HEAL v POLICE No. SCGRG-98-1204 Judgment No. S374 [1999] SASC 374

DUGGAN J. The appellant appealed against the decision of a single judge of this court. The appeal was allowed and the court announced that reasons would be given at a later stage. The following are my reasons for agreeing that the appeal should be allowed.

The appeal arose in the following circumstances. The appellant was sentenced in the Magistrates Court on 17 May 1995 to imprisonment for 24 months after pleading guilty to six counts of building breaking and larceny. The court fixed a non-parole period of 21 months which was reduced on appeal to fifteen months. The sentence was suspended by the Magistrates Court upon the appellant entering into a bond in the sum of $10 to be of good behaviour for three years.

The appellant appeared before the Magistrates Court again on 8 July 1998. It was alleged that the bond to which I have referred was breached by an offence of being unlawfully on premises. The breach was established and the suspension of the sentence of imprisonment for 24 months revoked.

The appellant was sentenced on other matters at the hearing on 8 July 1998. I will deal with those which are relevant to the present appeal. The appellant was sentenced to imprisonment for three months for the offence of being unlawfully on premises. The sentence was made cumulative on the sentence of imprisonment for 24 months. The appellant was also sentenced to imprisonment for three months for illegally using a motor vehicle. This sentence was made cumulative on the sentence of three months for being unlawfully on premises. The total head sentence, therefore, was imprisonment for 30 months.

There remained the fixing of a non-parole period. As I have said, a non-parole period of 15 months had been fixed in relation to the original sentence of 24 months. The learned magistrate made the following comments in fixing the new non-parole period:

"There is therefore a total period of 30 months sentence and the question of non-parole period is a very relevant one. As your counsel has said, there is power to reduce that non-parole period and it also seems to me that the provisions of Section 32, sub-section 10 of the Sentencing Act enables me, as a sentencing court, to deal with the overall question of non-parole period. It seems to me that a large proportion of this sentence should be served in the community rather than in custody. It is not going to be a particularly easy stay for you, I can see that from what has already been put to me, but the situation is that you are in as a result of ongoing offending, which notwithstanding the numerous bonds that have been imposed does not seem to have come to a stop. I intend to set a very low non-parole period in relation to the head sentence of 30 months of 8 months, also to commence forthwith, in the hope that the extended period of supervision on parole will be beneficial."

The reasoning which led the learned magistrate to fix the non-parole period of eight months is not clear from his remarks. He referred to a submission by the appellant's counsel to the effect that there was power to reduce the non-parole period. Presumably the submission was based on the power provided for in s 58(4) of the Criminal Law (Sentencing) Act 1988 which permits the court to reduce the term of a suspended sentence "if it concludes that there are special circumstances justifying it in so doing". However, the magistrate also referred to s 32(10) of the Act which, he said, enabled him to deal with the overall question of the non-parole period. The main function of s 32(10) is to define the sentencing court for the purpose of fixing a non-parole period and it appears to be irrelevant to the task which confronted the magistrate.

It is appropriate to refer to the procedure which should have been followed by the learned magistrate. He was required to deal first with the breach of bond which was admitted. In the event that there were no grounds which would have enabled the court to refrain from revoking the suspension of the sentence of imprisonment for 24 months pursuant to s 58(3), the court was required to order such revocation. However, if the magistrate had been invited to act pursuant to s 58(4), he was then required to consider whether there were special circumstances justifying a reduction in the term of the suspended sentence. This would include consideration as to whether the non-parole period should be reduced.

After revoking the suspension of the earlier sentence and sentencing the appellant to further terms of imprisonment, the magistrate was then required to have regard to s 32 of the Sentencing Act. If the non-parole period of the revoked sentence had been reduced pursuant to s 58(4), the reduced non-parole period became the "existing non-parole period" for the purposes of s 32(1)(b). After sentencing the appellant to the further periods of imprisonment and arriving at the sentence of imprisonment for 30 months the magistrate was required by s 32(1)(b) to:

"... review the non-parole period and extend it by such period as the court thinks fit (but not so that the period of extension exceeds the period of imprisonment that the person becomes liable to serve by virtue of the sentence, or sentences, imposed by the court)".

