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 given leave to file written submissions after the transcript became available.

7 The Court has now been supplied with a copy of the transcript of the proceedings before Magistrate Norton at the Bathurst Local Court on 7 August 2001 together with written submissions from both parties.

8 The transcript of the proceedings before the Bathurst Local Court contains no reference to the circumstance that the appellant was appealing against his sentence in respect of the arson offence (as at 7 August 2000 the appellant had not filed a notice of appeal against his conviction). The transcript records the Magistrate observing:

“Mr O’Donohue in his request is seeking a sentence that doesn’t extend the current sentence which is into April next year.
….
I’ve read all the documentation and I think it’s appropriate to impose a sentence that is concurrent with the current sentence which will not extend his release date.”

9 The Magistrate engaged in an exchange with the appellant concerning the latter’s plans for rehabilitation. The transcript then records the Magistrate as observing:

“I don’t see any purpose in extending your sentence you’ve received quite a substantial sentence for the matter involving the hotel room”.

10 The Magistrate imposed a fixed term of six months imprisonment to commence on that day and to expire on 6 February 2002.

11 It is to be noted that on 25 July 2000 the appellant was convicted and sentenced at the St James Local Court in respect of charges of (i) obtain benefit by deception and (ii) breach Community Service Order. In respect of each conviction he was sentenced to a fixed term of three months imprisonment to commence on 7 January 2002 and to expire on 6 April 2002. These sentences are the subject of the orders made by the Court on 9 November 2001.

12 As at 7 August 2001, when the appellant stood for sentence before the Bathurst Local Court, the fixed term of six months imprisonment imposed by the Magistrate, would have been wholly subsumed by the sentence then being served in respect of the arson offence and the sentences imposed in the St James Local Court.

13 The non-parole period imposed in the District Court for the arson offence expired on 6 January 2002. The sentencing judge directed the appellant’s release to parole at the expiration of the non-parole period. The sentence imposed in the Bathurst Court is to expire on 6 February 2002. The latter sentence is, thus, one that is partly concurrent and partly consecutive upon the non-parole period of the quashed sentence.

14 Section 59 of the Crimes (Sentencing Procedure) Act 1999 (NSW) is in these terms:

“59(1) A court that quashes or varies a sentence of imprisonment imposed on a person (on appeal or otherwise) may vary the date of commencement of any consecutive sentence that has been imposed on that person by that or any other court.
(2) If a person is subject to two or more consecutive sentences, this section applies to each such sentence.
(3) A court may vary a consecutive sentence under this section on its own initiative or on the application of a party to the proceedings on the quashing or variation of the other sentence.
(4) An appeal does not lie merely because the date of commencement of a consecutive sentence is varied under this section.
(5) The term of a sentence, or the non-parole period of a sentence, cannot be varied under this section.”

15 Mr Button submitted that we should construe the expression “consecutive sentence” in s 59 of the Act so as to include a sentence that is partly consecutive on another sentence. He pointed to the consequences of a strict interpretation noting that a wholly consecutive sentence of three months imprisonment might be adjusted, but a sentence of six months, being concurrent as to three months and consecutive as to three months, could not be. In such a case, even though the release dates would be identical and the practical effect upon the prisoner identical, the power of this Court to adjust the release date would depend upon what was said to be the capricious and arbitrary form of the sentence adopted by the original sentencing court.

16 There is no definition of “consecutive sentence” in the Act. The Crown draws attention to the scheme of the Act which maintains a distinction throughout between “consecutive sentences” and sentences that are “partly concurrent and partly consecutive” ; s 47(2), s 55(2), s 56, s 57, s 58, s 67, s 70, s 79.

17 In her written submissions, the Crown Prosecutor took us to the legislative history of the Act and to the predecessor of s 59. She referred to the Minister’s Second Reading speech in the Legislative Assembly as support for the proposition that the principal object of the Act was to amalgamate and re-enact provisions of a number of Acts, including the Criminal Procedure Act 1986 (Hansard, Legislative Assembly, 28.10.99 p 2324).

18 Section 59 of the Act re-enacts in substantially like terms the provisions of s 24A of the Criminal Procedure Act 1986 (NSW). Section 24A used the expression “cumulative sentence” and not “consecutive sentence”. In written submissions neither party contended that any matter of substance turned upon this difference.

19 The Criminal Procedure Act, s 23F, did contain a definition of the expression “cumulative sentence”:

“Cumulative sentence” means a sentence of imprisonment that is imposed so as to commence at the end of another sentence to which the same person is subject, or at the end of the minimum term of any such other sentence.”

20 Section 24A was introduced into the Criminal Procedure Act by the Criminal Procedure Amendment (Sentences Adjustment) Act 1996 (NSW). In the Crown’s submission the provision was introduced to remedy a difficulty identified by this Court in cases where the quashing of a sentence following a successful appeal left the appellant with a further sentence of imprisonment to commence on a specified date in the future. It was submitted to be both impractical and unjust to return a person to custody on a future date. In support of this contention we were provided with a copy of the Attorney-General’s Second Reading speech:

“Some time ago, the Chief Justice of the Supreme Court of this State kindly brought to the attention of officers within my Department a problem that had come to light in the Court of Criminal Appeal. This Bill is in response to the concerns of the Chief Justice.

The problem that has been identified can best be explained to honourable members by way of an example. Imagine a prisoner who is serving two sentences. One sentence is imposed so as to commence at the end of the other, that is, the second sentence is cumulative upon the first sentence.

Pursuant to the Sentencing Act, both sentences, including the second or cumulative sentence, are expressed to commence on a particular date. Because the first sentence is some years in length, the commencement date of the second sentence is some years in the future.

