DPP v Green [2007] VSCA 231

2 On 29 November 2006 the respondent was arrested and charged with a number of offences. He was remanded in custody and appeared at the Ballarat Magistrates' Court on 23 March 2007. On that day, he was convicted of a number of offences and sentenced to a total effective period of nine months' imprisonment. An endorsement on the court extract notes that the 115 days pre-sentence detention that he had undergone to that time, was not to be reckoned as a period of imprisonment already served under the sentence. Why this latter decision was made has never become clear.

3 An appeal against the sentence was instituted, but prior to the hearing of that matter, the respondent appeared before the County Court at Ballarat, on 16 May 2007, in relation to the offences presently under consideration. He was then sentenced on one count of burglary to 12 months' imprisonment and on a count of theft to four months' imprisonment. As there was no order for cumulation made, this created a total effective sentence of 12 months' imprisonment, nine months of which his Honour directed was to be served concurrently with the previously imposed Magistrates' Court sentence. That order could not have been given full effect as there was only seven months of the earlier sentence remaining to be served at that stage.

4 The matter was brought back before the judge, on 18 May 2007, when it was pointed out that the effect of the sentence he had handed down was different to that which it was understood was contemplated by him. He was informed about the 115 days of detention prior to the imposition of sentence in the Magistrates' Court and that his order for concurrency could not operate as he had intended. He indicated to the parties that, in order to give effect to his initial sentencing intention, he considered that the proper course to be adopted was to amend the sentence handed down two days earlier, by reducing the sentence for the burglary offence to seven months to be served concurrently with and expiring at the same time as that imposed in the Magistrates' Court. The result would be that the respondent would serve the nine months sentence imposed on 23 March 2007 and the additional period of 115 days, of which his Honour had not been earlier informed, thereby effectively implementing his intention when sentence was handed down on 16 May 2007. It appears from the transcript that this was regarded by both the prosecution and defence as the simplest way of rectifying the position and the judge made orders to that effect.

5 The Director of Public Prosecutions has appealed against the sentence imposed on 18 May 2007 on the basis that it was not a valid sentence and therefore should be regarded as a nullity. It was not submitted that this Honour's disposition of the matter resulted in a sentence that was manifestly inadequate or that this Court should not give effect to his intentions or that he was urged to do other than he did. The question that has arisen, it was said, was whether or not the judge was empowered, either on the basis of the application of common law principles or by s 104A of the Sentencing Act 1991, to vary the order he had earlier made. It was contended in the written submissions provided to the Court on behalf of the Director that the transcript of the proceeding before his Honour, on 18 May 2007, revealed that he did not merely correct his previous orders, but re-considered the sentence and imposed a different one. Such re-consideration, and re-sentencing, the argument proceeded, would fall outside the scope of s 104A and it was arguable that his Honour was functus officio at common law.

6 Section 104A relevantly reads:**

(1) The judge ... 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 -

(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

(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 ... had been drawn to it.

(2) The power conferred by subsection (1) on a judge ... may be exercised at any time up until the end of the fourteenth day after the judgment was given or purportedly given or the sentence was passed or purportedly passed.

(a) any power possessed by a judge ... under statute or at common law; or

(b) any right to appeal against, or to seek leave to appeal against or a review of, a judgment or sentence that any party to a criminal proceeding otherwise has.

**7 The sentencing judge, in a letter to the Court dated 20 September 2007, has reported that he first became aware, on 18 May 2007, that the respondent had been in custody between 28 or 29 November 2006 and 23 March 2007. He was unable to ascertain the reason for this period of detention, and importantly, whether it was pre-sentence detention in respect of the matters before him. He stated that, when he imposed sentence two days earlier, it was his intention that the respondent would serve a further period of three months' imprisonment to that imposed by the Magistrate. His Honour made clear that, had he been advised before he sentenced the respondent, on 16 May 2007, he had served a period in custody between November 2006 and March 2007, he would have imposed the sentence handed down by him on 18 May 2007. When he ascertained the situation, he decided that the only way in which he could achieve his objective, that the respondent serve three months in addition to that imposed under the Magistrate's order, was to amend the sentence, exercising the power that he believed he had under s 104A (1)(b) of the Sentencing Act.

