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Court of Criminal Appeal 14 July 2008

O'MEARA v R

[2008] NSWCCA 154

Drugs
CRIMINAL LAW SENTENCING

Citation: O'Meara v R [2008] NSWCCA 154
Court: NSW Court of Criminal Appeal
Date: 14 July 2008
Judge(s): Allsop P, James J, Price J

Background

The appellant was convicted of two charges of supplying a prohibited drug, arising from a police search of Sydney premises in February 1995 that uncovered cannabis, methylamphetamine, cannabis plants, and drug supply paraphernalia. In December 1995, District Court Judge Johnston sentenced him to three years' imprisonment on each supply charge, to be served by way of periodic detention. He also received a concurrent one-year periodic detention order for cultivating prohibited plants.

The appellant completed 29 periods of periodic detention before absconding from Sydney in 1996. In April 1997, Judge Johnston cancelled the periodic detention orders in his absence, issuing a warrant for full-time imprisonment to serve the unexpired balance of approximately two years and seven months. The appellant was not apprehended until September 2007, when he voluntarily disclosed his situation to Queensland police in Mt Isa and was arrested. He remained in custody continuously from that date.

The core complaint on appeal was that Judge Johnston had imposed longer sentences than he otherwise would have, precisely because he was making periodic detention orders rather than full-time imprisonment orders. This was identified as a sentencing error of principle. The application for leave to appeal was filed more than 12 years out of time, requiring the Court to also grant a time extension.

  • Whether Judge Johnston erred in principle by imposing longer sentences on the basis that they were to be served by periodic detention rather than full-time custody.
  • Whether the Court of Criminal Appeal should grant an extension of time and leave to appeal, given the extraordinary delay since the original sentencing in 1995.
  • What sentences were appropriate upon resentencing, accounting for time already served in both periodic detention and full-time custody.
  • Whether periodic detention periods served should be treated as equivalent to the same number of weeks of full-time custody for the purpose of calculating credit.

Decision

The Court accepted that Judge Johnston had committed an error of principle by imposing sentences that were longer than they would otherwise have been because the orders were framed as periodic detention. This approach has been consistently disapproved in cases such as R v Sommerville and R v Douar: a sentencing court must first determine the appropriate full-time sentence and then, if suitable, direct that it be served by periodic detention. It is not permissible to extend the sentence length on the basis that periodic detention is a less onerous form of custody.

The Court granted the extension of time, noting the unusual circumstances. The appellant had been a fugitive for over a decade before voluntarily disclosing his status to police and was not arrested until 2007. Once in custody, he moved promptly to challenge the original sentences through the Legal Aid Commission.

On resentencing, James J (with whom Allsop P and Price J agreed) assessed head sentences of 20 months on each supply charge, to be served concurrently. The Court backdated the commencement of the sentences to 1 July 2007 to give credit for time already served, though it declined to treat each period of periodic detention as equivalent to a full week of full-time imprisonment. No special circumstances were found warranting an adjustment to the standard non-parole period ratio, given the sentences were short and had little time left to run.

Orders Made

  • Time for applying for leave to appeal extended to the date of filing the applications.
  • Leave to appeal granted.
  • Appeal allowed.
  • Sentences imposed by Judge Johnston on 15 December 1995 quashed.
  • In substitution, the appellant sentenced on each of the two supply charges to a non-parole period of 15 months commencing 1 July 2007 and expiring 30 September 2008, with a balance of term of five months.
  • Appellant ordered to be released on parole on 30 September 2008.

Key Takeaways

  • Under established NSW sentencing principles, a court must fix the appropriate full-time custodial sentence first, and only then consider whether to direct periodic detention. Imposing a longer sentence because it will be served by periodic detention constitutes an error of principle.
  • The Court of Criminal Appeal confirmed that an extension of time of more than 12 years could be granted in exceptional circumstances, particularly where the applicant was a fugitive for much of that period and acted promptly upon arrest.
  • Periodic detention periods already served do not automatically translate into an equivalent number of weeks of full-time custody for credit purposes. The Court declined to apply a precise mathematical equivalence, instead backdating the new sentence to a date that reflected time served overall.
  • In resentencing, no special circumstances were found to justify a departure from the standard non-parole period ratio where the remaining sentences were short and nearing their end.
  • The absence of the offender at the time of the original cancellation of periodic detention orders did not prevent the Court of Criminal Appeal from subsequently reconsidering the lawfulness of the underlying sentences.

Legislation and Cases Referenced

Legislation
- Periodic Detention of Prisoners Act 1981 (NSW), including ss 25 and 27
- Periodic Detention of Prisoners Amendment Act 1998 (NSW) (No 43 of 1998)
- Crimes (Sentencing Procedure) Act (NSW)
- Sentencing Act 1989 (NSW)

Cases
- R v Sommerville (1995) 36 NSWLR 184
- R v Douar (2005) 159 A Crim R 154
- R v Wilson (1997) 93 A Crim R 301
- R v Mikas (1996) 85 A Crim R 34
- R v Wegener [1999] NSWCCA 405