R v Bonat (No.2)

CITATION: R v Bonat (No.2) [2004] NSWCCA 242

HEARING DATE(S): 5 & 19 July 2004

JUDGMENT DATE:
19 July 2004

JUDGMENT OF: Sperling J at 1

DECISION: The sentence imposed by Shadbolt DCJ on 10 October 2003, consisting of a one year non-parole period commencing 6 March 2007 and expiring on 5 March 2008 and a three year parole period expiring on 5 March 2011, be varied pursuant to s59 of the Crimes (Sentencing Procedure) Act 1999 so that the sentence commences on 7 March 2003, the non-parole period expires on 6 March 2004 and the total sentence expires on 6 March 2007.

CATCHWORDS: Criminal law - variation of sentence - no question of principle

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999, s59

CASES CITED: R v Bonat [2004] NSWCCA 240

PARTIES :
Regina
Stephen Bonat

FILE NUMBER(S): CCA 60082/04

COUNSEL: Ms J Bremner (Solicitor) for the Crown
Ms J Witmer (Solicitor) for the Appellant

SOLICITORS: Director of Public Prosecutions
Legal Aid Commission for the Appellant

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/71/0018

LOWER COURT
JUDICIAL OFFICER : Norrish DCJ & Shadbolt DCJ

- 2 -

60082/04

Sperling J

Regina v Stephen Bonat

Judgment No.2

1 Sperling J: On 5 June 2003 Norrish DCJ imposed sentences on the appellant, the effective sentence being for seven years and six months with a non-parole period of four years to date from 7 March 2003 and expiring on 6 March 2007.

2 The court has, this day, allowed an appeal against the convictions in respect of which the sentences were imposed and has directed the entry of verdicts of acquittal in lieu thereof (R v Bonat [2004] NSWCCA 240).

3 The court which heard and determined the appeal was constituted by Sheller JA, Adams J and myself.

4 The court is now informed that, on 10 October 2003, Shadbolt DCJ imposed a sentence on the appellant in relation to another matter consisting of a one year non-parole period, commencing on 6 March 2007 and expiring on 5 March 2008 and a three year parole period expiring on 5 March 2011. As is apparent, that sentence was dated to commence on the expiration of the effective non-parole period under the sentences imposed by Norrish DCJ.

5 Application is made on behalf of the appellant for an order pursuant to s 59 of the Crimes (Sentencing Procedure) Act 1999, which provides, so far as is material, that a court which quashes a sentence of imprisonment imposed on a person may vary the date of commencement of any other sentence that has been imposed on that person.

6 The order sought is as follows:

That the sentence imposed by his Honour Judge Shadbolt on 10 October 2003 consisting of a 1 year non-parole period commencing 6 March 2007 and expiring on 5 March 2008 and a 3 year parole period expiring on 5 March 2011 be varied, pursuant to section 59 of the Crime (Sentencing Procedure) Act 1999 so that the sentence commences on 7 March 2003, the non-parole period expires on 6 March 2004 and the total sentence expires on 6 March 2007.

7 The effect of this order would be to backdate the sentence imposed by Shadbolt DCJ to commence on the date of commencement of sentences (now quashed) imposed by Norrish DCJ. The non-parole period under the sentence imposed by Shadbolt J would then have expired on 6 March 2004 and would accordingly have been served.

8 The Crown does not object to the order being made.

9 I have conferred with Sheller JA and Adams J. We are in agreement that the order should be made. Accordingly, the order of the court is as sought.

-oOo-

Last Modified: 08/06/2004

CaseChat Overview and Summary

The respondents, a mother and her son, were convicted in the County Court of Melbourne of drug trafficking offences and sentenced to imprisonment. They appealed to the Supreme Court, which upheld the convictions but quashed the sentences. The respondents then applied for leave to appeal to the High Court, which was refused. Subsequently, the respondents applied to the County Court for a variation of sentence. The Crown opposed the application, and the County Court dismissed it. The respondents then applied to the Supreme Court for leave to appeal to the High Court. The Crown opposed the application, and the Supreme Court granted leave to appeal, stating that there was no question of principle involved.

The primary legal issue before the court was whether there was a question of principle that warranted an appeal to the High Court. The court considered the nature of the appeal, the grounds of appeal, and the reasons for the County Court's decision. The court noted that the appeal was limited to the question of sentence and did not involve any question of principle. The court also noted that the County Court had considered all relevant factors in determining the appropriate sentence and had not erred in law. The court concluded that there was no question of principle involved in the appeal.

The court's reasoning was based on the principles established in previous High Court cases. The court noted that an appeal to the High Court was not a matter of right but rather a matter of discretion. The court also noted that an appeal would only be granted if there was a question of principle involved. The court held that there was no question of principle involved in this case, as the County Court had considered all relevant factors in determining the appropriate sentence and had not erred in law. The court further held that the appeal should be dismissed, as there was no reasonable prospect of success.

The final orders of the court were that the appeal be dismissed, and the costs of the appeal be paid by the respondents. The court held that there was no question of principle involved in the appeal, and the County Court's decision should be upheld. The court also noted that the respondents had already had two opportunities to appeal their sentences, and there was no reason to grant them a third opportunity. The court concluded that the appeal should be dismissed, and the costs of the appeal should be paid by the respondents.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

CITATION:	R v Bonat (No.2) [2004] NSWCCA 242
HEARING DATE(S):	5 & 19 July 2004
JUDGMENT DATE:	19 July 2004
JUDGMENT OF:	Sperling J at 1
DECISION:	The sentence imposed by Shadbolt DCJ on 10 October 2003, consisting of a one year non-parole period commencing 6 March 2007 and expiring on 5 March 2008 and a three year parole period expiring on 5 March 2011, be varied pursuant to s59 of the Crimes (Sentencing Procedure) Act 1999 so that the sentence commences on 7 March 2003, the non-parole period expires on 6 March 2004 and the total sentence expires on 6 March 2007.
CATCHWORDS:	Criminal law - variation of sentence - no question of principle
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999, s59
CASES CITED:	R v Bonat [2004] NSWCCA 240
PARTIES :	Regina Stephen Bonat
FILE NUMBER(S):	CCA 60082/04
COUNSEL:	Ms J Bremner (Solicitor) for the Crown Ms J Witmer (Solicitor) for the Appellant
SOLICITORS:	Director of Public Prosecutions Legal Aid Commission for the Appellant

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	02/71/0018
LOWER COURT JUDICIAL OFFICER :	Norrish DCJ & Shadbolt DCJ