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. The story begins with Mr Gunay maliciously wounding his wife Tevhide Gunay on about 29 December 1994. Mr Gunay was arrested and charged with malicious wounding. Bail was refused. It might be added that the wounding was a particularly unpleasant one. The case came before Graham DCJ on 20 March 1996, when Mr Gunay pleaded guilty. He was sentenced to two and a half years penal servitude comprised of a minimum term of 15 months to date from 29 December 1994 and expire on 28 March 1996, and an additional term of fifteen months to date from 29 March 1996 and expire on 28 June 1997. The sentence was backdated to take account of the fact that he had been in custody from the date of the offence. 2 UNREPORTED JUDGMENTS On 28 March 1996 (only eight days after he was sentenced) the claimant was released from custody on parole. No sooner was he released than he set about committing the offence of intimidation (sometimes referred to as "stalking") against his wife and others of his family, Mesdames Rabia Gunay, Ebru Gunay and Umit Filizkok. These four new offences were committed on 15 and 19 April 1996. On 22 April he was arrested and charged in relation to these four offences, and bail was refused. The wayward course of his conduct continued. At the Burwood Local Court on 6 May 1996 he was granted bail in relation to these four offences on various conditions, one of which was not to assault, intimidate or contact any of the four ladies I have referred to. Only one day later, on 7 May 1996, he threatened Miss Umit Filizkok. Thereupon he was re-arrested for breach of his bail conditions and once again refused bail by the Magistrate. A further application for bail to the Supreme Court was unsuccessful: Ireland J refused bail. It was then that the four counts of intimidation came on for hearing before Mr Norton LCM at Burwood Local Court. They were heard for four days (21 May 1996, 12 June 1996, 19 June 1996 and 4 July 1996). The claimant was convicted on all four counts. On each count the learned magistrate sentenced him to a fixed term of six months, dating from 4 July 1996 and expiring on 3 January 1997, each term of imprisonment to be concurrent with the other three. (Time spent in custody was taken into account in calculating these periods). It almost goes without saying that he lodged an appeal to the District Court on all grounds in relation to all four convictions, and that once more bail was refused. This took place on 17 July 1996. The following day, 18 July 1996, the Offenders' Review Board considered his case and revoked the order of 28 March 1996 granting parole in respect of his malicious wounding. It did so because of the intimidation convictions of 4 July 1996. The revocation was held to date as from 15 April 1996 (the first of his four intimidation offences). It required him to serve the balance of parole (1 year and 2 months) from 10 May 1996. This term will expire on 9 July 1997. The intimidation appeals came on for mention before Johnson DCJ at the Parramatta District Court on 20 September 1996, and once more bail was refused. At a further mention in the Parramatta District Court before Graham DCJ on 24 September 1996, bail was again sought and again refused. In the course of his Honour's remarks on refusing bail, his Honour said: "The prospect remains very strong that, if the Appellant is convicted again he may expect a sentence which could well be significantly in excess of the six months fixed term which has so far been imposed upon him. Of course that situation would require the Appellant to be warned by the judge hearing the appeal of his or her inclination to take such a step, giving the Appellant the opportunity of withdrawing his appeal. But subject to that procedural safeguard, it does seem to me that, on the face it (sic), if the Appellant is found guilty in respect of each of the offences again, then he might well expect to be at risk of cumulative rather than concurrent sentences for some or all of these offences." It was in this context that Mahoney DCJ came to hear the four intimidation appeals on 30 October 1996. He dismissed all appeals. He sentenced the claimant to a term of imprisonment of fourteen months and seven days, dating from 30 October 1996 and expiring on either 9 January or 6 January 1998 (No argument was addressed to us on this latent ambiguity). It is in respect of these appeals that the present application arises. The claimant's case is that his Honour by increasing the claimant's term of imprisonment without warning and without affording the claimant an opportunity of seeking to URJ GUNAY v DPP (Meagher JA) 3 withdraw his appeals committed an act of such procedural unfairness that he made orders having no jurisdiction to do so. I cannot accept this analysis of the matter. A consideration of what Mahoney DCJ was saying can be distilled from the transcript of the hearing before him. It involves five propositions: (a) The offences committed by the claimant were heinous, and could not be treated lightly. Not even his representatives would gainsay that