New South Wales Court of Criminal Appeal CITATION : Regina v Kalifa Petelo [2002] NSWCCA 500 FILE NUMBER(S) : CCA 60268/02 HEARING DATE(S) : 13/12/02 JUDGMENT DATE : 13 December 2002 PARTIES : Regina Kalifa Petelo JUDGMENT OF : Sperling J at 18; Buddin J at 1 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 94/21/0176 LOWER COURT JUDICIAL Graham DCJ OFFICER : COUNSEL : WG Dawe QC (Crown) HK Dhanji (Applicant) SOLICITORS : SE O'Connor (Crown) DJ Humphreys (Applicant) CATCHWORDS : Cancellation of order for periodic detention - matter proceeded ex parte - error established - non-parole period set. Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED : Criminal Appeal Act 1912 Periodic Detention of Prisoners Act 1981 R v Biddle NSWCCA unreported 6 March 1997 R v Carrion [2000] 49 NSWLR 149 R v Lloyd NSWCCA unreported 17 June 1997 CASES CITED: R v Shore (1992) 66 A Crim R 37 R v Van-Praag NSWCCA unreported 30 November 1998 R v Webster (1998) 100 A Crim R 26 R v Wilson (1997) 93 A Crim R 301 R v Wood [2000] NSWCCA 155 DECISION : Grant an extension of time for leave to appeal against the sentence imposed by Judge Shadbolt. Grant leave to appeal. Confirm the sentence fixed by Judge Shadbolt which commenced on 2 February 2002 and is due to expire on 26 September 2003. Set a non-parole period to commence on 2 February 2002 and to expire on 13 December 2002 at which time he is to be released on parole. IN THE COURT OF CRIMINAL APPEAL 60268/02 SPERLING J BUDDIN J FRIDAY 13 DECEMBER 2002 REGINA v KALIFA PETELO Judgment 1 BUDDIN J: The applicant was convicted in the District Court in November 1994 of an offence of robbery in company following a trial by judge alone. The maximum penalty, pursuant to s 97(1) of the Crimes Act, is imprisonment for 20 years. The applicant was sentenced by Judge Graham to a fixed term of two years' imprisonment to commence on 30 November 1994 and to expire on 29 November 1996 to be served by way of periodic detention. He had been on bail prior to the imposition of sentence. 2 It is common ground that in compliance with the order, the applicant served some 21 weeks of that sentence. He was however absent without leave on 11 occasions. On 1 September 1995 the order for periodic detention was cancelled by Judge Shadbolt. Although the proceedings were heard ex parte, it is not in dispute that there was power to cancel the order. Indeed if the relevant statutory requirements had been fulfilled, as they no doubt were, then his Honour was obliged to cancel the order pursuant to s 25A of the Periodic Detention of Prisoners Act 1981, which was then in force. The applicant was accordingly required to serve the unexpired portion of the sentence by way of full-time imprisonment. See s 27(3) of the Act. That sentence included penalty periods to which he was subject by reason of his unauthorised absences. The sentence thus imposed was a fixed term of 21½ months imprisonment although the parties are in agreement that the correct period is 1 year 7 months and 25 days. It is apparent that his Honour did not exercise the power conferred on him by s 27(4) to direct that that period be divided into minimum and additional terms. The Court has not been provided with the material that was before Judge Shadbolt and accordingly we are unable to ascertain upon what basis his Honour came to the conclusion at which he arrived. 3 A warrant was issued for the apprehension and detention of the applicant. The applicant was not however arrested pursuant to the warrant until 2 February 2002. He has remained in continuous custody since that date. The sentence is due to expire on 26 September 2003. 4 The applicant seeks both an extension of time for leave to appeal and leave to appeal against the sentence imposed upon him. 5 The Court has been advised that almost none of the original material that was before Judge Graham is still in existence. The Remarks on Sentence are also no longer in existence. The Court has however been provided with a transcript of Judge Graham's original notes from the trial itself. What that material discloses is that the victim was on a train from Town Hall to Newtown when the applicant, who was with a group of men of Pacific Island extraction, got on the train at Redfern. The applicant and another man demanded money from the victim who, as a result, handed over $2.40. When the victim declined their request to look in his wallet, the co-offender told the applicant to "shoot him". When the victim realised that the applicant did not in fact have a gun, he refused to hand over his wallet. The victim was prevented from getting off at Newtown Station, although the two assailants alighted there. The victim travelled back to Newtown from Stanmore where he was able to identify the applicant and his co-offender to police. The applicant made no admissions when questioned by police. He provided them however with a false name. 6 The applicant gave evidence, the effect of which was, that he was on the train at the relevant time but that he did not participate in the incident. He said that he was falling asleep at the time because he was well affected by alcohol. Judge Graham rejected that explanation and convicted the applicant. 7 His Honour found that although the offence was a brazen one having been committed in broad daylight on public transport, it was not the most serious instance of an offence of this kind. His Honour did observe however that members of the public are entitled to travel on public transport without being harassed in the way in which the victim was. His Honour nevertheless found that the applicant was not the main protagonist. It was also in the applicant's favour that he had no prior criminal record of any kind. 8 The complaint made on behalf of the applicant arises from the fact that Judge Shadbolt proceeded to deal with the applicant in his absence. It was submitted that this had the consequence of depriving the applicant of the opportunity of placing material before the Court, and of making submissions, in relation to both the cancellation itself and also in relation to the decision concerning the setting of minimum and additional terms. 