The court is required to extend the non-parole period under this provision. It is not permitted to allow the existing non-parole period to remain as it is; nor is it permitted to reduce the period. As I have pointed out, the only provision permitting reduction is s 58(4).

The learned magistrate did not refer in his reasons to any circumstances which would justify the reduction of the non-parole period pursuant to s 58(4). However there was no appeal against the sentence by the prosecution. The appellant appealed against the sentence on the grounds that it was manifestly excessive and that the learned magistrate erred in deciding to revoke the suspension of the term of imprisonment previously imposed. The second ground was abandoned.

When the matter came before the learned judge appealed from he concluded that the sentence was not manifestly excessive. He also expressed the view that there was no basis for refraining from revoking the suspension of the earlier sentence under s 58(3) or for reducing the term of that sentence pursuant to s 58(4).

It would have been appropriate at this stage to have dismissed the appeal. However, at the invitation of counsel for the DPP, the learned judge turned his attention to the magistrate's order reducing the non-parole period. He said:

"The learned sentencing Magistrate purported to reduce the non-parole period in respect of the sentence to which the estreatment of the bond related. This is part of the original sentence of which the bond entered into on 17 May 1995 was part. In my view, power exists in subs 32(1) and subs 32(10) of the Sentencing Act to increase a non-parole period but no power exists to reduce it. Counsel for the appellant argued to the contrary, but in my view that argument cannot be accepted."

After discussing this aspect further he made the following order:

"In the circumstances, I allow the appeal. I set aside the learned sentencing Magistrate's purported reduction of the non-parole period of 15 months to 8 months but in all other respects I confirm the sentences imposed by him in respect of the appellant."

It was argued on appeal to this court that the learned judge had no power to make this order when there had been no prosecution appeal against sentence. In order to deal with this argument it is necessary to consider the relevant appeal provisions. The right of appeal from the Magistrates Court to the Supreme Court in criminal matters and the powers of this court on the hearing of such an appeal are provided for in s 42 of the Magistrates Court Act, 1991. In so far as it is relevant to the present case s 42 provides:

"42. (1) A party to a criminal action may, subject to this section and in accordance with the rules of the appellate court, appeal against any judgment given in the action (including a judgment dismissing a charge of a summary or minor indictable offence but not any judgment arising from a preliminary examination). . . . (4) On an appeal, the appellate court may, if the interests of justice so require, re-hear any witnesses or receive fresh evidence. (5) On the hearing of the appeal, the appellate court may exercise any one or more of the following powers: (a) it may confirm, vary or quash the judgment subject to the appeal and, if the Court thinks the interests of justice so require, it may vary or quash any other judgment given in the same or related proceedings; (b) it may remit the case for hearing or further hearing before the Magistrates Court; (c) it may make any other order (including an order for costs) that may be necessary or desirable in the circumstances."

A right of appeal is given to both the prosecution and the defence. In the provisions dealing with the powers on appeal no distinction is made between prosecution and defence appeals. In the case of an appeal against sentence this court can confirm, vary, or quash the sentence passed in the Magistrates Court. However, it is my view that the legislature did not intend to confer a power to increase a sentence on a defence appeal where there is no prosecution appeal. Such a power would be exceptional and it would be expected that specific provision would be made for it if it were to be conferred.

It is useful to compare these appeal provisions with those contained it the Criminal Law Consolidation Act. Prior to the amendments to that Act which permitted the prosecution a right of appeal against sentence in the case of a person sentenced in the Supreme or District Court, the appeal court was empowered on appeal to quash a sentence and "pass such other sentence warranted in law (whether more or less severe)". This aspect of the legislation was amended when prosecution appeals against sentence were introduced. As a result of the amendment the Full Court "must not increase the severity of a sentence on an appeal by the convicted person except to extend the non-parole period where the Court passes a shorter sentence". (CLCA s 353(5)).

