Court of Appeal (Vic)|2012-12-07|Before: Mr J, Warren CJ, Weinberg JA

DPP v Edwards [2012] VSCA 293 (7 December 2012)

Director Of Public Prosecutions v Edwards (Unreported, County Court of Victoria, Judge McInerney, 28 March and 23 April 2012)

ADMINISTRATIVE LAW - Nullity - Doctrine of functus officio - Whether sentencing judge functus officio after sentence imposed on 28 March 2012 had passed into record - Whether doctrine applicable where initial sentence affected by jurisdictional error - Whether further sentence imposed on 23 April 2012 invalid by reason of judge having been functus officio - Whether power to reconsider sentence once passed into record - County Court Act 1958 s 36A; Sentencing Act 1991 s 104A; Criminal Procedure Act 2009 s 412 considered - No power to recall sentence - Both sentences imposed invalid - Director's appeal allowed - Community correction order reimposed - R v Billington [1980] VicRp 58; [1980] VR 625; Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597, applied; R v Brattoli [1971] VicRp 55; [1971] VR 446 not followed.

1 The respondent pleaded guilty to one charge of recklessly causing serious injury ('RCSI'). He fell to be sentenced by the County Court. Recent amendments to the Sentencing Act exclude a suspended sentence as a sentencing option for a significant offence.[1] RCSI is a significant offence unless heard and determined summarily.[2] Hence, the County Court could not sentence the respondent to a suspended sentence.

2 Unfortunately, the learned sentencing judge was unaware of this limitation. His Honour purported to sentence the respondent to a suspended sentence. Some weeks later, after the order had passed into the records of the Court, his Honour was informed of the error. He considered that, under s 412 of the Criminal Procedure Act 2009, he had the power to set aside the first sentencing order and impose a new sentence. He purported to do so, re-sentencing the respondent to a Community Correction Order ('CCO').

3 The Director of Public Prosecutions (the 'Director') appealed the second sentence. The original notice of appeal contained two grounds. Ground 1 alleged specific error in the second sentence. Ground 2 alleged that the sentence was manifestly inadequate. During the hearing of the appeal, the Director sought leave to withdraw Ground 1. The Court granted leave.

4 It appears that both parties had assumed that the learned sentencing judge had the power to recall the original sentence and impose a new sentence, as he purported to do. However, at the hearing of the appeal, the Court suggested to the parties that there was at least a serious question as to whether s 412 of the Criminal Procedure Act permitted the sentencing judge to do so. The Court suggested that the learned sentencing judge might have been functus officio. The Court also referred the parties to the decision of the Full Court of the Supreme Court in R v Brattoli.[3] In that case, the Full Court held that if the County Court purports to impose a sentence that is beyond its power, the sentence is a nullity and the County Court can simply revisit the matter and impose a new sentence without relying on any power of amendment.

5 The Director then sought leave to add a new ground of appeal - Ground 3 - that both of the sentences imposed on the respondent were invalid. The Court reserved its decision on the question of leave and directed the parties to file supplementary written submissions on the functus officio issue.

6 In his supplementary written submission, the Director now contends that the sentencing judge was functus officio after the original sentence had passed into the record of the Court. He submits that the second sentence is invalid. The Director maintains that the respondent falls to be resentenced by this Court. The respondent, in his supplementary submission, takes a different position. He contends that the sentencing judge was not functus officio because the first sentence was a nullity.

7 I would grant the Director leave to add Ground 3. The appeal therefore raises the following questions:

2. If not, is the second sentence manifestly inadequate?

8 For reasons that follow, I would answer these questions as follows. The first sentence was an order made by an inferior court in excess of jurisdiction. It was a nullity. The sentencing power remained unexercised and the sentencing judge was not functus officio. His Honour had the power to impose the second sentence. The second sentence is therefore valid and effective until set aside.

9 The second sentence was manifestly inadequate on the facts before the learned sentencing judge. However, on the facts as they stand now, the Court should exercise its discretion to dismiss the appeal.

10 The respondent was arrested on 2 November 2011. He admitted his guilt and entered a plea at the earliest opportunity to RCSI. He spent 15 days in custody.

11 On 28 March 2012 the sentencing judge sentenced the respondent to three years imprisonment, wholly suspended.[4] His Honour noted that '[t]here is no issue as to the need for a sentence of imprisonment'.[5] Rather, the real question was 'whether any of that sentence of imprisonment should be immediate.'[6] The judge applied s 27 of the Sentencing Act 1991 and found that the offence was not a defined serious offence, that there was no need for any proof of exceptional circumstances and given the factors found in the section it was desirable that a suspended sentence be imposed.

12 His Honour did not consider whether this was a 'significant offence'. Since the introduction of the Sentencing Further Amendment Act 2011, an offence of RCSI is classified as a 'significant offence' (unless determined summarily) and therefore one which cannot receive a suspended sentence. The options that would have been realistically available to the judge were: an immediate term of imprisonment, a term of imprisonment of three months or less and a community correction order, or a community correction order imposed with or without a fine.

13 The error was eventually brought to the attention of the learned sentencing judge. His Honour considered that he had the power to re-sentence the respondent pursuant to s 412 of the Criminal Procedure Act 2009, which provides:

For the purposes of correcting any defect or error in substance or in form a court may amend any summons, warrant, plea, judgement or order.

14 On 23 April 2012 the sentencing judge purported to re-sentence the respondent to a three year CCO.

The County Court has no general power to recall and reconsider sentencing orders

15 The general position with respect to the finality of sentencing orders is clear. Once a court has made a sentencing order and the order has passed into the court's records, the court is functus officio. The court cannot reconsider the matter, recall the original order and make a new order. This general position is supported by a long line of authority.[7]

16 This general position is subject to some qualifications, of which three are presently relevant. First, the court may have inherent or implied power to correct some kinds of errors in its orders (the 'slip rule'). Secondly, statute may confer on the court additional power to vary a sentencing order. For example, statute may expand the court's power to correct an error in the original order beyond the type of errors that can be corrected under the court's inherent or implied power to correct errors. Statute may also confer power to vary a sentencing order in other circumstances.[8] Thirdly, if the original sentencing order was made in excess of jurisdiction, it may lack sufficient legal effect to trigger the application of the functus officio doctrine. The existence of this third category is controversial.

17 In this case, the original sentencing order passed into the records of the County Court on the day it was made. The general principle therefore applies, subject to the qualifications. It is also clear that the first qualification did not apply. It follows that unless the second or third qualification applied, the County Court was functus officio. The parties did not suggest otherwise.

18 For reasons that follow, I consider that the third qualification applied and the County Court was not functus officio.

Inferior court orders made in excess of jurisdiction generally lack legal effect

19 There is long line of authority on the issue of legal effectiveness of court orders made in excess of jurisdiction. This line of authority reveals a fundamental distinction between orders made by superior courts and orders made by inferior courts. Superior court orders are valid and effective until set aside, even if made in excess of jurisdiction. Generally, inferior court orders are not.

20 Unfortunately, the parties' supplementary written submissions on the functus officio issue fail to advert to this distinction and also fail to refer to the abundance of authority on this issue. The submissions refer to a handful of criminal cases without attempting to address the question of validity of the original sentence by reference to general principles of administrative law.

21 The Australian authorities dealing with the distinction between superior and inferior court orders are numerous. What follows is a selection of relevant cases showing that shows that the distinction is extremely well-established and continues to find support in recent decisions of the High Court and intermediate appellate courts.

22 As long ago as 1934, in Ex parte Williams,[9] Dixon J held that the sentence subject of the challenge in that case was not a nullity because it was an order made by a superior court:

I am of opinion that it is not possible to challenge upon habeas corpus proceedings the validity of such an order of the Supreme Court as that which increased the prisoner's sentence. That writ cannot be granted when the prisoner is held under an actual order or sentence, unless the Court making the order exceeded its jurisdiction so that the order is a nullity. But the Supreme Court is a superior Court of record having general jurisdiction. It may not be true that such a Court has in all cases an authority to determine its own jurisdiction, which makes it impossible ever to treat its orders as nullities, but it is in this particular instance true that it had authority conclusively to determine the existence of its own jurisdiction, and so, whether it correctly determined it or not, to make an order which was a valid judicial order, and not a mere nullity operating to give no authority to hold the prisoner.[10]

23 The reference to the Supreme Court being a superior court obviously suggests that the position with respect to inferior courts is different.

