DREJA -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 151 (6 August 2012)

The sentence of 7 months' imprisonment suspended for 18 months for MH 2292/09 is set aside.

The appellant is to be re‑sentenced as follows ... a fine of $1,000 be imposed.

2 On 1 November 2011 the appellant then commenced these two appeals. One appeal is against the $600 fine imposed in the Joondalup Magistrates Court and referred to in par (c). That appeal was made to a single judge of the Supreme Court pursuant to s 7 of the Criminal Appeals Act. This appeal came on for hearing before Hall J, who granted an extension of time in which to appeal, granted leave to appeal in relation to the single ground of appeal referred to below and made an order pursuant to s 13 of the Criminal Appeals Act that the appeal be referred to the Court of Appeal. That appeal was given the file number CACR 23 of 2012 in this court.

3 The other appeal was against the $2,000 fine imposed by Corboy J and referred to in par (d). The appeal was to this court pursuant to s 23(1) of the Criminal Appeals Act. That is appeal CACR 171 of 2011 and in relation to it, Mazza JA granted leave to appeal in relation to the single ground of appeal referred to below and referred the application for an extension of time to the hearing of the appeal.

4 The single ground of appeal in CACR 23 of 2012 asserts that 'the fine imposed for breach of a suspended sentence should be set aside as a miscarriage of justice on the basis that the suspended sentence has now been set aside on appeal. The single ground of appeal in CACR 171 of 2011 asserts that the 'fine imposed for breach of a suspended sentence is now inappropriate as the suspended sentence has been set aside on appeal'.

5 Appeal CACR 23 of 2012 being an appeal to a single judge may be made on grounds set out in s 8(1) of the Criminal Appeals Act. That states that an appeal may be made to a single judge from the decision of a court of summary jurisdiction on grounds that the court:

(a) made an error of law or fact, or both law and fact;

(b) acted without or in excess of jurisdiction;

(c) imposed a sentence that was inadequate or excessive;

or because there had been a miscarriage of justice.

6 At the time the magistrate made his decision, no error of law or fact was made, the magistrate did not act without, or in excess of jurisdiction, and he did not impose a sentence that was inadequate or excessive. If the appellant is to succeed in relation to that appeal, it would have to be shown that there was a miscarriage of justice.

7 In the case of the appeal against Corboy J's decision, there is no equivalent to s 8. Part 3 of the Criminal Appeals Act deals with appeals from superior courts. In that part s 30(3) deals with appeals against conviction. That is not relevant. Section 31(1) provides that the section applies in the case of an appeal commenced by an offender under s 23 against 'the sentence imposed', or against 'any order made as a result of a conviction on indictment'. Although the section then only refers to what orders the Court of Appeal may make or must make if the court forms the opinion that a different 'sentence' should have been imposed, the reference to 'sentence' may be read as including a reference to orders made as a result of a conviction on the basis of the reasoning of Murray J in Hall v The Queen [24]. In the appeal against Corboy J's order, the appellant seeks an order setting aside the fine of $2,000. Counsel for the appellant said that the ground of appeal in CACR 171 of 2011 should be read as alleging a miscarriage of justice.

8 The appellant's written submissions in support of the ground of appeal in both appeals are short on substance and detail. They read:

It is submitted that ... where an appeal sets aside a suspended sentence then the order for a penalty for breach of that suspended sentence should as a consequence be revisited.

9 The only case referred to by the appellant was Tubbs v Pomykaj [2009] WASC 379 which is referred to below.

10 The respondent submitted that the order setting aside the suspended sentence order was not an order that made the suspended sentence order void ab initio. The appellant conceded that to be so. The concession was rightly made for the following reasons.

11 Section 14(1) of the Criminal Appeals Act reads:

In deciding an appeal, the Supreme Court may do one or more of the following:

(c) set aside or vary the decision of the court of summary jurisdiction and sentence imposed, order made or thing done as a result of the decision;

12 The expression 'set aside', like the word 'quash', has a range of meanings. It may mean to 'put to one side' or 'discard from use', or it may mean 'annul or quash': Macquarie Dictionary. That the word 'quash' has a range of meanings was noted in Roads and Traffic Authority of New South Wales v Papadopoulos [2010] NSWSC 33; (2010) 77 NSWLR 189, where James J said at [50]:

The decision in Hancock v Prison Commissioners shows that the word 'quash' in a legal context does not necessarily mean to make null and void ab initio and can simply mean to make null and void for the future. What interpretation should be given to the word in particular legislation depends on the terms of the legislation, the context in which the word 'quash' is used and the subject matter to which the word must be applied.

