New South Wales Court of Criminal Appeal CITATION: Skondin v R [2006] NSWCCA 59 HEARING DATE(S): 6 March 2006 JUDGMENT DATE: 16 March 2006 JUDGMENT OF: Spigelman CJ at 1; Simpson J at 2; Adams J at 21 DECISION: (i) leave to appeal granted; (ii) appeal allowed, to the extent only that the sentence imposed commence on 17 October 2002, the non-parole period to expire on 16 October 2005, and the total sentence to expire on 16 October 2008. CATCHWORDS: application for leave to appeal against sentence - armed robbery - plea of guilty - malicious wounding - conviction following trial by jury - sentence in respect of armed robbery partially cumulative upon sentence in respect of malicious wounding - conviction in respect of malicious wounding charge quashed by Court of Criminal Appeal - verdict of not guilty in respect of charge of malicious wounding entered - sentence in respect of charge of malicious wounding quashed - adjustment of commencement date of sentence imposed in respect of armed robbery - armed robbery committed whilst subject to parole order an aggravating feature - parole never revoked - revocation of parole function of Parole Board - custody referable only to armed robbery and malicious wounding charges - principle of totality - sentencing discretion of first instance judge LEGISLATION CITED: Crimes (Administration of Sentences) Act 1999 Crimes (Sentencing Procedure) Act 1999 s59 CASES CITED: Callaghan v R [2006] NSWCCA 58 PARTIES: Mark Shane Skondin - Applicant Crown - Respondent FILE NUMBER(S): CCA 2006/340 COUNSEL: M Ramage QC - Applicant DC Frearson SC - Respondent SOLICITORS: Jeffreys & Associates - Applicant S Kavanagh - Respondent LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 03/11/0452 LOWER COURT JUDICIAL OFFICER: Dodd DCJ IN THE COURT OF CRIMINAL APPEAL 2006/340 SPIGELMAN CJ SIMPSON J ADAMS J Thursday 16 March 2006 Mark Shane SKONDIN v REGINA Judgment 1 SPIGELMAN CJ: I agree with Simpson J. 2 SIMPSON J: The applicant seeks leave to appeal in respect of a sentence imposed upon him in the District Court on 12 December 2003 following his plea of guilty to a charge of armed robbery. Dodd DCJ imposed a sentence of imprisonment for six years, commencing on 17 October 2003, with a non-parole period of three years, expiring on 16 October 2006. 3 The application raises a very narrow issue which makes it unnecessary to go into details of the offence. 4 At the same time as he imposed this sentence, Dodd DCJ sentenced the applicant in respect of an offence of malicious wounding, of which the applicant was convicted following trial by jury. For that offence his Honour imposed a sentence of a fixed term of imprisonment for three years, commencing on 17 October 2002. It was by reason of that sentence that the judge selected the commencement date that he did for the sentence imposed for the armed robbery. The armed robbery sentence was made partially cumulative, by one year, upon the earlier imposed sentence. 5 On 8 December 2005 this Court quashed the conviction on the malicious wounding charge and declined to order a new trial, as a result of which a verdict of not guilty was entered. As a consequence the sentence imposed in respect of that offence was also quashed. By the time the appeal was heard, however, the whole of the term of that sentence had expired. 6 S59 of the Crimes (Sentencing Procedure) Act 1999 is a provision that enables this Court, when quashing or varying a sentence of imprisonment, to vary the date of commencement of any other sentence that has been imposed upon the offender. That option was not exercised by the Court and there is no reason to believe that either the section, or the subsequent sentence, was brought to the attention of the Court or became an issue in that appeal. 7 No submission is now made that the sentence imposed in respect of the armed robbery offence was manifestly excessive or otherwise affected by error. The sole basis of the application is that, the sentence having been made partially cumulative upon a sentence that has now been quashed, the commencement date ought to be adjusted so as to recognise the time the applicant has already served. The applicant submits that the sentence ought to be fixed to commence on 17 October 2002. 8 The Crown has argued against any variation of the commencement date of the sentence. In written submissions the Crown argued that the effect of acceding to the applicant's application would be that the applicant would serve no time referable to the malicious wounding. Given that the applicant has been acquitted of that charge, that is precisely as it ought to be. The Crown maintained its position in oral argument, contending (again) that the Crown case in respect of that charge was a strong one, and that the reason no new trial was ordered was that the applicant had served the whole of the sentence imposed. The effect of the Crown's submission is that this Court ought to structure a sentence in such a way as to ensure that the applicant is punished for an offence of which he has been acquitted. That, in my opinion, would be quite unacceptable. The proposition represents a fundamental departure from long-standing principles of criminal justice in this jurisdiction. It ought to be firmly rejected. I would reject absolutely the Crown contention that this Court ought to decline to interfere in the commencement date of the armed robbery sentence in order to ensure that the applicant serves some time in respect of an offence of which he has been acquitted. It is fundamental to the criminal justice system that no person is to be punished other than following conviction by a duly constituted court in accordance with established procedure. As a result of his acquittal, the applicant is to be presumed innocent of the offence of malicious wounding. 9 A second argument put by the Crown was of more substance. 10 As an alternative to the Crown's principal position that this Court ought not to intervene, and that the commencement date for the armed robbery sentence ought to remain as 17 October 2003, it argued that, even if this Court were to backdate the sentence to some extent, it should do so, not to 17 October 2004, but to 28 March 2003. Selection of that date arises from the following circumstances. 