proposition. (b) The sentencing magistrate intended that a six month term of imprisonment should be served in respect of the offences. A fair reading of his worship's reasons seems to say so, and it would be surprising if they said any less. (c) If Mahoney DCJ had simply dismissed the appeals, no part of the Magistrate's order would be served. The reason is simple: under the Parole Board's order of 18 July 1996, the claimant's additional term was extended to 9 July 1997, and the parole period granted was revoked. This would mean that imprisonment for the intimidation offences would cease on 3 January 1997, although imprisonment for malicious wounding would continue to 9 July 1997. (d) The problem facing his Honour of how to ensure that the claimant served six months imprisonment in reality, in the light of the Parole Board's order, would be most simply solved if his Honour would make orders that a six month imprisonment term should date from 9 July 1997. Indeed his Honour was inclined to take this course until it was pointed out to him that s9(3) of the Sentencing Act, 1989 prevented him from doing so. (e) If he was forced to make an order from the date of his judgment, the only way to ensure that the claimant served six months for his intimidation offences was to make an order expiring on a date six months after the expiration of the additional term of the malicious wounding sentence. This is what he did. I fail to see where any lack of procedural justice emerges; indeed, I fail to see how a sentence was ordered which was in any way greater than that originally imposed, except in a purely technical sense. The magistrate wanted the claimant to serve six months for the intimidation offences; Mahoney DCJ ensured that he did just that. If I am wrong in regarding what his Honour did, from a practical if not a theoretical point of view, as not involving any lengthening of the claimant's sentence, I am still of the view that no injustice has occurred. That is because there was, in fact, a warning that the sentence might be lengthened. Graham DCJ had done so twice. Mahoney DCJ had also done so, by engaging in a dialogue with counsel then appearing for the claimant about that very possibility. Indeed, at the close of the present hearing, Mr Game QC, learned senior counsel for the claimant, conceded that a sufficient warning of the possibility had been given. However, Mr Game QC did not concede that an opportunity to seek leave to withdraw the appeal had been offered. There is, I am afraid, a short answer to this submission: his Honour had no reason to suspect that counsel was ignorant of the possibility, which is not exactly esoteric. It is true that the judge made a mistake or two in weaving his way through the intricacies of the Sentencing Act. At first, he wanted to impose a sentence which was in breach of s9(3). But he did not and, instead, imposed a fixed concurrent term. The judge's reasons were sufficient in the circumstances. There were no other jurisdictional errors sufficient to attract the prerogative relief sought. For these reasons, in my opinion, the application should be dismissed with costs. 4 UNREPORTED JUDGMENTS There is one other consideration which has been urged on us by Mr Game QC. I have not mentioned it so far not because I am unmindful of it, but because I do not think it is really relevant to the issues raised by the case. In this court, Mr Game QC led oral evidence from the counsel who had conducted the claimant's case before Mahoney DCJ. This evidence was that the counsel had been (at the time of Mahoney DCJ's decision) less than a year at the Bar, that his brief had been a dock brief, that he had never heard of the rule in Parker 's Case, and that as a consequence he had not explained to his client either the rule or the possibility of seeking leave to withdraw. He also said that he took instructions from his client in a perfectly satisfactory manner although no interpreter was present. All this may be true, and there was no suggestion the witness should be disbelieved. But in my view, it makes no difference. It cannot be suggested that the counsel's inexperience should have been apparent to the judge (it would not have been apparent to me unless it had been brought to my attention), both counsel and client must be taken to have understood Graham DCJ's observations about the possibility of the sentence being increased; there is no reason to believe that if counsel had explained to his client in detail every aspect of the rule in Parker's Case, including the opportunity to seek leave to withdraw the appeal, his client would have instructed him to seek such leave; nor can we safely assume that any such application if made would have been granted. As I have said, I think the summons should be dismissed with costs. Grove AJA I agree with Meagher JA The summons should be dismissed with costs. Counsel for the Claimant: T Game SC Solicitors for the Claimant: T A Murphy Counsel for the First Opponent: G Hosking SC/P Gwozdecky Solicitors for the First Opponent: S E O'Connor Counsel for Second Opponent: Submitting Appearance