Regina v Shane Patrick O'DONOHUE (No. 2) [2001] NSWCCA 495

New South Wales Court of Criminal Appeal

CITATION : Regina v Shane Patrick O'DONOHUE (No. 2) [2001] NSWCCA 495 FILE NUMBER(S) : CCA 60439/00 HEARING DATE(S) : 9/11/01 JUDGMENT DATE : 5 December 2001

PARTIES : Shane Patrick O'DONOHUE (Appellant) Regina JUDGMENT OF : Heydon JA at 1; Dowd J at 2; Bell J at 3

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/11/0039 LOWER COURT JUDICIAL Ainslie-Wallace DCJ OFFICER :

COUNSEL : D M L Woodburne (Crown) R J Button (Appellant) SOLICITORS : S E O'Connor (Crown) D J Humphreys (Appellant)

Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED : Criminal Procedure Act 1986 Criminal Procedure Amendment (Sentences Adjustment) Act 1996 Justices Act 1902 DECISION : Application to vary commencement date of sentence pursuant to s 59 of the Crimes (Sentencing Procedure) Act 1999 refused

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL 60439/00 HEYDON JA DOWD J BELL J

5 December 2001 REGINA v Shane Patrick O'DONOHUE (No.2)

Judgment 1 HEYDON JA: I agree with Bell J. 2 DOWD J: I have read and agree with the draft judgment of Bell J. 3 BELL J: On 9 November 2001 this Court allowed the appellant's appeal and quashed his conviction in respect of a charge that on 26 May 1995 by means of fire he did maliciously damage part of the Charles Hotel at Chatswood ("the arson offence"). In respect of this offence the appellant had been sentenced to a term of three years imprisonment to commence on 7 July 2000 and to expire on 6 July 2003. A non-parole period of eighteen months, commencing on 7 July 2000 and concluding on 6 January 2002 was specified. 4 As a result of the quashing of the sentence for the arson offence an application was made on the appellant's behalf, pursuant to s 59 of the Crimes (Sentencing Procedure) Act 1999 ("the Act"), to vary the commencement date of each of four sentences of three months imprisonment which were expressed to commence on 7 January 2002 and to expire 6 April 2002. The Crown consented to this application. The parties handed up short minutes setting out the orders sought and orders were made in conformity with the same. The sentences were varied so that in each case they were expressed to have commenced on 7 April 2001 and to have expired on 6 July 2001. I will return to the terms of those orders. 5 Mr Button, who appeared on behalf of the appellant, made a further application pursuant to s 59 of the Act, to vary the commencement date of a sentence imposed on 7 August 2001 in the Bathurst Local Court. This was a sentence of six months imprisonment expressed to commence on 7 August 2001 and to expire on 6 February 2002 and followed the appellant's conviction on a charge of "obtain benefit by deception". The Crown opposed the application to vary the commencement date of this sentence. 6 The matter was stood over to enable a transcript of the proceedings before the Bathurst Local Court on 7 August 2001 to be obtained. The parties were given leave to file written submissions after the transcript became available. 7 The Court has now been supplied with a copy of the transcript of the proceedings before Magistrate Norton at the Bathurst Local Court on 7 August 2001 together with written submissions from both parties. 8 The transcript of the proceedings before the Bathurst Local Court contains no reference to the circumstance that the appellant was appealing against his sentence in respect of the arson offence (as at 7 August 2000 the appellant had not filed a notice of appeal against his conviction). The transcript records the Magistrate observing: "Mr O'Donohue in his request is seeking a sentence that doesn't extend the current sentence which is into April next year. …. I've read all the documentation and I think it's appropriate to impose a sentence that is concurrent with the current sentence which will not extend his release date." 9 The Magistrate engaged in an exchange with the appellant concerning the latter's plans for rehabilitation. The transcript then records the Magistrate as observing: "I don't see any purpose in extending your sentence you've received quite a substantial sentence for the matter involving the hotel room". 10 The Magistrate imposed a fixed term of six months imprisonment to commence on that day and to expire on 6 February 2002. 11 It is to be noted that on 25 July 2000 the appellant was convicted and sentenced at the St James Local Court in respect of charges of (i) obtain benefit by deception and (ii) breach Community Service Order. In respect of each conviction he was sentenced to a fixed term of three months imprisonment to commence on 7 January 2002 and to expire on 6 April 2002. These sentences are the subject of the orders made by the Court on 9 November 2001. 12 As at 7 August 2001, when the appellant stood for sentence before the Bathurst Local Court, the fixed term of six months imprisonment imposed by the Magistrate, would have been wholly subsumed by the sentence then being served in respect of the arson offence and the sentences imposed in the St James Local Court.