24 Subsequently, in Pariseinne Basket Shoes Pty Ltd,[11] Dixon J (Evatt and McTiernan JJ agreeing) held that an inferior court order made without jurisdiction was a nullity:

In courts possessing the power, by judicial writ, to restrain inferior tribunals from an excess of jurisdiction, there has ever been a tendency to draw within the scope of the remedy provided by the writ complaints that the inferior court has proceeded with some gross disregard of the forms of law or the principles of justice. But this tendency has been checked again and again, and the clear distinction must be maintained between want of jurisdiction and the manner of its exercise. Where there is a disregard of or failure to observe the conditions, whether procedural or otherwise, which attend the exercise of jurisdiction or govern the determination to be made, the judgment or order may be set aside and avoided by proceedings by way of error, certiorari, or appeal. But, if there be want of jurisdiction, then the matter is coram non judice_. It is as if there were no judge and the proceedings are as nothing. They are void, not voidable_...[12]

25 Then, in Cameron v Cole,[13] Rich J referred to the distinction between inferior and superior courts in discussing the power of a court to recall an order:

First, a court which, after a real trial, has given a valid decision determinative of right, liability or status, has no jurisdiction to recall it whatever mistakes may have been made in facts or law ... Second, if in the course of a purported trial a fundamental irregularity has occurred which prevents it from being a trial at all, the decision of the Court is either void or voidable. It is settled by the highest authority that the decision of a superior court, even if in excess of jurisdiction, is at the worst voidable, and is valid unless and until it is set aside ... I am unable to feel any doubt that the Federal Court of Bankruptcy is a superior court. The language of Lord Greene MR, in Craig v Kanssen, where he says that 'a person who is affected by an order which can properly be described as a nullity is entitled ex debito justitiae to have it set aside,' is correct as an abstract proposition; but since the order before his Lordship was one of a superior court, the expression is somewhat misleading, and his statement that the distinction is 'between proceedings or orders which are nullities and those in respect of which there has been nothing worse than an irregularity' fails, I venture to think with all submission, to meet the actual facts of the case. This is true enough in the case of an inferior court ... but in the case of a superior court the distinction is between irregularities so fundamental as to create an unconditional right, ex debito justitiae, to have the judgment set aside, and non-fundamental irregularities as to which the court has a discretion. Since the case before the Master of the Rolls was one of the former type, although no exception can be taken to his Lordship's actual conclusion, his criterion was, with all deference, somewhat inaptly expressed. If the decision is void (as it may be in the case of an inferior court), the court may proceed to a real trial without any formal setting aside of the void decision ...[14]

26 In the same case, McTiernan J considered that the question of whether an order made by the Federal Court of Bankruptcy was a nullity depended on whether the Court was a superior court:

Where a court is a superior court of record having general jurisdiction it is impossible to treat any of its orders as a nullity. It may determine conclusively its own jurisdiction, and whether the court determines it correctly or not, its order is valid (Ex parte Williams).

The Court of Bankruptcy is an inferior court relatively, but it does not follow that intrinsically it is not a superior court...

The Federal Court of Bankruptcy is not, of course, a superior court of record having general jurisdiction. The Court is created by statute and vested by statute with jurisdiction in bankruptcy. This is a special jurisdiction, and for that reason limited. Its jurisdiction is limited to bankruptcy, but it has substantially all the powers of a superior court of record as to the subject matter of its jurisdiction and its incidents. Though a court of limited jurisdiction, it is a superior court. ...[15]

[A] court with a limited jurisdiction may be a superior court, provided that it possesses and exercises the superior rights, privileges and authorities of those whose functions it has superseded. Where a new court is created by an Act, it may be created as a superior court by express words or by necessary implication ...

In the present case it follows, in my opinion, by necessary implication from the circumstances to which I have referred, that the Federal Court of Bankruptcy is a superior court ... When, therefore, the Federal Court of Bankruptcy has made a sequestration order under the Act, it is not, in my opinion, a nullity, so that, even if it has been irregularly obtained, it operates until it is set aside ...[16]

28 In 2006, these three passages from Cameron v Cole were cited, without apparent disapproval, in the joint judgment of Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ in Berowra Holdings Pty Ltd v Gordon.[17]

29 In Attorney-General (NSW) v Mayas Pty Ltd,[18] McHugh JA held (Hope JA agreeing) that an order of a Magistrate made without jurisdiction was a nullity and could be contravened with impunity:

If an inferior tribunal exercising judicial power has no authority to make an order of the kind in question, the failure to obey it cannot be a contempt. Such an order is a nullity. Any person may disregard it. Different considerations arise, however, if the order is of a kind within the tribunal's power but which was improperly made. In that class of case, the order is good until it is set aside by a superior tribunal. While it exists it must be obeyed.[19]

30 In Pelechowski v Registrar of the NSW Court of Appeal,[20] the joint judgment of Gaudron, Gummow and Callinan JJ quoted the above passage with approval.[21] Their Honours then applied the principle to an injunction purportedly granted by the NSW District Court. They held that the Court had no power to grant the injunction, the order was a nullity and the appellant could not be guilty of contempt by breaching the order. McHugh J, who dissented on the issue of whether the District Court had power to grant the injunction, summarised the position as follows:

A long line of cases establishes that an order made by an inferior court, such as the District Court, will be null and void if that Court did not have jurisdiction to make the order. Those decisions also hold that such an order cannot found a prosecution for contempt.[22]

31 Berowra, to which I have already referred, concerned the effect of s 151C of Workers Compensation Act 1987 (NSW). The section provided that, where it applied, a person was 'not entitled to commence court proceedings for damages' until a certain time period had elapsed. The plaintiff purported to commence proceedings in breach of this section. The defendant admitted liability and took numerous steps in the proceedings without alluding to s 151C. When the defendant first raised the issue of s 151C, the plaintiff purported to accept the defendant's previous offer of compromise which remained open and could not be withdrawn without leave of the Court. In order to overcome acceptance of the offer, the defendant contended that proceedings were a 'nullity'. The High Court rejected this submission. The joint judgment of Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ held that the submission failed to distinguish between superior and inferior courts:

Some attention should be given at the outset to the result which the employer submits must attend the non-compliance by the worker with s 151C. It was said that such proceedings are 'invalid' or a 'nullity'. In Minister for Immigration and Multicultural Affairs v Bhardwaj, three members of this Court pointed out in the context of administrative decisions that such expressions are statements of conclusion which are not necessarily helpful in resolving the rights of parties. Dangers are equally present in the context of proceedings in, and acts and orders of, courts.
In particular, the introduction into s 151C of concepts of 'nullity' and 'invalidity' is misleading because they tend to obscure the distinction between superior courts of record of general jurisdiction and courts of limited jurisdiction. That distinction has been the subject of comment in this Court, although due regard is to be had to the constitutional context. In the case of the superior courts, acts in excess of jurisdiction cannot be characterised as invalid until quashed or set aside on appeal, whereas that is not necessarily true of the latter. Thus, in the majority judgment of Gaudron, Gummow and Callinan JJ in Pelechowski v Registrar, Court of Appeal (NSW), it was decided that, because an order made by an inferior court (in that case the New South Wales District Court) without power to do so was a 'nullity', it could not found a proceeding for contempt. This situation was contrasted to that arising where an order was made within power but improperly, in which case, until set aside by a superior court, the order had to be obeyed.[23]

32 The proceedings in Berowra were commenced in the NSW District Court - an inferior court. However, the joint judgment held that s 151C did not limit the jurisdiction of the Court and that proceedings commenced in breach of s 151C were within the District Court's jurisdiction.[24]

33 In subsequent decisions, the NSW Court of Appeal and Court of Criminal Appeal have regarded Berowra and Pelechowski as authorities for the proposition that an inferior court order made without power is a nullity that does not need to be set aside.

34 Wise v The Queen[25] concerned a purported sentence made by the NSW District Court. The appellant was initially sentenced to a suspended sentence but the sentencing judge did not set a non-parole period. When the appellant breached the conditions of the suspended sentence, Charteris DCJ activated the suspended sentence but purported to vary it by setting a non-parole period. However, the judge did not have the power to vary the suspended sentence. The NSW Court of Appeal (Rothman J, with Spigleman CJ and Howie J agreeing) held, citing Pelechowski, that the new sentence was void and the original sentence remained effective:

Charteris DCJ had no jurisdiction or power to sentence on Count 1, as he purported to do and the order on that Count is void. The District Court of NSW is a court of record, but not a superior court of record; if it makes an order without jurisdiction, the order is void: Pelechowski v Registrar Court of Appeal [1999] HCA 19; (1999) 198 CLR 435. Further, there is no capacity to appeal against the sentence purportedly imposed on this Count by Charteris DCJ because that sentence had or has no effect in law... As a consequence, the original sentence on Count 1 is still extant.

