(i) ….
(ii) … has the same powers of sentencing or otherwise dealing with the accused, and of finally disposing of the charge and of all incidental matters, as he or she would have had if the accused on arraignment at any sittings of the Court had pleaded guilty to the offence charged on an indictment filed by the Attorney-General or the Director of Public Prosecutions,
…
(2) All proceedings relating to a committal for trial apply, as nearly as may be, to a committal under paragraph (c) of subsection (1).
(5) A committal under paragraph (c) of subsection (1) shall, for all purposes relating to the venue or change of venue of proceedings consequent on that committal, be deemed to be a committal for trial.
…
(7) A person sentenced or otherwise dealt with under subparagraph (ii) of paragraph (d) of subsection (1) for an offence to which he or she pleaded guilty pursuant to that subsection shall, for the purposes of any Act passed either before or after the commencement of section 2 of the Justices (Amendment) Act 1958, be deemed to be convicted on indictment of the offence.
113 The effect of s 51A(1)(d)(ii) was considered by Street CJ (with whom Lee and Enderby JJ agreed) in R v Parker (1985) 1 NSWLR 167 at 171. His Honour concluded that the "plain legislative intention of the provisions of s 51A is towards equating, so far as, inter alia, sentencing is concerned, proceedings under that section to proceedings in which there has been a verdict of guilty on an indictment". In reaching that conclusion, his Honour took into account the fact that the "remedial legislative scheme of s 51A is directed to enabling an indictable matter to be brought up for sentence without going through formal committal proceedings in a case in which the accused has made an election to plead guilty." Thus Street CJ construed s 51A(1)(d)(ii) as being sufficient to bring into effect the terms of s 45A(3) of the Poisons Act 1966 which provided a particular penalty for "a person convicted on indictment of an offence to which this section applies." It is apparent that s 51A was amended after R v Parker by the insertion of subsection (7).
114 His Honour also observed "the s 51A procedure does not involve an actual documentary indictment coming into existence." It is clear that the s 51A form took the place of the indictment for the purposes of a s 51A plea.
115 Part 53 of the District Court Rules 1973 deals with "Criminal Procedure". Part 53 r 12 provides:
53.12 Recording of orders etc
Any judgment, order, sentence, direction or recommendation given or made by a Judge in any proceedings shall be entered on the indictment in the proceedings, and that entry shall, when signed by the Judge, be the record of the judgement, order, sentence, direction or recommendation.
116 In my view, the effect of s 51A and Part 53 r 12 is that the s 51A form is assimilated to the indictment so that, once the sentence is recorded on it, it becomes the record of the sentence. This is consistent with the approach this Court took in R v CJP [2003] NSWCCA 187.
Consideration
117 Subject to one matter, nothing that happened in the Court of Criminal Appeal in Mr Virgin's sentence appeal inhibits this Court's consideration of his application.
118 The matter to which I refer is that it is urged on behalf of the claimants that the second opponent ought not be able to rely upon s 43 in this application because, in Mr Virgin's sentence appeal, the Crown conceded that s 43 of the Crimes (Sentencing Procedure) Act 1999 was not available to Taylor DCJ "to enliven a jurisdiction in his Honour's Court to take a step by way of clarification of his sentence."
119 Taken at face value, that was an accurate concession about the nature of the s 43 power. That power exists either to enable the imposition of a penalty in accordance with law or the amendment of a conviction or order. It does not, in terms, provide for "clarification" of a penalty.
120 On this view, the Crown's concession in the Court of Criminal Appeal was not inappropriate - it was legally correct, so far as it went. However, the Crown Advocate has presented the case on the basis that he needs to persuade this Court to consider the s 43 aspect of the matter despite the concession in the Court of Criminal Appeal. I will therefore consider the Crown's submissions in this respect. I also note that although the concession was only made in Mr Virgin's sentence appeal, the Crown did not seek to differentiate between the claimants' positions in relation to the concession.
121 The Crown submitted that the concession was erroneous and that the Crown should not be debarred from taking a different stance in this Court referring to R v Allpass (1993) 72 A Crim R 561 at 564-565 as applied in Director of Public Prosecutions v Waack (2001) 3 VR 194 at [30]-[31].
122 In R v Allpass (1993) 72 A Crim R 561 at 565 the Court of Criminal Appeal (Gleeson CJ, Hunt CJ at CL and McInerney J) held that, on appeal, the Crown is not debarred from taking a different stance from that taken at first instance, but the court in the exercise of its discretion is entitled to take into account the fact that the Crown had acquiesced in the course that was taken by the sentencing judge. It said that the weight to be given to the fact that the Crown had acquiesced in the course that was taken by the sentencing judge depended upon the circumstances of the particular case and may also vary with the degree to which the appellate court thought the sentencing judge fell into error.
123 In Director of Public Prosecutions v Waack at [31], Phillips JA (with whom Batt and Chernov JJA agreed) said that Allpass should be regarded as providing the guiding principle and regarded it as applying so that even "a concession made by prosecuting counsel, if inappropriate, will not be necessarily fatal to an appeal by the director."
