R v Charters

[2004] NSWCCA 40

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:      Regina v Charters [2004]  NSWCCA 40

FILE NUMBER(S):
60421/03

HEARING DATE(S):            6 February 2004

JUDGMENT DATE: 06/02/2004

PARTIES:
Regina v Craig Charters

JUDGMENT OF:      Dunford J Greg James J    

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):        02/31/0114

LOWER COURT JUDICIAL OFFICER:     English DCJ

COUNSEL:
A Francis (Crown)
D C Frearson (Appellant)

SOLICITORS:
S E O'Connor (Crown)
Legal Aid Commission (Appellant)

CATCHWORDS:
Criminal Law - Sentencing - suspended sentence  subject to bond - breach of bond - re-sentencing - limited to unexpired portion of original sentence.

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999 ss 12(1), 50(1), 99
Drug Misuse and Trafficking Act 1986 s 25A

DECISION:
Leave to appeal granted, appeal upheld, sentence quashed, applicant re-sentenced.

JUDGMENT:

- 1 -

IN THE COURT OF
CRIMINAL APPEAL

60421/03

DUNFORD J
GREG JAMES J

FRIDAY 6 FEBRUARY 2004

REGINA  v  CRAIG CHARTERS

Judgment

1. DUNFORD J: The applicant, Craig Charters, was sentenced by her Honour Judge English on 24 April 2003 in respect of a call-up for breaching a two year sentence imposed by her Honour on 7 June 2002 and partially suspended pursuant to s 12(1) of the Crimes (Sentencing Procedure) Act 1999.

1. The applicant had been sentenced for one offence of ongoing supply, prohibited drug to s 25A of the Drug Misuse and Trafficking Act 1986 contrary and had breached his suspended sentence by the commission of further offences.

1. The brief history of the matter is that he was originally sentenced on 7 June 2002 when her Honour imposed a sentence of imprisonment for two years to date from 23 December 2001, the date on which he had been taken into custody, and to expire on 22 December 2003. As I say, the sentence was partially suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act from the date of sentence, namely, 7 June 2002, on the applicant entering into a good behaviour bond subject to conditions.

1. The applicant was accordingly released but he repeatedly breached the s 12 bond and was taken into custody on 22 December 2002 in relation to other matters. He was then called up before her Honour on 24 April 2003.

2. Her Honour, after saying: “I am left with no alternative but to revoke his section 12 bond and to impose a sentence of imprisonment for two years”, did precisely that, and sentenced the applicant to imprisonment for two years to date from that date; not from the date of sentence, but from the date on which he had been last taken into custody, namely, 22 December 2002, to expire on 21 December 2004, with a non-parole period of eighteen months, to expire on 21 June 2004.

1. However, the applicant had already served or was deemed to have served almost 6 months of the sentence and the unexpired portion of such sentence, at the time he was returned to custody, was 18 months and 2 weeks. The effect of ss 12 and 99 of the Crimes (Sentencing Procedure) Act is that in such circumstances the maximum sentence that can be imposed on the revocation of the s 12 bond and the resentencing is the remaining unserved portion of the original sentence; R v Hyde [2003] NSWCCA 154 a decision post-dated the resentencing by her Honour.

2. It follows that the sentence imposed by her Honour must be set aside and the applicant resentenced.  On resentencing, our attention has been drawn to an affidavit by the applicant sworn on 3 February, setting out his progress in prison, and we have been asked to find special circumstances, although her Honour did not do so.

1. However, having regard to the applicant’s record and the fact, in particular, that he has breached the bond on which he was released, I am not satisfied that any longer period of release on parole would serve any useful purposes or aid the applicant’s rehabilitation; and, in any event, the exercise becomes academic when one looks at the actual dates involved.

1. A sentence of eighteen months and two weeks, to date from 22 December, would expire on 6 July 2004.  A sentence of two years would normally involve a non-parole period of six months.  Six months from 6 July 2004 means that he should have been released from parole on 5 January this year.

1. Her Honour also, by her order, directed that he be eligible for release on parole on the date she fixed. This was an error. Section 50(1) of the Act requires that where a court imposes a sentence of imprisonment for a term of 3 years or less, being a sentence that that contains a non-parole period, the Court must make an order releasing the offender at the end of the non-parole period. This her Honour failed to do.

1. As I say, we cannot now order his release on 5 January 2004, but we can order his immediate release on parole.

1. I, therefore, propose that leave to appeal be granted, that the appeal be allowed, that the sentence be quashed and in lieu thereof the applicant be sentenced to a sentence of 18 months and 2 weeks to date from 22 December 2002 to expire on 6 July 2004.

1. I would fix a non-parole period expiring on 5 January 2004 and order that he be released forthwith on parole, subject to the conditions specified by her Honour.

2. GREG JAMES J:  I agree.

3. DUNFORD J:  The order is as I have indicated.

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LAST UPDATED:            03/03/2004