Rickard v R

IN THE COURT OF CRIMINAL APPEAL CCA 2007/2968002 DC 05/21/3167

HANDLEY AJA HOEBEN J SMART AJ

Tuesday 4 December 2007 Angela Doreen RICKARD v Regina Judgment 1 HANDLEY AJA: On 12 March 1999 the applicant's 13 month old daughter drowned in a bath when the applicant left her unattended for 5 to 8 minutes. On 23 February 2006 she adhered to her plea of guilty to manslaughter before Sides QC DCJ. The sentencing Judge imposed a sentence of 2 years imprisonment, found special circumstances, set a non-parole period of 12 months, and suspended the sentence pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999 (the Act). He ordered that she be released from custody forthwith conditional upon her entering into a bond to be of good behaviour for two years subject to conditions. 2 On 2 November 2006, following a report from the Probation and Parole Service, the Judge exercised the power under s 98 to call on the applicant to appear before the Court. On 2 March 2007 he revoked the bond but admitted the applicant to bail pending an assessment of her suitability for periodic detention. On 2 April he received a report from the Probation and Parole Service that the applicant, although eligible, was unsuitable for periodic detention. The solicitor for the applicant invited the Judge to review the non-parole period he had previously set but the Judge responded: "I don't have the power to do that, do I?" 3 The solicitor referred to the amendments made by the Crimes and Courts Legislation Amendment Act 2006 (No 107) (the amendments) and the transitional provisions. The Judge said that since a non-parole period had already been set, s 99, as amended, did not require one to be set when the bond was revoked. The solicitor took the matter no further. The Judge then ordered that the sentence of two years imprisonment commence forthwith and that the applicant be released on parole on 1 April 2008. 4 On 31 August the applicant applied for leave to appeal challenging the Judge's decision that he had no power to reconsider the non-parole period, which was said to be manifestly excessive. There was no challenge to the decision to revoke the bond. During the hearing Ms Burgess, who appeared for the applicant, also sought leave to appeal out of time from the sentence imposed on 23 February 2006. The Crown did not challenge the competency of either application. 5 The power, under s 43, to reopen sentencing proceedings to correct legal error is available after the sentence has been perfected. Until this occurs the Court has an inherent power to reopen the proceedings. The first question then is whether the original sentence was perfected. Part 53 r 12 of the District Court Rules 1973 which was in force at the time provided: "Any judgment, order, sentence, direction or recommendation given or made by a Judge in any proceedings shall be entered on the indictment in the proceedings, and that entry shall, when signed by the Judge, be the record of the judgment, order, sentence, direction or recommendation." 6 There is no definition of indictment in the District Court Act 1973 or Rules, but s 15(2) of the Criminal Procedure Act 1986 provides that in Division 2, meaning presumably Part 2 of the Act, indictment "includes a court attendance notice or any other process or document by which criminal proceedings are commenced." 7 The relevant document was the court attendance notice filed in the Local Court at Fairfield on 5 August 2004. Inquiries by the Crown established that the sentence had not been entered on the court attendance notice. A typewritten copy signed by the Judge was attached to the cover of the District Court file. This was also endorsed with handwritten summaries of other orders and directions made in the proceedings. Under the new r 12, which came into force on 7 November 2007, entry of the sentence on the Court file, signed by the Judge, constitutes a formal record of the sentence. 8 The original sentence had not been perfected when the matter was before the Judge on 2 April 2007 and the Judge therefore had power to grant leave to re-open the sentencing proceedings: R v Elliott [2006] NSWCCA 305 para [44] and [45] per Spigelman CJ and the cases there cited. He inadvertently erred when deciding that he had no power to do this. 9 The power to reopen a judgment which has not been perfected is a discretionary power. In R v Elliott (above) para [48] the Chief Justice said that the dominant consideration is whether there would otherwise be a miscarriage of justice. In R v Lapa (No 2) (1995) 80 ACR 398, 403 Clarke JA said that the Court will accord great weight to the principle of finality and only grant an application for reconsideration in rare cases, and (at 405) that the need to remedy an oversight would be a proper ground. 10 On 8 November, after this Court reserved its decision, the High Court gave judgment in Elliott v The Queen [2007] HCA 51 paras [31]-[32], [41] and held that the power to reopen should only be exercised where there has been some misapprehension of the facts or the relevant law which was not caused by the neglect or default of the party seeking the rehearing. 11 The nature of the discretion has also been considered in civil cases. In Smith v NSW Bar Association (1992) 176 CLR 256, 265 Brennan, Dawson, Toohey and Gaudron JJ said: "The power is discretionary and, although it exists up until the entry of judgment, it is one that is exercised having regard to the public interest in maintaining the finality of litigation. Thus, if reasons for judgment have been given, the power is only exercised if there is some matter calling for review." 12 In the present case there was nothing that called for review. The sentence as a whole was lenient, and no error of fact or principle has been established. In its context the non-parole period was not excessive, manifestly or otherwise. Moreover the applicant entered into the bond and took the benefit of the sentence. This weighs heavily against the grant of leave to reopen. 13 The principle of finality requires there to be some error, oversight or miscarriage in the original sentence which existed when the order was made even if it only became manifest in the light of subsequent events: compare Re Harrisons's Share (1955) Ch 260 CA. The power to reopen does not enable the Court to review a proper sentence in the light of subsequent developments. This Court, as a Court of error (Elliott v The Queen [2007] HCA 51 para [35]) can only consider such matters within the narrow limits referred to in R v Munday [1981] 2 NSWLR 177 and R v Ehrenburg NSW CCA (14 December 1990). 