New South Wales Court of Criminal Appeal CITATION: PRITCHARD v R [2006] NSWCCA 2 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 19 January 2006 JUDGMENT DATE: 19 January 2006 JUDGMENT OF: Basten JA at 1; Howie J at 16; Hall J at 17 EX TEMPORE JUDGMENT DATE: 01/19/2006 DECISION: 1. Leave to appeal granted; 2. Appeal dismissed LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Appeal Act CASES CITED: Neal v The Queen (1982) 149 CLR 305 PARTIES: Christopher John Pritchard - Appellant Crown - Respondent FILE NUMBER(S): CCA 2005/1718 COUNSEL: A. Francis - Appellant J. A. Girdham - Crown SOLICITORS: Steve O'Connor - Appellant S. Kavanagh - Crown LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/31/0368 LOWER COURT JUDICIAL OFFICER: C. O'Connor DCJ IN THE COURT OF CRIMINAL APPEAL CCA 2005/1718 DC 04/31/0368 BASTEN JA HOWIE J HALL J 19 January 2006 CHRISTOPHER JOHN PRITCHARD v REGINA Judgment 1 BASTEN JA: The applicant has been sentenced in the District Court for a number of offences arising from an escape from his earlier custodial sentence at Junee, which occurred on 15 April 2004. The sentences that were imposed by the primary judge for the offences with which he was charged following that escape have given rise to an overall sentence, which appears on the face of it not to be in conformity with the requirements of the relevant legislative provisions. 2 The Court is of the view that although these matters justify a grant of leave it should not interfere with the sentence, but rather should grant leave and reject the appeal. 3 In order to explain that result it is necessary to say something about the prior history of the matter. On 15 April 2003 the applicant commenced a sentence, which had a non-parole period due to expire on 20 April 2004. The full term of that sentence would have expired on 11 November 2004. His escape five days prior to the expiration of that non-parole period and his remaining at large for a period a little in excess of two months meant that adjustments had to be made in calculating the full term of the earlier sentence. 4 When he came before O'Connor DCJ in the District Court on 14 February 2005 he was sentenced for the escape from Junee and for an armed robbery which involved the taking of a mobile phone from a custodial officer who had seen him beside the road shortly after the escape. He also took the motor vehicle in which that officer and another were at the time travelling. He was charged with taking a motor vehicle whilst armed. There were also a number of offences included on a Form 1, which his Honour took into account. 5 The history of the escape and the surrounding circumstances are set out in the judgment of the sentencing judge and need not be repeated. The applicant was not recaptured until 2 July 2004. As a result of his return to custody on that date the adjusted sentence which he had been serving continued until 28 January 2005. When he was sentenced on 14 February 2005 the judge indicated that he sought to impose a sentence of five years imprisonment for the offences other than the escape and a fixed term of one year with respect to that escape. 6 There was some discussion between counsel and the judge as to the order in which those sentences should be imposed. It appears that when he originally structured the proposed sentence he intended that, as a result of finding that special circumstances existed, the non-parole period that would be served would be less than the statutory proportion provided by s 44 of the Crimes (Sentencing Procedure) Act 1999; that was because it was then anticipated that the applicant would serve a non-parole period of four years and a sentence of six years. That would have been achieved by requiring him to serve first the fixed term for the escape, which was provided as totally cumulative upon the earlier sentences and therefore to date from 28 January 2005. 7 In the end result, his Honour ordered that the other sentences, that is the sentences other than that for the escape, being concurrent with each other, were to be served first and the sentence for the escape was accumulated on the non-parole period, which had been specified in relation to the other sentences. The result was not to change the head sentence for the other offences, namely five years, but to increase the non-parole period from three years to four years. The result did not conform to the statutory proportion, but was a sentence in respect of which the balance was in fact less than one-third of the non-parole period. 8 Accordingly, although it does not reflect his Honour's expectation and expressed intention, there is no contravention of s 44 (2) of the Act. 9 The argument presented for the applicant on appeal was in substance that the non-parole period should be reduced so as to conform to the statutory provision, which effect would result from a reduction in that term of four months from the four years that his Honour had specified. The finding of special circumstances would result in a greater reduction but, as Ms Francis who appeared for the applicant conceded, that result was not that which was intended by the sentencing judge when he found special circumstances. 10 Accordingly, to give effect to the sentencing judge's expressed intention it would be necessary to increase the balance of the term so that the total sentence exceeded five years. 11 The Crown has submitted that that is indeed a step which this Court should take. If this Court were to take that step it would at least require that an opportunity be given to the applicant to reconsider pursuit of the present application in accordance with the decision of the High Court in Neal v The Queen (1982) 149 CLR 305 and in accordance with subsequent authority. Ms Francis has indicated, understandably, that if that course were being considered by the Court the applicant would seek to withdraw the application. 12 In my view the Crown's proposal is not appropriate in the present circumstances, not because of the stance that might be taken by the applicant, but because the result in the court below was at least accepted by counsel then appearing for the Crown as an acceptable result. It may be that the result was not fully appreciated in its arithmetical elements but it is inappropriate, in my view, for the Crown now to cavil with the balance of the sentence in fact imposed in his Honour's order. Accordingly, I do not think that it is appropriate to consider extending the balance of the sentence. 13 The question is whether it is appropriate to reduce the non-parole period. The reduction would not be in accordance with what his Honour intended. There is no challenge to the length of the period proposed by his Honour, taking into account the various circumstances that were relevant in this case. The reduction would be required purely in order to give effect to a statutory expectation that a non-parole period will normally be 75 per cent of the length of the full term. 14 In my view it is inappropriate to intervene in that way in the present case. The statute does not require that the balance of the term be less than 25% of the sentence (or 33% of the non-parole period) but rather that it not exceed that amount. Accordingly there is no breach of the statutory period. There is otherwise no justification for reducing the non-parole period. 15 The benefit, or possible detriment in one sense, to the applicant is that he will, if granted parole at the completion or indeed after the completion of the non-parole period, serve a far shorter period under supervision than his Honour intended. It is understandable that he would accept that a shorter overall sentence was to his benefit. It is not a matter that requires interference with the non-parole period and for that reason I would make the orders I proposed. 16 HOWIE J: I agree and for the reasons given by the presiding judge, I am not satisfied that there was any error in the sentence imposed by the sentencing judge. But even if I were wrong in that view then applying s 6(3) of the Criminal Appeal Act in my view no lesser sentence is warranted. 17 HALL J: I also agree with the presiding judge. 18 BASTEN JA: The orders of the Court are: (1) Leave to appeal granted. (2) Appeal dismissed. ********** 30/01/2006 - Typographical error - Paragraph(s) Coversheet 25/05/2006 - Add date to coversheet - Paragraph(s) n/a 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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