R v Sayin
[2003] NSWCCA 384
•1 December 2003
CITATION: R v Sayin [2003] NSWCCA 384 HEARING DATE(S): 01/12/03 JUDGMENT DATE:
1 December 2003JUDGMENT 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 1981CASES CITED: R v Sommerville (1995) 36 NSWLR 184
Wilson v Department of Corrective Services (1997) 93 A Crim R 301PARTIES :
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
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 SILVERWATER PERIODIC DETENTION CENTRE AT 7.00pm ON THAT DATE.
I HEREBY COMMAND YOU in Her Majesty’s name to receive the said Appellant into your custody at the said Prison and, subject to the Periodic Detention of Prisoners Act 1981 and to any order thereunder, there to imprison the Appellant by way of Periodic Detention for the remainder of the term of imprisonment imposed by the District Court at Liverpool on 7th April 1994 and for so doing this shall be your sufficient warrant”.
6. It is apparent that there are diverse instructions on the face of the warrant. The last paragraph is incorrect. However, it does seem that the last paragraph of the warrant could be treated as surplusage and having regard to the set out of the warrant it is apparent that the part in capital letters, being the penultimate paragraph of the warrant was the operative part.
7. On 14 December 1994 the Silverwater Periodic Detention Centre reported the offender had presented himself at or before 7pm that day and that as no warrant of commitment had been received at that institution sufficient to legally detain the person that person had been denied entry. The court identified was “Sydney District Court of Criminal Appeal”. Ultimately it seems that the applicant did present himself and that the warrant was sent by fax to the Silverwater Periodic Detention Centre. It seems that this administrative slip was overcome.
8. The applicant was sent a number of notices under s 21(5) of the Periodic Detention of Prisoners Act 1981. From the documents handed to us it appears there was a notice sent in respect of each of the periods 28-30 December 1994 and 11-13 January 1995 but that these were returned unclaimed. They were addressed to the applicant at 32 Lavinia St, Seven Hills. Notwithstanding that on 13 February 1995 a first notice under s 21(5) of the Act for the period 1-3 February 1995 was sent to the applicant. A second notice was sent on 20 February 1995 for the period 8-10 February 1995. A third and final notice was sent on 27 February 1995 for the period 15-17 February 1995. Each was sent by prepaid post to the address, 32 Lavinia Street, Seven Hills, and addressed to the applicant. Again all notices were returned unclaimed.
9. In searching through the files, and they are now of some antiquity, it has not been possible to locate an affidavit of service of the application of the Department of 19 April 1995. It was addressed to the applicant at 32 Lavinia St, Seven Hills. Kirkham DCJ would not have made an order for cancellation of periodic detention unless the usual affidavit of service had been provided.
10. The papers before us indicate that a standard form of orders was handed up to the judge and signed by him. Initially I was disposed to think that there was some difficulty with the order, which Kirkham DCJ had made because it seemed to hinge upon the order made by Holt DCJ on 10 June 1994 rather than the order of this Court of 6 December 1994. However, having regard to the terms of the application it is quite apparent that the judge was informed as to the order made by this court on 6 December 1994 and that in effect this order was considered as varying the initial order to allow for a short period of periodic detention that had either been served or credited to the applicant at some stage.
11. Notwithstanding my initial doubt I have come to the view that the order made by the judge was made within jurisdiction and with knowledge of the relevant facts and that the discrepancies can be disregarded.
12. This Court has held that there is no appeal to the Court of Criminal Appeal against the order of a District Court judge cancelling a periodic detention order (Wilson v. Department of Corrective Services (1997) 93 A Crim R 301 at 306 and 309). At 309 this court followed the earlier decision in Sommerville (1995) 36 NSW LR 184 that because s 27(1)(c) of the Act deems the unexpired portion of the original sentence to be a separate term of imprisonment imposed at the time of the cancellation, some limited appellate consequences flow. This court’s power is limited, in effect, to considering whether a non parole period should be set in respect of the sentence passed and its length. In Wilson the court discussed the difficulties, which arose when consequent upon a cancellation order the judge dealt with the offender when not present. It took the view that where an offender did not appear the court should issue a warrant for the arrest of the offender and bring him before the court. Otherwise the court does not have before it the necessary material to decide whether to set a non parole period and its length.
13. The situation is further complicated by these facts. The material before us shows that the applicant returned to Turkey for pressing family reasons in 1995 and that by 26 May 1995 he was being assessed in a private medical health centre in Turkey. The medical certificate with which we have been supplied reveals that there were serious problems. The applicant was admitted to the private clinic on 3 June 1995 after the initial consultation on 26 May 1995. He was found to be a chronic hypoglycaemia sufferer. As a result of a psychiatric analysis it was observed "beginning of diffuse anxiety insomnia, hyperactivity, suppressed aggressivity, separation anxiety and minor amnesia." This was diagnosed as a "dystimic disorder". (The translation from Turkish is a little stilted).
