Regina v Butcher

[2001] NSWCCA 335

CITATION:	REGINA v. BUTCHER [2001] NSWCCA 335
FILE NUMBER(S):	CCA No. 60291 of 2000
HEARING DATE(S):	Wednesday 28 March 2001
JUDGMENT DATE:	4 September 2001
PARTIES :	REGINA v. BUTCHER, Brett John
JUDGMENT OF:	Greg James J at 1; Smart AJ at 8

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	99/31/0371
LOWER COURT JUDICIAL OFFICER :	Viney, DCJ.

COUNSEL :	Crown: C.K. Maxwell, QC. App: A.C. Haesler
SOLICITORS:	Crown: S.E. O'Connor App: D.J. Humphreys
CATCHWORDS:	Sentence - amendment to non-parole period.
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 Drugs Misuse & Trafficking Act 1985
DECISION:	Amendment made to sentence as expressed in Regina v. Butcher [2001] NSWCCA 188

IN THE COURT OF

CRIMINAL APPEAL

CORAM: GREG JAMES, J.
SMART, AJ.

TUESDAY 4 SEPTEMBER 2001

REGINA v. BRETT JOHN BUTCHER

JUDGMENT

1 GREG JAMES, J: Following the judgment in this matter of the 17 May 2001, application under s.43 of the Crimes (Sentencing Procedure) Act 1999 has been jointly made by the appellant and the Crown.

2   Paragraph two of the judgment of 17 May 2001 wrongly referred to the applicant pleading guilty to three charges under the Drugs Misuse & Trafficking Act 1985, whereas, the applicant had pleaded guilty to four charges as the balance of the paragraph made plain. The word "three" in line one of paragraph two should be amended to read "four".

3   In consequence, some degree of confusion occurred later in the judgment and, in particular, at paragraph 68. That paragraph reads:-

"I would deem it inappropriate to impose a non-parole period in respect of the sentence on count one in consequence of the non-parole period being imposed on the sentence imposed on count four. All sentences should date from 21 May 1999 and be served concurrently."

4   As submitted by both counsel for the applicant and senior counsel for the Crown, that paragraph wrongly creates the impression that no non-parole period was to be fixed in relation to count one. It should be amended to provide that no variation occur rather than no imposition.

5   Paragraph 68 should read:-

"I would deem it inappropriate to vary the non-parole period in respect of the sentence on count one. All sentences should date from 21 May 1999 and be served concurrently."

6   It is also necessary to amend the orders to ensure that all matters raised in the judgment are disposed of. In accordance with the application, I would propose that the orders should read:-

(a) Leave to appeal granted; appeal allowed on counts one and four; sentences on those counts quashed.

(b) In lieu of the sentences imposed on count one the applicant is sentenced to four years imprisonment to commence 21 May 1999, with a non-parole period of two years commencing on that day and ending on 20 May 2001.

(c) In lieu of the sentences imposed on count four, the applicant is sentenced to five years imprisonment to commence 21 May 1999, with a non-parole period of three years commencing on that day and ending on 20 May 2002.

(d) Appeal on counts two and three dismissed.

7 The judgment should therefore be re-opened pursuant to s.43(2)(b) Crimes (Sentencing Procedure) Act 1999 and amended as I have proposed.

8   SMART, AJ: I agree.

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