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8
Court of Criminal Appeal 7 September 2001

R v LEETE

[2001] NSWCCA 337

Also reported as (2001) 125 A Crim R 37
Drugs

Citation: R v Leete [2001] NSWCCA 337
Court: NSW Court of Criminal Appeal
Date: 7 September 2001
Judges: Sheller JA, Sully J, Hulme J

Background

The applicant was sentenced in the District Court on 31 January 2001 for supplying 22.99 grams of heroin, an offence committed on 2 October 2000. She had been in custody since the date of the offence, a period of approximately four months before sentencing, but the sentencing judge declined to backdate the sentence to account for that pre-sentence custody.

Judge Ducker imposed a three-year term, including a non-parole period of two years, commencing on the date of sentence. The judge deliberately kept the sentence at or below three years so that he could personally attach conditions to the parole order, including a requirement that the applicant enter a full-time residential drug rehabilitation program.

The applicant sought leave to appeal, contending that the sentence was structured improperly and that the parole conditions were imposed without the procedural and legislative requirements being satisfied.

  • Whether the sentencing judge complied with the procedural requirements under the Crimes (Sentencing Procedure) Regulation before imposing parole conditions relating to treatment and rehabilitation.
  • Whether the judge had power to require the applicant to undertake full-time residential rehabilitation as a condition of parole.
  • Whether the judge failed to adequately account for pre-sentence custody when determining the sentence.
  • Whether the effective sentence was manifestly excessive.
  • Whether the judge erred in failing to backdate the sentence to the date of arrest.

Decision

The Court of Criminal Appeal found that the first ground of appeal was determinative. Clause 6 of the Crimes (Sentencing Procedure) Regulation required the court, before imposing parole conditions relating to treatment or residence, to consider a Probation and Parole Officer's report and satisfy itself that compliance with those conditions was feasible. It was common ground that neither of the reports before Judge Ducker satisfied these requirements. The sentencing judge therefore lacked the power to impose the rehabilitation condition as a term of the parole order.

The Court also noted the broader context: Judge Ducker had attempted to impose similar rehabilitation conditions during the applicant's immediately preceding sentence, but that sentence exceeded three years, meaning he had no power to attach parole conditions at all. The Parole Board ultimately imposed different conditions on that occasion, prompting the judge's dissatisfaction, which appeared to have influenced how he structured the current sentence to retain direct control over the parole terms.

Because the sentence was intended to operate as a whole, the Court declined to simply excise the impugned conditions while leaving the rest of the sentence intact. That approach would have allowed the applicant to retain the benefits of the sentence structure, including the finding of special circumstances and the extended parole period, while discarding the obligations that had prompted those concessions.

The Court also noted that the applicant's attitude to rehabilitation had shifted since the original proceedings. There was no current Probation and Parole report, and her earlier parole had since been revoked. In those circumstances, the Court considered it appropriate to remit the matter to the District Court for resentencing, directing that the resentencing judge approach the matter entirely afresh, unconstrained by Judge Ducker's earlier findings on special circumstances or sentencing range.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence imposed by Judge Ducker quashed.
  • Matter remitted to the District Court for resentencing.

Key Takeaways

  • Under clause 6 of the Crimes (Sentencing Procedure) Regulation, a court imposing parole conditions relating to treatment or residence must first obtain a Probation and Parole Officer's report and satisfy itself that compliance is feasible; without that foundation, conditions of that kind are beyond power.
  • A sentencing judge cannot cure a power deficiency simply by structuring the sentence length to fall within a threshold that permits parole conditions, if the procedural prerequisites for imposing those conditions have not been met.
  • Where a sentence was crafted as an integrated whole, appellate courts will not surgically remove only the unfavourable conditions while leaving beneficial aspects, such as a finding of special circumstances, undisturbed.
  • Remittal to the District Court for resentencing is appropriate where there is no current Probation and Parole report, the applicant's circumstances have changed materially since the original sentence, and the original sentence cannot safely be reconstructed on appeal.
  • A resentencing court, following remittal in these circumstances, is free to consider the matter entirely afresh without being constrained by earlier findings of special circumstances or indications of sentencing range made by the original judge.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 50, 51
- Crimes (Sentencing Procedure) Regulation (NSW), cl 6
- Criminal Appeal Act (NSW), ss 6(3), 12(2)

Cases cited: No cases cited in the provided text.