Regina v Nigel Peter Pamplin [2001] NSWCCA 327

New South Wales Court of Criminal Appeal

CITATION : Regina v Nigel Peter Pamplin [2001] NSWCCA 327 FILE NUMBER(S) : CCA 60318/01 HEARING DATE(S) : 14 August 2001 JUDGMENT DATE : 14 August 2001

PARTIES : Regina Nigel Peter Pamplin JUDGMENT OF : Spigelman CJ at 8 and 10; Sully J at 1; Smart AJ at 9

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/31/0356 LOWER COURT JUDICIAL Nader DCJ OFFICER :

COUNSEL : P. G. Berman SC - Crown C. B. Craigie - Respondent SOLICITORS : S. E. O'Connor - Crown Sydney Regional Aboriginal Corporation Legal Service - Respondent

LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 DECISION : Crown appeal against sentence allowed and sentence imposed in Court below quashed.; Remit, pursuant to s 12(2) of the Criminal Appeal Act to the District Court at Moree at next sitting re-sentencing according to law of the respondent.; Order a pre-sentence report be prepared for use in the District Court re-sentencing proceedings.

IN THE COURT OF CRIMINAL APPEAL

60318/01

SPIGELMAN CJ SULLY J SMART AJ

Tuesday 14 August 2001

REGINA v NIGEL PETER PAMPLIN

JUDGMENT

1 SULLY J: This is a Crown appeal against a suspended sentence of imprisonment passed upon the respondent, Mr Pamplin by his Honour Acting Justice Nader in the Moree District Court on 10 May last.

2 The power to order a suspended sentence derives from s 12 of the Crimes (Sentencing Procedure) Act 1999. Section 12 in its terms requires a particular procedure to be followed; and itself establishes some particular criteria and pre-conditions before a suspended sentence may lawfully be ordered in accordance with the section. 3 It is common ground in the appeal that the learned sentencing Judge did not pass the suspended sentence in the way and upon the basis contemplated and permitted by s 12 of the Act. It is, therefore, common ground that at the very least the Crown appeal must be allowed; the sentence imposed in the Court below quashed; and some appropriate ancillary orders made. 4 The making of proper ancillary orders is itself a matter of some difficulty because of the present situation of the respondent. It is not necessary to say more about that situation than to say that Mr Pamplin is, as matters stand, a person in remand custody on other matters; and who has become within the purview of the relevant statute mentally ill while in that remand custody. He has, therefore, as matters stand, the status of a forensic patient who is being detained in the appropriate facility at Long Bay. 5 Clearly the re-sentencing of Mr Pamplin which must now take place is something that will need to be handled with a great deal of care and sensitivity, and upon the basis of carefully collated psychiatric and the like material of a kind which is simply not available as matters stand to this Court. In those circumstances it seems to me that this matter is an unusual one, in which it would be appropriate for the Court, rather than, as it were, re-sentencing upon the basis of incomplete and inexact materials, to exercise its powers under s 12(2) of the Criminal Appeal Act so as to remit to the District Court the question of re-sentencing; and that to the end that the District Court will be able in a way that is not easily available to this Court, to put itself in possession of the necessary additional materials that will need to be considered, and, as I have said, considered carefully and sensitively, in connection with any re-sentencing of Mr Pamplin. 6 For those reasons it seems to me that the appropriate way of disposing of the appeal at present before the Court is to make the following orders: