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Court of Criminal Appeal 24 November 2004

Regina v Catlin

[2004] NSWCCA 417

Theft & propertyPublic order & justice offences

Citation: Regina v Catlin [2004] NSWCCA 417
Court: NSW Court of Criminal Appeal
Date: 24 November 2004
Judge(s): Sully J, Hidden J, Howie J

Background

The appellant pleaded guilty in the District Court in March 1997 to stealing $15,740 from his employer, an offence under the Crimes Act 1900 (NSW) carrying a maximum of 10 years imprisonment. Rather than imposing a custodial sentence at that time, the sentencing judge deferred sentence on the basis that the appellant enter into a recognisance to be of good behaviour for four years and repay the stolen amount at $400 per month.

The appellant paid only $600 over the following year, far short of the required amount. After a further amended arrangement was made in February 1998, he paid nothing more. He was subsequently called up for breach of his recognisance in August 1999.

At the breach hearing, the District Court imposed a sentence of two and a half years imprisonment to be served by way of periodic detention. The appellant did not immediately appeal, but filed a notice of application for leave to appeal in October 2004, well outside the standard time limit, necessitating an application for an extension of time.

  • Whether the sentencing judge erred by failing to apply the correct procedural requirements under the Periodic Detention of Prisoners Act 1981 (as amended from 1 February 1999) when imposing a periodic detention order
  • Whether the sentencing judge erred by failing to set a non-parole period
  • Whether a less severe sentence was warranted in the circumstances
  • Whether an extension of time should be granted to allow the appeal to proceed

Decision

The Court of Criminal Appeal granted the extension of time, accepting the appellant's unchallenged affidavit as showing sufficient cause for the delay. Leave to appeal was then granted and the appeal allowed.

The central finding was that the sentencing judge had not followed the procedure required by the amended Periodic Detention of Prisoners Act 1981. As summarised by the Court of Criminal Appeal in Reg v Wegener [1999] NSWCCA 405, a judge must first impose a sentence of imprisonment expressed either as a fixed term not exceeding three years, or as minimum and additional terms whose aggregate does not exceed three years. Only after taking that step can the judge consider ordering periodic detention. Judge Davidson did not structure his sentence in either of those ways, which constituted a sentencing error.

Because the sentence was found to have miscarried procedurally, the Court quashed it and substituted a fresh sentence. Both counsel made consistent written submissions on the recalculation, which the Court accepted. The aggregate term of two and a half years was not disturbed, but the new sentence was structured correctly, with a non-parole period set at 23 months of the total term. The Court found no special circumstances that would justify a more generous non-parole period.

Given that the appellant was already subject to a periodic detention order running beyond the newly set non-parole period, and despite the contents of a Periodic Detention Assessment report dated 19 November 2004, the Court ordered that the substituted sentence continue to be served by way of periodic detention.

Orders Made

  • Extension of time granted to permit the application for leave to appeal to be entertained
  • Leave to appeal against sentence granted
  • Appeal allowed; original sentence quashed
  • In substitution, a sentence of imprisonment of 12 months imposed, commencing 1 December 2004 and expiring 30 November 2005, with a non-parole period of 17 weeks commencing 1 December 2004 and expiring 29 March 2005
  • Earliest parole eligibility date set at 29 March 2005; offender to be released on parole on that date
  • Sentence ordered to be served by way of periodic detention; offender to report to the Periodic Detention Centre at Silverwater no later than 4 pm on 1 December 2004
  • Periodic detention ordered despite the assessment report, on the basis that the offender was already subject to a periodic detention order longer than the non-parole period now set

Key Takeaways

  • Under the Periodic Detention of Prisoners Act 1981 as amended from 1 February 1999, a sentencing judge must first impose a properly structured term of imprisonment (either a fixed term or apportioned minimum and additional terms, not exceeding three years in aggregate) before considering whether periodic detention is appropriate. Skipping that structural step is a procedural error that vitiates the sentence.
  • The Court of Criminal Appeal confirmed the approach set out in Reg v Wegener [1999] NSWCCA 405, treating it as the applicable statement of the correct sentencing methodology under the amended Act.
  • Failure to set a non-parole period when imposing a sentence of imprisonment is a distinct and separate error that will also result in the sentence miscarrying.
  • In re-sentencing, the Court declined to find special circumstances justifying departure from the standard non-parole period, maintaining the aggregate two-and-a-half-year term while correcting its structural expression.
  • A sufficient explanation for delay in filing a sentence appeal, provided by unchallenged affidavit, can support the granting of an extension of time even where the delay is substantial.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 156
- Periodic Detention of Prisoners Act 1981 (NSW) (as amended by the Periodic Detention of Prisoners Amendment Act 1998, No 43, with effect from 1 February 1999)

Cases:
- Reg v Wegener [1999] NSWCCA 405