In Neal v The Queen [1982] HCA 55; (1982) 42 ALR 609 the High Court considered the appeal provisions under the Criminal Code (Qld) which included in s 668(3) an unqualified power to reduce or increase a sentence on a defence appeal. Gibbs CJ, in a judgment in which Wilson J concurred, observed that "s 668E(3) may now be regarded as redundant, except perhaps in very special cases and it appears that in practice those provisions are little used". His Honour commented adversely on a course taken by the Court of Appeal which had the effect of denying the appellant his right to abandon the appeal so as to avoid an increase in sentence on his appeal when there had been no prosecution appeal. Brennan J added the following comment (623):

"I agree that the power conferred by s 668E(3) of the Code upon the Court of Criminal Appeal of its own motion to pass a more severe sentence should be regarded as redundant except perhaps in very special cases, and then only after the court has given an appellant full opportunity to protect what Isaacs J called 'the vested interest that a man has to the freedom which is his, subject to the sentence of the primary tribunal' (Whittaker v R [1928] HCA 28; (1928) 41 CLR 230 at 248). For the reasons stated by the Chief Justice, I agree that the Court of Criminal Appeal of its own motion ought not to have passed a more severe sentence upon the applicant, and that this court should grant special leave to appeal against the order made by the Court of Criminal Appeal and set that order aside."

Neal's case supports the view that there is little room for the exercise of a power to increase a sentence on a defence appeal in the absence of a prosecution appeal, even under legislation which permits such a course. The position must be a fortiori under legislation which gives no specific power to increase the sentence.

In my view there was no power to increase the sentence by restoring the 15 month non-parole period in the present case and, even if there was such a power, it would be inappropriate to exercise it without advising the appellant that this was the intention of the court, so as to allow him the opportunity to withdraw the appeal. I should add that before prosecution appeals against sentence were permitted in this State it was the frequent practice of the Full Court to warn the appellant of the court's power to increase the sentence so as to permit an opportunity to abandon the appeal.

In my view the learned judge appealed from should not have allowed the defence appeal for the purpose of increasing the non-parole period imposed in the Magistrates Court. In these circumstances the proper course for this court is to allow the appeal, set aside the order of the judge appealed from and direct that the original non-parole period of 8 months fixed by the magistrate be restored.

LANDER J. The appellant appealed by leave of the Full Court from a decision of a Judge of this Court on an appeal from the Magistrates Court. This Court allowed the appeal and announced that reasons would be given later. These are my reasons for allowing the appeal.

The appellant was born on 22 May 1968. In 1987 he was convicted of building breaks and received a suspended sentence of imprisonment. Again in 1989 he was convicted of a building break and the offence of indecent assault and again received a suspended sentence of imprisonment.

In 1992 a bond was estreated. In 1993 he was convicted of assault and sentenced to two months imprisonment which was again suspended. The appellant was then subject to a bond which was extended by some two years.

In 1994 an application was made to the Court for enforcement of a bond. No order was made in respect of that application. A further application of the same kind was made in 1995 but again no order was made.

In May 1995 the appellant was convicted of six counts of building break and larceny. He was sentenced to imprisonment for two years and a non parole period of twenty-one months was set. That sentence was suspended on his entering into a bond for three years. He appealed from that decision and the appeal was successful at least in so far as it related to the non parole period, which was reduced to fifteen months.

In December 1996 he was convicted of breaking and entering and ordered to perform 100 hours of community service within nine months of that date. An application for estreatment of that bond was made but no order was made.

On 8 July 1998 the appellant came before the Magistrates Court in relation to a number of matters. First it was alleged that he had failed to comply with the order relating to community service. Secondly he was charged with being unlawfully on premises on 21 January 1998. He pleaded guilty to that offence. He was also charged with illegal use of a motor vehicle and driving a motor vehicle whilst he was not the holder of an appropriate licence. He also pleaded guilty to those offences.

In relation to the community service order he was sentenced to be imprisoned for twelve days. On the charge of unlawfully on premises he was sentenced to three months imprisonment. He was also sentenced to be imprisoned for three months on the charges of illegal use and driving a motor vehicle without a licence. For these matters one sentence was imposed, pursuant to s 18A of the Criminal Law (Sentencing) Act (the Act), being a sentence of three months imprisonment cumulative upon the sentence imposed for being unlawfully on premises. He was disqualified from obtaining or holding a motor vehicle licence for twelve months.

The convictions for the offences of being unlawfully on premises, illegal use of a motor vehicle and driving a motor vehicle without a licence were a breach of the bond which supported the suspension of the sentence of imprisonment of two years and the non parole period of fifteen months.

The breach of the bond was admitted and the learned Magistrate estreated the bond. He accepted that the appellant, in relation to that offence, was liable to imprisonment for twenty-four months. The two other sentences of imprisonment to which I have referred were made cumulative upon that sentence. In total therefore a sentence of thirty months was imposed. He set a non parole period of eight months. The non parole period was thereby reduced from fifteen to eight months.

In my opinion the Magistrate erred in adopting the sentencing process that he did.

The convictions entered on 8 July 1998 gave rise to a breach of the bond entered into in May 1995 and the Magistrate should first have had regard to that breach and the application of s 58 of the Act. Because the bond supported a suspended sentence of imprisonment the Magistrate had to consider s58(3) of the Act and determine whether the failure of the appellant to comply with the conditions of the bond was trivial or whether there were proper grounds upon which the failure could be excused. The breach was not trivial and there were no proper grounds upon which the failure could be excused.

Next the Magistrate had to determine, in revoking the suspension of the sentence of imprisonment, whether he should exercise any of the powers contained in s 58(4) of the Act and in this case, in particular, whether he should reduce the term of the suspended sentence (s 58(4)(a)).

The Magistrate could only have reduced the sentence imposed in July 1998 if he had been satisfied that there were special circumstances to reduce that sentence: (s 58(4)). No such circumstances were apparent in this case.

Having concluded that the head sentence of two years in relation to that bond must stand the Magistrate then had to consider whether the sentences of imprisonment that he imposed in relation to the matters before him should have been accumulated with the earlier two year sentence of imprisonment.

This, I think, he did. In any event the exercise would have meant that the appellant was then liable to serve thirty months imprisonment.

Having arrived at that point the Magistrate had to then proceed under s32 of the Act and, because the appellant was subject to an existing non parole period, review the non parole period and extend it by such period as he saw fit (s 32(1)(b)), subject to the limitation in that subsection. The Magistrate had no power to review the non parole period and reduce it. The section does not allow for a reduction in the non parole period and that is because it may be assumed that the further conviction or convictions, which have caused the need to reconsider the existing non parole period, could only serve to increase the previous non parole period set.

The Magistrate fell into error in setting a non parole period of eight months. He was obliged to set a non parole period in excess of fifteen months.

The appellant therefore obtained a significant reduction in the non parole period which had been deemed appropriate in the sentence which had been imposed in 1995.

Nevertheless the appellant appealed from that decision, the grounds of appeal being:

2. The learned Magistrate erred in declining to suspend the sentence of imprisonment."

44. The appeal to a single Judge of this Court was out of time but an extension of time was sought. At the commencement of the hearing of the appeal, there being no opposition, the learned Judge extended the time for appeal to the date of lodgment of the appeal.

45. The Judge reviewed each of the sentences and concluded that none was manifestly excessive. He also concluded that the sentence in total was not excessive.

