Shi v R

[2017] NSWCCA 126

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Shi v R [2017] NSWCCA 126
Hearing dates:	On the papers
Date of orders:	08 June 2017
Decision date:	08 June 2017
Before:	Hoeben CJ at CL; Harrison J and Bellew J at [1]
Decision:	1.   Grant leave to appeal. 2.   Allow the appeal. 3.   Remit the proceedings to the District Court of New South Wales for sentence according to law.
Catchwords:	CRIMINAL LAW – appeal – application for leave to appeal against sentence – where sentencing proceedings miscarried due to a procedural irregularity – where appropriate that the applicant be sentenced in that Court according to law – matter remitted to the District Court for sentence
Legislation Cited:	Crimes Act 1914 (Cth) Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 Criminal Code 1995 Customs Act 1901
Cases Cited:	Betts v The Queen (2016) 90 ALJR 758; [2016] HCA 25 Burbridge v R [2016] NSWCCA 128 Payda v R [2013] NSWCCA 109
Category:	Principal judgment
Parties:	Xiongjie Shi (Applicant) Regina (Respondent)
Representation:	Counsel: M C Ramage QC (Applicant) W Abraham QC with A Avery-Williams (Respondent)   Solicitors: Jeffreys Lawyers (Applicant) Commonwealth Director of Public Prosecutions (Respondent)
File Number(s):	2013/237819
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 19 June 2015 Before: King SC DCJ File Number(s): 2013/237819

Judgment

1. THE COURT: Xiongjie Shi was convicted following a trial before King SC DCJ and a jury of offences contrary to s 23BAA(4) of the Customs Act 1901 and s 11.2A(1) of the Criminal Code 1995. The trial spanned seven days between 24 March and 2 April 2015. In the course of his counsel’s closing remarks to the jury, on 1 April 2015, the applicant absconded. A bench warrant was issued for his arrest. The trial continued and he was convicted in his absence.

2. On 8 May 2015, the proceedings were listed before his Honour to discuss the progress of the matter. The Crown provided his Honour at that time with material upon which it proposed to rely on sentence. The sentencing proceedings subsequently proceeded on 19 June 2015 in the absence of the applicant. His Honour sentenced the applicant to imprisonment for 4 years with a non-parole period of 2 years and 6 months. However, his Honour did not specify a commencement date for the sentence. Rather, his Honour said that “[w]hen the offender is located, if ever, the sentence will be as indicated…and its commencement should be backdated by six days from the time of his apprehension or surrender”.

3. On 25 September 2015, his Honour had the matter relisted to correct an error with respect to the length of the non-parole period in his sentencing remarks. The applicant was once again not present.

4. The applicant was ultimately apprehended and arrested on 1 December 2015. He was brought back before the Court on 11 December 2015. The applicant’s counsel suggested at that time that “on one view until your Honour explains the judgment to the accused the sentence may well be a matter that’s still open. If your Honour is of that view then it’s my submission that we seek an adjournment on behalf of [the applicant]”. His Honour refused the adjournment request, indicating that the applicant had been sentenced in his absence and that his sentencing function was complete. The commencement and concluding dates of the sentence were then set in accordance with the approach indicated in his Honour’s sentencing remarks.

5. The applicant has sought leave to appeal to this Court on several grounds. However, it is now accepted by the Crown that his Honour fell into error in at least one significant respect.

6. Section 16E of the Crimes Act 1914 (Cth) applies the law of New South Wales to the commencement of sentences and non-parole periods in this State when sentencing for a Commonwealth offence: Payda v R [2013] NSWCCA 109 at [50]-[60]; Burbridge v R [2016] NSWCCA 128 at [11]. Accordingly, s 47 of the Crimes (Sentencing Procedure) Act 1999 applies to the commencement of any sentence imposed for a Commonwealth offence. Section 47(2) of that Act provides as follows:

“47(2)    A court may direct that a sentence of imprisonment:

(a)    is taken to have commenced on a day occurring before the day on which the sentence is imposed, or

(b)    commences on a day occurring after the day on which the sentence is imposed, but only if the sentence is to be served consecutively (or partly concurrently and partly consecutively) with some other sentence of imprisonment.” [Emphasis added]

7. His Honour set the commencement date for the sentence as an unspecified future date. However, there is no power to defer the date of the commencement of a sentence, except in compliance with s 47(2)(b) of that Act. There was no factual basis for the application of s 47(2)(b) in the present case. The applicant was not serving a sentence for any other offence. The sentence imposed by his Honour could therefore only have commenced on 19 June 2015 or on some day prior to that day.

8. Even if this analysis were incorrect, his Honour’s refusal to grant the applicant an adjournment upon the basis that the sentencing process had been completed, and that his Honour had no ability to adjourn or re-open the sentencing proceedings for that reason, was erroneous and his discretion miscarried.

9. There are two possible courses that might flow from the error. First, if the Court accepted that there has been an error in the sentencing process, it could re-sentence the applicant if it were of the opinion that some other sentence, whether more or less severe, was warranted in law and should have been passed: s 6(3) Criminal Appeal Act 1912. Alternatively, the whole of the proceedings could be remitted to the District Court: s 12(2) of the Criminal Appeal Act.

10. As the High Court said in Betts v The Queen (2016) 90 ALJR 758; [2016] HCA 25 at [19], there is a tension between the terms of s 6(3) and the power to remit the matter to the court below. However, where, as in the present case, the sentencing hearing has been tainted by procedural irregularity, the preferable course is to remit the matter to the District Court. That is especially so here as well having regard to the fact that this Court does not have, and by the same token the applicant has not had, the benefit of all of the evidentiary material and submissions from counsel upon which the applicant might in due course wish to rely.

11. It follows in these circumstances that the proceedings should be remitted to the District Court of New South Wales for sentence according to law.

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