New South Wales Court of Criminal Appeal CITATION: R v Smith [2005] NSWCCA 236 HEARING DATE(S): 7 June 2005 JUDGMENT DATE: 7 June 2005 JUDGMENT OF: Studdert J at 1; James J at 7; Howie J at 8 DECISION: Appeal allowed; the order made by her Honour in the Penrith District Court on 7 March 2005 is quashed; pursuant to s 12(2) of the Criminal Appeal Act the sentencing proceedings are returned to the District Court of New South Wales. LEGISLATION CITED: Crimes (Sentencing Procedure) Act, ss 11, 12 CASES CITED: R v Palu (2002) 134 A Crim R 174 PARTIES: Regina v Wayne Daniel Smith FILE NUMBER(S): CCA 2005/531 G. Rowling (Crown) COUNSEL: C. Craigie SC (Appellant) S. Kavanagh (Crown) SOLICITORS: S.E. O'Connor (Appellant) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 05/21/1018 LOWER COURT JUDICIAL OFFICER: English DCJ IN THE COURT OF CRIMINAL APPEAL 2005/531 STUDDERT J JAMES J HOWIE J Tuesday 7 June 2005 REGINA v WAYNE DANIEL SMITH Judgment 1 STUDDERT J: The respondent, Wayne Daniel Smith, pleaded guilty before her Honour Judge English to the offence of break and enter a building and commit a serious indictable offence. The respondent was convicted and the matter was adjourned pursuant to s 11 of the Crimes (Sentencing Procedure) Act until 16 December 2005 on conditions that: 1. the applicant reside at the William Booth Institute at Surry Hills; 2. that he submit to random urinalysis as and when required; 3. that he appear before her Honour on 16 December 2005 at the Penrith District Court. 2 It does not appear from the material before the Court that her Honour made findings of fact before making the orders to which I have referred. The sentencing remarks attributed to her Honour on 7 March 2005 do not indicate that findings were made. Her Honour's relevant remarks below were in these terms: "I have given the matter consideration and I think the appropriate course to adopt is to convict the offender but for the purpose of assessing his capacity and his prospects for rehabilitation is to adjourn the sentence proceedings pursuant to s 11 of the Crimes (Sentencing Procedure) Act for ten months to allow him to undergo rehabilitation." 3 Her Honour proceeded then to make orders for release and imposed conditions of bail. 4 The judge erred in failing to make findings of fact. As this court determined in R v Palu (2002) 134 A Crim R 174, it was necessary for the sentencing judge to make findings of fact before making an order under the Crimes (Sentencing Procedure) Act. Hence this appeal must succeed. Indeed the respondent concedes this. The respondent concedes that the sentencing process miscarried in the District Court if for no other reason than her Honour was given incorrect information concerning the respondent's parole status. Her Honour understood that the respondent was enjoying parole whilst the reality was that parole had been revoked by the Parole Board on 16 December 2004. In these circumstances there was no utility in the order made by her Honour and, hence, the respondent acknowledges that there is no appropriate factual basis for re-sentence by this Court. 5 So it is that both the appellant and the respondent seek an order that the matter be returned to the District Court to permit the sentencing process to be embarked upon de novo. This is an appropriate course. 6 Accordingly, I propose the following orders: 1. that the appeal be allowed; 2. that the order made by her Honour in the Penrith District Court on 7 March 2005 be quashed; 3. that pursuant to s 12(2) of the Criminal Appeal Act the sentencing proceedings be returned to the District Court of New South Wales. 7 JAMES J: I agree with the orders proposed by the presiding judge for the reasons given by his Honour. 8 HOWIE J: I also agree. 9 STUDDERT J: The orders of the Court will be as I have proposed. ********** 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.