Regina v Hall [2004] NSWCCA 127 | Case summary

30 APRIL 2004 REGINA v TIMOTHY JAMES HALL Judgment 1 HANDLEY JA: The applicant was committed to the District Court for sentence pursuant to s 51A of the Justices Act 1902 on 11 April 2003 after he had pleaded guilty before a magistrate to the offence of supplying ecstasy, a prohibited drug, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985. The quantity of ecstasy involved was such as to attract a maximum penalty of fifteen years' imprisonment. 2 The applicant appeared before Maguire DCJ for sentence on 4 July and 6 August 2003. He was sentenced on 7 August to imprisonment for a term of two years with a non-parole period of one year. The judge ordered that the sentence be served by way of periodic detention. The sentence and the non-parole period were to commence on 22 August and expire on 21 August 2004 and 21 August 2005 respectively. The judge directed the applicant to report to the officer in charge of the Silverwater Detention Centre on 22 August at 6pm to commence his sentence. He has applied for leave to appeal against his sentence. 3 The statement of facts provided to the judge stated that at about 10.35am on 18 December 2002 police in a vehicle observed the applicant with four other males seated in the street behind the West Pymble shops. The applicant was observed to have a set of scales in his lap and a small plastic bag in his hands. The police stopped their vehicle and approached the group. A plastic bag which the applicant had dropped was found to contain green vegetable matter thought to be cannabis. Another plastic bag which he threw away was found to contain ecstasy tablets and another bag which he dropped was also found to contain ecstasy tablets. When he was searched, ninety-six empty small plastic bags of the same type were found in his possession together with two so-called "tick" sheets, one containing amounts of money and amounts of drugs and the other some names with numbers next to them. 4 The applicant was taken into custody and placed in a caged truck but became so agitated that he was taken to Hornsby Hospital where he was admitted. 5 The police executed a search warrant at his house the following day and found two bongs and two diaries belonging to the applicant which contained names, numbers and other information apparently relating to drug dealing. While the applicant's mobile phone was held in the exhibit room in the Hornsby police station between 18 and 20 December three messages were received for the applicant requesting a supply of drugs. 6 The applicant was arrested at Hornsby Hospital on 20 December on his discharge and was conveyed to the police station where he took part in an electronically recorded interview. During this interview he proffered a number of explanations for his possession of the ecstasy tablets, the papers, his diary entries, the material recorded in his mobile phone and the contents of the messages. He did not give evidence in the sentence proceedings. 7 Mr Papayanni who appeared for the applicant in the District Court and again in this Court objected to evidence of all matters which did not directly relate to the ecstasy tablets in the applicant's possession when he was observed by the police on 18 December. The judge noted in his remarks on sentence that objection had been taken but did not expressly rule on it. However he implicitly did so because he treated this material as evidence which strengthened the admissions implicit in the plea of guilty. He also made it clear that he was making no finding about the character of the applicant's possession of the cannabis and said that he would not treat the applicant's association with other drug transactions as an aggravating factor. 8 Mr Papayanni renewed his objection to this evidence in this Court but it is without substance. The evidence was of surrounding circumstances which tended to establish or confirm that the applicant was the person in possession of the ecstasy tablets rather than one or other of the males in the group. The judge said that he completely rejected the prisoner's explanations and excuses given in his recorded interview. Mr Papayanni complained about this but the judge was clearly entitled to take the approach he did. The applicant's statements were literally unbelievable and were not supported by sworn evidence. They were also inconsistent with the plea of guilty to which the applicant adhered in the District Court where he was represented by experienced counsel. 9 The judge said that the applicant was entitled to the substantial consideration attracted by his plea of guilty which had been entered at the earliest opportunity. Although he had been caught "red-handed", so that his conviction was highly probable, his plea had utility and had saved the State the cost of a trial. Mr Papayanni complained that the judge had not quantified in numerical or percentage terms the discount he had allowed for the plea but this omission does not in itself constitute error. Although sentencing judges should reveal the percentage discount that they have allowed for a plea in their remarks on sentence, their failure to do so does not constitute appellable error, although the sentence is likely to attract increased appellate scrutiny. 10 A major part of Mr Papayanni's submissions were based on the applicant's prior medical history. The evidence before the sentencing judge included discharge summaries from Hornsby Hospital where the applicant had twice been admitted for psychiatric assessment and possible treatment. His first period of hospitalisation was from 29 October to 4 November 2002 and the second from 18 to 20 December. 