9 The applicant acknowledged that Judge Shadbolt did not, for obvious reasons, have the benefit of the decisions of this Court in R v Wilson (1997) 93 A Crim R 301 and R v Webster (1998) 100 A Crim R 26. In that latter case, Smart J observed that: [t]he appeals which have come before this Court have demonstrated how necessary it is for detainees to be before the court when a judge is cancelling an order for periodic detention and deciding whether to fix minimum and additional terms and the length of each. (at 34) His Honour continued: I conclude that it is necessary for the proper, fair and effective administration of justice and the [Justices] Act to imply a power that on the non appearance of a detainee on a cancellation application and on the department establishing a prima facie case the Local Court has the power to issue a warrant for the arrest of the detainee and to bring him before the court. Otherwise it is not possible to deal fairly with the detainee on the cancellation. (at 38) 10 To similar effect are other decisions of this Court. See for example R v Biddle (NSWCCA unreported 6 March 1997); R v Lloyd (NSWCCA unreported 17 June 1997); R v Van-Praag (NSWCCA unreported, 30 November 1998); and R v Wood [2000] NSWCCA 155. 11 In the light of the relevant authorities, the Crown acknowledges that the sentencing process appears to have miscarried by reason of the fact that the applicant was dealt with ex parte. The Crown submits however that, given the applicant's defiance of the periodic detention order, that it has not been demonstrated that "some other sentence…is warranted in law and should have been passed." S 6(3) of the Criminal Appeal Act 1912. 12 In my view the applicant has clearly demonstrated error of a kind identified in the various authorities to which our attention has been drawn. I have also come to the conclusion that this Court should proceed to re-sentence the applicant. In so doing the Court must act in accordance with the legislation that is now in existence: R v Carrion [2000] 49 NSWLR 149. I have accordingly had regard to the provisions of s 21A of the Crimes (Sentencing Procedure) Act 1999. 13 We have also been provided, for present purposes, with additional material. The applicant has sworn an affidavit in which he has set out the details of his life prior to the time of his conviction. Shortly prior to the offence he discovered that his wife was pregnant and carrying another man's child. He was devastated by the news and decided to leave his wife. His life thereafter fell apart. He commenced taking drugs and consuming alcohol. It was in that context that he came before Judge Graham and then subsequently stopped complying with the order for periodic detention. Some time later he became a Jehovah's Witness and began to rebuild his life. He is now married to a woman who regularly attends church meetings with him. Prior to his incarceration, the applicant was doing 50 hours a week of voluntary preaching and teaching work in the community. There is also evidence before the Court which indicates that the applicant has spent his time productively whilst he has been in custody. He has successfully completed a number of courses and is due to take up a position this week with an employer outside the gaol. 14 The applicant submits that there are a number of matters which, in combination, call for a finding of "special circumstances" within the meaning of s 44(2) of the Crimes (Sentencing Procedure) Act 1999. They include the fact that: (a) as a consequence of the order for cancellation the sentence now being served is of a different kind from that which Judge Graham had intended; (b) the applicant had at the time of the cancellation already served 21 weeks of the order; (c) it is the applicant's first sentence of full-time imprisonment and as such he would be assisted by a longer than usual parole period in order to assist in his return to the community. 15 It is clear that a very considerable period of time now has elapsed since the respective orders were imposed. During that time the applicant has not come to the notice of the authorities. It is of course clear that the reason why the present offence is "stale" is because of the actions of the applicant. Nevertheless the evidence of rehabilitation, to which I have referred, is not to be entirely ignored by reason of that fact. See R v Shore (1992) 66 A Crim R 37. Nor could it be said that his future prospects for rehabilitation are other than very favourable. I would accordingly, for all these reasons, find that there are "special circumstances" in the present case. 16 I propose the following orders: 1 Grant an extension of time for leave to appeal against the sentence imposed by Judge Shadbolt. 2 Grant leave to appeal. 3 Confirm the sentence fixed by Judge Shadbolt which commenced on 2 February 2002 and is due to expire on 26 September 2003. 4 Set a non-parole period to commence on 2 February 2002 and to expire on 13 December 2002 at which time he is to be released on parole. 17 As I understand it such an order will ensure that the applicant is immediately released on parole subject to the normal conditions which are prescribed by the Crimes (Sentencing Procedure) Act 1999. 18 SPERLING J: I agree. The orders of the Court will be as proposed by Buddin J. ********** 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.