WISE v REGINA

Court of Criminal Appeal (NSW)|2006-08-07|Before: Spigelman CJ, Howie J, Rothman J

JUDGMENT OF: Spigelman CJ at 1; Howie J at 2; Rothman J at 3

DECISION: (a) Leave to appeal be granted; (b) In relation to Count 1, the sentence imposed by Blackmore DCJ on 4 February 2005 be quashed and in lieu thereof the applicant be sentence on Count 1, break Enter and Steal committed on 10 March 2003, to a non-parole period of 9 months commencing 26 October 2005 and expiring 25 July 2006 with a balance of term of 6 months commencing 26 July 2006 and expiring 25 January 2007; (c) Otherwise the appeal is dismissed.

CATCHWORDS: Criminal Law - Appeal - Jurisdiction to resentence on revocation of s.12 Bond - Capacity to appeal - Error of law - Compliance with s.44 and s.45 of Crimes (Sentencing Procedure) Act - Exchanges during sentences - Relevance of SUmmary Disposal - No manifest excess

Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED: Crimes (Administration of Sentences) Act 1999 Criminal Appeal Act 1912

R v Simpson (2001) 53 NSWLR 704 R v El Masri [2005] NSWCCA 167 Barret v DPP [2006] NSWCCA 210 R v Tolley [2004] NSWCCA 165 CASES CITED: R v Graham [2004] NSWCCA 420 Pelechowski v Registrar Court of Appeal (1999) 198 CLR 435 Calvin v Carr [1980] AC 574 R v Millar [2005] NSWCCA 202 R v Pham [2005] NSWCCA 94 Veen v The Queen (No 2) (1998) 164 CLR 465

PARTIES: A: Jeremy Wilton WISE R: Regina

COUNSEL: A: self represented R: D Arnott SC

SOLICITORS: A: self represented R: S Kavanagh (DPP)

LOWER COURT JURISDICTION: District Court

LOWER COURT JUDICIAL OFFICER: Charteris DCJ & Blackmore DCJ

4 February 2005; LOWER COURT DATE OF DECISION: 26 October 2005; 24 March 2006

R v Wise (unreported, District Court, 04/02/05); LOWER COURT MEDIUM NEUTRAL CITATION: R v Wise (unreported, District Court, 26/10/05); R v Wise (unreported, District Court, 24/03/06)

1 - IN THE COURT OF CRIMINAL APPEAL 2006/1342 & 2006/440

SPIGELMAN CJ HOWIE J ROTHMAN J

5 September 2006 JEREMY WILTON WISE v REGINA Judgment

1 SPIGELMAN CJ: I agree with Rothman J. 2 HOWIE J: I agree with Rothman J. 3 ROTHMAN J: Jeremy Wilton Wise applies for leave to appeal sentences imposed upon him for a number of offences and, if leave is granted, seeks to quash the sentences imposed and substitute lesser sentences.

4 The sentencing history is more complicated than the facts, which are relatively simple, and both need to be recited in order to understand the grounds of appeal being pursued and the difficulty with that which has so far occurred. 5 On 27 July 2004, the applicant's DNA was matched with earlier offences that had occurred in 2002 and 2003. The DNA had been matched in an earlier separate test also, but no action had been taken. Those offences were that on 27 February 2002 the applicant committed the offence of break, enter and steal in relation to a pharmacy at East Lindfield (Count 3); on 10 March 2003 the applicant committed a further offence of break, enter and steal in relation to the same pharmacy (Count 1); and on 28 March 2004 the applicant committed the offence of receiving (Count 2), being the receiving of a laptop and a watch, which property had been stolen in a break, enter and steal committed on 22 March 2004.

6 On 5 October 2004, the applicant appeared before Hornsby Local Court, pleaded guilty, and was committed to the District Court for sentencing. On 4 February 2005 the applicant appeared for sentence before His Honour Blackmore SC DCJ for each of the above three offences. Blackmore DCJ sentenced the applicant: for the first mentioned offence, to 350 hours of community service work; for the second mentioned offence, 15 months' imprisonment to date from 4 February 2005 and expire on 3 May 2006, suspended pursuant to s.2 of the Crimes (Sentencing Procedure) Act 1999; and, for the third mentioned offence of receiving, ordered the applicant to enter into a good behaviour bond for a period of three years.

