Regina v PHAM [2004] NSWCCA 263

New South Wales Court of Criminal Appeal

CITATION : Regina v PHAM [2004] NSWCCA 263 HEARING DATE(S) : 28 July 2004 JUDGMENT DATE : 28 July 2004

JUDGMENT OF : Spigelman CJ at 1; Hidden J at 19; Buddin J at 20 DECISION : Application allowed

CATCHWORDS : Application of section 59 Crimes (Sentencing Procedure) Act 1999 - meaning of 'court' LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 CASES CITED : R v Wanambi (1998) Northern Territory Reports 1 PARTIES : Regina Vu Ngoc PHAM FILE NUMBER(S) : CCA 60009/04 COUNSEL : P Kintominas (Appellant) D C Frearson (Crown) SOLICITORS : M Donnelly (Appellant) S Kavanagh (Crown)

LOWER COURT Supreme Court JURISDICTION : LOWER COURT 70218/01 FILE NUMBER(S) : LOWER COURT Sully J JUDICIAL OFFICER :

- 4 - IN THE COURT OF CRIMINAL APPEAL 60009/04

SPIGELMAN CJ HIDDEN J BUDDIN J

Wednesday 28 July 2004 REGINA v Vu Ngoc PHAM Judgment 1 SPIGELMAN CJ: On 6 July a Court constituted by Justices Hulme, Adams and myself delivered judgment in R v Ngoc Pham (2004) NSWCCA 190 in which a new trial was ordered. The Court was not then aware that the Appellant had been convicted and sentenced by Acting Judge Stewart in an unrelated proceeding. His Honour's sentence was delivered on 19 September 2003, after the sentence by Mr Justice Sully. 2 His Honour Acting Judge Stewart determined the sentence to commence at a certain time, in view of the period of the sentence imposed by Mr Justice Sully in the matter in which the appeal has been allowed. 3 The Crown relisted the matter before this Court seeking an order pursuant to s59 of the Crimes (Sentencing Procedure) Act 1999, which relevantly provides as follows: "59(1) A court that quashes or varies a sentence of imprisonment on a person (on appeal or otherwise) may vary the date of commencement of any other sentence that has been imposed on that person by that or any other court." 4 The Crown seeks the following order varying the date of commencement of the sentence imposed by Acting Judge Stewart: "That the sentence imposed by his Honour Acting Judge Stewart on 19 September 2003 be varied pursuant to section 59 of the Crimes (Sentencing Procedure) Act 1999 so that the sentence commences on the date of arrest, namely, 24 March 2000 and expires on 23 September 2010 and the non-parole period commences on 24 March 2000 and expires on 23 March 2006." 5 This order proceeds on the assumption that the time spent in custody was wholly referable to the charge with respect to which Acting Judge Stewart sentenced Mr Pham. 6 There may be cases in which a dispute arises in a situation when a person has been in custody for more than one reason. This is not that case, by reason of the particular order sought by the Crown. 7 The power in s59 is expressed to be exercisable by "a court that quashes or varies a sentence". The Court as presently constituted does not consist of the same judges as the Court which allowed the appeal from Mr Justice Sully and, accordingly, quashed the sentence imposed by Mr Justice Sully in that trial. 8 The word "court" can refer to the individual or individuals who constitute a bench in a particular matter. Alternatively, it can refer to the institution, namely, in this case, the Court of Criminal Appeal as constituted under the Criminal Appeal Act 1912, irrespective of the composition of the members thereof. 9 Section 59 is a provision designed to serve pragmatic purposes: to ensure the efficiency and expedition of the administration of criminal justice. Its clear purpose is to permit variations consequential upon a sentence of imprisonment being set in a second matter by reference to the dates of the sentence imposed in the first matter. The pragmatic purpose of s59 would be best served if the word "court" is given a liberal construction so that the section is able to be applied with minimum cost and inconvenience. 10 Its purpose is, in part, to ensure that it is not necessary to bring a further appeal in the second matter in circumstances where what is involved is, in the normal course, a mechanical exercise. That purpose is best served by ensuring that the task can be performed with a minimum degree of difficulty of an administrative character. There are circumstances in which a court, once constituted, is not able to be reconstituted. Sickness and absence of judges can delay matters when expedition is required. 11 The matter has arisen for decision in a closely analogous context by Justice Kearney of the Supreme Court of the Northern Territory in R v Wanambi (1998) Northern Territory Reports 1. 12 In that case the question arose under s64(2) of the Sentencing Act 1995 (NT) which provided relevantly: "Where ... a person has been sentenced ... in the Territory to a term of imprisonment for an offence committed while a parole order ... was in force in relation to the person ... the court by which the person is sentenced ... shall order the person to be imprisoned for the term the person had not served at the time when the person was released ... under the parole order." 13 In that case it was impractical for the Crown's application for an order under s64(2) to be brought before the judge who imposed the sentence. Justice Kearney construed the reference to "court" in s64(2) as a reference to the institution, rather than to the individual sentencing judge – see at p5. In my opinion a similar construction is appropriate for s59. 14 In the normal course it would be desirable for the Crown to raise this question with the bench that is quashing or varying the sentence of imprisonment. If raised later, normally, matters of this kind can be done on the papers by written submissions to the Court. There may be cases, unlike this case, in which factual disputes arise, for example as to what allowance is to be made for the circumstance that a person may have been in custody for more than one reason. That issue does not arise by reason of the Crown approach in the present case. 15 In the normal course these matters are mechanical and not only can be done on the papers, they ought to be able to be done by a single judge of the Court. Consideration should be given on a future occasion when the Criminal Appeal Act is before the Parliament to add the power under s59 to the list of powers in s22 of the Criminal Appeal Act 1912 that may be exercised by a judge sitting alone. 16 Mr Kintominas, who appeared for Mr Pham in this Court, drew the attention of the Court to the circumstance that Acting Judge Stewart, on his submission, took into account the prior conviction for the murder offence, with respect to which the Court has now allowed an appeal and ordered a new trial. He noted that the sentence by Acting Judge Stewart was not the subject of an application for leave to appeal. The position may be different if, on the subsequent trial for the murder offence, Mr Pham is acquitted. Mr Kintominas wished to preserve his position to reconsider the possibility of seeking leave to appeal against sentence if that occurs. 17 Nothing I have said would cast any doubt on his ability to make that future application on behalf of his client by seeking leave to appeal out of time. The order the Court is making under s59 is of a mechanical nature. 18 In my opinion the order sought by the Crown, which is set out above, should be made. 19 HIDDEN J: I agree. 20 BUDDIN J: I also agree. **********