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Court of Criminal Appeal 6 February 2004

Regina v Charters

[2004] NSWCCA 40

Drugs
CRIMINAL LAW SENTENCING SUSPENDED SENTENCE SUBJECT TO BOND BREACH OF BOND SENTENCING

Citation: Regina v Charters [2004] NSWCCA 40
Court: NSW Court of Criminal Appeal
Date: 6 February 2004
Judge(s): Dunford J; Greg James J

Background

The appellant had originally been sentenced in the District Court to two years' imprisonment for ongoing drug supply, with the sentence partially suspended from June 2002 under a good behaviour bond. He was released on that basis but repeatedly breached the bond conditions and was taken back into custody in December 2002.

When called before the sentencing judge in April 2003, the appellant had already served, or was deemed to have served, approximately six months of his original two-year term. The unexpired portion remaining at the time of his return to custody was roughly 18 months and two weeks.

The sentencing judge revoked the bond and re-imposed a fresh two-year sentence, dating it from December 2002. This produced a term that exceeded what remained of the original sentence, and it was that excess which formed the basis of the appeal.

  • Whether a court re-sentencing an offender after revoking a suspended sentence bond is limited to the unexpired portion of the original sentence
  • Whether the sentencing judge erred by imposing a two-year term that exceeded the remaining unserved period
  • Whether the sentencing judge erred by directing that the appellant be "eligible for release" on parole, rather than making a mandatory parole release order as required under s 50(1) of the Crimes (Sentencing Procedure) Act 1999

Decision

The Court of Criminal Appeal held that the combined effect of ss 12 and 99 of the Crimes (Sentencing Procedure) Act 1999 is that, upon revocation of a s 12 bond, the maximum sentence that can be imposed is the remaining unserved portion of the original sentence. The sentencing judge's re-imposition of a full two-year term therefore exceeded her jurisdiction. The Court noted that the relevant authority, R v Hyde [2003] NSWCCA 154, had been decided after the re-sentencing hearing, which explained why her Honour had not had the benefit of it.

The Court also identified a separate procedural error. Where a court imposes a sentence of three years or less containing a non-parole period, s 50(1) of the Act requires the court to make an order directing the offender's release at the end of that period. The sentencing judge had directed only that the appellant be "eligible" for parole release, which did not satisfy this mandatory obligation.

On the question of special circumstances (which can justify a longer-than-usual parole period), the Court declined to make such a finding. The appellant's history of breaching the bond provided no basis to conclude that an extended period on parole would assist rehabilitation.

Orders Made

  • Leave to appeal granted
  • Appeal upheld
  • Original sentence quashed
  • Appellant re-sentenced to 18 months and 2 weeks' imprisonment, dating from 22 December 2002, expiring 6 July 2004
  • Non-parole period fixed expiring 5 January 2004
  • Appellant ordered to be released forthwith on parole, subject to the conditions previously specified by the sentencing judge

Key Takeaways

  • Under ss 12 and 99 of the Crimes (Sentencing Procedure) Act 1999, the maximum term a court may impose when re-sentencing an offender after revoking a suspended sentence bond is the unexpired, unserved portion of the original sentence, not the full original term.
  • The Court of Criminal Appeal confirmed that R v Hyde [2003] NSWCCA 154 establishes this cap on re-sentencing, and applied it even though the decision post-dated the original re-sentencing hearing.
  • Section 50(1) of the Crimes (Sentencing Procedure) Act 1999 imposes a mandatory obligation: where a sentence of three years or less includes a non-parole period, the court must order the offender's release at the expiry of that period, not merely declare them eligible for parole.
  • A finding of special circumstances, justifying a departure from the standard non-parole ratio, will not automatically follow from a re-sentencing on breach; the offender's history of non-compliance remains a relevant consideration.
  • Arithmetic precision matters in re-sentencing calculations: the Court worked through the actual dates to determine whether a special circumstances finding would produce any practical difference, and concluded it would not.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 12(1), 50(1), 99
- Drug Misuse and Trafficking Act 1986 (NSW), s 25A

Cases:
- R v Hyde [2003] NSWCCA 154