R v Featherstone (No 2) [2019] ACTSC 258 (18 September 2019)

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

[2019] ACTSC 258

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Information, indictment or presentment - charge committed for sentence following plea of guilty included in indictment - Crown indicates intention to file notice declining to proceed on charge in indictment - parties proceed on basis that charge committed for sentence intended to be subject to notice declining to proceed - sentence imposed on charge - whether sentence "contrary to law" for purposes of s 61 Crimes (Sentencing) Act 2005 (ACT)

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Committal to Supreme Court - s 90A of the Magistrates Court Act 1930 (ACT) - where offender committed to Supreme Court for sentence after a plea of guilty - whether offender needed to confirm adherence to a plea of guilty to be sentenced in Supreme Court - effect of s 90A(8) of Magistrates Court Act 1930 (ACT)

Crimes Act 1900 (NSW), s 577

Crimes (Sentencing) Act 2005 (ACT), ss 17, 61

Director of Public Prosecutions Act 1990 (ACT), s 7(6)

Magistrates Court Act 1930 (ACT), s 90A

R v DF (No 2) [2012] ACTSC 3; 6 ACTLR 105

R v Featherstone [2019] ACTSC 218

R v Livas [2013] ACTSC 214

CE Weigall, Hamilton and Addison Criminal Law and Procedure New South Wales (Law Book Co of Australasia, 4th ed, 1940)

1. The Crown has sought to correct what it says is a sentencing error pursuant to s 61 of the Crimes (Sentencing) Act 2005 (ACT). That section provides:

(1) This section applies to a criminal proceeding (including a proceeding on appeal) in which a court has -

(a) made a sentence-related order that is contrary to law; or

(b) failed to make a sentence-related order that is required to be made by law.

(3) The court may reopen the proceeding (on the application of a party to the proceeding, or on its own initiative) and may, after giving the parties an opportunity to be heard, do either or both of the following:

(a) make a sentence-related order that is in accordance with law;

(b) amend any relevant finding of guilt, conviction, sentence or order.

2. On 16 August 2019 I imposed an aggregate sentence of seven years and nine months' imprisonment with a non-parole period of five years and two months for nine offences: see R v Featherstone [2019] ACTSC 218. I dismissed three other charges under s 17 of the Crimes (Sentencing) Act. On charge CC2018/3354, a charge of riding in a motor vehicle without consent, the offender was convicted and sentenced to imprisonment for seven months commencing on 28 April 2025 and ending on 27 November 2025. The sentence was cumulative as to three months upon an earlier sentence and hence added three months to the aggregate sentence to be served.

3. Counsel for the Crown submitted that it was an error to impose any sentence upon this charge and hence an order under s 61 of the Crimes (Sentencing) Act should be made. In order to understand this submission it is necessary to understand the procedural history associated with the charge.

4. Damien Featherstone was charged upon charge CC2018/3354 on 1 March 2018. That was a charge that, on 28 February 2018, he dishonestly and without consent drove a motor vehicle belonging to another namely, Mr Yang Liu. On 22 March 2018 he pleaded not guilty to that charge. On 12 June 2018 he changed his plea to a plea of guilty. As a consequence on 26 June 2018 he was committed by a magistrate to the Supreme Court to be dealt with under s 90A of the Magistrates Court Act 1930 (ACT).

5. As at 26 June 2018 s 90A of the Magistrates Court Act provided, relevantly:

(1) This section does not apply in relation to a person charged with an indictable offence punishable by imprisonment for life.

(2) Subsections (3), (4), (5) and (6) do not apply in relation to a person charged with an offence in relation to which the Crimes Act, section 374 or section 375 applies.

(3) A person (the accused person) who is before the court charged with an indictable offence may at any stage of the proceeding plead guilty to the charge.

(4) The court may accept or reject the plea but the rejection of the plea at any stage of the proceeding does not prevent the accused person from pleading guilty under this section at a later stage of the proceeding and the court may accept or reject the plea at that later stage.

(5) If the court rejects the plea, the proceeding before the court must continue as if the plea had not been made.

