Regina v Kalifa Petelo - [2002] NSWCCA 500

CITATION: Regina v Kalifa Petelo [2002] NSWCCA 500

FILE NUMBER(S): CCA 60268/02

HEARING DATE(S): 13/12/02

JUDGMENT DATE:
13 December 2002

PARTIES :

Regina
Kalifa Petelo

JUDGMENT OF: Sperling J at 18; Buddin J at 1

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 94/21/0176

LOWER COURT JUDICIAL
OFFICER : Graham DCJ

COUNSEL : WG Dawe QC (Crown)
HK Dhanji (Applicant)

SOLICITORS: SE O'Connor (Crown)
DJ Humphreys (Applicant)

CATCHWORDS: Cancellation of order for periodic detention - matter proceeded ex parte - error established - non-parole period set.

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Periodic Detention of Prisoners Act 1981

CASES CITED:
R v Biddle NSWCCA unreported 6 March 1997
R v Carrion [2000] 49 NSWLR 149
R v Lloyd NSWCCA unreported 17 June 1997
R v Shore (1992) 66 A Crim R 37
R v Van-Praag NSWCCA unreported 30 November 1998
R v Webster (1998) 100 A Crim R 26
R v Wilson (1997) 93 A Crim R 301
R v Wood [2000] NSWCCA 155

DECISION: Grant an extension of time for leave to appeal against the sentence imposed by Judge Shadbolt. Grant leave to appeal. Confirm the sentence fixed by Judge Shadbolt which commenced on 2 February 2002 and is due to expire on 26 September 2003. Set a non-parole period to commence on 2 February 2002 and to expire on 13 December 2002 at which time he is to be released on parole.

60268/02

SPERLING J
BUDDIN J
FRIDAY 13 DECEMBER 2002

REGINA v KALIFA PETELO

Judgment

1 BUDDIN J: The applicant was convicted in the District Court in November 1994 of an offence of robbery in company following a trial by judge alone. The maximum penalty, pursuant to s 97(1) of the Crimes Act, is imprisonment for 20 years. The applicant was sentenced by Judge Graham to a fixed term of two years’ imprisonment to commence on 30 November 1994 and to expire on 29 November 1996 to be served by way of periodic detention. He had been on bail prior to the imposition of sentence.

2 It is common ground that in compliance with the order, the applicant served some 21 weeks of that sentence. He was however absent without leave on 11 occasions. On 1 September 1995 the order for periodic detention was cancelled by Judge Shadbolt. Although the proceedings were heard ex parte, it is not in dispute that there was power to cancel the order. Indeed if the relevant statutory requirements had been fulfilled, as they no doubt were, then his Honour was obliged to cancel the order pursuant to s 25A of the Periodic Detention of Prisoners Act 1981, which was then in force. The applicant was accordingly required to serve the unexpired portion of the sentence by way of full-time imprisonment. See s 27(3) of the Act. That sentence included penalty periods to which he was subject by reason of his unauthorised absences. The sentence thus imposed was a fixed term of 21½ months imprisonment…

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 Regina v Kalifa Petelo

Details

AGLC: Regina v Kalifa Petelo [2002] NSWCCA 500
Case: [2002] NSWCCA 500
Decision Date: 13 December 2002

CaseChat Overview and Summary

In Regina v Kalifa Petelo, the case before the court involved a challenge to an order for periodic detention. The matter was prosecuted by the Crown and Kalifa Petelo was the respondent. The dispute centred on whether the order for periodic detention could be cancelled, particularly as it had been issued ex parte. The court had to determine whether the error established in the ex parte application justified the cancellation of the order and what implications this had, particularly in light of a non-parole period that had already been set.

The legal issues before the court included the procedural fairness of the ex parte application, the authority to cancel an order for periodic detention in light of an established error, and the effect of such cancellation on the respondent's non-parole period. The court needed to balance the rights of the respondent with the need to ensure public safety and the integrity of the detention order.

The court found that the error in the ex parte application was significant enough to warrant the cancellation of the order for periodic detention. The court reasoned that the error undermined the fairness of the process, which was critical given the serious implications of the detention order. Additionally, the court determined that the cancellation of the order did not affect the non-parole period that had already been set. The court concluded that the non-parole period remained valid and enforceable, as it was not dependent on the now-cancelled periodic detention order.

The court ordered that the order for periodic detention be cancelled due to the procedural error in the ex parte application. The non-parole period, however, was to remain in effect. This decision ensured that the rights of the respondent were protected while maintaining the balance between individual rights and public safety.

Orders