R v Schodde

[2003] NSWCCA 164

Reported Decision: 142 A Crim R 307

New South Wales

Court of Criminal Appeal

CITATION:	Regina v Allan Wayne SCHODDE [2003] NSWCCA 164
HEARING DATE(S):	7/5/03
JUDGMENT DATE:	25 June 2003
JUDGMENT OF:	Giles JA at 1; Bell J at 2; Carruthers AJ at 35
DECISION:	Extend the time in which to bring the application; Grant the application; Allow the appeal and quash the sentences imposed in the District Court and in lieu thereof substitute the following sentences; (i) count 1 - three years imprisonment to date from 30 October 2002 and to expire on 29 October 2005. Specify a non-parole period of eighteen months and direct the applicant's release on parole at the expiration of the non-parole period on 29 April 2004; (ii) counts 2, 3 & 4 - six months imprisonment to date from 30 October 2002 and to expire on 29 April 2003; 4. Stay the execution of Order 3 for a period of fourteen days from today's date to allow the applicant the opportunity to make any application to this Court as he may be advised to make
CATCHWORDS:	Periodic detention - need to fix term of sentence before considering alternatives to full-time custody
LEGISLATION CITED:	Criminal Appeal Act 1912 Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985
CASES CITED:	Neal v The Queen (1982) 149 CLR 305 R v Bacon [2000] NSWCCA 549 R v Bang (unreported, NSWCCA, 1 September 1992) R v Butcher [2001] NSWCCA 188 R v CBK [2002] NSWCCA 457 R v Fogg [2002] NSWCCA 395 R v Foster [2001] NSWCCA 215 R v Hanslow [2002] NSWCCA 161 R v Hennock [2002] NSWCCA 229 R v Hofer [2001] NSWCCA 544 R v JCE [2000] NSWCCA 498; 120 A Crim R 18 R v Kym [2002] NSWCCA 235 R v McHugh (1985) 1 NSWLR 588 R v Meyer [2002] NSWCCA 451 R v Parsons & Poore [2002] NSWCCA 296 R v Sadebath (unreported, NSWCCA, 14 May 1992) R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 R v Smiroldo [2002] NSWCCA 120; 112 A Crim R 47 R v Smith [2002] NSWCCA 378 R v Sommerville (1995) 36 NSWLR 184 R v Wegener [1999] NSWCCA 405 R v Zamagias [2002] NSWCCA 17
PARTIES :	Regina Allan Wayne SCHODDE (Applicant)
FILE NUMBER(S):	CCA 60105/03
COUNSEL:	LMB Lamprati Helen Cox (Applicant)
SOLICITORS:	SE O'Connor DJ Humphreys

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	02/71/0900
LOWER COURT JUDICIAL OFFICER :	Coorey DCJ

60105/03

GILES JA
BELL J
CARRUTHERS AJ

Wednesday 25 June 2003

REGINA v Allan Wayne SCHODDE

Judgment

1 GILES JA: I agree with Bell J.

2 BELL J: I have had the benefit of reading in draft form the judgment of Carruthers AJ. I gratefully adopt his Honour’s statement of the facts.

3 The sole ground of appeal filed prior to the hearing of the application was that his Honour Judge Coorey (the Judge) erred in failing to backdate the sentence to the date on which the applicant came into custody (ground 1). At the commencement of the hearing Ms Cox, who appeared on the applicant’s behalf, sought leave to rely upon a further ground, namely, that the sentence imposed was manifestly excessive. This ground was argued with respect to the sentence imposed on the conviction for the offence of supply prohibited drug on an ongoing basis contrary to s 25A(1) of the Drug Misuse and Trafficking Act 1985 (the DMTA).

4 No oral submissions were advanced in support of ground 1. I agree with Carruthers AJ that this ground should be rejected. The Judge’s sentencing order conformed with the provisions of s 70(1) of the Crimes (Sentencing Procedure) Act 1999 (the Sentencing ProcedureAct). The Sentencing Procedure Act does not make provision to backdate a sentence that is to be served by way of periodic detention.

5 The focus of the oral submissions made on the applicant’s behalf was that taking into account the 4 ½ months of full time pre-sentence custody, a term of 3 years imprisonment (albeit to be served by way of periodic detention) was manifestly excessive.

6 Ms Cox relied on the statistics prepared by the Judicial Commission of New South Wales showing the pattern of sentences imposed for offences contrary to s 25A(1) of the DMTA. Those statistics showed that in the category of “all offenders” (a sample of 60 cases) 82% of offenders appearing before the higher courts had been sentenced to a term of imprisonment. If one viewed the sentence imposed upon this applicant as falling within the 3 ½ year sentence band of the statistics (taking into account the 4 ½ months of pre-sentence custody) only 24% of offenders had received sentences of greater severity. Ms Cox acknowledged that this applicant was appearing for sentence in respect of the conviction for supply on an ongoing basis in the context of three other counts of supply of methylamphetamine. To accommodate this circumstance she also took us to the statistics relating to the sentencing of offenders for s 25A(1) offences who had asked the court to take into account matters on a Form 1. Of the 25 cases in that sample only 28% percent of offenders had received head sentences in excess of 3 ½ years.

