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Leave to appeal a sentence was sought on the basis the applicant had been sentenced for an offence to which he had not pleaded guilty. While the arraignment referred to the correct offence against the Crimes (Aviation) Act 1991 (Cth), the allocutus and proceeding sentence referred to the incorrect offence. The primary issue for the Court of Appeal was whether the sentence miscarried as a result of the error. The Court of Appeal granted leave to appeal, finding the sentence had miscarried as the applicant had been sentenced for an offence for which he had not pleaded guilty. As a corollary issue, the Court of Appeal determined that the applicant could be resentenced in respect of that offence without a corrected allocutus being administered.
Sofronoff P and Davis and Williams JJ
30 November 2021
The applicant sought leave to appeal sentences imposed by the District Court in respect of five counts on indictment and two summary charges to which he pleaded guilty. The offences included an offence against the Crimes (Aviation) Act 1991 (Cth) (count 2), wherein the applicant had made threats at an airport during a domestic violence incident. –, –. The applicant was sentenced to a head sentence of six years’ imprisonment with parole eligibility set at three years. , .
The applicant sought to appeal the sentences, initially on two grounds: (1) that the sentencing judge had “erred in law by wrongly limiting the use to be made of evidence of the applicant’s mental health”; and (2) the sentence was manifestly excessive. . During submissions, a third ground of appeal was added: “In sentencing the applicant for count 2, the learned sentencing judge mistook the offence to which he had pleaded guilty.” .
Decision of the Court of Appeal
The Court of Appeal allowed the appeal in respect of ground 3 and resentenced the applicant to five years’ imprisonment on count 2, with parole eligibility after the two and a half years already served. , .
Their Honours found “the sentencing process had totally miscarried” as the District Court judge sentenced on the applicant in respect to a different offence for count 2 than the offence to which the applicant had pleaded guilty. , –. The offence forming count 2 was a breach of s 28(1)(a) Crimes (Aviation) Act 1991 (Cth) (the Act), namely that a person must not threaten to “destroy, damage or endanger the safety of a Commonwealth aerodrome”. –. However, the indictment incorrectly referred to s 28(2)(b) of the Act, which constitutes a different type of offence – namely: a person must not make a false statement “or threat … to destroy, damage or endanger the safety of a Commonwealth aerodrome”. , . While the correct charge (s 28(1)(a)) was read to the applicant during arraignment, the allocutus incorrectly referred to a s 28(2)(b) offence. –, . The Verdict and Judgment Record and Prosecutor’s outline of submissions also noted the incorrect section (s 28(2)(b)). –. That error was then carried into the sentencing by the District Court judge. .
Ultimately the Court found that the applicant had been correctly charged and arraigned in respect of the count 2 offence, but the allocutus had been administered in respect of the incorrect offence with which the applicant had not been charged and to which he had not pleaded guilty. . As their Honours considered the Court’s acceptance of a plea constitutes a conviction, rather than a plea or verdict itself, the erroneous allocutus meant there had “been no acceptance of the applicant’s plea to count 2”. –, . The applicant had therefore been sentenced for an offence for which he had not pleaded guilty. . “It follows that the proceedings after the applicant’s guilty plea have miscarried and the application for leave to appeal against sentence must be allowed.” .
The Court of Appeal proceeded to resentence the applicant on the basis his plea of guilty to count 2 (s 28(1)(a)) was maintained and neither counsel pressed for the allocutus to be administered (the applicant not being present during the appeal). –.
A Hughes of Counsel