Regina v Catlin

LOWER COURT District Court JURISDICTION : LOWER COURT 97/11/0181 FILE NUMBER(S) : LOWER COURT Davidson DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 2004/2533

SULLY J HIDDEN J HOWIE J

REGINA v Brian Sidney CATLIN Judgment 1 SULLY J: On 6 March 1997 the applicant, Mr. Catlin, pleaded guilty before his Honour Judge Davidson QC, sitting in the District Court at Sydney, to a charge of having stolen $15,740.00 from his then employer. Such an offence contravenes section 156 of the Crimes Act 1900 (NSW) and, if prosecuted by way of an indictment, attracts upon conviction a statutory maximum penalty of imprisonment for 10 years. 2 His Honour deferred passing sentence upon the applicant's entering into a recognisance himself in the sum of $500 to be of good behaviour for a period of 4 years and to appear for sentence if called upon at any time for any breach within that period. It was a specific condition of that recognisance that the applicant repay the stolen $15,740 at the rate of $400 per month, the first such payment to be made on or before 6 April 1997. 3 Between 6 March 1997 and 25 February 1998 the applicant paid in total an amount of $600, or $3,600 less than the terms of his recognisance required him to pay. 4 On 25 February 1998 the applicant appeared before his Honour Judge Patten. He persuaded his Honour to amend the recognisance so as to permit him to re-commence, on and from a date 4 weeks from 27 February 1998, monthly payments of $400. He paid in fact no further amounts. 5 The applicant was, accordingly, breached; and he was duly called up before Judge Davidson on 6 August 1999. His Honour sentenced the applicant to a term of imprisonment and ordered that the term be served by way of periodic detention. His Honour said, relevantly: "He asserts that he is able to pay $250 per week and again asserts his eagerness, as well as his ability to do so. In light of the history of this matter I simply reject that evidence. In my view it is a futile exercise endeavouring to have Mr. Catlin honour the promises which he makes, either formally in written documents by way of recognisance or to the court when he appeared before it, to repay the sum. It is simply wasting the court's time in my view to attempt to pursue further the exercise of seeking to have Mr. Catlin pay this sum of money. I note the breach is proved and that, as I have said, the recognisance is admitted. The question then remains: what is to be done? As I told Mr. Catlin in 1997 the Legislature has provided a maximum penalty of ten years penal servitude in respect of this offence. The question is whether Mr. Catlin should undergo, in lieu of the recognisance which I propose to revoke, a term of full-time imprisonment to which he rendered himself liable by committing this offence. The facts of the offence as they appear to me would justify in my view a term of full-time imprisonment, and it is a course which I have seriously considered adopting. The fact remains, however, that this is the only matter of any significance on his record, he did plead guilty to the offence and he did make a full confession to police. Furthermore I have formed the view that to send him to full-time custody now would perhaps be seen to operate as having an element of double jeopardy. Accordingly, I propose to sentence the prisoner to a period of imprisonment to be served by way of periodic detention. I have taken into consideration the four days custody which he has already undergone. The order of the court is, therefore, that the recognisance entered into in March 1997, as amended by his Honour Judge Patten in February 1998, is revoked. In respect of the offence to which he pleaded guilty the prisoner is sentenced to imprisonment for a period of two years and six months. That sentence is to be served by way of periodic detention. The supervising court is Gosford Local Court and for the purposes of serving that sentence the prisoner is to present himself to the office of the Probation and Parole Service at Gosford by 7 pm on Friday 13 August 1999." 6 The applicant has completed some, but not all, of the periodic detention to which he is liable pursuant to that sentence. The relevant departmental records are cast in a form that is not easy to analyse; but it can be observed fairly that the applicant's attendance record has been sporadic. 7 The applicant now seeks to appeal against the sentence passed upon him by Judge Davidson. The notice of application for leave to appeal was filed on 7 October 2004 so that the applicant requires, in limine, an order of this Court extending the time for the bringing of his application. His notified grounds of appeal are: "1. The sentencing Judge erred in failing to apply the provisions of the Periodic Detention of Prisoners Act 1981, as amended by the Periodic Detention of Prisoners Amendment Act No. 43 of 1998. 2. The sentencing Judge erred in failing to set a non-parole period. 3. A different less severe sentence is warranted and ought to have been imposed." 8 On 10 November 2004 the applicant affirmed an affidavit explaining his delay in bringing the present application. It is sufficient to say that in my opinion that affidavit, which was not the subject of cross-examination or other particular challenge, shows sufficient cause for the granting of the necessary extension of time. 9 As to the substantive grounds, I can summarise my views as follows:

[1] The sentencing process upon which Judge Davidson embarked on 6 August 1999 was governed, relevantly, by the Periodic Detention of Prisoners Act 1981 as amended with effect on and from 1 February 1999.

[2] The implementation of the Periodic Detention sentencing regime as thus enacted was summarised as follows by this Court, (James and Sperling JJ), in Reg v Wegener [1999] NSWCCA 405: "As a result of the amendments to the Periodic Detention of Prisoners Act, it is only after a sentencing judge has imposed a sentence of imprisonment comprising a fixed term of imprisonment not exceeding three years or a minimum term and an additional term which do not in the aggregate exceed three years, that the sentencing judge can then give consideration to whether he or she should order that the minimum term of the sentence imposed or, in the case of a fixed term, the whole of the sentence should be served by way of periodic detention." [per James J at paragraph 23] [3] His Honour Judge Davidson does not seem to me to have approached the sentencing exercise in this way. His Honour did not express himself as intending to pass a sentence of a fixed term of imprisonment for 2-1/2 years; neither did his Honour pass a total sentence of imprisonment of 2-1/2 years apportioned between minimum and additional terms.

[4] In my opinion, the sentencing of the applicant therefore miscarried, and this Court should now do whatever is necessary in order fairly to correct that miscarriage. 10 In an effort to cut through the problems, legal and administrative, of re-calculating any sentence now to be substituted by this Court, the assistance of both counsel was invited. Both counsel have made helpful, and generally the same, submissions. The submissions are in writing, and a copy of the submissions will be retained with the Court file for any necessary future reference. It is unnecessary, therefore, to set out here the fine detail of the calculations. I would myself accept the form of proposed orders as propounded in the corrected submission dated 22 November 2004, of the applicant's counsel. I note that the purport of those orders gives effect to the Court's views, expressed provisionally at the hearing, that the sentence of 2-1/2 years should stand as the aggregate sentence; and that a non-parole period of 23 months should be stipulated, the Court being unpersuaded that there were any special circumstances justifying a more lenient non-parole period. 11 I propose, therefore, the following orders:

[1] Grant the extension of time necessary to permit of the entertaining of the present application for leave to appeal.

[4] In lieu thereof order a sentence of imprisonment of 12 months to commence on 1 December 2004 and expire on 30 November 2005. Set a non-parole period of 17 weeks to commence on 1 December 2004 and expire on 29 March 2005. The earliest date on which the offender is eligible for parole is 29 March 2005, and he is to be released on parole on that date. Order that the sentence be served by way of periodic detention. The offender to report no later than 4 pm on 1 December 2004 to the Periodic Detention Centre at Silverwater.

[5] The Court has had regard to the contents of the Periodic Detention Assessment report dated 19 November 2004. Despite the contents of that report it is ordered that the sentence be served by way of periodic detention for the reason that the offender is currently subject to an order for periodic detention longer than the non-parole period now set. 12 HIDDEN J: I agree with Sully J. 13 HOWIE J: I agree with Sully J. **********

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