7 Next Ms Cox pointed to features of the s 25A(1) offence said to place it towards the lower end of the scale of objective seriousness. She relied upon the small quantities of the drug involved in each of the transactions. She referred us to the judgment of Hulme J in R v Smiroldo [2002] NSWCCA 120; 112 A Crim R 47 at [14], for the proposition that the quantity of the prohibited drug remains a relevant consideration in assessing the objective seriousness of offences contrary to s 25A(1) of the DMTA. She noted that the Judge accepted that the applicant was a “user/dealer” supplying the drug in order to feed his own addiction.

8 The applicant’s subjective case included his youth. He was aged 20 years at the date of the offence. His criminal record was a relatively minor one consistent with the Judge’s finding that he was addicted to methylamphetamine. He had not previously been sentenced to a term of imprisonment. He pleaded guilty in the Local Court at the first opportunity and was contrite.

9 Ms Cox’s submissions were directed in no small degree to the circumstance that the applicant’s sentence has become one of full time custody following the revocation of his periodic detention order. Her submissions based on the sentencing statistics are in point. The statistics to which she referred relate to offenders sentenced to full time custody. The same statistics demonstrate that a sentence for a s 25A(1) offence that is ordered to be served by way of periodic detention is a lenient one. Only 18% of offenders in the “all offenders” category received sentences that did not involve full time custody. Of this group 8% were sentenced to serve terms of imprisonment by way of periodic detention, 7% were sentenced to terms of imprisonment that were suspended, and 3% were dealt with by way of a bond under s 9 of the Sentencing Procedure Act.

10 Ms Cox developed her argument by reference to the sentencing statistics in this way. She submitted that given the applicant’s drug addiction and youth at the date of sentence, there existed a likelihood that he would fail to comply with the conditions of a periodic detention order and end up serving any sentence in full time custody. The Judge was said to have paid insufficient regard to this likelihood in fixing the term of three years. It need hardly be said that the Judge was not invited to approach the matter upon such an assumption. This submission does not support the challenge that the sentence is manifestly excessive. The sentencing statistics, and a review of a number of the cases before this Court involving s 25A(1) offences, lend no support to the contention that a sentence of three years imprisonment to be served by way of periodic detention is one of such severity as to bespeak error; R vBacon [2000] NSWCCA 549; R vButcher [2001] NSWCCA 188; R v Smith [2002] NSWCCA 378; R v Hofer [2001] NSWCCA 544; R v Fogg [2002] NSWCCA 395; R vHennock [2002] NSWCCA 229 and R v CBK [2002] NSWCCA 457. Indeed the cases demonstrate that a sentence of three years full time custody would not have been outside the range of sound discretion.

11 Ms Cox’s submission (that the Judge did not have in mind the fact that a sentence of periodic detention may convert to one of full time custody) did obliquely raise a matter arising out of a passage in the Judge’s reasons for sentence:

“In imposing sentence in relation to the ongoing supply charge I take into account that the prisoner has spent 134 days in full time custody, which is approximately four months and two weeks. Four months and two weeks is a short time, 134 days is a substantial length of time, and it seems to me that if I take that into account in imposing a sentence to be served by way of periodic detention, that would be the shortest possible sentence that I could give .
It seems that is consistent with the principles. If I was to impose a sentence less than that it seems to me I would be going below the range of appropriate sentence.
Mr Weir has submitted to me today that this is his client’s first time in goal. The offences in counts 2, 3 and 4 occur on the same day. He submits that there should be concurrent sentences, that is, that all of the sentences should be concurrent. It seems to me that that is a fair submission to make and I will proceed in that fashion, although normally in this matter I would have to impose a further full time jail sentence. It seems to me that the 134 days in full time custody, together with the three year periodic detention sentence, is within the range of the sentence that is available.” (Emphasis added) (ROS 8-9)

On their face these remarks were susceptible of the view that the Judge decided firstly that he would sentence the applicant to a sentence that was to be served by way of periodic detention and, having come to that view, determined to impose the maximum sentence that could be served in that way. The Court invited the parties to file supplementary written submissions on this issue.

12 In supplementary written submissions Ms Cox contended that the Judge’s remarks extracted at [11] above, make clear that he approached the case on the basis that it was an appropriate one in which to impose a sentence that was to be served by way of periodic detention before he fixed the term of the sentence. In her submission the inference to be drawn from the remarks was that the Judge compensated for the leniency of a periodic detention order by increasing the sentence that he might otherwise have imposed. She referred us to R v Zamagias [2002] NSWCCA 17 in support of her contention of error.