(b) any of the following subparagraphs applies to the offence:

(i) the offence is under a law in force in the ACT punishable either on indictment or summary conviction;

(ii) the offence may be dealt with summarily without the accused person's consent;

(iii) the offence may be dealt with summarily if the accused person consents and the accused person consents to it being dealt with summarily;

(iv) the offence may be dealt with summarily if the prosecutor requests and the prosecutor requests that it be dealt with summarily; and

(c) it appears to the court that it is proper to deal with the case summarily;

the court may, without hearing further evidence, sentence or otherwise deal with the accused person and finally dispose of the charge and all incidental matters.

(b) any of the following subparagraphs applies to the offence:

(i) it does not appear to the court that it is proper to deal with the case summarily;

(iii) the offence may be dealt with summarily if the accused person consents, but the accused person does not consent to it being dealt with summarily;

(iv) the offence may be dealt with summarily if the prosecutor requests, but the prosecutor does not request that it be dealt with summarily;

(v) this subsection applies to the accused person under the Crimes Act, section 374 or section 375;

the Magistrates Court must commit the accused person to the sittings of the Supreme Court that the Supreme Court directs and the Supreme Court must deal with the accused person in accordance with subsections (8) to (13).

(8) A committal under subsection (7) is taken, for all purposes relating to the venue or change of venue of a proceeding consequent on the committal, to be a committal for trial.

(9) The Supreme Court may order that the proceeding before the Magistrates Court where the accused person pleaded guilty be continued at a time and place stated in the order.

(10) The Supreme Court must make an order under subsection (9) if -

(a) it appears to the Supreme Court from the information or evidence given to or before it that the facts in relation to which the accused person was charged before the Magistrates Court do not support the charge to which the accused person pleaded guilty; or

(b) the accused person or a lawyer representing the accused person or informant asks that the order be made.

(11) Except if an order is made under subsection (9), the Supreme Court has the same powers of sentencing or otherwise dealing with the accused person and of finally disposing of the charge and of all incidental matters as it would have had if the accused person, 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 Attorney-General of the Commonwealth.

(12) The procedure relating to committal for trial applies, as nearly as may be, to a committal under subsection (7) and bail may be granted as on a committal for trial, but a person must not be bound over to give evidence on a committal under that subsection unless the court otherwise orders.

(13) If an order is made by the Supreme Court under subsection (9) that the proceeding before a court where an accused person pleaded guilty be continued at a time and place stated in the order -

(a) the proceeding must be continued in all respects as if the accused person had not pleaded guilty and as if the proceeding had been adjourned by the court to the time and place so stated; and

(b) the Supreme Court may exercise any power that the Magistrates Court might have exercised under division 3.4.3 (Remand) if the order had been an order made by the Magistrates Court adjourning the proceeding to the stated time and place, and that division applies in relation to the accused person.

6. On 11 February 2019, an indictment dated 8 February 2019 was filed in the Supreme Court. That included three charges relating to Mr Yang Liu in which Mr Featherstone was alleged to be involved. They were Count 16 (a charge of intentionally inflicting grievous bodily harm), Count 17 (a charge of robbery) and Count 18 (a charge that he rode in a motor vehicle belonging to Mr Yang Liu). The back sheet of the indictment indicated that Count 18 was a charge of take motor vehicle without consent contrary to s 318(1) of the Criminal Code 2002 (ACT) and bore the charge number CC2018/3354. It should be noted that contrary to the terms of the charge that was committed for sentence, Count 18 asserted that he rode in a motor vehicle rather than drove in a motor vehicle. Further, it was a charge under s 318(1) as opposed to a charge under s 318(2) which had been committed for sentence.

7. At no point following committal did Mr Featherstone make an application to withdraw his plea of guilty upon the charge for which he was committed for sentence by the Magistrates Court.

8. At the commencement of the trial the Crown indicated that it would not proceed with Counts 16, 17 and 18. Counsel for the Crown said that in relation to those counts, "We'll be filing a notice of discontinuance". That was because the complainant was overseas and unable to give evidence as part of the Crown case. As a consequence the accused was not arraigned on those charges, those counts were redacted from the copy of the indictment that was given to the jury and nothing further done about them. The Crown did not in fact file a notice of discontinuance during the course of the proceedings in relation to those charges, although it intended to do so at some point. Also included on the indictment were a number of other charges which had been committed for sentence following a plea of guilty. Mr Featherstone was arraigned on these charges and pleaded guilty to them.

9. At the trial Mr Featherstone was convicted of the two offences remaining on the indictment to which he had not pleaded guilty. They were charges of using an offensive weapon likely to endanger human life or cause grievous bodily harm (CC2018/5352) and forcible confinement (XO2018/31432).

