New South Wales Court of Criminal Appeal CITATION: Wright v R [2008] NSWCCA 91 HEARING DATE(S): 23 April 2008 JUDGMENT DATE: 23 April 2008 JUDGMENT OF: Basten JA at 17; Barr J at 18; Buddin J at 1 DECISION: Grant leave for an extension of time within which to bring this application. Grant leave to appeal. Allow the appeal (in part). Set a non-parole of 18 months to commence on 2 February 2007 and to expire on 1 August 2008 on which date the applicant is to be released on parole. Confirm the head sentence of 127 weeks to expire on 9 July 2009. CATCHWORDS: Criminal law - sentencing - cancellation of an order for periodic detention - failure to set non-parole period CASES CITED : R v Sayin [2003] NSWCCA 384 PARTIES: Kevin James Wright Regina FILE NUMBER(S): CCA 2007/2958 COUNSEL: M Johnston (Applicant) J Dwyer (Crown) SOLICITORS: SE O'Connor (Legal Aid Commission) (Applicant) S Kavanagh (Solicitor for Public Prosecutions) (Crown) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 92/11/0742 LOWER COURT JUDICIAL OFFICER: Mitchelmore DCJ LOWER COURT DATE OF DECISION: 22 March 1994 IN THE COURT OF CRIMINAL APPEAL 2007/2958 BASTEN JA BARR J BUDDIN J WEDNESDAY 23 APRIL 2008 KEVIN PETER WRIGHT v R Judgment 1 BUDDIN J: The applicant seeks leave to appeal against an order made on 22 March 1994 by Mitchelmore DCJ (the sentencing judge) cancelling an earlier order made by Nader DCJ sentencing him to a period of imprisonment to be served by way of periodic detention. The complaint is that the sentencing judge failed to set a non-parole period. The applicant also seeks leave to appeal out of time. 2 On 16 August 1993 the applicant pleaded not guilty to a charge of robbery whilst being armed with an offensive weapon at Rozelle on 26 July 1990. On the second day of the trial the applicant changed his plea to guilty. 3 On 23 September 1993 the applicant was sentenced by Nader DCJ to imprisonment for a period of 2 years and 32 weeks to be served by way of periodic detention. The sentence was to commence on 1 October 2003. 4 The applicant did not complete the sentence of periodic detention and on 3 February 1994 an application was filed by an officer of the Department of Corrective Services for the cancellation of the order for periodic detention. 5 That application was granted despite the fact that the applicant was not present. The sentencing judge ordered that the unexpired portion of the term of periodic detention (namely a period of 127 weeks) was to be served by way of full-time custody. 6 The remarks of the sentencing judge were never taken out although there is a note on the file kept in the District Court registry indicating that the sentencing judge declined to set a minimum term and an additional term. There is no indication as to why his Honour declined to do so. 7 A warrant for the apprehension of the applicant was issued but it was not until 2 February 2007 that he was arrested. He has been in custody since that date and the sentence, we were informed, will expire on 9 July 2009. 8 The applicant was 29 at the time of the offence and 32 at the time he was sentenced. He is now 47. He had a very minor record which consisted of offences in the Children's Court in 1978 in respect of which he was admonished and discharged. The only other matters related to a mid-range PCA offence and driving whilst unlicensed for which he was dealt with in the Local Court in 1990. 9 The applicant spent 3 months in custody before receiving the sentence of periodic detention. A number of psychiatric reports were in evidence which revealed that the applicant had been diagnosed as suffering from schizophrenia and depression. The reports contained recommendations that the applicant's condition be reviewed on a regular basis and that he receive on-going treatment. Whilst on remand he had made a suicide attempt. 10 In R v Sayin [2003] NSWCCA 384, Smart AJ, with whom Wood CJ at CL agreed, observed: This Court has held that there is no appeal to the Court of Criminal Appeal against the order of a District Court judge cancelling a periodic detention order (Wilson v Department of Corrective Services (1997) 93 A Crim R 301 at 306 and 309). At 309 this court followed the earlier decision in Sommerville (1995) 36 NSW LR 184 that because s 27(1)(c) of the Act deems the unexpired portion of the original sentence to be a separate term of imprisonment imposed at the time of the cancellation, some limited appellate consequences flow. This court's power is limited, in effect, to considering whether a non parole period should be set in respect of the sentence passed and its length. In Wilson the court discussed the difficulties, which arose when consequent upon a cancellation order the judge dealt with the offender when not present. It took the view that where an offender did not appear the court should issue a warrant for the arrest of the offender and bring him before the court. Otherwise the court does not have before it the necessary material to decide whether to set a non parole period and its length. (par 12) 11 In Sayin a periodic detention order which was made in 1994 was cancelled in 1995. This Court held that the sentencing judge had erred in proceeding in the absence of the offender. It also held that the sentencing judge had erred in not setting a non-parole period. In written submissions, the Crown observed that "as the circumstances in Sayin are almost identical to those in the present appeal" the Court may be prepared to find error. I am disposed to accept that submission. 12 A body of material has been placed before the Court concerning what has occurred since 1994. The applicant swore an affidavit in which he said that he had stopped attending periodic detention so that he could care for his brother who was very ill. The brother, who had been a transsexual, died in June 1994. Thereafter the applicant said that he moved in with his mother who lived in Dubbo. He lived with her until her death on 6 June 2004 and was her sole carer. The evidence discloses that she suffered from a number of serious illnesses during that time. 13 The material before the Court reveals that since 1994 the applicant has continued to receive treatment from a psychiatrist for various on-going problems relating to his mental health. During that period he has also completed various therapeutic psychological courses and workshops and received assistance from the Commonwealth Rehabilitation Service. 14 The offence which the applicant committed in July 1990 is now very stale. Most, but not all of that delay is attributable to the applicant. Whilst the period of delay, in and of itself, does not enable the applicant to claim any significant amelioration of his sentence, he has nonetheless taken very significant steps towards his ultimate rehabilitation, a matter that can, and should, be taken into account in his favour. Nor is there anything to suggest that the applicant has done anything but live a law abiding existence during those years. He has certainly not come to the attention of the authorities. Moreover, he has conducted himself in a productive fashion since he has been returned to custody. He has been engaged in constant employment and has not been the subject of any misconduct charges. He has also completed a six week Drug and Alcohol course. As of today's date he has served almost 64 weeks of the 127 week sentence. 15 In the light of the various matters to which I have adverted, I would make a finding of special circumstances. That will enable the applicant to continue receiving community based assistance with issues surrounding his mental health. 16 I propose the following orders: 1 Grant leave for an extension of time within which to bring this application. 2 Grant leave to appeal. 3 Allow the appeal (in part). 4 Set a non-parole of 18 months to commence on 2 February 2007 and to expire on 1 August 2008 on which date the applicant is to be released on parole. 5 Confirm the head sentence of 127 weeks to expire on 9 July 2009. 17 BASTEN JA: I agree with the orders proposed by his Honour and also His Honour's reasons. 18 BARR J: I also agree. ********** 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. 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