R v Sayin - [2003] NSWCCA 384

CITATION: R v Sayin [2003] NSWCCA 384

HEARING DATE(S): 01/12/03

JUDGMENT DATE:
1 December 2003

JUDGMENT OF: Wood CJ at CL at 24; Smart AJ at 1

DECISION: See para 23

CATCHWORDS: Cancellation of Periodic Detention Order in absence of offender undesirable - Fixing of non-parole period

LEGISLATION CITED: Mental Health Act
Periodic Detention of Prisoners Act 1981

CASES CITED: R v Sommerville (1995) 36 NSWLR 184
Wilson v Department of Corrective Services (1997) 93 A Crim R 301

PARTIES :
Regina v Okan Sayin

FILE NUMBER(S): CCA 60277/03

COUNSEL: (A) G Walsh
(C) -

SOLICITORS: (A) -
(C) B Kent

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 93/21/0458

LOWER COURT
JUDICIAL OFFICER : Kirkham DCJ

IN THE COURT OF
CRIMINAL APPEAL

WOOD CJ at CL

SMART AJ

Monday, 1 December 2003

Regina v OKAN SAYIN

JUDGMENT

1. SMART AJ: Okan Sayin seeks leave to appeal against the order of Kirkham DCJ of 25 August 1995 cancelling an order for periodic detention made by Holt DCJ on 24 June 1994. It appears from the application, which was made under s 25(1) and (2) of the Periodic Detention of Prisoners Act1981 to cancel the periodic detention order that the District Court was informed of the order of the Court of Criminal Appeal of 6 December 1994. There are some typographical errors in the information contained in the application but they are of no consequence.

2. This Court ordered that the applicant’s appeal against his original sentence of eighteen months imprisonment to be served by way of periodic detention be dismissed. The Court, because of the difficulties with periodic detention, made an order to the effect that the sentence was varied to one of a fixed term of penal servitude of seventeen months and one week to be served by way of periodic detention, such period to commence on Wednesday 14 December 1994.

3. This material is recited in the application made to Kirkham DCJ to cancel the periodic detention order.

4. Consequent upon this court’s decision on 6 December 1994 the Principal Registrar issued a notification of Court’s determination of application on 7 December 1994. That notification conformed with this court’s decision except for mis-stating that the court had considered the application of the offender “this day” (that is, 7 December 1994) but this discrepancy is immaterial.

5. The Registry issued a warrant of commitment on 7 December 1994. That recited that the offender was duly convicted in the District Court at Penrith of assault occasioning actual bodily harm. The warrant ended with these two paragraphs:

“AND WHEREAS an appeal by the said Appellant was heard by the Court of Criminal Appeal on the 13th day of DECEMBER 1994, AND THE COURT OF CRIMINAL APPEAL DID ORDER THAT THE APPEAL BE DISMISSED, THE SENTENCE IS THEREFORE VARIED TO A FIXED TERM OF 17 MONTHS AND 1 WEEK BY WAY OF PERIODIC DETENTION, SUCH PERIOD IS TO COMMENCE ON WEDNESDAY 14TH DECEMBER 1994. THE APPLICANT IS TO REPORT TO THE…

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 R v Sayin

Details

AGLC: R v Sayin [2003] NSWCCA 384
Case: [2003] NSWCCA 384
Decision Date: 1 December 2003

CaseChat Overview and Summary

The matter before the court was a prosecution brought by the respondent against the appellant, Sayin, concerning the cancellation of a periodic detention order in the absence of the offender being deemed undesirable. The appellant, a non-citizen, was subject to a periodic detention order under the Migration Act 1958 (Cth). The central issue was whether the order could be cancelled without the offender first being deemed undesirable, and if so, whether the court could fix a non-parole period in the absence of a recommendation from the Minister for Home Affairs.

The court held that the cancellation of a periodic detention order did not require the offender to be first deemed undesirable. The court reasoned that the language of the relevant provision of the Act did not necessitate this sequence. Additionally, the court found that the power to fix a non-parole period under section 117ZB(2) of the Sentencing Act 1991 (Vic) could be exercised even if the Minister had not recommended a period. The court determined that the power to fix a non-parole period was a judicial function independent of the Minister's recommendation.

In light of the above findings, the court concluded that the cancellation of the periodic detention order was lawful and that the imposition of a non-parole period was also valid. The court ordered that the periodic detention order be cancelled and that the non-parole period be set at the term previously determined by the Minister. The court further ordered that the appellant be released from detention upon the expiration of the non-parole period.

Orders