Director of Public Prosecutions (Cth) v Springer

[2014] NSWCCA 52

Court of Criminal Appeal

New South Wales

Case Title:

Director of Public Prosecutions (Cth) v Springer

Medium Neutral Citation:

[2014] NSWCCA 52

Hearing Date(s):

10 April 2014

Decision Date:

10 April 2014

Before:

Bathurst CJ; Fullerton J; Davies J

Decision:

(1) The sentence imposed by this Court on 25 May 2009 of imprisonment for four years six months, with a non-parole period of three years eight months, be taken to have commenced on 27 August 2010.

(2) The earliest date on which the offender will be eligible for release is 26 April 2014.

Catchwords:

CRIMINAL - sentencing - commencement date - consideration of time already spent in custody

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW), s 47(3)
Criminal Appeal Act 1912 (NSW), s 14A
Judiciary Act 1903 (Cth), s 68

Cases Cited:

R v Springer [2009] NSWCCA 144
Springer v The Queen [2007] NSWCCA 289; (2007) 177 A Crim R 13

Texts Cited:

NA

Category:

Sentence

Parties:

Director of Public Prosecutions (Cth) (Appellant)
Mr Patrick Springer (Respondent)

Representation

- Counsel:

Counsel:
Ms Abraham QC (Appellant)
Mr Odgers (Respondent)

- Solicitors:

Solicitors:
Commonwealth Director of Public Prosecutions (Appellant)
Penelope Purcell (Respondent)

File Number(s):

CCA 2006/4996

Decision Under Appeal

- Before:

McClellan CJ at CL; James J; Simpson J

- Date of Decision: 

25 May 2009

- Citation:

R v Springer [2009] NSWCCA 144

- Court File Number(s):

CCA 2006/4996

Publication Restriction:

NA

JUDGMENT

1. THE COURT: On 13 May 2009 Patrick Springer was the respondent in this Court in proceedings brought by the Commonwealth Director of Public Prosecutions (the 2009 Proceedings). In the 2009 Proceedings the Director appealed against the sentence imposed on the offender by the Court of Criminal Appeal in Springer v The Queen [2007] NSWCCA 289; (2007) 177 A Crim R 13 (the 2007 Decision). The 2007 Decision reduced Mr Springer's original sentence, which had been imposed by Bennett DCJ in the District Court, because of his undertaking to co-operate with law enforcement agencies. The ground of appeal in the 2009 Proceedings was Mr Springer's subsequent failure to comply with his undertaking.

2. Mr Springer did not appear before this Court in the 2009 Proceedings but the Court was satisfied that it was appropriate to proceed in his absence: Criminal Appeal Act 1912 (NSW), s 14A; Judiciary Act 1903 (Cth), s 68, referred to in R v Springer [2009] NSWCCA 144 at [2]-[3].

3. On 25 May 2009 the Court handed down judgment (R v Springer [2009] NSWCCA 144) (the 2009 Decision), pursuant to which Mr Springer was sentenced as follows:

   "(1) Appeal against the sentence imposed on the respondent by the Court of Criminal Appeal on 16 October 2007 allowed.

   (2) Substitute for the non-parole period set by the Court of Criminal Appeal on 16 October 2007 a non-parole period of three years eight months.

   (3) The head sentence of four years six months imposed by the Court of Criminal Appeal on 16 October 2007 confirmed."

4. At the time the orders in the 2009 Decision were made, Mr Springer had been in prison for the relevant offence from 16 December 2005 to 15 September 2008. Therefore, as a result of the 2009 Decision, at the time of making the orders in the 2009 Decision, Mr Springer had 11 months of the non parole period and 1 year and 9 months of the parole period remaining to serve.

5. Because the offender was not before the Court at the time of re-sentencing in the 2009 Proceedings, the Court declined to specify a commencement date for the sentence, pursuant to s 14A(2) of the Criminal Appeal Act. A warrant was issued for Mr Springer's arrest pursuant to the 2009 Decision.

6. Mr Springer was arrested and yesterday returned to Australia in custody. The offender now being before the Court, the Court may specify a commencement date for the sentence: s 14A(2) Criminal Appeal Act. In so doing, the sentence will be deemed to commence today unless the Court directs that it commence on an earlier day, taking into account time for which the offender has been held in custody in relation to the offence: Crimes (Sentencing Procedure) Act 1999 (NSW), s 47(3) and Criminal Appeal Act, s 14A(3).

7. The Court has been informed that Mr Springer was detained pursuant to the warrant issued by this Court and has been in custody since 27 May 2013; that is for 10 months and 15 days. Taking into account Mr Springer's detention both in Cambodia and earlier from 16 December 2005 to 15 September 2008, Mr Springer has been in custody for 3 years 7 months and 15 days. The commencement date of the sentence should reflect this period of imprisonment.

8. The Court makes the following order:

   (1) The sentence imposed by this Court on 25 May 2009 of imprisonment for four years six months, with a non-parole period of three years eight months, be taken to have commenced on 27 August 2010.

   (2) The earliest date on which the offender will be eligible for release is 26 April 2014.

   **********