REGINA v DGP

DAC v Regina [2006] SWCCA 265 Erceg v District Court of NSW (2004) 143 A Crim R 455 CASES CITED : Ho v DPP (1995) 37 NSWLR 393 Regina v DGP [2009] NSWSC 1154 Regina v Tolmie (1994) 72 A Crim R 416

PARTIES : REGINA v DGP

COUNSEL : Crown: L Lungo App: P Pearsall

SOLICITORS : Crown: S Kavanagh App: Aboriginal Legal Service

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

JUDGMENT (Application pursuant to s.43(2) of the Crimes (Sentencing Procedure) Act 1999

1 HIS HONOUR: This is an application made on behalf of the applicant pursuant to s.43(2) of the Crimes (Sentencing Procedure) Act 1999. 2 The application is made by way of notice of application dated 13 October 2010. In relation to the application there has been read the affidavit of Sarah Hopkins, solicitor, affirmed 25 November 2010. 3 On 30 October 2009, the applicant, referred to as DGP, was sentenced in relation to the offence of manslaughter: Regina v DGP [2009] NSWSC 1154. 4 The applicant was sentenced to a total term of imprisonment of 8 years. The terms of the sentence were as follows:-

(1) A non-parole period of 5 years commencing on 25 November 2007 to expire on 24 November 2012.

(2) A parole period of 3 years to expire on 24 November 2015. 5 The present application is brought pursuant to the provisions of s.43(2) of the Crimes (Sentencing Procedure) Act 1999 whereby the applicant seeks to re-open proceedings pursuant to the above provisions. The purpose of the application is stated to be:- "(1) To re-open the proceedings; and (2) an order amending the applicant's sentence upon the grounds and reasons set out below."

Re-opening the proceedings 6 Pursuant to the provisions of s.43 of the Crimes (Sentencing Procedure) Act, the Court has power to re-open proceedings to correct sentencing errors. The provision is in the following terms:- "43(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 re-open 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." 7 The expression "impose a penalty" is defined in s.43(6) as including the imposition of a sentence of imprisonment. 8 Mr Pearsall of counsel who appeared on this application on behalf of the applicant, has helpfully provided written submissions dated 1 December 2010. In those submissions, a number of authorities have been drawn to my attention. Counsel has observed that the authorities have not yet exclusively defined the boundaries of what constitutes the two pre-conditions described in s.43(1)(a) and (b) of the Act. 9 The submission was that it is clear that the section is to be interpreted broadly and that if the conditions precedent are satisfied, the Court has a wide discretionary power to re-open proceedings and make any necessary remedial orders. 10 On this application, the Crown has indicated it does not oppose the exercise of the jurisdiction under s.43. In the circumstances it is, however, necessary for me to refer to the relevant matters that underpin the application and the matters required to be considered. 11 I will refer shortly to certain of the relevant authorities on the provisions in question.

Relevant factual matters 12 The applicant's date of birth is 18 May 1991. He was, accordingly, 18 years of age at the date of sentence. 13 The offence for which the applicant was sentenced occurred on 24 November 2007. The date of sentence was, as earlier noted, 30 October 2009. 14 The application brings forward for consideration the operation of s.19(2) of the Children (Criminal Proceedings) Act 1987. 15 The sentence as currently expressed, it is noted in Mr Pearsall's written submissions, will have, by reason of the operation of s.19(2) of the last-mentioned Act, the effect of disqualifying the applicant from serving his sentence as a juvenile offender after he turns 21 by reason of the fact that his non-parole period will not end within a period of 6 months after he has attained that age. The sentence, as imposed on 30 October 2009, will end 6 months and 6 days after he has attained the age of 21. This follows from the fact that the applicant will turn 21 years of age on 18 May 2012 and the term of the non-parole period imposed will expire some 6 months and 6 days earlier, namely, on 24 November 2012. 16 The provisions of s.19 of the Children (Criminal Proceedings) Act are contained within Part 2 - Criminal Proceedings Generally, Division 4 - Penalties. Section 19, insofar as is relevant, provides:- "19(1) If a Court sentences a person under 21 years of age to whom this Division applies to imprisonment in respect of an indictable offence, the Court may, subject to this section, make an order directing that the whole or any part of the term of the sentence of imprisonment be served as a juvenile offender . (1A) … (2) A person is not eligible to serve a sentence of imprisonment as a juvenile offender after the person has attained the age of 21 years, unless :- (a) in the case of a sentence for which a non-parole period has been set - the non-parole period will end 6 months after the person has attained that age , or (b) in the case of a sentence for which a non-parole period has not been set - the term of the sentence of imprisonment will end 6 months after the person ahs attained that age." (emphasis added)