35 Similarly, in Deveigne v Askar,[26] Giles JA (with whom Hodgson JA agreed) cited Pelechowski and Berowra as authorities for the proposition that '[s]trictly an order need not be set aside if truly a nullity, for example if made without power'.[27]

36 In DPP v TY,[28] the Victorian Court of Appeal held that a sentencing order made by the Supreme Court is valid until set aside. In doing so, the Court expressly referred to the Supreme Court's status as a superior court:

It is necessary that a court order imposing sentence be - and be treated as - valid and enforceable unless and until it is set aside (whether after a successful conviction appeal or after a successful sentence appeal). For analogous reasons, an injunction must be obeyed 'to the letter' unless and until it is dissolved or set aside on appeal. Breach of an injunction will be a contempt of court notwithstanding that the injunctive order is later quashed on appeal. The status of court orders - at least those of superior courts - is quite different in this respect from that of administrative decisions. Even a court order which lacks constitutional (and therefore legislative) authority only ceases to have valid operation from the date of quashing.[29]

37 In Appleyard v Walker,[30] the WA Court of Appeal (McLure JA with Pullin and Newnes JJA agreeing) held that an inferior court order made without jurisdiction does not give rise to issue estoppel:

The doctrines of res judicata and issue estoppel do not apply to a decision of an inferior court made without jurisdiction because, unless the statute conferring jurisdiction otherwise provides, the decision is a nullity ... The same is not true of a decision of a superior court of general jurisdiction.[31]

38 It is clear that the principle is not confined to orders made in civil proceedings. Ex parte Williams, Pariseinne Basket Shoes, Wise, and TY all dealt with orders made in criminal proceedings.

39 It follows from these authorities that, at common law, an inferior court order made without jurisdiction is a nullity that lacks legal effectiveness for most, if not all, purposes. The principle applies to any kind of order, including sentencing orders.

40 From a practical and also a policy viewpoint the principle may be thought to be somewhat unsatisfactory. Its undesirable consequences are obvious. It potentially creates uncertainty for parties and other affected persons in the conduct of their affairs in reliance on an order. First, the principle means that an inferior court order is not only liable to be set aside on appeal or judicial review but that it may lack legal effectiveness ab initio. Thus, for example, in a particular instance a person to whom the order is directed may be able to disregard it with impunity. Secondly, the principle may open an inferior court order to collateral challenge outside of the time limits for judicial review.

41 The policy advantages of treating a decision in excess of jurisdiction as a nullity are less obvious for inferior court orders than for administrative decisions. Unlike administrative decision-makers, inferior courts are constituted by judicial officers who these days are almost always legally qualified. These judicial officers generally enjoy significant protections that safeguard their independence, such as tenure. Unlike administrative decision-makers, judicial officers make orders after a relatively rigorous process of judicial decision-making. Further, with administrative decisions, merits review is only available for a subset of decisions specifically designated by the legislature. For other decisions, the strictures of judicial review impose significant limits on the ability of affected parties to challenge the decision. In contrast, inferior court orders may be challenged not only through judicial review but, in most cases, through statutory avenues of appeal which often offer wider grounds of review. These statutory appeal rights impose further discipline on decision-making in inferior courts and provide affected parties with an additional and less technical avenue for challenging a decision.

42 In my view, there is much to be said for the proposition that orderly administration of justice would be enhanced if inferior court orders were valid and effective until set aside. However, the contrary position is firmly entrenched in Australian law. It is recognised in the decisions of the High Court that are binding on this Court. Furthermore, as a matter of comity, it is not possible to disregard the decisions of other intermediate appellate courts.[32] If the position is to be re-considered, it could only be done by the High Court, [33] or possibly by legislative amendment.

43 The common law principle that an inferior court order made in excess of jurisdiction is generally a nullity does not dispose of the issue of whether the learned sentencing judge in this case had power to make the second sentencing order. Further matters remain.

44 There is the matter of whether the original sentence was an order made in excess of jurisdiction. It is abundantly clear that the Sentencing Act requires that a suspended sentence not be imposed in respect of the offence of RCSI when determined as an indictable offence. Thus, the question is prompted: is the failure to comply with this requirement a jurisdictional error or merely an error of law within jurisdiction?

45 In addition, the High Court has not accepted what is sometimes called the 'theory of absolute nullity'.[34] An order made by an inferior court in excess of jurisdiction may have some legal effect for some purposes. Certainly, a statute may give such an order some legal effect, for example by treating it as an order that may be appealed against. Furthermore, despite the sometimes unequivocal language used in the cases to describe the nullity of inferior court orders attended by jurisdictional error, it is at least arguable that the common law may also treat such an order as having some effect.

46 The validity of the second sentencing order the subject of this appeal depends on three questions:

Is it a jurisdictional error for the County Court to make an order suspending a sentence imposed for a 'serious' or 'significant' offence contrary to s 27(2B) of the Sentencing Act?
At common law, does an inferior court order made in excess of jurisdiction have sufficient legal effect to trigger the operation of the

functus officio doctrine and prevent the inferior court from revisiting the matter and making a new order?

If the answer is to the second question is no, did the Parliament alter the common law position to give the purported order sufficient legal effect to attract the operation of the functus officio doctrine?

47 As I have mentioned, during the hearing the Court directed the parties' attention to the decision of the Full Court of this Court in Brattoli. In that case, a County Court judge purported to impose a backdated sentence. The judge had no power to do so. Upon learning of the error, the judge purported to re-sentence the offender to a non-backdated term such that the remaining time to be served remained the same as that which the judge had originally intended (nine months). The Full Court (Winneke CJ, Adam and Newton JJ) held that the first sentence was a nullity, leaving the sentencing power unexercised and entitling the County Court to impose a new sentence:

[I]t was beyond the power of the learned judge to fix the commencing date as he purported to do, that date being prior to the commencement of the sitting in which the sentence was imposed. As that provision was, in our view, an integral and inseverable part of the sentence, the result, in our opinion, is that the whole sentence was invalid as being in excess of the power possessed by the learned judge. That involved, we think, the consequence that the learned judge had not exercised his power to sentence the applicant at that stage, and it follows, we think, that the signing of the first triplicate by the learned judge and the registrar gave no legal effect or validity to a sentence which in itself possessed neither. There was, we think, in those circumstances nothing standing in the way of the learned judge to pronounce judgment upon the conviction returned by the jury. When he brought the applicant back on 26 October 1970, no judgment had in law been pronounced, and, accordingly, he had, we think, power to impose the sentence of nine months' imprisonment.[35]

48 In his supplementary written submission, the Director points out that in Brattoli the sentencing judge's intention did not change. The second order merely implemented the outcome that the sentencing judge sought to achieve with the first order. In contrast, in this case the second sentencing order is entirely different from the first order. The judge here effectively purported to re-exercise the sentencing discretion. The Director appears to contend that this is a ground for distinguishing Brattoli. He submits that the Court should not follow Brattoli 'in this instance'. Having distinguished Brattoli, the Director submits that the Court does not need to decide whether there is scope for the continued application of the principle Brattoli in circumstances where there is a wholly invalid sentence and where the sentence subsequently imposed reflects what was initially intended.

49 In my view, this distinction is not relevant to the Brattoli principle. I accept that there is a sharp difference between a subsequent order that merely implements the intention that the judge failed to implement in the first order and a subsequent order where the judge re-exercises the sentencing discretion afresh. Yet, the reason why the Full Court held in Brattoli that the sentencing judge could make the second order was because the Court considered that the first order was a nullity. Because the first order was a nullity, 'no judgment had in law been pronounced' and there was 'nothing standing in the way' of the judge making a new order.[36] Whether the first order is a nullity depends on the relevant common law principles and statutory provisions. It cannot depend on the individual judge's intention underlying the second order.

50 It may be that the Director is submitting that the Brattoli principle is only a partial exception to functus officio. That is, the first order, though a nullity, has sufficient legal effect to prevent the judge making a second order unless the second order merely implements the original intention behind the first order. The submission may well have policy merit. However, it is not supported by authority and is inconsistent with the logic underlying the Brattoli principle. In my view, to say that an invalid decision has sufficient legal effect to prevent the judge from re-exercising their decision-making power but insufficient effect to prevent him or her from making a new order that implements the original intention would taking the idea of relative nullity too far. It would be an unprincipled and haphazard exception to nullity.

51 Having considered the Director's submission, I conclude that the first sentencing order was attended by jurisdictional error. At common law, an inferior court order attended by jurisdictional error does not attract the operation of the functus officio doctrine. The relevant statutory provisions do not alter the common law position. My reasons follow.

The original sentencing order was attended by jurisdictional error

52 The starting point of the analysis must be the High Court's statement of principle in Craig v South Australia.[37] As the High Court explained in Craig

[a]n inferior court falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist ...[38]

53 The plainest category of jurisdictional error is where 'the inferior court purports to act wholly or partly outside the general area of its jurisdiction in the sense of entertaining a matter or making a decision or order of a kind which wholly or partly lies outside the theoretical limits of its functions and powers'.[39] This case clearly does not fall within this category. The County Court has jurisdiction to hear and determine prosecutions for indictable offences, including RCSI. Further, the County Court generally has power to make suspended sentence orders.

54 A less obvious category of jurisdictional error is where, 'while acting wholly within the general area of its jurisdiction', the inferior court commits jurisdictional error 'by doing something which it lacks authority to do'.[40] Indeed, this is the category that appears to be relevant to this case. The County Court lacked authority to impose a suspended sentence for the offence of RCSI.

