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Local Court 30 May 2024

Police v Kirk

[2024] NSWLC 1

Drugs
CRIME PROCEDURE ALLEGED SENTENCING ERROR

Citation: Police v Kirk [2024] NSWLC 1
Court: Local Court of NSW
Date: 30 May 2024
Judge: Nash LCM

Background

An offender serving a lengthy existing sentence of imprisonment, which had commenced in July 2016 and was due to expire in January 2025, was arrested in April 2024 for two deemed drug supply offences while on parole. Following guilty pleas, the Local Court sentenced him on 23 May 2024 to an aggregate term of 8 months' imprisonment, commencing 26 April 2024 and expiring 25 December 2024, with a non-parole period of 6 months. That new sentence ran entirely concurrently with the existing sentence.

The offender applied to reopen the sentencing proceedings under s 43 of the Crimes (Sentencing Procedure) Act 1999 (NSW), arguing that the new sentence was contrary to law. He contended that s 58 of the same Act, which limits the Local Court's power to impose consecutive sentences beyond a five-year cap, had been engaged and breached.

The core dispute turned on whether the new sentence operated consecutively with the existing sentence for the purposes of s 58, and on the correct interpretation of that provision in light of two Court of Criminal Appeal decisions.

  • Whether s 58 of the Crimes (Sentencing Procedure) Act 1999 was engaged by the imposition of the new sentence
  • Whether a sentence that extends an offender's non-parole period operates "consecutively" with the existing sentence for the purposes of s 58
  • Whether the earlier Court of Criminal Appeal decision in R v Derbas [2004] NSWCCA 174, which suggested such an extension is consecutive, remains good law after R v Perrin [2022] NSWCCA 170
  • Whether the new sentence constituted a penalty "contrary to law" amenable to correction under s 43

Decision

Nash LCM refused the application. The court held that s 58 imposes two cumulative conditions before it operates to limit the Local Court's sentencing power: the new sentence must be imposed to run consecutively (or partly concurrently and partly consecutively) with the existing sentence, and the new sentence must end more than five years after the existing sentence began. Both conditions must be satisfied before the provision is engaged.

On the facts, the new sentence was imposed to run entirely concurrently with the existing sentence. Because the first condition was not fulfilled, s 58 was simply not engaged. The court found it unnecessary to consider whether the second condition was also satisfied, though it noted that condition would have been met on the facts.

The offender's reliance on Derbas was rejected. In that case, the Court of Criminal Appeal had suggested that a sentence extending an offender's non-parole period operates consecutively for the purposes of s 58. Nash LCM held that this analysis was obiter (that is, not part of the ratio or binding legal reasoning) because it arose under a heading described as a "supplementary matter" and concerned a ground that was never actually formulated as part of the appeal. As such, the observations in Derbas were persuasive at most, not binding.

The later 2022 decision in Perrin, on Nash LCM's reading, is consistent with the plain words of s 58 and draws no distinction between the non-parole and parole periods within a sentence of imprisonment when assessing whether the provision applies. To the extent Derbas suggested otherwise, it yields to Perrin.

Orders Made

The application to reopen the proceedings was refused, and the original sentence of 23 May 2024 was confirmed.

Key Takeaways

  • Section 58 of the Crimes (Sentencing Procedure) Act 1999 contains two cumulative conditions: the new sentence must be consecutive (or partly concurrent and partly consecutive) with the existing sentence, and must end more than five years after the existing sentence began. Both must be present before the provision limits the Local Court's power.
  • A new sentence imposed entirely concurrently with an existing sentence does not satisfy the first condition under s 58, and the provision is therefore not engaged, regardless of whether the five-year limit would otherwise be exceeded.
  • Section 58 does not distinguish between the non-parole period and the parole period of a sentence of imprisonment. The provision speaks only of the sentence as a whole.
  • The Court of Criminal Appeal's observations in R v Derbas [2004] NSWCCA 174 on the operation of s 58 were characterised as obiter because they addressed a matter that was never formulated as a ground of appeal, and they do not represent a binding statement of law.
  • Where obiter remarks from an earlier Court of Criminal Appeal decision conflict with the approach taken in a later Court of Criminal Appeal decision, the later authority prevails, particularly where it aligns with the plain statutory language.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 43, 53A, 58
- Drug Misuse and Trafficking Act 1985 (NSW)
- Children (Criminal Proceedings) Act 1987 (NSW), s 33(1)(g)

Cases
- R v Derbas [2004] NSWCCA 174
- R v Perrin [2022] NSWCCA 170