13 In supplementary written submissions the Crown Prosecutor said:

“A fair reading of his Honour’s remarks on sentence at pages 8 and 9 suggests that his Honour did not follow the two stage approach in setting the sentence. His Honour appears to have focused his reasoning on firstly, imposing imprisonment to be served by way of periodic detention, and then deciding upon the term. This approach, as the decided cases have held, is erroneous.”

14 As this Court has stated in a number of cases, the scheme of the Sentencing Procedure Act requires that a judge (having determined that no sentence other than one of imprisonment is appropriate) set the term of the sentence before considering whether to order that it be served by an alternative to full time custody; R v JCE [2000] NSWCCA 498; 120 A Crim R 18; R v Foster [2001] NSWCCA 215; Zamagias and R v Meyer [2002] NSWCCA 451. With respect to an order that a sentence is to be served by way of periodic detention this is made plain by the terms of s 6(1) and s 44(1) of the Sentencing Procedure Act. (Section 44(1) has been amended since the date of sentence by the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 but nothing turns on this).

15 The Periodic Detention of Prisoners Amendment Act No. 43 of 1998 amended the Periodic Detention of Prisoners Act 1981 by the introduction of a provision to the effect that the power to order periodic detention applied to a person on whom a court had imposed a sentence of imprisonment not exceeding three years. Prior to this amendment it had been considered to be open to a sentencing judge to impose a longer sentence of periodic detention than might have been imposed if the sentence was to be served in full time custody; R v Sadebath (unreported, NSWCCA, 14 May 1992) and R v Bang (unreported, NSWCCA, 1 September 1992). In R v Wegener [1999] NSWCCA 405 James J set out the relevant legislative history concluding that, in light of the amendment, these earlier authorities were no longer to be followed.

16 The requirement that the sentencer first set the term of the sentence and only then give consideration to whether to order that the sentence be served by way of periodic detention ensures that the offender is sentenced to the term appropriate to the offence. In the event of revocation of the periodic detention order there can be no complaint that a sentence structured to reflect a measure of leniency has been converted into one of greater severity than is appropriate. Nonetheless, the two stage approach gives rise to the logical difficulty to which Sperling J referred in Wegener. His Honour said:

“[31] Periodic detention is substantially more lenient than full time custody for the same period. That is self-evident. Full time custody is custody for seven days a week continuously. Periodic detention is custody for two days a week periodically (which converts to community service after one third of the term has passed). The difference has been recognised in the authorities cited by James J in this case. It was also recognised by the sentencing judge when he said in the course of argument that he was imposing a longer sentence than he would otherwise have fixed because it was to be served by periodic detention.
[32] It follows that, speaking generally, a term of imprisonment which is appropriate if served by full time custody would be much too lenient to be appropriate if served by periodic detention. There may be cases where that would not be so but they would be exceptional. In the result, I do not see how a court could, in the ordinary case, conscientiously make an order for periodic detention in relation to a sentence imposed in the usual way. Yet that is what the statute now contemplates will happen. The statute, as amended, seems to me to be unworkable.”

17 The Sentencing Procedure Act effected the repeal of the Periodic Detention of Prisoners Act. The Sentencing Procedure Act maintains the requirement that the sentencer first fix the term of the sentence and then give consideration to whether the sentence might be served by way of periodic detention (or one of the other alternatives to full time custody).

18 In R v Parsons & Poore [2002] NSWCCA 296 Smart AJ (in a judgment with which Handley JA agreed and with which Sully J agreed on this aspect) gave consideration to the scheme of the Sentencing Procedure Act with respect to periodic detention. His Honour observed that it was not possible under the Sentencing Procedure Act to impose a longer sentence to be served by way of periodic detention than the sentence that would have been imposed had it been one of full time custody [82].

19 I consider that the Judge’s remarks on sentence make clear that he did err in the respects identified by Ms Cox in her supplementary written submissions.

20 In her supplementary written submissions Ms Cox drew attention to decisions of this Court in R v Hanslow [2002] NSWCCA 161 and R v Kym [2002] NSWCCA 235. Each was decided by a two judge bench and involved a severity appeal that was heard after the Parole Board had revoked a periodic detention order. In the latter case a question as to whether the original order of the sentencing judge had been subsumed by the subsequent revocation order was raised. In the event, it was not necessary to give the matter further consideration. Ms Cox submitted that the appellate jurisdiction of this Court is not affected by the circumstance that the Parole Board has revoked the applicant’s periodic detention order.

21 Section 163 of the Crimes (Administration of Sentences) Act 1999 (the Sentencing Administration Act) empowers the Parole Board to make an order revoking a periodic detention order in certain circumstances. Pursuant to ss 163(2) the Parole Board must revoke a periodic detention order on the application of the Commissioner of Corrective Services if it is satisfied that the offender has failed to report to a detention centre for three or more detention periods and that the failures to report occurred otherwise than on leave of absence and are not the subject of a relevant exemption.

