Citation: Regina v Zreika [2003] NSWCCA 47
Court: NSW Court of Criminal Appeal
Date: 28 February 2003
Judge(s): O'Keefe J; Bell J
Background
The applicant had pleaded guilty in the District Court to supplying a letter with intent to pervert the course of justice, contrary to s 319 of the Crimes Act 1900. While in custody awaiting trial on other serious charges, he had passed handwritten pages to a prison officer intended for his family, directing a female associate to include fabricated wording in her statement so as to discredit a key witness and exculpate him. The offence carried a maximum penalty of 14 years imprisonment.
At the time of sentencing in October 2001, the applicant was already serving a combination of sentences totalling many years, with non-parole periods extending to late 2006. Chief Judge Blanch imposed a fixed term of five years, ordered to run concurrently with those existing sentences and to commence at the expiry of the non-parole period of the longest sentence. This meant the fixed term was not due to commence until December 2006.
After sentencing, the Court of Criminal Appeal quashed the applicant's convictions on the other serious charges and ordered new trials. That development fundamentally altered the sentencing landscape for the perverting-justice offence. The applicant then sought to have the sentence adjusted in the District Court, but Chief Judge Blanch declined, finding he was functus officio (that is, his authority over the matter had been exhausted). The Court of Criminal Appeal subsequently varied the commencement date of the sentence to 5 June 1999. The applicant then appealed against the severity of the sentence, specifically the absence of a non-parole period.
Legal Issues
- Whether the Court of Criminal Appeal had jurisdiction to intervene in the sentence as it then stood, given the varied commencement date
- Whether the original fixed-term sentence was infected by error justifying appellate intervention
- Whether, in the changed circumstances following the quashing of the concurrent sentences, the court ought to convert the fixed term into a sentence with a non-parole period under s 44(1) of the Crimes (Sentencing Procedure) Act 1999
- Whether any basis existed under s 45 of that Act to decline to set a non-parole period
Decision
The Court confirmed it had jurisdiction to hear the appeal. The sentence had been imposed on 15 October 2001 and the notice of appeal filed on 1 November 2001, placing it within time under s 5(1)(c) of the Criminal Appeal Act 1912. The subsequent variation to the commencement date did not deprive the Court of Criminal Appeal of the ability to deal with the sentence on its merits.
The Court found there was no error in the original sentencing. Chief Judge Blanch had imposed a fixed term because the sentence was to operate concurrently with the applicant's existing substantial sentences, and in that context no non-parole period was required. The statistics available to the Judge at the time supported the approach taken, and no error could be identified by reference to the circumstances as they existed in October 2001.
However, the quashing of the convictions and sentences on the other charges created an entirely new factual matrix. With no concurrent sentences remaining, the reasoning that justified a fixed term had dissolved. The Court held that in these changed circumstances, s 44(1) of the Crimes (Sentencing Procedure) Act 1999 applied, requiring a non-parole period to be set unless s 45 provided a reason to the contrary. No such reason was found to exist.
The Court treated the five-year fixed term as the maximum sentence the sentencing Judge had intended, rather than inferring that the fixed term was meant to represent only a non-parole period. With no finding of special circumstances, a non-parole period of three years and nine months was set, commencing on 5 June 1999.
Orders Made
- Leave to appeal granted
- Sentence of a fixed term of five years imprisonment quashed
- In lieu thereof, the applicant sentenced to five years imprisonment, commencing 5 June 1999 and expiring 4 June 2004, with a non-parole period commencing 5 June 1999 and expiring 4 March 2003, on which date the applicant became eligible for release on parole
Key Takeaways
- Where concurrent sentences that underpinned the structure of a fixed-term sentence are subsequently quashed, the Court of Criminal Appeal may treat that development as a changed circumstance justifying intervention, even where no error existed at the time of the original sentencing.
- A fixed term imposed because it was to run concurrently with other sentences does not automatically convert into a non-parole period once the basis for concurrency disappears; the appellate court treated the fixed term as representing the maximum sentence intended.
- Under s 44(1) of the Crimes (Sentencing Procedure) Act 1999, a court is required to set a non-parole period unless a reason under s 45 applies. In the absence of such a reason, the standard regime applies even when the sentence structure is being reassessed on appeal.
- The District Court's refusal to adjust the sentence on the basis of being functus officio was upheld, but the Court of Criminal Appeal exercised its own powers under s 59 of the Crimes (Sentencing Procedure) Act 1999 and under s 6(3) of the Criminal Appeal Act 1912 to achieve the appropriate result.
- The power under s 59 of the Crimes (Sentencing Procedure) Act 1999 to vary the commencement date of a consecutive sentence is limited and does not extend to varying the term itself or the non-parole period; a full severity appeal was required to achieve those further adjustments.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 319
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 43, 44(1), 45(1), 45(2), 52, 59
- Criminal Appeal Act 1912 (NSW), ss 5(1)(c), 6, 6(3)
Cases:
- Corbett [2002] NSWCCA 137 (unreported, 19 April 2002)
- Dinsdale v The Queen (2000) 202 CLR 321
- House v The King (1936) 55 CLR 499
- Regina v Grant (2002) 55 NSWLR 80
- Thomas (1993) 65 A Crim R 269