REGINA v. POWICK [2001] NSWCCA 512

New South Wales Court of Criminal Appeal

CITATION : REGINA v. POWICK [2001] NSWCCA 512 FILE NUMBER(S) : CCA No. 60434 of 2001 HEARING DATE(S) : Monday 10 December 2001 JUDGMENT DATE : 10 December 2001

PARTIES : REGINA v. POWICK, Bradley Thomas JUDGMENT OF : Greg James J at 1; Whealy J at 10

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/31/0138 LOWER COURT JUDICIAL Kirkham, DCJ. OFFICER :

COUNSEL : Crown: L.M.B. Lamprati App: C.B. Craigie, SC. SOLICITORS : Crown: S.E. O'Connor App: D.J. Humphreys

LEGISLATION CITED : Crimes Sentencing Procedure Act 1999 CASES CITED: Henry (1999) 46 NSWLR 346 DECISION : Stand out of today's list and stand into the registrar's callover to be fixed, if appropriate, for hearing with the other appeal in Newcastle on 25 and 26 March 2002.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL

No. 60434 of 2001 GREG JAMES, J. WHEALY, J.

MONDAY 10 DECEMBER 2001 REGINA v. BRADLEY THOMAS POWICK JUDGMENT 1 GREG JAMES, J: This is an application for an extension of time for an application for leave to appeal against the sentences imposed on the applicant at Gosford on 19 May 1999 by Kirkham, DCJ. Subsequently the applicant was dealt with in the Supreme Court by Ireland, AJ. for other offences and sentences passed upon him. 2 In his notice, which was filed on 4 July 2001, the applicant referred to advice which he said had been furnished to him that he should not appeal the sentences passed by Kirkham, DCJ. as those sentences would be subsumed in such sentences as would be passed upon him by Ireland, AJ. However, apparently contrary to the advice he says he was given, sentences passed by Ireland, AJ. were expressed to commence at the conclusion of, and not run concurrently with, the sentences passed by Kirkham, DCJ. 3 On the application for extension of time we were referred to those contentions contained in the notice of appeal and without objection by the Crown to the content of the affidavit of the applicant sworn 29 November 2001. It suffices to say that that affidavit disclosed a basis upon which this court might, should, it have been of the view that the sentences passed by Kirkham, DCJ. may have been attended with error, have extended the time for the grant of leave to appeal and reached a view that the appeal against his sentences might be upheld. 4 In that regard the Crown, in his written submissions, drew our attention to Kirkham, DCJ. having, in passing sentence, equated the applicant's offences with those referred to in the guideline judgment of the Court of Criminal Appeal in Regina v. Henry (1999) 46 NSWLR 346, apparently erroneously, although the Crown submitted that certain of the considerations applicable in Henry (supra) would be applicable to the applicant's situation. However, the Crown did not submit that his Honour should be regarded as correctly applying Henry (supra) in all its aspects. Thus it seemed that there would be a basis for the grant of the extension of time and a possible basis upon which leave to appeal should be granted and the appeal allowed. 5 However, as I have said, the applicant is also appealing against his conviction before Ireland, AJ. and the sentences imposed by Ireland, AJ. Those matters are listed in a sittings of this court on 25 and 26 March 2002 in Newcastle. In the event that the applicant's application for leave to appeal and appeal were successful before this court before a two-judge bench, a readjustment at least of the commencement dates of the sentences imposed by Ireland, AJ. under s.59 of the Crimes Sentencing Procedure Act 1999 would be necessary. But, even that commencement date is the subject of a prospective submission to be made on behalf of the applicant in the appeals listed before the Court of Criminal Appeal when sitting at Newcastle. 6 It would seem incongruous for differing benches, particularly one being a two-judge bench and the other a three-judge bench, to deal with differing aspects of the applicant's sentencing and criminality. This was drawn to the attention of the parties. 7 Upon consideration of that matter and in the context of having taken advice from his counsel, the applicant has sought that the matter stand out of today's list with a view to it being listed for hearing with his other sentence and conviction appeal in Newcastle. That course has not been opposed by the Crown. 8 In all the circumstances, such a course commends itself as having the advantage that one bench will be able to deal with the totality of the matters concerning the applicant's sentencing and such errors as affect individual sentences might well, in those circumstances, should they be found to exist, be met by a remedy which appropriately gives consideration to all the circumstances. 9 In my view the adjournment application should be granted. 10 WHEALY, J: I agree. 11 GREG JAMES, J: The order will be as I propose, that the matter stand out of today's list and stand into the Registrar's call-over to be fixed, if appropriate, for hearing with the other appeal in Newcastle on 25 and 26 March 2002. **********