R v Finnie

LOWER COURT District Court JURISDICTION : LOWER COURT 97/11/0208; 98/11/0784; 99/11/0054; 99/11/1195 FILE NUMBER(S) : LOWER COURT Coorey DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60437/02

Spigelman CJ DUNFORD J HOWIE J

MONDAY 17 MAY 2004 R v Sydney Thomas FINNIE (No 2 ) Judgment 1 SPIGELMAN CJ: I agree with Howie J. 2 DUNFORD J: I agree with Howie J. 3 HOWIE J: On 12 December 2002 the Court as presently constituted allowed a Crown appeal against the sentences imposed upon the respondent by Judge Coorey and, as a consequence, sentenced the respondent to an effective head sentence of 4 years 4 months with a non-parole period of 2 years 10 months. See R v Finnie [2002] NSWCCA 533. The sentences included a period of 10 months pre-sentence custody and, therefore, the respondent is presently eligible to be considered for release to parole on 11 December 2004. The respondent appealed against the Court's judgment to the High Court, but special leave was refused; Finnie v The Queen [2003] HCATrans 401. 4 There is now before the Court an application that the sentencing proceedings be re-opened pursuant to the power contained in s 43 of the Crimes (Sentencing Procedure) Act. That section is relevantly as follows:

43 Court may reopen proceedings to correct sentencing errors

(1) This section applies to criminal proceedings (including proceedings on appeal) in which a court has: (a) imposed a penalty that is contrary to law, or (b) failed to impose a penalty that is required to be imposed by law, and so applies whether or not a person has been convicted of an offence in those proceedings.

(2) The court may reopen the proceedings (either on its own initiative or on the application of a party to the proceedings) and, after giving the parties an opportunity to be heard: (a) may impose a penalty that is in accordance with the law, and (b) if necessary, may amend any relevant conviction or order. The question raised by the application is whether the Court has jurisdiction to resentence the respondent. 5 It is unnecessary to refer to the issues arising from the earlier proceedings other than to note one of the successful grounds of appeal relied upon by the Crown. Judge Coorey took into account a period of 18 months pre-sentence custody dating from 23 March 2000 the date upon which the respondent had been refused bail on some of the charges for which he was being sentenced. These charges were referred to during the proceedings in this Court as "the Glass indictment". However, from that date until 9 November 2000, the respondent was serving a term of full-time imprisonment by reason of the revocation of an order of periodic detention in relation to an earlier and unrelated sentence. The respondent remained in custody until released to bail by Judge Coorey on 6 September 2001. 6 This Court held that the sentencing judge was in error in backdating the sentence to a date when the respondent was serving a sentence for another unconnected offence and, as a consequence, determined that the respondent should receive the benefit of a period of 10 months pre-sentence custody rather than a period of 18 months as calculated by Judge Coorey. The present application is based upon an assertion that this Court was in error in its determination of the period of pre-sentence custody to which the respondent was entitled to have taken into account. 7 Judge Hosking imposed the sentence of imprisonment by way of periodic detention upon the respondent in June 1997. The relevant statutory basis of the order was the Periodic Detention of Prisoners Act 1981 (the 1981 Act). Under the provisions of that Act, it was not possible for a court to specify a non-parole period in respect of a sentence to be served by way of periodic detention. 8 The respondent commenced to serve the sentence but was granted bail when he appealed against the conviction from which the sentence arose. The appeal was dismissed and the Court ordered the respondent "to report to the Metropolitan Periodic Detention Centre on 29 October 1999 to commence serving the unexpired portion of his sentence". See R v Finnie [1999] NSWCCA 329 at [26]. As there was no appeal against sentence, it is plain that this Court did not purport to re-sentence the respondent but rather to require him to continue serving the sentence imposed by Judge Hosking. 9 The respondent was subsequently breached for failing to attend for periodic detention and the Parole Board revoked the order on 25 January 2000. As a result, he was ordered by the Board to serve the balance of the sentence, a period of 41 weeks, by way of full-time custody. That sentence commenced on 28 January 2000 and was to expire on 9 November 2000. On 22 March 2000 the respondent pleaded guilty to offences on the "Glass indictment". Because he was in custody serving the balance of the sentence imposed by Judge Hosking, bail was not sought and was refused. The respondent was, therefore, in custody from 23 March 2000 for two reasons: he was serving a sentence and bail was refused in respect of an offence for which this Court ultimately sentenced him. 10 The present application is based upon an assertion that this Court did not consider all the relevant facts relating to the breach of the periodic detention order and the consequential sentence served by the respondent. The argument set out in the written submissions on behalf of the respondent was that when the revocation came before the Parole Board the parties and the Board apparently acted on the erroneous belief that the sentence was imposed under the Crimes (Sentencing Procedure) Act 1999, when in fact the Crimes (Administration of Sentences) Act 1999 operated. As a result the Board believed that it lacked any power to release the respondent to parole, as the sentencing judge had not specified a non-parole period. However, this was an erroneous approach because the transitional and saving provisions contained in Division 2 of Schedule 5 to the Crimes (Administration of Sentences) Act applied to a sentence imposed under the 1981 Act. 11 The relevant provision is contained in Clause 31 of the Schedule. It is unnecessary for present purposes to set out the text of the clause, but in effect it provides that, in respect of an order made under the 1981 Act and imposed before February 1999, a person, who becomes liable to serve full-time imprisonment as a consequence of a revocation of the order, is eligible to be released to parole on the date the clause came into effect. The Parole Board is required, within 30 days of the date of revocation of the order, to consider whether or not the prisoner should be released to parole. 12 The date upon which Clause 31 commenced was 3 April 2000, and, therefore, that was the notional date upon which the respondent became eligible for release to parole. Mr Byrne SC, who appeared for the respondent on this application, conceded that at the date of the revocation of the periodic detention order, 25 January 2000, the Parole Board had no power to set a non-parole period or consider the release of the respondent to parole because the Clause had not come into operation. However, he submitted that the clause applied to the respondent from the date of its commencement and, thereafter, the Parole Board could have considered an application for release to parole by the respondent had he made such an application. The Crown agrees with this submission. 13 In light of these provisions, the submission made on behalf of the respondent and contained in the application for a re-opening of the proceedings was as follows:

The effect of the above is that [the respondent] could well have been eligible for parole on or about 3 April 2000, when the non-parole period for the periodic detention sentence expired. Assuming that this was the case, then the only reason that [the respondent] was in custody was due to the ` Glass Indictment ' and therefore it could be said that that period of custody was referrable to the matters upon which [the respondent] was sentenced by the Court of Criminal Appeal.

It is asserted that this Court is shown to have been in error in backdating the sentence to November 2000 rather than to the date in April 2000, once the true situation in respect of the respondent's sentence is revealed. That is the error that the present application seeks to have corrected under s 43. 14 It should be noted that s 43 is not concerned with the correction of all sentencing errors despite the apparent width of the section heading. The section only applies where one of two errors has occurred in the sentencing of the applicant; either the court has imposed a sentence that is contrary to the law or the court has failed to impose a penalty that is required to be imposed by law. There is a wide inclusive definition of the term "impose a penalty" contained in subsection 6, but it is unnecessary to consider it for present purposes. Assuming that it has jurisdiction to do so, this Court would have power to refix the commencement date of the sentences and to make any consequential orders. The question that arises is whether the Court has jurisdiction to reopen the proceedings. 15 This Court first considered the scope of one of the forerunners of the present section in R v Petrou (NSWCCA, 13 February 1990, unreported). The provision was then found in s 19 of the Criminal Procedure Act. The Court was there concerned with the scope of the word "penalty", but it recognised the beneficial nature of the provision and considered that the words of the section should be given the widest interpretation possible. The provision then under consideration does not differ in any material respect from the present section, but it should be noted that Parliament has varied the wording of the provision from that contained in s 19 while retaining the pre-conditions that must exist before the section can operate. 16 In Tolmie (1994) 72 A Crim R 416 this Court considered the nature of the sentencing errors to which the provision applied in light of similar provisions in other jurisdictions but was unable to form a concluded view as to that matter. However, in Ho v DPP (1995) 37 NSWLR 393 the Court of Appeal considered all of the relevant authorities and concluded that a broad approach should be taken to the provision, then found in s 24 of the Criminal Procedure Act. 17 Ho concerned the failure of a sentencing judge to take into account the period spent by the offender in custody for the offence for which he was later sentenced. The applicant sought prerogative relief but this was refused. Although it was unnecessary to do so for the purpose of determining the appeal, Kirby P, with whom the other members of the Court agreed, considered the scope of the provision in light of existing authorities. His Honour stated:

(1) The section appears in remedial legislation designed to permit, as Pt7 of the Act makes clear, "Correction of sentencing errors". Given the remedial purposes of the section, it should not be subjected to a narrow construction. See R v Petrou Court of Criminal Appeal (NSW), unreported, 13 February 1990;