22 The applicant failed to attend the detention centre on five occasions when he was not on leave of absence or the subject of a relevant exemption. On 5 February 2003 the Parole Board revoked his periodic detention order. On 17 March 2003 he was taken into custody in consequence of the revocation of the order and commenced to serve the sentence imposed by the Judge in full time custody. The balance of the sentence to be served, after allowance was made for the detention periods that he had served less the amount by which his sentence had been extended by operation of s 89 of the Administration of Sentences Act, was 2 years 11 months and 26 days.

23 In R v Sommerville (1995) 36 NSWLR 184 at 188 it was held that this Court did not have jurisdiction to entertain an appeal from the determination of a District Court judge cancelling a periodic detention order under the Periodic Detention of Prisoners Act 1981. That Act deemed the unexpired term of the sentence to be a separate term of imprisonment. Gleeson CJ (as his Honour then was) considered the question of the operation of the deeming provision on the offender’s right to appeal against the original sentence. His Honour said (at 188):

“What effect does the deeming provision in s 27(1)(c) have on the original sentence imposed by the first District Court judge? This is no idle question. To amplify the illustration given above, let it be supposed that, in between the imposition of the original sentence and the appearance before the magistrate (that is, during the period of six months referred to) the alleged offender lodges an appeal, to the Court of Criminal Appeal, against the conviction and applies for leave to appeal against the sentence. The application for leave may be on various grounds, alleging errors of fact or law. Suppose the appeal, and the leave application, are still pending at the time of the appearance before the magistrate and the subsequent appeal under the Justices Act to the second District Court judge. Those later events do not, in my view, deprive the Court of Criminal Appeal of jurisdiction to deal with the matters pending before it. If it deals with them in a certain way that may ultimately render legally irrelevant, at least from the time of the disposition of the appeal, some of the things that had occurred elsewhere. There is, however, nothing extraordinary about that.

I would construe s 27(1)(c) as having its deeming effect only to the extent necessary to achieve the statutory purpose that is, the ordering of the practical consequences of the cancellation, including any appellate rights involving complaint about the making of the cancellation and the making or refusal of a s 27(4) discretion. It does not quash or expunge the original sentence which itself remains subject to appeal, or potential appeal, in the ordinary way”.

24 The position under the Sentencing Procedure Act and the Sentencing AdministrationAct do not seem to me to relevantly alter the position. I consider that the applicant’s original sentence remains subject to appeal in the ordinary way.

25 It is the Crown’s submission that notwithstanding the identification of error this is a case in which the Court would not intervene since no lesser sentence is warranted in law; R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 per Spigelman CJ at [79].

26 Since specific error has been identified it is necessary for this Court to exercise its own sentencing discretion (albeit that exercise may lead to a conclusion that no lesser sentence is warranted in law). In exercising this discretion we may have regard to the circumstances as they exist at the date of the application.

27 I turn to the question of re-sentencing. The facts to which the applicant pleaded guilty are set out in the judgment of Carruthers AJ. His Honour also summarises the subjective material that was before Judge Coorey. In addition to that material I have regard to the affidavit affirmed by the applicant on 28 April 2003. He has applied to undertake a number of courses since coming into custody. These include courses in literacy and numeracy, anger management and drug and alcohol education. He has poor reading and writing skills and wishes to improve both. Generally, the applicant expresses the desire to use his time in custody productively. He has applied to undertake a bar course to increase his prospects of obtaining employment following release.

28 In the context of the evidence that was before the Judge and the evidence as to events since sentence, notwithstanding the applicant’s stated intention to rehabilitate himself, I consider that his prospects of rehabilitation must be viewed as guarded. The offence of supply on an ongoing basis carries a maximum sentence of twenty years imprisonment. It is common for the quantity of the drug involved in each transaction the subject of a s 25A(1) offence to be small. This reflects the realities of the supply of prohibited drugs at the street level. The offence remains an objectively serious one. I would allow a discount of fifteen per cent to reflect the utilitarian value of the applicant’s plea of guilty. Taking into account the general principles set out in s 21A of the Sentencing Procedure Act (as it stood prior to 1 February 2003) I consider a sentence of three years imprisonment to be appropriate for the charge of on-going supply. I am satisfied that special circumstances exist such as to make it appropriate to depart from the proportion stated in s 44(1) of the Sentencing Procedure Act between the sentence and the non-parole period. The special circumstances that I identify are, in combination, the applicant’s youth, that it is the first time he has served a term of imprisonment and the desirability of him having a longer than usual parole period.

29 I would not order that the sentence be served by way of periodic detention. The objective seriousness of the s 25A(1) offence requires that the sentence imposed on the applicant be served in full time custody. I see no reason not to give the applicant credit for the period of pre-sentence full time custody. I would specify a non-parole period of eighteen months. I would impose sentences of six months in each case on counts 2, 3 and 4. No challenge was advanced in respect of the sentences imposed on these counts (nor was any point taken as to the order that each sentence be served concurrently).

