R (Commonwealth) v Paul James

[2013] NSWDC 113

District Court

New South Wales

Medium Neutral Citation:	R (Commonwealth) v Paul James [2013] NSWDC 113
Decision date:	07 June 2013
Before:	Cogswell SC DCJ
Decision:	Term 'fixed' deleted in respect of count 16 - single non-parole period adjusted to include count 16.
Catchwords:	CRIMINAL LAW - Sentence Procedure - sentence proceedings re-opened under s 43 Crimes (Sentencing Procedure) Act 1999 - no power to fix non-parole period under s 19AB(1)(d) Crimes Act 1914 (Cth) - term 'fixed' deleted in respect of count 16 - single non-parole period adjusted to include count 16.
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999, s 43. Crimes Act 1914 (Cth), s 19AB(1)(d).
Category:	Sentence
Parties:	Regina (Crown) Paul James (Offender)
Representation:	Counsel: R G Turnbull (Offender) Solicitors: Office of the Director of Public Prosecutions (Crown)
File Number(s):	DC 2010/154421

SENTENCE CORRECTION

1. This is a case where I sentenced a man for a series of child pornography offences. I sentenced him on 4 November 2011.

1. The Commonwealth Director of Public Prosecutions prosecuted the case. The Director has now made an application under s 43 of the Crimes (Sentencing Procedure) Act 1999 for me to re-open the proceedings. The Director argues that some of the penalties which I imposed are contrary to law.

1. Ms M Catsanos appears for the Director and Mr R G Turnbull of counsel appears for the offender whose name is Paul James.

1. The Court of Criminal Appeal has said that the power given by the section should be construed widely.

1. Ms Catsanos has pointed to two errors.

1. The first is mathematical and straightforward. In respect of count 5, I sentenced the offender to a term of 6 years and 3 months to date from 14 May 2012 and I said in my order that that sentence expired on 13 September 2018. Obviously my mathematics were wrong and the date 13 September 2018 is contrary to law because it exceeds the sentence which I specified; or perhaps better expressed it does not represent the sentence required to be imposed by law which I had just announced.

1. Accordingly, I amend my sentence in respect of count 5 by deleting 13 September 2018 and substituting 13 August 2018.

1. I should add at this point that I have heard from both Ms Catsanos and Mr Turnbull on the issues that I am determining and they are both in agreement.

1. The other item which needs correction concerns my sentence for count 16 and the non-parole period which I fixed for all of the sentences. My sentence in respect of count 16 is recorded as being a fixed term of 1 year from 14 September 2011 expiring 13 September 2012. The mathematics were right in that case but Ms Catsanos argues that I overlooked s 19AB(1)(d) of the Crimes Act 1914 (Cth). I think she is right. There appears to be no power for me to fix a fixed term.

1. Accordingly, the sentence in respect of count 16 will be simply expressed as a sentence. That sentence is the same length with the same commencement and expiry dates. I would amend the order which I made to delete the word 'fixed' in respect of count 16.

1. Ms Catsanos pointed out that my order in respect of the single non parole period needs to be consequently adjusted to take into account my need now to fix the non-parole period in respect of count 16.

1. Accordingly, I will amend the order which I made in respect of the single non parole period by deleting the number 15 and substituting the number 16 in the expression 1-15; by deleting 3 years 11 months and substituting 4 years and 3 months; by deleting 14/1/12 and substituting 14/9/11. The effect of that is that the non-parole period which I intended to fix still expires on the same day, namely 13 December 2015. The overall non parole period is still 4 years and 3 months which was my intention expressed in my remarks on sentence. The single non-parole period now also applies to count 16.

HIS HONOUR: I think that's it, Ms Catsanos. Do you agree?

CATSANOS: I agree, your Honour. Seems appropriate to me.

HIS HONOUR: Mr Turnbull, do you agree?

TURNBULL: I agree, your Honour, nothing further.

HIS HONOUR: Thank you, both.

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Decision last updated: 23 July 2013