Mr Kirk has made an application to reopen criminal proceedings to correct an asserted sentencing error under s 43 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
The application arises in circumstances where, on 23 May 2024, after he had entered guilty pleas, the court (Nash LCM) sentenced Mr Kirk for 2 offences (in proceedings no. H97112766), being sequences 3 and 5 (new sentence). Both matters involved the (deemed) supply of prohibited drugs under the Drug Misuse and Trafficking Act 1985 (NSW).
Under the new sentence, Mr Kirk, was sentenced pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 to an aggregate term of imprisonment of 8 months, commencing on 26 April 2024 (being the date he was arrested, charged and bail refused on the matter) and expiring on 25 December 2024, with a non-parole period of 6 months expiring on 25 October 2024. Mr Kirk has commenced an appeal to the District Court in respect of the new sentence, which I understand is listed for hearing on 17 July 2024.
The new sentence is to be understood in the context or background where Mr Kirk was, and is, serving an existing sentence of imprisonment that commenced on 5 July 2016 and expires on 2 January 2025 (existing sentence). By way of further particulars, on 14 December 2016, Mr Kirk was sentenced in the District Court to two terms of imprisonment: a period of 2 years from 5 July 2016 to 4 July 2018, with a non-parole period of 1 year and 2 months expiring 4 September 2017 (first sentence), and a concurrent fixed term of imprisonment of 6 months from 5 July 2016 to 4 January 2017 (second sentence).
On 3 July 2018, Mr Kirk was sentenced in the District Court to an aggregate sentence of imprisonment of 7 years from 3 January 2018 to 2 January 2025, with a non-parole period of 3 years and 6 months that expired on 2 July 2021 (third sentence).
As I said a moment ago, on 26 April 2024, Mr Kirk was arrested, charged and bail refused in relation to the current drug supply offences, those being sequences 3 and 5 in H97112766. He was on parole at the time he committed those offences. His parole, I understand, has not been revoked.
Mr Kirk argues that the new sentence is contrary to law because s 58 of the Crimes (Sentencing Procedure) Act 1999 was engaged and thus operated to limit the Court's power to impose the new sentence.
Section 58 of the Crimes (Sentencing Procedure) Act 1999 relevantly provides:
58 Limitation on consecutive sentences imposed by Local Court
(1) The Local Court may not impose a new sentence of imprisonment to be served consecutively (or partly concurrently and partly consecutively) with an existing sentence of imprisonment if the date on which the new sentence would end is more than 5 years after the date on which the existing sentence (or, if more than one, the first of them) began.
(2) Any period for which an existing sentence has been extended under this or any other Act is to be disregarded for the purposes of this section.
…
(4) In this section -
existing sentence means an unexpired sentence, and includes any expired sentence or unbroken sequence of expired sentences with which the unexpired sentence is being served consecutively (or partly concurrently and partly consecutively).
sentence of imprisonment includes an order referred to in section 33 (1) (g) of the Children (Criminal Proceedings) Act 1987.
Mr Kirk makes 3 main points:
1. First, because he was subject to an 'existing sentence' at the time he was sentenced on 23 May 2024, this meant that s 58 was "engaged" and operated to limit the Local Court's power to impose a new sentence of imprisonment, applying the decision of the Court of Criminal Appeal in R v Perrin [2022] NSWCCA 170.
2. Secondly, because the new sentence imposed by the court commenced after the non-parole period of the existing sentence expired, the new sentence operated to extend the non-parole period of the existing sentence. That is, it operated consecutively on the existing sentence (applying the Court of Criminal Appeal decision in R v Derbas [2004] NSWCCA 174).
3. Thirdly, the limitation imposed on the Local Court by s 58 is not made referable in any way to the "expiry" date of the "existing sentence". Rather, the only relevant dates in s 58 are: (1) the date on which the existing sentence began, which in this case was 5 July 2016; and (2) the date that is 5 years from 5 July 2016, which in this case was 4 July 2021.
Mr Kirk therefore argued that the latter date of 4 July 2021 was the only "expiry date" relevant to the operation and application of s 58 of the Crimes (Sentencing Procedure) Act 1999 in Mr Kirk's case, at the time he was sentenced. As such, Mr Kirk contends that any sentence of imprisonment imposed by the court was not permitted to expire beyond that date.
It was submitted that as the new sentence imposed by the court expires on 25 December 2024, this exceeded the limitation imposed on him by s 58 of the Crimes (Sentencing Procedure) Act 1999.