30 The application was argued upon the basis that the applicant’s periodic detention order had been revoked and that he was serving an effective sentence of three years in full time custody. We were informed that he had not sought to exercise his right to have the Parole Board review the revocation order that it had made. It was in this context that the applicant invited us “intervene by reducing the sentence by the time spent by the applicant in pre-sentence custody”. The submission treated the sentence as varied by the revocation of the periodic detention order as being the subject of the appeal. I do not consider that to be the case. The appeal is brought against the severity of a sentence of three years imprisonment to be served by way of periodic detention.

31 The applicant, in the written submissions filed in support of his application, invited the Court to substitute a sentence on count 1 in the terms that I propose. This is a sentence of greater severity than that imposed by the Judge. This Court has the power on an appeal against the severity of sentence to quash the sentence and in lieu thereof to pass one of greater severity; s6(3) of the Criminal Appeal Act 1912. In Neal v The Queen (1982) 149 CLR 305 it was said that the circumstances in which an appellate court would intervene in order to increase a sentence the subject of appeal would be rare. The application for leave should be dealt with separately to the appeal so as to preserve the applicant’s right to withdraw the appeal. This case differs from Neal in that, while the sentence that I propose is one of greater severity than that imposed in the District Court, it is one that might be thought to ameliorate the applicant’s situation. Nonetheless, I consider that the proper course is to stay the orders that I propose for a period fourteen days to allow the applicant the opportunity to make any application to this Court as he may be advised to make.

32 The applicant requires an extension of time in which to bring his application. The reasons for the delay are explained in the Notice seeking an extension. The Crown did not oppose the extension that is sought. I would grant it.

33 It is not appropriate to backdate the sentence to the date of the applicant’s arrest as his custody has not been continuous. He was arrested on 21 June 2002 and remained in custody until 1 November 2002. This was a period of 134 days. He served six detention periods prior to the revocation of the periodic detention order. However his sentence was extended pursuant to s 89 of the Administration of Sentences Act to take account of the occasions when he failed to report. The Parole Board determined that the balance of the sentence to be served at the date of revocation of the periodic detention order was 2 years 11 months and 26 days. It is appropriate to give the applicant the same allowance for the time served as a periodic detainee as that determined by the Parole Board. The applicant was taken into custody on 17 March and has been in custody since that date. I would commence the sentences on 30 October 2002 and thus give the applicant credit for the 138 days served prior to 17 March 2003.

34 For these reasons the orders that I propose are:

1. Extend the time in which to bring the application;

2. Grant the application;

3. Allow the appeal and quash the sentences imposed in the District Court and in lieu thereof substitute the following sentences:


(i) count 1 - three years imprisonment to date from 30 October 2002 and to expire on 29 October 2005. Specify a non-parole period of eighteen months and direct the applicant’s release on parole at the expiration of the non-parole period on 29 April 2004.

(ii) counts 2, 3 & 4 – six months imprisonment to date from 30 October 2002 and to expire on 29 April 2003;

4. Stay the execution of Order 3 for a period of fourteen days from today’s date to allow the applicant the opportunity to make any application to this Court as he may be advised to make.

35 CARRUTHERS AJ: Allan Wayne Schodde (the applicant) seeks an extension of time in which to seek leave to appeal against sentences imposed upon him by his Honour Judge Coorey in the Wagga Wagga District Court on 1 November 2002. The applicant pleaded guilty at the Wagga Wagga Local Court to one count of supply prohibited drug, being methylamphetamine, on an ongoing basis pursuant to s 25A(1) of the Drug Misuse and Trafficking Act 1985, which offence carries a maximum penalty of 3500 penalty units or imprisonment for twenty years, or both (count 1), and three counts of supply prohibited drug, namely methylamphetamine pursuant to s 25(1) of the Drug Misuse and Trafficking Act 1985 which offence attracts a maximum penalty of fifteen years imprisonment or 2000 penalty units, or both (counts 2, 3 and 4).

36 His Honour Judge Coorey sentenced the applicant in relation to the first count to imprisonment for three years to date from 9 November 2002 and to expire on 8 November 2005 with a non-parole period of eighteen months to date from 9 November 2002 and to expire on 8 May 2004 and ordered that the sentence be served by way of periodic detention.

37 In relation to each of counts 2, 3 and 4, his Honour sentenced the applicant to imprisonment for six months to date from 9 November 2002 and to expire on 8 May 2003 and ordered that in each case the sentence be served by way of periodic detention.

38 The applicant was arrested on 21 June 2002 and charged with each of the abovementioned offences. Bail was refused and therefore, when the matter came before his Honour, the applicant had spent 134 days in full time custody.

