R v STRAHAN [2003] NSWCCA 397

New South Wales Court of Criminal Appeal

CITATION : R v STRAHAN [2003] NSWCCA 397 HEARING DATE(S) : 16 December 2003 JUDGMENT DATE : 16 December 2003

JUDGMENT OF : Hodgson JA at 23; Hulme J at 1; Hidden J at 24 DECISION : See paragraph 25

PARTIES : Regina Martin Francis Strahan FILE NUMBER(S) : CCA 60288/03 COUNSEL : Crown: P Ingram Appellant: R Hulme SC SOLICITORS : Crown: S Kavanagh Appellant: B Sandland

LOWER COURT Supreme Court JURISDICTION : LOWER COURT 70215/98 FILE NUMBER(S) : LOWER COURT Barr J JUDICIAL OFFICER :

- 6 - IN THE COURT OF CRIMINAL APPEAL 60288/03

HODGSON JA HULME J HIDDEN J

Tuesday 16 December 2003 REGINA v MARTIN FRANCIS STRAHAN Judgment 1 HULME J: This applicant for leave to appeal pleaded guilty to being an accessory after the fact to the manslaughter by Brian John Robson of Ronald Charles Brotherton. The maximum penalty prescribed for the offence is imprisonment for five years. 2 On 31 March 2000 Barr J sentenced the applicant to imprisonment for a fixed term of three years commencing on 14 April 2000, such sentence to be served by way of periodic detention. 3 The circumstances of the offence were as follows. The applicant was at Mr Robson's house. At Mr Robson's request the applicant gave Mr Robson a lift to where the deceased was. The applicant knew that Mr Robson's purpose in going was to give the deceased a beating. 4 On arrival, which was at the house of someone named Shipley, an argument and a fight arose. Mr Robson dealt the deceased a number of savage blows with his fists and kicked him in the head. The deceased died. Although the applicant was present, he took no part in the assault. 5 At Mr Robson's request a third person brought a tarpaulin to the Shipley house. The applicant and Mr Robson wrapped the body of the deceased in the tarpaulin, put it in a car, took it into the bush and dumped it. Later the applicant and Mr Robson burned a lounge chair and some of Mr Robson's clothes which bore the blood of the deceased. 6 The killing remained undetected for six months. On 20 March 1998 the applicant was interviewed by police and acknowledged the events to which I have referred. Originally the applicant was charged with being an accessory after the fact to murder. Later that charge was reduced to being an accessory after the fact to manslaughter and Barr J regarded the applicant as having offered his plea of guilty as soon as the Crown indicated it was prepared to accept it. 7 At the time of sentence, the applicant was twenty-five years old. Between December 1993 and November 1997 the applicant had acquired a criminal record for a number of offences involving drugs, dishonesty and firearms, the most serious of which was being armed with intent to commit an indictable offence. For this offence the Applicant was, on 21 November 1997, sentenced to imprisonment for a minimum term of nine months and an additional term of three months. 8 Barr J concluded that there were signs that the applicant was "now facing up to his responsibilities", that the applicant no longer seemed to be involved with drugs, was working satisfactorily and the prospects seemed reasonable that he would continue to effect his own rehabilitation. His Honour accepted that the applicant was remorseful. 9 When he came to the topic of sentence, as distinct from his statement and examination of the circumstances of the offence and of the applicant, his Honour said: "It was submitted by Mr Terracini that I could properly impose a sentence of periodic detention and the Crown has put nothing against that submission. The offender has been assessed as suitable to serve a sentence of periodic detention. Notwithstanding the seriousness of the offence, I think, in view of the substantial rehabilitation the offender has already achieved and is likely to continue to achieve, that it would be appropriate to impose a sentence of less than full time custody and I propose to sentence the offender to periodic detention for three years." 10 His Honour gave no reasons for failing to set a non-parole period. Nor is there any part of his remarks on sentence which indicates that his Honour arrived at the term of the applicant's sentence before embarking upon the question of whether it should be served by way of periodic detention. 11 The court has been informed that since the sentence was imposed the applicant has had difficulty in attending, as required by Barr J's order and, not having a car, in travelling from his home in the Bateman's Bay area to the periodic detention centre at Unanderra. An affidavit or affidavits in that respect have been tendered without objection on the usual basis and on the issue of an extension of time within which to bring these proceedings. 12 At times the applicant has been absent from his periodic detention without leave. The Parole Board has revoked the order on three occasions, the last of which resulting in the applicant being required to serve the then outstanding balance of his sentence by way of full time imprisonment. The effect is that the applicant went into full time custody on 10 October 2002 and remained there until granted bail on 9 September of this year. He had previously served a period of full time custody between 17 June 2002 and 1 August 2002, although two weeks of this was also referable to another drug-related offence of which he had been convicted. 13 As was conceded by the Crown, it seems clear that in not providing reasons for declining to set a non-parole period his Honour breached the terms of s 45(2) of the Crimes (Sentencing Procedure) Act 1999. It is also to be inferred from the limited terms in which his Honour expressed himself that he did not employ the two stage process required at the time of sentence by s 5(1) of the Periodic Detention of Prisoners Act 1981. As has been made clear by a number of cases, including Regina v Schodde [2003] NSWCCA 164 at [14-15] and the cases there cited, a judge is required to set the term of a sentence of imprisonment before considering whether to order that it be served by an alternative to full time custody. 14 Thus, there was error in the process of the sentencing of the applicant. However, before this court proceeds to allow any appeal and re-sentence, the requirements of s 6(3) of the Criminal Appeal Act must be addressed. The sub-section provides: