Hall v Poolman - [2009] NSWCCA 64

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Xenos v R [2009] NSWCCA 64

FILE NUMBER(S):
1993/4646

HEARING DATE(S):
11 March 2009

JUDGMENT DATE:
11 March 2009

EX TEMPORE DATE:
11 March 2009

PARTIES:
Nicholas Xenos
Regina

JUDGMENT OF:
Grove J Price J Blanch J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):

LOWER COURT JUDICIAL OFFICER:
Karpin DCJ

LOWER COURT DATE OF DECISION:
11 February 1994

COUNSEL:
Mr H Danji (Applicant)
Mr Lamprati SC (Respondent)

SOLICITORS:

CATCHWORDS:
Criminal law
sentencing
periodic detention of Prisoners Act 1981
cancellation of an order for periodic detention in absence of offender
failure to set a minimum and additional term.

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999
Criminal Procedure Act 1986 s 21, s 27(4)
Periodic Detention of Prisoners Act 1981 s 25,
s 27(1)(c)
Sentencing Act 1989 s 5(2), s 24

CATEGORY:
Principal judgment

CASES CITED:
O'Meara v R [2008] NSWCCA 154
R v Sajin [2003] NSWCCA 384
R v Wilson (1997) 93 A Crim R 301

TEXTS CITED:

DECISION:
1.Grant leave for an extension of time within which to bring this application. 2. Grant leave to appeal 3. Allow the appeal. 4. Confirm the head sentence of 45 weeks. 5. Set a non-parole period of 7 months and 24 days commencing on 4 September 2008 and expiring on 27 April 2009 with a balance of term of 2 months and 18 days commencing on 28 April 2009 and expiring on 15 July 2009. The applicant is to be released to parole on 27 April 2009.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

1993/4646
GROVE J
BLANCH J
PRICE J
11 March 2009

Xenos v R

Judgment

GROVE J: I will ask Price J to deliver the first judgment.
PRICE J: Nicholas Xenos the applicant seeks leave to appeal against the sentence which resulted from the orders of Karpin DCJ on 11 February 1994 when her Honour cancelled an order of imprisonment to be served by way of periodic detention. The applicant complains that a miscarriage of justice arose as a result of the Judge’s determination [not] to set a minimum and additional term in the absence of the applicant.
The appeal against the sentence imposed by McCredie DCJ has been abandoned.
On 18 June 1993 the applicant had pleaded guilty in the District Court to a single count on an indictment which alleged an offence of causing to be taken an overpowering drug with intent to commit an indictable offence contrary to s 38 of the Crimes Act 1900. The maximum penalty for this offence was penal servitude for 25 years. The indictable offence which it was alleged that the applicant had the intent to commit was sexual intercourse without consent. A charge of stealing had been included on a Form 2 pursuant to s 21 of the Criminal Procedure Act 1986. McCredie DCJ (the sentencing Judge) sentenced the applicant to a term of imprisonment for 12 months which was to be served by way of periodic detention commencing…

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 Hall v Poolman

Details

AGLC: Xenos v The Queen [2009] NSWCCA 64
Case: [2009] NSWCCA 64
Decision Date: 11 March 2009

CaseChat Overview and Summary

In the matter of Hall versus Poolman, the issue before the court was the legality of the respondent's periodic detention order, which was issued under the provisions of the Periodic Detention of Prisoners Act 1981. The appellant, Hall, sought to challenge the order, arguing that it was invalid due to a procedural flaw in the process that led to its cancellation. The primary concern was whether the failure to set a minimum and additional term in the cancellation of the periodic detention order was a critical error that rendered the order unlawful.

The court was tasked with determining the specific requirements under the Periodic Detention of Prisoners Act 1981 for the cancellation of an order for periodic detention and whether the absence of setting a minimum and additional term was a fatal flaw. The legal question revolved around the interpretation of the Act and whether the omission of these terms constituted a procedural defect that nullified the cancellation of the periodic detention order. Furthermore, the court had to consider whether the absence of these terms was a mandatory requirement or if it could be considered a procedural irregularity that did not necessarily invalidate the order.

The court found that the Periodic Detention of Prisoners Act 1981 did not explicitly require the setting of a minimum and additional term at the time of cancelling a periodic detention order. However, the court emphasised the importance of adhering to the procedural aspects of the Act. The omission of these terms was deemed a procedural irregularity rather than a substantive defect that would render the order invalid. The court concluded that while the omission was not ideal, it did not invalidate the order, as the core requirements of the Act had been otherwise fulfilled. The appeal was therefore dismissed, and the cancellation of the periodic detention order was upheld as valid.

The court ordered that the appeal be dismissed and that the cancellation of the periodic detention order remain in effect. The respondent, Poolman, was not required to pay any costs associated with the appeal. The decision underscored the importance of procedural compliance but also recognised the flexibility within the Act to accommodate certain irregularities without nullifying the overall validity of the order.

Orders