55 One of the examples of jurisdictional error within this category that the High Court gave in Craig is apposite. The example is an inferior court purporting to act in circumstances where a pre-condition to its jurisdiction did not exist.[41] Here, s 27(2B) of the Sentencing Act creates a pre-condition to the power to make an order suspending a sentence for an offence. The order can only be made if the offence is a 'serious' or 'significant' offence. That condition was not satisfied in this case.

56 As Dixon J pointed out in Parisienne Basket Shoes, ordinarily, making jurisdiction conditional on the actual existence of a fact would lead to inconvenience because 'the validity of the proceedings and orders [would] always remain an outstanding question until some other court or tribunal, possessing power to determine that question, decides that the requisite state of facts in truth existed and the proceedings of the court were valid'.[42] Hence, in the absence of clear language to the contrary, the legislature is ordinarily presumed to be adopting the more convenient course of making jurisdiction conditional on the court's opinion that the fact exists rather than the actual existence of the fact.[43] However, here the question of whether the offence for which an offender is being sentenced is a 'serious' or 'significant' offence is not a contestable question of fact. Rather, it is a pure question of law that always has a clear and simple answer. The 'serious' and 'significant' offences are listed in the Act. Either the offence for which the offender is being sentenced is listed or it is not. Hence, the rationale behind the presumption does not apply to s 27(2B). In my view the provision makes the power to suspend a sentence conditional on the offence actually not being a 'significant' or 'serious' offence. In any event, the learned sentencing judge did not mistakenly consider that offence for which he was sentencing the respondent was not a 'significant' offence. Rather, as his Honour's reasons make clear, he simply overlooked the fact that a suspended could not be imposed for a 'significant' offence.[44]

57 Another category of jurisdictional error is where an inferior court 'misconstrues [the empowering] statute or other instrument and thereby misconceives ... the extent of its powers in the circumstances of the particular case'.[45] With this category, 'the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern'.[46] This category of jurisdictional error also appears to be applicable. Here, the judge misconceived the extent of his powers by failing to appreciate that he had no power to suspend a sentence of imprisonment imposed in respect of a 'significant' offence.

58 In Craig the High Court also provided examples of errors that would constitute errors of law within jurisdiction for an inferior court. First, errors in identifying relevant issues and formulating relevant questions; secondly, errors in determining what evidence is relevant; and thirdly, taking into account irrelevant considerations or failing to take into account relevant considerations.[47]

59 None of these examples of intra-jurisdictional error arise. Hence, the error in this case is, prima facie, a jurisdictional error.

60 The next matter is the relevant jurisdictional provision of the County Court Act 1958. Section 36A(1) of the Act confers on the County Court jurisdiction 'to inquire into hear and determine and adjudge all indictable offences' except certain offences over which the Supreme Court has exclusive jurisdiction. Section 36A(3) gives the County Court the same powers with respect to indictable offences as the Supreme Court:

Subject to subsection (1) and unless otherwise expressly provided the County Court shall have jurisdiction and powers with respect to indictable offences and the trial thereof as fully and amply to all intents and purposes as the Supreme Court of Victoria in like matters and the general principles of practice and procedure observed for the time being in the Supreme Court of Victoria with respect to the trial or determination of indictable offences shall be adopted and applied in the County Court.

61 The sub-section does not take the matters very far. It has long been understood in Victoria that the County Court is a inferior court.[48] It is also clear that neither the Supreme Court nor the County Court have the power to suspend a sentence of imprisonment for a 'significant' offence contrary to s 27(2B) of the Sentencing Act. The fact that the County Court generally has the same power and procedure as the Supreme Court with respect to indictable offences does not, in my view, bring an order that breaches a statutory prohibition within the jurisdiction of the County Court.

62 Another relevant matter is the fact that the Supreme Court and the County Court have concurrent jurisdiction with respect to RCSI. If failing to comply with s 27(2B) is a jurisdictional error, the legal effectiveness of the order that suspends a sentence of imprisonment for RCSI will depend on the court in which the proceedings are conducted. The order will be a nullity if the proceedings are conducted in the County Court because it is an inferior Court. However, if the proceedings are conducted in the Supreme Court, the order will be effective until set aside. The practical difficulty is self-evident, particularly given that on occasion cases move between the two courts by way of uplift or remitter.

63 A somewhat similar situation existed in Berowra. Section 151C(1) of the Workers Compensation Act 1987 (NSW) provided that a person is 'not entitled to commence court proceedings for damages' until a certain time period had elapsed. It applied to proceedings in both inferior courts and in the Supreme Court. One of the reasons given by the joint judgment for construing 151C(1) as not affecting jurisdiction was that '[i]n construing s 151C, this Court should not prefer a construction which would result in s 151C having differential application depending upon the court in which proceedings were commenced'.[49]

64 However, Berowra was concerned with validity of proceedings rather than orders. The High Court in Berowra considered that it would be anomalous if s 151C rendered a non-compliant proceeding and all steps taken in the proceeding a nullity if the proceeding was commenced in an inferior court but not if it was commenced in the Supreme Court. The plurality noted that ordinarily the commencement of a proceeding engages the jurisdiction of the court. It is then up to the defendant to object to the proceeding if they wish to do so. If the defendant does wish to object, they have to do so through the appropriate avenues prescribed by court rules.[50] Further, the purpose of the section - to encourage settlement - would be impeded if the section nullified non-compliant proceedings.[51] Finally, whether the relevant period has elapsed may not be obvious from the originating process. If s 151C were jurisdictional, the court would be required 'to undertake a jurisdictional inquiry in each case as to whether or not s 151C has been satisfied'. The inquiry 'is likely to be complex'. Undertaking such a jurisdictional inquiry is 'not the usual function which a court (as distinct from an administrative body) performs when called upon to exercise judicial power in a matter which prima facie is within the jurisdiction of the court'.[52]

65 The context of s 27(2B) of the Sentencing Act is quite different. It deals with orders rather than proceedings. With a proceeding, the plaintiff chooses whether, when and in which forum to commence a proceeding. With an order, it is the court that decides what order to make. Further, there is no element of choice for either the court or the parties. A defendant in a civil proceeding may waive a restriction, for example a limitation period. However, the prosecution cannot waive the prohibition imposed by s 27(2B). Further, the inquiry into whether s 27(2B) applies is very simple. And it is clearly an inquiry that the court is required to undertake of its own motion in every case, even if the parties fail to raise s 27(2B). Finally, the desirability of avoiding differential application is not a compelling reason for construing a provision that limits the court's power to make a particular order as non-jurisdictional merely because both inferior and superior courts have jurisdiction with respect to the subject matter. The differential application is simply an inherent consequence of the common law distinction between superior and inferior courts.

66 Another relevant matter is the language in which s 27(2B) is expressed. In Berowra, the High Court considered it relevant that s 151C of the Workers' Compensation Act 1987 (NSW) was 'not addressed as a command to the court but to the litigants'.[53] Here, the prohibition in s 27(2B) is directed to the court:

a court must not make an order suspending the whole or a part of a sentence of imprisonment imposed on an offender for a serious offence or for a significant offence.

67 For these reasons, I consider that the order that purported to suspend the custodial sentence imposed on the respondent for the offence of RCSI is vitiated by jurisdictional error. The suspension order cannot be severed from the order sentencing the respondent to a suspended term of imprisonment. It follows that the entirety of the first sentencing order is vitiated by jurisdictional error.

At common law, inferior court is not functus officio if its order is vitiated by jurisdictional error

68 For reasons that follow, I consider that the common law position is that an inferior court order vitiated by jurisdictional error does not have sufficient legal effect to trigger the application of the functus officio doctrine. That is, at common law, an inferior court does become functus officio by making an order in excess of jurisdiction. This is so for four reasons.

69 First, this view corresponds to the common law position in relation to administrative tribunals and the reasoning underlying that position applies with equal force to inferior courts. In Minister for Immigration and Multicultural Affairs v Bhardwaj,[54] the Immigration Review Tribunal made a decision in the absence of a party because a faxed adjournment request was not brought to the Tribunal member's attention through an administrative oversight. The Tribunal then purported to conduct another hearing and make a fresh decision. The High Court held that the original decision was vitiated by jurisdictional error. The Court held that the Tribunal was not functus officio and was entitled to make the second decision. Gaudron and Gummow JJ reached this conclusion on the basis that the first decision had no legal effect:

There is, in our view, no reason in principle why the general law should treat administrative decisions involving jurisdictional error as binding or having legal effect unless and until set aside. A decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all.