8 On one view of this matter, the situation is extremely complex. Doubt has been expressed concerning whether the Director of Public Prosecutions has a right of appeal under s 567A of the Crimes Act 1958 in such circumstances or whether the proper procedure is to seek an order in the nature of a prerogative writ. Issues have arisen with respect to the interpretation of s 104A of the Sentencing Act, whether some residuum of common law power remains that would enable a sentencing judge to act in such circumstances or whether he would be functus officio. However, the Court formed the view that at its heart, although seemingly complicated, the situation is really quite simple. After the imposition of sentence, the judge was informed of a matter that he has reported to the Court, he would undoubtedly have taken into account in the determination of the sentence. Indeed, I think it can be stated, that it was incumbent upon him to have regard to the fact that the respondent, a young person facing imprisonment in an adult prison for the first time, had been in custody since November 2006. When the matter was drawn to his Honour's attention, within the 14 day period required by s 104A, he amended his sentence in order to take into account and encompass the totality of the period of incarceration that he had already undergone and would be required to serve. This was done in order to achieve the objective to which his disposition had been directed. There can be no doubt that the sentence imposed on 16 May 2007 clearly '[failed] to deal with a matter that it would have undoubtedly dealt with in accordance with the amendment,'[1] if his Honour's attention had been drawn to it. When he became aware that, presumably through an accidental slip or miscalculation, he had also fallen into error with respect to his order for concurrency, he considered it to be quite appropriate to use the power conferred by s 104A to correct the position.

9 The situation is, we consider, quite different to that which confronted the Court of Criminal Appeal in England in R v Albert Casey,[2] where, after a sentence of three years penal servitude was imposed for the offence of attempted larceny, it was realised that that disposition was not 'warranted in law.' The Chairman of the Court of Quarter Sessions that had handed it down, with the consent of the other members involved, and in the absence of the prisoner, simply altered the record by striking out the sentence and substituting one of two years' imprisonment with hard labour. The members of the Court of Appeal, who then considered the matter, expressed serious doubt as to whether the Chairman had any power to make this alteration, but pointed out that, in any event, it was not made in Court or in the presence of the prisoner and was, accordingly, unlawful. The judgment of the Court, which appears to have been delivered extempore, is extremely brief, but it is reasonable to infer, we think, from the summary of the submissions and comments set out in the report, that their Lordships understandably held that there was no power, albeit to assist the offender, simply to make an out of court alteration of the record and to substitute a reduced sentence for one that had been previously imposed. Whether the alteration could have been made in the exercise of common law power at the stage and in the circumstances had the matter been returned to the sentencing court was regarded as highly doubtful, but not decided, and, of course, there was no reference to any equivalent provision to s 104A.

10 Here, the judge has, within the period prescribed by s 104A, addressed two matters that related to the impact of the sentence that he had imposed and had not been brought to his attention at the time. The amendment made by him was not directed to the substitution of a different sentence because he had had second thoughts about the matter, which would clearly have been beyond power, nor did he simply alter the record.

11 His desire to ensure that his initial sentence intention was implemented was only clearly appreciated by the prosecutor at the time, but he was effectively encouraged to do so as the following passage makes clear:**

PROSECUTOR: ... It's really a question of what Your Honour's intention was in terms of the totality of the situation, whether Your Honour expected him to only serve another three months on top of a pure nine months, or for the 12 months, effectively, to start on Wednesday and he doesn't get out for another 12 months. It's really a question of what Your Honour's intention was because, of course, what Your Honour has is a young offender who's effectively, as I understand it, serving his first period in adult prison. One of the concerns that I think I raised on the plea was that, because he was already in an adult prison, you took away another option that Your Honour might have had because of his age.