124 This is not an appeal against sentence. The concession has not had any operative effect in terms of the sentence imposed on the claimants - but even in those circumstances as Allpass and Waack makes clear, an inappropriate concession by the Crown does not prevent a contrary position being taken on appeal.
125 The legal concession the Crown made in the Court of Criminal Appeal did not affect its attitude to the proper sentence. It took the same stance there as it does before this Court, namely that Mr Virgin's non-parole period was three years.
126 I do not accept Mr Basten QC's submission that the Crown conceded before the Court of Criminal Appeal in Mr Virgin's matter that the s 43 application was misconceived. The concession made was that s 43 was not available to issue a "clarification" of a sentence. That, as I have already pointed out, was legally correct. It did not constitute a concession that the circumstances of these sentences did not fall within s 43(1).
127 The claimants seek to attract the Court's discretion to grant declaratory relief in an area, the administration of criminal justice, where the interests of the individual and the community intersect acutely. The community's concern in ensuring proper sentences has been given legislative recognition in the procedures available pursuant to s 43 of the Crimes (Sentencing Procedure) Act 1999. This Court would be shutting its eyes to that significant demonstration of legislative intention if it viewed the Crown's concession in the Court of Criminal Appeal as preventing the Crown from advancing submissions concerning the implications of s 43 on an application for discretionary declaratory relief.
128 In my view the Court should approach the matter on the basis of considering the implications of s 43 of the Crimes (Sentencing Procedure) Act 1999 in relation to the relief the claimants seek.
129 I have concluded that the "record" for the purposes of a sentence imposed in a s 51A matter is the sentence recorded on the s 51A form. I do not, however, accept the claimants' submission that the only "record" to which regard should be had for the purpose of considering their applications is the s 51A form. Such a submission in an application for declaratory relief smacks of the "formalism triumphant" which used to plague the area of certiorari: see R v Knightsbridge Crown Court; ex parte International Sporting Club (London) Limited [1986] 1 QB 304 at 314.
130 In this respect it might be noted that, absent the s 43 power to reopen, a Court would in most circumstances be functus officio and appellate or perhaps prerogative relief would need to be sought to cure any defect in the sentence: R v Denning (per Grove J).
131 Had the application been for prerogative relief, this Court would have been entitled to have regard to the reasons for sentence: s 69(4) Supreme Court Act 1970 (NSW). Section 69 was amended by the insertion of subsection (4) to reverse the effect of the decision in Craig v The State of South Australia (1995) 184 CLR 163 of which this Court despaired in Kriticos v State of New South Wales (1996) 40 NSWLR 297; see also "Certiorari and Error on the Face of the Record", J W Shaw QC MLC and F J Gwynne, (1997) 71 ALJ 356.
132 It would be absurd to regard the materials to which the Court could have regard for the purposes of considering an application for declaratory relief as more limited than those to which it could have regard on an application for certiorari.
133 I turn then to consider the evidence concerning the sentence imposed on 28 November 2001.
134 There are anomalies and discrepancies both in Taylor DCJ's sentencing remarks and the recording of the sentence on the s 51A forms.
135 In order to understand the first anomaly in the sentence, it is necessary to understand the expression "head sentence". It is not defined in the Crimes (Sentencing Procedure) Act 1999 (NSW) or, according to counsel, in any other relevant legislation. The Crown Advocate submitted that the expression was common usage to refer to the whole sentence which a judge imposes. Mr Basten QC said the expression had no overall usage and was a colloquialism. He acknowledged that the expression used to refer to the full sentence. There is no doubt, in my view, that the Crown Advocate is correct: see Griffiths v R (1989) 167 CLR 372.
136 Once the expression "head sentence" is understood, it is apparent that, taken literally, Taylor DCJ imposed two head sentences, one of four years and four months, the other of three years. The second anomaly is that, again taken literally, he has also imposed two non-parole periods, one of three years expiring on 1 May 2004, and one of one year and four months.
137 Bearing in mind his Honour's starting position was that each claimant should be sentenced to five years, but have a reduction of eight months from the head sentence because of his plea of guilty, the only reasonable interpretation of the head sentence his Honour intended to impose was that it was the term of four years four months imprisonment.
138 As to the non-parole period looking at the sentence alone, the more probable interpretation is that Taylor DCJ imposed a non-parole period of three years. That would be consistent with the claimants being eligible for release on 1 May 2004. It would also be consistent with his Honour's reference to three years next after the reference to four years four months, being the order in which s 44 (1) of the Crimes (Sentencing Procedure) Act 1999 required him first to set the term of the sentence and then to set the non-parole period.
139 The alternative interpretation for which the claimants contend is that the non-parole period was one year four months, picking up his Honour's express statement to that effect. In my view the sentence is not open to that interpretation, having regard to the powerful indicia to the contrary to which I have referred.
