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District Court 28 April 2017

Riad Taha v R.

[2017] NSWDC 180

Public order & justice offences
LIMITS ON START DATE OF SENTENCE CURRENT STATE OF LAW UNSATISFACTORY

Citation: Riad Taha v R [2017] NSWDC 180
Court: District Court of New South Wales
Date: 28 April 2017
Judge(s): Colefax SC DCJ

Background

The appellant was an inmate at Cessnock Correctional Centre serving an eight-year aggregate sentence for drug supply and related offences, with a non-parole period expiring on 10 January 2020. During a routine search on 13 January 2017, officers found him in possession of a mobile phone, battery, SIM card, and charger cord. These items are prohibited inside correctional facilities.

The appellant was convicted in the Local Court on 20 March 2017 for contravening s 27DA(1) of the Summary Offences Act, which carries a maximum penalty of two years' imprisonment. The Magistrate imposed a three-month fixed term commencing 10 January 2020, the date the appellant's existing non-parole period was due to expire.

On appeal, the Crown conceded that the Local Court had no power to impose a start date of 10 January 2020. The District Court was required to determine what start date was lawfully available, and in doing so, Colefax SC DCJ identified a significant legislative gap affecting the sentencing of inmates already serving lengthy terms.

  • Whether the Local Court had power under s 58 of the Crimes (Sentencing Procedure) Act to fix a sentence start date at the expiration of an existing non-parole period
  • What lawful start date could be imposed for the mobile phone possession offence
  • Whether the current legislative framework creates an effective sentencing vacuum for serious long-term offenders who commit contraband offences while in custody

Decision

Colefax SC DCJ confirmed that s 58 of the Crimes (Sentencing Procedure) Act constrained the Local Court's power to fix the start date of a new sentence. In practice, where an offender is already serving a sentence exceeding five years, the Local Court cannot defer the commencement of a new term to the end of the existing non-parole period. The Crown conceded this point, and the District Court had no choice but to allow the appeal.

The conviction was confirmed and the three-month fixed term was preserved, but the start date was varied from 10 January 2020 to 20 March 2017, the date of the original Local Court sentence. This meant the sentence would, in effect, run concurrently with the appellant's existing lengthy imprisonment, providing no additional period of incarceration beyond what was already being served.

His Honour observed plainly that this outcome was highly unsatisfactory. Long-term inmates effectively face no meaningful sentencing consequence for serious contraband offences because any additional term imposed by the Local Court simply disappears into the existing period of custody. The more serious the offender's background, the less deterrent force any new sentence carries.

In unusually direct terms, Colefax SC DCJ directed that a copy of the judgment be forwarded to the Minister for Correctional Services and the Attorney General, calling for prompt legislative attention to the gap.

Orders Made

  • Appeal allowed
  • Conviction confirmed
  • Fixed term of three months' imprisonment confirmed
  • Start date varied from 10 January 2020 to 20 March 2017
  • Registrar directed to forward the remarks to the Minister for Correctional Services and the Attorney General
  • Copy of the remarks directed to be placed on the case law website

Key Takeaways

  • Under s 58 of the Crimes (Sentencing Procedure) Act, a Local Court cannot fix the start date of a new sentence at the expiration of a long-term non-parole period, even where doing so would be the logical and proportionate sentencing response.
  • The District Court found that this limitation creates a practical sentencing vacuum: inmates already serving sentences of more than five years face no real additional punishment if convicted of serious contraband offences such as mobile phone possession in custody.
  • A three-month term imposed to run from the date of sentencing was the only lawfully available outcome, despite the court's view that the original start date chosen by the Magistrate was "not only understandable but utterly desirable."
  • Possession of a mobile phone, SIM card, and related items inside a correctional facility engages s 27DA(1) of the Summary Offences Act, which carries a maximum of two years' imprisonment, reflecting the legislature's view that such offences are serious threats to institutional security.
  • In a notable step, the District Court formally directed that the judgment be referred to both the Minister for Correctional Services and the Attorney General, characterising the current state of the law as a matter requiring immediate attention.

Legislation and Cases Referenced

Legislation:
- Summary Offences Act (NSW), s 27DA(1) (possession of mobile phone or SIM card by inmate)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 58 (limits on commencement of sentences)

Cases cited: None cited in the judgment.