10. Having regard to the different possible bases upon which the jury may have reached its verdict in relation to the charge of using an offensive weapon likely to endanger human life or cause grievous bodily harm, the parties requested that I provide to them my findings of fact for the purposes of sentencing prior to sentencing submissions. That was done by email five days prior to the date listed for sentencing submissions. The findings of fact related to each of the charges upon which Mr Featherstone had been found guilty or to which he had pleaded guilty. Included in that statement of facts was the following in relation to charge CC2018/3354:

Later on 28 February 2018, Mr Featherstone drove a motor vehicle namely a white Toyota Camry which had been stolen from Mr Yang Liu (CC2018/3354).

11. That was included on the basis that there was an outstanding charge upon which Mr Featherstone had been committed for sentence. At the time of provision of the findings of fact to the parties, my associate indicated that "subject to any further submissions that the parties wish to make at the sentencing hearing" the findings of fact were as set out in the email. The formulation of the charge was consistent with the charge to which Mr Featherstone had pleaded guilty, as distinct from the charge in the indictment. No party, either following the receipt of the draft findings of fact or at the sentencing hearing, made any submission to the effect that Mr Featherstone should not be sentenced upon that charge or that the stated facts were incorrect.

12. In support of the application to reopen proceedings under s 61, the Crown submitted that although the offender pleaded guilty to CC2018/3354 in the Magistrates Court "he was never arraigned upon it in the Supreme Court. He did not adhere to that plea." The Crown also pointed to the statement on the first day of the trial that the Crown would file a notice of discontinuance in relation to Counts 16, 17 and 18.

13. The solicitor for Mr Featherstone made the following points:

(a) He referred to the decision of Refshauge J in R v DF (No 2) [2012] ACTSC 3; 6 ACTLR 105 where his Honour indicated that even in cases where the Crown accepts a plea of guilty in full satisfaction of the indictment, it is preferable that the Crown file a notice declining to proceed in relation to the charges which have not been pleaded to.

(b) He noted that some of the other charges to which Mr Featherstone pleaded guilty in the Magistrates Court were included in the indictment and he pleaded guilty before the jury.

(c) He said "these were the matters that the parties understood were proceeding to sentencing".

(d) He submitted that the plea of guilty in respect of Count 18 "was not adhered to in the Supreme Court and should not have been relied upon". He records his understanding that the prosecution relied upon s 90A(8) of the Magistrates Court Act.

(e) He noted that the parties did not note the reference to the drive offence in the summary of facts provided prior to sentencing submissions, but that they should have and it was an error of the parties which ultimately led "the court to make an error contrary to law".

14. The submissions made by the Crown appeared to proceed on the basis that a committal for sentence under s 90A was only effective if the defendant "adhered" to his plea and possibly also that the charge was included in an indictment. If that was the basis of the Crown position then it appears to be incorrect.

15. Section 90A(11) indicates that upon the making of an order under s 90A(7), the Supreme Court has the same powers of sentencing as if the person had pleaded guilty on arraignment at any sittings of the court on an indictment filed by the Attorney-General. That subsection makes it clear that nothing further is required by way of "adherence" to the plea or the inclusion of the charge in an indictment in order to empower the Supreme Court to impose sentence.

16. There are only three ways in which a person who is been committed for sentence may avoid being sentenced. The first is an application to withdraw the plea of guilty. The second is through the Crown choosing not to proceed on the charge and filing a notice under s 7(6) of the Director of Public Prosecutions Act 1990 (ACT). The third is by asking to have the matter remitted to the Magistrates Court under s 90A(10) (where an application to withdraw the plea of guilty would ultimately need to be made: R v Livas [2013] ACTSC 214 at [13]). No application was made by Mr Featherstone to withdraw his plea of guilty or to have the matter remitted. It appears to me to be doubtful that where a plea of guilty has already been entered on a charge, the proceedings in relation to that charge may be effectively terminated by the Crown accepting pleas of guilty in relation to other charges in full satisfaction of the indictment without the filing of a notice declining to proceed. Even in cases where there has not been a plea of guilty, such an approach has been identified as being less than ideal: see R v DF (No 2) at [45].

