Regina v Joseph Brian Dickinson

S Kavanagh SOLICITORS: Legal Aid Commission of New South Wales

IN THE COURT OF CRIMINAL APPEAL 2004/2361

WOOD CJ at CL SIMPSON J BARR J

16 AUGUST 2005 REGINA v JOSEPH BRIAN DICKINSON Judgment

1 THE COURT: This is an application under s43 Crimes (Sentencing Procedure) Act 1999 for an order to correct what is asserted to be a sentencing error. The applicant, Joseph Brian Dickinson, pleaded guilty in the District Court to one count of malicious wounding with intent to do grievous bodily harm and was sentenced to imprisonment for two years with a non-parole period of twelve months. The sentence was wholly suspended upon the applicant's entering into a bond under s12 Crimes (Sentencing Procedure) Act. The Crown appealed to this Court, constituted as it now is. The Court allowed the appeal and substituted a sentence of imprisonment for two years and two months. The Court ordered the sentence to be served as periodic detention. The Court declined to set a non-parole period. In giving the first judgment of the Court, Barr J explained in these words why the Court had so declined - The term that I impose would be a fixed term. In my opinion the fixed term is appropriate because the conditions of supervision that will apply will not require the imposition of a parole period. 2 Section 43 Crimes (Sentencing Procedure) Act is as follows - 43 Court may reopen proceedings to correct sentencing errors (1) This section applies to criminal proceedings (including proceedings on appeal) in which a court has: (a) imposed a penalty that is contrary to law, or (b) failed to impose a penalty that is required to be imposed by law, and so applies whether or not a person has been convicted of an offence in those proceedings. (2) The court may reopen the proceedings (either on its own initiative or on the application of a party to the proceedings) and, after giving the parties an opportunity to be heard: (a) may impose a penalty that is in accordance with the law, and (b) if necessary, may amend any relevant conviction or order. (3) For the purposes of this section, the court: (a) may call on the person to whom the proceedings relate to appear before it and, if the person does not appear, may issue a warrant for the person's arrest, or (b) if of the opinion that the person will not appear if called on to do so, may, without calling on the person to appear before it, issue a warrant for the person's arrest. (4) Subject to subsection (5), nothing in this section affects any right of appeal. (5) For the purposes of an appeal under any Act against a penalty imposed in the exercise of a power conferred by this section, the time within which such an appeal must be made commences on the date on which the penalty is so imposed. (6) In this section: " impose a penalty " includes: (a) impose a sentence of imprisonment or a fine, or (b) make a periodic detention order, home detention order or community service order, or (c) make an order that provides for an offender to enter into a good behaviour bond, or (c1) make a non-association order or place restriction order, or (d) make an order under section 10, 11 or 12, or (e) make an order or direction with respect to restitution, compensation, costs, forfeiture, destruction, disqualification or loss or suspension of a licence or privilege. 3 The judgment was delivered ex tempore and the terminology employed was loose. The expression "fixed term" does not appear in the legislation which governed the imposition of the sentence, but harked back to earlier legislation of a not dissimilar kind. 4 Counsel for the applicant submitted that since the Court did not specify conditions to apply to the applicant's imprisonment or explain what it meant by the expression "the conditions of supervision that will apply", it must, in declining to set a non-parole period, have been referring to the conditions of supervision that ordinarily apply where a sentence of imprisonment is ordered to be served as periodic detention. That submission is accepted.

5 Sections 44 and 45 Crimes (Sentencing Procedure) Act deal with non-parole periods and, by implication, parole periods. The form of s44 that applies to the present case is that which took effect on 1 February 2003. The sections are in these words - 44 Court to set non-parole period (1) When sentencing an offender to imprisonment for an offence, the court is first required to set a non-parole period for the sentence (that is, the minimum period for which the offender must be kept in detention in relation to the offence). (2) The balance of the term of the sentence must not exceed one-third of the non-parole period for the sentence, unless the court decides that there are special circumstances for it being more (in which case the court must make a record of its reasons for that decision). (3) The failure of a court to comply with subsection (2) does not invalidate the sentence. (4) Schedule 1 has effect in relation to existing life sentences referred to in that Schedule.

45 Court may decline to set non-parole period (1) When sentencing an offender to imprisonment for an offence (other than an offence set out in the Table to Division 1A of this Part), a court may decline to set a non-parole period for the offence if it appears to the court that it is appropriate to do so: (a) because of the nature of the offence to which the sentence relates or the antecedent character of the offender, or (b) because of any other penalty previously imposed on the offender, or (c) for any other reason that the court considers sufficient. (2) If a court declines to set a non-parole period for a sentence of imprisonment, it must make a record of its reasons for doing so. (3) Subsection (2) does not limit any other requirement that a court has, apart from that subsection, to record the reasons for its decisions. (4) The failure of a court to comply with the requirements of subsection (2) with respect to a sentence does not invalidate the sentence.

