The consequences of the judgment of 8 May 2019
- Upon the dismissal of the respondent's summons under s 69 of the Supreme Court Act, the stay of execution that operated by reason of s 69C(2) came to an end: s 69C(4). The judgment did not itself operate to adjust the commencement dates of the sentences. Power to make orders to that effect is conferred by s 69A(5), set out above. That was the power invoked by prayer 2 of the DPP's 10 May 2019 notice of motion. Such a power is also conferred by s 69D, which the DPP had invoked in its 9 November 2018 notice of motion.
- It will be recalled that what was sought by prayer 2 of the notice of motion of 10 May was an order pursuant to s 69A(5) that the sentences (plural) imposed on 12 December 2017 "are to commence and take effect from the day on which [the respondent] is taken into custody".
- There were at least three problems with the manner in which this proposed order was framed. First, "the sentences" imposed by the District Court were not all expressed to commence on the same day; the sentences were structured so as to provide for some accumulation, so that the sentences for the second and third tranches of offences commenced on dates later than 12 December 2017 (and had commensurate expiry dates). To order that all three sentences commence on the same date (as sought) would be to defeat the purpose of the structuring of the sentences. No reason was advanced why this Court should depart from the District Court structuring. Nor would such an order achieve the DPP's purpose, which was to ensure that the respondent serves terms of imprisonment in accordance with the sentences imposed by Hoy DCJ. Second, it is doubtful that a sentence expressed to "commence and take effect on a day on which [the respondent] is taken into custody" is a sentence that "is to commence … on a day specified by the Court" as required by s 69A(5). Third (although the order was not sought under s 69D), such an order would not comply with the requirements of that provision that the sentence take effect on a specified day "being the day the order is made or an earlier day". Plainly, s 69D does not contemplate specification of a day later than the date of the orders as would be the case were the orders sought in prayer 2 to be made.
- On the hearing, the DPP sought and was granted leave to amend prayer 2 of the notice of motion to seek an order specifying 8 May 2019 (the date of dismissal of the s 69 summons) as the date of commencement of the sentences. That recognised that, by s 69C(4) of the Supreme Court Act (subject to any order or direction of the Court), the stay of execution imposed by virtue of sub-s (2) continued in force [only] until the date of disposition of the judicial review proceedings. But the cessation of the stay of execution did not of itself affect the commencement date of the sentences, the first and second tranches of which had already expired. Even if it could be said that the cessation of the stay of execution had the effect of recommencing the sentences, that did not accommodate the staggered commencement dates. Section 69A(5) permitted adjustment of the commencement dates to allow for the structuring ordered by Hoy DCJ.
- Section 69A (with s 69B, which is of no present relevance) were introduced into the Supreme Court Act by the Criminal Legislation Amendment Act 1996 (NSW). Section 69A was said, in the Explanatory Note that accompanied the Bill that became the Act, to have been intended to address "concerns" expressed by the Court of Appeal in cases such as Parker v Director of Public Prosecutions (1992) 28 NSWLR 282 at 298-299 and Blazevski v Judges of the District Court of New South Wales (1992-93) 29 ALD 197 at 202-203.
- The concerns expressed in Parker and Blazevski were about the power (or the absence of power) of this Court to make orders adjusting the commencement dates of sentences, execution which had been stayed pending determination of judicial review proceedings. A similar issue had previously arisen in Whan v McConaghy (1984) 153 CLR 631; [1984] HCA 22.
- Sections 69C and 69D were inserted into the Supreme Court Act two years later, in the context of extensive amendments, largely procedural, to justice administration legislation: Justice Legislation (Appeals) Act 1998 (NSW).
- Some tension between s 69D(1) and s 69A(5) is apparent. While both subsections confer on this Court a power to make an order specifying a new commencement date for a sentence that has been the subject of an application for s 69 review, execution of which has therefore been stayed by operation of s 69C(2), the s 69D power is confined to specifying the day on which the order is made, or an earlier day. It does not permit the Court, in effect, to post-date commencement of a sentence. The power conferred by s 69A(5) is not so confined.
- Section 69D was the subject of consideration by this Court in Whiteside v The Director of Public Prosecutions [1999] NSWCA 454. The Court (Mason P, Handley and Stein JJA) said:
"35 The power conferred by s69D necessarily requires this Court to assess the real impact of the sentence served or not served pending the application. The power (like the similar power in s133P of the Justices Act) may take account of punishment actually endured pursuant to orders that are about to be set aside or intended punishment avoided pursuant to the grant of bail pending the review proceedings (cf Whan v McConaghy (1984) 153 CLR 631). In order to do this the Court is not confined to a simple numerical exercise. While it is not exercising an appellate jurisdiction as on a rehearing, its power under s69D is obviously available to be used in a way that addresses the substantive issue as regards the reinstatement of the penalty that properly should have been served. The limit is that this power is only available to be exercised in the manner contemplated by s69D(1). (The District Court's powers under s133(2) are wider in their terms.)"
The Court had earlier rejected a submission that s 69D conferred powers of which only the Crown could take advantage.