7 The applicant performed none of the hours of community service ordered by His Honour. On 10 June 2005 the applicant was arrested and charged with offences, which are not now relevant to sentencing, except by way of background. Those offences were two counts of larceny, goods in custody (a motor vehicle), possession of implements to enter and drive conveyance, drive conveyance, and drive whilst disqualified. As a consequence of both the applicant's failure to perform any hours of community service and his commission of the other offences, applications were made including an application for revocation of the community service order pursuant to the provisions of s.115(2)(b) of the Crimes (Administration of Sentences) Act 1999. On 19 September 2005, His Honour directed that the offender be called up before any judge, whereupon the applicant came before His Honour Charteris SC DCJ.

8 His Honour Charteris DCJ initially had before him two of the counts and later the third. The circumstances of that also need explanation. On 26 October 2005 the applicant was called up for breach of the suspended sentence and the good behaviour bond before Charteris DCJ. Counsel then appearing for the applicant requested that His Honour deal with the breach of the community service order at that time. The facts were before his Honour. His Honour was not prepared so to do in the absence of a breach report by the Probation and Parole Service. His Honour sentenced the applicant in the following way: a for the offence of break, enter and steal on 10 March 2003 (Count 1) which had been the subject of the suspended sentence of 15 months' imprisonment, the section 12 bond was revoked and the offender was sentenced to a non-parole period of nine months to date from 26 October 2005 and expire on 25 July 2006, with a parole period of six months to date from 26 July 2006 and expire on 25 January 2007; b for the offence of receiving on 28 March 2004 (Count 2), the s.9 bond was revoked and the applicant was sentenced to a non-parole period of nine months to date from 10 March 2006 and expire on 9 December 2006, with a parole period of nine months to date from 10 December 2006 and expire on 9 September 2007.

9 When the above orders were made, namely, on 26 October 2005, His Honour indicated that he intended, if the third offence came before him, to impose a sentence which was wholly concurrent with the sentence for Count 2. Subsequently, on 24 March 2006, the applicant was again before His Honour Charteris DCJ at which time His Honour made the following further order: a for the offence break enter and steal on 27 February 2002 (Count 3), the community service order was revoked and the applicant was sentenced to imprisonment for a period of nine months expiring 9 December 2006, with an additional period of nine months commencing 10 December 2006 and expiring 9 September 2007.

10 It is against all three of the above sentences imposed by Charteris DCJ that the applicant now seeks leave to appeal. Because of the bifurcated sentencing process before Charteris DCJ, there are two appeals, two sets of Grounds of Appeal and separate Remarks on Sentencing for Counts 1 and 2 on one hand and Count 3 on the other. To the extent possible I will seek to deal with them together so as not to be repetitive. There is significant overlap in each of the Grounds of Appeal and no purpose is served in dealing with them separately. Further, during the hearing of the appeal this Court raised with the applicant and the Crown the validity of the sentence imposed by Charteris DCJ in relation to Count 1 and the capacity to appeal same. The Revocation of the Suspended Sentence

11 The original sentences imposed by Blackmore DCJ in relation to Counts 2 and 3 were a s.9 bond and a community service order respectively. Section 99(1)(a) of the Crimes (Sentencing Procedure) Act 1999 entitles a court that revokes a s.9 good behaviour bond to re-sentence the offender. Similarly, s.115 of the Crimes (Administration of Sentences) Act 1999 entitled Charteris DCJ to revoke the community service order imposed in relation to Count 3 and re-sentence the applicant.

12 However, Charteris DCJ after revoking the s.12 recognisance also purported to vary the sentence imposed in relation to Count 1 by purporting to fix a non-parole period. On Count 1, Blackmore DCJ imposed a sentence of imprisonment of 15 months and did not fix a non-parole period as required by s.44(1) of the Crimes (Sentencing Procedure) Act 1999. Blackmore DCJ purported to do that on the basis of reasons confined to the fact that the applicant "will be the subject of another bond at that time and [Blackmore DCJ took] that into account." This does not satisfy s.45(2) nor is it a proper reason not to fix a non-parole period. There is no power or jurisdiction, similar to that which exists in relation either s.9 bonds or community service orders, that would ordinarily allow revocation of a sentence imposed and then suspended. Nor is it logical for there to be. If the bond imposed under s.12 in relation to the suspended sentence is breached and the recognisance is revoked, the sentence otherwise imposed is effective. The offender is not sentenced again. Nor is there a power to vary the sentence in the manner here attempted.

