Citation: Regina v Shane Patrick O'DONOHUE (No. 2) [2001] NSWCCA 495
Court: NSW Court of Criminal Appeal
Date: 5 December 2001
Judge(s): Heydon JA, Dowd J, Bell J
Background
The appellant had been convicted of an arson offence and sentenced to three years imprisonment in the District Court, commencing 7 July 2000. He also held a number of other sentences: four fixed terms of three months imprisonment (imposed in the St James Local Court) expressed to commence on 7 January 2002, and a six-month fixed term imposed by the Bathurst Local Court on 7 August 2001 following a conviction for obtaining a benefit by deception.
On 9 November 2001, the Court of Criminal Appeal allowed the appellant's appeal and quashed his conviction for the arson offence. That quashing triggered questions about what should happen to the other sentences, which had been structured around the now-quashed sentence.
The Court had already made orders varying the commencement dates of the four three-month sentences. The remaining question was whether the six-month Bathurst sentence could also have its commencement date varied under section 59 of the Crimes (Sentencing Procedure) Act 1999.
Legal Issues
- Whether the Court had power under section 59 of the Crimes (Sentencing Procedure) Act 1999 to vary the commencement date of a sentence that was partly concurrent and partly consecutive with the quashed sentence, rather than wholly consecutive.
- Whether the expression "consecutive sentence" in section 59 should be construed broadly to include sentences that are only partly consecutive on another sentence.
- Whether the orders already made on 9 November 2001 in respect of the four three-month sentences were correctly formulated.
Decision
The Court refused the application to vary the commencement date of the Bathurst Local Court sentence. The central reason was that the six-month sentence was not a purely "consecutive sentence" within the meaning of section 59. It was partly concurrent with the quashed arson sentence and the St James Local Court sentences, and only partly consecutive upon the non-parole period of the quashed sentence.
The Court acknowledged the appellant's argument that a strict reading produced an arguably arbitrary outcome: a wholly consecutive sentence could be adjusted, but an equivalent sentence that happened to be structured as partly concurrent and partly consecutive could not be, even where the practical effect on the prisoner's release date was the same. Despite recognising that concern, the Court held that the scheme of the Act consistently maintained a distinction between purely "consecutive sentences" and those that were "partly concurrent and partly consecutive," and it was not open to read the two as interchangeable under section 59.
The Court also addressed the orders made on 9 November 2001 in relation to the four three-month sentences. It clarified that, despite those orders having been expressed as varying four separate sentences, there were in fact only two sentences of three months imprisonment (imposed in the St James Local Court on 25 July 2000). The references to sentences imposed on 11 October 2000 related to District Court appeals against those same sentences, which had been dismissed. The Court confirmed that the orders operated to vary the two actual sentences, each now treated as having commenced on 7 April 2001 and expired on 6 July 2001.
Bell J noted, without deciding the point, that in a case where an appellant succeeds in having a sentence quashed, there may be grounds for a District Court to consider extending the time to appeal against the severity of a concurrent or partly consecutive sentence beyond the three-month limit in section 124 of the Justices Act 1902, given that the existence of the quashed sentence may have influenced the original sentencing.
Orders Made
- Application to vary the commencement date of the Bathurst Local Court sentence of six months imprisonment refused.
- Orders made on 9 November 2001 confirmed as operating to vary the commencement dates of the two St James Local Court sentences (obtain benefit by deception and breach of Community Service Order, each imposed 25 July 2000), so that each is taken to have commenced on 7 April 2001 and expired on 6 July 2001.
Key Takeaways
- Section 59 of the Crimes (Sentencing Procedure) Act 1999 confers power to vary the commencement date of a "consecutive sentence" following a quashing or variation, but that power does not extend to a sentence that is only partly consecutive on the quashed sentence.
- The Act consistently distinguishes between purely "consecutive" sentences and those that are "partly concurrent and partly consecutive," and section 59 does not bridge that distinction even where the practical effect on a prisoner's release date may be identical.
- Under section 59(5), neither the term of a sentence nor its non-parole period can be varied, confirming the provision's narrow scope is limited to adjusting commencement dates.
- Where orders are made by consent and later found to have been expressed in terms that do not precisely reflect the underlying sentences, the Court of Criminal Appeal may clarify their proper operation without setting them aside.
- Bell J observed that where a quashed sentence influenced the structure of a concurrent or partly consecutive sentence, there may be scope to seek an extension of the statutory time limit for appealing against that other sentence, though the Court made no binding ruling on that point.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), particularly section 59
- Criminal Procedure Act 1986 (NSW), particularly sections 23F and 24A
- Criminal Procedure Amendment (Sentences Adjustment) Act 1996 (NSW)
- Justices Act 1902 (NSW), section 124
Cases: No specific cases were cited by name in the portions of the judgment provided.