GUNAY v DPP and ANOR [1997] NSWCA 132

GUNAY v DPP SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLY and MEAGHER JJA, and GROVE AJA 29 April 1997, 4 July 1997

[1997] NSWCA 132

S9(3) Sentencing Act-sentencing — procedural fairness — jurisdictional error — judicial obligation to warn

FACTS

Appellant seeks certiorari for orders made by Mahoney DCJ on appeal from Norton LCM which had the effect of increasing the appellant's sentence. The appellant argues procedural unfairness in the denial of an opportunity to withdraw his appeal arising from a failure by Mahoney DCJ, tantamount to jurisdictional error, to warn him of the possibility of an increase in sentence.

HELD

1. The warnings issued to the appellant first by Johnston DCJ on the appellant's bail application and secondly by Mahoney DCJ in the course of hearing the appeal were sufficient.

2. In practical terms, the orders of Mahoney DCJ do no more than give effect to the orders of Mr Norton LCM.

3. It cannot be suggested that counsel's inexperience should have been apparent to the judge, nor that in these circumstances had the rule in Parker's Case been intricately explained to counsel and his client that the claimant would have given counsel alternate instructions.

Priestly JA I agree with Meagher JA.

Meagher JA This is an application by Mr Gunay for an order in the nature of certiorari quashing an order made by Mahoney DCJ in the District Court on 30 October 1996 whereof his Honour sentenced the claimant to a fixed term of imprisonment of fourteen months seven days, to date from 30 October 1996, whereas the magisterial order the appeal from which his Honour was hearing had sentenced him to four fixed terms of six months to be served concurrently dating from 4 July 1996 and expiring 3 January 1997, without giving him any warning that his sentence might be increased or that he had an opportunity of withdrawing his appeal. At first sight the claimant's case looks invincible. His Honour had simply disregarded the decision of this Court in Parker v The Director of Public Prosecutions (1992) 28 NSWLR 282. However, in my view, the point dissolves on closer consideration of the facts.