46. He then turned his attention to the application which had been made to the Magistrate by the respondent for an order that the Court revoke the suspension of the order for imprisonment made in May 1995.

47. He considered the application of s 58(3) and 58(4) of the Act in the circumstances of the breach of this bond.

48. He concluded that neither subsection had application in the circumstances of the matter before him and therefore concluded that the Magistrate had been in error in reducing the non parole period from fifteen months to eight months. He said:

"In this matter, in the absence of special circumstances within the meaning of subsection 58(4) of the Sentencing Act, I can see no way in which I can properly alter the custodial sentence brought about by the estreatment of the bond entered into in May 1995. It was not up to the learned sentencing Magistrate in 1998 nor up to me, to interfere with a sentence which someone else has imposed other than as allowed by the Sentencing Act. In the circumstances, I allow the appeal. I set aside the learned sentencing Magistrate's purported reduction of the non-parole period of 15 months to 8 months but in all other respects I confirm the sentences imposed by him in respect of the appellant."

" 1. That the appeal be allowed. 2. That the Learned Sentencing Magistrate's purported reduction of the non-parole period of 15 months to 8 months be set aside. 3. In all other respects the sentence imposed by him in respect of the appellant be confirmed. 4. That no order is made as to the costs of the appeal."

It must be remembered that the Judge was hearing an appeal by this appellant against the severity of the sentence imposed upon him in the Magistrates Court. The respondent did not cross appeal claiming that the sentence was in any way inadequate or that the sentencing Magistrate had fallen into error in respect of his application of either s 58(3) or s 58(4) of the Act or in any other way. It was apparently accepted by the respondent, before the appellant lodged his appeal, that it was within the proper exercise of the Magistrate's discretion to set a non parole period for the previous conviction in May 1995 and the further convictions in July 1998 lower than the previous non parole period set for the May 1995 conviction.

Not only did the appellant fail to persuade the learned Judge on appeal that the sentence was manifestly excessive or that there had been a failure by the Magistrate to properly exercise his discretion to suspend the sentence, the appellant suffered the result that the non parole period set by the Magistrate was increased from eight months to fifteen months in relation to the earlier offences. The terms of the order meant that effectively no order was made in respect of the sentences imposed cumulatively upon that non parole period.

It must be said that the course adopted was urged upon the Judge by counsel for the respondent. Counsel said: [TX 62]

"There are two options available to your Honour, an error having been shown on the face of the remarks. Either send the whole thing back to the learned sentencing magistrate for him to, in effect, re-sentence, or, indeed, your Honour can also sent it back for him to correct the sentence under s 9a of the Criminal Law Sentencing Act, if a correction be needed. They are matters which would result in this appellant having to go back before the learned sentencing magistrate to be dealt with. If your Honour is not minded to adopt that course, then your Honour can deal with the matter by restoring what the original non parole period should have been, namely 15 months, and give this appellant no more than was warranted by the special circumstances of his particular case. The respondent isn't arguing that this man should get more, or rather, get an increase in the previously fixed non parole period of 15 months. If that were the case then the respondent would have to have cross appealed. All the respondent is urging upon your Honour is to restore the correct sentence. The correct sentence, in the appellant's case, would be 30 months with 15 previously fixed non parole period. Those are the, in effect, options available to your Honour. Your Honour can restore the sentence to the correct one, or, send it back to the magistrate and allow the magistrate to make clear whether or not he found special circumstances that existed that would have warranted a reduction in the non parole period. Because it appears, as I have submitted to your Honour, looking at the sentencing remarks as a whole, he has fallen into error in regard to the non parole period."

The Judge did not warn the appellant that he contemplated acceding to the respondent's counsel's submission and that he might make the orders to which I have referred.

In my opinion the Judge was not entitled to adopt the course that he did for two reasons. First, I do not believe that the Judge had power to increase the appellant's sentence in the absence of an appeal by the complainant. Secondly, even if there was power to increase the appellant's sentence, procedural fairness required the Judge to inform the appellant that he was contemplating such a course of action.