11 The judge also had available three reports from Dr Kevin Vaughan, the applicant's treating psychiatrist at Hornsby Hospital, dated 27 May, 12 June and 2 July 2003. These indicated that the applicant had been treated for depression prior to his first admission to hospital when he had been prescribed anti-psychotic medication because of his high risk of psychosis. The report of 27 May also dealt with the applicant's condition after he had been taken to the hospital on 18 December. The reports indicated a high level of concern at the effect that "a custodial sentence" could have on the applicant. 12 The judge also had available a pre-sentence report dated 11 June 2003. This was stated to be based on interviews with the offender and telephone enquiries of his father, his mother, his psychiatrist, the hospital consultant psychiatrist, and a family friend. Mr Papayanni tendered the probation report before the sentencing judge. 13 He submitted that the judge had failed to take into account the medical evidence relating to the applicant's fragile psychiatric condition and the likely effect on him of a custodial sentence. He also submitted that the judge erred, in light of this evidence, in imposing a sentence of periodic detention. There is no substance in the first submission. The judge said: "Medical reports indicate the prisoner's fragile psychiatric state. He has received treatment for depression and anti-psychotic medication was prescribed. He was not considered to be mentally ill and on his first admission to hospital psychotic symptoms had not appeared. In a second admission he demonstrated symptoms of panic considered to be related to the shock of being apprehended. It was believed that there was a serious risk of him breaking down into frank psychosis. In a later report of 12 June 2003 ... the author went on to say, 'I would be concerned that a custodial sentence could trigger a further breakdown'." 14 The judge referred to a number of mitigating factors including the applicant's youth, his lack of criminal history, his early plea and his assistance to the authorities, and added "he is psychiatrically fragile". He said he had no alternative but to impose a custodial sentence but the applicant would receive the leniency involved in that sentence being served by way of periodic detention. 15 In my judgment there was no error in his Honour's approach. The offence, which carried a maximum penalty of fifteen years' imprisonment, merited a custodial sentence but the other factors identified by his Honour fully merited a sentence by way of periodic detention. Mr Papayanni submitted that even a sentence by way of periodic detention would involve the high risks identified by Dr Vaughan but I cannot accept this submission. Dr Vaughan's reports can properly be read as referring to a sentence of full time custody. 16 The parole officer stated in the pre-sentence report that the applicant had been assessed as suitable for a periodic detention order. The officer had contacted the applicant's family, his psychiatrist, and the hospital consultant psychiatrist, and can be expected to have discussed the applicant's suitability for serving a custodial sentence by way of periodic detention order. 17 The parole officer was not required to give oral evidence and a further report was not obtained from Dr Vaughan dealing with the risks of periodic detention. His third report was dated 2 July shortly before the sentence proceedings came before the judge and approximately a month before the substantive hearing. The judge was entitled to accept the opinion of the parole officer and treat Dr Vaughan's concerns as being directed to the effect of a sentence of full time custody. 18 Accordingly, I would grant leave to appeal but dismiss the appeal. The Court was informed during the hearing that the appellant had been admitted to bail by Dunford J shortly before he was due to report at the Silverwater Detention Centre on 22 August 2003 and that he had remained on bail ever since. Prima facie the sentence has been running in the meantime and since the Court proposes to dismiss the appeal, it would be necessary, if the necessary power was available, for the sentence to be adjusted to take account of the time spent on bail. 19 When the matter was first heard neither counsel were in a position to identify the source of the Court's power, on dismissing an appeal, to re-start the sentence and the Court itself did not have that information. 20 The appellant's bail was therefore continued and the matter was adjourned until 8 April when the Court sat at 9.30 am. The Crown was directed to file and serve written submissions dealing with the existence and sources of any power which the Court might possess to re-start the sentence. 21 Written submissions from the Crown were received on the afternoon of 7 April but we were not then persuaded that we had the power to adjust the sentence by varying the relevant dates. 22 The appeal was adjourned until today and the Crown was directed to file and serve further written submissions which were received on 27 April. 23 The position which has now arisen has exposed both a sorry mess and a serious gap in the sentencing legislation of the State. Section 8 of the Periodic Detention of Prisoners Act 1981 provided that a sentence shall commence on the date specified in the order imposing the sentence. 