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Court of Criminal Appeal 21 November 2012

Cross v R (No. 2)

[2012] NSWCCA 234

Public order & justice offences
CRIMINAL LAW SENTENCING PAROLE ORDERS

Citation: Cross v R (No. 2) [2012] NSWCCA 234
Court: Court of Criminal Appeal, New South Wales
Date: 21 November 2012
Judge(s): Allsop P, Hidden and Davies JJ

Background

This decision followed an earlier judgment in the same matter, Cross v R [2012] NSWCCA 114, delivered on 10 September 2012, in which the Court of Criminal Appeal re-sentenced the applicant across three counts carrying partly cumulative terms of imprisonment. At the conclusion of that hearing, the court left open one question that the parties had not addressed: whether a parole order was required under s 50 of the Crimes (Sentencing Procedure) Act 1999 in respect of the first count.

The applicant was serving multiple sentences, some of which ran concurrently and some cumulatively. The non-parole period for Count 1 had already expired by the time the Court came to consider the parole order question. Two further terms of imprisonment remained to be served after that expiry date.

The parties filed additional submissions specifically on the s 50 question, and this supplementary judgment resolved the outstanding issue and finalised the sentencing orders.

  • Whether s 50 of the Crimes (Sentencing Procedure) Act 1999 mandated the making of a parole order in respect of Count 1, even where two further terms of imprisonment remained to be served after the non-parole period for that count had expired.
  • Whether s 50 applies to each individual sentence imposed, or to the total aggregate sentence.
  • Whether the word "may" in s 50(2) confers a discretion on the sentencing court, or operates as a facultative provision.
  • Whether making a parole order in respect of Count 1 would serve any purpose, given that its non-parole period had already passed before re-sentencing.

Decision

The Court identified significant interpretive difficulties with s 50, noting that the purpose of the section is obscure. The more pressing ambiguity concerned whether the section operates sentence by sentence or across the total sentence. The Court concluded that s 50 is directed at each individual sentence imposed, a reading supported in part by s 50(2), though the Court acknowledged that subsection could also be read as addressing the situation where an offender is already serving a prior sentence when a new one is imposed.

Both parties submitted that the word "may" in s 50(2) gave the sentencing court a discretion to withhold a parole order. The Court rejected that reading. In its view, "may" in that context is facultative, meaning it enables a court to make an otherwise-valid parole order despite apparent ineligibility, rather than conferring a discretion to decline to make one altogether.

On the question of strict compliance, the Court indicated that a court is likely obliged to make a parole order even where it cannot immediately take effect, for example to preserve the operation of that order if a later sentence is set aside on appeal. However, in this case the non-parole period for Count 1 had expired before re-sentencing, making any parole order for that count entirely futile.

For that reason, the Court declined to make a parole order in respect of Count 1. A parole order was made in respect of Count 3, to which additional conditions were attached on the basis of the nature of the offences.

Orders Made

  • Count 1 (including a Form 1 matter): non-parole period of 18 months commencing 9 March 2010, expiring 8 September 2011, with a balance of term of 6 months. No parole order made.
  • Count 2 (including a Form 16BA matter): fixed term of 15 months commencing 9 June 2011, expiring 8 September 2012.
  • Count 3: non-parole period of 3 months commencing 9 September 2012, expiring 8 December 2012, with a balance of term of 2 years and 9 months expiring 8 September 2015.
  • The applicant directed to be released to parole on 8 December 2012, subject to the following additional conditions: (i) report to the Sydney office of the Probation and Parole Service within seven days of release; and (ii) accept and comply with all reasonable directions for treatment and counselling.

Key Takeaways

  • Section 50 of the Crimes (Sentencing Procedure) Act 1999 applies to each individual sentence imposed, rather than to the aggregate or total sentence across all counts.
  • The word "may" in s 50(2) operates as a facultative provision, enabling a court to make a parole order even where the offender may not be immediately eligible for release. It does not confer a general discretion to refuse making one.
  • Strict compliance with s 50 will ordinarily require a court to make a parole order even where a later concurrent or cumulative sentence would prevent immediate release, given the possibility that the other sentence might later be set aside on appeal.
  • Where the non-parole period for a count has already expired by the time the sentencing court acts, making a parole order in respect of that count would be futile, and the Court of Criminal Appeal held that no such order should be made in those circumstances.
  • Additional parole conditions beyond those automatically imposed under s 128 of the Crimes (Administration of Sentences) Act 1999 may be attached where the nature of the offences warrants them.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 50
- Crimes (Administration of Sentences) Act 1999 (NSW), s 128

Cases:
- Cross v R [2012] NSWCCA 114 (the earlier judgment in the same matter)