I rise to speak on the Sentencing Amendment (Correction of Sentencing Error) Bill 2015. This bill is aimed at simplifying and speeding up our criminal justice system in cases of sentencing errors made by judges and magistrates. Fortunately errors are not common, but when they do occur they need to be rectified quickly.
Sentencing is complex and difficult and has significant consequences for the community and those subject to sentencing. Errors in sentencing can be divided into three broad categories: minor clerical errors, such as miscounting the number of days an offender has already served pursuant to the sentence; errors in how sentencing discretion is exercised, such as imposing a sentence that is manifestly excessive or inadequate; and jurisdictional errors, such as imposing a sentence where there was no power to do so, for example, imposing a suspended sentence after the abolition of such sentences. This bill deals with the first and third of these categories. Arguments about sentencing being manifestly excessive or inadequate will quite rightly remain the province of the appeal court.
The bill extends a judge’s power to correct sentencing errors in two parts. Firstly, in clause 6 it removes the 14-day time limit on the exercise of section 104A of the Sentencing Act 1991, which enables corrections of minor slips and omissions — clerical errors, if you will. This amendment is required because errors are sometimes not discovered until outside the 14-day limit. This discovery usually happens in one of two ways: counsel reviews a sentence to determine if there are reasonable prospects of appeal or the error is not discovered until the matter is considered on appeal. In the first instance the sentencing court can correct the sentence. In the second instance the removal of the section 104A time limit allows the Court of Appeal to fix the error even if it refuses leave to appeal.
The removal of the time limit from section 104A has the added benefit of recognising the ‘slip-up rule’, which is the inherent power of the courts to correct clerical errors that are not subject to an express time limit, and it brings the court’s powers into line with section 412 of the Criminal Procedures Act 2009. To sum up, clause 6 removes an impediment to the efficient operation of the courts in the form of an arbitrary time limit and saves on costly appeals to correct what are essentially clerical errors.
This brings me to the second amendment, which is made by clause 7. Clause 7 introduces a new power to enable the sentencing court to undertake the correction of penalties that are considered to be contrary to law or to reopen a proceeding where a penalty required to be imposed by law has not been imposed.
In granting any new power it is important that we understand why this power is required and what the limits are. On the rare occasion that judges make mistakes in imposing penalties, they have no power to correct the sentence. The only option of correction is via appeal or bringing judicial review proceedings. This is because of the legal doctrine of functus officio, which in essence means that after imposing a sentence, the judge’s role is a matter that is finished and finalised.
When I spoke on this bill just prior to question time I was dealing with the legal doctrine of functus officio, which in essence means after imposing a sentence the judge’s role in the matter is finished. Judicial reviews and appeals are expensive, time consuming and costly. The Office of Public Prosecutions and Victoria Legal Aid are just two bodies which can end up bearing the expense of these proceedings.
This was demonstrated in the Court of Appeal case DPP v. Edwards  VSCA 293, where a County Court judge was found to have imposed a suspended sentence after these were abolished for the offence. The judge in this case tried to re-sentence the offender under section 412 of the Criminal Procedure Act 2009, of which I spoke earlier. The Court of Appeal found that regardless of the invalidity of the original sentence, the judge’s role in the matter was finished at common law, and there was no statute to give him power to recall and correct the invalid sentence.
Now that we have seen there is a need for this amendment, the next question is: what are the limits of this power? This new Victorian power is based closely on section 43 of the Crimes (Sentencing Procedure) Act 1999 of New South Wales, which also uses the phrase ‘contrary to law’. This section was recently tested in the High Court in the case of Achurch v. The Queen  306 ALR 566. The court interpreted the provision narrowly on the basis that it was not intended to displace the role of appeal as the primary means of correcting mistakes in sentencing errors. It found that ‘a penalty is not contrary to law’ only because it is reached by a process of erroneous reasoning or factual error. This bill expressly adopts the same language — at new section 104B(6) inserted by clause 7 — to assist Victorian courts in interpreting the provision in a narrow manner and to ensure that appeal remains the primary means of correcting error.
The final two points I would like to note are the bill’s requirement that when recalling an offender, compliance with the original ‘contrary to law’ penalty is to be noted when the ‘contrary to law’ penalty is replaced by a penalty that is in accordance with the law. This is to avoid offenders receiving a double punishment for the same offence. Just the same, the bill takes into account finality in the criminal justice system. Victims of crime deserve certainty. In new section 104B(3), inserted in the principal act by clause 7 of the bill, a judge in deciding whether to reopen a proceeding must have regard to the time elapsed for the imposition or non-imposition of the original penalty. In this way errors can be corrected after a significant period of time but due regard is paid to the importance of finality.
In conclusion, this bill removes obstacles to the efficient dispensation of justice in Victoria. It allows for clerical errors to be rectified in a practicable manner, reducing the burden on our judiciary and users of the legal system. It brings our laws into line with nearly all other states and territories in Australia and our statutes into line with legal doctrine. In short, this bill is an enhancement to the Victorian legal system, and I commend it to the house.