O'MEARA v R

Periodic Detention of Prisoners Act 1981 15 As I have already indicated, the legislation relating to periodic detention orders which was in force when the orders for periodic detention of the applicant were made and cancelled was the Periodic Detention of Prisoners Act 1981 and was that Act before it was amended by the Periodic Detention of Prisoners Amendment Act No 43 of 1998, which commenced on 1 February 1999. Period detention orders which have been made since the commencement of the Crimes (Sentencing Procedure) Act have, of course, been governed by the provisions of that Act, which are in some respects different from the provisions of the earlier legislation. It is convenient to summarise some of the provisions of the Periodic Detention of Prisoners Act, as it stood at the relevant times. 16 Section 25 of the Act provided that the Court that had made a periodic detention order could cancel the order. Section 25(3A) of the Act, which was the provision pursuant to which Judge Johnston cancelled the applicant's periodic detention orders, provided that a court, on an application by the Commissioner of Corrective Services, was obliged to cancel a periodic detention order, if it was satisfied that the prisoner had failed to report for three or more detention periods, and the prisoner did not have the benefit of any leave of absence or exemption. 17 Section 27 of the Act stated the effect of cancellation of an order for periodic detention. Section 27(1)(c) provided that any unexpired portion of the sentence of imprisonment to which the order applied should be deemed to be a separate term of imprisonment imposed at the time of the cancellation and then contained further provisions about when the deemed term of imprisonment should commence. Section 27(4) provided that a court cancelling an order for periodic detention could in its discretion direct that any unexpired portion of the sentence be taken to consist of a minimum term and an additional term under the Sentencing Act 1989. In cancelling the orders for periodic detention Judge Johnston expressly declined to make any direction under s 27(4) of the Act.

Authorities 18 On these applications the Court was referred to a number of previous decisions of this Court on the Periodic Detention of Prisoners Act 1981, including the decisions of the Court in R v Sommerville (1995) 36 NSWLR 184 and R v Wilson (1997) 93 A Crim R 301. There are a number of passages in the judgment of Smart J, who delivered the leading judgment in Wilson, which it is convenient to quote. 19 At p 309 Smart J said:- "In Sommerville (1995) 36 NSWLR 184 the Chief Justice and Barr AJ held that the Court of Criminal Appeal has no jurisdiction to hear an appeal from a decision of a District Court judge cancelling an order for periodic detention ….

The Chief Justice further held that because s27(1)(c) deems the unexpired portion of the original sentence to be a separate term of imprisonment imposed at the time of the cancellation then some limited appellate consequences flow ….

The Chief Justice pointed out that questions may arise whether the judge was correct in deciding to set or not to set minimum and additional terms and the length of the terms which he set. These may be dealt with by the Court of Criminal Appeal." 20 At p 310 Smart J said:- "In Sommerville the Chief Justice held that the cancellation of a periodic detention order and the making or refusal of an order under s27(4) did not quash or expunge the original sentence which itself remains subject to appeal or potential appeal in the ordinary way. The reasons given for that view are compelling…" 21 At p 311 Smart J said:- "Usually the question which arises on an application for leave to appeal centres on whether the sentencing judge has made an error. However, in Sommerville the court pointed out that there were exceptional cases in which leave should be given by reason of what had happened following the original sentencing amounting to a miscarriage of justice." 22 In Wilson Smart J also stated that there were practical problems in a court making an order cancelling a periodic detention order in the absence of the detainee and the better course, where a detainee was not before the court on an application for the cancellation of a periodic detention order, was, not immediately to make an order cancelling the periodic detention order, but to issue a warrant for the arrest of the detainee so that he could be brought before the court for the hearing of the application for the cancellation of the order. In the present case, the applicant was not before the Court when Judge Johnston made the cancellation orders and declined to make any direction under s 27(4) of the Act. 23 On these applications the Court was also referred to a number of judgments in this Court where reference was made to the common practice of sentencing judges, when imposing a sentence of imprisonment and making an order that the sentence be served by way of periodic detention under the Periodic Detention of Prisoners Act as it stood before the 1998 amendments, to make the sentence of imprisonment longer than the sentence would have been, if it was to be served in full-time custody. In R v Mikas (1996) 85 A Crim R 34 Hunt CJ at CL, with the concurrence of the other members of the Court, said at 47-48:- "It is well accepted now that, where it is intended to make an order that a sentence be served by way of periodic detention, the length of the sentence imposed will often be longer than one which would have been appropriate if the sentence were to be served by way of full-time custody. This is because of the recognition that periodic detention has a strong degree of leniency built into it and that it is outwardly less severe in its denunciation of the crime." 24 This practice was not permissible under the Periodic Detention of Prisoners Act after it had been amended by the 1998 amending Act (R v Wegener [1999] NSWCCA 405) and is not permissible under the Crimes (Sentencing Procedure) Act (R v Douar (2005) 159 A Crim R 154 at 165 (69-72)).

