R v LEETE [2001] NSWCCA 337

Reported Decision : 125 A Crim R 37

New South Wales Court of Criminal Appeal

CITATION : R v LEETE [2001] NSWCCA 337 FILE NUMBER(S) : CCA 60069/01 HEARING DATE(S) : 29 August 2001 JUDGMENT DATE : 7 September 2001

PARTIES : Regina Tracey Ellen Leete JUDGMENT OF : Sheller JA at 1; Sully J at 2; Hulme J at 3

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/51/0213 LOWER COURT JUDICIAL Ducker DCJ OFFICER :

COUNSEL : Crown: RA Hulme Applicant: R Burgess SOLICITORS : Crown: SE O'Connor Applicant: DJ Humphreys

DECISION : 1. Grant leave to appeal; 2. Allow the appeal; 3. Quash the sentence imposed by Judge Ducker; 4. Remit the matter to the District Court for the purpose of re-sentencing the Applicant.

- 9 -IN THE COURT OF CRIMINAL APPEAL No 60069/01 SHELLER JA SULLY J HULME J Friday, 9 September 2001 REGINA -v- Tracey Ellen LEETE JUDGMENT

1 SHELLER JA: I agree with Hulme J. 2 SULLY J: I agree with Hulme J. 3 HULME J: On 31 January 2001, this Applicant was sentenced by Judge Ducker in respect of a charge of supplying heroin. The amount involved was 22.99 grams. The sentence imposed was imprisonment for 3 years including a non-parole period of 2 years, both periods to commence on the date of sentence. His Honour recognised that the Applicant had been in custody since the date of the offence on 2 October 2000 but declined to back-date the commencing date for the sentence. 4 His Honour expressed the view that the offence merited a sentence of the order of 3½ years and it is clear that his Honour adopted the course that he did in order that he himself could impose conditions on the Applicant's parole. The combined effect of ss 50 and 51 of the Crimes (Sentencing Procedure) Act 1999 permits a sentencing judge to do this when the period of the sentence is not greater than 3 years. 5 In this connection what his Honour said and ordered was as follows:- "I do find that there are special circumstances here and those special circumstances are this offender's need for at least 12 months on parole during which she may undergo a full time in-house drug rehabilitation course. To give effect to these intentions, the order that I make is that the offender be imprisoned for a period of 3 years to date from 31 January 2001… Her parole order is to include conditions that she be supervised throughout by the Probation and Parole Service, and that she at the direction of that service and at the earliest opportunity, enter into a full time drug rehabilitation course and carry out the requirements of that course to the satisfaction of her parole officer and the institution in which the course takes place. She is to submit to urinalysis…" 6 On behalf of the Applicant, it is submitted that his Honour erred. The Notice of Appeal states the grounds of the Application to be "I would like to appeal for a backdate. I served 4 months before sentencing." 7 As argued, the grounds of appeal were:-