Allan v R

Judgment 1SIMPSON J : I agree with Price J. 2HOEBEN J : I agree with Price J and the orders that he proposes. 3PRICE J: On 1 May 2009, McGuire ADCJ sentenced the applicant for an offence of break, enter and steal contrary to s 112(1) Crimes Act 1900 to a term of imprisonment of 4 years consisting of a non-parole period of 2 years 6 months commencing 3 April 2009 and expiring 2 October 2011 with a parole period of 1 year 6 months expiring 1 April 2013 (the first sentence). 4On 17 September 2010, this Court allowed the applicant's appeal against the first sentence. The District Court sentence was quashed and a sentence of 3 years 3 months was imposed consisting of a non-parole period of 2 years commencing 3 April 2009 and expiring 2 April 2011 with a balance of term of 1 year 3 months commencing 3 April 2011 and expiring 2 July 2012: see Allan v Regina [2010] NSWCCA 213. 5The earliest date of eligibility for the applicant's release to parole is 2 April 2011, which is 6 months earlier than the sentence imposed by McGuire ADCJ. 6During the hearing of the appeal, the Court's attention was not drawn to the sentences imposed upon the applicant by Flannery DCJ on 1 September 2009. Her Honour sentenced him as follows (the second sentences):

1. Assault occasioning actual bodily harm: a fixed term of 12 months imprisonment commencing 2 July 2010 and expiring 1 July 2011.
2. Break, enter and steal: imprisonment for 3 years consisting of a non-parole period commencing 2 July 2010 and expiring 1 July 2012 with an additional term of 1 year expiring 1 July 2013. 7A direction was made by her Honour that the applicant be released to parole on 1 July 2012. 8The applicant has applied for an order pursuant to s 59 Crimes (Sentencing Procedure) Act 1999 to vary the commencement dates of the second sentences. The Court directed that the application proceed by way of written submissions. Rule 50 Criminal Appeal Rules has been complied with. 9The applicant points out that the reduction by this Court of the non-parole period of the first sentence by six months had no effective impact upon the sentences imposed by Flannery DCJ. He asks that the second sentences be varied so that they commence six months earlier. 10In opposition to the application, the Crown argues that s 59 was designed to remedy a difficulty identified in cases where the quashing of a sentence following a successful appeal, left the applicant with a further sentence of imprisonment that was to commence on a specified date in the future. As there is no hiatus period between the end of the first sentence as varied by this Court and the commencement of the second sentences imposed by Flannery DCJ, the Crown contended that s 59 does not apply so as to enable the commencement dates of the second sentences to be varied. 11The applicant submitted that the Crown's interpretation of s 59 is unduly confining and finds no basis in any principle of statutory construction. It was contended that s 59 applies to "any other sentence" - whether it is to be served consecutively, concurrently, or partly concurrently. 12Section 59 is as follows: "(1) A court that quashes or varies a sentence of imprisonment imposed on a person (on appeal or otherwise) may vary the date of commencement of any other sentence that has been imposed on that person by that or any other court. (2) If a person is subject to two or more sentences, this section applies to each of them. (3) A court may vary a sentence under this section on its own initiative or on the application of a party to the proceedings on the quashing or variation of the other sentence. (4) An appeal does not lie merely because the date of commencement of a sentence is varied under this section. (5) The term of a sentence, or the non-parole period of a sentence, cannot be varied under this section." 13Prior to its amendment by the Crimes Legislation Amendment Act 2003, this Court's power to vary the commencement date of a sentence on the quashing or variation of an earlier sentence was restricted by the terms of s 59(1) to "any consecutive sentence". In Regina v Shane Patrick Donohue (no 2) [2001] NSWCCA 495, Bell J considered at [25] that the expression "consecutive sentence" in the then s 59 referred to a sentence which commenced at the expiration of the non-parole period of an existing sentence but did not include a sentence that was partly concurrent with and partly consecutive upon another sentence (or the non-parole period of another sentence). 14In order to overcome the difficulty identified in Donohue , s 59(1) was amended in 2003 by the omission of the word "consecutive" and by the insertion instead of the word "other". There is no mention, however, in the terms of s 59 that this Court's power to vary the date of the commencement of "any other sentence" is constrained by a requirement for the subsequent sentence to begin at a 'future date'. 