R v Perrin

1. [1]

   WARD P: I agree with Wright J.

2. [2]

   HARRISON J: I agree with Wright J.

3. [3]

   WRIGHT J: This a case stated from the District Court pursuant to s 5B(2) of the Criminal Appeal Act 1912 (NSW). The questions posed concern the operation of s 58 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

Background

1. [4]

   The background to this matter, which was set out in the judgment of Haesler SC DCJ in Perrin v R [2021] NSWDC 408 and in the case stated by his Honour, may be summarised adequately for present purposes as follows.

2. [5]

   Mr Perrin and the victim were in an intimate relationship between 2015 and 2018 which was marked by a significant number of assaults on the victim by Mr Perrin. An Apprehended Domestic Violence Order (ADVO) was served on Mr Perrin on 19 November 2015.

3. [6]

   On 22 August 2019, an aggregate sentence of imprisonment for 15 months to be served by way of an Intensive Correction Order (ICO) was imposed on Mr Perrin for multiple breaches of the ADVO.

4. [7]

   On 22 September 2019, Mr Perrin was arrested in relation to offences of assault and destroying property in a domestic context and was taken into custody. Bail was refused.

5. [8]

   On 14 January 2020, Mr Perrin was sentenced in the Local Court for the assault and destroying property offending to imprisonment for 12 months, commencing on 22 September 2019 and expiring on 21 September 2020, with a non-parole period of 6 months, expiring on 21 March 2020.

6. [9]

   On 28 January 2020, the State Parole Authority revoked the ICO and Mr Perrin was required to serve 14 months’ imprisonment in full time custody, commencing on 22 September 2019 and expiring on 21 November 2020.

7. [10]

   On 19 February 2020, Mr Perrin was formally arrested while in custody and charged with a number of offences arising out of domestic violence involving his former partner also in the period from May 2015 to December 2017.

8. [11]

   On 21 November 2020, Mr Perrin’s earlier sentence expired. After that date, he was not serving any sentence of imprisonment but he remained in custody because bail was not granted in relation to the offences with which he had been charged on 19 February 2020.

9. [12]

   On 19 May 2021, Mr Perrin pleaded guilty to 16 offences with another 6 offences listed on a Form 1 to be taken into account in respect of the offences with which he had been charged on 19 February 2020. The offences to which Mr Perrin pleaded guilty included common assault, assault occasioning actual bodily harm, stalking or intimidating and recklessly causing grievous bodily harm. These offences took place between May 2015 and December 2017. The victims were his former partner and, in one offence of common assault, a male friend of his former partner.

10. [13]

    On 24 June 2021, McGowan LCM sentenced Mr Perrin for those 16 offences to an aggregate sentence of imprisonment for 5 years, commencing on 19 August 2020 and expiring on 18 August 2025, with a non-parole period of 3 years and 2 months expiring on 18 October 2023.

11. [14]

    Mr Perrin’s overall time in custody, taking into account the 5 year sentence for the 16 offences to which he had pleaded guilty and the earlier sentences of imprisonment in full time custody, was 3 days less than 5 years and 11 months, from 22 September 2019 to 18 August 2025.

Appeal to the District Court

1. [15]

   On 30 June 2021, Mr Perrin appealed, under s 11 of the Crimes (Appeal and Review) Act 2001 (NSW), to the District Court against the severity of the 5 year sentence imposed by McGowan LCM.

2. [16]

   On 6 August 2021, the appeal was heard in the District Court and judgment was delivered on 17 August 2021: Perrin v R [2021] NSWDC 408. In that judgment, Haesler SC DCJ upheld the appeal in part and varied Mr Perrin’s sentence. His Honour summarised his ultimate conclusions in the following terms in the case stated:

3. [17]

   The accumulation and the length of the sentence were explained by his Honour, at [62] and [96] of his judgment as follows:

4. [18]

   Accordingly, the aggregate sentence imposed by Haesler SC DCJ was imprisonment for 4 years and 6 months commencing on 22 March 2020 and expiring on 21 September 2024, with a non-parole period of 2 years and 9 months expiring on 21 December 2022.

