Cross v The Queen (No. 2) - [2012] NSWCCA 234

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Cross v R (No. 2) [2012] NSWCCA 234
Hearing dates: 29 May 2012
Decision date: 21 November 2012
Before: Allsop P, Hidden and Davies JJ
Decision:
The sentences imposed on 10 September 2012 be varied to read as follows:
(1) In respect of Count 1 and taking into account the matter on the Form 1, a non-parole period of 18 months commencing 9 March 2010 and expiring 8 September 2011 with a balance of term of 6 months;
(2) In respect of Count 2 and taking into account the matter on the Form 16BA, a fixed term of 15 months commencing 9 June 2011 and expiring 8 September 2012;
(3) In respect of Count 3, a non-parole period of 3 months commencing 9 September 2012 and expiring 8 December 2012 with a balance of term of 2 years and 9 months expiring 8 September 2015.
(4) Direct that the Applicant be released to parole on 8 December 2012 with the following additional conditions:
(a) The Applicant to report to the Sydney office of the Probation and Parole Service within seven days of his release to parole; and
(b) He is to accept and comply with all reasonable directions for treatment and counselling.

Catchwords: CRIMINAL LAW -sentencing - parole orders - whether to be made for each of a number of partly cumulative sentences
Legislation Cited: Crimes (Administration of Sentences) Act 1999
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Cross v R [2012] NSWCCA 114
Category: Consequential orders
Parties: Terry Cross (Applicant)
Crown
Representation: Counsel:
D Barrow (Applicant)
T Smith (Crown)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2009/161797 & 2010/60784
Decision under appeal

Date of Decision:

2010-12-14 00:00:00

Before:

G D Woods DCJ

File Number(s):

2009/161797 & 2010/60784

Judgment

THE COURT:Judgment was delivered in this matter on 10 September 2012: Cross v R [2012] NSWCCA 114. The issue of whether an order should be made under s 50 Crimes (Sentencing Procedure) Act 1999 was raised but not determined pending the receipt of any further submissions the parties wished to make. This was because the Sentencing Judge made no such order and the parties did not address the matter in their submissions at the hearing of the appeal.

The particular issue was whether s 50 mandated the making of a parole order in respect of Count 1 even where the Applicant was required to serve two further terms of imprisonment after the date of the expiry of the non-parole period in respect of Count 1. There was the further matter that the date of expiry of the non-parole period in respect of Count 1 had passed.

Section 50 of the Act provides:

50 Making of parole orders by court

(1)When a court imposes a sentence of imprisonment for a term of 3 years or less, being a sentence that has a non-parole period, the court must make an order directing the release…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cross v The Queen (No. 2)

Details

AGLC: Cross v The Queen (No. 2) [2012] NSWCCA 234
Case: [2012] NSWCCA 234
Decision Date: 21 November 2012

CaseChat Overview and Summary

In the matter of Cross v The Queen, the respondent was convicted of multiple offences and sentenced to imprisonment. The primary issue before the court was whether parole orders should be made for each of the partly cumulative sentences. The court had to determine the appropriate legal framework for dealing with parole orders in cases involving multiple, partly overlapping sentences. This decision followed an earlier ruling in the same case, where the focus was on the appropriateness of the original sentence.

The court considered whether the parole orders should be made for each of the partly cumulative sentences or if they should be consolidated into a single order. The court examined the legislative provisions and case law to ascertain the correct approach. It was held that the legislative scheme did not provide for the making of multiple parole orders where the sentences are partly cumulative. Instead, the court was required to make a single order that covered all the relevant sentences. This decision was consistent with the overarching principle of avoiding fragmentation and ensuring clarity in the sentencing and parole process.

The court ruled that a single parole order should be made for the cumulative sentences. This approach was deemed to provide greater certainty and avoid potential confusion in the implementation of parole conditions. The decision was grounded in statutory interpretation and judicial precedent, reflecting the need for a coherent and efficient system of parole orders. The ruling clarified the procedure for making parole orders in cases involving multiple sentences and provided guidance for future cases of a similar nature. The court's decision was seen as a significant clarification in the sentencing and parole framework, ensuring that orders are made in a manner that is both legally sound and practically effective.

Orders