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Court of Criminal Appeal 20 August 1999

Regina v Hawkins

[1999] NSWCCA 276

Theft & property

Citation: Regina v Hawkins [1999] NSWCCA 276
Court: New South Wales Court of Criminal Appeal
Date: 20 August 1999
Judge(s): Wood CJ at CL; Simpson J

Background

The applicant had pleaded guilty in 1991 to break, enter and steal and three counts of larceny. He received a twelve-month periodic detention order on three counts and a recognizance with a compensation obligation on the fourth. Over the following years, he repeatedly breached his obligations: failing to attend the periodic detention centre, breaching successive recognizances, and failing to pay compensation to his victims.

By October 1996, with over five years having passed since the offences and $5,800 in compensation still outstanding, the sentencing judge ordered a further nine-month periodic detention term. The applicant did not attend on a single occasion and made no applications for leave of absence.

In October 1997, Judge Grogan in the District Court cancelled the periodic detention order and directed that the applicant serve the unexpired forty-four weeks in full-time custody. The applicant was absent from that hearing. Judge Grogan declined to divide the sentence into minimum and additional terms under the Periodic Detention of Prisoners Act 1981. The applicant sought leave to appeal against that decision.

  • Whether Judge Grogan erred in proceeding to sentence the applicant in his absence, rather than adjourning as a matter of discretion.
  • Whether Judge Grogan erred in declining to fix minimum and additional terms for the converted full-time custodial sentence.
  • Whether a factual error made by Judge Grogan about the number and nature of the offences under consideration affected the sentencing outcome.

Decision

On the question of sentencing in the applicant's absence, the Court accepted that it is generally preferable for offenders to be physically present when orders affecting their liberty are made. However, the Court found this principle is not an inflexible rule. While the Court acknowledged the applicant was deprived of the opportunity to put material before Judge Grogan, it assessed what that material would have been by hearing oral evidence from the applicant in the appeal.

That evidence was largely unhelpful to the applicant. He conceded he had not attended the periodic detention centre because of work commitments and marital problems, and the Court concluded his evidence indicated he had never truly intended to comply with the periodic detention order.

Despite the limited weight of the applicant's own evidence, the Court identified a material factual error in Judge Grogan's approach. His Honour had proceeded on the mistaken basis that he was dealing with multiple offences of break, enter and steal, when in fact the matter before him concerned only a single offence of that kind. This error about the number and nature of the offences was sufficient to vitiate the sentence.

The Court therefore allowed the appeal on the basis of that factual error, quashed the sentence, and re-sentenced the applicant by fixing a minimum term of thirty-six weeks and an additional term of eight weeks, with a direction for release at the expiration of the minimum term.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence imposed by Judge Grogan quashed.
  • In lieu thereof, the applicant sentenced to a minimum term of thirty-six weeks imprisonment commencing 20 February 1999, and an additional term of eight weeks.
  • Direction that the applicant be released at the expiration of the minimum term.

Key Takeaways

  • A sentencing court's power to proceed in an offender's absence is not in doubt, but the Court of Criminal Appeal confirmed it remains a matter of discretion and that the ordinary preference is for the offender to be present when liberty is at stake.
  • Where an applicant raises absence from sentencing as a ground of appeal, the appellate court will assess whether the material the applicant could have placed before the original court would have made a difference to the outcome.
  • A factual error about the number or nature of the offences under consideration can be sufficient to vitiate a sentence, even where the offender's own evidence on re-sentencing is largely unfavourable to them.
  • Under the Periodic Detention of Prisoners Act 1981, when a periodic detention order is cancelled and converted to full-time custody, the sentencing court retains a discretion to fix minimum and additional terms for the remaining sentence.
  • In dismissing the absence ground but upholding the factual error ground, the Court demonstrated that appellate intervention on sentence requires an identifiable error, and not merely a suboptimal process.

Legislation and Cases Referenced

Legislation:
- Periodic Detention of Prisoners Act 1981 (NSW), including ss 27(4)(a) and 27(4)

Cases:
- Webster v Wilson (1977) 93 A Crim R 301