5. [19]

   As his Honour noted at [130] of his judgment, this yielded a total effective sentence of 5 years with a non-parole period of 3 years, when the aggregate sentence was considered together with the earlier sentences of imprisonment in full time custody which commenced on 22 September 2019.

The case stated

1. [20]

   At the request of the Director of Public Prosecutions (NSW), Haesler SC DCJ submitted the following questions of law to this Court for determination, pursuant to s 5B(1) and (2) of the Criminal Appeal Act:

2. [21]

   Section 5B(1) of the Criminal Appeal Act provides that a judge of the District Court may submit “any question of law arising on any appeal to the District Court in its criminal and special jurisdiction coming before the Judge” to this Court for determination. In determining those questions, the Court may “make such order or give any such direction to the District Court as it thinks fit”. Section 5(2) provides that such a question may be submitted at the request of a party to the appeal proceedings, as occurred in the present case.

3. [22]

   Thus, any question of law that is submitted under s 5B(1) and (2) must be one “arising” on any appeal to the District Court “in its criminal and special jurisdiction”. There was no dispute between the parties that Mr Perrin’s proceedings in the District Court were an appeal to the District Court in its criminal jurisdiction. By virtue of s 9(2) of the District Court Act 1973 (NSW), the District Court’s criminal jurisdiction consists of:

4. [23]

   Section 166(1), which is found in Pt 4 of the District Court Act, provides that the District Court “has the criminal jurisdiction conferred or imposed on it by or under this Act, the Criminal Procedure Act 1986 and any other Act”.

5. [24]

   In the present case where Mr Perrin appealed to the District Court under s 11(1) of the Crimes (Appeal and Review) Act, jurisdiction was conferred or imposed on the District Court in its criminal jurisdiction by that Act: see, for example, ss 11, 17, 20(2) and 30 of the Crimes (Appeal and Review) Act. Thus, the appeal was an appeal to the District Court “in its criminal … jurisdiction”.

6. [25]

   In addition, each of the questions submitted was a “question of law”. They concerned the powers exercisable by the Local Court (and the District Court on appeal) and they were framed in such a way that they could be “considered separately from the facts with which it may be connected in a given case”: Williams v The Queen (1986) 161 CLR 278 at 287 (Gibbs CJ); [1986] HCA 88; Huynh v R (2021) 105 NSWLR 384; [2021] NSWCCA 148 at [11] (Beech-Jones J (as his Honour then was), Bathurst CJ and N Adams J agreeing).

7. [26]

   There was, however, an issue whether the questions submitted to this Court arose on the appeal to the District Court. Mr Wilson of Senior Counsel who appeared with Mr Fraser on Mr Perrin’s behalf submitted that s 58 of the Crimes (Sentencing Procedure) Act played no part in determining the length of the aggregate sentence imposed by Haesler SC DCJ because s 58 only operated to constrain the extent to which his Honour could accumulate the aggregate sentence on the earlier sentences not its length. In these circumstances, it was submitted that the questions in the case stated which concerned whether s 58 constrained the length of the new sentence were not questions which arose on the appeal from the Local Court to the District Court in this case. From this it was said to follow that the questions were not “any question of law arising on any appeal to the District Court” within s 5B(1) of the Criminal Appeal Act and should not be answered. Against this contention, Mr Kell of Senior Counsel who appeared with Ms E Jones for the Crown submitted that s 58 may constrain the length of the new sentence depending on a number of factors such as whether backdating is possible or appropriate. On this basis, it was submitted that the questions in the case stated arise on appeal to the District Court and should be answered. Since this issue turns, at least in part, on the construction of s 58 of the Crimes (Sentencing Procedure) Act, it is appropriate to address this issue when considering the questions in the case stated which also raise the proper construction of that section. The issues

8. [27]

   In the circumstances of the present matter, the following issues are effectively raised in considering whether the questions in the case stated arose on the appeal to the District Court and in considering the answers that should be given to the two questions in the case stated:

   1. (1)

      On its proper construction, does s 58 of the Crimes (Sentencing Procedure) Act constrain the length of a sentence of imprisonment that may be imposed by the Local Court, or the District Court on appeal, as opposed to constraining only the extent of accumulation of the sentence to be imposed on another sentence or sentences?