6 Section 101A of the same Act is as follows - 101A Effect of failure to comply with Act A failure to comply with a provision of this Act may be considered by an appeal court in any appeal against sentence even if this Act declares that the failure to comply does not invalidate the sentence. 7 The first question that arises is whether the sentence is contrary to law. It was submitted that it was, first because the Court failed to comply with the requirement of s45(2) to record reasons for declining to fix a non-parole period and secondly because such reasons as were recorded disclosed error. 8 The first submission was that only a record of proper reasons could comply with s45(2). However, since the success of that argument depends on the success of the second and must in addition overcome the possibly validating effect of subs (4), it is convenient to deal immediately with the second submission. 9 It was submitted that in imposing a term of imprisonment a court is required to decide on the length of the term before considering any of the alternatives to full-time imprisonment, including periodic detention. The Court cannot lawfully determine that a custodial sentence of a certain length is appropriate and then impose a sentence of different length when it subsequently decides to order that it be served as periodic detention. The applicant cited a helpful passage from the judgment of Howie J in Zamagias v The Queen [2002] NSWCCA 17 at 26 - 26. Having determined that there is no other penalty appropriate other than a sentence of imprisonment, the court is next to determine what the term of that sentence should be; R v Foster [2001] NSWCCA 215 at [30]. This has been regarded as the first step of a two-step approach in the imposition of a sentence of imprisonment, see R v Blackman and Walters [2001] NSWCCA 121 at [50] to [52]; JCE at [17]. The determination of the term is to be made without regard to whether the sentence will be immediately served or the manner in which it is to be served. This is because any of the alternatives available in respect of a sentence of imprisonment can only be considered once the sentence has been imposed, see s 6 (periodic detention order), s 7 (home detention order) and s 12. It follows that the term of the sentence cannot be influenced by what order might be made after the sentence has been imposed. For example it cannot be increased because it is to be served by way of periodic detention: R v Wegener [1999] NSWCCA 405, or by home detention: R v Jurisic (1998) 45 NSWLR 209 at 249. Nor can the term be reduced because an otherwise appropriate alternative is unavailable: R v T (NSWCCA, 19 June 1995). (emphasis added) 10 It was submitted that since the Court's reference to "conditions of supervision" was to supervision under periodic detention, the sentence was determined having "regard to the manner in which it (was) to be served", to use the terminology of Zamagias. That was said to be an error of law. Reference was made to R v Ngo [2005] NSWCCA 107 and R v Wegener [1999] NSWCCA 405 as examples of cases in which courts had impermissibly imposed sentences of periodic detention longer than the sentences they would have imposed for full-time custody. 11 It may be accepted that the reference of this Court to "conditions of supervision" was to the supervision that ordinarily occurs in periodic detention, namely the actual supervision that takes place during days of detention and, later on, during the performance of any Work Order into which the order of periodic detention may be converted through administrative action. 12 When dealing with the sentence to be imposed Barr J said this - This being a Crown appeal, it is necessary to impose the lowest reasonable sentence in substitution that could be imposed. Although I would at first instance have imposed a sentence of full-time custody I would impose a period of two years and six months' imprisonment which I would order to be served by way of periodic detention. From the two year and six month period I would give the respondent credit for the almost four months for which he has now been subject to the conditions imposed by the sentence appealed from. I would therefore propose to impose a sentence of two years and two months periodic detention. 13 The allocation of a term of imprisonment to non-parole period and balance is not a two-stage process: R v Hampton (1998) 44 NSWLR 729; R v Simpson (2001) 53 NSWLR 704. The sentence of two years and six months, reduced to two years and two months, was the total sentence the Court had in mind. For the purposes of s44 it comprised the non-parole period and the balance of the term. The balance of the term, however, was nil. 14 The term of the sentence, namely a sentence of two years and two months, was determined before the Court considered whether to direct that the sentence be served as periodic detention. The Court did not vary the length of the sentence because it was about to order that it be served by way of periodic detention, for example by increasing it as was done in R v Wegener and R v Ngo. The cases cited do not therefore support the applicant's argument. 15 It would not be correct to say that in declining to set a non-parole period the Court determined the sentence having "regard to the manner in which it (was) to be served". We do not regard the sentence as being one that is contrary to law. 16 Knowledge of and regard to the nature of the supervision which will probably result from the sentence a court is about to impose seems to us to be essential to an informed decision about whether there should be parole and when it should commence. Not to have regard to such matters would be contrary to common sense as well as sound sentencing practice. In R v Walsh and Sharp [2004] NSWSC 111 it was held by implication that a sentence of the kind now attacked did not contravene what this Court said in Zamagias. 17 In the Court's opinion the reasons given were sufficient to comply with the requirements of s45(2). 18 The application is dismissed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.