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Court of Criminal Appeal 5 June 2015

Cowan v R (No 2)

[2015] NSWCCA 134

Other
CRIMINAL LAW SENTENCE WHERE NO PAROLE ORDER WAS MADE ORDER MADE

Citation: Cowan v R (No 2) [2015] NSWCCA 134
Court: Court of Criminal Appeal
Date: 5 June 2015
Judge(s): Bathurst CJ, Simpson J, Bellew J

Background

In the original proceedings, reported as Cowan v R [2015] NSWCCA 118, the Court of Criminal Appeal resentenced the applicant to a total term of three years imprisonment. That sentence comprised a non-parole period of one year and ten months, expiring on 2 July 2015, and a balance of term of one year and two months, expiring on 2 September 2016.

After that judgment was delivered on 29 May 2015, it came to the Court's attention that no parole order had been made at the time of sentencing. The applicant's solicitor raised the omission and sought the making of such an order. The Crown did not oppose the application.

  • Whether the Court was required to make a parole order under s 50(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) where it had imposed a sentence of three years or less that included a non-parole period.
  • Whether the earlier omission of a parole order could and should be remedied by a further order of the Court.

Decision

Section 50(1) of the Crimes (Sentencing Procedure) Act 1999 imposes a mandatory obligation on a court: where it imposes a sentence of imprisonment for three years or less that includes a non-parole period, it must direct the offender's release on parole at the end of that non-parole period. There is no discretion in this respect.

The Court noted that s 50(3) provides that a failure to comply with this requirement does not invalidate the underlying sentence. Accordingly, the original sentence remained valid notwithstanding the omission, but the parole order still needed to be made.

With the application unopposed and the statutory obligation clear, the Court made the required order directing the applicant's release at the expiry of his non-parole period on 2 July 2015.

Orders Made

  • Pursuant to s 50(1) of the Crimes (Sentencing Procedure) Act 1999, the Court directed the release of the applicant on parole at the expiration of his non-parole period on 2 July 2015.

Key Takeaways

  • Under s 50(1) of the Crimes (Sentencing Procedure) Act 1999, a court imposing a sentence of three years or less that includes a non-parole period is obliged to make a parole order directing release at the end of that period.
  • Failure to make the required parole order does not invalidate the sentence itself, by operation of s 50(3), but the omission must still be corrected by a subsequent order.
  • The Court of Criminal Appeal remedied the oversight by making the parole order in a short supplementary judgment, with both parties in agreement.
  • A parole order under s 50 may be made even where it appears the offender may not be immediately eligible for release due to another concurrent sentence.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 50(1), 50(2), 50(3)

Cases:
- Cowan v R [2015] NSWCCA 118 (the primary sentencing appeal)