Sahartor v R

The application for leave to appeal against sentence

1. As I have said, there was no ground of appeal impeaching the reasoning of his Honour Acting Judge Madgwick QC. No error in his Honour's reasoning was identified. Initially, no grounds of appeal were filed although a notice of intention to appeal was filed at an early stage. Once the matter was listed for hearing, the respondent filed written submissions in which it contested the jurisdiction of the Court to entertain the s 59 application. It seems to have been in response to that submission that a ground of appeal was belatedly filed. That ground was in the following terms as stated in a document filed 21 February 2020: "1. The only ground of appeal is that the sentence imposed by his Honour Madgwick was affected by the decision in Sahartor v R [2018] NSWCCA 236 and should be set to commence on a date earlier than that imposed by his Honour."
2. The respondent suggested in its written submissions that the Court did not have jurisdiction to entertain the application for leave to appeal against sentence. The basis of this submission seemed to be that there was no merit in the ground as framed. This Court clearly has jurisdiction to hear an application for leave to appeal against the sentence. Therefore, the submission in relation to jurisdiction must be rejected.
3. However, the submission that the ground of appeal has no merit should be accepted. In Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 the High Court made the following observation at [10] concerning the nature of a sentence appeal under s 6 of the Criminal Appeal Act 1912 (NSW): "Notwithstanding its wide terms, it is well settled that the Court of Criminal Appeal's power to intervene is not enlivened unless error in any of the ways explained in House v The King is established. The identification of error will ordinarily be by reference to the sentencing judge's reasons on the material that was before the court." No such error is contended for in the present case.
4. Section 59 provides a statutory method of making an adjustment to the commencement date of an unrelated sentence when another sentence has been quashed. The existence of such an alternative method to vary the commencement date of an unrelated sentence is a powerful reason for refusing leave to appeal against sentence, particularly in circumstances where there has been such a significant delay in prosecuting the appeal and in filing a ground of appeal.
5. Accordingly, the application for leave to appeal against the sentence should be dismissed.