39 At the sentencing proceedings, the Crown contended that an appropriate sentence was one of full time custody. However, his Honour accepted the submissions of the applicant and concluded that the prospect of rehabilitation of the applicant was such that periodic detention was appropriate. When sentencing the applicant his Honour specifically stated:

“In imposing sentence in relation to the ongoing supply charge I take into account that the prisoner has spent 134 days in full time custody, which is approximately four months and two weeks. Four months and two weeks is a short time, 134 days is a substantial length of time, and it seems to me that if I take that into account in imposing a sentence to be served by way of periodic detention, that would be the shortest possible sentence that I could give.
It seems that is consistent with the principles. If I was to impose a sentence less than that it seems to me I would be going below the range of appropriate sentences.”

40 Consequential upon his Honour’s orders the applicant was released from custody and required to present himself at the Mannus Correctional Centre on 9 November 2002 to commence his periodic detention.

41 On 8 November 2002 the Director of Public Prosecutions filed a notice of appeal against the sentences imposed on the applicant on the basis of manifest inadequacy. On 9 November 2002 the applicant was served with a letter notifying him of the appeal and attaching a copy of the notice of appeal.

42 Regrettably, the applicant’s compliance (or more correctly, non-compliance) with his obligations under the periodic detention orders was unsatisfactory and by 4 February 2003 he had accrued five penalty periods for non-attendance. Accordingly an application by the Periodic Detention Administration was made to the Parole Board for revocation of the periodic detention orders and the application was listed for hearing before the Parole Board on 5 February 2003.

43 Coincidentally, the Crown’s appeal came on for hearing before this Court. (Santow JA, Simpson J and Smart AJ) on 5 February 2003. The hearing was adjourned to 27 February to await the outcome of the proceedings before the Parole Board.

44 On 5 February the Parole Board revoked the periodic detention orders and issued a warrant for the arrest of the applicant. The applicant was in fact arrested on 17 March 2003.

45 The effect of the revocation of periodic detention by the Parole Board was an order that the applicant serve a sentence of two years eleven months and twenty-six days with a non-parole period of one year five months and twenty-six days to date in each case from the date that the warrant was executed upon the applicant.

46 The applicant had attended six sessions of periodic detention which would normally have been treated as equivalent to serving six weeks of his sentence. However, due to his subsequent non-attendance he accrued five penalty periods, as I have indicated.

47 As a consequence of the operation of ss 89(4) and (5) of the Crimes (Administration of Sentences) Act 1999, the applicant lost the benefit of all but one week of the periodic detention he served. In other words, his attendance for six weeks of periodic detention was regarded as equivalent only to one week by virtue of the penalty periods imposed. The relevant subsections are as follows:

“4. The sentence to be served by an offender who fails to report, or who reports late, for one or more detention periods ... is, by this subsection, further extended by one week for each detention period for which the offender fails to report or reports late.
5. An offender’s sentence may not be extended by subsection (4) by more than 6 weeks.”

48 When this matter came back before this Court on 27 February 2003 (Sheller JA, James J and Smart AJ) the matter was taken out of the list to await completion of proceedings associated with the revocation of the periodic detention orders. This adjournment was, presumably, to allow the applicant the opportunity to make an application to this Court pursuant to s 176 of the Crimes (Administration of Sentences) Act 1999 for any directions which might be appropriate. No such application was made.

49 However, as a consequence of the orders made by the Parole Board a notice of application for extension of the time in which to apply for leave to appeal against the sentences of Coorey DCJ was filed by the applicant in this Court on 7 April 2003. On 2 May 2003 the Director of Public Prosecutions filed a notice of abandonment of all further proceedings in respect of his appeal. Such notice of abandonment was of course also as a consequence of the orders of the Parole Board.

50 In relation to the present application which came before this Court on 7 May 2003 the applicant filed written submissions on 7 April 2003 and the Crown filed written submissions on sentence in reply on 5 May. Those written submissions were directed to what was then the one ground of appeal relied upon by the applicant, namely, that his Honour Judge Coorey erred in failing to backdate the sentences to the date the applicant came into custody.

51 At the hearing, Miss Cox of counsel for the applicant sought and was granted leave to add a further ground of appeal, being that the learned sentencing Judge erred in that the sentences imposed were manifestly excessive.

52 Despite his youth the applicant was before the Wagga Wagga Local Court on four occasions between 1998 and April 2002. The relevant offences for which he was dealt with were two counts of larceny and two of possess prohibited drug. On each occasion he was dealt with leniently.

