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Court of Criminal Appeal 3 May 2000

Regina v Martin WOOD

[2000] NSWCCA 155

Theft & property
CRIMINAL LAW SENTENCE APPEAL CANCELLATION OF PERIODIC DETENTION

Citation: Regina v Martin WOOD [2000] NSWCCA 155
Court: NSW Court of Criminal Appeal
Date: 3 May 2000
Judge(s): Hulme J; Carruthers AJ

Background

The applicant had been convicted of robbery in company and sentenced in June 1994 to three years penal servitude to be served by way of periodic detention. He accumulated 18 absences without leave, prompting the Department of Corrective Services to apply for cancellation of the periodic detention order.

After attending two earlier court dates, the applicant deliberately chose not to appear on 20 October 1995. He and his partner relocated to Newcastle, accepting that imprisonment would eventually follow. In his absence, the District Court cancelled the periodic detention order and imposed a full-time custodial sentence of 91 weeks minimum and 30 weeks additional term.

The applicant was not arrested until April 1999, when he was also convicted of mid-range prescribed concentration of alcohol and driving whilst unlicensed offences. He then sought leave to appeal the 1995 sentence, lodging his application in August 1999, well outside the ordinary appeal period.

  • Whether the District Court erred in proceeding to cancel the periodic detention order and resentence the applicant in his absence
  • Whether the sentence imposed by the District Court, including the ratio between minimum and additional terms, was appropriate given the absence of submissions on the applicant's behalf
  • Whether special circumstances existed to justify varying the ratio between the minimum and additional terms
  • Whether the concurrent service of the first three months with Local Court sentences should be reflected in the sentence structure

Decision

The Court granted leave to appeal, noting that the District Court had proceeded in the applicant's absence without the benefit of any submissions on his behalf. Subsequent Court of Criminal Appeal decisions, including Wilson (1997) and Webster (1998), had emphasised the practical undesirability of proceeding to cancel a periodic detention order in a detainee's absence. Judge Rummery had not had those decisions available to him at the time.

Carruthers AJ found that the absence of the applicant, while brought about by his own deliberate conduct, nonetheless meant the sentencing court was deprived of relevant subjective material. The Court noted a number of mitigating factors that had not been before Judge Rummery, including the applicant's history of alcohol and drug addiction, his cooperation with authorities, his guilty plea, and genuine remorse.

The Court concluded that the ratio between minimum and additional terms required adjustment. In particular, the fact that the first three months of the full-time custodial sentence ran concurrently with the Local Court sentences warranted a recalibration. The Court quashed the 1995 sentencing orders to the extent they imposed a full-time custodial sentence and substituted revised terms running from the date of the applicant's actual arrest in April 1999.

Hulme J agreed with Carruthers AJ's reasons but added a separate observation about the undesirability of both the Department of Corrective Services and the Director of Public Prosecutions each appearing separately in proceedings of this kind, a practice the Court had criticised as far back as Wilson in 1997 without apparent improvement.

Orders Made

  • The order made by Judge Rummery on 20 October 1995, to the extent it imposed a full-time custodial sentence, was quashed
  • In lieu thereof, the applicant was ordered to serve a minimum term of 91 weeks from 27 April 1999, expiring 29 September 2000
  • An additional term of 30 weeks was imposed commencing 30 September 2000 and expiring 20 August 2001

Key Takeaways

  • The Court of Criminal Appeal confirmed that proceeding to cancel a periodic detention order and resentence a detainee in their absence is practically undesirable, because the sentencing court is deprived of submissions on the detainee's behalf that may affect the outcome.
  • A detainee's deliberate choice to absent himself from proceedings does not necessarily preclude a successful sentence appeal where the resulting sentence can be shown to be inadequately informed.
  • Where concurrent service of an early portion of a custodial sentence with other sentences occurs, that concurrency is a relevant factor in adjusting the ratio between minimum and additional terms.
  • Hulme J expressed pointed criticism of the continued separate representation by both the Department of Corrective Services and the Director of Public Prosecutions in the same proceedings, describing it as wasteful and unnecessary given that both act for the Crown.
  • The Court of Criminal Appeal noted the practical value of its own earlier guideline decisions, observing that sentencing judges benefit from having the benefit of those authorities before proceeding to hear cancellation applications.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97(1)
- Periodic Detention of Prisoners Act 1981 (NSW), s 26(1A), s 27(4)

Cases:
- Wilson v Department of Corrective Services (1997) 93 A Crim R 301
- Webster (1998) 100 A Crim R 26
- Biddle (NSW Court of Criminal Appeal, unreported, 6 March 1997)
- Lloyd (Terry) (NSW Court of Criminal Appeal, unreported, 17 June 1997)