(2) That a broad interpretation of the section was intended by Parliament is confirmed, not only by the general purpose of the section and the broad definition of terms provided in s24(7) of the Act. It is also confirmed by the Second Reading Speech of the Attorney General introducing the measure. See New South Wales Parliamentary Debates (Legislative Assembly) 21 September 1988, 1673. He stated that its object was to provide "a simple procedure to correct sentencing errors in criminal proceedings". He went on to explain: The availability of this procedure will enable matters to be dealt with expeditiously. It will relieve appellate courts of unnecessary work and is a further step in the implementation of the Governments undertaking to reduce court delays ... It is an important and practical step and savings to the Government and the administration of justice will be substantial. These considerations are not irrelevant given the limitations upon the facility of appeal in criminal matters such as the present, and the limitations upon (and technical requirements of) judicial review as well as the public and private costs that are involved in correcting mistakes of a simple character by such procedures. Reinforced by the Minister's explanation of the legislation to Parliament this Court should afford the language of the section the broadest available construction so as to achieve its stated objects;

(3) There are limits relevantly derived from the requirement that the penalty must be "contrary to law". Such limitations have been revealed in earlier cases. See, eg, Boyd v Sandercock (1989) 46 A Crim R 206 (SCQ), where the Queensland Full Court analysed the equivalent provisions of s147A of the Justices Act 1886 (Qld). In the end, the Court must adhere to the requirements of Parliament as expressed in the statutory language. Ex Parte Beane; re Bolton and Anor (1987) 162 CLR 514, 518. It must do so even if this results in a conflict with the stated intentions of the Minister;

(4) It is to be noted that the phrase used in s24(1)(a) is not "imposed a penalty that is not provided by law". A broader adjectival phrase is used to describe the "penalty" which authorizes the application of the section. It is enough that that penalty is "contrary to law". It is a part of the law.

His Honour concluded that it was open to the claimant to make an application under the provision to the District Court. 18 The authorities on this type of provision in this and other jurisdictions were considered by the Court of Appeal of Western Australia in Traegar v Pires de Albuquerque (1997) 18 WAR 432. The Court was called upon to determine the scope of s 37 of the Sentencing Act (WA) which relevantly provided:

If a court sentences an offender in a manner that is not in accordance with this Act or the written law under which the offence is committed, the court may recall the order imposing the sentence and impose a sentence that is. 19 That was a case where the prosecutor had erroneously informed the court sentencing two defendants for motor traffic offences that neither had any prior convictions. The true position was that they both had prior traffic matters as a consequence of which they would have been liable to a greater penalty than if they had been first offenders. The magistrate refused to reopen the proceedings on the basis that the section did not apply as the sentence imposed was according to law on the facts as presented to the court. The Crown appealed. 20 The Court of Appeal held, following an earlier decision of the Court in Shortland v Heath [1977] WAR 61 but acknowledging that there was room for debate on the question, that the section applied in circumstances in which the sentence imposed was in accordance with the applicable law on the facts as presented to the court but where, if the true facts had been known, some other sentence would have been required. 21 In Melville v The Queen (1999) 150 FLR 296 the Court of Criminal Appeal of the Northern Territory was required to consider s 112 of the Sentencing Act (NT) the relevant provision of which was as follows:

(1) Where a court has in, or in connection with, criminal proceedings (including a proceeding on appeal

(a) imposed a sentence that is not in accordance with the law;

b) failed to impose a sentence that the court legally should have imposed

the court (whether or not differently constituted) may reopen the proceedings unless it considers the matter should more appropriately be dealt with by a proceeding on appeal. 22 That was a case concerned with the application of a sentencing principle that at the time of sentence had been held to be applicable but later determined by the High Court to be erroneous. The sentencing judge, when sentencing the offender, had taken into account, as an aggravating factor, that the trial proceedings had caused the complainant distress. The Court of Criminal Appeal had dismissed the offender's appeal on the basis that the remarks disclosed no error. Shortly, thereafter, the High Court delivered its judgment in Siganto v The Queen (1998) 194 CLR 656. 23 In Siganto it was held that distress occasioned to a complainant by giving evidence in a criminal trial was not a matter that could be taken into account to aggravate the offence and increase the otherwise appropriate sentence. The offender then brought proceedings in the Court of Criminal Appeal under s 112 to have the sentencing proceedings reopened to correct the error resulting from the incorrect application of sentencing principle identified by the High Court. 24 The Court of Criminal Appeal held that s 112 did not apply to the Supreme Court when constituted as the Court of Criminal Appeal and, therefore, it had no jurisdiction to reopen the sentencing proceedings determined by a single judge of the Supreme Court. However, the Court did comment on the scope of the section, and, by applying Ho v DPP and other decisions on similar provisions, concluded that the section operated only to correct errors of law, but that a wrong application of sentencing principle was an error of law for the purposes of the section. The section applied in the case before the court because, in the words of Kearney J at [29], "the sentence was not imposed in accordance with the law applicable to the proper exercise of the sentencing discretion". 25 The Court of Criminal Appeal of the Northern Territory considered the scope of s 112 of the Sentencing Act (NT), a provision not materially different from s 43, in Staats v R (1999) 123 NTR 16. The sentencing judge had imposed a non-parole period upon the appellant on the basis, favourable to the offender, that a particular provision of the Sentencing Act (NT) concerned with the abolitions of remissions did not apply. The judge was aware, however, that this question was then being considered by the High Court in the appeal of Siganto, and averted to the possibility that he might be required to resentence the appellant if his interpretation of the provision was erroneous. After the High Court had delivered its decision revealing that the approach adopted by the sentencing judge was in error, the judge used the power in s 112 of that Act to reopen the proceedings and to fix, in accordance with the decision of the High Court, a longer non-parole period than that originally imposed. 26 Malcolm CJ stated that in his view:

"….s112 is limited in its application to errors of law in relation to the imposition of the sentence. It does not extend to the correction of reasons or review of the exercise of a discretionary judgment"

However, his Honour held that the section permitted the course adopted by the sentencing judge. Thomas J was also of the view that the sentencing judge was empowered to alter the sentence including the non-parole period in light of the fact that he had originally sentenced the appellant on an incorrect view of the applicable law. 27 Angel J also held that the sentencing judge did not err in re-opening the proceedings under the section. As to the scope of that provision, his Honour stated, at [27]:

That section gives a sentencing judge the power to re-open proceedings where the court has "imposed a sentence that is not in accordance with the law'' or has "failed to impose a sentence that it should legally have imposed''. The section is somewhat akin to a slip rule. Its purpose appears to be to reduce the number of appeals against sentences. It should, in my opinion, be given a broad interpretation. The section does not employ the expression "error of law''. The section does not empower the court to re-open a case merely because it has changed its mind as to the appropriate sentence. It is not necessary in the present case to decide the limit of a sentencing judge's jurisdiction to re-open the case. It at least includes errors of law. It may well include judicial oversight of a fact obviously material for sentencing purposes, ie in a case where the court makes clear findings of fact, plainly applies the correct law to those facts, but overlooks a further fact, which, had it been taken into account, would obviously have affected the result. I would wish to hear argument on the issue before reaching any concluded view on the limits of the section. 28 In R v McMahon [2002] QCA 18, the Queensland Court of Appeal considered the scope of s 188 of the Penalties and Sentences Act (QLD) in a situation where the law had changed after the sentence was passed and, if the changed law had applied to the appellant, it would have resulted in a less severe sentence. The Court held that the section had no application to such a factual situation. It should be noted, however, that the operation of the provision was not in its terms restricted to errors of law in the imposition of the sentence but included circumstances where there had been "a clear factual error of substance in the sentence". The Court held that there had been no factual error existing at the date of the sentence. 29 In Erceg v District Court of NSW [2003] NSWCA 379 the Court of Appeal considered the scope of the power under s 43 in a case where there was confusion as to the exact term of imprisonment imposed on the offender and, in particular, where there was a dispute as to the length of the non-parole period that had been fixed by the sentencing judge. The majority of the Court, McColl JA and Palmer J, were of the view that, although the section did not permit the court to re-open sentencing proceedings simply to clarify the sentence that had been imposed, the power was broad enough to cover a situation, where, through inconsistencies and discrepancies in the pronouncement of the sentence, a relevant error had occurred. The third member of the Court, Sheller JA, found it unnecessary to consider the scope of the section and whether it could be used to reopen the sentence proceedings. 30 This brief review of authorities on provisions similar to s 43 indicates that there may be at least one outstanding question to be resolved as to the scope of the provision: does the section apply to an error of law in the imposition of a sentence arising as a result of erroneous facts presented to the court or does it only apply to a sentence that was erroneous in law upon the facts presented to the court? It is, however, unnecessary to answer that question for the determination of the present application. 31 In my view there has not been disclosed any error of law made by this Court in the sentencing of the respondent which would attract the operation of s 43. It is not a case such as Ho v DPP where the Court failed to take into account a relevant sentencing fact or principle. Nor is it a case where this Court incorrectly applied a relevant sentencing principle or applied a principle later found to have been erroneous. This Court had a discretionary decision to make on the material before it as to when the sentences imposed by it were to commence. Provided that discretion was exercised in a principled way, and there has been no suggestion that it was not, no error of law could arise. 32 There is no doubt, in my mind, that the section can be engaged as a result of an erroneous finding of fact or an omission to find, or take into account, a relevant fact. As Angel J points out, the section does not use the expression "error of law". Further, there is no requirement that any error be identified except in the outcome of the sentencing proceedings. It does not matter whether the sentencing court made a mistake of law or of fact in arriving at a penalty that was contrary to law or in failing to impose a penalty in accordance with the law. It is not difficult to imagine a situation where a sentencer misunderstood or overlooked a fact in evidence before the court and as a result imposed a sentence that fell within the scope of the provision. A not uncommon example would be where the failure to take into account the existence of a particular traffic conviction resulted in the court failing to impose the disqualification period mandated by statute where such a prior conviction exists. Where a relevant error is established, the section is engaged and, at least in so far as the jurisdiction of the court to reopen the sentencing proceedings is concerned, it is unnecessary for the court to determine how the erroneous sentence came about. 