24 That Act was repealed by the Crimes (Sentencing Procedure) Act 1999. Section 6(1) of that Act provides that a court that has sentenced an offender to imprisonment for no more than three years may make a periodic detention order directing that the sentence be served by way of periodic detention. Section 44(1) of the Act requires the court to set a non-parole period for any sentence including a sentence by way of periodic detention. Section 47(1) relevantly provides that a sentence of imprisonment commences, subject to s 70, on the day it is imposed. Section 70, which was derived from s 8 of the 1981 Act provides: "Having made a periodic detention order in relation to a sentence of imprisonment, a court is to fix the date of commencement of the sentence so that the date of commencement occurs no earlier than seven days and no later than twenty-one days after the date on which the order was made." 25 It is now necessary to refer to the Crimes (Administration of Sentences) Act 1999. Section 83(1)(a) of that Act provides that an offender must report to a periodic detention centre at the beginning of each detention period: "in accordance with the requirements of the offender's periodic detention order as varied from time to time under s 85." 26 The sentencing judge exercised this power when he directed the appellant to report at the Silverwater Detention Centre on 22 August 2003 at 6 pm. Section 85 enables the Commissioner of Corrective Services to make an order inter alia which varies the time at which an offender's detention period begins. No such power has been given by that Act to the original sentencing court, or to this Court. 27 The sentence of imprisonment of two years and the non-parole period of one year were expressed to commence on 22 August 2003 and to expire respectively on 21 August 2004 and 2005. The order that the sentence be served by way of periodic detention was expressed to expire at the end of the one year non-parole period. Section 82(1) of the Crimes (Administration of Sentences) Act provides that an offender's periodic detention order expires at the end of the sentence to which it relates or when the offender is released on parole, whichever first occurs. 28 Unless the court has a statutory power, exercisable when an appeal is dismissed, to vary the commencement dates of the sentence and the periodic detention order, both continued to run while the appellant was on bail. 29 The relevant principles were established with complete clarity twenty years ago by Whan v McConaghy (1984) 153 CLR 631. In that case the claimant had been sentenced by the District Court in its criminal appellate jurisdiction to imprisonment for three months to be served by way of periodic detention. The claimant was granted bail pending an application to the Court of Appeal for the judicial review of the sentence. 30 The judicial review proceedings were dismissed and the court purported to re-start the sentence and the periodic detention order as those imposed by the District Court had expired. The appellant's appeal to the High Court against these orders was successful. In their joint judgment Mason, Murphy, Wilson and Deane JJ said at 636: "The fact that the applicant did not actually commence to serve the sentence of imprisonment did not, in itself, prevent the term of the sentence from commencing to run. In that regard, it is to be recalled that not even escape from custody had the effect, at common law, of preventing a term of imprisonment from continuing to run." 31 The judgment of Brennan J at pp 641 to 642 was to the same effect. 32 The majority continued at 636: "It becomes necessary to determine whether the orders for bail which were purportedly made by the Supreme Court operated to prevent the commencement of the term of imprisonment or to interrupt it after it had commenced." 33 The court held that the Bail Act 1978, as it then stood, contained no provision to that effect. The Bail Act 1978 as amended and currently in force still contains no provision to that effect. 34 Counsel for the Crown contended in his written submissions that the Court of Criminal Appeal had either an implied or inherent power, when dismissing an appeal, to adjust the sentence to allow for the time the offender had been at liberty on bail pending the hearing of the appeal. 35 However Whan v McConaghy is binding authority for the contrary proposition. The majority said at page 635: "It is argued for the applicant that in the absence of express statutory authority the Court of Appeal had no power to substitute a fresh order of commitment to prison for one the term of which had expired. As examples of circumstances in which such statutory authority exists, the applicant points to cases where a prisoner escapes while serving a sentence (Crimes Act 1900 (NSW), s 447A), where an appellant is admitted to bail pending the hearing of his appeal by the Court of Criminal Appeal (Criminal Appeal Act 1912 (NSW), s 18(3)) and where a person convicted and sentenced by a court of petty sessions appeals to the District Court (Justices Act 1902 (NSW), ss 122-125B). The researches of counsel have failed to find any precedent for the exercise of an inherent jurisdiction to substitute a fresh order of commitment to prison for a term of imprisonment which has expired. It would seem clear enough that, if the term of imprisonment for which the applicant was sentenced had expired, the Court of Appeal lacked inherent jurisdiction to revitalise the expired term by directing that it commence again at some future time." 36 The High Court held that the Court