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Court of Criminal Appeal 11 March 2009

Xenos v R

[2009] NSWCCA 64

Sexual offencesDrugs
CRIMINAL LAW SENTENCING

Citation: Xenos v R [2009] NSWCCA 64
Court: NSW Court of Criminal Appeal
Date: 11 March 2009
Judge(s): Grove J, Price J, Blanch J

Background

The applicant pleaded guilty in 1993 to causing an overpowering drug to be taken with intent to commit an indictable offence (specifically, sexual intercourse without consent) under the Crimes Act 1900. The sentencing judge imposed 12 months imprisonment to be served by way of periodic detention, commencing June 1993. After approximately three months, the applicant stopped complying with the periodic detention order and left Australia to live in Greece.

In February 1994, following an application by the Commissioner of Corrective Services, a District Court judge cancelled the periodic detention order in the applicant's absence. The judge issued a warrant for the applicant's arrest and calculated the outstanding balance of the sentence, including penalty periods, at 45 weeks. No minimum term or additional term (the equivalent of a parole structure under the then-applicable Sentencing Act 1989) was set at that time.

The applicant returned to Australia in 2006. Acting on legal advice, and after searches revealed no outstanding warrants on his criminal history, he believed the matter had resolved. He was arrested in September 2008 when attending a police station on an unrelated matter. He then brought this application for leave to appeal against the sentence that resulted from the 1994 cancellation.

  • Whether the District Court judge erred by proceeding to cancel the periodic detention order and impose a sentence in the applicant's absence, without setting a minimum and additional term.
  • Whether that error constituted a miscarriage of justice warranting the intervention of the Court of Criminal Appeal.
  • Whether, on re-sentencing, a non-parole period should be set and whether special circumstances existed to justify departing from the standard statutory ratio between the non-parole period and the balance of term.

Decision

The Court of Criminal Appeal held that the judge had erred by proceeding in the applicant's absence without setting a minimum and additional term, and that a miscarriage of justice had occurred as a result. The Court noted that the preferred course, identified in earlier authority, was for a judge faced with an absent detainee to adjourn the hearing, order the arrest of the detainee, and then hear the matter once the detainee was before the court. That course was not followed here.

Although there is no right of appeal directly against the cancellation of a periodic detention order, the Court confirmed its power to consider whether a non-parole period should be set in respect of the sentence that flows from such a cancellation. The court re-sentenced the applicant under the Crimes (Sentencing Procedure) Act 1999.

On the question of re-sentencing, the Court acknowledged that the original periodic detention order appeared lenient given the objective seriousness of the offending, and that the Crown had not appealed that sentence for manifest inadequacy at the time. The Court took into account the applicant's plea of guilty at the first opportunity, his subjective circumstances (including marriage, a young child, stable employment, and no further offending in the intervening 15 years), and his good prospects of rehabilitation. The Court declined to find special circumstances to adjust the statutory ratio, noting the sentence was short and that reducing the non-parole period further would not appropriately reflect the seriousness of the offence.

Orders Made

  • Leave granted for an extension of time to bring the application.
  • Leave to appeal granted.
  • Appeal allowed.
  • Head sentence of 45 weeks confirmed.
  • Non-parole period of 7 months and 24 days set, commencing 4 September 2008 and expiring 27 April 2009, with a balance of term of 2 months and 18 days commencing 28 April 2009 and expiring 15 July 2009.
  • Applicant to be released to parole on 27 April 2009.

Key Takeaways

  • Cancelling a periodic detention order in the offender's absence, without setting a minimum and additional term, can constitute a miscarriage of justice sufficient to warrant intervention by the Court of Criminal Appeal.
  • The preferred procedural course when a detainee is absent at a cancellation hearing is to adjourn, order the detainee's arrest, and conduct the hearing once the detainee is before the court, so that submissions on minimum and additional terms can be heard.
  • Under s 27(4) of the Periodic Detention of Prisoners Act 1981, the sentencing court had a discretion to direct that the unexpired portion of the sentence be structured as a minimum term and additional term; failing to exercise that discretion without explanation in circumstances where the offender was absent contributed to the error found here.
  • The Court of Criminal Appeal confirmed its jurisdiction to consider whether a non-parole period should be set, and its length, in respect of a sentence imposed following cancellation of a periodic detention order, drawing on R v Wilson, R v Sajin, and O'Meara v R.
  • Positive subjective factors, including lengthy crime-free conduct, stable employment, and family circumstances, are relevant to re-sentencing following cancellation, but do not automatically reduce the time to be served where the original sentence was already lenient relative to the objective gravity of the offending.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 38
- Periodic Detention of Prisoners Act 1981 (NSW), ss 25, 27(1)(c), 27(4)
- Sentencing Act 1989 (NSW), ss 5(2), 24
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Procedure Act 1986 (NSW), ss 21, 27(4)

Cases:
- R v Wilson (1997) 93 A Crim R 301
- R v Sajin [2003] NSWCCA 384
- O'Meara v R [2008] NSWCCA 154