   2. (2)

      On its proper construction, does s 58 have any application if an offender to sentenced in the Local Court, or the District Court on appeal, is not serving any sentence of imprisonment at the time of sentencing?

   3. (3)

      Does the resolution of issue (2) differ, if the commencement date of the sentence to be imposed is set at a date prior to the expiry date of a sentence which has expired at the time of sentencing?

Submissions

1. [28]

   The first submission made by Mr Wilson SC was that the two questions as formulated did not arise on the appeal to the District Court in this matter. As noted above, it was contended that s 58 of the Crimes (Sentencing Procedure) Act in fact played no part in determining the length of the aggregate sentence imposed by Haesler SC DCJ because s 58 was only considered in so far as it constrained the extent to which his Honour could accumulate the aggregate sentence on the earlier expired sentences. In this latter regard, it was observed that Haesler SC DCJ determined that he was constrained by s 58 to backdate the aggregate sentence of 4 years and 6 months such that it would expire no later than 21 September 2024. It was then in effect submitted that, since s 58 had not constrained the length of the sentence imposed in the District Court, the questions that asked whether s 58 constrained the length of a sentence in the particular circumstances of this case, did not arise “on any appeal to the District Court” for the purposes of s 5B of the Criminal Appeal Act. It was submitted that, in those circumstances, it was inappropriate to answer the questions.

2. [29]

   Mr Wilson SC also submitted more generally that s 58 does not constrain the length of a sentence that may be imposed by the Local Court, or the District Court on appeal, in any matter because the section in terms constrains only the extent to which the Local Court may accumulate one sentence upon another sentence or sentences and not the length of the sentence to be imposed. On this basis, it was submitted that, if the questions identified in the case stated were found to arise on the District Court appeal, the two questions should each be answered: No.

3. [30]

   Further, Mr Wilson SC addressed the two questions formulated by Haesler SC DCJ in the case stated and submitted that, if it was permissible or appropriate to reframe the questions, the issue intended to be raised was captured by a question rephrased in the following terms:

4. [31]

   It was then submitted that, had this question been posed, the answer would be: No.

5. [32]

   This was said to be because s 58 does not provide a constraint on the accumulation of a particular sentence upon another sentence unless that other sentence has not expired at the time the first sentence is being imposed. This was submitted to follow from the reference to “an existing sentence” in s 58(1) and the definition of that term in s 58(4) as meaning “an unexpired sentence” with an extended meaning in certain circumstances. While it was submitted that there were two possible constructions of the extended meaning, this was said not to be required to be determined in the present case since the starting point for the five year constraint was the commencement date of any “existing sentence”.

6. [33]

   It was submitted that the relevant time for determining whether a sentence was “an existing sentence” was the time when the new sentence was being imposed, in light of the consistent use of the present tense in s 58. It was noted that Ierace J had rejected the contention that the relevant time was the proposed commencement date of the new sentence in Stoneham v Director of Public Prosecutions (NSW) [2021] NSWSC 735. The reasoning of his Honour in that case was in effect adopted in the submissions on Mr Perrin’s behalf. It was further submitted that the statutory and historical context of s 58 did not support a different interpretation. In this regard, Mr Wilson SC drew attention to the terms of s 444(4) of the Crimes Act 1900 (NSW), before that provision was repealed in 1999 and replaced by s 58 of the Crimes (Sentencing Procedure) Act, and the terms of s 58 as originally enacted and as subsequently amended.

7. [34]

   Furthermore, it was noted that the present form of s 58 pre-dated the introduction of aggregate sentences in 2010 effected by s 53A of the Crimes (Sentencing Procedure) Act. In respect of the relationship between s 58 and aggregate sentences, Mr Wilson SC submitted that s 58 may apply in circumstances where aggregate sentences are to be imposed but s 53B, which was enacted in 2016, makes clear that the Local Court may not impose an aggregate sentence of imprisonment that exceeds 5 years and it is s 53B that constrains length, not s 58 which constrains the extent of accumulation of sentences. It was submitted that the aggregate sentence imposed by the Local Court in this case was the “new sentence” for the purposes of s 58. It was conceded that none of the earlier sentences was an “existing sentence” as at 21 June 2021 when the Magistrate imposed the “new sentence”.