11 On 31 July 2002 in the District Court the applicant was sentenced to imprisonment for 12 months, commencing on 28 March 2002, with a non-parole period of six months, expiring on 27 September of that year. He was duly released on parole on 27 September 2002. The total sentence expired on 27 March 2003. 12 The events that gave rise to the malicious wounding charge occurred on 12 October 2002. The armed robbery was committed on 17 October 2002. At this time the applicant was subject to the parole order. He was arrested on that day and charged with the armed robbery and with the malicious wounding. He has remained in custody since. 13 Notwithstanding the applicant's arrest, and the charges, his parole was never revoked. So far as the record goes, his custody from 17 October 2003 was referable to the armed robbery offence and the malicious wounding charge. It was, of course, open to the Parole Board to revoke his parole after his arrest. He entered a plea of guilty to the armed robbery in the Local Court on 30 May 2003. That was after the expiration of the parole period of the previous sentence, and may be the reason, or a reason, that the Parole Board took no action in respect of the parole order. 14 The Crown argued that, notwithstanding that the applicant's parole was not revoked, his period in custody from 17 October 2002 until the expiration of the parole period in respect of the previous (2002) sentence (27 March 2003) should be treated as referable to that earlier (2002) sentence – that is, as though the parole order had been revoked and the applicant was serving that sentence. In those circumstances it would be appropriate (although not mandatory) to accumulate the later sentence on the earlier. While I can see the logic in this proposition it is not, I think, correct in principle. It involves this Court putting itself in the position of the Parole Board and in determining that the applicant is to serve the entirety of the sentence previously imposed. That is a function committed by the Crimes (Administration of Sentences) Act 1999 to the Parole Board. 15 The primary judge, Dodd DCJ, gave careful attention to all matters relevant to the sentencing of the applicant. He determined that a sentence of six years with a non-parole period of three years was appropriate for this offence. In making this determination he expressly took into account, as an aggravating feature, that the offence was committed whilst on parole. No error has been contended for, either by the Crown or the applicant, in his Honour's determination of the sentence. This Court is asked to intervene only in order to regularise the sentence in the light of the subsequent decision of another bench of this Court. That decision worked a dramatic alteration to the applicant's custody status. 16 The body charged with making determinations as to parole, in 2003, was the NSW Parole Board. For reasons that we do not know, it took no action in relation to the applicant's parole status. The essence of the question now raised by the Crown is whether this Court should take a course that notionally revokes the parole granted to the applicant in September 2002. (It is apposite to note that, by reason of s50 of the Sentencing Procedure Act, the applicant was entitled to release at the expiration of the non-parole period. The grant of parole was not an exercise of power or discretion by the Parole Board. The withholding of action to revoke parole on his being recharged may or may not have been a considered exercise of discretion or power.) 17 Had the Parole Board elected to revoke the applicant's parole, it would have been open to the sentencing judge, and it would be open to this Court, to take into account that all, or part, of the time spent in custody by the applicant up to 27 March 2003 was referable, not only to the two new charges he faced, but also to the offence which resulted in the earlier imposed sentence: see the discussion in R v Callaghan [2006] NSWCCA 58. But, parole not having been revoked, it is not correct to say that the applicant's custody from 17 October 2002 to 27 March 2003 was referable to anything other than the armed robbery and malicious wounding charges. 18 The primary sentencing discretion is that of the first instance judge. That discretion is not to be interfered with by this Court unless some error is shown. As I have mentioned earlier, no error is shown or attempted to be shown in the selection of the sentence imposed on the applicant. In my opinion the appropriate course for this Court to take is to respect the decision of the sentencing judge so far as the length of the sentence goes, and do no more than adjust it in recognition of the changed circumstances. It would, of course, have been open to Dodd DCJ to have ordered that the sentence for the malicious wounding commence at the expiration of the previous non-parole period on 28 March 2003; the sentence in respect of the armed robbery would, presumably, then have commenced twelve months later than that date. His Honour did not elect to do so. In my opinion this Court should not do so either, unless it can be shown (as it cannot) that that course was not reasonably open to him. 19 If this Court were to take the course now suggested by the Crown, it would, in effect, be increasing the sentence imposed in respect of the armed robbery. The applicant would be required to serve a sentence of six years commencing on 27 March 2003, with a non-parole period expiring on 27 March 2006, in respect of which he has already been in custody from 17 October 2002 to 27 March 2003. There was no Crown appeal, either as to the length of the sentences imposed by Dodd DCJ, or as to their commencement dates. It is usual, though not mandatory, that a sentence is specified to commence from the date an offender is taken into custody by reason of the offence for which he is being sentenced. 20 I propose the following orders: (i) leave to appeal granted; (ii) appeal allowed, to the extent only that the sentence imposed commence on 17 October 2002, the non-parole period to expire on 16 October 2005, and the total sentence to expire on 16 October 2008. 21 ADAMS J: I agree with Simpson J. ********** 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.