Regina v Joseph Brian Dickinson [2005] NSWCCA 284

New South Wales Court of Criminal Appeal

CITATION: Regina v Joseph Brian Dickinson [2005] NSWCCA 284

HEARING DATE(S): 12 August 2005

JUDGMENT DATE: 16 August 2005

JUDGMENT OF: Wood CJ at CL at 1; Simpson J at 1; Barr J at 1

DECISION: Application dismissed.

CATCHWORDS: Criminal law - sentencing - parole period - whether, in fixing a parole period, the court may have regard to the manner in which the sentence is to be served.

PARTIES: Regina, Joseph Brian Dickinson

FILE NUMBER(S): CCA 2004/2361

G Rowling COUNSEL: H Dhanji

S Kavanagh SOLICITORS: Legal Aid Commission of New South Wales

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/31/2005

LOWER COURT JUDICIAL OFFICER: Armitage QC DCJ

IN THE COURT OF CRIMINAL APPEAL 2004/2361

WOOD CJ at CL SIMPSON J BARR J

16 AUGUST 2005 REGINA v JOSEPH BRIAN DICKINSON Judgment

1 THE COURT: This is an application under s43 Crimes (Sentencing Procedure) Act 1999 for an order to correct what is asserted to be a sentencing error. The applicant, Joseph Brian Dickinson, pleaded guilty in the District Court to one count of malicious wounding with intent to do grievous bodily harm and was sentenced to imprisonment for two years with a non-parole period of twelve months. The sentence was wholly suspended upon the applicant's entering into a bond under s12 Crimes (Sentencing Procedure) Act. The Crown appealed to this Court, constituted as it now is. The Court allowed the appeal and substituted a sentence of imprisonment for two years and two months. The Court ordered the sentence to be served as periodic detention. The Court declined to set a non-parole period. In giving the first judgment of the Court, Barr J explained in these words why the Court had so declined - The term that I impose would be a fixed term. In my opinion the fixed term is appropriate because the conditions of supervision that will apply will not require the imposition of a parole period. 2 Section 43 Crimes (Sentencing Procedure) Act is as follows - 43 Court may reopen proceedings to correct sentencing errors (1) This section applies to criminal proceedings (including proceedings on appeal) in which a court has: (a) imposed a penalty that is contrary to law, or (b) failed to impose a penalty that is required to be imposed by law, and so applies whether or not a person has been convicted of an offence in those proceedings. (2) The court may reopen the proceedings (either on its own initiative or on the application of a party to the proceedings) and, after giving the parties an opportunity to be heard: (a) may impose a penalty that is in accordance with the law, and (b) if necessary, may amend any relevant conviction or order. (3) For the purposes of this section, the court: (a) may call on the person to whom the proceedings relate to appear before it and, if the person does not appear, may issue a warrant for the person's arrest, or (b) if of the opinion that the person will not appear if called on to do so, may, without calling on the person to appear before it, issue a warrant for the person's arrest. (4) Subject to subsection (5), nothing in this section affects any right of appeal. (5) For the purposes of an appeal under any Act against a penalty imposed in the exercise of a power conferred by this section, the time within which such an appeal must be made commences on the date on which the penalty is so imposed. (6) In this section: " impose a penalty " includes: (a) impose a sentence of imprisonment or a fine, or (b) make a periodic detention order, home detention order or community service order, or (c) make an order that provides for an offender to enter into a good behaviour bond, or (c1) make a non-association order or place restriction order, or (d) make an order under section 10, 11 or 12, or (e) make an order or direction with respect to restitution, compensation, costs, forfeiture, destruction, disqualification or loss or suspension of a licence or privilege. 3 The judgment was delivered ex tempore and the terminology employed was loose. The expression "fixed term" does not appear in the legislation which governed the imposition of the sentence, but harked back to earlier legislation of a not dissimilar kind. 4 Counsel for the applicant submitted that since the Court did not specify conditions to apply to the applicant's imprisonment or explain what it meant by the expression "the conditions of supervision that will apply", it must, in declining to set a non-parole period, have been referring to the conditions of supervision that ordinarily apply where a sentence of imprisonment is ordered to be served as periodic detention. That submission is accepted.