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Court of Criminal Appeal 5 April 2013

Boyd v R (No 2)

[2013] NSWCCA 67

Drugs
CRIMINAL LAW SENTENCE APPEAL ALLOWED

Citation: Boyd v R (No 2) [2013] NSWCCA 67
Court: Court of Criminal Appeal, New South Wales
Date: 5 April 2013
Judge(s): McClellan CJ at CL, Bellew J, Button J

Background

This decision arose from consequential orders following an earlier sentence appeal. In the primary appeal, decided on 7 March 2013, the Court of Criminal Appeal dismissed the conviction appeal but varied the commencement date of the appellant's principal sentence. That sentence was 7 years and 6 months imprisonment with a non-parole period of 4 years, imposed for supplying a commercial quantity of a prohibited drug.

Separately, the appellant had been sentenced in the Local Court at Penrith on 8 June 2012 to a fixed 2-month term for possessing a mobile phone while an inmate. That shorter sentence was expressed to begin at the end of the non-parole period of the drug sentence, and had been given a commencement date of 29 May 2015. An appeal against that Local Court sentence to the District Court was dismissed.

When the Court of Criminal Appeal varied the commencement date of the drug sentence in the earlier proceedings, the non-parole period of that sentence was shifted forward, now expiring on 13 January 2015. This created a gap in the appellant's custody: the 2-month sentence would not begin until 29 May 2015, leaving a period in which the appellant would be neither serving the drug sentence nor the phone possession sentence.

  • Whether the Court of Criminal Appeal had power under s 59 of the Crimes (Sentencing Procedure) Act 1999 to vary the commencement date of a separate, unrelated sentence imposed by a different court.
  • Whether the commencement date of the 2-month fixed term should be adjusted to eliminate the gap in custody created by the variation to the drug sentence.

Decision

Button J (with whom McClellan CJ at CL and Bellew J agreed) identified that varying the commencement date of the principal sentence had produced a lacuna in the appellant's custody. Unless corrected, the appellant would serve neither sentence during the period between 13 January 2015 (when the non-parole period of the drug sentence would expire) and 29 May 2015 (when the 2-month sentence was expressed to begin).

Section 59(1) of the Crimes (Sentencing Procedure) Act 1999 empowers a court that quashes or varies a sentence to vary the commencement date of any other sentence imposed on the same person, whether by that court or another. The Court noted that this power operates as a purely mechanical correction and does not allow variation of the actual term or non-parole period of any sentence.

Both the appellant's solicitor and the Crown agreed that the adjustment was appropriate and consented to the precise terms of the order. The Court exercised its power under s 59(1) to bring the commencement date of the 2-month sentence forward so that it followed immediately from the expiry of the non-parole period of the drug sentence.

Orders Made

  • Pursuant to s 59 of the Crimes (Sentencing Procedure) Act 1999, the commencement date of the fixed term of imprisonment for 2 months imposed on the appellant on 8 June 2012 was varied from 29 May 2015 to 14 January 2015.

Key Takeaways

  • Section 59(1) of the Crimes (Sentencing Procedure) Act 1999 gives an appellate court express power to vary the commencement date of any other sentence imposed on an offender, including sentences imposed by a different court, where the court has quashed or varied a sentence on appeal.
  • The power under s 59 is strictly limited: it permits adjustment of commencement dates only. The term of a sentence or its non-parole period cannot be altered through this mechanism.
  • Where an appellate court varies the commencement date of a principal sentence, a consequential gap in an offender's custody may arise if subsequent sentences were anchored to the original dates. Section 59 provides the tool to close that gap.
  • In this decision, the correction was described as "wholly mechanistic," reflecting that the adjustment simply restored the sequential relationship between the two sentences that the parties had always intended.
  • No appeal lies merely because a commencement date is varied under s 59, as the section itself confirms at subsection (4).

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 59

Cases:
- No cases were cited in this decision.