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Court of Criminal Appeal 16 August 2005

Regina v Joseph Brian Dickinson

[2005] NSWCCA 284

Assault & violence
CRIMINAL LAW SENTENCING PAROLE PERIOD

Citation: Regina v Joseph Brian Dickinson [2005] NSWCCA 284
Court: NSW Court of Criminal Appeal
Date: 16 August 2005
Judge(s): Wood CJ at CL, Simpson J, Barr J

Background

The offender pleaded guilty in the District Court to malicious wounding with intent to cause grievous bodily harm. He was originally sentenced to two years' imprisonment with a twelve-month non-parole period, wholly suspended on a good behaviour bond. The Crown successfully appealed that sentence to the Court of Criminal Appeal.

On the Crown appeal, the Court of Criminal Appeal substituted a sentence of two years and two months' imprisonment, ordered to be served by way of periodic detention. In doing so, the Court declined to set a non-parole period. Barr J, giving the first judgment, explained this by noting that "the conditions of supervision that will apply will not require the imposition of a parole period."

The offender then brought an application under s 43 of the Crimes (Sentencing Procedure) Act 1999 to correct what he said was a sentencing error. He argued that the Court had unlawfully declined to set a non-parole period by impermissibly having regard to the manner in which the sentence was to be served.

  • Whether the sentence was contrary to law because the Court failed to comply with s 45(2) of the Crimes (Sentencing Procedure) Act 1999 (which requires reasons to be recorded when declining to set a non-parole period)
  • Whether the reasons actually given disclosed legal error, specifically by taking into account the manner in which the sentence was to be served (periodic detention) when deciding not to fix a non-parole period
  • Whether, as a matter of principle, a sentencing court may have regard to the supervisory conditions flowing from a sentence when deciding whether to set a non-parole period

Decision

The Court rejected the argument that the sentence was contrary to law. On the first submission, the Court noted that whether the recorded reasons complied with s 45(2) depended on whether those reasons themselves disclosed error. It therefore moved directly to examining the substance of the reasons.

On the central question, the applicant relied on the principle from Zamagias v The Queen that the term of a sentence must be determined without regard to the manner in which it will be served. The Court distinguished that principle, holding it applies to the determination of the length of a custodial sentence, not to the separate question of whether a non-parole period should be set. The term of two years and two months had been fixed before any decision was made about periodic detention, and the sentence length was not adjusted because of the periodic detention order.

The Court held that knowledge of the supervisory conditions likely to flow from a sentence is not only permissible but essential to making an informed decision about whether parole is needed and when it should commence. To disregard such matters would be contrary to common sense and sound sentencing practice.

The Court concluded that the reasons given by Barr J were sufficient to comply with s 45(2), and that the sentence was not contrary to law. The application was dismissed.

Orders Made

  • Application dismissed.

Key Takeaways

  • A sentencing court is permitted to have regard to the supervisory conditions that will flow from a sentence when deciding whether to set a non-parole period under s 45 of the Crimes (Sentencing Procedure) Act 1999.
  • The principle from Zamagias v The Queen that a sentence term must be determined without reference to the manner of its service applies only to fixing the length of the sentence, not to the subsequent decision about whether a non-parole period is appropriate.
  • Where a sentence of imprisonment is ordered to be served as periodic detention, the existing supervisory conditions of that regime are a legitimate consideration in deciding whether a parole period adds anything of substance.
  • Sufficient reasons under s 45(2) need not be elaborate; a brief explanation that existing supervisory conditions make a parole period unnecessary can meet the statutory requirement.
  • No error was established in the substituted sentence, and the Court of Criminal Appeal declined to reopen the proceedings under s 43.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 12, 43, 44, 45, 101A

Cases:
- Zamagias v The Queen [2002] NSWCCA 17
- R v Walsh and Sharp [2004] NSWSC 111
- R v Hampton (1998) 44 NSWLR 729
- R v Simpson (2001) 53 NSWLR 704
- R v Foster [2001] NSWCCA 215
- R v Blackman and Walters [2001] NSWCCA 121
- R v Wegener (not separately cited in text)
- R v Ngo (not separately cited in text)