared by Leigh Johnson Lawyers. It was accompanied by an unexecuted affidavit by Ms Johnson, stating that she was "assisting Ms Dacich on a pro bono basis". She further stated that she had "carriage of this matter on behalf of the applicant." Written submissions prepared by Ms Johnson were attached.
Ms Johnson, however, did not appear on the hearing of the matter and Ms Dacich represented herself. She made oral submissions, but when offered the opportunity to reply to the oral submissions of the Director, Ms Dacich indicated that she had difficulty in doing so because she did not have a copy of the white folder which contained the relevant materials. (She stated that the white folder had been returned by Ms Johnson and was in her property at the prison, but she had been unable to obtain access to it prior to the hearing.) The Director agreed to provide a further copy of the white folder to Ms Dacich and the Court granted Ms Dacich leave to file further written submissions in reply by Friday, 12 November 2021.
On Monday 8 November 2021 Ms Dacich sent a "notice of discontinuance" to the Registrar, accompanied by a letter of explanation. The explanation provided was that Ms Dacich believed, following the hearing on 5 November, that "the District Court is the only court with the power to grant the relief I seek." She foreshadowed a further application in the District Court under s 43 of the Sentencing Procedure Act. The fact that this Court was reserved on her present application was thought to be an obstacle to a further s 43 application in the District Court. The letter also appeared to contain a concession that this Court could not grant the relief she sought, by way of variation of her sentence. The last assumption was correct: at best, the Court would set aside the decision of the District Court refusing her s 43 application. The applicant did not file a written reply by 12 November. From that, together with the acknowledgment in her notice of discontinuance that only the District Court has jurisdiction to grant the relief she seeks, it is inferred that she did not propose to do so.
Absent consent of the Director, it appears the applicant required leave to discontinue. [2] The Director did not consent, but did not oppose leave, leaving the matter in the hands of the Court. In the circumstances, it is appropriate that the proceedings in this Court be dismissed. However, there is an inference to be derived from Ms Dacich's letter, a copy of which was apparently sent to the associate to Judge Colefax, that some statement made by this Court on 5 November opened the way for a further application under s 43. No such statement was made, but it is necessary in the circumstances to explain why the proceedings should be dismissed and, in particular, why there was no jurisdictional error on the part of Judge Colefax in refusing the application the subject of these proceedings.

[4]

Challenge to appeal

Although Judge Colefax carried out the sentencing exercise afresh, gave a greater discount for the pleas than did the magistrate and varied the indicative individual sentences, he imposed the same aggregate sentence as had Stewart LCM. The judge was aware that the sentence commenced before the termination of an earlier sentence imposed in 2019, but extended beyond that date, thus extending the total period of imprisonment. The judge noted in the course of the sentencing that, but for a psychologist's report, he would have held that a longer non-parole period than the 10 months fixed by the magistrate would have been appropriate. As the judge correctly noted, had he taken that view, it would have been necessary to give the applicant a "Parker warning", namely that he was minded to increase part of the sentence, to allow the applicant an opportunity to withdraw her appeal. That did not happen as the sentence was not extended, and the commencement date was also fixed for 2 February 2021 which, as the judge noted, involved an extension of "further leniency" to the applicant who was then serving an earlier unexpired sentence.
The suggestion that in resentencing the judge had no power to vary the indicative sentences is untenable; in any event they form no part of the order made. Ground 3 must be rejected.
Ground 1 complained that the judge had failed to consider whether any penalty other than a full-time custodial sentence was appropriate, in breach of the obligation under s 5(1) of the Sentencing Procedure Act. The ground appears to elide the concept of an alternative to imprisonment dealt with in s 5(1), and consideration of an intensive correction order as a means of serving a sentence of imprisonment. As to the first element (compliance with s 5(1)), the ground should be rejected for three reasons. First, and relevantly to the obligation under s 5(1), s 5(4) expressly states that a sentence is not invalidated by failure to comply with the section. Secondly, because she was in custody at the time there was no possible alternative; and thirdly, her legal representatives (both in the Local Court and in the District Court) conceded that imprisonment was appropriate. On appeal the applicant's lawyer submitted that the period of the sentence imposed should be reduced. [3]
As to the second element, the applicant complained that, in sentencing the applicant on 5 March 2021, the judge had failed to consider whether to permit the sentence to be served by way of an intensive correction order under s 7 of the Sentencing Procedure Act.
Section 7 of the Sentencing Procedure Act does not expressly require the court to make or consider making an intensive correction order. However, where an arguable case for such an order is present and relied on, no doubt the judge should consider it. That was not this case. Section 71(1) requires that an intensive correction order commence on the date on which it is made. The only exception to that requirement is where the person is otherwise serving another sentence of imprisonment by way of intensive correction order. That was not this case. There is no reason to suppose that the judge was obliged to consider the possibility of such an order in circumstances where, at the time it was made, the offender was serving another sentence in custody. Nor was he asked to do so. This basis of challenge was misconceived.
Ground 1 must be rejected.