17. The charge included in the indictment in the present case was a different one to that which was committed for sentence. The charge on which Mr Featherstone pleaded guilty in the court below was one of drive a motor vehicle contrary to s 318(2) of the Criminal Code. The charge on which he was indicted was a charge of riding in a motor vehicle. Notwithstanding that it was a charge of riding in a motor vehicle, the charge asserted that Mr Featherstone did not have consent to "take" the vehicle from Mr Liu. That confused the elements of the different offences under s 318(1) and (2). Notwithstanding that the charge of riding in a motor vehicle falls within s 318(2), the back sheet of the indictment identified that it was a "take" charge under s 318(1). Leaving aside the defects in the formulation of and identification of the charge in the indictment, having regard to the fact that he had already pleaded guilty in the Magistrates Court, it is not clear why the charge was included in the indictment. To do so in relation to a charge committed for sentence would appear to me to be redundant. To the extent to which the charge was a different one from that which was committed for sentence, then it amounted to an ex officio charge which must have been separate from that committed for sentence.

18. I do not accept that s 90A(8) means that a committal for sentence is the equivalent of a committal for trial so as to require a committed charge to be included in the indictment or have a plea otherwise confirmed before sentence. That is inconsistent with the terms of subs (11). It is also inconsistent with the words of subs (8) which makes it clear that the statement in subs (8) that a committal under subs (7) is to be taken to be a committal for trial is only "for all purposes relating to the venue or change of venue of a proceeding". Thus there is a limited purpose in relation to which it is taken to be a committal for trial. It is only to ensure, in relation to issues of venue or change of venue, that a committal for sentence is treated in the same way as a committal. It is thus a procedural device to ensure that committal for sentence picks up on the procedures relevant to venue or change of venue as apply in relation to committal. The language of this subsection which was inserted by the Court of Petty Sessions Ordinance 1958 (ACT), is derived from the procedural reforms introduced in New South Wales by the Crimes (Amendment) Act 1955 (NSW). Those reforms permitted an early plea of guilty before a justice to be committed to the Supreme Court or a Court of Quarter Sessions without the necessity for the usual committal process. The reference to change of venue picked up the procedural provisions in the Crimes Act 1900 (NSW) such as s 577 which permitted a change of venue in order to permit a fair and unprejudiced trial to be had and which were necessary because, at least in New South Wales, a person was committed for trial at the court specified in the committal order: CE Weigall, Hamilton and Addison Criminal Law and Procedure New South Wales (Law Book Co of Australasia, 4th ed, 1940) at 472. Venue and change of venue were and are of limited significance in the Territory, notwithstanding the adoption of the New South Wales language.

19. The position was therefore that charge CC2018/3354 as committed for sentence remained on foot and the Crown had not, by indicating that it would file a notice declining to proceed in relation to Count 18, terminated or indicated an intention to terminate the charge to which a guilty plea had been entered. In other words, the charge was still on foot and was not the subject of an undertaking by the Crown to terminate it.

20. In those circumstances, it is not a case in which the sentence was contrary to law because the proceedings were not on foot. Rather, it was a case in which the parties had each proceeded on the understanding that the approach adopted by the Crown in relation to Count 18 would be effective to terminate the proceedings which had been committed for sentence.

(a) That the charge and the indictment was intended to reflect the same charge which was committed for sentence, notwithstanding that the articulation of the charge was different and picked up the operation of a different subsection.

(b) The notice declining to proceed was intended to cover that charge as formulated in the indictment as well as the charge as formulated in the charge that was committed for sentence.

(c) Both parties had the understanding that the Crown's stated intention to file a notice declining to proceed in relation to Count 18 would terminate charge CC2018/3354 however it was formulated.

22. In those circumstances it appeared to me that, notwithstanding that the charge number and the facts of the charge that were committed for sentence were identified in the draft statement of facts provided to the parties, that there was either a denial of procedural fairness or alternatively, a miscarriage of justice in proceeding to sentence Mr Featherstone on that charge. That was sufficient to meet the threshold in s 61 that the order made in relation to that charge was "contrary to law" and hence to enliven the power to reopen the proceedings and amend the order under s 61(3). I therefore made the following orders:

2. The orders made on 16 August 2019 are amended by:

(a) deleting Order 9 (the sentence on CC2018/3354); and

(b) amending Order 13 by deleting "27 April 2023" and inserting "27 February 2023".

I certify that the preceding twenty-two [22] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.