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Court of Criminal Appeal 23 April 2008

Wright v R

[2008] NSWCCA 91

Theft & property
CRIMINAL LAW SENTENCING FAILURE TO SET NON PAROLE PERIOD

Citation: Wright v R [2008] NSWCCA 91
Court: NSW Court of Criminal Appeal
Date: 23 April 2008
Judge(s): Basten JA, Barr J, Buddin J

Background

The appellant had been sentenced in 1993 by the District Court to imprisonment for two years and 32 weeks, to be served by way of periodic detention, following his guilty plea to armed robbery. He failed to complete the periodic detention order, and in early 1994 the Department of Corrective Services applied for cancellation of that order.

The sentencing judge cancelled the periodic detention order and directed that the remaining 127 weeks be served as full-time custody. Critically, the judge did not set a non-parole period, and the applicant was not present during those proceedings. The court issued a warrant for his arrest, but the applicant was not apprehended until 2 February 2007, over 13 years later.

By the time of this appeal, the applicant was 47 years old and had been in custody since his arrest in 2007. He sought leave to appeal out of time, arguing that the sentencing judge had erred by failing to set a non-parole period when dealing with the balance of the sentence in his absence.

  • Whether the Court of Criminal Appeal had jurisdiction to hear the appeal against the cancellation of the periodic detention order and the consequent sentence
  • Whether the sentencing judge erred in failing to set a non-parole period when the applicant was not present at the cancellation proceedings
  • What non-parole period, if any, was appropriate given the circumstances of the applicant's life between 1994 and 2007

Decision

The Court confirmed, consistent with its earlier decision in R v Sayin, that an appeal does not lie to the Court of Criminal Appeal against the cancellation order itself. However, the Court's appellate jurisdiction extended to the question of whether a non-parole period should have been set in respect of the resulting sentence, and what its length should be.

Buddin J, with whom Basten JA and Barr J agreed, found that the sentencing judge had erred in two respects: proceeding in the applicant's absence and failing to set a non-parole period. These errors mirrored those identified in Sayin, and the Crown effectively conceded that the circumstances were almost identical to that case.

In fixing the non-parole period, the Court considered the applicant's significant personal history since 1994. The applicant had cared for a dying sibling and then his seriously ill mother until her death in 2004, had engaged in ongoing psychiatric treatment, had not re-offended, and had conducted himself productively since returning to custody. The Court found special circumstances existed, noting that an extended parole period was warranted to allow continued community-based mental health support.

An 18-month non-parole period was set, commencing from the date of the applicant's arrest in February 2007.

Orders Made

  • Leave granted for an extension of time to bring the application
  • Leave to appeal granted
  • Appeal allowed in part
  • Non-parole period of 18 months set, commencing 2 February 2007 and expiring 1 August 2008, with release on parole on that date
  • Head sentence of 127 weeks confirmed, expiring 9 July 2009

Key Takeaways

  • The Court of Criminal Appeal confirmed that it has no jurisdiction to hear an appeal against a District Court order cancelling a periodic detention order, but retains limited jurisdiction to consider whether a non-parole period should have been set and its appropriate length.
  • Where a judge cancels a periodic detention order and the offender is not present, the appropriate course is to issue a warrant for arrest and bring the offender before the court before dealing with the question of a non-parole period.
  • Proceeding with cancellation proceedings in the offender's absence, without setting a non-parole period, constitutes appellable error.
  • Special circumstances justifying a longer-than-standard parole period can be established where ongoing mental health treatment in the community is a significant consideration.
  • Staleness of the original offence and evidence of rehabilitation during a lengthy intervening period are relevant to the fixing of a non-parole period, even where that delay is largely attributable to the offender's own non-attendance.

Legislation and Cases Referenced

Cases:
- R v Sayin [2003] NSWCCA 384
- Wilson v Department of Corrective Services (1997) 93 A Crim R 301
- Sommerville (1995) 36 NSW LR 184

Legislation: Not specified in the judgment; references were made to s 27(1)(c) of the relevant Act (identified in cited cases as the legislation governing periodic detention and its cancellation).