8. [35]

   The Crown submitted that, on its proper construction, s 58 requires the Local Court to enquire whether there is, at the time of sentencing, an existing or unexpired sentence which enlivens the limitation on sentencing and, if there is no such sentence, s 58 does not constrain the Local Court’s sentencing exercise. The Crown submitted that this approach was consistent with the construction of s 58 adopted by Ierace J in Stoneham v Director of Public Prosecutions (NSW).

9. [36]

   The Crown contended that the issue of statutory construction in this case was whether an “existing sentence” for the purposes of s 58 of the Crimes (Sentencing and Procedure) Act means:

   1. (1)

      a sentence which is “existing” or “unexpired” at the time the “new sentence” commences; or

   2. (2)

      a sentence which is “existing” or “unexpired” at the time of the sentencing exercise by the Local Court (or on appeal by the District Court).

10. [37]

    The Crown submitted that the second construction was to be preferred because it is more consistent with the text of the statute but noted that Haesler SC DCJ adopted the first construction when determining that Mr Perrin’s sentence had to expire within 5 years of 22 September 2019. The submission was illustrated by taking the case of a new sentence to be imposed consecutively upon an earlier sentence. In such a case, if the question of whether there was an existing or unexpired sentence was determined at the date of commencement of the new sentence, there would never be an existing or unexpired sentence at that time by virtue of s 47(6) of the Crimes (Sentencing Procedure) Act which states that a sentence of imprisonment “starts at the beginning of the day on which it commences” and “ends at the end of the day on which it expires”. This would have the result that the 5 year limitation in s 58 could never apply in relation to a new sentence to be imposed consecutively upon an earlier sentence, contrary to the text of the section, because the previous sentence would have expired at the end of the day before the day on which the new sentence commences.

11. [38]

    Accordingly, the Crown submitted that both questions should be answered: No.

12. [39]

    The Crown also sought an order pursuant to s 5B(1), read with s 5B(3) of the Criminal Appeal Act, that the sentence of the District Court be quashed and the matter remitted for rehearing according to law.

Consideration

1. [40]

   Although the parties took different approaches as to whether the questions as formulated in the case stated should be answered, both parties in substance agreed that, on the proper construction of s 58 of the Crimes (Sentencing Procedure) Act, the section only operated to limit the power of the Local Court (and the District Court on appeal) to impose a new sentence if there was an earlier sentence that was “existing”, in the sense of unexpired, at the time when the Court came to impose the new sentence. In my view, the parties are correct.

2. [41]

   Section 58 relevantly provides:

3. [42]

   Thus, subs (1) prohibits the Local Court imposing a “new sentence of imprisonment” in circumstances where two conditions are fulfilled, namely:

   1. (1)

      the new sentence is to be served either entirely consecutively or partly concurrently and partly consecutively with an “existing sentence of imprisonment”; and

   2. (2)

      the “new sentence” would end more than 5 years after the date on which the “existing sentence” (or, if more than one, the first of them) began.

4. [43]

   The first condition can only be met in circumstances where there is an “existing sentence”. In the absence of an existing sentence, the first condition will not be fulfilled and there will be no limit by virtue of s 58 on the ability of the Local Court to impose a sentence of imprisonment, although other limitations, such as that found under s 53B of the Crimes (Sentencing Procedure) Act, will continue to apply.

5. [44]

   The definition of “existing sentence” in s 58(4) has two aspects. The first is that “existing sentence” means an “unexpired sentence”. The second aspect is, in effect, that the commencement date of the “existing sentence” may be earlier than the date on which the “unexpired sentence” itself commenced, because the “existing sentence” includes not only the “unexpired sentence” but also any expired sentence or sentences with which the “unexpired sentence” is being served wholly or partly consecutively. This second aspect is significant as it affects the starting date for the calculation of the 5 year period which cannot be exceeded by the Local Court.

6. [45]

   In the definition in s 58(4), there is, however, no specification of the date at which the “existing sentence” must be existing or the date at which the issue of whether the earlier sentence is expired or unexpired is to be determined. In this regard, there are two obvious possible dates: the date on which the new sentence is to be imposed; or, the date on which the new sentence is to commence. In this Court, both parties submitted, in effect, that the relevant date was the date of imposition of the new sentence.