33 In any event, in my opinion there was no factual error disclosed in the Court's reasoning for allowing the Crown appeal and imposing the sentences on the respondent that it did. Nor is there any error revealed after a consideration of the material upon which the respondent now seeks to rely. The respondent was within the period from April to November 2000 serving a sentence of imprisonment originally imposed by Judge Hosking and later implemented by the Parole Board. He was not in custody only by reason of an offence for which he was sentenced by Judge Coorey and later by this Court. The reasoning upon which the present application was founded requires this Court to act on the basis that the respondent was not serving a sentence by reason of the revocation of the order of periodic detention or should not be treated as if he were, even though as a matter of plain fact and law he indisputably was. 34 However that may be, the argument for the respondent is based upon two assumptions of fact that I would not be prepared to make. It is submitted that, firstly, had the respondent been aware of the true situation, it is likely that he would have made an application to the Parole Board after 3 April 2001 and, secondly, had he made such an application, it is likely that the Parole Board would have released the respondent to parole. As to the first assumed fact, there is no evidence before the Court from the respondent as to whether he would have made an application for release to parole had he known of his rights after 3 April, and I am not prepared to act on the basis of an inference that it was likely that he would have done so. He had made no application for bail on the Glass indictment, and there was an obvious tactical reason for him to forgo any release on the basis of serving some period in custody referable to the charges for which he was to be sentenced prior to sentencing. 35 As to the second assumed fact, this Court knows nothing about the material that might have been placed before the Parole Board if it had been called upon to determine whether to release the respondent or what considerations may have been relevant to that decision at that time. What is known is that the respondent failed to attend periodic detention because of a claimed illness, but that the Board rejected this excuse as not being bona fide. It is also known that the respondent was arrested for offences of dishonesty committed while he was on conditional liberty serving a sentence by way of periodic detention. 36 Mr Byrne sought to rely, as support for the second assumed fact, upon what he contended was a legislative presumption that persons serving a sentence of less than three years be released to parole. This presumption was said to arise from s 50(1) of the Crimes (Sentencing Procedure) Act. That section in effect provides that when a court sentences an offender to a sentence of a term of three years or less, the court must specify the date upon which the offender is to be released to parole. In such a case the offender does not come before the Parole Board at the conclusion of the non-parole period. But that section by its terms only applies to a court when sentencing an offender and there are clearly different considerations to be applied by the Board when determining whether, and when, to release to parole an offender who has breached a periodic detention order. 37 In any event, in my view there is no point in the Court speculating upon what the Parole Board might have done had they considered whether to release the respondent to parole. Section 43 does not give this Court power to review a sentence simply because it is alleged that some injustice may have taken place at some stage, or at some time, in the period leading up to the imposition of the sentence. Although the Court might have taken into account the facts now placed before it when determining whether, and to what extent, to backdate the sentence imposed upon the respondent, the failure to do so, when those facts were not before the Court, does not itself engage the section. 38 The sentence imposed by this Court cannot, even on the broadest view of the words of s 43(1), be categorised as "a penalty that is contrary to the law". Nor did the Court fail "to impose a penalty that is required to be imposed by law". It does not matter for the purposes of determining this application whether the matter is approached on the basis of a consideration of the evidence that was before the Court when it sentenced the respondent or whether regard is had to the material now proffered in support of the application. The sentence imposed does not fall within the terms of the section on any factual basis either existing or assumed. 39 I am of the opinion that the Court has no jurisdiction to re-open the sentencing proceedings and I propose that the application be refused. **********

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