Regina v Shane Patrick O'DONOHUE (No. 2) - [2001] NSWCCA 495

CITATION: Regina v Shane Patrick O'DONOHUE (No. 2) [2001] NSWCCA 495

FILE NUMBER(S): CCA 60439/00

HEARING DATE(S): 9/11/01

JUDGMENT DATE:
5 December 2001

PARTIES :

Shane Patrick O'DONOHUE (Appellant)
Regina

JUDGMENT OF: Heydon JA at 1; Dowd J at 2; Bell J at 3

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 98/11/0039

LOWER COURT JUDICIAL
OFFICER : Ainslie-Wallace DCJ

COUNSEL : D M L Woodburne (Crown)
R J Button (Appellant)

SOLICITORS: S E O'Connor (Crown)
D J Humphreys (Appellant)

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999
Criminal Procedure Act 1986
Criminal Procedure Amendment (Sentences Adjustment) Act 1996
Justices Act 1902

DECISION: Application to vary commencement date of sentence pursuant to s 59 of the Crimes (Sentencing Procedure) Act 1999 refused

60439/00

HEYDON JA
DOWD J
BELL J

5 December 2001

REGINA v Shane Patrick O’DONOHUE (No.2)

Judgment

1 HEYDON JA: I agree with Bell J.

2 DOWD J: I have read and agree with the draft judgment of Bell J.

3 BELL J: On 9 November 2001 this Court allowed the appellant’s appeal and quashed his conviction in respect of a charge that on 26 May 1995 by means of fire he did maliciously damage part of the Charles Hotel at Chatswood (“the arson offence”). In respect of this offence the appellant had been sentenced to a term of three years imprisonment to commence on 7 July 2000 and to expire on 6 July 2003. A non-parole period of eighteen months, commencing on 7 July 2000 and concluding on 6 January 2002 was specified.

4 As a result of the quashing of the sentence for the arson offence an application was made on the appellant’s behalf, pursuant to s 59 of the Crimes (Sentencing Procedure) Act 1999 (“the Act”), to vary the commencement date of each of four sentences of three months imprisonment which were expressed to commence on 7 January 2002 and to expire 6 April 2002. The Crown consented to this application. The parties handed up short minutes setting out the orders sought and orders were made in conformity with the same. The sentences were varied so that in each case they were expressed to have commenced on 7 April 2001 and to have expired on 6 July 2001. I will return to the terms of those orders.

5 Mr Button, who appeared on behalf of the appellant, made a further application pursuant to s 59 of the Act, to vary the commencement date of a sentence imposed on 7 August 2001 in the Bathurst Local Court. This was a sentence of six months imprisonment expressed to commence on 7 August 2001 and to expire on 6 February 2002 and followed the appellant’s conviction on a charge of “obtain benefit by deception”. The Crown opposed the application to vary the commencement date of this sentence.

6 The matter was stood over to enable a transcript of the proceedings before the Bathurst Local Court on 7 August 2001 to be obtained. The parties were…

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.

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Details

Case: [2001] NSWCCA 495
Decision Date: 5 December 2001

CaseChat Overview and Summary

Shane Patrick O'Donohue appealed against his conviction for an arson offence, which was quashed by the New South Wales Court of Criminal Appeal. The appeal led to an application to vary the commencement date of several sentences imposed by different courts, pursuant to s 59 of the Crimes (Sentencing Procedure) Act 1999. The primary issue before the Court was whether the term "consecutive sentence" in s 59 of the Act includes a sentence that is partly concurrent and partly consecutive on another sentence. The Court considered the language of the statute, the legislative history, and the purpose of the Act in interpreting the term. The Crown argued that the ordinary meaning of the provision and the scheme of the Act indicated that a "consecutive sentence" refers to a sentence that commences at the expiration of an existing sentence or the non-parole period of an existing sentence, and does not include a sentence that is partly concurrent with and partly consecutive upon another sentence. The Court found force in the Crown's submission and concluded that s 59 does not permit the Court to vary the commencement date of a sentence that is partly concurrent and partly consecutive upon another sentence. Consequently, the application to vary the commencement date of a sentence imposed in the Bathurst Local Court was refused. The Court varied the commencement date of two sentences of three months imprisonment imposed by the St James Local Court, so that they were to be taken to have commenced on 7 April 2001 and expired on 6 July 2001.

Orders