13 Given that the suspended sentence for Count 1 was imposed by Blackmore DCJ at the same time that the sentences for Counts 2 and 3 were imposed, and that the bonds for Counts 2 and 3 were later revoked, it may well be that Charteris DCJ could have varied the date of commencement of the Count 1 sentence: see s.59(4) of the Crimes (Sentencing Procedure) Act. But, if so, his Honour was prohibited from varying the term of the sentence or the non-parole period: see s.59(5) of that Act. His Honour purported to do the latter, and his Honour did not purport to act under s.59 of the Act.

14 Further, if the original sentence by Blackmore DCJ were imposed contrary to s.44(1) or s.45(2) of the Crimes (Sentencing Procedure) Act, the provisions of s.43 of that Act would be available to reopen the proceedings and re-sentence according to law: s.43(2)(a). However, Charteris DCJ did not have this power because, as previously stated, the original sentence of Blackmore DCJ purported to give a reason in accordance with the requirements of s.45(2) of the Act. While the reason given was inadequate and not one which would allow a judge not to fix a non-parole period, the sentence was not "contrary to law" for the purpose of s.43. It was a sentence that suffered from error of law which required correction on appeal, but only on appeal.

15 His Honour was of the mistaken view that, because the applicant had breached the bond on which the suspension of the sentence was dependent, his Honour could simply revoke and re-sentence. His Honour could not act in that way: Barret v DPP [2006] NSWCCA 210; R v Tolley [2004] NSWCCA 165; R v Graham [2004] NSWCCA 420.

16 Charteris DCJ had no jurisdiction or power to sentence on Count 1, as he purported to do and the order on that Count is void. The District Court of NSW is a court of record, but not a superior court of record; if it makes an order without jurisdiction, the order is void: Pelechowski v Registrar Court of Appeal (1999) 198 CLR 435. Further, there is no capacity to appeal against the sentence purportedly imposed on this Count by Charteris DCJ because that sentence had or has no effect in law: see by analogy Barrett v DPP, supra (per Latham J, with whom, Hunt AJA and Adams J agreed on this issue). As a consequence, the original sentence on Count 1 is still extant. Even though the original sentence was imposed in a manner that revealed an error of law, it was not without jurisdiction. Further, the latter "order" on Count 1 by Charteris DCJ is not a "sentence" within the meaning of the Criminal Appeal Act 1912 because it is not in law an order and does not, relevantly, impose a sentence: see Tolley, supra and Graham, supra.

17 The preceding paragraph ought not to be taken as determining that any jurisdictional error will render void an order of the District Court. In this case, there was no jurisdiction to hear and determine a variation to the sentence of the kind ultimately ordered. Even orders vitiated by jurisdictional error may, for some purposes including especially appeals, have some validity: see, for example, Calvin v Carr [1980] AC 574 at 589G-590B, E-F, 591E-H.

18 These matters were raised by this Court on appeal. The Crown sought to deal with issue by distinguishing Barrett on the basis that the provisions of s.99(1)(c)(ii) allow for the course undertaken by Charteris DCJ. I do not here deal with whether the Crown would be required to apply for and be granted leave to reargue Barrett. The submission, as I understand it, is that because Blackmore DCJ did not apply, or properly apply, s.44 or s.45 of the Act, (those sections being in Part 4), s.99(1)(c)(ii) allowed Charteris DCJ to apply s.44 (or s.45) of the Act. The submission depends on a misconstruction of s.99(1)(c)(ii), particularly the words "except to the extent to which it [Part 4] has already been applied in relation setting the non-parole period and the balance of the term of the sentence". The Crown submits that because, as a matter of fact, neither s.44 or s.45 were originally utilised, or properly utilised, s.99(1)(c) allows them to be applied on the revocation of the bond, as was done here by Charteris DCJ.

19 The words in s.99(1)(c)(ii) upon which the Crown relies are the corollary of the words in s.12(3) of the Act which relate to the fixing of the original sentence. Section 12(3) is in the following terms: "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 balance of the term of the sentence."