7. [46]

   On an ordinary English reading of s 58(1), the prohibition or limitation established by the words “may not” operates at the time when the Local Court comes to impose the new sentence. From this, it naturally follows that it is at that time that the Local Court must determine:

   1. (1)

      whether there is an “existing sentence”, being an “unexpired sentence” that also includes any expired sentence or unbroken sequence of expired sentences with which the unexpired sentence “is being served” wholly or partly consecutively; and

   2. (2)

      whether the date on which the new sentence would end is more than 5 years after the date on which that “existing sentence” began.

8. [47]

   The use of the expression “existing sentence” itself suggests that the sentence must be existing at the time when the Local Court comes to impose the new sentence. The definition of that expression in s 58(4) establishes that a sentence will be existing if the sentence is “unexpired”. The use of the present continuous tense in the expression “is being served” in the definition also indicates that the expired sentence or sentences are only to be taken into account for the purpose of s 58 if the term of the “unexpired sentence” forms part of a continuous period of imprisonment (as a result of the combined effect of the expired sentence or sentences and the unexpired sentence) which has not yet come to an end, at the time the Local Court comes to impose the new sentence.

9. [48]

   Thus, a construction of s 58 which requires the questions of whether a sentence is “existing” or “unexpired” to be determined as at the date the new sentence is imposed reflects the text of the provision. It is also consistent with ss 47 and 55 of the Crimes (Sentencing Procedure) Act which relate to the commencement dates and accumulation of sentences generally.

10. [49]

    Although s 47(1) provides that a sentence generally commences on the date it is imposed, under s 47(2)(a) the commencement date of a sentence can be backdated to a date before the date of imposition of the sentence. As s 47(3) indicates, this may be done in order to take into account any time for which the offender has been held in custody in relation to the offence to which the sentence relates, as required by s 24(a). Backdating under s 47(2)(a) may also be an appropriate way in which to give effect to the totality principle, which applies when an offender, at the time of sentencing: is being sentenced for a number of offences; is serving a sentence for other offending; or has been continuously in custody partly as a result of prior, expired sentences: Postiglione v The Queen (1997) 189 CLR 295 at 307-308 (McHugh J); [1997] HCA 26 and Regina v The Queen [2004] NTCCA 9; 149 A Crim R 583 at [29] (Martin CJ, Mildren and Bailey JJ agreeing). Thus, the practical application of s 47(2)(a) involves consideration of the offender’s position, including the existence and effect of other sentences, at the time of sentencing, rather than at the date of commencement of the sentence to be imposed.

11. [50]

    Section 55 deals with the accumulation and concurrence of sentences and relevantly provides:

12. [51]

    It can be observed that s 55(1)(a) expressly directs attention to whether an offender is subject to another unexpired sentence “when being sentenced” and that in s 55(1)(b) it is implicit that consideration of whether there is another sentence imposed in the same proceedings is to be at the time the first sentence is imposed.

13. [52]

    Both of ss 47 and 55 proceed on the basis that when considering the commencement date of a new sentence and whether it is to be served concurrently or consecutively with another sentence, the relevant factors are to be considered at the date the new sentence is to be imposed, not the date of commencement of that new sentence.

14. [53]

    Given the context in which it appears, a construction of s 58 which is consistent with the approach manifested by other, general provisions of the Crimes (Sentencing Procedure) Act dealing with related subject matters is to be preferred.

15. [54]

    Moreover, if s 58 is construed as referring to an “existing” or “unexpired” sentence on the date when the new sentence is imposed, the question of whether or not the prohibition or limitation on the Local Court’s power is operative will depend only on the objective fact of whether at the date on which the new sentence is to be imposed there is an “existing sentence”, as defined in s 58(4). That question will not depend on the Local Court’s choice as to the commencement date of the new sentence.