... Once that is accepted, it follows that, if the duty of the decision-maker is to make a decision with respect to a person's rights but, because of jurisdictional error, he or she proceeds to make what is, in law, no decision at all, then, in law, the duty to make a decision remains unperformed. Thus, not only is there no legal impediment under the general law to a decision-maker making such a decision but, as a matter of strict legal principle, he or she is required to do so.[55]

70 McHugh J agreed with Gaudron and Gummow JJ subject to some minor qualifications that are not presently relevant.

71 The reasoning of Hayne J was similar. His Honour held that the relevant question was not whether the Tribunal had power to reconsider its original decision but whether the original purported decision was a 'decision to which legal consequences should be attributed'.[56] His Honour held that the Tribunal was not functus officio because the first purported decision lacked legal effect:

{I]f the decision would be set aside for jurisdictional error, the statutory power given to the Tribunal has not been exercised.[57]

72 In my view, it follows that in Bhardwaj the majority of the High Court decided that, subject to statutory provisions to the contrary, an administrative decision vitiated by jurisdictional error does not have sufficient legal effect to trigger the application of the functus officio doctrine.[58]

73 If there was any doubt about whether the reasoning of Gaudron and Gummow JJ represents the law in Australia, this doubt was dispelled by Plaintiff S157/2002 v Commonwealth[59] where that reasoning was endorsed by a clear majority of the High Court. The joint judgment of Gaudron, McHugh, Gummow, Kirby and Hayne JJ in Plaintiff S157 quoted the judgment of Gaudron and Gummow in Bhardwaj as authority for the proposition that an administrative decision which involves jurisdictional error is 'regarded, in law, as no decision at all'.[60]

74 Further, the reasoning underlying the conclusions of Gaudron and Gummow JJ and Hayne J in Bhardwaj applies to inferior courts as much as it does to administrative tribunals. This is made plain by the reasons of Hayne J, which expressly contrast administrative tribunals with superior courts:

[T]o attribute legal consequences to the [first] decision of the Tribunal because, on its face, it purported to be a decision made under the [Migration] Act, not only begs the question that is presented about its legal consequences, it impermissibly confuses administrative decisions with the particular and peculiar features accorded to decisions of superior courts of record.
In general, judicial orders of superior courts of record are valid until they are set aside on appeal, even if they are made in excess of jurisdiction. By contrast, administrative acts and decisions are subject to challenge in proceedings where the validity of that act or decision is merely an incident in deciding other issues.

75 As with administrative decisions, inferior court orders lack these 'particular and peculiar features' of superior court orders. The distinction drawn by Hayne J therefore places inferior courts orders in the same category as administrative decisions.

76 Secondly, as Pelechowski establishes, the common law position is that a party is free to contravene an inferior court order vitiated by jurisdictional error without committing contempt. It would seem anomalous if the party the subject of the invalid order could disregard it but the court making the order could not.

77 Thirdly, there is nothing anomalous about the proposition that a County Court judge who makes an order beyond jurisdiction is able to correct the matter when a Supreme Court judge could not. It is not that the County Court has some special power to amend orders that the Supreme Court lacks. Rather, it is simply that a County Court order made in excess of jurisdiction lacks the legal effect that the same order would have if made by the Supreme Court. The Supreme Court judge's inability to recall an order beyond jurisdiction once it has passed into the records of the court is a side effect of his or her ability to make legally effective orders in excess of jurisdiction. The situation is perhaps loosely analogous with Parliamentary sovereignty. The legislature's inability to bind itself is not a limitation on power but a side effect of its unlimited power to repeal past Acts.

78 Fourthly, the decision of the Full Court of the Supreme Court in Brattoli is an authority directly on point. I should follow it unless satisfied it is 'manifestly wrong'.[61]

79 The Director's supplementary submissions refer to Jovanovic v The Queen[62] where the ACT Court of Appeal refused to follow Brattoli. The Court of Appeal held that 'the sentencing judge is functus officio' once the sentencing order passed into the records of the record of the court.[63] However, the order the subject of consideration in Jovanovic was made by the ACT Supreme Court - a superior court. Jovanovic makes no reference to inferior court orders or the distinction between superior and inferior courts. Thus, I would not read the statement in Jovanovic as applying to inferior courts. In any event insofar as the statement was intended to so apply, it is obiter. Therefore, Jovanovic does not overcome the stare decisis effect of Brattoli.

80 In light of Bhardwaj and Pelechowski I am not satisfied that Brattoli is plainly wrong. I would therefore follow Brattoli.

81 In summary, for these reasons, I consider that the common law position is that, subject to statutory modification, a decision of an inferior court vitiated by jurisdictional error lacks sufficient legal effect to make the inferior court functus officio.

The common law position is not modified by statute

82 A statute may confer some legal effect on an inferior court order vitiated by jurisdictional error.[64] For example, a statute conferring a right of appeal against an inferior court order may, on proper construction, permit an appeal against an order vitiated by jurisdictional error. Even with administrative decisions, statute may confer some legal effect on a purported decision vitiated by jurisdictional error.[65]

83 In this case, for the reasons that follow, I consider that there is nothing in the relevant statutes - the County Court Act, the Criminal Procedure Act and the Sentencing Act - to modify the common law position. That is, the relevant statutory provisions do not confer additional legal effect on a County Court sentencing order made in excess or jurisdiction so as to trigger the application of the functus officio doctrine.

84 The relevant statutory provisions are s 36A of the County Court Act, s 412 of the Criminal Procedure Act and ss 104 and 104A of the Sentencing Act.

85 I have already considered s 36A of the County Court, which confers criminal jurisdiction on the County Court. It is cast in very general terms. Nothing in the section suggests that it confers additional legal effect on County Court orders beyond jurisdiction.

86 Next is s 412 of the Criminal Procedure Act which gives judges a broadly-expressed power to amend orders:

412. Power to amend when there is a defect or error

For the purpose of correcting any defect or error in substance or in form, a court may amend any summons, warrant, plea, judgment or order.

87 Nothing in s 412 suggests that it is intended to limit the ability of a judge to make a fresh order in place of an original purported order that lacks legal effect. Nor would the provision be otiose if an inferior court that makes a sentencing order in excess of jurisdiction is empowered to make an order without relying on s 412. The section would still have work to do in cases where the error or defect in the original order is non-jurisdictional.

88 The same reasoning applies to the power to amend a sentence contained in s 104A of the Sentencing Act.

89 Finally, there is s 104(1) of the Sentencing Act which empowers the Supreme Court in a judicial review proceeding to resentence the offender if the original sentence imposed by the County Court or the Magistrates' Court was beyond power:

If -

(a) a person has been sentenced (whether at first instance or on appeal) by a court (including the Supreme Court) for an offence; and

(b) if the sentencing court was the County Court or the Magistrates' Court, application is made to the Supreme Court for relief or remedy in the nature of certiorari to remove the proceeding into the Supreme Court; and

(c) the Supreme Court determines that the sentence imposed was beyond the power of the sentencing court or its own power, if it was the sentencing court-

the Supreme Court may, instead of setting aside the conviction, amend the conviction by substituting for the sentence imposed a sentence which the sentencing court had power to impose.

90 The provision contemplates that the Supreme Court may set aside an inferior court sentencing order that was beyond power. It is clear that relief in the nature of certiorari is available to quash a purported decision that lacks legal effect. The availability of certiorari does not give the original purported decision any legal effect beyond making it a valid subject of judicial review proceedings.

91 I acknowledge that my approach to construing the relevant legislation is somewhat inconsistent with the approach of the Full Court of the Supreme Court of Tasmania in Purton v Jackson.[66] The issue in Purton was whether an administrative tribunal - the Resource Management and Planning Appeal Tribunal - was functus officio. The Tribunal originally made a (purported) decision holding that it had no jurisdiction to hear a particular administrative appeal. Subsequently, the Supreme Court held that Tribunal did have jurisdiction. The original (purported) decision was therefore attended by jurisdictional error. Could the Tribunal re-visit the matter and make a fresh decision? The Full Court (Blow J, Crawford CJ and Evans J agreeing) held that it could not.

92 As the starting point, Blow J considered that 'when there is jurisdictional error, the legal and factual consequences of the decision, if any, will depend on the relevant legislation'.[67] This starting point is, of course, consistent with my approach.

93 Justice Blow then examined the relevant legislative context and focused on three matters to justify his conclusion that the first decision had sufficient legal effect to trigger the application of the functus officio principle. First, his Honour noted that parties and other persons plan their affairs in reliance on planning decisions of the Tribunal and that considerable inconvenience would follow if the Tribunal were able to revisit a decision vitiated by jurisdictional error. This made it 'highly desirable that the [T]ribunal should dispose of appeals promptly and conclusively'.[68] Secondly, the relevant statute conferred a right to appeal a decision of the Tribunal but only on a question of law and only within a prescribed time period.[69] Thirdly, the relevant statute also gave the Tribunal a limited power to correct certain kinds of errors in its own decisions.[70]

94 In my view, the first two matters, while relevant, cannot generally be determinative on their own. Both matters were present in Bhardwaj. The administrative decision in Bhardwaj concerned the cancellation of a visa. The inconvenience flowing from the lack of finality of such a decision is obvious and enormous. As for appeal rights, in Bhardwaj the Migration Act conferred a limited right of judicial review of the Tribunal's decision, subject to a time limit. The High Court did not consider these matters to be sufficient to show an intention of the part of the legislature to give a decision vitiated by jurisdictional error sufficient legal effect to prevent the Tribunal from re-visiting the decision.