Submissions 25 On these applications counsel for the applicant submitted, as his primary submissions, that an extension of time should be granted, leave to appeal should be granted and the appeal allowed, with respect to the original sentences of 15 December 1995. The appeals against the original sentences were on the basis, not that the sentencing judge had made any error in sentencing the applicant, but on the basis permitted by the decisions of this Court in Sommerville and Wilson, that the present case was one of those exceptional cases in which events which had happened after the original sentencing had given rise to a miscarriage of justice. 26 It was accepted by counsel for the applicant that there was no express statement in his Honour's remarks on sentence of 15 December 1995 that his Honour in sentencing the applicant was following the then common practice of setting longer terms of imprisonment than would have been appropriate if the sentences were to be served by way of full-time custody because his Honour had in mind ordering that the sentences be served by way of periodic detention. However, counsel submitted, it could be inferred that his Honour had followed this practice, because at the time of the sentencing it was a practice commonly followed by sentencing judges, the terms of imprisonment of three years were the maximum term of imprisonment for which an order for periodic detention could be made under s 5 of the Periodic Detention of Prisoners Act and the sentences imposed by his Honour would have been manifestly excessive if they were to be served by way of full-time imprisonment. 27 After the applicant had been sentenced the orders that the terms of imprisonment be served by way of periodic detention had been cancelled and the unexpired portions of the terms of imprisonment had become terms of imprisonment to be served by way of full-time imprisonment. There would be a miscarriage of justice if the length of the sentences to be served by the applicant was not reduced. 28 It was further submitted by counsel for the applicant that this Court should re-sentence the applicant to sentences of imprisonment containing a non-parole period and a balance of the term of imprisonment and that, by some means, the applicant must be given credit for the periods of periodic detention which he had actually served and the period he has spent in full-time custody since September 2007. 29 An alternative submission was made by counsel for the applicant that an extension of time should be granted, leave to appeal should be granted and the appeal allowed, with respect to the orders made by Judge Johnston on 4 April 1997, by the setting of a minimum term or non-parole period for each sentence. On 4 April 1997 Judge Johnston had declined to make any direction under s 27(4) of the Periodic Detention of Prisoners Act that there be a minimum term and an additional term. However, his Honour, contrary to the practice which this Court held should be followed, had proceeded on 4 April 1997 in the absence of the applicant, not affording the applicant any opportunity to be heard. 30 In its written submissions the Crown, while not conceding that the sentences of three years would be manifestly excessive, if they were to be served by way of full-time imprisonment, conceded that "it would be open to this Court to find that the sentencing judge did in fact increase the applicant's sentence to three years to reflect the fact that it was to be served by way of periodic detention". The Crown also conceded that "this Court may find that the sentencing judge erred in proceeding in the absence of the applicant and in failing to set a minimum term or non-parole period on 4 April 1997".

