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Court of Criminal Appeal 1 December 2003

R v Sayin

[2003] NSWCCA 384

Assault & violence
FIXING OF NON PAROLE PERIOD

Citation: R v Sayin [2003] NSWCCA 384
Court: New South Wales Court of Criminal Appeal
Date: 1 December 2003
Judge(s): Wood CJ at CL; Smart AJ

Background

The applicant had been convicted of assault occasioning actual bodily harm in the District Court and sentenced to eighteen months imprisonment by way of periodic detention. Following an appeal, the Court of Criminal Appeal varied the sentence on 6 December 1994 to a fixed term of seventeen months and one week, still to be served by periodic detention commencing 14 December 1994.

The applicant subsequently returned to Turkey in 1995 for pressing family reasons and received treatment there for serious psychiatric and medical conditions. In his absence, and without his knowledge, Kirkham DCJ made an order on 25 August 1995 cancelling the periodic detention order, after the applicant had failed to attend multiple scheduled periodic detention weekends. The applicant was not present when that order was made.

The applicant was arrested on warrant in August 2002, some seven years later, and spent six months and six days in full-time custody before being released on bail in February 2003. He then sought leave to appeal the cancellation order.

  • Whether the Court of Criminal Appeal had jurisdiction to entertain an appeal against a District Court order cancelling a periodic detention order.
  • Whether Kirkham DCJ erred by proceeding to cancel the periodic detention order and making consequential orders without the offender being present.
  • Whether a non-parole period should have been set at the time of cancellation, and if so, what period was now appropriate given the exceptional circumstances.

Decision

The Court confirmed that, under its earlier decisions, there is no direct appeal to the Court of Criminal Appeal against a District Court judge's order cancelling a periodic detention order. However, because section 27(1)(c) of the Periodic Detention of Prisoners Act 1981 deems the unexpired portion of the original sentence to be a separate term of imprisonment imposed at the time of cancellation, a limited appellate jurisdiction exists: the Court of Criminal Appeal may consider whether a non-parole period should have been set and, if so, its length.

The Court found that Kirkham DCJ had erred by proceeding to cancel the order and deal with consequential matters in the applicant's absence. Without the offender present, the sentencing judge did not have before him the material necessary to determine whether to set a non-parole period. The appropriate course, the Court held, was for a warrant to be issued for the arrest of the offender so that the matter could be addressed with the offender before the court.

Given the applicant's serious and genuine psychiatric difficulties, the fact that the periodic detention was cancelled without his knowledge, and the time that had elapsed, the Court concluded that a non-parole period should now be set to reflect the six months and six days the applicant had already served in full-time custody following his arrest on warrant in 2002.

Orders Made

  • The appeal against the order of Kirkham DCJ of August 1995 cancelling the periodic detention order was upheld in part.
  • A non-parole period of 6 months and 6 days was set, commencing 14 August 2002 and expiring 20 February 2003.
  • The applicant was entitled and required to have been released on parole on 20 February 2003.
  • The head sentence remained undisturbed.

Key Takeaways

  • The Court of Criminal Appeal confirmed it has no general appellate jurisdiction over a District Court order cancelling a periodic detention order, but a narrow jurisdiction exists to consider whether a non-parole period should be set in consequence of the cancellation.
  • Cancelling a periodic detention order in the absence of the offender is undesirable: without the offender present, the court lacks the material necessary to make an informed decision about whether to fix a non-parole period and its appropriate length.
  • Where an offender fails to appear at the time of a cancellation application, the proper course is to issue a warrant for the offender's arrest and bring them before the court before proceeding.
  • Under s 27(1)(c) of the Periodic Detention of Prisoners Act 1981, the unexpired portion of a sentence is deemed a fresh term of imprisonment imposed at the time of cancellation, which is the source of the Court of Criminal Appeal's limited jurisdiction in these proceedings.
  • In exceptional circumstances, including genuine psychiatric illness and lengthy delay, the Court of Criminal Appeal may set a non-parole period that corresponds precisely to time already served, effectively securing the offender's entitlement to release on parole.

Legislation and Cases Referenced

Legislation:
- Periodic Detention of Prisoners Act 1981 (NSW), particularly ss 21(5), 25(1), 25(2), and 27(1)(c)
- Mental Health Act (NSW)

Cases:
- R v Sommerville (1995) 36 NSWLR 184
- Wilson v Department of Corrective Services (1997) 93 A Crim R 301