PROSECUTOR: Now, that might have been Your Honour's intention and ultimately he ends up doing 12 months plus the 160 days he's already done, or it might not be. If it's not Your Honour's intention, an application can be made pursuant to s 18(7), or the relevant sub-section in respect of pre-sentence detention, and this type of situation is s 18(6) and (7). It's really a question of what Your Honour's intention was.

HIS HONOUR: ... So the short point is, if your submission's right and [counsel] could agree and I follow that course, the appeal would be abandoned.

HIS HONOUR: And I would correct the record in relation to my sentence.

PROSECUTOR: I think that's the correct way to do it, Your Honour, because otherwise you've got these two figures in the either one, 115 days or 171, if that be the correct number, and I believe that if Your Honour's intention was as Your Honour has stated, that if Your Honour declares the days in custody, which haven't previously been declared as at Wednesday, so that's the 171 days, Your Honour's purpose will be achieved.

HIS HONOUR: Look, the principle being that, notwithstanding that a person has undergone custody for other matters, a judge who's sentencing for fresh matters is obliged to take into account, not necessarily 171 days, but is required to take into account the fact that the prisoner has already undergone X months in imprisonment for other matters, because of relevant rehabilitation.

HIS HONOUR: This is how the argument runs, I think.

COUNSEL: And effectively, Your Honour, as I indicate, he's been in custody since November last year, and it's his first term in adult prison, and - - -

HIS HONOUR: Well, look is it - sorry to cut you off - is this the point: do I say, is it the case that I'm now advised of matters, which I wasn't advised of previously?

HIS HONOUR: And that, in order to effect the intention of my sentence imposed last Wednesday, I need to correct my sentence to reflect my intentions?

PROSECUTOR: Your Honour sentenced [the respondent] on 16 May to an effective sentence of 12 months' imprisonment. Today, an appeal of [the respondent] from a decision of the Ballarat Magistrates' Court on 23 March 2007, was listed. In researching that appeal and in discussions with my learned friend it became clear that there were matters which Your Honour should have been appraised of before Your Honour proceeded to sentence [the respondent] on 16 May, and those matters are these, Your Honour. Firstly, that on 23 March of this year, [the respondent] was sentenced to an effective term of nine months' imprisonment. There was no pre-sentence detention declared on that day but it transpires [the respondent] has in fact been in custody as I understand it, since about 28 November of last year. Your Honour will recall that during the course of the plea, hearing submissions, I indicated to Your Honour that it was the prosecution's view that [the respondent] was - despite his appalling history, still a young offender in terms of the Sentencing Act and it was in some ways regrettable, given his age, that he was in custody in respect of other matters, which effectively tied Your Honour's hands. However, having regard to that matter, which Your Honour was not apprised of in the plea, it's submitted that Your Honour should revisit the sentence... . (Our emphasis)

**12 The Court perceived no need, in the present context, to embark upon an elaborate exploration of the ambit of s 104A or what, if any, residuum of common law power has remained following its enactment, but it is apparent that the section was introduced to enable a sentencing judge, within a period of 14 days of the passing or purported passing of a sentence, to correct a range of errors, miscalculations or mistakes. It 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. It follows, in our view, that its area of operation should not be unduly circumscribed by restrictive interpretation. Clearly the section does not permit the re-opening of the sentencing discretion or the making of changes arising from further consideration of the appropriateness of the sentence in the circumstances. However, there is no sensible reason for interpreting its provisions as excluding the correction of errors of the very kind involved here, a period of pre-sentence detention of which the judge had not been informed but which had to be and would have been taken into account and an accidental error with respect to the available period of concurrency.

13 Both of these matters impacted directly upon the operation of the sentence imposed and in consequence resulted in a period of incarceration that was never contemplated.

[1] Section 104A(b) of the Sentencing Act 1991.

[2] R v Albert Casey (1932) 23 Cr App R 193.