14. It appears that the applicant was further treated at the Erciyes University School of Medicine in January 1996 but as an outpatient. The report of 17 January 1996 records that the applicant’s main problem was losing his control occasionally, changing his behaviour dramatically and starting to do some “worth” things that he does not normally do. Thirty to forty minutes later he became normal but could not remember what he has done. The report continues:
My opinion about this patient is he may have temporal lobe epilepsy and/or bipolar effective disorder or all the things he is talking about are due to his character.”“From his present and past medical history his problems were all started in 1992. Since then he sometimes had these episodes. Once he injured himself with a knife and in another episode he injured somebody else. He could not remember how he came to Turkey and also he described all the problems aroused with his wife were on those episodes. Other than these episodes he described a six months period, which he slept just two to three hours each day, spent a lot of many and was hyperactive. Since his childhood he has impulsive and anti social behaviour.
The doctor noted that the applicant was returning to Australia. The doctor could not come to an exact diagnosis without further investigation and consultation.
15. It appears from the report of 24 June 1996 of the Blacktown Hospital that the applicant was admitted as a patient there from 22 April 1996 to 17 May 1996 and that he suffered from a personality disorder, anti social borderline traits, (?) bipolar affective disorder, hypomanic phase and (?) temporal lobe epilepsy. The report records that the applicant was admitted initially under s 21(1) of the Mental Health Act (Involuntary) and that he later agreed to stay in hospital as an informal patient. He received medication in hospital and was prescribed certain medication on his discharge.
16. It appears that he returned to Turkey and there was a further report of his mental condition issued in May 1999. Since the applicant has been taken into custody he has been treated in Australia in relation to his psychiatric problems.
17. What appears fairly plainly from all the material is that the applicant was a person with major psychiatric difficulties; that notices sent to his former address 32 Lavinia St were not received, that there was a question as to whether he and his wife were living together at that stage and that he was probably in Turkey at or about the time of the hearing before the judge and was probably never served with the application for cancellation of the periodic detention order. One cannot be certain of this but it is a reasonable inference when one combines all the materials.
18. There is no doubt that the initial offence was one of some severity and, indeed, when this court heard this applicant’s application for leave to appeal it accepted the following findings of fact of Holt DCJ:
“...on the afternoon of 28 August 1992 the victim Ronald Bizedenhout, 29 years old, was walking through Blacktown when he had a chance meeting with the prisoner. The prisoner asked him back to his office in Seven Hills, the victim then drove his motor vehicle to the Town and Country Real Estate Office, Boomerang Place, Seven Hills. There the prisoner asked the victim about his prior affair with his wife before the prisoner met his wife. The prisoner then went to a backroom of the office and returned with a knife, at this time the prisoner then stabbed the victim in the stomach. The victim thought he had been punched by the prisoner until he saw the blood and realised he had in fact been stabbed. The victim then left the office and drove to Blacktown Hospital in his own vehicle, the prisoner followed the victim to the hospital in his own vehicle. Police attended and spoke to the victim. The prisoner was seated in the casualty waiting room where he was arrested and taken to Blacktown Police station...”
19. It was fortunate that all the wounds were superficial. What emerges so far is that there was a serious offence, there was a periodic detention order, which was cancelled unbeknown to the applicant who had a serious mental problem and that our jurisdiction is one limited to setting a non parole period, if it is correct in all the circumstances so to do and we are satisfied that Kirkham DCJ erred in not setting such a non parole period.
20. Kirkham DCJ laboured under great difficulties in the sense that he was not aware of all the relevant materials. Without the presence of the applicant the judge was not really in a position to decide whether to set a non-parole period. It was erroneous to proceed and not set a non-parole period.
21. The matter is now one of some age and the applicant’s psychiatric problems are real. He was arrested on the warrant on 14 August 2002 and released on bail on 20 February 2003. He has thus served six months and six days in full time custody.
22. In all the exceptional circumstances of this case it is my opinion that error having been established this court should set a non parole period of 6 months and 6 days and that would have the effect that the applicant’s parole period would commence from 21 February 2003. The head sentence remains undisturbed.
23. Accordingly I propose that the appeal from the order of Kirkham DCJ of August 1995 cancelling the periodic detention order be upheld in part with a non parole period of 6 months and 6 days being set commencing from 14 August 2002 and expiring on 20 February 2003. The applicant was entitled and required to be released on parole on 20 February 2003.
24. WOOD CJ AT CL: I agree. The order of the court will be as proposed.
Last Modified: 12/22/2003
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