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2
Court of Criminal Appeal 2 March 2011

Allan v R (No 2)

[2011] NSWCCA 27

Assault & violenceTheft & property
CRIMINAL LAW APPEAL SENTENCING

Citation: Allan v R (No 2) [2011] NSWCCA 27
Court: Court of Criminal Appeal
Date: 2 March 2011
Judge(s): Simpson J, Hoeben J, Price J (all agreeing)

Background

The applicant had been sentenced by a District Court judge in May 2009 for break, enter and steal (the first sentence). He later received two further sentences in September 2009 from a different District Court judge for assault occasioning actual bodily harm and a second break, enter and steal offence (the second sentences). The second sentences were structured to run partly concurrently with and partly consecutively upon the first, with the sentencing judge expressly considering totality.

On appeal in 2010, the Court of Criminal Appeal quashed the first sentence and reduced it, bringing the applicant's earliest parole eligibility date forward by six months. Because the second sentences had been set by reference to the original dates of the first sentence, however, that reduction produced no practical benefit for the applicant.

The applicant applied under s 59 of the Crimes (Sentencing Procedure) Act 1999 to have the commencement dates of the second sentences varied by six months to reflect the reduction already made to the first sentence.

  • Whether s 59 of the Crimes (Sentencing Procedure) Act 1999 is limited in its operation to situations where the quashing or variation of a sentence would otherwise leave a gap (a "hiatus") before the next sentence begins.
  • Whether the Court had power to vary the commencement dates of the second sentences in circumstances where there was no such hiatus period.
  • Whether the Court should exercise its discretion to vary those dates in the particular circumstances of this case.

Decision

The Crown argued that s 59 was designed only to address hiatus situations, where quashing an earlier sentence would leave a subsequent sentence stranded with no sentence preceding it. Because the varied first sentence ended precisely when the second sentences began, the Crown contended no hiatus existed and s 59 did not apply. Price J rejected this argument.

Price J traced the legislative history of s 59. Before 2003, the provision referred to "any consecutive sentence." Following the difficulty identified in Regina v Shane Patrick Donohue (no 2) [2001] NSWCCA 495, the legislature replaced "consecutive" with "other," broadening the power to cover all other sentences regardless of how they were structured relative to the sentence being quashed or varied. The amended text contains no requirement that the subsequent sentence must begin on a future date, and the Court declined to read in such a constraint.

Price J also observed that s 59 is facultative: the power to vary exists, but its exercise remains discretionary. However, because the second sentencing judge had explicitly structured the second sentences by reference to the first sentence and applied totality principles to achieve a specific degree of partial accumulation, the Court concluded it was appropriate to bring the second sentences forward by six months to preserve that carefully calibrated relationship.

Orders Made

  • The commencement dates of the sentences imposed by Flannery DCJ on 1 September 2009 were varied under s 59 of the Crimes (Sentencing Procedure) Act 1999 as follows:
  • Break, enter and steal: 3 years imprisonment, non-parole period of 2 years commencing 2 January 2010 and expiring 1 January 2012, balance of term of 1 year expiring 1 January 2013.
  • Assault occasioning actual bodily harm: fixed term of 12 months commencing 2 January 2010 and expiring 1 January 2011.
  • As a consequence, the direction that the applicant be released to parole was brought forward from 1 July 2012 to 1 January 2012.

Key Takeaways

  • Section 59 of the Crimes (Sentencing Procedure) Act 1999, as amended in 2003, empowers a court to vary the commencement date of "any other sentence" following the quashing or variation of an earlier sentence. The provision is not confined to situations where a hiatus would otherwise arise.
  • The 2003 amendment, which replaced "consecutive sentence" with "other sentence," deliberately broadened the section's reach beyond purely consecutive arrangements. Courts may not read the old limitation back in by implication.
  • Extrinsic material such as Second Reading Speeches is rarely, if ever, useful in resolving questions of statutory interpretation under the Interpretation Act 1987, particularly where the statutory text is plain on its face. The Court applied observations from Harrison v Melhem (2008) 72 NSWLR 380 on this point.
  • The power under s 59 is discretionary. Where a subsequent sentencing judge has expressly structured sentences by reference to an earlier sentence and applied totality principles, varying the commencement dates to preserve that structure is a legitimate exercise of the discretion.
  • Under s 59(5), neither the term of a sentence nor its non-parole period may be varied. Only commencement dates fall within the section's reach.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 59
- Crimes Act 1900 (NSW), s 112(1)
- Crimes Legislation Amendment Act 2003 (NSW)
- Interpretation Act 1987 (NSW), s 34(1)

Cases
- Allan v Regina [2010] NSWCCA 213
- Regina v Shane Patrick Donohue (no 2) [2001] NSWCCA 495
- AJO v Regina [2008] NSWCCA 28
- Harrison v Melhem [2008] NSWCA 67; (2008) 72 NSWLR 380
- Regina v Pham [2004] NSWCCA 263
- Regina v Walsh [2004] NSWCCA 428