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Court of Criminal Appeal 10 May 2002

Regina v Kym

[2002] NSWCCA 235

Fraud & dishonesty
PAROLE BOARD REVOKED SENTENCE

Citation: Regina v Kym [2002] NSWCCA 235
Court: Court of Criminal Appeal (NSW)
Date: 10 May 2002
Judge(s): Newman AJ; Carruthers AJ

Background

The applicant was sentenced in May 2000 by a District Court judge to two years' periodic detention for using a false instrument, an offence under the Crimes Act 1900 carrying a maximum of ten years' imprisonment. The offence involved presenting a forged bank cheque for one million dollars and attempting to collect cash proceeds. The applicant had no prior relevant criminal record and was described as coming from a supportive family background with a good work history.

After failing to attend the periodic detention centre on four occasions, the applicant's order was revoked by the Parole Board in September 2000. The Parole Board converted the sentence to a fixed term of imprisonment of two years and one month, with the additional month reflecting the missed attendances under the relevant provisions of the Crimes (Administration of Sentences) Act 1999.

The applicant filed an application for leave to appeal against the original sentence imposed by the sentencing judge in December 2001, some 16 months after that sentence was handed down. The application also sought an extension of time in which to bring that appeal.

  • Whether the Court of Criminal Appeal had jurisdiction to entertain an appeal against the original periodic detention sentence after the Parole Board had revoked that order and converted it to a term of full-time imprisonment
  • Whether, if jurisdiction existed, sufficient grounds existed to warrant an extension of time of 16 months in which to seek leave to appeal
  • Whether the sentencing judge had erred in failing to expressly state reasons for declining to set a non-parole period, as required under the Crimes (Sentencing Procedure) Act 1999

Decision

At the outset of the hearing, the Court raised the jurisdictional question with both parties: whether the Parole Board's revocation order had subsumed the original sentence so that no appealable order remained. The Court noted its jurisdiction to review Parole Board decisions is narrowly confined to situations where an offender alleges revocation was based on false, misleading, or irrelevant information, under section 176 of the Crimes (Administration of Sentences) Act 1999. No such application had been made here.

Because the Court was constituted by only two judges, it considered it inappropriate to resolve the jurisdictional question as a matter of law. That question, both parties agreed, would require a three-judge bench. The Court adopted a practical approach: it would first assess whether the extension of time and any underlying merits justified referral to a full bench.

On the question of whether the sentencing judge had erred, the Court acknowledged she had not expressly complied with the requirement under section 45(2) of the Crimes (Sentencing Procedure) Act 1999 to give reasons for declining to impose a non-parole period. However, Carruthers AJ characterised this as an oversight, noting that the sentencing remarks implied the judge had considered the matter. No appellable error was established.

On the extension of time, the Court found no justifiable reason had been advanced for the 16-month delay. The applicant attributed the delay largely to the need to engage the Legal Aid Commission, and offered personal circumstances including family conflict and homelessness in the period after sentencing. The Court was not persuaded these circumstances warranted the extension sought, and refused the application accordingly.

Orders Made

  • Application for extension of time refused.

Key Takeaways

  • A significant unresolved jurisdictional question arises where a Parole Board has revoked a periodic detention order and converted it to full-time imprisonment: it is unclear whether the Court of Criminal Appeal retains jurisdiction to hear an appeal against the original sentence once that sentence has been subsumed by the revocation order.
  • The Court of Criminal Appeal confirmed that, under section 176 of the Crimes (Administration of Sentences) Act 1999, its jurisdiction to review Parole Board revocation decisions is narrow, confined to cases where an offender claims the revocation was based on false, misleading, or irrelevant information.
  • A two-judge bench of the Court of Criminal Appeal regarded the jurisdictional question as one properly reserved for a three-judge bench, reflecting the practice that significant questions of law should be determined by a full court.
  • No error was established in the sentencing judge's approach: the failure to expressly give reasons for not imposing a non-parole period was treated as an oversight, with the sentencing remarks indicating the matter had been implicitly considered.
  • In refusing the extension of time, the Court found that a delay of approximately 16 months from the original sentence was not adequately explained by the circumstances advanced, including delays attributed to obtaining legal aid.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 300(2)
- Crimes (Administration of Sentences) Act 1999 (NSW), ss 81(a), 83(1)(a), 163(2)(a), 176
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 6, 44(1), 45

Cases:
- R v Halabi, NSW Court of Criminal Appeal, unreported, 17 February 1992
- R v Wegener [1999] NSWCCA 405