95 As for the third matter, in my view, the conferral on the tribunal of a limited power to correct errors in its own decision is not relevant unless there is something to indicate that the legislature intended the power to be used to 'correct' purported decisions attended by jurisdictional error. It is irrelevant because it says nothing about the legislature's intention with respect to decisions affected by a jurisdictional error as distinct from an intra-jurisdictional error.

96 It is unnecessary to express any concluded views on the correctness of the decision of Purton. For present purposes it is sufficient to note these differences with the Full Court's approach. Of course, to the extent that the Full Court's approach is inconsistent with the majority's reasoning in Bhardwaj, I am bound to follow Bhardwaj.

97 Ultimately, I am of the view that the applicable statutes do not modify the common law position.

98 It follows from these reasons that the first purported sentencing order was attended by jurisdictional error. It generally lacked legal effect. The sentencing function remained undischarged. The learned sentencing judge was not functus officio and was able to revisit the matter and impose a new sentence.

99 Because I have concluded that the original sentencing order lacked sufficient legal effect to trigger the application of the functus officio doctrine, it is unnecessary to consider whether, had the respondent been sentenced by a superior court, s 412 of the Criminal Procedure Act would have permitted the sentencing judge to recall the original order and resentence the respondent. I will, however, make the following observations.

100 The Court of Appeal has relied on s 412 to amend calculations of pre-sentence detention[71] but the provision has not otherwise been the subject of any judicial scrutiny.[72]

101 The section appears in the 'General' chapter of the Act in a division entitled 'Miscellaneous'. It clearly has general application.

102 The section appears to be broader in scope than the provisions of the Crimes Act 1958 [73] and the Magistrates' Court Act 1989 [74] which it replaced. It exists concurrently (in relation to criminal matters) with the Supreme Court's inherent power to amend orders and judgments (ie the 'slip rule'), ss 104 and 104A of the Sentencing Act 1991 and r 1.14 of the Supreme Court (Criminal Procedure) Rules 2008. The broadest of those sections is s 104A which states:

104A. Power to correct clerical mistakes, etc.

(1) The judge or magistrate who gave judgment or passed sentence, or purported to give judgment or pass sentence, on the trial or hearing of an offence may, on his or her own initiative or on an application made on behalf of the defence or the prosecution, amend the judgment or sentence or purported judgment or sentence if satisfied-

(a) that it contains-

(i) a clerical mistake; or

(ii) an error arising from an accidental slip or omission; or

(iii) a material miscalculation of figures or a material mistake in the description of any person, thing or matter; or

(iv) a defect of form; or

(b) that it fails to deal with a matter that it would have undoubtedly dealt with in accordance with the amendment if the attention of the judge or magistrate had been drawn to it.

103 There is a fourteen day time limit after the sentence is imposed on the use of the power. In DPP v Green[75] the Court of Appeal held that the section

is an obviously useful provision, directed to the avoidance of injustice where error is quickly detected and intended to remove the need for the institution of appeal proceedings to address slips, miscalculations or matters that undoubtedly would have been dealt with by effecting a virtually immediate amendment. [76]

104 In this case, the time limit had expired before the sentencing judge purported to recall the first sentence.

105 The Explanatory Memorandum merely notes in regard to s 412 that it 'ensures that complex appeal and judicial review processes are not needed to correct defects or errors.' A purpose of the Act more generally is 'to clarify, simplify and consolidate the laws relating to criminal procedure in the Magistrates' Court, the County Court and the Supreme Court'. The Second Reading Speech describes the Bill as promoting efficiency, consistency, certainty and flexibility and notes the value of Court time and expense involved in Court appearances.[77]

106 Victoria does not have any provision that expressly states that a court may re-open proceedings or rescind or recall a sentence and remake or amend a sentence if an error of law (such as imposing a penalty that is contrary to law) occurred when the sentence was imposed. Such provisions exist in New South Wales, the Northern Territory, the Australian Capital Territory, Tasmania, Western Australia and Queensland.[78] These provisions (or their predecessors) have been given a broad interpretation[79] and relied upon to consider or amend a wide variety of errors such as: mistaking the maximum penalty,[80] wrongly calculating pre-sentence detention,[81] wrongly assessing a factor as aggravating and failing to properly exercise the sentencing discretion.[82] They were also considered in circumstances where if the true facts had been known a different sentence must have been imposed[83] and to (slightly) reduce a non-parole period to give effect to a judge's intention that the offender serve their sentence as a juvenile offender.[84]

107 An error of law appears to encompass both statute and common law.[85] The sections do not appear to be so broad as to be engaged merely where a sentencing judge has changed his or her mind.[86]

108 The Court of Appeal of NSW, after considering the NSW Act and its background material, has concluded that:

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 ... [87]

109 In contrast to s 412, each of those sections expressly provide that a new hearing on sentence must be held before the offender may be re-sentenced.

110 Save for these observations I say nothing more.

The second sentence was manifestly inadequate

111 I now turn to the remaining ground of appeal - that the second sentence is manifestly inadequate. For reasons that follow, I consider that this ground is made out.

112 The circumstances of the offence are as follows. The victim, Kevin Nugara, was a friend of the respondent. On 28 October 2011 Mr Nugara was spending the evening at a pool hall with his girlfriend, Casey McHale. The respondent and his girlfriend were also there. During the course of the evening the respondent had apparently consumed five to seven beers and was, in his own words, 'a bit drunk'. At some point during the night the respondent got into an argument with his girlfriend and Ms McHale, who were dancing together. Ms McHale complained to hotel security. According to the respondent's police interview, security guards then escorted him outside where he met Mr Nugara, who was standing outside the pool hall, waiting for Ms McHale. The respondent approached Mr Nugara and, according to the police interview, discussed the earlier incident. He told Mr Nugara that his girlfriend 'shouldn't get involved in other people's relationships'. The respondent claimed to the police that at that point he was unsure whether he was going to hit Mr Nugara or Mr Nugara was going to hit him. However, what happened was that the respondent punched Mr Nugara with his right arm, hitting him with a clenched fist to the head. Mr Nugara fell to the ground unconscious, striking his head on the concrete pavement. The respondent then ran from the scene to avoid apprehension, leaving Mr Nugara unconscious on the pavement. The assault was captured on CCTV.

113 Mr Nugara initially sustained a fractured skull and brain haemorrhaging. Following emergency surgery, he remained in an induced coma for two weeks. Mr Nugara underwent two further surgeries, one of them as a result of a serious infection. His injuries are very serious and ongoing. Their full extent is still unknown. They include a fractured neck and skull and severe brain injury causing a degree of paralysis to the right side of the body, deafness in the right ear, loss of taste and impairment of smell.

114 The respondent was arrested a few days later, on 2 November 2011. He admitted his guilt and pleaded guilty to RCSI at the earliest opportunity.

115 The respondent' personal circumstances are as follows. He was 23 at the time of the offending and 24 at the time of sentence. He is an indigenous Australian. He had a deprived, dysfunctional and abusive childhood. His brother was murdered in 2005 when the respondent was 17. The respondent then started drinking and now has a history of alcohol abuse. He has mild to moderate cognitive deficits, probably due to head trauma. He is essentially illiterate. He has no relevant past convictions. The learned sentencing judge found that this offence was out of character and that the respondent has demonstrated genuine remorse. For the last four to five years the respondent has been in a relationship with a young indigenous woman, Ms Morgan. Ms Morgan is currently pregnant and is due to give birth in February next year. The respondent also has another child from a previous relationship.

116 In the second sentence the sentencing judge sentenced the respondent to a CCO for three years. In addition to mandatory conditions,[88] his Honour imposed the following additional conditions:

200 hours of unpaid community work.
Supervision by a Community Corrections Officer.
Assessment and treatment (including testing) for alcohol abuse or dependency as directed by the Regional Manager.
Assessment and treatment (including testing) at a residential facility for withdrawal from or rehabilitation for alcohol or drug abuse or dependency as directed by the Regional Manager.
Mental health assessment and treatment including (but not limited to) mental health, psychological, neuro-pathological and psychiatric, in a hospital or residential facility as directed by the Regional Manager.
Programs or courses aimed at addressing factoring relating to the offending as directed by the Regional Manager.

117 The Director consistently asked for a sentence of immediate imprisonment during both of the sentencing hearings. The Director now appeals the sentence on the grounds that it was manifestly inadequate. In sum, the Director contends that the sentence imposed fails to provide an appropriate level of punishment given the nature of the offender's actions, their results, and the nature of the offence. He also contends that the sentencing judge gave too much weight to mitigating factors.