16. [55]

    The construction of s 58 set out above is supported by authority. In Stoneham v Director of Public Prosecutions (NSW) [2021] NSWSC 735 (Stoneham), Ierace J declined to accept that, on the proper construction of s 58, the expression “unexpired sentence” in the definition of “existing sentence” referred to a sentence that was “unexpired at the time the new sentence commences”: see [20], [33]. Ierace J then continued, at [33]:

17. [56]

    In my view, this construction is also consistent with the Explanatory Memorandum to the Crimes Legislation Further Amendment Bill 2003 (NSW) (EM) by which s 58 was amended to its presently relevant form. The EM stated that this Bill:

18. [57]

    Finally, the legislative history of s 58 and its predecessor provisions also provides some limited support for this construction. Part of that history was usefully summarised by Johnson J (Allsop P and Price J agreeing) in Huynh v R [2008] NSWCCA 216; 188 A Crim R 287 at [71]:

19. [58]

    Johnson J’s comment that the former s 58 prohibited the imposition of a new sentence if, when taken together with another sentence or sentences that the person “was serving”, the total sentence exceeded three years, indicates that, even in its previous form, the section applied when the offender was serving another sentence or sentences at the date of imposition of the new sentence and not at the date of commencement of the new sentence.

20. [59]

    Mr Wilson SC referred to authorities concerning the predecessor of s 58, s 444(4) of the Crimes Act. The wording of that subsection was materially different from the present wording of s 58 and as a result those authorities provide no significant assistance.

21. [60]

    The alternative construction is to the effect that s 58 operates so as to limit the term of a new sentence to be imposed if there is a prior unexpired sentence or sentences at the date of commencement of the new sentence. This construction does not appear to reflect the natural meaning of the words used in s 58, nor does it appear to be entirely consistent with related provisions such as ss 47 and 55 of the Crimes (Sentencing Procedure) Act, which have been addressed above.

22. [61]

    It was argued by the plaintiff in Stoneham that the purpose of s 58 is to limit the power of the Local Court to impose consecutive or cumulative sentences totalling more than 5 years and that this could only be effectively achieved if the expressions “existing sentence” and “unexpired sentence” referred to sentences existing or unexpired at the date of commencement of the new sentence: Stoneham at [20]. Another argument put in support of this construction was that, given the use of the words “when being sentenced” in s 55(1), the absence of those words or similar words in s 58 indicated a legislative intent that the question of whether the other sentences were “existing” or “unexpired” was not to be determined as at the date when the offender was being sentenced but rather at the date of commencement of the new sentence. Ierace J in substance rejected these arguments in Stoneham at [33] (and see also [19]-[25]) and I respectfully adopt his Honour’s reasons for doing so.

23. [62]

    In the appeal to the District Court from the Local Court in the present matter, Haesler SC DCJ apparently also rejected this alternative construction, in his judgment at [89]:

24. [63]

    Nonetheless, this apparent rejection is difficult to reconcile with how his Honour applied s 58 in the case and with his Honour’s comments elsewhere in his judgment, including by way of example at [81] and [85] where it was stated:

25. [64]

    One further reason why the expressions “existing sentence” and “unexpired sentence” in s 58 should not be construed as referring to sentences existing or unexpired at the date of commencement of the new sentence is that such a construction would make the operation of s 58 dependent on the date chosen by the Local Court as the date of commencement of the new sentence, which is unsatisfactory in itself but also has the potential to produce capricious differences in outcomes. For example, in the present case, if s 58 were construed as providing that the date at which the prior sentence must be “existing” or “unexpired” for the section to be operative is the date of commencement of the new sentence not the date when the new sentence is imposed:

    1. (1)

       if the Magistrate chose 22 November 2020 as the date the new sentence commenced (assuming that the time spent in custody in relation to the relevant offending had been appropriately taken into account), there would be no “existing sentence” on that date and the Magistrate could have imposed a sentence of 5 years commencing on that date and expiring on 21 November 2025 with the result that Mr Perrin would have spent from 22 September 2019 to 21 November 2025 in custody, a total period of 6 years and 2 months, without s 58 being infringed;

    2. (2)

       if the Magistrate chose 21 November 2020 as the date the new sentence commenced (assuming that the time spent in custody in relation to the relevant offending had been appropriately taken into account), there would be an “existing sentence” on that date and the Magistrate could not have imposed a sentence that expired after 21 September 2024 (5 years after 22 September 2019) or, in other words, the Magistrate could only have imposed a sentence of 3 years and 10 months without s 58 being infringed.