The legislature has expressly provided in the Act, in s.12(3), to which s.99(1)(c) refers, that the task of setting the non-parole period and balance (or issuing reasons for not setting a non-parole period) is to be performed at the time that the sentence is imposed and suspended, and not at the time that the bond is revoked. 20 Further, as a matter of fact, Blackmore DCJ applied s.45 of the Act but did so wrongly. The sentence imposed by Blackmore DCJ on Count 1 suffers from an error of law and should be corrected. 21 For the above reasons, the sentence purportedly imposed by Charteris DCJ in relation to Count 1 is void and no appeal lies to this Court from the purported sentence. 22 Because the Court considered that the above may be an outcome, it extended the time, to the extent necessary, for the applicant to appeal the sentence imposed by Blackmore DCJ on Count 1.

Grounds of Appeal 23 I will hereafter deal with the application for leave to appeal on the basis that it is pursued against the sentences imposed by Blackmore DCJ on Count 1 and by Charteris DCJ on Counts 2 and 3.

24 The maximum sentence available for each of the offences was 14 years' imprisonment for Counts 1 and 3, and three years' imprisonment for Count 2. The overall effective sentence imposed by their Honours for all three offences was a non-parole period of 22 months commencing 4 February 2005 and expiring 9 December 2006 with an additional period of nine months commencing 10 December 2006 and expiring 9 September 2007. However, the period from 4 February 2005 until 25 October 2005 was not spent in gaol. Bearing that in mind, the overall period of incarceration was 13.5 months, and the balance of term remains the same (a total sentence of 22.5 months, and a ratio of 2:1 for non-parole period to the Remainder of the Sentence, excluding that part of the non-parole period not spent in gaol).

25 The circumstances surrounding the offences were not in dispute before the sentencing courts and are adequately set out above. The only additional facts that are possibly relevant are that each break and enter was caused by smashing a window and in each case drugs or other stock were stolen. In each break and enter the applicant left blood on the scene from which he was identified.

26 The applicant has a long history of criminal offences, predominantly involving acts of dishonesty, larceny and stealing, and in the case of the stealing of motor vehicles, consequential driving offences. A number of the offences, if not all of them, seem to be drug-related; the Pre-Sentence Report indicates long-standing drug and alcohol abuse. The applicant's parents raised the applicant in an affluent environment but with minimal parental guidance. His parents' marriage became estranged and for some significant period his father played only a minimal part in the applicant's upbringing. The Pre-Sentence Report understandably indicates that it would be difficult to have confidence in the prospects of rehabilitation. This assessment was based upon the applicant's criminal history, his attempts or purported attempts at rehabilitation, and the failure of those attempts.

27 I do not seek to deal with each and every matter raised, some of which are based upon either a misunderstanding of the process or a misunderstanding of the Remarks on Sentence, or both. I will deal with each of the major matters. Some of the matters raised by the applicant, who is self represented, arise from elevating exchanges between the sentencing judge and counsel and treating them as part of the remarks on sentence. Exchanges between counsel and judge, or the use of an expression by a judge in the course of a trial or hearing, do not represent a final view, do not represent a fully considered view and seek only information or a proper understanding of the issues or submissions made for the purpose of them being considered in any final judgment: R v Pham [2005] NSW CCA 94; R v Millar [2005] NSW CCA 202.

28 The applicant also complains, although this is difficult to understand, about the absence of a finding of special circumstances. As earlier stated the ratio of non-parole period to remainder of sentence in the effective overall sentence is 2:1, and would require a finding of special circumstances. Absent a finding a special circumstances, the relevant ratio is statutorily fixed for any individual offence at 3:1. Further, His Honour Charteris DCJ expressly found special circumstances. The sentence imposed by His Honour reflects a shortened non-parole period than is required under the relevant legislation, at least for any one offence. This is to the applicant's benefit. The finding of special circumstances is based on the subjective factors raised on behalf of the applicant and on account of the effect of accumulation of sentences. Such a finding was within the discretion reposed in His Honour and should not be the subject of interference on appeal.

29 The immediately preceding paragraphs also encompass the matters raised by the applicant, being: his prospects of rehabilitation; the objective criminality; and, the alleged use by His Honour of mitigating factors as subjective only and not going to the totality of criminal conduct. His Honour took each of these matters into account and did so appropriately.