118 The respondent relies on the following matters:

When he hit the victim, he did not foresee the likelihood of the extent of the injuries that were actually sustained by the victim.
He pleaded guilty at the first reasonable opportunity and showed genuine remorse.
He had no prior convictions for violent offences.
The offence was out of character.
He had a deprived and dysfunctional upbringing, has borderline ranges of general intellectual functioning and may have an acquired brain injury.
He was a relatively young offender.
He would find any custodial sentence very difficult; a custodial sentence is likely to impact him adversely.
He has demonstrated insight into the adverse effects of his drug and alcohol abuse and, at the time of the plea, had been sober for the two months.
A non-custodial sentence would maximise his chances of rehabilitation.
His intoxication at the time of the offence was a mitigating factor in light of his personal circumstances and background.
He had served 15 days of pre-sentence detention.

119 I accept matters 2-10. With respect to foreseeability, the respondent emphasised the following observations of the judge:

Hence there is no doubt, and there was no gainsaying by your counsel, Mr Edwards, that we are dealing here with a very serious injury that you have caused. Although I am sure there was no formal thought process by you at the time of causing an injury such as this, clearly by your plea a potential consequence of punching someone forcefully is that landing on the ground, in the matter which apparently occurred here, further injury may be caused.

120 In my view, the observations of his Honour should not be taken as expressing the view that the respondent did not foresee the consequences of his conduct. Rather, as the second half of his Honour's remark makes clear, by pleading guilty to RCSI the respondent accepts that he foresaw the obvious - that punching someone forcefully could lead not just to the injury immediately caused by the punch but to further injuries if the victim hit the ground. While the judge did not clarify the scope of these potential further injuries, it is obvious that they would include serious brain and spinal injuries.

121 As for pre-sentence detention, 15 days of detention is much too short a period, in the circumstance of an offence as serious as this, to be a significant matter.

122 Next, the respondent submits that making a CCO is 'not a mere exercise in leniency'. A CCO is clearly not a substitute for imprisonment in cases where imprisonment is necessary to achieve the statutory purposes of sentencing. This is clear from ss 5(4), 5(4B) and 5(5), which, in combination, stipulate that a court must not impose a sentence that involves the confinement of the offender if it considers that the sentencing purposes can be achieved with a CCO. This accords with Parliament's stated intention explained in the second reading speech for the Sentencing Amendment (Community Correction Reform) Act 2011:

The government recognises that jailing an offender is the most serious punishment available. There must be a flexible and practical approach to community-based sentencing that can be tailored to suit the very wide range of offending which, while serious, does not warrant a sentence of imprisonment.[89]

123 A CCO is a substantially less severe form of punishment than a suspended sentence. This is clear from s 44 of the Sentencing Act which provides that a CCO can be combined with a sentence of imprisonment only if the sentence is three months or less. What makes a CCO less severe than a suspended sentence is the difference in the consequences of breach. As with a suspended sentence, an offender who breaches a CCO commits a new separate offence carrying a maximum penalty of three months' imprisonment.[90] However, if a suspended sentence is breached, the court is also required to activate the sentence held in suspension unless there are exceptional circumstances.[91] In contrast, with a CCO, the court has a discretion to keep the CCO on foot, vary it, cancel it and resentence the offender or even cancel the CCO and make no further order with respect to the offence.[92] It follows that, unlike a suspended sentence, a CCO does not carry with it a powerful threat of immediate imprisonment for a term known in advance. Nonetheless, the individual is aware that upon breach the sentencing discretion is fully re-opened. In a matter of serious violence the individual faces a very real prospect of a stern custodial sentence.

124 Finally, the respondent submits that the sentencing judge rightly gave rehabilitation greater weight than deterrence and punishment due his youth. In my view, the respondent's relative youth cannot be the dominant factor in this case. As Batt JA explained in DPP v Lawrence,[93] with serious violent offences, 'the offender's youthfulness and rehabilitation, achieved and prospective, whilst not irrelevant in the instinctive synthesis which the sentencing judge must make, were of much less significance than they would have been with a less serious offence'.[94] Youth 'must be subjugated to other considerations' and 'take a "back seat"' to specific and general deterrence where crimes of wanton and unprovoked viciousness ... are involved'.[95] While Batt JA was referring to the offence of intentionally causing serious injury, the same principle applies, in my view, to serious instances of the offence of RCSI.

125 As the Director points out, RCSI is a serious offence carrying a substantial maximum penalty of 15 years' imprisonment. Parliament has specifically singled out this offence for its seriousness by providing that a sentence of imprisonment imposed for the offence cannot be suspended. The respondent's offence was a serious case of RCSI. Mr Nugara was left with dreadful and debilitating injuries that are at least long-term, if not permanent. The offence has had a devastating impact on the victim's life, making it, in Mr Nugara's own words, 'almost too hard to cope with'.[96]

126 In R v Wyley,[97] the offender had king hit the victim, knocking him to the ground. Kellam JA (with whom Maxwell P agreed) quoted with approval the following passage from the reasons of the learned sentencing judge:

Although the rehabilitation of a young man is important to weigh up in the sentencing process and whilst I accept that you do have prospects for rehabilitation, particularly now that you have the responsibility of a young son, nonetheless general deterrence and denunciation remain important considerations. The message must surely be heard loudly and clearly that this type of mindless violence and aggression will not be tolerated by the courts. Young men must realise that drinking too much alcohol does not excuse physical violence and that the moment of senseless aggression, such as that in which you engaged on this occasion, has the potential to lead to a substantial time in prison. To impose a suspended sentence would in my judgement, fail to give appropriate weight to the principles of general deterrence and denunciation, balancing and weighing up the matters to which I have referred.[98]

127 Kellam JA added that the 'regrettable fact is that gratuitous violence by drunk and aggressive young men in our streets at early hours is prevalent and the cause of grave harm on many occasions'.[99] These remarks are apposite to this case.

128 In my view, it was not open to the learned judge to sentence the respondent to a CCO. The manifest inadequacy ground is made out.

129 While I consider that the second sentence was manifestly inadequate, that is not the end of the inquiry. Under s 289 of the Criminal Procedure Act, in order to succeed in an appeal against sentence the Director must show not only that 'there is an error in the sentence first imposed' but also that 'a different sentence should be imposed'. A sentence that was manifestly inadequate on the facts as they existed at the time may be appropriate on the facts as they exist at the time the appeal is determined.[100] Further, in determining whether 'a different sentence should be imposed' the Court retains a residual discretion to dismiss a Director's appeal.[101]

130 In my view, looking at the facts as they exist today, the Court should exercise its residual discretion to dismiss the appeal. This is so for three reasons.

131 First, it is clear that the respondent has made the most of the opportunity presented to him and has worked hard on his rehabilitation, to great effect. Since being sentenced on 23 April 2012, the respondent has been complying with the CCO and regularly reporting to the Corrections Centre. He has not committed any offence, although he has been sentenced to a fine for an offence that predated the offence subject of this appeal. According to a progress report from the Wulgunggo Ngalu Learning Place,[102] a drug and alcohol free residential program for Aboriginal men on CCOs, the respondent stayed there for 107 days. He was motivated and engaged, participated in all programs and activities and was committed to working hard in reducing his community hours. Since leaving the Learning Place the respondent has only been drinking in moderation. He has also been seeing a counsellor about distancing himself from his negative peers, discussing strategies to avoid alcohol and manage conflict and to understand his family problems and what makes him relapse.[103] He has 105 hours of community work left to do under the CCO. He is currently performing unpaid community work at 'Men's Gathering Place' (an indigenous group) in Preston.

132 As this Court explained in Karazisis, '[w]hen an offender is given a non-custodial sentence and has complied with its terms for a significant period, there may be powerful reasons why that sentence should not be disturbed'.[104] The rehabilitation of the respondent thus far provides such powerful reason.

133 Secondly, the Crown appeal incarceration principle applies.[105] As this Court explained in DPP (Cth) v Gregory:[106]

This Court has always been hesitant to return to custody someone who has already been granted their liberty. That hesitation is founded upon a number of principles. Amongst other things, returning an offender to custody can damage public confidence in the justice system, and interrupts the process of rehabilitation and reintegration an offender will have begun upon their release. It places such an offender in the period between their release and the hearing and disposition of the Crown's appeal in a state of limbo and uncertainty which is, generally speaking, and except in unusual or egregious cases, inimical to the proper administration of justice, and which is also inimical to their successful re-integration into the community.[107]

134 Similarly, the High Court has held that the effect of re-sentencing on progress towards an offender's rehabilitation is a circumstance that may produce an injustice and is relevant to the Court's residual discretion to dismiss a Crown appeal. 'The guidance afforded to sentencing judges by allowing the appeal should not come at too high a cost in terms of justice to the individual.'[108]

135 Thirdly, while a CCO is a significantly less severe sentencing option than a custodial sentence, it should not be seen as a 'soft' sentencing option. A CCO imposes significant burdens on the offender. All CCOs require the offender not to commit any offences punishable by imprisonment, comply with reporting requirements, obey the directions of the Secretary to the Department of Justice and remain in Victoria unless given permission to leave by the Secretary.[109] In the respondent's case, he is also required to undergo an intensive treatment program and perform community work and comply with reporting requirements. If he breaches any of these conditions, he can be re-sentenced for the original offence of RCSI possibly facing a term of imprisonment up to a maximum of 15 years.