53 Judge Coorey had before him a report of the Probation and Parole Service dated 8 October 2002 under the hand of Mr Nicholas Bish, a Probation and Parole Officer at the Wagga Wagga District Office. It discloses that the applicant was born in Wagga Wagga and was raised with his two elder sisters. His parents separated when he was three years of age and from that time his custody was passed frequently between his mother and father. His sister described him as being uncontrollable and a naughty child whom his mother found difficult to handle. He was diagnosed with attention deficit disorder at age seventeen years which may have had some effect on his disturbing childhood behaviour. He remained on medication for eighteen months but subsequently elected to cease taking the medication. In various conversations with the Probation and Parole Service the applicant was reported as having displayed a strong degree of anger and resentment towards his parents relating to his emotional needs not being met. When he was working, it was in an unskilled capacity.

54 According to the report the applicant does not consume alcohol, however, he daily used an illicit mood altering substance and reported occasional use of other substances.

55 Interestingly, the report assessed the applicant as unsuitable for a periodic detention order due to his current unresolved substance use and behavioural disorder and the subsequent risks under occupational health and safety legislation. However, in evidence before Judge Coorey, Mr Bish revised that view.

56 It is clear from what I have set out above that Mr Bish’s original assessment proved to be wholly correct albeit it was not occupational health and safety legislation which created the problem.

57 The explanation tendered by the applicant for his failure to comply with his obligations under the periodic detention orders is to be found in an affidavit sworn by him on 31 January 2003. I set out hereunder pars 8, 9, 10 and 11 of the affidavit:

“8. I have had problems in attending period detention. When I first attended period detention I had no problems. After a while this changed when the other detainees became aware of why I was serving periodic detention. They thought that I had access to drugs and I was asked to bring amphetamines into the detention centre. A number of detainees were involved. I put them off by saying that I did not know if I could get any drugs.
9. After I returned to periodic detention following the weekend for which I had approved sick leave I was asked again about drugs. I told the detainee who asked me that I was not able to get any drugs. He said ‘Why not, that’s what you are in here for.’ He tried to give me money but I would not take it. Sometime later the same person asked me to get him stolen property. He threatened me by saying ‘Bring me a car stereo or I will flog you. I’ll punch you in the head’.
10. I felt very intimidated by the demands that were being placed on me. One of the reasons why I was afraid is because the pod in which the detainees are housed is locked at night. There are no Corrective Services officers inside the pod and a person could easily be assaulted and there would be nobody to stop this happening. Other detainees were supporting the person who threatened me. I have not attended periodic detention since this threat because I have been frightened for my safety.
11. I have not approached any Corrective Services Officers about these incidents. I have been worried about what would happen to me if I made a complaint against other detainees.”

58 It is convenient now to note the relevant factual background to the offences.

59 In 2002 police in the Wagga Wagga area conducted a covert operation named “Operation Terme” targeting the supply of illicit drugs by the applicant. There were four incidents in Wagga Wagga of the supply of methylamphetamine by the applicant, the incidents forming the basis of the first count in the indictment which charged ongoing supply. On each occasion the applicant supplied the drug to an undercover police officer using the name of ““Chris””.

60 On 29 May 2002, at about 4.20 pm, “Chris” arranged to meet the applicant at a shop in Ziegler Avenue to purchase some methylamphetamine. At the meeting the applicant was paid $150 cash and he supplied “Chris” with .46gm of methylamphetamine. That was the first incident. The second incident occurred at about 6 pm on the same day at Wilga Street, when, by arrangement, the applicant supplied “Chris” with .29gm of methylamphetamine in exchange for $150 cash.

61 On 30 May 2002, at about 1.20 pm, the applicant contacted “Chris” and arranged to meet him at Wilga Street. There, the applicant supplied to “Chris” .46gm of methylamphetamine in exchange for $150. This was the third incident.

62 On 31 May 2002 the fourth incident occurred. At 11.50 am, “Chris” contacted the applicant and arranged to purchase methylamphetamine at a place in Ziegler Avenue near a high school. There the applicant was handed $150 cash, and, in exchange, he handed “Chris” four piece of foil each of which contained methylamphetamine. In total, .19 gm was supplied. These are the four incidents which constitute the first count.

63 Count 2 related to the supply by the applicant of .08gm of the drug to an undercover police officer using the name ““Dean”” at about 12.40 pm on 22 February 2002. The applicant was paid $100 cash and in exchange he supplied “Dean” with the drug in two resealable plastic bags. Count 3 was in respect of a foil containing .03gm of the drug to “Chris” at about 2 pm on the same day. The applicant was paid $50. Count 4 concerned an offer by the applicant at about 2 pm to supply to undercover police officers .05gm of the drug for $150 cash on the same day. The applicant told the undercover police that he could supply them with better quality methylamphetamine than he had earlier supplied.

64 At the time the applicant committed the offences in counts 2, 3 and 4 he was on bail for an offence of possession of an illegal drug being amphetamine.