Section 42 of the Magistrates Courts Act relevantly provides:

"42 (1) A party to a criminal action may, subject to this section and in accordance with the rules of the appellate court, appeal against any judgment given in the action (including a judgment dismissing a charge of a summary or minor indictable offence but not any judgment arising from a preliminary examination). (2) ... (3) ... (4) ... (5) On the hearing of the appeal, the appellate court may exercise any one or more of the following powers: (a) it may confirm, vary or quash the judgment subject to the appeal and, if the Court thinks the interests of justice so require, it may vary or quash any other judgment given in the same or related proceedings; (b) it may remit the case for hearing or further hearing before the Magistrate Court; (c) it may make any other order (including an order for costs) that may be necessary or desirable in the circumstances." (6) ..."

Section 42 allows for both the complainant and the accused to appeal from any judgment. That is clear from the terms of s 42(1) itself. Indeed a complainant can appeal from a judgment dismissing a charge of a summary or minor indictable offence.

Judgment is defined in s 3 of the Magistrates Court Act:

"Means a judgment order or decision and includes one interlocutory judgment or order."

It is clear enough that a complainant may appeal from a judgment or order dismissing a charge of a summary and minor indictable offence and from a sentence imposed after conviction of a person of a summary or minor indictable offence.

Subsection 42(5) of the Magistrates Court Act gives the Supreme Court whether constituted of a single Judge or as the Full Court wide powers on an appeal. Those powers are supplemented by r 97.18 of the Supreme Court Rules. That rule provides:

"On the hearing of an appeal governed by Rule 97 the Court: (a) is to have all the powers and duties as to amendment and otherwise as the Court or tribunal appealed from had; (b) may in its discretion receive further evidence upon any question of fact; (c) may draw inferences of fact; (d) may amend, set aside or discharge any judgment appealed from; (e) may give any judgment, assessment or award or make any order which might have been made by the Court or tribunal appealed from and make such further or other order as the justice of the case may require; (f) may direct that the proceedings be remitted for a new trial or further consideration with or without special direction, provided that where it appears to the Court that a wrong decision or miscarriage of justice affects part only of the matter in controversy, or some, or only one of the parties, the Court may give final judgment as to part thereof, for some or one only of the parties, and direct a new trial as to the other part only or as to the other party or parties; (g) make such order as tot he costs of the trial or appeal as it deems fit; (h) may exercise its powers notwithstanding that: (i) any party to the proceedings in the Court or tribunal below has not appealed. (ii) any ground for allowing or dismissing the appeal or varying the decision is not stated in any notice of appeal, notice of cross appeal or notice of contention; (iii) that there has been no appeal from some part of a decision; (i) may reverse or vary any interlocutory orders on the appeal."

Rule 97 governs appeals from the Magistrate Court to a single Judge [R 96C.06]. If the appeal goes directly to the Full Court then the appeal is governed by r 95. The powers given to the Full Court are not significantly different from the powers given to a single Judge by r 97.18 (r 95.15).

The powers given to the Court by r 97.18 are very wide. The respondent in this appeal referred this Court to r 97.18(h)i. The Rules, of course, could not invest this Court with a jurisdiction to determine an appeal or make an order if no jurisdiction is given in the Court by the Magistrates Courts Act. An appeal is a creature of statute: Victorian Stevedoring and General Contracting Co Pty Ltd v Dignon [1931] HCA 34; (1931) 46 CLR 73 at 108; Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259 at 277. This Court only has jurisdiction to hear an appeal from the Magistrates Court if authorised by Statute. The authority in this case is provided by the Magistrates Court Act.

