R v Mo (No 2)

[2016] NSWDC 145

District Court

New South Wales

Medium Neutral Citation:	R v MO (No 2) [2016] NSWDC 145
Hearing dates:	30/6/2016
Date of orders:	30 June 2016
Decision date:	30 June 2016
Jurisdiction:	Criminal
Before:	Berman SC DCJ
Decision:	For each offence quash the sentence of imprisonment imposed on 29 January 2016, The offender is sentenced to a term of imprisonment of 2 years, backdated to 23 December 2014. A non-parole period of 18 months is imposed on the offender, expiring on 22 June 2016
Catchwords:	CRIMINAL LAW – Sentence – Correction – Sentence originally imposed was not one his Honour had the power to impose – Breach of Control Order – Terrorism offence.
Legislation Cited:	Criminal Code Crimes Act
Category:	Consequential orders (other than Costs)
Parties:	The Crown MO
Representation:	Counsel: Mr T Anderson – Crown Mr P Lange - Offender   Solicitors: Commonwealth Director of Public Prosecutions Hanna Legal - Offender
File Number(s):	2014/376830
Publication restriction:	There is to be no publication of the name of the offender or of any material which may tend to identify the offender

Judgment

1. HIS HONOUR: In January 2016 I sentenced an offender for contravening a control order, an offence under s 104.27 of the Criminal Code. In the remarks on sentence I delivered I explained how I had come up with the result that I sentenced him to imprisonment and set a head sentence of two and a half years with an order that he be released pursuant to a recognisance release order after serving 18 months. Matters remained as they were for some time until very shortly before what would have been the expiry of the recognisance release order, 22 June 2016.

2. On a date very shortly before 22 June my associate received an email from the Commonwealth Director of Public Prosecutions, with a copy sent to the offender’s legal representatives, in which reference was made for the first time to s 19AG of the Crimes Act which provides that where a person is convicted of a terrorism offence a non-parole period of at least three‑quarters of the sentence must be set by the Court. The offence for which I sentenced the offender was a terrorism offence.

3. The Crown then made an application under s 19AHA of the Crimes Act which provides that where a sentencing order has a defect of form the Court must on application by the DPP amend the sentencing order in order to rectify the defect.

4. The matter was listed before me today, a date after 22 June 2016, because the offender is in custody on another matter. I accept that there is a defect. I accept that the non-parole period should have been at least three‑quarters of the head sentence.

5. Therefore there is a need to correct the order I made. This can be done in two ways. The first is to interfere with the non-parole period and to make it longer, the second is to interfere with the head sentence and make it shorter. Not surprisingly, the Crown says I should do the former but Mr Lange, who appears for the offender, says I should do the latter. The Crown submission is, understandably, that the head sentence was selected as to representing the objective gravity of the offender’s conduct and that any reduction in that so as to impose a sentence which complies with s 19AG of the Crimes Act would be to impose a sentence which failed to reflect things such as the objective gravity of the offender’s conduct.

6. While there is something in the Crown submission, it has to be recognised that there is no one correct sentence. I do not consider it can be said that a sentence of two and a half years is appropriate but that necessarily a sentence of two years is not. In any case one has to consider the circumstances in which this error was made. As the judge making the order I fully accept that the error was mine but as the Crown freely admits today it was also at fault in failing to advise me when I sentenced the offender in January 2016 of the requirement of s 19AG. Indeed, as the email to my associate makes clear, the Crown did not realise an error had been made until the Attorney General’s Department advised the prosecution of the defect in the order.

7. In those circumstances I propose to amend the order in such a way that the offender spends no extra time in custody because of the errors made by both the prosecution and by me. Accordingly, I quash the sentence of imprisonment that I imposed on 29 January 2016, it being not one I had the power to make. I sentence the offender to a term of imprisonment of 2 years, backdated to commence on 23 December 2014. A non-parole period of 18 months is imposed on the offender, expiring on 22 June 2016.

8. The effect of my order is that the offender is now on parole as far as this offence is concerned.

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Decision last updated: 20 July 2016