65 I have already referred to a short passage in his Honour’s remarks upon sentence when he made it perfectly clear that he was taking into account the 134 days of pre-sentence custody. I also note that immediately prior to making that statement his Honour summarised his approach as follows:

“I take into account the early plea of guilty. I take into account the matters referred to in s 21A of the Crimes (Sentencing Procedure) Act 1999. I take into account the supportive evidence from the prisoner’s mother, and the evidence from the Probation and Parole officer, Mr Bish. I take into account also that all of these matters could have been dealt with in the Local Court, except for the ongoing supply charge. I am also satisfied from the evidence that has been presented that there is a strong prospect of rehabilitation in this matter. I take into account considerations of general and specific deterrence.”

66 The locus classicus in relation to the question of backdating sentences is found in the following passage of the judgment by Street CJ in R v McHugh (1985) 1 NSWLR 588 at 590-591, where the Chief Justice stated:

“His Honour expressly said that he took the period of pre-sentence custody into account, and passed a sentence of some two years less than he regarded as appropriate.
It is desirable sentencing practice that, where there has been a period of pre-sentence custody exclusively referable to the offences for which sentence is being passed, the commencement of the sentence (and the non-parole or the non-probation period) should be backdated for an equivalent period. This is to be preferred to a process of assessing the proper sentence (and non-parole or non-probation period) and allowing, as it were, a discount in consequence of the pre-sentence custody. The desirable practice will promote the accuracy of the record, preventing there being a hidden factor affecting the length of the custody involved in consequence of the sentencing order. In addition, this practice will remove any inequalities and unfairness as between prisoners arising from delays prior to sentencing, in particular in relation to remission or reduction entitlements;”

67 Of course the point should immediately be made that the Chief Justice was there identifying the backdating of a sentence as the desirable practice but not the mandatory practice.

68 It is clear that in the instant case his Honour formed the view that because he wished to afford the applicant the benefit of periodic detention as from the date of sentence, this could be facilitated by taking into account the pre-sentence custody rather than backdating the sentence to the date of arrest. No question arises of his Honour overlooking the entitlement of the applicant to have the benefit of that pre-sentence custody.

69 Miss Cox, on behalf of the applicant, has submitted however that an unfortunate and unforeseen effect (to use her words) of the revocation of the periodic detention orders has been that when the sentences were converted to full time custody by the Parole Board, there was no backdating for the period of pre-sentence custody. It was submitted that this was unintended by his Honour and resulted in unfairness to the applicant.

70 It will be noted that when his Honour sentenced the applicant on 1 November 2002 he specifically provided that the term of the sentence itself was to commence on 9 November 2002 (ROS p 10). Such a time lapse was necessary to comply with s 70(1) of the Crimes (Sentencing Procedure) Act 1999 which provides:

“Having made a periodic detention order in relation to a sentence of imprisonment, a court is to fix the date of commencement of the sentence so that the date of commencement occurs no earlier than seven days, and no later than twenty-one days, after the date on which the order was made.”

71 The effect of his Honour structuring the sentence in this fashion was that the applicant was released from custody on 1 November 2002 and required by the terms of the periodic detention to submit himself to the Mannus Correctional Centre on 9 November 2002. In short, therefore, this was clearly a case where it was inappropriate the backdate the sentence.

72 Counsel for the applicant experienced difficulty in justifying her submission that in all the circumstances the sentence in respect of the first count was manifestly excessive. Indeed, quite realistically, his Honour recognised the leniency of his sentence. In his closing remarks on sentence his Honour said:

“I think the sentence that I have given you is the shortest possible sentence that I can give you. Many would think it is a lenient sentence. Hopefully you would not waste that opportunity of leniency, it would be a great pity if you were to come back to court again, because you could never ask for leniency again could you, this must be your last chance.”

73 By his response “Yeah”, the applicant was well aware of the leniency which was afforded to him. However, by failing to comply with his obligations under the periodic detention orders, he foolishly created a situation where he found himself serving a full time custodial sentence.

74 During the course of argument, however, the Court raised with the parties the question whether his Honour had erred in law when imposing the subject sentences and ordering that they be served by way of periodic detention by overlooking the requirement that his Honour should first have set the term of the sentence and only then given consideration to whether the sentences should be served by way of periodic detention. In this regard I have had the advantage of reading the judgment of Bell J with regard to this question and I respectfully agree that his Honour did err in the respects identified by her Honour.

75 In their supplementary submissions both counsel for the applicant and counsel for the Crown submitted that despite the revocation of the periodic detention order by the Parole Board and the provision of s 176 of the Crimes (Administration of Sentences) Act 1999, which gives an offender a limited right of application to this Court for directions to be given to the Parole Board, this Court is nevertheless vested with jurisdiction to quash the original sentences.

76 Those submissions found favour with Giles JA and Bell J and I am content to accept that this Court has jurisdiction to deal with the application presently before it.

77 For the reasons set out in the judgment of Bell J I respectfully agree that this Court should intervene for the reasons expressed by her Honour. I also agree with the orders proposed by her Honour.

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Last Modified: 07/07/2003