15There was some reliance in the Crown's submissions, upon the Second Reading Speech made when the Crimes Legislation Amendment Bill was introduced into Parliament. By s 34(1)(b)(i) Interpretation Act 1987, the Court may give consideration to extrinsic material where the meaning of a provision is "ambiguous or obscure" or by s 34(1)(b)(ii), where the "ordinary meaning" leads to "a result that is manifestly absurd or is unreasonable." In my opinion, the meaning of s 59 is plain and it is unnecessary to refer to extrinsic material. In any event, as was observed in Harrison v Melhem [2008] NSWCA 67; (2008) 72 NSWLR 380 at [12] by Spigelman CJ: "I wish to express my agreement with the analysis by Mason P of the House of Lords judgment in Pepper v Hart [1993] AC 593. Statements of intention as to the meaning of words by ministers in a Second Reading Speech, let alone other statements in parliamentary speeches are virtually never useful. Relevantly, in my opinion, they are rarely, if ever, "capable of assisting in the ascertainment of the meaning of the provisions" within s 34(1) of the Interpretation Act 1987. I only refrain from using the word "never" to allow for a truly exceptional case, which I am not at present able to envisage." 16The facultative nature of the Court's power under s 59 was emphasised by Spigelman CJ in Regina v Pham [2004] NSWCCA 263. The Chief Justice explained at [9]: "Section 59 is a provision designed to serve pragmatic purposes: to ensure the efficiency and expedition of the administration of criminal justice. Its clear purpose is to permit variations consequential upon a sentence of imprisonment being set in a second matter by reference to the dates of the sentence imposed in the first matter." 17In Regina v Walsh [2004] NSWCCA 428, Howie J backdated the commencement date of another sentence to overcome an error made by a sentencing judge. Howie J said at [18]: "Because I have varied the dates on which the sentences imposed by [the sentencing judge] are to commence, and therefore have varied the date upon which the non-parole periods are to conclude, there will have to be some adjustment made to the sentences imposed in the District Court on appeal, in respect of the other matters dealt with by [the sentencing judge]. I have power under section 59 of the Crimes (Sentencing Procedure) Act 1999 to vary those sentences, because I have varied the earlier sentences on which those later sentences relied." 18I conclude that this Court's power under s 59(1) is not limited to those cases where the quashing or varying of a sentence of imprisonment will result in a hiatus before any other sentence imposed on the offender by any other court commences. 19It does not necessarily follow from the quashing or variation of the first sentence that this Court should exercise its discretion under s 59(1) to vary the commencement dates of the second sentences: see for example AJO v Regina [2008] NSWCCA 28. In the present case, however, Flannery DCJ paid careful regard to the first sentence and the principle of totality. Her Honour said (ROS 4): "The offender was charged one month before the commission of these offences with an aggravated break, enter and steal offence which I think was committed on 24 April 2007. On 1 May of this year the offender had imposed, in relation to that offence, a sentence of imprisonment of what the criminal record indicates is three years with a non-parole period of two years and six months but which Justice Link at least indicates was four years with a non-parole period of 2 years six months. That sentence was directed to commence on 3 April 2009 which means that the non-parole period expires on 2 October 2011 with the total sentence expiring 18 months later. Accordingly, the principal of totality looms large in this sentencing exercise, given that the offences were committed a month apart in 2007." 20And (ROS 8): "I propose to commence the sentences I intend to impose on 2 July 2010 as I consider that there needs to be some partial accumulation with the sentence imposed by Acting Judge McGuire in May of this year." 21I do think that this Court should bring the commencement dates of the second sentences forward by six months so as to preserve the extent of the partial accumulation that her Honour found to be appropriate. 22Accordingly, I propose that the commencement dates of the sentences imposed by Flannery DCJ on 1 September 2009 be varied pursuant to s 59 of the Crimes (Sentencing Procedure) Act as follows: Break, enter and steal: 3 years imprisonment consisting of a non-parole period of 2 years commencing 2 January 2010 and expiring 1 January 2012 with a balance of term of 1 year expiring on 1 January 2013. Assault occasioning actual bodily harm: imprisonment for a fixed term of 12 months commencing 2 January 2010 and expiring on 1 January 2011. 23A consequence of these orders is that her Honour's direction that the applicant be released to parole on 1 July 2012 is brought forward to 1 January 2012