Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Burns v R [2013] NSWCCA 17 Hearing dates: 8 February 2013 Decision date: 08 February 2013 Before: Latham J at [1] Button J at [2] Grove AJ at [17] Decision: (1) Leave to appeal granted with regard to the sentence for the offence in count two of supplying methadone. (2) Appeal allowed. (3) Sentence for count two quashed. (4) In substitution, the applicant is sentenced on count two to a non-parole period of imprisonment for 2 years 13 days to date from 14 July 2010 and expire on 27 July 2012, with an additional term of 11 months 17 days to commence on 28 July 2012 and expire on 13 July 2013. Catchwords: CRIMINAL LAW - sentence appeal after conviction on one count quashed - re-sentence pursuant to s 7(1) of Criminal Appeal Act 1912 Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 Cases Cited: Lavender v R [2006] NSWCCA 24 Sheehan [No 2] v R [2006] NSWCCA 332 Category: Principal judgment Parties: Natalie Burns (applicant) Regina (respondent) Representation: Counsel: D Barrow (applicant) T Smith (respondent) Solicitors: Legal Aid NSW (applicant) Solicitor for Public Prosecutions (respondent) File Number(s): 2008/10533 Decision under appeal Jurisdiction: 9101 Date of Decision: 2009-10-23 00:00:00 Before: Woods QC DCJ File Number(s): 2008/10533 Judgment 1LATHAM J: I agree with the reasons of Button J and the orders proposed. 2BUTTON J: This is an application pursuant to s 7(1) of the Criminal Appeal Act 1912. It is not necessary to quote from the statute. It suffices to say that the parties agree that the subsection gives this Court a discretion to intervene in the following circumstances. If an offender is convicted of more than one count on an indictment, and one or more of the convictions are subsequently quashed on appeal, this Court may re-sentence on the remaining count or counts: see generally Sheehan [No 2] v R [2006] NSWCCA 332. 3This case is a very good example of the need for such a provision in order to ensure that justice is achieved for successful appellants. Chronology 4On 23 October 2009, the applicant was sentenced in the District Court of New South Wales for five offences: one count of manslaughter (an offence that carries a maximum penalty of imprisonment for 25 years), and four counts of supplying methadone (an offence that carries a maximum penalty of imprisonment for 15 years). For the purposes of this judgment, it is not necessary to review the facts underpinning those convictions, except to say that the manslaughter was intimately connected with one of the supplies. 5The learned sentencing judge structured the sentence as follows. On three counts of supplying methadone, three fixed terms of imprisonment for 2 years 6 months were imposed, all to date from 14 July 2009, and to expire on 13 January 2012. On the fourth count of supplying methadone (which in fact was count two on the indictment), a fixed term of imprisonment for 3 years 4 months to date from 14 July 2010 and expire on 13 November 2013 was imposed. On the count of manslaughter, his Honour imposed a non-parole period of imprisonment for 3 years 6 months to date from 14 July 2010, with a balance of term of 1 year 2 months to date from 14 January 2014 and expire on 13 March 2015. In other words, the head sentence for manslaughter of 4 years 8 months would expire on 13 March 2015, and the non-parole period of 3 years 6 months would expire on 13 January 2014. 6Annexed to this judgement is a diagram that seeks to show the structure of the sentences imposed upon the applicant in a readily comprehensible form. 7A number of aspects of that structure may be noted. First, his Honour decided to make the sentence for the manslaughter and for the related methadone supply cumulative upon the other three methadone supplies, to the extent of 12 months. Secondly, the sentences for the supply in count two and for the manslaughter are wholly concurrent with each other. Thirdly, it is clear from the remarks on sentence that his Honour equated the fixed term for count two to what would have been a notional head sentence for that offence, and not a notional non-parole period. Fourthly, and importantly to this application, no non-parole period was imposed with regard to count two. That was for the very sound reason that to do so would have had no utility, because any such non-parole period would have been subsumed by the non-parole period of the sentence for manslaughter. 8On 20 June 2012, the High Court of Australia quashed the conviction of the applicant for manslaughter. Of course, she remained in custody pursuant to the fixed term imposed for count two. Her legal advisers quickly approached the sentencing Judge for a variation in that sentence, pursuant to s 43 of the Crimes (Sentencing Procedure) Act 1999. His Honour refused the application, but granted the applicant bail on 29 July 2012. She has been on bail since that date. Analysis 9It is quite apparent that, if the sentence for count two is not adjusted by this Court, the applicant will suffer a serious injustice. That is because, as the Crown accepts, one can safely infer that, if there had been no sentence at first instance for the manslaughter, the applicant would have received a non-parole period with regard to count two. If that non-parole period had been 75 per cent of the fixed term of 3 years 4 months imposed for count two, the applicant would have been eligible for consideration for release on parole on 13 January 2013. 10It is agreed between the parties that it is incumbent on this Court to intervene; the only question is how best to do it. Solution 11I do not consider it appropriate or necessary to alter the commencement date of the sentence for count two. Nor is there any need to go through the logistical procedure adopted in Lavender v R [2006] NSWCCA 24. The simplest course is to impose a head sentence of imprisonment for 3 years or less on count two, thereby ensuring that the State Parole Authority is not required to determine that the applicant is suitable for release at the end of the non-parole period. As well as that, there should be a non-parole period that expires on the day of the release of the applicant to bail some months ago. I firmly reject any proposition that the applicant should be returned to custody at this stage of the proceedings, and of course the Crown has not made such a submission. 12The effect of the new sentence I propose for count two will be a head sentence of imprisonment for 3 years with a non-parole period of imprisonment for 2 years 16 days. The resultant total head sentence imposed upon the applicant for all extant counts will be one of 4 years, with a total non-parole period of imprisonment for 3 years 16 days. 13The result will be that the applicant will remain on conditional liberty, but she will be on parole, and not bail. And she will be subject to her head sentence until its complete expiry on 13 July 2013. Both of those aspects of the sentence structure are appropriate, and may be of assistance to the applicant as well as the community. 14Nor will the sentence I propose suffer from the anomaly of an unusually low ratio between the new non-parole period and the new head sentence of count two. The ratio between them will be 68 per cent, and a finding of special circumstances in order to achieve that result is entirely apposite to doing justice in this case. And the relationship between the total non-parole period served by the applicant and the total head sentence to which she will be subject will be 76 per cent. 15Finally, I should indicate that I have not overlooked the obligation contained in s 50 of the Crimes (Sentencing Procedure) Act to order the release of the applicant at the end of the non-parole period. However, in light of the fact that the non-parole period I propose expired months ago and the applicant was indeed released on that date, it would be otiose for me to do so. Orders 16The orders I propose are: (1)Leave to appeal granted with regard to the sentence for the offence in count two of supplying methadone. (2)Appeal allowed. (3)Sentence for count two quashed. (4)In substitution, the applicant is sentenced on count two to a non-parole period of imprisonment for 2 years 13 days to date from 14 July 2010 and expire on 27 July 2012, with an additional term of 11 months 17 days to commence on 28 July 2012 and expire on 13 July 2013. 17GROVE AJ: I agree with Button J. ********** Amendments 11 February 2013 - "is" changed to "as" Amended paragraphs: 11 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. Decision last updated: 11 February 2013