140 When one turns to the s 51A forms, the following anomalies and discrepancies appear:
(a) There are two head sentences recorded: four years four months and three years;
(b) The phrase "comprising a head sentence of three years with a reduction of eight months from the head sentence due to special circumstances" does not record what his Honour said in relation either to the head sentence of three years or the reduction of eight months for the plea of guilty which was deducted from the original five year sentence;
(b) the words "expiring on 1/9/02" were not made by his Honour's when imposing the sentence. If the s 51A form is regarded as having been altered before his Honour signed it, then his statement that the claimants would be eligible for consideration for release on 1 May 2004 has not been recorded on it.
141 There is no doubt that Taylor DCJ's remarks on sentence were confusing. It is clear, however, that his Honour was seeking to give effect to ss 44, 47 and 48 of the Crimes (Sentencing Procedure) Act 1999. Thus, he first set the term of the sentence, four years four months, next set the non-parole period for the sentence, three years and specified why it was less than three quarters of the term of the sentence, and provided information as to the earliest date on which the claimants would be eligible for release on parole - 1 May 2004. Within that sentence, however, there are two anomalies: first, the term of three years imprisonment was described as a "head sentence" and secondly, the period of one year and four months was described as a "non-parole period". As the Crown has submitted, if those statements were taken literally, then Taylor DCJ imposed two head sentences and two non-parole periods. That is clearly contrary to law.
142 It is clear his Honour was not intending to impose a three year head sentence. Had he been doing so he would have been required to make an order directing the release of the claimants at the end of the non-parole period: s 50 Crimes (Sentencing Procedure) Act 1999. The words "three years" were intended to perform another function - as is now clearly apparent they were intended to refer to the non-parole period.
143 The s 51A forms do not significantly improve the position. The s 51A forms record two head sentences, inappropriately apply the reduction of eight months for the plea of guilty and record a non-parole period, but, as amended, do not record the date of eligibility for release pronounced by his Honour of 1 May 2004.
144 Mr Basten QC's submission that this Court could disregard the discrepancy constituted by the recording on the s 51A form of "comprising a head sentence of three years with a reduction of eight months from the head sentence due to special circumstances" should not be accepted. The claimants cannot pick and choose whatever aspects of the s 51A forms assist their case. The inclusion of those words on the s 51A form demonstrates the confusion under which their author was operating, induced no doubt by the manner in which the sentence was expressed. Taken in the context of the whole form, they undermine any confidence the Court could have, even if there was no other evidence, that the s 51A form recorded the sentence Taylor DCJ had imposed.
145 The subsequent events are open to two interpretations.
146 The first is that on 19 December 2002 Taylor DCJ did exercise his power under s 43 of the Crimes (Sentencing Procedure) Act 1999, reopen the sentence and amend the claimants' convictions to give effect to his original intention that the non-parole period in relation to each claimant be three years. As I have noted, the claimants' then solicitor (now only acting for Mr Erceg) interpreted the events of that day as his Honour having imposed a three year non-parole period.
147 Such an interpretation of the events of 19 December 2002 is also consistent with the fact that the claimants' then solicitor arranged for the proceedings to be brought before Taylor DCJ pursuant to s 43. The reference to an "amended sentence" indicates an exercise of the s 43(2)(b) power.
148 The discussion of the authorities, which I have set out above, makes it clear that it would have been open to him to give effect to his original intention pursuant to s 43.
149 The formal difficulty with interpreting the events of 19 December 2002 in that manner is that his Honour neither stated that he was reopening the proceedings in relation to each claimant or stated that he was either imposing a penalty in accordance with the law (s 43(2)(a)) or amending the claimants' sentences (s 43(2)(b)).
150 There is no doubt that, as the Crown Advocate acknowledged, there has been "a series of very serious inappropriate errors". I do not accept Mr Basten QC's submission, however, that there has been "inaction and apparent maladministration…to achieve a goal not justified by the Court order." Rather there has been a series of attempts, most probably misguided, to seek to give effect to the original sentences.
151 This Court, in entertaining an application for a declaration, must have regard to all the facts. It must also consider the public interest in sentences which are correct in law being imposed. That public interest is reflected in s 43 of the Crimes (Sentencing Procedure) Act 1999. Once it is appreciated that that section is available to require a Court to reopen a sentence once s 43(1) is satisfied and that upon the reopening the intervening circumstances must be considered, the force of Mr Basten QC's submissions concerning the passage of time is diminished.
152 In my view Taylor DCJ imposed a head sentence of four years four months with a non-parole period of three years. Taken literally, however, the sentences his Honour imposed were either contrary to law as the Crown submits or failed to impose a penalty as required by law because of the internal inconsistencies and discrepancies to which I have referred.
153 Further, the sentence as "recorded" as opposed to "imposed" in the s 51A form requires amendment - a course s 43(2)(b) clearly contemplates.
154 In my view the matter should be placed before Taylor DCJ. At any such hearing his Honour should be fully apprised of the facts and the principles attending a s 43 application and the events which have happened since 28 November 2001. Once he has dealt with the matter, his decision should be given effect in the formal records of the District Court.
155 The fact that the s 43 route is available strongly militates against the grant of discretionary declaratory relief - a remedy which is only available in criminal proceedings in exceptional cases.