Todd v Rex

1. English DCJ sentenced the applicant on the basis of the facts contained in the document headed Agreed Facts, which formed part of Ex A before her Honour.
2. By a notice of appeal filed out of time on 1 July 2024, the applicant sought leave under s 5(1)(b) and (c) of the Criminal Appeal Act 1912 (NSW) to appeal against his conviction and sentence. The grounds of appeal were formulated as follows: "1. The sentencing judge erring in convicting the appellant in the absence of evidence of the requisite elements of the offence of 'attempt to manufacture' in relation to: a. Count 3 with sequences 24 and 25 on the Form 1 taken into account, and/or b. Count 4. 2. If ground 1 is upheld, a lesser sentence is warranted."
3. The substance of the applicant's case in respect of ground 1 was that the Agreed Facts, which were the only relevant evidence before the sentencing judge, did not establish each of the elements of the offences to which counts 3 and 4 related and thus a miscarriage of justice had occurred as a result of the applicant being convicted of those counts. The Crown, in its written submissions stated that it was accepted: "that it would be open for this Court to conclude that the agreed basis of the pleas of guilty - that the applicant acquired the four firearms in question already modified and had contemplated their future modification with the intention of rendering them capable of discharging projectiles - did not as a matter of law make out the offences of Attempt to manufacture a pistol or prohibited firearm without licence or permit contrary to ss 50A(2)/51CA of the Firearms Act and accordingly that a miscarriage of justice has been demonstrated."
4. In light of these submissions and on our review of the Agreed Facts, we accepted that on the admitted facts before the sentencing judge the applicant could not in law have been convicted of the offences in counts 3 and 4. In these circumstances, a miscarriage of justice would occur if the applicant were not allowed to withdraw his pleas of guilty in respect of counts 3 and 4: Nassr v The Queen [2015] NSWCCA 284 at [5] (Meagher JA, Rothman and Bellew JJ) citing R v Liberti (1991) 55 A Crim R 120 at 121-2 (Kirby P with Grove and Newman JJ agreeing).
5. Furthermore, under s 6(1) of the Criminal Appeal Act, on any appeal against conviction under s 5(1), the Court must allow the appeal if it is of the opinion that, on any ground whatsoever, "there was a miscarriage of justice".
6. This being the case, the applicant sought leave to amend its grounds of appeal so as to read as follows: "A miscarriage of justice would occur if the applicant were not permitted to withdraw his pleas of guilty to Count 3, sequences 24 and [25] taken into account on the Form 1, and Count 4 as on the admitted facts the applicant could not in law have been convicted of these offences charged."
7. This course was not opposed by the Crown. Given the conclusion that on the admitted facts the applicant could not have been convicted of the offences in counts 3 and 4, I accepted that leave should be granted to file the amended ground of appeal.
8. From this it followed, as the parties submitted, that the convictions for counts 3 and 4 should be quashed and the aggregate sentence imposed by English DCJ should be set aside.
9. The only remaining issue was whether this Court should proceed to resentence the applicant or whether the matter should be remitted under s 12(2) of the Criminal Appeal Act to the District Court for resentence. It was not in dispute that either course was open.
10. Section 6(3) of the Criminal Appeal Act provides: "On an appeal under section 5(1) against a sentence, the court, if it is of the opinion that some sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal."
11. Section 12(2) of that Act provides that: "(2) The Court of Criminal Appeal may remit a matter or issue to a court of trial for determination and may, in doing so, give any directions subject to which the determination is to be made."
12. Section 12(2) confers a broad, general discretion to remit a matter to a trial court and the decision whether to remit is "very much case-dependent" and the circumstances in which the power will be exercised "are varied and cannot be predicted in advance": R v Jacobs Group (Australia) Pty Ltd [2023] NSWCCA 280 (Jacobs) at [17] (Bell CJ, Walton and Davies JJ). In Jacobs at [18], it was noted that relevant considerations in determining whether to remit a matter under s 12(2) have included: the requirements of justice in a particular case; ordinary principles of case management; the likelihood of little delay; the existing knowledge of the matter by sentencing judge; and, the fact that resentencing in this Court would substantially curtail the parties' rights of appeal.
13. Although the applicant raised what were described as "pragmatic issues" which were said in effect to favour resentencing by this Court, it was also said that he did not "argue furiously against" remittal to the District Court. The Crown informed the Court that sentences were being listed in Lismore in September and thus it was said that there would be little delay. The Crown also expressly stated that it was not in contest that the ceiling principle would be applicable in the present case on resentence, although it was noted that this did not mean that a lesser sentence would necessarily flow in all the circumstances. In addition, in written submissions the Crown noted that other, albeit less serious, charges in relation to the firearms offending had been withdrawn as a consequence of the guilty pleas being entered in respect of counts 3 and 4 in the Local Court. It was said that on the Agreed Facts these other firearms offences were made out.
14. In all the circumstances, and having regard in particular to considerations of fairness and justice arising out of the fact that charges were withdrawn as a result of the guilty pleas which the applicant now has leave to withdraw, the likelihood of little delay in any sentence rehearing in the District Court at Lismore and the preservation of the parties' rights of appeal if the matter is dealt with in the District Court, it appeared to me that the preferable course was to remit the matter to the District Court.
15. Since there had been a miscarriage of justice in the present case and in the absence of any opposition from the Crown, it was in my view appropriate to extend the time for filing of the notice of appeal and to grant leave to appeal.
16. Accordingly, for these reasons I joined in making the orders set out in [1] above.
17. RIGG J: I agreed to join in making the orders of the Court for the reasons given by Wright J.

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