R v Boston [2000] NSWCCA 227

New South Wales Court of Criminal Appeal

CITATION : R v Boston [2000] NSWCCA 227 FILE NUMBER(S) : CCA 060177/99 HEARING DATE(S) : 19/05/00 JUDGMENT DATE : 19 May 2000

PARTIES : Crown Anthony Craig BOSTON JUDGMENT OF : Heydon JA at 1; James J at 19; Bell J at 2

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/61/0153 LOWER COURT JUDICIAL Mahoney DCJ OFFICER :

COUNSEL : P Byrne SC - Appellant D M Woodburne - Crown SOLICITORS : Ross Hill & Associates - Appellant SE O'Connor - Crown

Firearms Act, 1996 LEGISLATION CITED : Criminal Appeal Act, 1912 Criminal Procedure Act, 1986 Crimes Legislation Amendment Act, 1997 DECISION : Convictions and sentences quashed

IN THE COURT OF CRIMINAL APPEAL

060177/99

HEYDON JAMES J BELL J

Friday, 19 May, 2000 REGINA v Anthony Craig BOSTON

JUDGMENT 1 HEYDON JA: I ask Justice Bell to deliver the first judgment. 2 BELL J: By notice of appeal dated 16 April 1999 the appellant appeals against the severity of sentences imposed on him in the District Court sitting at Broken Hill on 9 March 1999 in respect of two convictions under the Firearms Act 1996. The first a charge contrary to s 7(1) of that Act (shortly described as being in possession of a firearm without a licence) in respect of which the appellant was sentenced to a fixed term of six months imprisonment to commence on 28 October 2000 and to expire on 27 April 2001. The second is a conviction contrary to s 39(1) of the Act (fail to take precautions to ensure the safekeeping of a firearm)in respect of which he was sentenced to a term of three months imprisonment to commence 28 April 2001 and to expire on 27 July 2001. 3 The appellant was jointly arraigned before the District Court at Broken Hill on 8 March 1999 on an indictment charging one count of supply prohibited drug being not less than a commercial quantity. To the indictment he entered a plea of not guilty. His co-accused pleaded guilty and his matter was stood down for sentence. A jury was empanelled to try the case brought against the appellant. 4 Prior to the appellant being placed in the charge of the jury, the trial judge embarked on a voir dire hearing to determine the admissibility of certain evidence which the Crown proposed leading. At the conclusion of the voir dire hearing the appellant signified his intention to change his plea. The jury were brought back into court and he was rearraigned and pleaded guilty to the charge. The jury was then discharged. 5 The presiding judge was invited to deal with four outstanding charges, described as summary matters, in a similar way to the way in which he had been invited to deal with like charges in the case of the co-accused, Peter MacDonald. These charges comprised the two firearms offences to which I have already referred together with a third charge brought pursuant to the Firearms Act, being a charge of possess ammunition without licence contrary to s 65(3) of that Act and a charge of failure to pay for a meal or accommodation supplied at an inn contrary to s 9 of the Innkeepers Act. 6 Both the Crown Prosecutor and counsel for the appellant submitted that considerations of parity dictated that the appellant should receive a sentence identical to that of the co-accused. This led his Honour to give reasons for sentence in short form. 7 As at 8 March 1999 the four charges to which I have referred as summary offences were pending in the Local Court at Broken Hill. The charge of possession of a firearm without licence was an offence listed in table 2 in Pt 9A of the Criminal Procedure Act 1986 (the Act). As such it was to be dealt with summarily unless the prosecuting authority elected otherwise. It appears no such election had been made. 8 The remaining three charges were all summary offences within the meaning of that term for the purposes of Pt 10 of the Act as it then stood. 9 In the proceedings against the co-accused MacDonald, the Crown had invited the sentencing judge to deal with the summary offences pursuant to the provisions of Pt 10 of the Act (now Div 4 of Pt 2 of the Act). Part 10 permits the District Court or Supreme Court to deal with back-up offences and related offences with which an accused person had been charged at the conclusion of his or her trial. The sentencing judge proceeded to sentence Peter MacDonald purportedly pursuant to the provision of that Part. Mr MacDonald appealed against both conviction and sentence imposed in respect of the summary matters. 10 The appeal came before me as a single judge pursuant to s 5AD of the Criminal Appeal Act 1912. Both the Crown and the appellant submitted that I would find that the sentencing judge had no jurisdiction to deal with the appellant since the proceedings did not take place at the conclusion of the appellant's trial within the meaning of s 35(1) of the Act as it then stood. I quashed the convictions and sentences in respect of each of the summary offences in R v MacDonald [2000]NSWCCA 1. 11 The notice of appeal is expressed to be in respect of sentence only and in the body of the notice refers to the sentences imposed in respect of what are described as the gun charges as being excessive. 12 In written submissions dated 14 February 2000 Mr Byrne of Senior Counsel submitted that the appellant's case raised issues identical to those in MacDonald and that it was appropriate that the same result should follow. 13 It is to be noted that as at the date of those submissions Mr Byrne did not have access to the reasons in MacDonald. 14 A point of distinction between the present appeal and that of MacDonald is that in the latter the appellant entered a plea of guilty upon his arraignment. In oral submissions Mr Byrne contended that the sentencing judge was without jurisdiction to record convictions in respect of the summary offences. He submits that these offences were not shown to be 'related offences' such as to bring them within the provisions of Pt 10 of the Act. In this respect no certificate pursuant to s 34A(1)(b)of the Act was before the sentencing court. Indeed, there is no evidence that such a certificate was produced to the court before the appellant was committed for trial. Mr Byrne further submits that the proceedings did not take place 'at the conclusion of the trial' within the meaning of that expression in s 35(1)of the Act. 15 It does not seem to be necessary to determine what the words "at the conclusion of the trial" mean for the purposes of s 35(1) in order to dispose of this appeal. No certificate pursuant to s 34A(1)(b) was before the court. The transcript of the proceedings, together with his Honour's reasons, do not reveal that any consideration was given to the issue of whether the four summary charges were 'related offences' for the purposes of Pt 10 of the Act. 16 The requirement that upon committal for trial of a person charged with an indictable offence the prosecuting authority both inform the magistrate or justice as to whether or not the person has been charged with any back-up offences or related offences and, in the event that the person has been charged with any back-up offence or related offence, that the prosecuting authority produce to the court a certificate specifying each back-up offence and related offence was inserted into Pt 10 by the Crimes Legislation Amendment Act of 1997. We have not been taken to the legislative history of Pt 10 in any detailed way and it is not necessary to decide whether the production of such a certificate upon committal is an essential condition for the exercise of jurisdiction by the District Court under Pt 10. 17 In this case not only was no certificate produced to the court but as I have noted, no examination was undertaken by the court as to whether the four offences were related offences within the meaning of the Part. 18 I consider that the challenge to the jurisdiction of the learned judge to deal with the four offences has been made good and I would propose that the convictions and sentences be quashed. 19 JAMES J: I agree. 20 HEYDON JA: I also agree. The orders proposed by Justice Bell will be the orders of the court.