[5]

Reopening application

The applicant came back before the judge on 6 August 2021, when the judge granted her leave to make an oral application under s 43 of the Sentencing Procedure Act to reopen a sentence which he had imposed almost two years earlier, on 9 September 2019. On 16 August 2021 there was a hearing of that application and the judge gave an interim judgment, but made no orders. The principal purpose of the judgment was to explain why the judge accepted that s 43 of the Sentencing Procedure Act, permitting correction of certain sorts of error on the part of a judge conducting a criminal proceeding, was engaged. There was no reviewable order made on that day: indeed, the only findings made by the judge were favourable to the applicant.
However, significantly for later events, the judge had regard to the possibility that an adjustment to the 2019 sentence could affect the 2021 sentence. The applicant's case in this Court is that if the 2019 sentence were backdated by 23 days the 2021 sentence should also have been backdated. In giving reasons on 16 August 2021, Judge Colefax stated: "In March 2021 I dismissed an appeal against those sentences and my preliminary view is … that although Ms Dacich may have effectively obtained a further 23 days backdate in the sentence imposed originally by Cheetham LCM, it actually will not produce an earlier release date from custody because there is no basis, as I can see it, for backdating at this stage the decision of Stewart LCM."
A further judgment was delivered on 18 August 2021 in the course of which the judge identified the error made in the sentencing which had occurred on 9 September 2019, by which 23 days of pre-sentence custody had not been taken into account in imposing sentence. The effect of taking a further 23 days into account would have been that the non-parole period of the aggregate sentence imposed in September 2019 would have been reduced by that amount and would have been due to expire on 19 August 2021. (The calculation of that date took into account a period during which the applicant had been released from custody pending earlier judicial review proceedings in this Court. [4] )
The judge had some doubt as to whether he had power to vary the date on which the non-parole period would expire, given the intervention of orders made in this Court as to that sentence. However, he made a notation on the file and directed that it be sent to the Commissioner of Corrective Services. The judge then referred to the applicant's request to reopen the sentence imposed on 5 March 2021 for the subsequent offences but declined to do so.
This Court's earlier orders did not vary the 2019 sentence, but merely directed that the sentence should recommence upon the return of the applicant to custody. In any event to vary the period of that sentence would not avail the applicant as, since 2 February 2021, she has been serving the sentence imposed by Stewart LCM on 5 February 2021 and confirmed on appeal on 5 March 2021. The period of concurrency was that which had been referred to by Colefax DCJ in his earlier judgment of 5 March 2021 as an element of leniency.
The substance of the present challenge to the refusal on 18 August 2021 to reopen the judgment given on 5 March 2021, as inferred from the written submissions, was directed to the refusal of the judge to backdate the subsequent sentence so as to start 23 days prior to its actual commencement date on 2 February 2021. This was described in submissions as a failure to consider the "totality" of the effective sentences. It was not correct to say that the judge did not consider the impact of the additional sentence. He expressly adverted on 5 March 2021 to the fact that there was a significant degree of concurrency, which he described as "leniency", and again in his reasons of 16 August 2021, in a passage set out above.
No doubt a further backdating would have been possible, though perhaps surprising in the circumstances of the offending, which occurred while the applicant was at large pending determination of her attempt to review the earlier sentence. Such an additional backdating was certainly not required as a matter of law, the commencement date of the later sentence having been fixed without reference to the length of the term of the earlier sentence then remaining to be served. The judge did not disregard the applicant's submissions in that regard, but stated: "I have not been persuaded by Ms Dacich that, insofar as the second appeal was concerned, there was any factual error sufficient to engage s 43. I shall not therefore reopen what might be referred to as the second appeal."
Even a notional correction of the factual error gave rise to no obligation to adjust the commencement date of the second sentence. The applicant's reliance on this submission as demonstrating error in not reopening the second sentence was misconceived.
The reopening application depended on the engagement of s 43, as the judge appreciated. Section 43 permits the court to reopen a criminal proceeding if the court has "(a) imposed a penalty that is contrary to law, or (b) failed to impose a penalty that is required to be imposed by law". The judge had correctly noted in his judgment of 16 August 2021 that the circumstances in which a sentence may be reopened pursuant to s 43 are quite limited. As the joint reasons in the High Court in Achurch v The Queen [5] observed, "s 43 of the Sentencing Act does not authorise the reopening of proceedings in which a sentence open at law was reached by a process of reasoning involving an error of law." The plurality further noted at [36] that the power was conditioned upon the penalty being "contrary to law". The reasoning continued: "A construction encompassing error in the imposition of a lawful penalty would allow the power to be applied to any penalty, however appropriate, that is imposed under the influence of an error of law or fact. That construction does not fit with the text. Nor does it accord with the limited purpose of the section. … A penalty is not 'contrary to law' only because it is reached by a process of erroneous reasoning or factual error."
With respect to the 2019 sentence, the primary judge found that the power under s 43 was engaged because s 24(a) of the Sentencing Procedure Act obliged the Court to take into account "any time for which the offender has been held in custody in relation to the offence". In fact the relevant period had been taken into account; the error was a misapprehension as to the length of that period. Whether such an error engaged s 43 may be doubted. What is clear, however, is that no such error arose in relation to the second sentence. There was no obligation in fixing the commencement date to take into account the fact that it would overlap with a pre-existing period of imprisonment: indeed, the backdating of that sentence to 2 March 2021, despite the fact that the applicant was then serving an unrelated sentence, the non-parole period for which had not been completed, was, as the judge rightly said, a decision favourable to the applicant.
There was no error in the primary judge declining to reopen the later sentence which had commenced on 2 February 2021. Nor has any basis been identified on which a fresh application could be made. Nothing said by the Court in the course of the hearing was intended to suggest that there was any basis for a further application under s 43 of the Sentencing Procedure Act.

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