The section 59 application

1. Had the s 59 application been made at or about the time that the Court made the orders quashing the earlier sentence, there seems little doubt that some adjustment to the commencement date of the subsequent sentence would have been made. The possibility was raised in the reasons of the presiding Judge: Sahartor v R [2018] NSWCCA 236 at [2].
2. The offence to which the sentence now under consideration relates was committed on 23 May 2016. The applicant was refused bail in relation to that offence since his arrest that same day. It is likely that had the Court made an adjustment to the sentence pursuant to s 59 at about the time it quashed the other sentence the commencement date would have been adjusted to 23 May 2016. The result may have been (depending perhaps on the actions of the Parole Authority) that the sentence would have expired by now.
3. In the course of the brief hearing in respect of the earlier appeal, the possibility that there may need to be an adjustment to the commencement date was raised. The following exchange occurred between the presiding Judge and counsel then appearing for the applicant: "[COUNSEL]: If your Honours were minded, the parties are in a position to finalise this appeal simply on the papers, if that was an approach that the Court were content to adopt. The appellant is to be released in any event from his custody early next week, so as I understand there is no prejudice that [flows] to him today by this matter being adjourned and concluded on the papers. … BASTEN JA: When you said that Mr [Sahartor] was due to be released next week, that's a different matter, but it's an automatic release, is it, at the end of the non-parole period? [COUNSEL]: Yes, it's an automatic release. And that sentence is before this Court elsewhere. An NIA has been filed, so there may be some utility in the matters joining, I'm not sure. BASTEN JA: Is it your position - sorry, finish your enquiry. The other matter is simply at the Notice of Intention stage is that right? [COUNSEL]: Yes. So in those circumstances I think [limited] utility in trying to -- BASTEN JA: I must say I wasn't quite sure from the commencement dates of the sentences and so on whether your success on this matter would affect the commencement date of the current sentence?"
4. That discussion occurred on 3 August 2018. Thereafter, the parties filed written submissions and the Court determined the appeal on those written submissions, delivering its judgment on 19 October 2018. At paragraph [2] of the judgment, the presiding Judge made the following observation: "By the time a notice of application for leave to appeal was filed on 1 May 2018 the sentence had expired. However, the applicant then remained in custody on an unrelated matter with respect to which he had sought leave to appeal. That appeal is not presently before the Court, but it is likely that, were he to succeed on his present application, the commencement date of any subsequent sentence might be affected." [1]
5. In spite of the exchange at the hearing and the comment of the presiding Judge in the judgment, no application pursuant to s 59 was made for well over 12 months. I note in passing that the applicant's current lawyers were not engaged in the earlier proceedings. There is some suggestion in the respondent's submission that an application in inappropriate form was made or attempted to be made in December 2019. That application is not before the Court.
6. A custodial history indicates that the applicant was released in relation to the sentence currently under review on 6 August 2018. That accorded with what counsel informed the Court in the course of argument on 3 August 2018.
7. Before referring to the matters relevant to whether the discretion to adjust the sentence under s 59 should be exercised, it is necessary to deal briefly with another submission made by the respondent. That submission was that the Court had no jurisdiction at this stage to deal with the s 59 application. That submission is without merit. The respondent attempted to place reliance on rule 50C of the Criminal Appeal Rules. That rule is in the following terms: 50C Power to set aside or vary order (1) The Court may set aside or vary an order if an application for the setting aside or variation is made before entry of the order. (1A) An application to set aside or vary an order may only be made with the leave of the Court. (1B) The Court may determine both whether to grant leave and the application on the papers. (2) If an application for the setting aside or variation of an order is made within 14 days after the order is entered, the Court may determine the matter, and (if appropriate) set aside or vary the order under subrule (1), as if the order had not been entered. (3) Within 14 days after an order is entered, the Court may of its own motion set aside or vary the order as if the order had not been entered. (4) The Court may not extend the time limited by subrule (2) or (3). (5) Nothing in this rule affects any other power of the Court to set aside or vary an order (including any power to correct clerical mistakes or errors arising from accidental slips or omissions).
8. It is quite clear that rule 50C relates to a variation of an order (for example, a sentence) that is the subject of the appeal. That is not this case. This case is concerned with another sentence unrelated to the conviction and sentence subject to the earlier appeal. Rule 50C has no application. The respondent attempted to place reliance on a comment made by Price J in Allan v R (No 2) [2011] NSWCCA 27. That was an application under s 59 in which his Honour made the following observation at [8]: "The applicant has applied for an order pursuant to s 59 Crimes (Sentencing Procedure) Act 1999 to vary the commencement dates of the second sentences. The Court directed that the application proceed by way of written submissions. Rule 50 Criminal Appeal Rules has been complied with."
9. The respondent submitted that the reference to rule 50 could only have been a reference to rule 50C. That may be correct given that rule 50 seems not to be relevant at all, but the fact is the judgment makes no reference to rule 50C. The respondent further submitted that this observation supported its contention that rule 50C provided a time limit to an application under s 59. It seems clear enough that there was no controversy in Allan that the Court had power and jurisdiction to hear the s 59 application. There is nothing to suggest that his Honour was resolving any contested question or that he considered the application of rule 50C in any detailed way. I am unable to accept that Allan (No 2) is authority for the proposition that rule 50C applies to an application under s 59.
10. The respondent did not contend that the expression in s 59(3), "on the quashing or variation of the other sentence", meant that the application had to be brought on the very day that the earlier sentence was quashed. Such a submission would have had little merit. The phrase "on the quashing … of the other sentence" is a reference to the jurisdictional fact that must be established to enliven the Court's power under s 59. It does not provide any time limit in which the application will be made. However, an extensive delay in bringing an application under s 59, especially where there have been significant intervening events, is a matter relevant to the exercise of discretion.
11. The applicant accepts that the use of the word "may" in sub-s (1) means that the Court has a discretion as to whether to make an order varying the commencement date of an unrelated sentence pursuant to s 59. That concession is correct.
12. In the present case, there are powerful factual circumstances militating against exercising the discretion to vary the commencement date. The delay itself would not be determinative. However, a number of things have happened since the applicant was released from custody and the earlier sentence was quashed.
13. After his release, the applicant committed a number of criminal offences. It is unnecessary to detail all of them. However, it is worth considering the following chronology of some of the relevant events: 6 August 2018 The applicant was released on parole. 19 October 2018 This Court quashed the conviction and sentence in relation to the earlier offence. 18 November 2018 The applicant was charged with an offence of larceny. 20, 23 November 2018 The criminal history (Ex C on the appeal) records that the Central Local Court made an order under s 33(1)(B) (sic) Mental Health (Forensic Provisions) Act 1990 (NSW). There is no evidence as to the details of this order. On its face it appears to be an order for an assessment. 22 December 2018 The applicant committed an offence of larceny. 24 December 2018 The applicant committed an offence of larceny. 4 January 2019 The applicant committed an offence of larceny. 5 January 2019 The applicant committed four offences of "shoplifting". 6 February 2019 The State Parole Authority revoked the parole order. 20 February 2019 The applicant committed an offence of goods in custody. 24 February 2019 The applicant committed an offence of trespass. 6 November 2019 The Sutherland Local Court imposed an aggregate sentence of 12 months commencing 20 February 2019 and expiring 19 February 2020 with a non-parole period of 9 months expiring 19 November 2019.

