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District Court 7 March 2013

R v Philip LOUTAN

[2013] NSWDC 101

Drugs
CRIMINAL LAW SENTENCE PROCEDURE SENTENCE PROCEEDINGS RE FIXED NON LOW NON NO POWER TO FIX NON

Citation: R v Philip Loutan [2013] NSWDC 101
Court: District Court of New South Wales
Date: 7 March 2013
Judge: Cogswell SC DCJ

Background

The offender was sentenced on 30 November 2012 for two drug supply offences: supplying 113 ecstasy tablets and supplying 5 grams of cocaine. The sentencing judge imposed an aggregate term of 4 years and 9 months imprisonment, but deliberately fixed an exceptionally low non-parole period that reflected approximately five months already spent in custody. The judge's clearly stated intention, repeated throughout earlier proceedings, was that the offender be released immediately on parole.

After sentencing, Corrective Services identified a critical error: under the Crimes (Sentencing Procedure) Act 1999, a court has no power to fix a non-parole period for a sentence exceeding three years. That power belongs to the Parole Authority, which exercises its own independent discretion. The result was that the offender had been released when, in law, he should have remained in custody, and the court's expressed intention had been entirely frustrated.

The offender's legal representative applied to re-open the sentence proceedings. The Crown did not oppose the application, acknowledging both the clarity of the original intention and the exceptional rehabilitation the offender had demonstrated.

  • Whether the District Court had power under s 43 of the Crimes (Sentencing Procedure) Act 1999 to re-open sentence proceedings where the judge had no power to fix a non-parole period for a sentence exceeding three years.
  • Whether reducing the aggregate sentence from 4 years to 3 years, to restore the sentencing judge's original intention, was an appropriate exercise of that power.
  • Whether an order for immediate release on parole could then be made under s 50 of the same Act.

Decision

The court accepted that s 43 of the Crimes (Sentencing Procedure) Act 1999 is a remedial provision to be construed broadly. Although there was an argument that no strict legal error had been made in imposing the sentence itself, the judge was satisfied that the original sentencing intention had been clearly frustrated. Authorities establish that a court may re-sentence entirely to produce the result the sentencing judge originally intended, and the court found this was such a case.

The judge acknowledged some artificiality in reassessing sentences originally assessed at 4 years and reducing them to 3 years. He identified two reasons justifying that course. First, the original sentence frustrated his plainly stated intention to release the offender immediately. Second, the offender had conducted himself throughout a lengthy adjournment process on the express understanding that he would not return to custody, and sending him back to prison in those circumstances would constitute a serious injustice.

The court accordingly re-assessed the appropriate sentences for both offences at 3 years each and imposed an aggregate sentence of 3 years under s 53A of the Act. Because the aggregate term was now within the 3-year threshold, the court had power to fix the non-parole period, which remained at 5 months and 7 days and had already expired. The court then made an order for the offender's immediate release on parole under s 50 of the Act.

Orders Made

  • Sentence proceedings formally re-opened under s 43 of the Crimes (Sentencing Procedure) Act 1999.
  • Aggregate sentence of imprisonment imposed under s 53A: 3 years, commencing 10 December 2011 and expiring 9 December 2014.
  • Non-parole period fixed at 5 months and 7 days, commencing 10 December 2011 and expiring 16 May 2012 (already expired).
  • Order made under s 50 directing the offender's immediate release on parole, subject to conditions including good behaviour, keeping the Parole Authority informed of residential address, attending court if notified, and complying with the directions of NSW Probation and Parole Service (including drug treatment supervision and random urinalysis).
  • Offender directed to present to the Probation and Parole Service office at Dee Why on or before 15 March 2013.
  • All other orders made on 30 November 2012 otherwise confirmed.

Key Takeaways

  • Under the Crimes (Sentencing Procedure) Act 1999, a sentencing court has no power to fix a non-parole period for an aggregate sentence exceeding three years; that function belongs exclusively to the Parole Authority.
  • Section 43 of the Crimes (Sentencing Procedure) Act 1999 is a remedial provision to be construed broadly, permitting a court to re-open sentence proceedings and re-sentence entirely where the original sentencing intention was frustrated by an error in the sentence imposed.
  • The District Court held that an offender's reasonable expectation of immediate release, formed on the basis of clear and repeated judicial statements throughout proceedings, is a relevant consideration weighing against sending that offender back to custody when correcting a sentencing error.
  • Where an aggregate sentence is reduced on re-opening so that it falls within the three-year threshold, the sentencing court regains the power to fix a non-parole period and, where that period has already expired, may order immediate release on parole under s 50 of the Act.
  • The decision illustrates that both the prosecution and defence can reach a pragmatic position on re-sentencing where the sentencing intention was unambiguous and the circumstances of the offender are genuinely exceptional.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 43, 50, 53A

Cases cited: None specifically identified in the judgment text or metadata.