26. [65]

    It is most unlikely that Parliament intended the limitation in s 58 of the Crimes (Sentencing Procedure) Act to have such a markedly different effect depending solely on the Local Court’s choice of commencement date for the new sentence differing by just one day.

27. [66]

    For all of these reasons, in my view, on the proper construction of s 58 of the Crimes (Sentencing Procedure) Act, the question of whether a sentencing is “existing” or “unexpired” for the purposes of s 58(1) or (4) is to be determined as at the date on which the offender is being sentenced.

28. [67]

    It is now necessary to address the three issues raised in this matter.

29. [68]

    The first issue related to the form of the two questions posed in the case stated. It was contended on Mr Perrin’s behalf that both questions proceeded on the assumption that the effect of s 58 of the Crimes (Sentencing Procedure) Act, when it was engaged, was to “constrain the length of a sentence of imprisonment that may be imposed by the Local Court, or the District Court on appeal”. As noted above, Mr Perrin’s counsel then submitted in effect that such an assumption was incorrect, both in this particular case, because Haesler SC DCJ did not treat s 58 as constraining the length of the sentence in the appeal before him, and, generally on the basis that on its proper construction s 58 only constrained the extent of accumulation of the new sentence on the existing sentence or sentences not the length of the new sentence.

30. [69]

    In these circumstances, it was submitted that the questions in the case stated concerning constraint on the length of the new sentence did not arise “on any appeal to the District Court” within s 5B(1) of the Criminal Appeal Act (NSW) and further that it was, in any event, inappropriate to answer them because they proceeded on a false understanding of the effect of s 58.

31. [70]

    It appears to me that both of the contentions relied on by Mr Perrin’s counsel in relation to this first issue are not well founded. Haesler SC DCJ explained his understanding of the “orthodox position” in relation to s 58 in the following way at [74] of his judgment:

32. [71]

    This correctly reflects the fact that, although the prohibition or limitation in s 58(1) relates directly to imposing a new sentence to be served consecutively or partly concurrently and partly consecutively with an existing sentence, the prohibition or limitation only applies if the expiration date of the new sentence is more than 5 years after the commencement date of the existing sentence. In any particular case, given the fixed parameters of the date of commencement of the existing sentence and the 5 year period which must not be exceeded, the practical effect of s 58, when it is operative, is necessarily to constrain to a greater or lesser extent the length of the new sentence.

33. [72]

    Furthermore and notwithstanding that Haesler SC DCJ expressly stated that he intended, in determining the appeal before him, “to follow the orthodox position” at [88], his Honour apparently took a different approach when determining the new sentence he should impose. He stated at [96]:

34. [73]

    In my view, this approach clearly involved an acceptance by Haesler SC DCJ that s 58 in this case was engaged and constrained, inter alia, the length of the sentence which could be imposed. This is confirmed by a consideration of Haesler SC DCJ’s summary of his reasoning in the case stated where it is said:

35. [74]

    Mr Wilson SC’s submissions in relation to the legislative history of s 58, including its predecessor provision s 444(4) of the Crimes Act also demonstrate, inter alia, that over time changes have been made to the maximum combined length of the sentences able to be imposed and the number of sentences that can be accumulated. Each iteration, whilst containing material differences, has, however, effectively constrained the length of new sentences able to be imposed.

36. [75]

    For example, s 444(4) of the Crimes Act relevantly provided at one time that:

37. [76]

    Similarly, when first enacted, s 58 of the Crimes (Sentencing Procedure) Act relevantly provided that:

38. [77]

    In my view, the legislative history does not undermine the conclusion that s 58, in its current form and when it is engaged, has the effect of constraining the length of the new sentence that may be imposed. On these bases, I reject the contentions that:

    1. (1)

       s 58 of the Crimes (Sentencing Procedure) Act does not relevantly constrain the length of a sentence of imprisonment that may be imposed by the Local Court, or the District Court on appeal, as opposed to constraining the extent of accumulation of the sentence to be imposed on another sentence or sentences; and

    2. (2)

       the two questions of law posed in the case stated did not arise on the appeal to the District Court in this matter.