of Appeal, which had dismissed the offender's judicial review proceedings, had no power to adjust his sentence to allow for time he had been on bail. 37 At that time s 18(3) of the Criminal Appeal Act relevantly provided: ["The time during which an appellant, pending the determination of the appellant's appeal, is at liberty on bail … shall not count as part of any term of imprisonment … under the appellant's sentence.] [Any imprisonment … under such sentence, whether it is the sentence passed by the court of trial or the sentence passed by the court shall, subject to any directions which the court may give as aforesaid, be deemed to be resumed or to begin to run, as the case requires, if the appellant is in custody, as from the day on which the appeal is determined, and if the appellant is not in custody as from the day on which the appellant is received into prison, under the sentence."] (brackets supplied) 38 The section worked satisfactorily and there was no need for it to be amended or repealed. The Supreme Court Act was amended in 1996 by Act No 6 to introduce the substance of the section as s 69A(3) and (5) for the purpose of correcting the defect exposed by Whan v McConaghy. 39 Section 69A applies to proceedings for judicial review of a conviction or sentence. Sub-sections (3) and (5) currently provide: "(3) The time during which a claimant is at liberty on bail (pending the determination of the proceedings for review) does not count as part of any term of imprisonment under the claimant's sentence. (5) In determining proceedings for judicial review, the Court may order that the imprisonment under the original sentence of imprisonment is to commence or recommence on a day specified by the Court." 40 In the meantime however the Courts Legislation Further Amendment Act 1995 Schedule 1 cl 1.2[2] had repealed the then s 18(3) of the Criminal Appeal Act and replaced its first limb with s 18(2) in its current form that was adopted in 1996 in s 69A(3) of the Supreme Court Act. However the 1995 Act did not re-enact the second limb of the former s 18(3) or include any provision corresponding to what in 1996 became s 69A(5). Section 18(2) currently provides: "The time during which an appellant is at liberty on bail (pending the determination of his or her appeal) does not count as part of any term of imprisonment under the appellant's sentence." 41 As can be seen by comparing this with the former s 18(3) set out [para 37] with brackets to identify its two limbs, the first has its equivalent in s 18(2) but there is no equivalent of the second. Yet it was the second limb of the old s 18(3) which, as the majority said in Whan v McConaghy [para 35] conferred statutory power "to substitute a fresh order of commitment to prison for one the term of which had expired"

47 In my judgment therefore this Court has no power to adjust and re-start the appellant's sentence and periodic detention order. 48 However the periodic detention order remains in force and unless the time for performance has been or is varied by the Commissioner under s 85 of the Crimes (Administration of Sentences) Act 1999 the appellant is required by s 83(1)(a) of the same Act to report to a periodic detention centre at the beginning of each detention period for the remainder of his sentence. The next detention period commences at 6pm this evening and the appellant will be in breach of the order, unless it has been or will be varied by the Commissioner, if he fails to attend at Silverwater Detention Centre this evening at 6pm. 49 The order I propose is that leave to appeal be granted but that the appeal be dismissed. 50 DOWD J: I agree. 51 GREG JAMES J: I also agree. I would add, however, the following. It was submitted to us in writing by the Crown that there was an implied power for the court to make some order dealing with the sentence imposed by another court where we were exercising the powers of the court to consider an application for leave to appeal against sentence. 52 The power that this court has to intervene in respect of a sentence imposed elsewhere is entirely to be found in s 6 of the Criminal Appeal Act. That power may only be exercised in the event that the court is of the view that some other sentence, either more or less severe, is warranted in law and should have been passed. 53 The court is a creature entirely of statute under s 3 of the Criminal Appeal Act. Whilst it may be constituted by the Supreme Court, it does not have the amplitude of jurisdiction conferred on that court. It has no powers in my view except that conferred upon it by the Criminal Appeal Act and those powers as may be implied into the operation of that Act as necessary for giving effect to the statutory powers conferred upon the court by the Criminal Appeal Act. 54 I add those remarks to what has been said by the presiding judge. It would appear to me in consequence that the sentence, the non-parole period and the periodic detention order have been running since they have been imposed upon the applicant and that, therefore, the dates for the expiration of each of those should remain unaltered notwithstanding the grant of bail and the application for leave to this court. 55 I agree with the orders proposed. 56 HANDLEY JA: The orders will be as proposed. The effect of the order is that the appellant's entitlement to remain at liberty on bail has terminated although, until the reporting time arrives, he is entitled to remain at liberty. **********

Regina v Hall

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