Regina v Erceg

Court of Criminal Appeal (NSW)|2004-02-10|Before: James J, Smart AJ, Greg James J, Sheller JA, McColl JA, Palmer J

CITATION : Regina v Erceg [2004] NSWCCA 15 HEARING DATE(S) : 10 February 2004 JUDGMENT DATE : 10 February 2004

JUDGMENT OF : James J at 1; Smart AJ at 23 DECISION : See para 22

CATCHWORDS : Remission of matter of sentence to District Court to exercise its discretion under s 43(1)(a) of the Crimes (Sentencing Procedure) Act 1999 and to regularise Court records. LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 CASES CITED : Nil PARTIES : Regina v Leon Maurice Erceg FILE NUMBER(S) : CCA 60053/03 COUNSEL : (A) R J Button (C) D C Frearson SOLICITORS : (A) D J Humphreys (C) S E O'Connor

LOWER COURT District Court JURISDICTION : LOWER COURT 01/11/0630 FILE NUMBER(S) : LOWER COURT Taylor DCJ JUDICIAL OFFICER :

60053/03 JAMES J SMART AJ Tuesday, 10 February 2004 L eon Maurice ERCEG v REGINA (NSW) Judgment

JAMES J: The applicant, Leon Maurice Erceg, and a co-offender named Virgin, pleaded guilty to a charge of robbery in company.

On 28 November 2001 Taylor DCJ sentenced the applicant and the co-offender. It now seems clear that his Honour intended to impose on each of the applicant and the co-offender a head sentence of four years, four months. However, doubts have arisen whether the non-parole period his Honour intended to set was three years or one year four months.

A number of warrants were issued in which the terms of the sentence were stated in varying terms, and there was correspondence between the Registrar of the District Court and the judge concerning what were the terms of the sentence the judge had imposed.

On 19 December 2002 there was a further hearing before Taylor DCJ in which his Honour purported to clarify the sentences he had imposed on the applicant and the co-offender.

An application for leave to appeal against sentence was brought by the applicant, and on 28 May 2003 this application came on for hearing before a two judge bench of the Court of Criminal Appeal consisting of Smart AJ and myself.

On 28 May 2003 an application for an adjournment was made by the applicant on the grounds that a matter on which the applicant wished to rely in his substantive application was an alleged lack of proper parity or proportionality between the sentence imposed on him and the sentence imposed on the co-offender and that it was likely that an application for leave to appeal against sentence would shortly be made by the co-offender.

This Court heard argument on the application for leave to appeal against sentence, but said that it would defer giving any decision on the application until after the outcome of any application for leave to appeal against sentence by the co-offender was known.

On 1 November 2003 an application for leave to appeal against sentence brought by the co-offender, Virgin, came before a Court of Criminal Appeal consisting of three judges. Early in the hearing of that application Greg James J pointed out to senior counsel appearing for Virgin that if the non-parole period stated in one of the documents before the Court was correct then Virgin would already be entitled to be considered for release on parole. Senior counsel for Virgin, after obtaining instructions, abandoned Virgin's application for leave to appeal.

Proceedings were then brought by the applicant and Virgin as co-plaintiffs in the Court of Appeal. These proceedings were heard by a bench of the Court of Appeal consisting of Sheller JA, McColl JA and Palmer J. The members of the Court of Appeal delivered lengthy reserved judgments on 19 December 2003.

A majority of the Court, consisting of McColl JA and Palmer J, were of the opinion that notwithstanding what Taylor DCJ had done on 19 December 2002 the sentences purportedly imposed by Taylor DCJ on the applicant and Virgin were contrary to law within the terms of s 43 of the Crimes (Sentencing Procedure) Act, 1999, and that the matter should be placed before Taylor DCJ.

McColl JA said, in para 154 of her Honour's judgment: "In my view the matter should be placed before Taylor DCJ. At any such hearing his Honour should be fully apprised of the facts and the principles attending a s 43 application and the events which have happened since 28 November 2001. Once he has dealt with the matter, his decision should be given effect in the formal records of the District Court."
In para 174 of her Honour's judgment her Honour said: "What I have said should not be taken to inhibit Taylor DCJ's exercise of his discretion pursuant to s 43(2) of the Crimes (Sentencing Procedure) Act 1999 . In particular, as the discussion of the principles of reopening a sentence which I have set out earlier in this judgment make clear, when reopening a sentence pursuant to s 43 the Court must take into consideration what has transpired since the penalty was first imposed and the circumstances which exist at the time of exercise of the powers."
In his judgment Palmer J said, at para 189:

"I am of the view that the District Court has jurisdiction under s.43(1)(a) Crimes (Sentencing Procedure) Act to re-open the proceedings against the claimants in order to impose a penalty that is in accordance with the law His Honour proceeded, in para 189: "As the penalty imposed by Taylor DCJ was contrary to law only because of the impermissible manner in which the penalty was expressed by the judge, I am of the view that in the extraordinary, not to say bizarre, circumstances of this case it could be open to the court, in the exercise of the discretion which it undoubtedly has under s.43(2), to correct the judge's sentencing error merely by reimposing upon each claimant in clear and unambiguous terms and in accordance with s.48 of the Crimes (Sentencing Procedure) Act the penalty which Taylor DCJ intended to impose on 28 November 2001." Palmer J went on to say, in para 190: "However, what I have said should not be construed as intended to fetter the wide discretion which the court has in deciding what penalty to impose under s.43(2). I agree with what McColl JA has written in this regard."

Today it was submitted on behalf of Mr Erceg that this Court of Criminal Appeal should proceed to determine Mr Erceg's application for leave to appeal against sentence which was argued on 28 May 2003.

It was submitted that if the sentence purportedly passed by Taylor DCJ on 19 December 2002 was affected by error, the error was only formal and not substantive. It was submitted that as a matter of expediency or fairness this Court of Criminal Appeal should determine the application for leave to appeal against sentence, because on whatever view of what was the sentence Taylor DCJ intended to impose, the sentence, or at least the non-parole period, will soon expire.

It was submitted on behalf of the Crown that if this Court did anything it should facilitate what the majority of the Court of Appeal thought was the appropriate course, that is that the matter should be remitted to the District Court so that the District Court could exercise jurisdiction under s 43 of the Crimes (Sentencing Procedure) Act.

In my opinion, this Court should proceed in the way submitted by the Crown. As I already indicated, the Court of Appeal was of the opinion that the matter should be returned to the District Court so that that court could exercise jurisdiction under s 43 of the Crimes (Sentencing Procedure) Act.

It may be open to doubt whether any order of this Court is necessary in order that the District Court should proceed to exercise its jurisdiction under s 43. It may be open to doubt whether this Court has power to make an order remitting the matter to the District Court. Nevertheless, it seems to me that this Court should act in aid of the Court of Appeal and should facilitate the taking of a course which the Court of Appeal considered was the appropriate course.

I note that the three judge Court of Appeal, before whom Virgin's application for leave to appeal against sentence came on 1 October, was apparently of the opinion that it was a possible view that the sentence which Taylor DCJ has intended to impose was the sentence with a anon-parole period of one year, four months, and not a sentence with a non-parole period of three years.

It seems to me that this two judge bench of the Court should not proceed to determine the application for leave to appeal against sentence, when the Court of Appeal has held that the purported penalty is contrary to law, and that a particular course, namely the remitting of the matter to the District Court for action under s 43, should be taken.

As McColl JA and Palmer J pointed out in their judgments in the Court of Appeal it will be open to the District Court in exercising its jurisdiction under s 43, not simply to correct matters of expression but, if it sees fit, to exercise the wide discretion which it has under s 43 so as to take into account all of what has happened in this matter since November 2001.

The order which I consider should be made pursuant to s 12(2) of the Criminal Appeal Act 1912 is an order that the matter of the sentence imposed on Leon Erceg be remitted to the District Court for further consideration pursuant to s 43 of the Sentencing (Criminal Procedure) Act, and in accordance with the reasons for judgment of the Court of Appeal of 19 December 2003.

SMART AJ: I am prepared to join in the order proposed by James J. As the non-parole period is set to expire about 1 May 2004 speed is of the essence and there needs to be urgent attention to the matter.

I would have preferred, had it rested with me solely, for this Court to have made an order today disposing of the application for leave to appeal because I take the view that the definition of sentence in s 2 of the Criminal Appeal Act 1912 would be wide enough to cover what happened here, and particularly what happened on 19 December 2002.

It is a pity that the sentence imposed on 19 December 2002 was not expressed in clearer terms, and that the amending sentence was not endorsed on the s 51A form with a notation to the effect that it amended, or superseded the earlier sentence.

There is no point in recapitulating the history of unfortunate mishaps which is set out in the judgment of the Court of Appeal. Unfortunately Mr Erceg has been given, to use a colloquialism, the "run around".

I hope that Taylor DCJ deals with this matter with extreme urgency so that if there is to be a further appeal from what he does it can be dealt with with the greatest expedition.

I am content to agree with the order proposed by James J.

While exercising his discretion the judge should make one further amendment. In his remarks of 28 November 2001 (p.7) the judge referred to the offender pleading guilty to an offence of robbery in company. That was the initial charge. It was superseded by a charge of assault with intent to rob in company and it was that charge to which the offender pleaded guilty.

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