Citation: Regina v Brown [2002] NSWCCA 143
Court: New South Wales Court of Criminal Appeal
Date: 24 April 2002
Judge(s): Simpson J; Dowd J
Background
The applicant had been sentenced by Blanch CJ of the District Court to a total term of four years imprisonment. He applied to the Court of Criminal Appeal for leave to appeal against the severity of that sentence.
On 8 December 2000, the Court of Criminal Appeal heard and determined the application. The Court left the total four-year term intact but reduced the non-parole period from two years to fifteen months, with that non-parole period expiring on 26 April 2002.
What had not been drawn to the Court's attention was that, after Blanch CJ imposed the original sentence but before the appeal was determined, McGuire DCJ had on 26 October 2000 sentenced the applicant to a further term of two years and four months, with a non-parole period of four months. That consecutive sentence was ordered to commence at the expiration of the original non-parole period set by Blanch CJ, being 29 January 2003.
Legal Issues
- Whether the reduction of the non-parole period on appeal had created an unintended gap between the expiry of the varied non-parole period (26 April 2002) and the commencement of the consecutive sentence imposed by McGuire DCJ (29 January 2003)
- Whether the Court of Criminal Appeal had power under section 59(1) of the Crimes (Sentencing Procedure) Act 1999 to adjust the commencement date of the consecutive sentence to address that gap
Decision
The Court accepted that, as matters stood following its earlier orders, the consecutive sentence imposed by McGuire DCJ would not commence until 29 January 2003, well after the applicant's non-parole period under the varied sentence had expired on 26 April 2002. This produced an unintended result.
Simpson J identified section 59(1) of the Crimes (Sentencing Procedure) Act 1999 as directly applicable. That provision empowers a court that quashes or varies a sentence of imprisonment to vary the commencement date of any consecutive sentence imposed on that person by any court. The Crown, through the office of the Solicitor for Public Prosecutions, raised no objection to the Court exercising that power in chambers.
Simpson J held that it was appropriate to make the order sought. Dowd J concurred. The Court varied its original orders to bring forward the commencement date of the McGuire DCJ sentence so that it would begin on 27 April 2002, the day after the varied non-parole period expired.
Orders Made
- Pursuant to section 59(1) of the Crimes (Sentencing Procedure) Act 1999, the commencement date of the sentence imposed by McGuire DCJ on 26 October 2000 was varied so that the sentence commences on 27 April 2002.
Key Takeaways
- Section 59(1) of the Crimes (Sentencing Procedure) Act 1999 expressly empowers a court that quashes or varies a custodial sentence to adjust the commencement date of any consecutive sentence, whether imposed by that court or any other court.
- Where an appeal against sentence results in a variation to a non-parole period, consecutive sentences that were keyed to the original non-parole period may need corresponding adjustment to avoid an unintended gap in custody.
- The Court of Criminal Appeal dealt with the corrective order by way of supplementary judgment in chambers, with the consent of both parties, without the need for a further oral hearing.
- The Crown's indication of no objection to the exercise of the section 59(1) power was treated by Simpson J as sufficient to proceed without active opposition, though the Court independently satisfied itself that the order was appropriate.
- Parties and their legal representatives bear an obligation to draw all relevant sentencing information, including any intervening sentences, to the attention of a court hearing a sentence appeal.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), section 59(1)
Cases:
- No cases were cited in the judgment.