44 The Court notes immediately that the head "sentences" set out above do not correspond with the sentences set out in the endorsement to the committal for sentence document of 4 December 2002. The only consistency (if such it could be called) is that there is an aggregate head sentence of nine years with an aggregate non-parole period of six years.
45 However, a non-parole period is allocated to each specific offence in the table as distinct from the global non-parole period endorsed on the committal for sentence.
46 Further, his Honour has taken into account the offences in the Form 1 in the third committal for sentence matter and not in the first committal for sentence matter, as in the endorsement.
47 Whatever his Honour's intentions may have been by the publication of this document, it cannot be taken to be the formal sentencing of CJP with accompanying reasons for sentence. Leaving aside for the moment what transpired on 4 December 2002, the "sentences" were not announced in open court and CJP was not present. There is nothing to indicate that he had voluntarily absented himself. The document cannot be treated as reasons for the "sentences" imposed on 4 December 2002 because no valid sentences were imposed on that date. In any event, as will be explained later, the "reasons for sentences" are too remote in time.
48 This leads to the exceptional and unfortunate consequence that at no stage has CJP been lawfully sentenced in the District Court with respect to the charges to which he pleaded guilty and for which he acknowledged responsibility in the Form 1 document. That being so, it is the view of this Court that the appropriate procedure is for this Court to remit the proceedings relating to the respondent CJP pursuant to the provisions of s 12(2) of the Criminal Appeal Act 1912 to the District Court with a direction that he is to be sentenced in accordance with the law and contemporaneous reasons are to be given.
49 It is convenient to deal generally with CAD and MES together. We have already referred to the remarks of his Honour on 4 December 2002 in relation to these two respondents. As at that date both CAD and MES were on bail, which was granted in the case of CAD on 15 May 2001 and in the case of MES on 29 November 2000.
50 The evidence discloses that CAD has been serving periodic detention since 14 December 2002, and MES has been serving the full time custodial "sentence" which was believed to have been imposed on 4 December 2002.
51 We return now to the document handed down by his Honour on 28 February 2003. After having referred to the objective and subjective circumstances in relation to CAD, his Honour said:
" Sentence
115. You are convicted on the pleas of guilty. On counts two and four in the indictment, you are sentenced to imprisonment for two years to be served by periodic detention. I find special circumstances. Non-parole period of one year. Both terms to commence from 14 December 2002. I direct you be released to parole on 13 December 2003 subject to the prescribed conditions, the supervision conditions, and the special condition that you comply with the bond next specified. On count six, I defer passing sentence. I direct you enter a good behaviour bond under s 9 of the Crimes (Sentencing Procedure) Act for two years from 14 December 2002, with the standard conditions and the special conditions that you accept the supervision of the Probation and Parole Service, and treatment from Dr O'Dea and any other treatment directed by your supervisor, and that you report to Campbelltown Probation and Prole Service (sic) within seven days."
52 This "sentence" does not differ in terms from that purported to have been imposed on 4 December 2002. It is also consistent with the endorsement on that date by his Honour on the indictment relating to CAD.
53 In this context it is important to note, however, that the imposition of a sentence to be served by way of periodic detention cannot be backdated: see s 70 of the Crimes (Sentencing Procedure) Act 1999 which provides that where a court has made a periodic detention order in relation to a sentence of imprisonment, the court is to fix the date of the commencement of the sentence so that the date of commencement occurs no earlier than seven days, and no later than twenty-one days, after the date on which the order was made.
54 We have not overlooked in this context that s 70(3) provides that a periodic detention order is not invalidated merely because it specifies a date of commencement of the sentence of imprisonment that does not comply with the requirements of the section.
55 After having considered the objective and subjective circumstances relating to MES, his Honour stated in the document handed down on 28 February 2003:
"93. My mind has wavered as to whether I should increase the sentence for the first crime, by taking the second crime into account on Form 1. I have decided not to do so, for the same reasons as I would have made a concurrent sentence of three years if the second crime had been subject of a charge. The reasons are -
- she was a principal in the second degree
- [CJP] told her to remain, do nothing and be silent
- she went along with the offence because of fear of, and dependence on, [CJP], as was the case with the first crime
- she derived no sexual gratification, as was the case with the first crime
- although separate in time, nature and victim, both crimes were a function of her subjection to [CJP].
94. On the first crime, the sentence would have been four years, but for the plea of guilty. I reduce that by twenty-five percent, to three years, for the plea. For special circumstances I vary the parole period so that there is a non-parole period of two years. As there was twenty-one days pre-sentence custody, the sentence and non-parole period are reduced by twenty-one days.
95. You are convicted, and sentenced to imprisonment for two years 344 days, with a non-parole period of one year 344 days. Both periods commence 4 December 2002.
96. I direct your release to parole on 13 November 2004."
56 This "sentence" is effectively the same as that purported to have been imposed on 4 December 2002 and the endorsement by his Honour on the indictment on the same date, except that on that earlier date no reference was made to the offence on the Form 1.
57 The threshold question which arises in the cases of both female respondents is whether they were validly sentenced by his Honour on 4 December 2002 bearing in mind that no reasons for sentence were delivered by his Honour on that day or proximately close in time to that day.
58 Both Mr Butland of counsel for CAD and Mr Stratton of counsel for MES submitted to this Court that the proceedings on 4 December 2002 were invalid because of the omission of his Honour to deliver contemporaneous reasons for the sentences which he purported to impose on that day.
59 As to the requirement of contemporaneity, Pt 31 r 9 of the District Court Rules states:
"Where the Court gives any judgment or makes any order and reduces to writing its reasons for the judgment or order, it is sufficient to state orally the judgment or order without stating the reasons, but the written reasons must then be given by delivering them to an Associate, or other officer specified by the Court, for delivery to the parties."
60 This rule gives rise to difficulties of construction and has been considered at appellate level in a number of civil matters. Some of those judgments are not easy to reconcile and, despite their learning, do not provide any specific assistance for the resolution of the present problem. The leading civil cases are referred to in the District Court Procedure NSW at 6719-6722.
61 The question of the need for adequate reasons to be given when a sentence is delivered in a criminal case presents significantly different problems from those which arise in a civil case. Significantly, a criminal case involves the liberty of the subject and generally raises wider questions of public interest.
62 This Court has consistently emphasised the necessity for sentencing judges to give reasons when imposing sentences. Reference may be made to certain of the more recent judgments of this Court in that regard. In R v Julie Anne Duffy [1999] NSWCCA 321 Sully J said (with the concurrence of Ireland and Hidden JJ) at [11]:
"I wish to add the following observations: the Remarks on Sentence, as I said during submissions, are unhelpful in their brevity. It is not expected that a sentencing judge and particularly a sentencing judge in the District Court, will write an essay in jurisprudence every time he or she comes to deliver remarks on sentence. But it is, I think, timely to say that the Court expects that primary sentencing judges will at least state, however briefly, the findings of fact upon which they are persuaded to proceed; and will then expose in relation to those facts as found a coherent process of reasoning which will sufficiently equip this Court to intervene if asked to do so, and if a cause for doing so is otherwise shown."
63 In R v Thomson; R v Houlton (2000) 49 NSWLR 383 Spigelman CJ was concerned with s 22(2) of the Crimes (Sentencing Procedure) Act which provides in relation to a plea of guilty:
"(2) When passing sentence on such an offender, a court that does not impose a lesser penalty under this section must indicate to the offender, and make a record of, its reasons for not doing so."