The appellant's appeal did not put the matter at large. It meant that the Court could do one of two things. It could dismiss the appeal or it could allow the appeal for the purpose only of reducing the severity of the sentence. The Magistrates Courts Act does not authorise a judge of this Court to hear a complainant's appeal where no appeal had been lodged.

In Neal v R [1982] HCA 55; (1982) 149 CLR 305 the High Court was called upon to consider a provision of the Queensland Criminal Code. That provision allowed the Court of Criminal Appeal, on an appeal against the sentence, to pass some other sentence whether more or less severe. The appellant in that case was sentenced to two months imprisonment by a magistrate. He applied for leave to appeal. During the hearing his counsel was advised that the Court had power to increase sentence. The Crown had not appealed. The Court, purportedly acting under the Queensland provision, dismissed the application for leave but quashed the sentence and substituted a sentence of imprisonment of six months. The appellant appealed to the High Court. That Court held that the provision which the Court of Criminal Appeal acted upon could only be invoked on an appeal not on an application for leave to appeal. Moreover, it said that the provision allowing an increase in sentence could be regarded as redundant as the Attorney-General had a right of appeal against sentence.

That case supports the view that this Court could only increase a sentence imposed by a Magistrate on an appeal brought by a complainant against the inadequacy of sentence. The Court does not have the power to increase a sentence on an appeal against sentence by a convicted person.

If Parliament had intended this Court to have power to impose a more severe sentence in the absence of a Crown Appeal, but on a convicted person's appeal it would have said so. The principle that a convicted person "has the vested interest that a man has the freedom which is his, subject to the sentence of the primary tribunal" (Whittaker v R [1928] HCA 28; (1928) 41 CLR 230 at 248) is too well entrenched to be blown away by a side wind.

Indeed this Court does not have power to increase the severity of a sentence on an appeal by a convicted person, except to extend the non parole period where the Court passes a shorter sentence, on any appeal brought under the Criminal Law Consolidation Act: s 353(5). This Court on any appeal under that Act can only impose a more severe sentence where the Director of Public Prosecutions has been given leave to appeal and the appeal is allowed: (s352(1)(a)(iii) Criminal Law Consolidation Act).

Whilst a complainant does not need to obtain leave to appeal against the inadequacy of a sentence imposed in the Magistrates Court, there must be an appeal by the complainant before the Court can impose a more severe sentence. In Malvaso v R [1989] HCA 58; (1989) 168 CLR 227 this Court imposed a more severe sentence on a convicted person without first considering whether leave to appeal should be granted to the Attorney-General. There was therefore a procedural defect. Mason CJ, Brennan and Gaudron JJ said at 233:

"Strict compliance with procedures which authorize an increase in sentence by an appellate court should be insisted on, as it was in Neal v R [1982] HCA 55; (1982) 149 CLR 305; 42 ALR 609, before a prisoner is deprived of the liberty left to him after sentencing at first instance. As leave to appeal was not given, it is not appropriate to remit the matter of the sentence alone to the Court of Criminal Appeal for reconsideration. The application for leave to appeal must itself receive consideration."

It is no different for appeals from the Magistrates Court. The complainant must adhere strictly to the procedure imposed by the Statute which means filing a notice of appeal setting out the grounds for the relief sought.

I therefore do not agree with the respondent's submissions. The respondent was not entitled to seek any orders of the kind mentioned without first lodging a Notice of Appeal. The appellant was entitled to expect that the only matters, absent an appeal by the respondent, which would be considered on appeal were the grounds of appeal which he had raised.

If I am wrong about that and the Court had power to increase the sentence, in my opinion, the Judge fell into error by considering grounds for appeal not identified by either the appellant or the respondent and without warning the appellant that that was within his contemplation. In doing so he failed to accord the appellant procedural fairness.

