Regina v Martin WOOD [2000] NSWCCA 155

New South Wales Court of Criminal Appeal

CITATION : Regina v Martin WOOD [2000] NSWCCA 155 FILE NUMBER(S) : CCA 60469/99 HEARING DATE(S) : 3rd May 2000 JUDGMENT DATE : 3 May 2000

PARTIES : Regina v Martin Wood JUDGMENT OF : Hulme J at 29; Carruthers AJ at 1

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 94/21/1049 LOWER COURT JUDICIAL Rummery DCJ OFFICER :

H K Dhanji - Applicant COUNSEL : P G Berman - Crown M O'Brien - Commissioner for Corrective Services SOLICITORS : T A Murphy - Applicant S E O'Connor - Crown CATCHWORDS : Criminal law - sentence appeal - cancellation of periodic detention - detainee not present when cancellation order made - desirability of only one party representing the Crown. LEGISLATION CITED : Crimes Act 1900 Periodic Detention of Prisoners Act 1981, s 26(1A), s 27(4) Wilson (1997) 93 A Crim R 301 CASES CITED: Webster (1997) 100 A Crim R 26 Biddle (CCA, unreported, 6 March 1997) Lloyd (Terry) (CCA, unreported, 17 June 1997) DECISION : See paragraph 28

IN THE COURT OF CRIMINAL APPEAL 60469/99

HULME J CARRUTHERS AJ Wednesday 3 May 2000

REGINA v Martin WOOD.

JUDGMENT

1 CARRUTHERS AJ: The applicant, Martin Wood, seeks leave to appeal against sentences imposed upon him by his Honour Judge Rummery QC at the Penrith District Court on 20 October 1995 following the cancellation by his Honour of a periodic detention order made by Judge Graham at the Parramatta District Court on 30 June 1994. 2 The brief history of the matter is as follows. The applicant was born on 25 May 1969 and has a history of addiction to alcohol dating back, it is said, to about 12 years of age. Later, there is history of an addiction to drugs. He does appear, however, to have come from a good home, and his family is still supportive of him. Prior to 15 January 1994, which is the date of the subject offence, the applicant had been before Local Courts and Children's Courts on four occasions. In 1993, he served a period of six months periodic detention for stealing from the person. 3 On 15 January 1994, he was employed at the Shell Service Station at Lethbridge Park. On that date, in company with one Robert John May, he robbed another employee of $21,620, the property of the service station proprietor. At the time, the co-offender was armed, to the knowledge of the applicant, with a long knife which was used to terrify and subdue Mr May, who was thereupon tied to the door handle of a room in the service station. 4 Working together, the two men, aided by the applicant's knowledge of the security system within the service station, removed the stolen money from the safe. 5 The applicant was charged with robbery in company, under s.97(1) of the Crimes Act 1900, which carries a maximum penalty of 20 years penal servitude. 6 As indicated, the applicant was sentenced by Judge Graham at Parramatta District Court on 30 June 1994. His Honour took into account the fact that the applicant had provided considerable assistance to the authorities and also took into account, from the subjective point of view, his addiction to amphetamines and his long history of alcohol abuse. 7 His Honour acknowledged the substantial risks to which the applicant would have been exposed if a full time custodial sentence were imposed, by reason of the assistance which he had afforded to the authorities. His Honour took into account, of course, the plea of guilty and what he considered to be the genuine remorse and contrition attending that plea. 8 Accordingly, his Honour sentenced the applicant to a fixed term of three years penal servitude to be served by way of periodic detention. His Honour directed that the applicant report to the Periodic Detention Centre, Emu Plains, by 7 pm on Friday 8 July 1994. 9 Regrettably, the applicant failed to take advantage of the obvious leniency which had been afforded to him by Judge Graham and accumulated total of 18 absences without leave, albeit he had served as at 20 October 1995, 36 weeks of the sentence. 10 The Department of Corrective Services applied to the District Court for cancellation of the periodic detention order. A notice of listing of this application was sent to the applicant's home at Tregear on 29 June 1995 requiring the applicant's attendance at the Penrith District Court on 18 August 1995. The applicant attended in person on that day and, at his request, was granted an adjournment until 15 September 1995. 11 On 15 September 1995, the applicant again attended. On this occasion, Mr Mulder of the Legal Aid Commission appeared as amicus curiae to assist the court on his behalf. The matter was then adjourned by consent until 20 October 1995. 12 It is now apparent, by reason of evidence before this Court that the applicant decided, after discussion with his partner, that he would not attend court on 20 October 1995. He and his partner decided that they would start a new life and move to Newcastle. They were aware at the time that, as a consequence, the applicant would ultimately have to go to gaol. They said, however, that no-one ever came looking for him. They came back to Sydney in 1999 because his partner's father was dying of cancer. 13 The matter duly came before Judge Rummery on 20 October 1995 and the applicant did not appear and no explanation was given for his non-appearance. At the request of the legal representative of the Commissioner for Corrective Services, his Honour dealt with the matter in the absence of the applicant. His Honour was informed by the Departmental representative that the period remaining to be served on the periodic detention order was 121 weeks. 14 On this date, s.27(4) of the Periodic Detention of Prisoners Act 1981 was still in force. That subsection enabled the court to set minimum and additional terms, if it thought fit, and make a parole order. 15 His Honour did not have the advantage, obviously, of any submissions on behalf of the applicant. His Honour considered that the only question for him was whether, in sentencing the applicant in respect of the unexpired portion of the periodic detention order, he should impose a minimum and additional term. He decided that he should adopt that course, and applied what is sometimes referred to as a statutory ratio. Thus his Honour ordered that the applicant serve the unexpired portion of the sentence imposed by Judge Graham by way of a minimum term of 91 weeks from the date of arrest and an additional term of 30 weeks to commence immediately upon the expiration of the minimum term. 16 His Honour directed that a warrant under s.26A of the Act issue. This seems to be an error for a warrant under s.26(1A) of the Act. Such a warrant was issued. 17 Be that as it may, the applicant remained at large until he was brought before Penrith Local Court on 27 April 1999 when he was convicted of one count of mid-range prescribed concentration of alcohol and one count of drive whilst licence cancelled. On each charge he was sentenced by the Local Court to a fixed term of three months imprisonment to date, in each case, from 27 April 1999. 18 It is accepted that the applicant was arrested by the execution of the warrant under s.26(1A) of the Act on 27 April 1999. Accordingly, the applicant commenced to serve the sentence imposed by Judge Rummery as from 27 April 1999 with the minimum term expiring on 22 January 2001 and the additional term expiring on 20 August 2001. 19 An application for leave to appeal against the orders made by Judge Rummery on 20 October 1995 was lodged on 10 August 1999. The grounds of appeal state: "1. An order for periodic detention cancelled in my absence on 20 October 1995. 2. I had medical certificates to explain my absence from periodic detention. These were not presented to the District Court."