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Court of Criminal Appeal 5 July 2001

REGINA v GAMGEE

[2001] NSWCCA 251

Also reported as 51 NSWLR 707
Public order & justice offences
WHETHER SENTENCE CONTRARY TO LAW CUSTODIAL PERIOD IS SETTING OF NON PAROLE PERIOD IN ACCORDANCE WITH S44.

Citation: Regina v Gamgee [2001] NSWCCA 251
Court: Court of Criminal Appeal, New South Wales
Date: 5 July 2001
Judge(s): Mason P, Dowd J (majority); Sully J (dissenting)

Background

Following a guilty plea to kidnapping, the respondent was sentenced in the District Court to two years' imprisonment commencing 13 December 2000. The sentencing judge relied on section 12 of the Crimes (Sentencing Procedure) Act 1999 and directed that the respondent be released from custody after serving six months, with the remaining 18 months subject to a good behaviour bond. That bond carried conditions including supervision by the Probation and Parole Service and notification of any change of address.

The Crown appealed, arguing that the sentence was contrary to law. The single ground of appeal was that section 12 does not authorise the suspension of only part of a sentence of imprisonment.

  • Whether section 12(1)(a) of the Crimes (Sentencing Procedure) Act 1999 permits partial suspension of a sentence of imprisonment, or whether it requires the entire sentence to be suspended.
  • Whether a suspension order under section 12 may be expressed to commence at a future point during the sentence term (as opposed to taking effect immediately upon imposition).
  • Whether the only lawful mechanism for combining a period of actual custody with a subsequent non-custodial period subject to conditions is the setting of a non-parole period under section 44 of the Act.

Decision

Mason P and Dowd J, in the majority, rejected the Crown's arguments. They found that section 12(1)(a) expressly permits suspension of execution of a sentence for any specified period not exceeding the term of the sentence. Nothing in that language confines the power to a total suspension. A partial suspension, including one taking effect at a later point during the term, falls within the ordinary and natural meaning of the provision.

The majority also rejected the Crown's contextual argument that this interpretation would subvert the scheme established by section 44, which governs the setting of non-parole periods. Section 12 and section 44 were seen as distinct sentencing options that can coexist without one undermining the other. The majority noted that partial suspension allows appropriate denunciation of a serious offence while permitting flexibility, such as conditional release toward the latter end of the term imposed.

Sully J dissented. His Honour took the view that section 12 was intended to operate as a whole-of-sentence suspension mechanism, and that the order as structured by the sentencing judge was contrary to the legislative intent. His Honour also observed several areas of potential ambiguity in section 12 that might warrant legislative attention, including what consequences follow when an offender successfully completes a section 12 good behaviour bond without breach.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • Section 12(1)(a) of the Crimes (Sentencing Procedure) Act 1999 is capable of authorising partial suspension of a sentence of imprisonment. The Court of Criminal Appeal (by majority) held that the statutory language does not confine the power to whole-of-sentence suspension.
  • A suspension order under section 12 may be structured to take effect at a future point within the sentence term, permitting an offender to serve an initial period of actual custody before the suspension operates.
  • Under section 12, the mechanism is distinct from the non-parole period regime in section 44. The majority found that permitting partial suspension does not subvert the section 44 scheme.
  • Sully J (dissenting) would have held that the sentence was contrary to law, considering the structure of section 12 as a whole pointed to full suspension being the only available option.
  • The dissenting judgment identified several areas of potential ambiguity in section 12, including the consequences of successful compliance with a good behaviour bond and the absence of any minimum period of suspended execution, and suggested these warranted legislative clarification.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 12, 44, 99
- Crimes Act 1900 (NSW), s 558 (historical, now repealed)

Cases:
- Dinsdale v R [2000] HCA 54; 74 ALJR 1538; 175 ALR 315

Other Materials:
- NSW Law Reform Commission, Discussion Paper 33, Sentencing, paragraphs 9.61-9.64
- NSW Law Reform Commission, Report No 79, Sentencing, paragraphs 4.20-4.23