It is a recognised requirement of procedural fairness that when a judge contemplates increasing the severity of a sentence on appeal the appellant must be notified. In Parker v DPP [1992] 28 NSWLR 282 Kirby P, with whom the members of the Court of Appeal agreed, said at page 295:

"There is an established practice or convention in District Court appeals under s122 that a judge, contemplating an increase in the sentence under appeal, will signal that possibility to the appellant. This is well-known. Although it is not a rule of law, it is an established practice. It should rarely, if ever, be departed from. The basis of the practice is to be found in a species of the double-jeopardy principle: see Neal v The Queen [1982] HCA 55; (1982) 149 CLR 305 at 306; R v Tait (at 388ff; 476f); R v Hayes (1987) 29 A Crim R 452 at 468. The practice is followed in England. It is upheld by the courts as a recent decision of the Queen's Bench Divisional Court shows: see R v Maidstone Crown Court; Ex parte Litchfield (Times Law Reports, 30 June 1992). Where an accused person has exercised an entitlement provided by law to have a re-adjudication of a criminal conviction and sentence, it must be contemplated that Parliament provided that facility to the intent that normally it would result in the appellant's being in no worse a position than had he or she accepted a conviction and sentence of the Local Court. Although, necessarily, such a risk is run by a procedure which amounts to a complete re-hearing, with fresh (and possibly different) evidence and a new decision-maker, the purpose of the appeal is one to afford the accused person a second opportunity for the consideration of his case by a judicial officer more senior in the court's hierarchy. If the second judicial officer knows of the penalty imposed by the first and contemplates a higher penalty, it is proper to indicate this fact so that the appellant can consider whether or not to apply for leave to withdraw the appeal as the Justices Act allows;"

In Brand v Parson [1994] VicRp 17; [1994] 1 VR 252 Coldrey J followed Parker v DPP and held in similar terms that where the deprivation of personal liberty or the deprivation of personal liberty for an increased period of time is contemplated, procedural fairness requires the appellant to be alerted to enable the appellant to formulate a response.

In similar circumstances in Flynn v DPP [1998] 1 VR 322 McDonald J said at p357:

"Where sentence contemplated by an appeal judge involves the imposition of a term of imprisonment when the sentence appealed from was non-custodial, or that contemplated, involves a longer term of imprisonment than that initially imposed, it can be readily understood that for the appeal judge to not inform an appellant that such a sentence was in contemplation would constitute a breach of the requirement of procedural fairness. In such circumstances it would be difficult to contemplate that on being so informed an appellant would not seek leave to abandon his or her appeal so as not be exposed to a risk of imprisonment or to a further term of imprisonment."

A judge must, if he or she is considering increasing the severity of a sentence of imprisonment in the absence of any appeal by the respondent, at least put the appellant on notice that he or she is of that mind. Not to do so would be a failure to accord the convicted person procedural fairness. If a convicted person was advised that the appeal judge contemplated such a course the convicted person could abandon his or her appeal so as to avoid that consequence: (r 97.10, r 95.07) In the alternative the convicted person or that person's counsel could directly address the judge's concerns for the purpose of dissuading the judge from the contemplated course of action: Parker v DPP (supra) per Kirby P at 296.

Silence in a judge sitting without a jury is no longer a counsel of perfection: Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568 per Brennan, Deane and Gaudron JJ at 571 disapproving Jacobs J in R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248. Fairness demands that a Judge inform counsel or the convicted person of a contemplated course of action potentially prejudicial to the convicted person. It is particularly important in the criminal court that a convicted person is fully informed of a judge's contemplated action so that the convicted person is not taken by surprise: Pantorno v The Queen [1989] HCA 18; (1989) 166 CLR 466 per Mason CJ and Brennan J at 473.

When anyone is at risk of having a term of imprisonment increased by order of the Court that person is entitled to know of that risk by being notified by the Court of the possibility that it might increase the sentence.

However, for the reasons already given, in my opinion, the Court does not have power to increase the sentence unless the complainant has appealed from the sentence.

For these reasons I joined in the order allowing this appeal and an order dismissing the appeal to the Judge below.