Local Court of New South Wales CITATION: R V Jamieson [2009] NSWLC 11 JURISDICTION: Criminal PARTIES: Police JAMIESON, Mark FILE NUMBER: PLACE OF HEARING: Downing Centre DATE OF DECISION: 06/16/2009 MAGISTRATE: Magistrate Heilpern CATCHWORDS: CRIMINAL LAW – Sentencing – Suspended Sentence – Sentence Correction ss 12 and 43 Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED: Road Transport (Safety and Management) Act 1999 Road Transport (General) Act 2005 CASES CITED: R v Cooke; Cooke v R [2007] NSWCCA 184 Erceg v the District Court of New South Wales & Virgin v the District Court of New South Wales & Anor [2003] NSWCA 379 TEXTS CITED: REPRESENTATION: Ms Kennedy, Police Prosecutor, for the Police Mr Behan, Solicitor for the Jamieson, Aboriginal Legal Service ORDERS: There has been a sentencing error, in that the maximum penalty for the offence was nine months imprisonment. Reasons for Decision 1 Mark Jamieson has a significant criminal record, and comes before the court apparently in breach of a suspended sentence bond pursuant to s12 of the Crimes (Sentencing Procedure) Act 1999 due to the commission of fresh offences. He has pleaded guilty to these fresh offences. His solicitor Mr Behan has submitted that the sentence pursuant to s12 is in error, and ought to be corrected by this court prior to the defendant being sentenced for the fresh offences. Mr Behan makes preliminary submissions that the corrected sentence ought to be a bond pursuant to s9 of the Crimes (Sentencing Procedure) Act 1999. If the corrected sentence is anything higher on the scale of penalties than that, Mr Behan has instructions to appeal that corrected sentence, and thus seeks to have the fresh matters adjourned pending that appeal. He also queries the starting date of any corrected sentence if it is a custodial sentence, suspended or otherwise. 2 The issues to be determined are A. Has there been a sentencing error, and if so B. Who should correct that error, and if this court C. What is the effect of any correction D. What are the appeal rights of the defendant following any correction 3 It is clear that the issue of the alleged sentencing error and any correction must be resolved prior to sentencing for the fresh offences - R v Cooke; Cooke v R [2007] NSWCCA 184. 4 Mr Jamieson's has a lengthy prior criminal record (excluding Children's Court matters) dating back to 1976. Relevant to the current issues are the following matters 1976 PCA Disqualified 12 months plus fine 1978 PCA Disqualified 18 months plus fine 1980 Drive Man Dangerous Disqualified 3 years plus fine Drive Disqualified Disqualified 6 months plus fine 1987 Refuse Breath Analysis Disqualified 2 years plus fine Unlicensed Fine 1990 Drive Manner Dangerous Disqualified 3 years plus s558 bond 1996 Unlicensed Disqualified 2 years plus fine High Range PCA Disqualified 4 years plus CSO 2000 High Range PCA Disqualified 2 years plus CSO Drive Disqualified Disqualified 2 years plus s9 Bond 22/9/2008 Unlicensed Disqualified 2 years plus fine Unlicensed Disqualified 2 years plus fine Mid Range PCA Disqualified 2 years plus suspended sentence (s12) for 12 months 29/4/09 Drive Disqualified Plea guilty – to be sentenced Low Range PCA Plea guilty – to be sentenced 5 In relation to the last matters above, Mr Jamieson appeared at Waverley Court and pleaded guilty. The matters were adjourned to the Downing Centre Local Court for sentence, and a set of papers for breaching the s12 bond was prepared. A. Has there been a sentencing error ? 6 It is contended by Mr Behan that the suspended sentence of 12 months imposed on 22 September 2008 is in error, and in my view this conclusion is correct. 7 The offence of Mid-Range PCA is provided by s9 of the Road Transport (Safety and Traffic Management) Act 1999 which relevantly provides: (3) Offence-middle range prescribed concentration of alcohol A person must not, while there is present in his or her breath or blood the middle range prescribed concentration of alcohol: (a) drive a motor vehicle, or (b) occupy the driving seat of a motor vehicle and attempt to put the motor vehicle in motion, or (c) if the person is the holder of a driver licence (other than a provisional licence or a learner licence)-occupy the seat in a motor vehicle next to a holder of a learner licence who is driving the vehicle. Maximum penalty: 20 penalty units or imprisonment for 9 months or both (in the case of a first offence) or 30 penalty units or imprisonment for 12 months or both (in the case of a second or subsequent offence). 8 A "second or subsequent offence" is defined in clause 2 of the "Dictionary" of the Road Transport (Safety and Traffic Management) Act 1999 as follows: (1) An offence against a provision of this Act is a "second or subsequent offence" only if, within the period of 5 years immediately before a person is convicted of the offence, the person was convicted of another offence against the same provision or of a major offence. (2) An offence against a provision of this Act is a "first offence" if it is not a second or subsequent offence. 9 The term "major offence" is in turn defined in the "Dictionary" as follows "major offence" has the same meaning as it has in the Road Transport (General) Act 2005 . 10 Section 188(1)(c) of the Road Transport (General) Act 2005 describes "major offences" and it is clear that Driving Unlicensed is not one of them. 11 Thus, in Mr Jamieson's case, the maximum term of imprisonment for the offence of mid-range PCA is nine months. 12 There was some discussion during submissions that the five-year delineation only applied to the disqualification period, and thus any prior major offence meant that the longer imprisonment period was available. However, a careful reading of the above legislation shows this not to be correct. Naturally, had the offence of unlicensed driver been a "major offence" then the maximum penalty would have been 12 months. That may have been the source of the error of the sentencing magistrate on the previous occasion. 13 Accordingly, I find that there has been a sentencing error, in that the maximum penalty for the offence was nine months imprisonment. B. Who should correct the error? 