Reg v Watt - [1988] HCATrans 201

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney Nos Sll9 and Sl20 of 1987
B e t w e e n -

THE QUEEN

Applicant
and
RAYMOND LESLIE WATT
Respondent

Applicationsfor special leave
to appeal

WILSON J

BRENNAN J

Watt

DAWSON J
TOOHEY J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 8 SEPTEMBER 1988, AT 10. 19 AM

C2T 2/1 /SDL

8/9/88

MR R.O. BLANCH, QC: May it please the Court, I appear

with my learned friend, MR P. J.. BERMAN, for
the Crown. (instructed by H. Hamilton, Solicitor
for Public Prosecutions)

MR C.A. LULAND, QC: May it please the Court, I appear
with my learned friend, MR W.C. TERRACINI, for
the respondent. (instructed by J. Cooke, Director,
Legal Aid Commission)

WILSON J: Yes, Mr Blanch.

MR BLANCH: May it please the Court, I hand up an outline
of the submissions.

WILSON J: Thank you. Yes, I think you could launch in - - -

MR BLANCH: This is an appeal by the Crown against the
dismissal by the Court of Criminal Appeal of
New South Wales of the Crown appeal taken there.
The facts of the case appear in the outline.
Basically, the situation so far as the respondent
is concerned is that he was sentenced in the
supreme court in Sydney to a total sentence of
19 years with a non-parole period of 10 years. The supreme court judge made an order refusing
remissions off the non-parole period.
The respondent escaped on 26 December, was

rearrested and was sentenced before Sydney District
Court on 27 April 1987. When sentenced by the
district court judge, the district court judge
imposed a non-parole period that had the effect
of extending the pre-existing non-parole period
but, at that stage, he did not make an order
that there be no remissions. on the non~parole
period that he fixed.
The effect of the district court judge's

order was to substitute for the supreme court

judge's order a non-parole period which had the
effect of shortening the period that the prisoner
was going to be in gaol.

BRENNAN J: How did that happen, Mr Blanch?

MR BLANCH: It happened,. Your Honour, in th is way: in sentencing

the prisoner for the escape, the district court
judge was bound to impose a cumulative sentence.
(Continued on page 3)

C2T2/2/SDL 2 8/9/88
Watt

MR BLANCH (continuing): In imposing the cumulative sentence

he fixed a fresh aggregate non-parole period - - -

DAWSON J:	He can do that, can he?
MR BLANCH:	Yes.

DAWSON J: Fix a non-parole period which is larger than the

sentence which he imposes.

MR BLANCH:

Yes, Your Honour.

DAWSON J: Is there some reason why he can do that?

MR BLANCH: Well, Your Honour, it is because he is imposing a sentence - the second sentence is cumulative on

the first sentence - he is then, in effect, imposing
an accumulative head sentence and,…

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 Reg v Watt

Details

AGLC: Reg v Watt [1988] HCATrans 201
Case: [1988] HCATrans 201
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard an application for special leave to appeal by the Crown against a decision of the Court of Criminal Appeal of New South Wales. The dispute concerned the sentencing of the respondent, who had been sentenced in the Supreme Court to 19 years imprisonment with a non-parole period of 10 years, with an order refusing remissions off the non-parole period. Following an escape, the respondent was sentenced in the District Court for that offence. The District Court judge imposed a cumulative sentence and fixed a fresh aggregate non-parole period, which had the effect of shortening the respondent's overall period of incarceration. Crucially, the District Court judge did not make an order refusing remissions off this new non-parole period.

The central legal issue before the High Court was whether the District Court judge had the power to make an order for a non-parole period that effectively substituted a pre-existing non-parole period, thereby potentially shortening the total time the prisoner would serve. Specifically, the court considered the interaction between the sentencing for a new offence (escape) and the existing sentence, and how the imposition of a cumulative sentence and a new non-parole period affected the original sentencing orders, particularly regarding remissions.

The Crown argued that the District Court judge's order, by fixing a new non-parole period without an order refusing remissions, effectively varied the Supreme Court judge's order. The District Court judge's power to do so was based on s 20 and s 24(2) of the *Probation and Parole Act* (NSW). Section 20 permits a judge to fix a non-parole period when sentencing a prisoner already serving a sentence, and s 24(2) provides that where a judge fixes a non-parole period under s 20 in a cumulative sentencing situation, that period may be ordered to be in substitution for any pre-existing non-parole period. The Court of Criminal Appeal had dismissed the Crown's appeal, implying it found the District Court judge's actions to be within his statutory authority.

Orders