39. [78]

    Consequently, I also reject the submission that the two questions posed in the case stated should be answered: inappropriate to answer. In these circumstances, it is not necessary to consider whether the questions in the case stated can or should be reformulated.

40. [79]

    The second issue is whether, on its proper construction, s 58 applies to constrain the length of the new sentence if the offender to be sentenced in the Local Court, or the District Court on appeal, is not serving any sentence of imprisonment at the time of sentencing.

41. [80]

    As noted above, s 58(1) only operates in situations where the new sentence is to be served either consecutively or partly concurrently and partly consecutively with an “existing sentence” of imprisonment. If there is no “existing sentence”, then s 58 is not engaged. For the reasons explained above, on the proper construction of s 58, whether there is an “existing sentence”, as defined in s 58(4), is to be determined as at the date of imposition of the new sentence.

42. [81]

    It follows that, if there is no “unexpired sentence”, and thus no “existing sentence” being served by the offender as at the date of imposition of the new sentence, s 58 is not engaged and, therefore, the section does not constrain the length of the new sentence. Nevertheless, as previously noted, other provisions may constrain the length of the sentence. Accordingly, Question a. should be answered as follows:

43. [82]

    The third issue is whether the resolution of the second issue, and thus the answer to Question a., would differ if the new sentence to be imposed is made consecutive or partly concurrent and partly consecutive on a sentence that has expired prior to the time of sentencing.

44. [83]

    Once again, if the sentence on which the new sentence is made partly or wholly cumulative has expired at the date of imposition of the new sentence, on the proper construction of s 58, it is not an “unexpired sentence”, and thus not an “existing sentence”, for the purposes of the section. In the absence of an “existing sentence”, s 58 is not engaged and thus does not constrain the length of the new sentence. It follows that it would make no difference whether the new sentence was made wholly consecutive or party concurrent or partly consecutive on a sentence that had expired prior to the time of sentencing. Consequently, Question b. should be answered as follows:

Orders

1. [84]

   Having determined the answers to Questions a. and b. under s 5B(2) of the Criminal Appeal Act, this Court must consider whether in connection with that determination it should quash the new sentence imposed by Haesler SC DCJ on the appeal to the District Court, as permitted under s 5B(3). Both parties submitted that his Honour erroneously considered that his sentencing discretion was constrained by s 58.

2. [85]

   At [85] and [86] of his judgment, Haesler SC DCJ concluded as follows:

3. [86]

   Consistently with this, Haesler SC DCJ imposed the new sentence in the District Court on the basis that s 58 of the Crimes (Sentencing Procedure) Act was engaged in this case. So much is clear from:

   1. (1)

      Haesler SC DCJ’s judgment at [96]:

   2. (2)

      par 22 of the case stated:

4. [87]

   In my view, on the proper construction of s 58, there was no “existing sentence”, as referred to in s 58(1) and as defined in s 58(4), at the date when the Local Court imposed the first new sentence or when the District Court imposed the shorter new sentence on appeal. Consequently, s 58 was not engaged in this case and, therefore, the sentence to be imposed on Mr Perrin did not have to expire within 5 years from 22 September 2019, contrary to Haesler SC DCJ’s conclusion. On this basis it should be concluded that the sentence imposed in the District Court was affected by error of law.

5. [88]

   In the case stated it was also noted that:

6. [89]

   In all these circumstances, it appears to me to be appropriate to quash the sentence imposed in the District Court on appeal and to remit the matter to the District Court for the appeal to be determined according to law.

7. [90]

   For these reasons, I propose that the orders of the Court should be:

   1. (1)

      Questions a. and b. in the case stated are to be answered as follows:

   2. (2)

      The sentence imposed by Haesler SC DCJ on 17 August 2021 is quashed.

   3. (3)

      The matter is remitted to the District Court for the appeal relating to the sentence imposed on 24 June 2021 by McGowan LCM to be determined according to law.

   4. (4)

      The matter is listed in the District Court arraignment list in Wollongong on Tuesday 30 August 2022 at 9:30am for mention.