14 Section 43 of the Crimes (Sentencing Procedure) Act 1999 is as follows: 43 Court may reopen proceedings to correct sentencing errors (1) This section applies to criminal proceedings (including proceedings on appeal) in which a court has: (a) imposed a penalty that is contrary to law, or (b) failed to impose a penalty that is required to be imposed by law, and so applies whether or not a person has been convicted of an offence in those proceedings. (2) The court may reopen the proceedings (either on its own initiative or on the application of a party to the proceedings) and, after giving the parties an opportunity to be heard: (a) may impose a penalty that is in accordance with the law, and (b) if necessary, may amend any relevant conviction or order. (3) For the purposes of this section, the court: (a) may call on the person to whom the proceedings relate to appear before it and, if the person does not appear, may issue a warrant for the person's arrest, or (b) if of the opinion that the person will not appear if called on to do so, may, without calling on the person to appear before it, issue a warrant for the person's arrest. (4) Subject to subsection (5), nothing in this section affects any right of appeal. (5) For the purposes of an appeal under any Act against a penalty imposed in the exercise of a power conferred by this section, the time within which such an appeal must be made commences on the date on which the penalty is so imposed. (6) In this section: "impose a penalty" includes: (a) impose a sentence of imprisonment or a fine, or (b) make a periodic detention order, home detention order or community service order, or (c) make an order that provides for an offender to enter into a good behaviour bond, or (c1) make a non-association order or place restriction order, or (d) make an order under section 10, 11 or 12, or (e) make an order or direction with respect to restitution, compensation, costs, forfeiture, destruction, disqualification or loss or suspension of a licence or privilege. 15 Section 3 defines "court" as "court" means: (a) the Supreme Court, the Court of Criminal Appeal, the Land and Environment Court, the Industrial Relations Commission, the District Court or a Local Court, or (b) any other court that, or person who, exercises criminal jurisdiction, 16 It is clear that any magistrate may deal with a sentencing error, or it may be sent back to the original sentencing magistrate if necessary or convenient. For example, where there is a defended hearing, and thus the facts upon which sentence was based are unclear, then it would ordinarily be appropriate to have the matter listed before the sentencing magistrate. In this case, the sentencing magistrate is located on the Kempsey circuit, and was visiting Sydney when Mr Jamieson's matter was heard. Mr Jamieson does not have the means or desire to travel to Kempsey to have the matter heard, and enquiries have determined that the original sentencing magistrate will not be sitting here in the foreseeable future. I note further that there is no objection by the prosecution to this court re-sentencing the defendant, and accordingly, I have determined that I will deal with the matter forthwith. What is the effect of any correction? 17 Mr Behan has foreshadowed a submission that I ought to re-sentence the defendant to a sentence pursuant to a s9 Bond. I have formed a preliminary view, subject of course to hearing from Mr Behan and from the prosecutor, that this sentence would not be adequate, and that a sentence of a suspended sentence is appropriate. I have further formed the preliminary view that the term of this suspended sentence ought to be less than the nine month maximum, as the defendant pleaded guilty, the reading was at the low end of mid range, there was a significant period between this and prior offences (eight years), and there were no additional aggravating factors. This then raises the issue as to when the sentence commences – i.e. is it backdated to the date of the sentencing error, or does it commence from today. In my view, the sentence is able to be backdated, and I have located examples where the Court of Criminal Appeal has taken the same view with custodial sentences – see for example Kwok v R (No 2) [2007] NSWCCA 314. 18 Further, the factors which the court may take in relation to re-sentencing include what has occurred since the date of the imposition of the original sentence. In Erceg v the District Court of New South Wales & & Virgin v the District Court of New South Wales & Anor [2003] NSWCA 379 (19 December 2003), McColl J found as follows at [107]: Where a court is satisfied of the existence of either condition precedent and that the court should reopen the proceedings, it has a wide discretion in deciding what if any penalty should be imposed, save that it must be in accordance with the law. The judge in re-sentencing applies the law which existed at the time the original sentence was imposed and takes into account the circumstances of the offence or offences and the position at the time of the imposition of the original penalty. The judge must consider what has happened since that penalty was imposed and the circumstances which then exist. The court is not limited to the position as at the imposition of the original penalty: R v Denning (NSWCCA per Smart J, unreported, 15 May 1992); approved R v Tangen per Badgery-Parker J (with whom Gleeson CJ and Hidden JJ agreed), not following the more restrictive views of s 24 expressed by Kirby P and by Hunt CJ at CL in Ho and Tolmie respectively. 19 Thus it will next be necessary for me to hear submissions on the penalty now to be imposed for the previous offences and then for the fresh offences. Should I determine that a suspended sentence is appropriate, the term will be crucial. On my calculations, if it is any longer than seven months and seven days, then Mr Jamieson will be in breach of the s12 bond. What are the appeal rights following correction? 20 It is clear from s43(4) and s43(5) that Mr Jamieson has a right of appeal following correction of sentence. I may need to adjourn the fresh matters if he exercises that right following the correction, particularly if there is a suspended sentence longer than seven months and seven days. 21 I will now hear submissions on sentence for the original offences. Magistrate David Heilpern 16 June 2009 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. 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