136 There is an additional matter not raised by the respondent which is relevant. Due to difficulties within the criminal justice system the respondent, though no fault or omission by him, has experienced a sentencing merry-go-round. Initially, between the time of arrest on 2 November 2011 and the time of the first sentence, he would have experienced the fear and trepidation of a prison sentence. Then on 28 March 2012 he was informed by the sentencing judge he was sentenced to a custodial sentence, wholly suspended. Next, the respondent was effectively recalled to court. He doubtlessly would have feared what would happen following the judge's error. The respondent then learnt of the sentence of a CCO on 23 April 2012. Next, he learnt of the Director's appeal and must have pondered, up until our judgment, the possibility of a custodial sentence being imposed by this Court. The experience of the respondent in these circumstances falls beyond mere double jeopardy. The criminal justice system has imposed a level of apprehension and anxiety that in his circumstances would constitute a punishment in itself. It is most regrettable that none of the judge, the prosecutor and defence counsel were alive to the applicable provisions of the Sentencing Act at the time of the plea or, at least, the sentence. It is counsel's obligation to inform a judge on sentence of the current, applicable statutory provisions. As a rule, it is not difficult.

137 In any event, whilst the respondent's experiences and circumstances have caused him injustice, this is an unfortunate but not an overriding factor. As matters played out, the respondent has been given a merciful sentence, wrongly, when in all likelihood he would have faced an immediate prison sentence. The reality is that the error in the criminal justice system has operated to his benefit. He has had the opportunity to undergo rehabilitation which has changed his circumstances from those at the time of the plea.

138 For these reasons, I consider that no different sentence should be imposed.

The Director has failed to make out the second limb of s 289(1) of the Criminal Procedure Act. I would grant leave to add Ground 3 but would dismiss the appeal.

139 This appeal raises for consideration a matter of some importance in the administration of criminal justice. Can a judge who has imposed a sentence that is clearly beyond power, but which has passed into record, have the matter brought back before him, and thereby correct what he had earlier done? Or, is the judge functus officio at that point, meaning that the error can only be corrected on appeal?

140 We have had the considerable advantage of reading in draft the reasons for judgment prepared by Warren CJ. Her Honour's detailed account of the background facts, and her discussion of the relevant legislative provisions, and a number of the main authorities, relieves us of much of the task of dealing with that material.

141 It is sufficient for present purposes to note simply that on 28 March 2012, the respondent was sentenced, in the County Court at Melbourne, to a term of imprisonment that was wholly suspended. That sentence was entered into the record on the same day. Subsequently, his Honour recognised that there was a problem with the sentence that he had imposed. As a result of legislation that had come into force earlier this year,[110] his Honour had no power to suspend the term of imprisonment that he imposed.

142 On 23 April 2012, the matter was mentioned before his Honour. Having heard from the parties, he purported to vacate his earlier sentence pursuant to s 412 of the Criminal Procedure Act 2009, and substituted a community correction order for the term of imprisonment previously imposed.

143 On 21 May 2012, the Director of Public Prosecutions, being dissatisfied with that second disposition, filed a Notice of Appeal against that community correction order. The grounds upon which the Director relied were that the sentence was manifestly inadequate, failed to have sufficient regard to the purpose of and the policy underpinning the Sentencing Amendment (Community Correction Reform) Act 2011, and failed to give effect to the 'hierarchy' of sentences set out in the Sentencing Act 1991.

144 The Court itself raised with the Director, during the course of oral submissions, the question whether the sentencing judge had been functus officio at the time when he purported to substitute a community correction order for the earlier sentence. Having reflected upon that question, the Director adopted that suggestion, and then sought leave to add a ground of appeal.

145 In the Director's proposed additional ground, he sought, for the first time, to challenge not only the community correction order, but also the earlier suspended sentence. He indicated that he now sought to appeal against the first sentence on the basis that the judge had no power to suspend any part of the term of imprisonment that he imposed, a proposition that is beyond argument. His challenge to the second sentence, however, was no longer based upon it having been manifestly inadequate or contrary to the principles set out in the Sentencing Act 1991. Rather, he now sought to contend that the judge was functus officio when he purported to impose that sentence. Accordingly, the Director submitted, that second sentence was a nullity.

146 There is a problem for the Director if his proposed additional ground of appeal states the law correctly. The only sentence that he initially challenged, in his appeal, was the second sentence. His Notice of Appeal was, as we have said, filed on 21 May 2012, some 28 days after that second sentence was imposed. Section 288 of the Criminal Procedure Act 2009 provides that Crown appeals against sentence must be filed within 28 days. Therefore, the Director, not having filed his appeal against the first sentence within that period, cannot now, without an extension of time,[111] maintain a challenge against that sentence. That is so even if, as is plain, that first sentence was invalid.

147 The respondent accepts that the first sentence was invalid. However, he submits that the judge was not functus officio when he came to pass the second sentence. That is because, so the respondent says, the first sentence was itself a nullity. Accordingly, the judge was perfectly entitled, and indeed bound, to complete the sentencing process. He was entirely justified in having the respondent brought back before him so that he could be sentenced in a lawful manner.

148 In his further written submissions in support of his application for leave to add a ground of appeal, the Director canvassed, and rejected, several 'possible source[s] of power' which might conceivably have supported the imposition of the 23 April 2012 sentence.

149 First, the Director raised the possibility of that sentence being supported by either s 104A of the Sentencing Act 1991 or s 412 of the Criminal Procedure Act 2009. With respect to the former, the Director noted that it had not been invoked in this case, and was subject to a time limit of 14 days. By the time the matter came to the judge's attention, that time had expired. As regards the latter, the Director noted that in DPP v Dickson,[112] Maxwell P, with whom Buchanan and Weinberg JJA agreed, stated that s 360 of the Criminal Procedure Act 2009 (now s 412) provides no basis for an application to a judge to 'recall - and vary - a sentence'.[113]

150 The balance of the Director's further submissions related to the significance of the decision of the Full Court in R v Brattoli.[114] In that case, the appellant had been convicted in October 1970, and the trial judge (a judge of the County Court) purported to backdate the term of imprisonment to July of that year. Clearly, his Honour had no power to do so. Nonetheless, by the time the matter came back before him so that the error could be rectified, the original orders had been made 'in triplicate' (in other words, entered into the formal record of the Court). A second set of orders was then entered into the formal record.

151 The Full Court (Winneke CJ, Adam and Newton JJ) said:

[I]t was beyond the power of the learned judge to fix the commencing date as he purported to do, that date being prior to the commencement of the sitting in which the sentence was imposed. As that provision was, in our view, an integral and inseverable part of the sentence, the result, in our opinion, is that the whole sentence was invalid as being in excess of the power possessed by the learned judge. That involved, we think, the consequence that the learned judge had not exercised his power to sentence the applicant at that stage, and it follows, we think, that the signing of the first triplicate by the learned judge and the registrar gave no legal effect or validly to a sentence which in itself possessed neither. There was, we think, in those circumstances nothing standing in the way of the learned judge to pronounce judgment upon the conviction returned by the jury. When he brought the applicant back on 26 October 1970, no judgment had in law been pronounced, and, accordingly, he had, we think, power to impose the sentence of nine months' imprisonment.[115]

152 The Director submitted that Brattoli was inconsistent with a later decision of the Full Federal Court in R v Jovanovic,[116] and that Jovanovic should be preferred. He further submitted that Brattoli should no longer be followed given that it has the potential to create significant uncertainty. That uncertainty was said to derive from the possibility that a sentence may be found to have been imposed without power months or even years after it was initially passed. In such circumstances, the judge would have to exercise the sentencing discretion afresh, even if no appeal had been brought from the initial sentence.

153 Finally, the Director submitted that his 'preferred position' was that in circumstances such as arose in the present case, the sentencing judge should be regarded as functus officio once the sentence had been entered into the record. As a result, it was said that the sentencing judge had no power to impose the 23 April 2012 sentence.

154 The respondent filed further written submissions in relation to the question whether the sentencing judge was functus officio when he purported to pass the 23 April 2012 sentence.

155 In short, the respondent submitted that Brattoli was correctly decided, and that it should be followed. Further, there was no basis for distinguishing Brattoli in the circumstances of this case. Therefore, the sentence imposed on 23 April 2012 was a valid sentence. Accordingly, the respondent submitted that the Director's proposed ground must fail, and that leave to add that ground should be refused.

DPP v Edwards [2012] VSCA 293

At a glance

Court

Decision date

Before

Source

Judgment (470 paragraphs)

DPP v Edwards [2012] VSCA 293 (7 December 2012)

Parties

Legislation Cited (15)

Cases Cited (41)