13 Section 14(1) authorises the court to make orders which set aside orders made by courts of summary jurisdiction by annulling or quashing the orders ab initio or by setting them aside prospectively. What is intended will be ascertained by the terms of the order taking into account the orders which are being set aside.

14 Thus, in a case where under s 14(1) a judge on appeal sets aside a judgment of conviction, the order in context will mean that the judgment is set aside ab initio: see Commissioner for Railways (NSW) v Cavanough [1935] HCA 45; (1935) 53 CLR 220; Lynch v Hargrave [1971] VicRp 11; [1971] VR 99. This is because the order could have no effect other than to annul the conviction because the judgment of conviction was complete on the date it was made.

15 On the other hand, an order imposing a sentence of suspended imprisonment has ongoing effect. It is executory or partly executory until the order is spent. If the court orders a sentence of suspended imprisonment to be set aside then, in the absence of any indication that it was intended to be an order setting the sentence aside ab initio, the order takes effect to nullify the sentence only from the date of the setting aside order. In Hancock v Prison Commissioners [1960] 1 QB 117 the court had to consider the effect of an order made under s 4(3) of the Criminal Appeal Act 1907 (UK) which relevantly provided:

On an appeal against sentence the Court of Criminal Appeal shall, if they think that a different sentence should have been passed, quash the sentenced passed at the trial, and pass such other sentence.

This provision does not correspond in its conferral of power with s 14(1) of the Criminal Appeals Act (WA). The latter section authorises the court to set aside sentences of imprisonment but it also authorises the appeal court to set aside convictions. The words 'set aside' cannot therefore be read to mean only to set aside prospectively.

16 Winn J in Hancock referred to s 4(3) of the Criminal Appeal Act 1907 (UK) and said:

When one finds those words in the section and considers the context in which they are used and the subject-matter to which those words must be applied, one is inevitably driven to the conclusion that the word 'quash' is not there used in the sense in which the Shorter Oxford English Dictionary tells me that it often is used, namely, 'to annul', 'make null or void', but is used in the less drastic meaning that the former sentence is by the order of the court rendered null and void at the moment when the Court of Criminal Appeal decides to substitute for it a different sentence, so as to make that earlier sentence null and void and of no effect for the future from that point of time onwards, but not so as to render it null and void ab initio, namely, as from the date when it was passed.

17 In my opinion this reasoning, although correct in relation to the English provision, does not apply to the words 'set aside' in s 14(1) for the reasons just given above, ie s 14(1) authorises the 'setting aside' of convictions as well as sentences. The meaning of the words may have the more 'drastic' meaning of set aside ab initio, but it will all depend upon what is express or implicit in the particular order made. As already explained, in the absence of any indication to the contrary, an order setting aside a sentence of suspended imprisonment is an order nullifying that sentence only from the date of the setting aside order.

18 Decisions approving or referring with apparent approval to the reasoning in Hancock's case may be found in other States and in Western Australia: see Roads and Traffic Authority of New South Wales v Papadopoulos; Director of Public Prosecutions v TY [No 2] [2009] VSCA 226; (2009) 24 VR 705 and R v Rasmussen; Ex parte Attorney‑General (Qld) [2000] QCA 494; [2002] 1 Qd R 299. In Papadopoulos and TY the reasoning in Hancock was employed to hold that the order in each case only had prospective effect. Similarly, in Western Australia in Bassett v Board [2011] WASC 317, McKechnie J rejected an argument that an offender ought to be relieved of the consequences of breaching a sentence or order which was later set aside in circumstances where the conviction was not set aside. McKechnie J's earlier decision in Tubbs provides no authority on the point. The parties there had agreed on the outcome of the appeal and the point agitated in this appeal was not raised or considered.

19 In submissions, counsel for the appellant having conceded that Hall J's order did not set the suspended sentence aside ab initio, did no more than assert, in effect, that it was unfair or 'inappropriate' that the appellant should have to pay the fines imposed under s 80 of the Sentencing Act because the suspended sentence order has been set aside. That submission has no merit. While the suspended sentence order was in force it had to be obeyed: see Bassett v Board [16]. The order made by Hall J setting aside the suspended sentence only had prospective effect. There was no miscarriage of justice. Appeal CACR 23 of 2012 must be dismissed.

20 The application for an extension of time to appeal in CACR 171 of 2012 should be dismissed because there is no merit in the appeal.