Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Purves v R [2019] NSWCCA 227 Hearing dates: 13 September 2019 Date of orders: 13 September 2019 Decision date: 13 September 2019 Before: Bell P at [8]; Simpson AJA at [1]; Fullerton J at [10] Decision: (1) Leave granted to appeal against sentence. (2) Appeal allowed. (3) Set aside the sentence imposed by the District Court on 2 August 2018. (4) Pursuant to s 12 of the Criminal Appeal Act 1912 (NSW) the proceedings be remitted to the District Court. (5) Matter be listed in the District Court at 9.30am on Friday, 20 September 2019. Catchwords: CRIMINAL PROCEDURE – application for leave to appeal against sentence – additional offences taken into account – Crimes Act 1914 (Cth), s 16BA – procedural failure – failure to ask statutory inquiries – procedure to be undertaken by court in which person is convicted – remittal to District Court for sentence Legislation Cited: Criminal Code (Cth) Crimes Act 1914 (Cth), ss 16BA, 19, 20 Cases Cited: Sabel v R; R v Sabel [2014] NSWCCA 101; (2014) 242 A Crim R 49 Category: Principal judgment Parties: Douglas Thomas Purves (Applicant) Regina (Respondent) Representation: Counsel: In person (Applicant) S Callan (Respondent) Solicitors: Not applicable (Applicant) Commonwealth Director of Public Prosecutions (Respondent) File Number(s): 2017/35364 Publication restriction: Non-publication of any information or material that may lead to the identification of the complainants (Crimes Act 1900 (NSW), s 578A; Children (Criminal Proceedings) Act 1987 (NSW), s 15A) Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 2 August 2018 Before: Williams DCJ File Number(s): 2017/35364 EXTEMPORE Judgment 1. SIMPSON AJA: On 30 January 2018 in the Local Court the applicant entered pleas of guilty to an indictment containing eight counts under various provisions of the Criminal Code (Cth). He was committed for sentence to the District Court. In addition to the eight counts on the indictment, pursuant to s 16BA of the Crimes Act 1914 (Cth) the applicant admitted his guilt of a further three offences. 2. The substance of all counts in one way or another was that the applicant engaged in child abuse or in procuring child abuse material. On 2 August 2018 a District Court judge formally recorded convictions on all eight counts and imposed an aggregate sentence of imprisonment for 7 years and 6 months, with a non-parole period of 4 years and 6 months. The applicant has filed an application for leave to appeal against the sentence, identifying a number of grounds of his proposed appeal. 3. In responding to the application, the Director of Public Prosecutions (Cth) ("the DPP") identified a procedural error in the sentencing proceedings. 4. Section 16BA(1) of the Crimes Act provides for a procedure by which additional offences may, following conviction, be taken into account on sentencing for the offences the subject of conviction. Section 16BA(1) confers on the court before which the person is convicted a power to take that course, and then sets out the procedure for doing so. Before embarking on the procedure the court is required to be satisfied of a number of things, including (i) that a list (in a prescribed form) of the additional offences has been filed, signed by the DPP or a person appropriately authorised, and by the convicted person, and (ii) that it is, in all the circumstances, appropriate to adopt the procedure. The procedure laid out by the section requires the court then to ask the convicted person whether he or she admits guilt of the additional offences, and wishes to have them taken into account by the court in passing sentence in relation to the offence or offences of which he or she has been convicted. By s 16BA(2), if the convicted person responds affirmatively to each question, the court may take the additional offences into account in sentencing for the offences the subject of conviction. By subs (8), where the procedure has been followed, no further proceedings may be taken or continued in respect of the additional offences (unless the offence or offences the subject of the convictions is or are quashed or set aside). 5. The procedure required by subs (1) was not brought to the attention of the sentencing judge and was overlooked. The judge did not make the statutory inquiries and the applicant did not, therefore, make the necessary admissions and did not state that he wished the additional offences to be taken into account. Nevertheless, the three offences were taken into account on sentencing. The procedural step is an important one and in my opinion to take into account the additional offences in the absence of that step having been taken was an error. 6. It is important to note that the satisfaction required by subs (1) is that of the court before which the person was convicted. Counsel who appeared for the DPP sought to persuade the Court, by reference to ss 19 and 20 of the Crimes Act, that it is not necessary that the procedure be undertaken by the court before which the person is convicted, but may, in accordance with appellate procedure, be undertaken by this Court. I am satisfied that that argument should not be accepted. Section 16BA(1) is explicit in its requirement that the procedure be undertaken by the court before which the person is convicted. That court was the District Court of New South Wales. I do not think that the procedural error can be remedied by this Court at this stage undertaking the procedure. 7. Accordingly, the applicant has been sentenced by a fundamentally erroneous process that cannot be remedied by this Court. I therefore propose the following orders: 1. Leave granted to appeal against sentence. 2. Appeal allowed. 3. Set aside the sentence imposed by the District Court on 2 August 2018. 4. Pursuant to s 12 of the Criminal Appeal Act 1912 (NSW) the proceedings be remitted to the District Court. 5. Matter be listed in the District Court at 9.30am on Friday, 20 September 2019. 1. BELL P: I agree with the reasons of Simpson AJA. I would add only two matters. 2. First, to the extent that Ms Callan referred to the decision in Sabel v R; R v Sabel [2014] NSWCCA 101; (2014) 242 A Crim R 49 as an example of a case in which a resentencing had occurred in the Court of Criminal Appeal where matters pursuant to s 16BA were taken into account notwithstanding that it was not the court before which the applicant had been convicted, as she correctly and properly conceded, the technical question which arose before us was not the subject of any argument or consideration in that case. 3. The second matter I would add is that, to the extent it is possible, and accepting it is a matter ultimately for the District Court, it would be desirable that any resentencing be undertaken by Williams SC DCJ, provided that that could occur expeditiously. 4. FULLERTON J: I also agree with the judgment of Simpson AJA and the orders her Honour proposes and the additional remarks of the President. ********** 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 September 2019