The prisoner then appeals against the first sentence. He is successful. That sentence is quashed and a verdict of acquittal is entered. However, in those circumstances, the question may be asked: what is to be done about the second sentence? No appeal has been lodged against it. It could hardly be thought appropriate for the appellant to be released for the next several years, and then be returned to custody on the date when the second sentence was originally expressed to commence.

That then is an example of the problem. It should be noted that the problem arises not only when the first sentence is entirely quashed but also when it is shortened or lengthened.

This Bill provides a solution. A court exercising criminal appellant jurisdiction will have the power to adjust the commencement date of the second, or indeed any other, cumulative sentence.

The two courts in the New South Wales criminal justice system that most commonly exercise that jurisdiction are the Court of Criminal Appeal and the District Court of New South Wales. In the past, ad hoc solutions to the above problem have been adopted. Some of them can be seen to have been rather unsatisfactory. This Bill will obviate the need for such solutions (Hansard, Legislative Council, 20 November 1996, p 6268).”

21 Both Mr Button and the Crown submit that the provision should be interpreted in a manner which promotes the purpose of the Act. In Mr Button’s submission the legislation introducing the original section (which I take to be a reference to the Criminal Procedure Amendment (Sentences Adjustment) Act 1996 (NSW)) may be characterised as a remedial Act. Ambiguity in such Acts should be interpreted broadly; Pearce and Geddes, Statutory Interpretation in Australia, 5th Ed, 2001, Butterworths. Accepting that statement of principle, it remains to be observed that under s 24A of the Criminal Procedure Act there was no power to adjust a partly concurrent and partly cumulative sentence. It was not submitted that the failure to include a definition of “consecutive sentence” in the Act in like terms to the definition of “cumulative sentence” in the Criminal Procedure Act lent support to the appellant’s submissions.

22 I accept the Crown’s submission that there is nothing to indicate that the enactment of s 59 of the Act was intended to alter the purpose or effect of s 24A of the Criminal Procedure Act, which it, in effect, re-enacted.

23 In the Crown’s submission the ordinary meaning of s 59 is that it enables a court, when quashing or varying a sentence of imprisonment to also vary the date of any consecutive sentence, being a sentence which is to commence at the expiration of the sentence (or non-parole period) of the sentence quashed or varied. This is said to be consistent with the purpose of the provision and with the other sections of the Act which maintain a distinction between sentences which are consecutive and sentences which are partly concurrent and partly consecutive.

24 The Crown also draws attention to Part 4 of the Act, which deals with sentencing procedures for imprisonment. In particular, s 47(2)(b) provides that a court may direct that a sentence of imprisonment commence on a day occurring after a day on which it is imposed only if the sentence is to be served consecutively (or partly concurrently and partly consecutively, with some other sentence of imprisonment). It is in this context that the Crown submits s 59 operates to avoid the anomaly that, upon the quashing of an existing sentence, a sentence might commence on a future date.

25 I consider that there is force to the Crown’s submission that the ordinary meaning of s 59, consistent with the purpose of the provision and the scheme of the Act, is that the expression “consecutive sentence” refers to a sentence which commences at the expiration of an existing sentence (or at the expiration of 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 (or the non-parole period of another sentence).

26 I am not persuaded that s 59 of the Act admits of this Court varying the date of commencement of the sentence imposed in the Bathurst Local Court on 7 August 2001. I would decline to do so.

27 I should note that the Crown addressed submissions concerning the sentence imposed in the Bathurst Local Court. It was suggested that although the sentence imposed by the Magistrate was one which was intended to be substantially concurrent with the sentence imposed for the arson offence, this was because the Magistrate considered that the appellant’s release date should not be extended given that he was serving a relatively lengthy sentence in respect of the arson offence. That may be so. However, in a case such as this where an appellant succeeds in having his sentence in respect of one offence quashed, it may be that consideration should be given to allowing the District Court to extend the time in which to bring an appeal against the severity of a concurrent sentence (or a partly concurrent and partly consecutive sentence) beyond the three months provided by s 124 of the Justices Act 1902. The existence of the sentence subsequently quashed may have been a factor taken into account by the Magistrate in imposing sentence for the further offence or offences.

28 The orders made pursuant to s 59 of the Act on 9 November 2001, in conformity with a set of draft orders signed by the parties, were expressed to relate to four sentences, each of three months imprisonment. Those were identified as follows:

1. Obtain benefit by deception, fixed term three months, to date from 7 January 2002, imposed 11 October 2000;
2. Breach community service order, fixed term three months to date from 7 January 2002, imposed 11 October 2000;
3. Obtain benefit by deception, fixed term three months, to date from 7 January 2002, imposed 25 July 2000;
4. Breach community service order, fixed term three months, to date from 7 January 2002, imposed 25 July 2000.

29 The Court made orders varying the commencement date of each sentence to provide that it was to be taken to have commenced on 7 April 2001 and to have expired on 6 July 2001.

30 In joint written submissions the parties have informed the Court that there were only two sentences of three months imprisonment imposed upon the appellant. These were sentences imposed in the St James Local Court on 25 July 2000. The sentences said to have been imposed on 11 October 2000 referred to appeals, which were heard in the District Court, against the two sentences imposed in the St James Local Court. In each case it would appear that the appeals were dismissed and the sentences confirmed. It is sufficient to note that fact. The orders made on 9 November 2001 operate to vary the date of commencement of the two sentences of three months imprisonment to which the appellant was subject, namely, the sentence imposed on 27 July 2000 at the St James Local Court in respect of the offence of obtain benefit by deception and the sentence imposed on 27 July 2000 at the St James Local Court in respect of a breach of a Community Service Order. By operation of the orders made on 9 November 2001 each of those sentences has been varied so as to be taken to have commenced on 7 April 2001 and to have expired on 6 July 2001.

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