R v SWAN [2005] NSWCCA 252

New South Wales Court of Criminal Appeal

CITATION: R v SWAN [2005] NSWCCA 252

HEARING DATE(S): 8 July 2005

JUDGMENT DATE: 22 July 2005

JUDGMENT OF: Grove J at 1; Howie J at 6; Rothman J at 7

DECISION: (1) Leave to Appeal Granted; (2) Appeal granted in part; (3) Senteces on Counts 2 and 3 be quashed only insofar as the non-parole period is concerned and, in lieu thereof, a non-parole period of twelve (12) months commencing 1 February 2005 and ending on 31 January 2006 be imposed; (4) The prisoner be released on parole on 31 January 2006 on the usual conditions.

CATCHWORDS: Criminal Law - appeal against sentence - cumulative sentences - special circumstances - ratio of non-aparole period

Crimes (Sentencing Proceedure) Act 1999 LEGISLATION CITED: Crimes Act 1900 (s.112(1), s.188) Criminal Appeals Act 1912 (s.5(1)(c)

R v Simpson (MG) (1992) 61 ACrimR 58 CASES CITED: R v Close (1992) 31 NSWLR 743

The Crown PARTIES: Anthony Dean SWAN (Appellant)

FILE NUMBER(S): CCA 2005/614

Ms A Francis for the Appellant COUNSEL: Mr P Barrett for Crown

S E O'Connor Solicitors (Legal Aid Commission) SOLICITORS: S Kavanagh - DPP (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/31/03212

LOWER COURT JUDICIAL OFFICER: Gibson ADCJ

IN THE COURT OF CRIMINAL APPEAL 2005/614

GROVE J HOWIE J ROTHMAN J

22 July 2005 R v Anthony Dean SWAN Judgment 1 GROVE J: In this appeal, orders were made by the Court on 8 July 2005 which are recited in the draft judgment of Rothman J which I have had the advantage of reading. His Honour also sets out details of the offences charged and the structure of sentences imposed by Gibson ADCJ which I gratefully adopt. 2 The result of the partial resentence by this Court is that the non parole periods on counts 2 and 3 (to be served concurrently) bear a proportion to balance of terms more favourable to the appellant than would be the case if the proportion specified in s 44 of the Crimes (Sentencing Procedure) Act 1999 were applied. Such departure is authorized where there is a finding that special circumstances exist. 3 Where a sentence is made cumulative on another sentence, that may amount to special circumstances in relation to the last sentence in order to preserve the statutory relationship between non parole period and balance of sentence: R v Simpson (M.G.) 1992 61 A Crim R 58; R v Close 1992 31 NSWLR 743. 4 Analysis of the record of proceedings and the remarks on sentence of Gibson ADCJ provokes a conclusion that it was his Honour's likely intention to apply the proportion specified in the statute overall, which conclusion was appropriate to the circumstances. The resentence achieves that result. 5 For that reason, I joined in the making of the orders on 8 July 2005. 6 HOWIE J: For the reasons given by Rothman J and Grove J I agree with the orders proposed by Rothman J. 7 ROTHMAN J: On 8 July 2005, the Court issued the following orders: (a) Leave to appeal granted. (b) Appeal granted in part; (c) The sentences on Counts 2 and 3 be quashed only insofar as the non-parole period is concerned and in lieu thereof, a non-parole period of twelve (12) months commencing 1 February 2005 and ending on 31 January 2006, be imposed; (d) The prisoner be released on parole on 31 January 2006 on the usual conditions.