It was submitted that, for this reason, the court would find that the new sentence imposed on 23 May 2024 is a "penalty that is contrary to law" and ought to be corrected under s 43 of the Crimes (Sentencing Procedure) Act 1999.
I respectfully do not accept the submission that the penalty imposed on 23 May 2024 is contrary to law. As the court said in Perrin at [42], s 58 of the Crimes (Sentencing Procedure) Act 1999 prohibits the Local Court imposing a new sentence of imprisonment where 2 conditions are fulfilled, namely:
1. The new sentence is to be served either entirely consecutively or partly concurrently and partly consecutively with an "existing sentence of imprisonment": (first condition to engage s 58); and
2. The "new sentence" would end more than 5 years after the date on which the "existing sentence" (or, if more than one, the first of them) began (second condition to engage s 58).
Under s 58(4) of the Crimes (Sentencing Procedure) Act 1999, the term "existing sentence" is defined as: an unexpired sentence and includes any expired sentence or unbroken sequence of expired sentences with which the unexpired sentence is being served consecutively (or partly concurrently and partly consecutively).
Therefore, insofar as it concerns Mr Kirk's matters, the existing sentence comprised the first sentence, the second sentence and the third sentence, being a combined sentence of imprisonment that began on 5 July 2016 and expires on 2 January 2025. The new sentence, being the sentence imposed on Mr Kirk on 23 May 2024, which Mr Kirk seeks to impugn on the present application, was and is, entirely concurrent with that existing sentence. Expressed another way, the new sentence was not consecutive, nor was it partly concurrent and partly consecutive, with the existing sentence.
Accordingly, to my mind, the sentence imposed on 23 May 2024 was not contrary to s 58 of the Crimes (Sentencing Procedure) Act 1999, because the first condition to engage s 58 is not fulfilled. It, therefore. does not matter that the new sentence will end more than 5 years after the existing sentence began. That is, it does not matter that the second condition to engage s 58 is fulfilled on the facts in the present matter.
Mr Kirk submitted that it was clear from the decision in Derbas that the Court of Criminal Appeal considered that a new sentence that extended the non-parole period of an existing sentence is one that operates consecutively on the existing sentence, and that the more recent judgment of the Court of Criminal Appeal in Perrin is consistent with this approach.
The difficulty here for Mr Kirk is that s 58 of the Crimes (Sentencing Procedure) Act 1999 does not draw any distinction between the non-parole period and the parole period within a term or sentence of imprisonment. Section 58 of the Crimes (Sentencing Procedure) Act 1999 speaks only of a sentence of imprisonment (which includes both the non-parole and parole periods). To the extent the 2004 decision in Derbas suggests otherwise:
1. First, to my mind it must yield to the later 2022 authority of Perrin which on my reading of paragraph [42] is consistent with the plain words of s 58, and further, which draws no distinction between the non-parole and parole periods within a sentence of imprisonment for the purposes of determining whether that provision is engaged; and
2. Secondly, the court's observations in Derbas about the effect of s 58 were obiter remarks, and therefore, although persuasive, are not binding on me. In this respect, paragraph [29] of Derbas, which appears immediately under the heading 'supplementary matter', and which contains the court's discussion of s 58 on which Mr Kirk relies, says: "The last matter raised was never formulated as a ground of the application for leave to appeal (emphasis added). It concerns the manner in which the judge dealt with the Form 1 offence." It is clear from those words, that the court's analysis of s 58 of the Crimes (Sentencing Procedure) Act 1999, was not in the context of its consideration of any appeal grounds and played no role in the court's ultimate decision. The court's observations about s 58 of the Crimes (Sentencing Procedure) Act 1999 are not, with great respect, sufficiently persuasive to me such that I would conclude they are a correct statement of law.
In summary, there are 2 conditions to engage s 58 of the Crimes (Sentencing Procedure) Act 1999, and, in this case, the first of those conditions as expressed in paragraph [42] of Perrin is not fulfilled. No part of the new sentence is consecutive with the existing sentence, and therefore, I find there was no sentencing error amenable to correction under s 43 Crimes (Sentencing Procedure) Act 1999, even assuming that s 43 was an available pathway to re-open the proceedings in the circumstances here.
Accordingly, because I find the new sentence was not contrary to s 58 of the Crimes (Sentencing Procedure) Act 1999, the application to reopen the proceedings is refused, and the original sentence is confirmed.
[2]
Amendments
26 June 2024 - Amended formatting.
08 July 2024 - Amended cover sheet fields.
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Decision last updated: 08 July 2024