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Court of Criminal Appeal 13 December 2002

Regina v Kalifa Petelo

[2002] NSWCCA 500

Theft & property
MATTER PROCEEDED EX PARTE ERROR ESTABLISHED NON PAROLE PERIOD SET.

Citation: Regina v Kalifa Petelo [2002] NSWCCA 500
Court: New South Wales Court of Criminal Appeal
Date: 13 December 2002
Judge(s): Sperling J; Buddin J

Background

The applicant had been convicted in the District Court in November 1994 of robbery in company following a judge-alone trial. He was sentenced by Judge Graham to a fixed term of two years' imprisonment to be served by way of periodic detention, commencing 30 November 1994.

The applicant completed approximately 21 weeks of the periodic detention order but was absent without leave on 11 occasions. In September 1995, Judge Shadbolt cancelled the periodic detention order under the Periodic Detention of Prisoners Act 1981, a step that became mandatory once the relevant statutory conditions were met. The cancellation proceedings were conducted in the applicant's absence (that is, ex parte), with the result that the applicant had no opportunity to make submissions on the cancellation or on the question of minimum and additional terms. A warrant for the applicant's arrest was issued but not executed until 2 February 2002, when he was taken into custody.

The applicant sought an extension of time and leave to appeal the sentence imposed by Judge Shadbolt, arguing that the ex parte proceeding constituted a miscarriage of the sentencing process.

  • Whether the cancellation of the periodic detention order, conducted in the applicant's absence, resulted in a miscarriage of the sentencing process.
  • Whether this Court should re-sentence the applicant given the error identified.
  • Whether "special circumstances" existed under the Crimes (Sentencing Procedure) Act 1999 warranting a longer than usual parole period.

Decision

The Court accepted, and the Crown conceded, that proceeding ex parte had caused the sentencing process to miscarry. A line of Court of Criminal Appeal authority, including R v Wilson, R v Webster, and several other decisions, had firmly established that detainees must be present when a court cancels a periodic detention order and determines minimum and additional terms. Judge Shadbolt had not had the benefit of those later decisions, but the error was nonetheless clear.

The Court proceeded to re-sentence the applicant itself, applying the Crimes (Sentencing Procedure) Act 1999 as the legislation currently in force, consistent with the approach mandated by R v Carrion. In doing so, the Court had regard to the additional material placed before it, including the applicant's affidavit detailing the personal circumstances surrounding his original offending and his subsequent rehabilitation.

The Court found that special circumstances existed, justifying a non-parole period that departed from the statutory norm in favour of a longer parole period. Relevant factors included the fact that the sentence was now of a different character from that originally intended by the sentencing judge (full-time custody rather than periodic detention), the 21 weeks already served under the periodic detention order, the fact that this was the applicant's first term of full-time imprisonment, and clear evidence of rehabilitation and favourable future prospects. The Court confirmed the sentence as fixed by Judge Shadbolt but set a non-parole period expiring on the date of judgment, 13 December 2002, so that the applicant was released on parole that day.

Orders Made

  • Extension of time for leave to appeal against the sentence imposed by Judge Shadbolt granted.
  • Leave to appeal granted.
  • Sentence fixed by Judge Shadbolt, commencing 2 February 2002 and expiring 26 September 2003, confirmed.
  • Non-parole period set to commence 2 February 2002 and expire 13 December 2002, with the applicant to be released on parole at that time.

Key Takeaways

  • A periodic detention cancellation hearing conducted in the detainee's absence constitutes an error capable of vitiating the sentencing process, consistent with a well-established line of Court of Criminal Appeal authority.
  • Under R v Webster and related decisions, the requirement for the detainee to be present when a court cancels a periodic detention order and fixes minimum and additional terms is necessary for the proper, fair and effective administration of justice.
  • Where an error of this kind is established, the Court of Criminal Appeal may proceed to re-sentence the applicant itself, applying the sentencing legislation current at the time of re-sentencing rather than the legislation in force at the time of the original order.
  • Special circumstances warranting adjustment to the non-parole period can arise where a sentence has changed in character from periodic to full-time detention, where part of the original order has been served, and where the sentence is the offender's first term of full-time imprisonment.
  • Evidence of rehabilitation is not automatically discounted because the staleness of the proceedings results from the offender's own non-compliance, as affirmed by reference to R v Shore.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 97(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 44(2)
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Periodic Detention of Prisoners Act 1981 (NSW), ss 25A, 27(3), 27(4)

Cases
- R v Biddle (NSWCCA, unreported, 6 March 1997)
- R v Carrion [2000] 49 NSWLR 149
- R v Lloyd (NSWCCA, unreported, 17 June 1997)
- R v Shore (1992) 66 A Crim R 37
- R v Van-Praag (NSWCCA, unreported, 30 November 1998)
- R v Webster (1998) 100 A Crim R 26
- R v Wilson (1997) 93 A Crim R 301
- R v Wood [2000] NSWCCA 155