New South Wales Court of Criminal Appeal CITATION : REGINA v. BUTCHER [2001] NSWCCA 335 FILE NUMBER(S) : CCA No. 60291 of 2000 HEARING DATE(S) : Wednesday 28 March 2001 JUDGMENT DATE : 4 September 2001 PARTIES : REGINA v. BUTCHER, Brett John JUDGMENT OF : Greg James J at 1; Smart AJ at 8 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/31/0371 LOWER COURT JUDICIAL Viney, DCJ. OFFICER : COUNSEL : Crown: C.K. Maxwell, QC. App: A.C. Haesler SOLICITORS : Crown: S.E. O'Connor App: D.J. Humphreys CATCHWORDS : Sentence - amendment to non-parole period. LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 Drugs Misuse & Trafficking Act 1985 DECISION : Amendment made to sentence as expressed in Regina v. Butcher [2001] NSWCCA 188 IN THE COURT OF CRIMINAL APPEAL CORAM: GREG JAMES, J. SMART, AJ. TUESDAY 4 SEPTEMBER 2001 REGINA v. BRETT JOHN BUTCHER JUDGMENT 1 GREG JAMES, J: Following the judgment in this matter of the 17 May 2001, application under s.43 of the Crimes (Sentencing Procedure) Act 1999 has been jointly made by the appellant and the Crown. 2 Paragraph two of the judgment of 17 May 2001 wrongly referred to the applicant pleading guilty to three charges under the Drugs Misuse & Trafficking Act 1985, whereas, the applicant had pleaded guilty to four charges as the balance of the paragraph made plain. The word "three" in line one of paragraph two should be amended to read "four". 3 In consequence, some degree of confusion occurred later in the judgment and, in particular, at paragraph 68. That paragraph reads:- "I would deem it inappropriate to impose a non-parole period in respect of the sentence on count one in consequence of the non-parole period being imposed on the sentence imposed on count four. All sentences should date from 21 May 1999 and be served concurrently." 4 As submitted by both counsel for the applicant and senior counsel for the Crown, that paragraph wrongly creates the impression that no non-parole period was to be fixed in relation to count one. It should be amended to provide that no variation occur rather than no imposition. 5 Paragraph 68 should read:- "I would deem it inappropriate to vary the non-parole period in respect of the sentence on count one. All sentences should date from 21 May 1999 and be served concurrently." 6 It is also necessary to amend the orders to ensure that all matters raised in the judgment are disposed of. In accordance with the application, I would propose that the orders should read:- (a) Leave to appeal granted; appeal allowed on counts one and four; sentences on those counts quashed. (b) In lieu of the sentences imposed on count one the applicant is sentenced to four years imprisonment to commence 21 May 1999, with a non-parole period of two years commencing on that day and ending on 20 May 2001. (c) In lieu of the sentences imposed on count four, the applicant is sentenced to five years imprisonment to commence 21 May 1999, with a non-parole period of three years commencing on that day and ending on 20 May 2002. (d) Appeal on counts two and three dismissed. 7 The judgment should therefore be re-opened pursuant to s.43(2)(b) Crimes (Sentencing Procedure) Act 1999 and amended as I have proposed. 8 SMART, AJ: I agree. ********* 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.