30 Unless an applicant for leave or appellant establishes identifiable or manifest error this Court will not interfere with a sentence. One of the grounds relied upon by the applicant is that the matter could have been dealt with in the Local Court. As this Court stated in R v El Masri [2005] NSWCCA 167 (per Johnson J, with whom Hunt AJA and Hulme J agreed):

"[29] It is a well-established sentencing principle that a court dealing on indictment with a matter which was capable of summary disposal may have regard to that fact on sentence: R v Sandford (1994) 72 A Crim R 160 at 195; R v Griggs (1999) 109 A Crim R 484 at 485-6; Crombie , at paragraph 16; Doan , at 123ff (paragraph 35ff); R v LPY (2002) 135 A Crim R 237 at 240. But it is not a universal rule ( Sandford , at 195) nor a factor which operates universally to reduce sentence ( Doan , at 124)... The significance of the loss of a chance to be dealt with in the Local Court will vary from case to case: R v Depoma [2003] NSWCCA 382 at paragraph 13."

31 While it was permissible for Charteris DCJ to have taken into account the circumstance that the matter could have been dealt with by the Local Court, the criminal record of the applicant and the fact that the initial sentence was imposed by the District Court rendered it wholly inappropriate for the Local Court to have dealt with the matter. In those circumstances the theoretical possibility of the matter being dealt with by the Local Court was not a significant issue. Further, extremely experienced counsel, representing the applicant, did not raise this argument before His Honour below. This ground of appeal is also rejected.

32 The last two matters that require attention I summarise as grounds relating to manifest excess and an inappropriate discount for an early plea of guilty, or a failure to identify any such discount. A number of arguments are subsumed within these two issues.

33 The applicant contends, based on arithmetic that is difficult to follow, that his sentence involves a starting point of 4 1/2 years' imprisonment. I reiterate that we are here dealing with overall sentences and not a sentence for a particular offence. Nevertheless, for the sake of dealing with this submission, I apply the same principles. If the maximum discount were applied for an early plea of guilty the total sentence imposed by His Honour Charteris DCJ required a starting point of less than 30 months. Bearing in mind all of the objective and subjective features of these offences and this applicant, such a starting point can be described in no other way than as lenient. The submission of the applicant that the sentence imposed was "very extreme" or that no discount has been allowed for a plea of guilty are manifestly wrong. So too is the arithmetic calculation of 4 1/2 years.

34 The applicant submits that His Honour, in sentencing him, should have imposed a lesser sentence because of the history that the applicant had already been sentenced to community service orders. It cannot be said that His Honour was unaware of this circumstance. His Honour made an order revoking those earlier sentences. His Honour was entitled to take account of the fact that the applicant's history manifested a continuing attitude of disobedience to the law and required a greater emphasis on personal deterrence than rehabilitation: Veen v The Queen (No 2) (1998) 164 CLR 465.

35 The last ground with which I deal is the proposition that Charteris DCJ was in error in indicating on the earlier occasion, 26 October 2005, the sentence that would be imposed in Count 3, as this Count was not yet before His Honour. In essence, this is a submission that His Honour was biased or displayed apprehended bias (i.e. prejudgment) in relation to Count 3. There are two fundamental problems with such an argument at this stage. The first is that it was not raised below. More importantly, counsel represented the applicant before Justice Blanch, Chief Judge of the District Court on 21 March 2006, to deal with the allocation of the hearing of the sentence on Count 3. This was after the first sentencing occasion and before the second occasion and, therefore, at a time when the indication of Charteris DCJ had been given. At that directions hearing, counsel specifically requested that the matter be listed before Charteris DCJ. If this could ever be an arguable issue, which I do not need to decide, the applicant cannot agitate it in these circumstances. Conclusion

36 Finally, the Court must be satisfied, on the whole of the evidence, that it would impose a less severe sentence, or, in the words of s.6(3) of the Criminal Appeal Act 1912, the Court must form an opinion that "some other sentence, whether more or less severe is warranted in law and should have been passed": R v Simpson (2001) 53 NSWLR 704. If that opinion is not formed, the existence of error is insufficient, of itself, to justify interference. In my opinion, His Honour imposed lenient sentences and the Court could not form the requisite opinion necessary to justify interference except to the extent necessary to correct the errors of law of Blackmore DCJ and set a non-parole period on Count 1.

37 I propose that leave to appeal be granted and that, in relation to Count 1, the sentence imposed by Blackmore DCJ on 4 February 2005 be quashed and in lieu thereof the applicant be sentenced on Count 1, Break, Enter and Steal committed on 10 March 2003, to a non-parole period of 9 months commencing 26 October 2005 and expiring 25 July 2006 with a balance of term of 6 months commencing 26 July 2006 and expiring 25 January 2007. Otherwise, the appeal is dismissed. **********

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