1. The offences committed by the applicant after his release appeared to be of a relatively minor nature but there were a large number of them and they resulted in an aggregate sentence of imprisonment.
2. Further, the Parole Authority revoked the applicant's parole and the applicant was ordered to serve the balance of parole (1 year, 6 months and 1 day according to the custodial history) from 20 February 2019 to 20 August 2020.
3. The present application was made when the applicant was still in custody serving the sentence imposed by the Sutherland Local Court and/or serving the balance of parole. Because he was in custody, his case was listed as a matter of urgency. However, on 10 January 2020, the State Parole Authority directed that the applicant be released on 19 February 2020 on a parole order to expire on 20 August 2020. The Court was informed that the applicant was released in accordance with that direction and the applicant attended court on 24 February 2020 for part of the hearing of this application.
4. It was submitted that the applicant suffers ongoing and significant hardship as a result of the failure of the Court to make an order adjusting the sentence. It was submitted that the sentence would have expired by now had the adjustment been made earlier and the applicant would not currently be subject to the strictures of parole and placed in the position where he might be arrested for a breach of parole if he fails to comply with the conditions imposed on him. There was a suggestion that some of the offences for which he was dealt with in the Local Court may have been ordered to commence at a different time or may not have constituted a breach of parole.
5. The problem with these submissions is that they appear to be entirely speculative. Because the application was not made in a timely manner, it is not clear what would have happened had an adjustment been made earlier. While it is likely that the sentence would have expired by now, it cannot be known what the Parole Authority would have done in relation to any breach of parole that occurred after the applicant's release. What is clear is that the adjustment would not have occurred before the applicant's release on 6 August 2018 because the judgment was not published until October of that year. What would have happened in the Local Court, if the sentence date was adjusted earlier, is not known. To adopt a metaphor used by the parties on the hearing of the appeal, it is difficult if not impossible to "unscramble the egg".
6. Variations to the commencement date of a sentence under s 59 are, in most circumstances, "mechanical": R v Pham [2004] NSWCCA 263 at [15] (Spigelman CJ). However, as Spigelman CJ noted in Pham, factual disputes can arise "for example as to what allowance is to be made for the circumstance that a person may have been in custody for more than one reason." In the present case, as the chronology set out at [25] shows, there are complications concerning the applicant's custodial status in the period since he was released to parole on 6 August 2018.
7. Making an adjustment to the sentence date at this stage would, it seems, have the effect of rendering nugatory the determinations made by the Parole Authority even though its decisions are not subject to any appeal or application for judicial review. When this was raised in argument, counsel agreed that she could not "necessarily speculate upon what the Parole Board would have done."
8. No doubt there are conditions attached to the parole that are calculated to provide the applicant with support in relation to his drug and mental health issues. There is no evidence on this issue. When asked about this, counsel suggested that the applicant could undertake such steps towards rehabilitation by himself and that it was, in effect, unfair to require him now to comply with the conditions of parole. Again, however, there is no evidence before the Court as to what steps the applicant might take if he were not subject to the current parole conditions, whatever they may be.
9. An affidavit of the applicant was read. Its contents were not contested or subject to cross-examination. The affidavit establishes that the delay in bringing this application was not the fault of the applicant. He was of the understanding that there would be an automatic adjustment to the commencement date of the sentence and relied on the advice of his previous lawyers that the matter was in hand. As noted in [17], the applicant's current legal team was not responsible for any delay in bringing the application.
10. While I accept that the delay in bringing the application was not the fault of the applicant, and I have considerable sympathy for his situation, I am satisfied that the application to vary the commencement date of the sentence should be refused in the exercise of the Court's discretion. While this case is to be determined on its own particular and somewhat unusual facts, it should serve as a reminder to practitioners that where a sentence is quashed and where there may be some impact on the commencement date of an unrelated sentence, an application pursuant to s 59 should be brought expeditiously. That is so whether the applicant is in custody or serving the balance of the sentence on parole. As the facts of this case demonstrate, the fact that a person has been released to parole does not mean that their sentence has expired. In Pham, Spigelman CJ suggested at [14] that "in the normal course" the Prosecutor should raise the issue "with the bench that is quashing or varying the sentence." This is not to say that delay in bringing the application will normally be fatal or justify refusal of the application in the exercise of discretion. However, significant problems arise where events have intervened and circumstances have changed during the period of the delay.
11. For those reasons, the orders I propose are as follows: 1. The application for leave to appeal against sentence is dismissed. 2. The application pursuant to section 59 of the Crimes (Sentencing Procedure) Act 1999 (NSW) is refused.

Endnote

1. Sahartor v R [2018] NSWCCA 236 (Basten JA).

Amendments 20 March 2020 - Sentence added to [17] and [34] to clarify current lawyers not responsible for delay DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 March 2020