Remarks on sentence 17 In the remarks on sentence, it was noted at [42] that the applicant is a young man of Aboriginal descent who was aged 16 years and 6 months at the date of the offence and was aged 18 years at the date of sentence. At the time of his arrest it was noted that he was residing with his mother and siblings and had completed Year 10 (and the School Certificate). 18 The personal circumstances of the applicant were referred to in the remarks on sentence at [43] to [50]. 19 I have been advised by counsel today that the applicant has continued his studies towards the HSC and there have been no adverse incidents in the course of his custodial period. 20 It was noted that the applicant had expressed genuine remorse for his offence and I stated that that would be taken into account in his favour in determining sentence (at [68]). 21 In imposing sentence, I had regard to the legislative guidelines in s.6 of the Children (Criminal Proceedings) Act at [94]. 22 I noted at [133] the opinions contained in the Juvenile Justice report and the report of Mr Champion. Based on that material, I accepted that, due to the applicant's limited intellectual capacity, he would be vulnerable in an adult prison. I referred in that respect to the decision in DAC v Regina [2006] NSWCCA 265 at [23]. 23 I noted that the Crown did not contest the making of an order under s.19(3) of the Children (Criminal Proceedings) Act. I made a finding of special circumstances and ordered that the whole of the terms of sentence of imprisonment of the applicant be served as a juvenile offender pursuant to the last-mentioned provisions of that Act.

Relevant principles 24 In relation to the preconditions in s.43(1)(a) and (b), the preliminary issue for determination is whether or not the sentence of imprisonment imposed was one contrary to law or, alternatively, whether or not it can be said that there was a failure to impose a sentence of imprisonment that is contrary to law. 25 I note the observations of McColl JA in Erceg v District Court of NSW (2004) 143 A Crim R 455 wherein at [104] her Honour noted that the statutory power under s.43 to re-open is a remedial/beneficial provision which should be construed broadly. Her Honour referred in that respect to Regina v Tolmie (1994) 72 A Crim R 416 to 420 per Hunt CJ at CL and per Smart J at 421. Her Honour also noted the observations in Ho v DPP (1995) 37 NSWLR 393 at 398 per Kirby P, with whom Gleeson CJ and Sheller JA agreed. Mr Pearsall set out the observations of Howie J in Finnie v Regina (No 2) [2004] NSWCCA 150 at [117]. 26 In the present case, the relevant order made was that the whole of the term of the sentence of imprisonment of the applicant be served as a juvenile offender pursuant to the provisions of s.19(3) of the Children (Criminal Proceedings) Act. 27 The terms of the order could be said to have imposed a sentence of imprisonment contrary to law, insofar as, in effect, it directed that the applicant serve the sentence of imprisonment imposed as a juvenile offender, notwithstanding that the non-parole period of 5 years would expire 6 months and 6 days after the 6 months, that is, a period greater than the 6 month period specified in s.19(2). In other words, there could be said to be an inconsistency between the requirements of the order and the 6 month condition specified in s.19(2)(a) of the Act. On that basis, I am satisfied that jurisdiction does exist to make orders under s.43.

Decision 28 In the remarks on sentence I make it clear that I had determined that it was appropriate and in the interests of the applicant that he serve the whole of the sentence of imprisonment imposed on him in a juvenile detention centre. Further, having regard to the particular personal circumstances of the applicant, I was satisfied that his rehabilitation would be substantially enhanced by continued detention in a juvenile detention centre. 29 It is clear that in order to give effect to that intention it is necessary to adjust the non-parole period by the very small amount of time sought in this application, namely, a period of 7 days, in order to remove what can be said to be an internal inconsistency in the current order and the provisions of s.19 of the Act. 30 I accept the submission made by Mr Pearsall that to do so would not only be to the benefit of the applicant, but that his chances of rehabilitation is a matter that flows through to the community as well. 31 Accordingly, I make the following orders pursuant to s.43 of the Crimes (Sentencing Procedure) Act:-

(1) That the sentencing orders imposed on the applicant on 30 October 2009 be re-opened.

(2) That the sentence imposed on 30 October 2009 be set aside and in lieu the following order is made:- (a) The applicant is sentenced to a term of imprisonment with a total non-parole period of 4 years, 11 months and 20 days to commence on 25 November 2007 and to expire on 14 November 2012. (b) A parole period of 3 years to expire on 13 November 2015.

(3) Accordingly, the first date upon which the applicant will be eligible for parole will be 14 November 2012. **********

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