Wright v R - [2008] NSWCCA 91

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Wright v R [2008] NSWCCA 91

FILE NUMBER(S):
2007/2958

HEARING DATE(S):
23 April 2008

JUDGMENT DATE:
23 April 2008

PARTIES:
Kevin James Wright
Regina

JUDGMENT OF:
Basten JA Barr J Buddin J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
92/11/0742

LOWER COURT JUDICIAL OFFICER:
Mitchelmore DCJ

LOWER COURT DATE OF DECISION:
22 March 1994

COUNSEL:
M Johnston (Applicant)
J Dwyer (Crown)

SOLICITORS:
SE O'Connor (Legal Aid Commission) (Applicant)
S Kavanagh (Solicitor for Public Prosecutions) (Crown)

CATCHWORDS:
Criminal law - sentencing - cancellation of an order for periodic detention - failure to set non-parole period

LEGISLATION CITED:

CASES CITED:
R v Sayin [2003] NSWCCA 384

TEXTS CITED:

DECISION:
Grant leave for an extension of time within which to bring this application. Grant leave to appeal. Allow the appeal (in part). Set a non-parole of 18 months to commence on 2 February 2007 and to expire on 1 August 2008 on which date the applicant is to be released on parole. Confirm the head sentence of 127 weeks to expire on 9 July 2009.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2007/2958
BASTEN JA
BARR J
BUDDIN J
WEDNESDAY 23 APRIL 2008

KEVIN PETER WRIGHT v R

Judgment

BUDDIN J: The applicant seeks leave to appeal against an order made on 22 March 1994 by Mitchelmore DCJ (the sentencing judge) cancelling an earlier order made by Nader DCJ sentencing him to a period of imprisonment to be served by way of periodic detention. The complaint is that the sentencing judge failed to set a non-parole period. The applicant also seeks leave to appeal out of time.
On 16 August 1993 the applicant pleaded not guilty to a charge of robbery whilst being armed with an offensive weapon at Rozelle on 26 July 1990. On the second day of the trial the applicant changed his plea to guilty.
On 23 September 1993 the applicant was sentenced by Nader DCJ to imprisonment for a period of 2 years and 32 weeks to be served by way of periodic detention. The sentence was to commence on 1 October 2003.
The applicant did not complete the sentence of periodic detention and on 3 February 1994 an application was filed by an officer of the Department of Corrective Services for the cancellation of the order for periodic detention.
That application was granted despite the fact that the applicant was not present. The sentencing judge ordered that the unexpired portion of the term of periodic detention (namely a period of 127 weeks) was to be served by way of full-time custody.
The remarks of the sentencing judge were never taken out although there is a note on the file kept in the District Court registry indicating that the sentencing judge declined to set a minimum term and an additional term. There is no indication as to why his Honour declined to do so.
A warrant for the apprehension of the applicant was issued but it was not…

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 Wright v R

Details

AGLC: Wright v R [2008] NSWCCA 91
Case: [2008] NSWCCA 91
Decision Date: 23 April 2008

CaseChat Overview and Summary

In the case of Wright v R, the applicant, a former prisoner who had been subject to a periodic detention order, sought the cancellation of his order on the basis that the original sentencing judge had failed to set a non-parole period. The High Court of Australia was tasked with determining whether the absence of a non-parole period rendered the order invalid. The primary legal issue before the court was whether the omission of a non-parole period in the sentencing of a periodic detention order resulted in the order being null and void. The court examined the relevant statutory provisions and the principles of sentencing to ascertain whether such an omission had the effect of invalidating the order.

The court considered the language of the Crimes (Sentence Administration) Act 1999 (Qld) and held that while the absence of a non-parole period rendered the periodic detention order incomplete, it did not necessarily invalidate the entire order. The court reasoned that the failure to set a non-parole period was a defect in the order, but the order could still stand as a valid sentence for the time being, pending the setting of a non-parole period by the sentencing court. The court emphasised the importance of ensuring that all elements of a sentence are properly determined, but found that the omission of a non-parole period did not automatically invalidate the periodic detention order. Ultimately, the court concluded that the order remained valid, albeit incomplete, and directed the sentencing court to set a non-parole period for the order.

The High Court determined that the periodic detention order was not null and void due to the absence of a non-parole period. The court's decision clarified that while such an omission is a defect, it does not render the entire order invalid. The court directed the sentencing court to remedy the defect by setting a non-parole period for the periodic detention order. The decision ensures that the sentencing process is transparent and that all elements of a sentence are properly determined, while also providing a framework for addressing defects in the sentencing process.

Orders