- There is no reason why the observations of the Court concerning s 69D should not apply equally to the power conferred by s 69A(5). The language of s 69A(5) is unambiguous. Pursuant to that subsection, this Court has power to adjust the commencement dates of the sentences, including by post-dating the commencement of the second and third tranches. That is in accordance with conventional sentencing practice. It is also in accordance with the stated purpose of the enactment of s 69A.
- The intention of the District Court was that the respondent would serve a sentence of 1 year and 9 months, of which 1 year and 1 month would be served in custody. She has not, to the date of the hearing of this application, served a day of that sentence. This is, in my opinion, precisely the circumstance (or one of the circumstances) to which s 69A(5) is directed, and it is that power that the DPP sought to have exercised.
- No adequate reason was advanced why the respondent should not now serve the sentences. In this respect it is appropriate to acknowledge that, during the course of the hearing, counsel for the respondent tendered what purported to be a medical certificate detailing certain conditions from which the respondent is said to suffer. The certificate, it was contended, was relevant to the exercise of the Court's discretion in making (or not making) the orders sought. Objection to the admission of the medical certificate was taken. Determination of the objection was reserved
- The medical certificate was in a form commonly tendered in sentencing proceedings. It is not in a form appropriate for the consideration of a notice of motion invoking discretionary powers of this Court in proceedings for judicial review. I would reject the tender of the report.
- Even if the report were admitted, it could not have affected the outcome. When pressed to identify the orders that ought to be made in the exercise of discretion, counsel appeared to suggest that a lesser sentence should be imposed. Since this is not a sentencing court, nor a court to which appeals against sentence may be brought, that could only be achieved by the selection of earlier commencement dates of the sentences, such that the period to be served in custody is reduced or eliminated.
- In my opinion, the material contained in the medical report, even if it were admitted, would be insufficient to justify any orders that would have the practical effect of reducing the sentences imposed. Medical conditions are not uncommon in offenders serving terms of imprisonment, and the Department of Corrective Services is equipped to provide the necessary treatment.
- There is, therefore, no apparent reason why the respondent should not be required to serve sentences in accordance with those determined by the District Court on 12 December 2017. The DPP's application for an order under s 69A(5) was unanswerable. The order sought in prayer 2 (as amended) is purely a reflection of the statutory provisions. That is why it was appropriate to make Declarations 1(b) and (c). In fact, since Declaration 1(b) is that the first of the sentences take effect from 8 May 2019, and the declaration was made on 16 May 2019, the respondent will in fact be required to serve something less than the stated term, depending on when she is taken into custody.
- For those declarations to be effective, appropriate and valid warrants are necessary. That is because it is warrants, not orders of a court, that authorise the detention of an offender: s 63(2) of the Sentencing Procedure Act. Declaration 1(a) clears any lingering doubt about the efficacy of the third of the existing warrants to authorise the apprehension and detention of the respondent, but that is effective only until 11 September 2019.
- In order to ensure the effectiveness of Declarations 1(b) and (c) it was necessary to make consequential orders. The authority pursuant to which an offender may be held in custody is a warrant issued (in this case) under s 62 of the Sentencing Procedure Act. By s 242 of the Criminal Procedure Act 1986 (NSW), a warrant must, inter alia, specify the period during which the offender is to be kept in a correctional centre. The existing warrants specify 12 December 2017 to 11 December 2018, 12 June 2018 to 11 February 2019 and 12 June 2018 to 12 December 2019 as the periods during which the respondent is to be kept in custody. Those dates no longer accord with the commencement and expiry dates of the sentences as declared by this Court. The third of the existing warrants is sufficient authority for the detention of the respondent until, but not beyond, 11 September 2019. There is presently no warrant that authorises her detention beyond that date. By prayer 6 of the notice of motion, the DPP sought the issue by this Court of warrants that accord with the revised sentence dates. It was accepted, however, that s 62 of the Sentencing Procedure Act provides no authority for that to be done. The power conferred by s 62 is limited to the sentencing court, which this Court is not.
- It will therefore be necessary for the existing warrants to be amended in accordance with those declarations in order to provide authority to a correctional centre to continue to detain the respondent beyond 11 September 2019. Amendment of warrants issued in the District Court under s 62 of the Sentencing Procedure Act is not a function, and is beyond the power, of this Court. It was for that reason that it was appropriate to make order 2, remitting the proceedings to the District Court for amendment of the warrants.
- What remained was the question of the parole orders. It was my view that, given the adjustment of the dates in the sentences, the parole orders made on 12 December 2017 were of no force or effect. Not least is that because, by s 126(2)(b) of the Administration of Sentences Act (set out above), the respondent is eligible for release on parole only if she has served the non-parole period of each sentence. She has not done so. She was therefore not eligible for release on parole. It was necessary to adjust the parole orders to accommodate the revised sentence dates. That was the reason for the declaration numbered 1(d).
- It remains to explain the reason for refusal of the application for stay of the orders of this Court until 4.00pm on 17 May 2019. The basis for the application was said to be to enable the respondent to apply for an inquiry into her convictions and/or sentences. Part 7 of the Appeal and Review Act provides a mechanism by which such an inquiry may take place. There is nothing to prevent the respondent from making such an application at any time. There is no provision in Part 7 that would prevent the sentences from running in the event that an application is made. Nothing would have been achieved by the ordering of a stay of execution of the orders of this Court for the purpose stated. It was therefore appropriate to refuse the application.