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." With regard to the late lodgment of the application for leave to appeal, the applicant stated: "I did not seek legal advice and I was unaware I had to lodge an appeal within 10 days." 20 It has been pointed out to this Court in the applicant's written submissions that, at the time of the cancellation of the periodic detention order, Judge Rummery, necessarily, did not have the benefit of the subsequent decisions of this court in Wilson (1997) 93 A Crim R 301 or Webster (1998) 100 A Crim R 26, which decisions emphasise the practical undesirability of a court proceeding to hear a cancellation application in the absence of the detainee. See also the judgments of this Court in Biddle (unreported, 6 March 1997) and Lloyd (Terry) (unreported, 17 June 1997). 21 I will merely note what Smart J said in Webster at p 34: "The appeals which have come before this Court have demonstrated how necessary it is for detainees to be before the court when a judge is cancelling an order for periodic detention and deciding whether to fix minimum and additional terms and the length of each." And later at p 38, his Honour said: "I conclude that it is necessary for the proper, fair and effective administration of justice and the Act to imply a power that on the non-appearance of a detainee on a cancellation application and on the department establishing a prima facie case, the Local Court has the power to issue a warrant for the arrest of the detainee and to bring him before the court. Otherwise it is not possible to deal fairly with the detainee on the cancellation." 22 It is true that the applicant elected not to present himself before Judge Rummery on 20 October and, as I have already indicated, his Honour necessarily did not have the benefit of subsequent decisions of this Court. However, in the light of the problems enunciated by the cases to which I have referred, commencing with Wilson, it is now manifestly clear that the course adopted by Judge Rummery was inappropriate. The appropriate course would have been to have a warrant issue for the arrest of the applicant, and the application for cancellation of the periodic detention order then dealt with in the presence of the applicant when he was brought before the court consequential upon his arrest. 23 In these circumstances, despite the careful arguments which have been put to this Court on behalf of the Director of Public Prosecutions by Mr Berman and, on behalf of the Commissioner for Corrective Services, by Mr O'Brien, I am of the view that the intervention of this Court is called for. It is necessary, therefore, for this Court to consider now, in the light of the evidence presently before it, whether the minimum and additional terms imposed by Judge Rummery should be varied and, if so, to what extent. 24 Firstly, one must consider as a factor that the translation of the unexpired 121 weeks of periodic detention into 121 weeks of full time custodial sentence necessarily constitutes a much harsher penalty for the applicant, albeit, he brought this situation upon himself. 25 The evidence, one is pleased to note, which has been put before this Court to demonstrate the attempts which the applicant has made towards his rehabilitation is very impressive indeed. I shall not deal in detail with this material, which comes both from officers within the Department of Corrective Services, who are concerned with the welfare of the applicant, as well as persons external to the Department who provided their services to assist the inmates with rehabilitation. 26 There is also some evidence of the applicant having an orthopaedic disability, which is a relevant consideration insofar as special circumstances are concerned. Thus, for my part, I am satisfied that there are special circumstances which require this Court to vary the ratio between the minimum and the additional terms fixed by Judge Rummery. 27 An additional factor which has been raised during the course of argument is that the first three months of the full time custodial sentence, which were served after the applicant's arrest on 27 April 1999, were served concurrently with the sentences imposed by the Local Court in relation to the PCA matter and the drive whilst unlicensed matter. That is a matter which should be taken into account in adjusting the ratio between the two terms. 28 The objective seriousness of the subject offence is, of course, another matter which has to be considered. Balancing the objective and subjective circumstances, I am of the view that the order made by Judge Rummery on 20 October 1995, to the extent that it involved the sentencing of the applicant to full time custodial sentence, should be quashed and, in lieu thereof, that this Court should impose the following orders, namely, that the applicant serve a minimum term of 91 weeks from 27 April 1999 and expiring on 29 September 2000 and that he serve an additional term of 30 weeks commencing on 30 September 2000 and expiring on 20 August 2001. 29 HULME J: I agree with the orders proposed and with his Honour's reasons. There is, however, one matter I would add. 30 In the decision of this court in Wilson v The Department of Corrective Services given on 12 February 1997 and reported in 93 A Crim R page 301, this court drew attention to the fact that the Department of Corrective Services and the Director of Public Prosecutions could not seem to make up their mind who, on behalf of the Crown, should appear in matters such as this. 31 While I appreciate that these days it seems to be important to government departments to shift as much as possible the costs of government onto some other department, it really is of no benefit to the taxpayer, who, after all, has to fund all departments to have representation in these sort of proceedings from two government departments when with a little co-operation it could be effected by one. 32 It seems to me a farce that three years after the remarks of this court in Wilson these two government organisations cannot agree amongst themselves to have one representative in matters such as these. After all, both represent the Crown and the Crown has an interest in the result of the proceedings. 33 The orders of the court are, accordingly, as outlined by Carruthers AJ. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.