New South Wales Court of Criminal Appeal CITATION: Regina v Lowe [2006] NSWCCA 10 HEARING DATE(S): 2 February 2006 JUDGMENT DATE: 2 February 2006 JUDGMENT OF: Grove J at 1; Rothman J at 14 EX TEMPORE JUDGMENT DATE: 02/02/2006 DECISION: LEAVE TO APPEAL REFUSED CATCHWORDS: CRIMINAL LAW AND PROCEDURE - SENTENCE - INTIMIDATION - SUSPENDED SENTENCE NOW EXPIRED - NO BREACH DURING OPERATIVE PERIOD OF RECOGNIZANCE - APPEAL NOT PURSUED WITH TIMELY DILIGENCE - NO PRACTICAL POINT TO APPEAL - LEAVE REFUSED - ADJOURNMENT TO ALLOW LATER CONTEST TO PLEA OF GUILTY REFUSED LEGISLATION CITED: s 562AB Crimes Act 1900 PARTIES: Regina v Simon Lowe FILE NUMBER(S): CCA 2005/1570 COUNSEL: In person (Applicant) J. Girdham (Respondent/Crown) SOLICITORS: S. O'Connor (Legal Aid) S. Kavanagh (DPP) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 02/11/1262 LOWER COURT JUDICIAL OFFICER: Gibson DCJ IN THE COURT OF CRIMINAL APPEAL 2005/1570 GROVE J ROTHMAN J Thursday 2 February 2006 REGINA v SIMON LOWE Judgment 1 GROVE J: An application for leave to appeal against severity of sentence is listed today. Mr Lowe was formerly represented by counsel but has this morning appeared in person. 2 The first application he makes is for adjournment of the hearing of the application. He has indicated to the Court that his intention is to appeal against the conviction which was entered after his plea of guilty. Given the circumstances which I am about to relate, I am of a view that the application for adjournment should be refused and the application should be dealt with in the manner which I now propose. 3 This is an application for leave to appeal against severity of sentence imposed by Gibson DCJ. On 13 August 2004 the applicant pleaded guilty before his Honour to an indictment charging him with an offence of intimidation contrary to s 562AB of the Crimes Act which carries a maximum prescribed penalty of imprisonment for five years. The offence took place over a period spanning July 2001 to January 2002. The victim was a woman with whom the applicant had been in a relationship. By the time the matter came before the court, the applicant gave evidence that he had recognised the termination of that relationship and entered a new relationship, and there was therefore no prospect of repeat offence. 4 It might be noted that on 15 October 2003 the applicant had been convicted at Gosford Local Court of an offence of assault occasioning actual bodily harm for which he had been sentenced to imprisonment for three months. He appealed against that sentence and it was dealt with by his Honour at the same time as the indictment. He confirmed the conviction but set aside the sentence and in lieu thereof ordered the applicant to enter into a recognisance to be of good behaviour for a period of two years. 5 It might be observed that the proceedings were heard with some informality. The applicant's representative sought that for the offence of intimidation the applicant be placed on recognisance, and the Crown had expressed a view that his Honour would not be falling into appealable error (as it was put) in not imposing a term of custody. It is clear from the transcript that his Honour was aware of these submissions but came to the conclusion that the applicant's offence should be met with the imposition of some custody, but that this should be suspended for its term. In the event, he sentenced the applicant to imprisonment for a fixed term of twelve months which was suspended upon his entering a recognisance for that period to be of good behaviour. 6 The applicant lodged a notice of intention to appeal on 6 September 2004 but did not lodge his notice of appeal and application for an extension of time until 12 August 2005, that is to say after the expiry of the entire period of twelve months during which he was subject to the suspended sentence. A notice of appeal was finally lodged on 16 August 2005. 7 It is not suggested by the Crown that there has been any operative breach during the currency of the suspended sentence between 13 August 2004 and 12 August 2005. The application does not seek setting aside of the conviction although the applicant has indicated his intention as I have earlier set out. One would be pardoned however for being prompted to wonder why the application as filed is now being pressed. 8 A written submission by counsel, now no longer appearing for the applicant, contended that the learned sentencing judge had committed four errors. First it was said that he did not properly consider all possible alternatives. As I have noted, the proceedings were conducted with some informality, and it is perfectly obvious that in response to counsel's remarks about non-custodial options his Honour was expressing his view that they were not appropriate. 9 It was contended that he had erred in not fixing a non-parole period or giving reasons for declining to do so. Whilst the technical correctness of the statutory obligation being unfulfilled can be observed, there is no point to be served. The setting of a non-parole period involves eligibility for release from custody. At no time can this applicant be committed to custody in respect of this expired sentence. 10 It is next said that his Honour erred in failing to take into account the plea of guilty. It is true that he did not incant this circumstance, but a reading of the transcript makes it abundantly clear that the whole hearing was conducted with its focus upon the plea of guilty and the applicant's explanation that in the years which had passed since the offence, he had moved on to a new relationship. 11 The fourth ground asserted that the sentence was manifestly excessive. The facts showed that at the relevant time a persistent refusal by the applicant to recognise the termination of the relationship and harassing conduct on his part of such seriousness that it led to the indicted charge. A sentence of twelve months imprisonment, wholly suspended, was in my opinion not manifestly excessive. However, as the circumstances which I have related show, this application has little practical focus. 12 It might be mentioned in passing that, in any event, the applicant would be on a recognisance to be of good behaviour for a further year after the expiry of the recognisance in respect of the suspended sentence by reason of the separate matter of appeal from the Local Court dealt with by his Honour. 13 As I have said, I would refuse the application for adjournment. I regard this application as entirely without merit and would refuse leave to appeal 14 ROTHMAN J: I agree with the reasons of Grove J and the orders that are proposed. 15 GROVE J: Leave to appeal is refused. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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