Decision 31 In my opinion, counsel for the applicant's primary submissions should be upheld. 32 For the reasons given by counsel for the applicant, it can be inferred that in sentencing the applicant Judge Johnston set longer terms of imprisonment than would have been appropriate if the sentences were to be served by way of full-time custody, because he intended ordering that the sentences be served by way of periodic detention. A further reason for drawing this inference is that his Honour in his remarks on sentence said that "the scales have tipped just in his balance to prevent a full-time custodial sentence being imposed", a remark which would not be consistent with his Honour considering that a full-time custodial sentence for as long as three years would be appropriate. Consequently, by reason of what happened after the original sentencing, that is the cancellation of the periodic detention orders and the conversion of the sentences into sentences to be served by way of full-time imprisonment, a miscarriage of justice has arisen. An extension of time in which to apply for leave to appeal should be granted, leave to appeal should be granted, the appeal should be allowed and the original sentences of 15 December 1995 should be quashed. 33 As I have upheld counsel for the applicant's primary submissions, it is unnecessary to deal with counsel's alternative submissions. Had it been necessary to deal with the alternative submissions, I would have considered that the alternative submissions should be upheld. 34 Having decided that the appeal against the original sentences should be allowed, it is necessary for me to give consideration to the re-sentencing of the applicant by this Court. It was common ground between counsel for the applicant and counsel for the Crown that this Court should re-sentence the applicant in accordance with the Crimes (Sentencing Procedure) Act. 35 I have earlier in this judgment outlined the objective facts of the offences. 36 In his remarks on sentence the sentencing judge made a number of findings about the subjective circumstances of the applicant, some of which continue to be relevant and other of which are no longer relevant. 37 At the time he was sentenced by Judge Johnston the applicant was 21 years old. His Honour found that up to the time of committing the drug offences the applicant had led "a crime-free life". His Honour found that the applicant had embarked upon a commercial venture in the supply of drugs but that this was "his first and only venture into the drug scene". His Honour accepted an opinion by a psychologist that the applicant was "an immature and rather dependent individual", who had found it difficult to cope with life and its problems, after he had left an apprenticeship as a jockey because of increasing weight. His Honour found that the applicant was genuinely contrite. 38 For the purposes of the re-sentencing of the applicant, the Court received recent affidavits by the applicant and by the applicant's solicitor. 39 In his affidavit the applicant said that he had lived interstate after leaving Sydney in 1996. He was employed for most of the time between 1996 and 2007 in a number of occupations. During this period he committed a total of three minor offences for which he was fined or received a recognizance. In 2006 he was diagnosed as having a bipolar disorder, for which he has since been receiving medication. He is in a relationship with a woman which has lasted five years. 40 The applicant voluntarily disclosed to Queensland police at Mt Isa that he had absconded from periodic detention in New South Wales and it was this voluntary disclosure which eventually led to him being arrested at Mt Isa. 41 Annexures to the applicant's solicitor's affidavit include favourable references from former employers of the applicant. 42 Credit can be given to the applicant for the time he has already served in periodic detention or in full-time custody by backdating the commencement of the sentences this Court imposes. I do not, however, consider that the amount of the credit can be the subject of a precise mathematical calculation. I do not consider that the periods of periodic detention served by the applicant should, as was submitted by counsel for the applicant, be regarded as equivalent to the same number of weeks of full-time custody. I would backdate the commencement of the sentences to 1 July 2007 to allow for the time already served by the applicant in prison. 43 In my opinion, taking into account the objective facts of the offences and the applicant's subjective features, the applicant should be sentenced to head sentences of 20 months for each of the two offences of supplying a prohibited drug, the sentences to be served concurrently. It was common ground between counsel that it is unnecessary now to deal with the sentence for cultivating prohibited plants. I do not consider that I should find that there are any special circumstances, particularly as the sentences I consider should be imposed are short and have little further time to run. 44 In my opinion, the following orders should be made:- 1. Extend the time for applying for leave to appeal against the sentences imposed by Judge Johnston on 15 December 1995 to the date of the filing of these applications. 2. Leave to appeal granted. 3. Appeal allowed. 4. Quash the sentences imposed by Judge Johnston. 5. In lieu thereof sentence the applicant on each of the two charges of supplying a prohibited drug to a non-parole period of 15 months commencing 1 July 2007 and expiring on 30 September 2008 and a balance of the term of five months. 6. Order that the applicant be released on parole on 30 September 2008. 45 PRICE J: I agree with James J.

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