14 The subsequent events in this case were not the manifestation of something that was present, but not fully appreciated, at the date of that sentence: R v Ehrenburg (above) at p5. I would therefore grant leave to appeal out of time from the original sentence but dismiss the appeal. 15 The ground in the original application for leave to appeal was that the amendments, which relevantly commenced on 29 November 2006, conferred on the Court which revoked the bond the power to reconsider any non-parole period set as part of the original sentence. 16 Section 12(1) enables a sentence of imprisonment for not more than 2 years to be suspended and for the offender to be released on condition that he or she enters into a good behaviour bond. Subsection (3) originally provided: "Subject to section 99(1) Part 4 does not apply to a sentence of imprisonment the subject of an order under this section except to the extent to which it deals with setting the non-parole period and the balance of the term of the sentence." 17 In February 2006 the sentencing Judge was bound to set a non-parole period as part of the sentence to be suspended. Section 99(1)(c) then provided: "(1) If a Court revokes a good behaviour bond; … (c) in the case of a bond referred to in section 12: (i) the order under section 12(1)(a) ceases to have effect in relation to the sentence of imprisonment suspended by the order, and (ii) Part 4 applies to the sentence, except to the extent to which it has already applied in relation to setting the non-parole period and the balance of the term of the sentence, and (iii) subject to the requirements of Part 4 having been complied with, the sentence takes effect." 18 Prior to the amendments the Act did not enable the Court which revoked a s 12 bond to revisit a non-parole period set as part of the original sentence: Wise v R [2006] NSWCCA 264 and the cases there cited. This Court had suggested, more than once, that the powers of the Court which revoked a bond were inadequate, and legislative reform was needed. 19 Parliament responded in 2006 and s 12(3) was amended by omitting the words "except to the extent to which it deals with setting the non-parole period and the balance of the term of the sentence". Section 99(1)(c) was amended by deleting sub-paras (ii) and (iii) and substituting: "(ii) Part 4 applies to the sentence, as if the sentence were being imposed by the Court following revocation of the good behaviour bond, and section 24 applies in relation to the setting of a non-parole period under that Part." 20 In the absence of any transitional provision these amendments would only operate prospectively. Section 12(3) as amended provides that Pt 4 of the Act, including s 44 which requires the Court to set a non-parole period, does not apply to a sentence suspended under s 12. Suspended sentences imposed after the amendments will therefore not include a non-parole period. If a good behaviour bond, entered into after the amendments, is revoked s 99(1)(c), as amended, now requires the non-parole period to be set by the Court which revokes the bond. 21 Under these provisions the question of resetting an existing non-parole period could not arise. Section 99(2), which was not amended, confers, in terms, a power to vary an existing sentence to enable it to be served by way of periodic or home detention. The absence of any other power to vary an existing sentence is of some significance. 22 Parliament could have given the Court which revoked an existing bond the power to reset the non-parole period. Instead it conferred a power to set the non-parole period where it had not been set before, which could not affect suspended sentences where a non-parole period had already been set. 23 This construction of the amendments is supported by the strong presumption that a statutory amendment does not affect completed proceedings which have become res judicata unless it provides for this in clear terms: Lemm v Mitchell [1912] AC 400, 405-6: Day v Kelland [1900] 2 Ch 745 CA; FEDFA v Broken Hill Pty Co Ltd (1913) 16 CLR 245, 258-9, 270-1, 272-3, 280; Re A Debtor (1936) Ch 237 CA, 243. 24 Criminal proceedings are completed and become res judicata when they are finally disposed of by sentence or otherwise: Maxwell v The Queen (1996) 184 CLR 501, 509, 530. 25 This construction of the principal provisions, as amended, is subject to the transitional provisions inserted in Sch 2. Clause 56 provides: "(1) The amendments made to sections 12 and 99 by the Crimes and Courts Legislation Amendment Act 2006 … extend to proceedings commenced (but not concluded) before the commencement of the amendments. (2) The amendments made to section 99 by the Crimes and Courts Legislation Amendment Act 2006 extend to proceedings in respect of the revocation of a good behaviour bond entered into before the commencement of the amendments, subject to sub-clause (3). (3) The amendments to section 99 do not require a non-parole period in respect of a sentence of imprisonment to be set on the revocation of a good behaviour bond entered into before the commencement of the amendments if the non-parole period was set at the time that the sentence was suspended." 26 Clause 56(1) applies to prosecutions pending at the commencement of the amendments on 29 November 2006 and is not relevant. Sub-clause (2) made s 99, as amended, applicable to the proceedings for revocation of the applicant's bond initiated by the sentencing Judge on 2 November 2006, subject however to sub cl (3). The latter removed the duty to set the non-parole period that would otherwise have been imposed by sub cl (2). The transitional provisions did not confer any power to reset a non-parole period set by the Court which suspended the sentence. 27 In my judgment the amendments and transitional provisions did not confer any power on the Court which revoked an existing s 12 bond to reset the non-parole period. Thus the sentencing Judge did not err when he held that the transitional provisions did not confer this power. This Court has no power to review the non-parole period set on 23 February 2006 on an appeal from the Judge's decision of 2 April 2007. The following orders should therefore be made: (1) Leave to appeal granted from the decisions of 23 February 2006 and 2 April 2007.

(2) Appeal dismissed. 28 HOEBEN J: I agree with Handley AJA and the orders he proposes. 29 SMART AJ: I agree with Handley AJA.

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