Boyd v R (No 2) [2013] NSWCCA 67

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Boyd v R (No 2) [2013] NSWCCA 67 Hearing dates: On the papers Decision date: 05 April 2013 Before: McClellan CJ at CL at [1] Bellew J at [2] Button J at [3] Decision: Pursuant to s 59 of the Crimes (Sentencing Procedure) Act, the commencement date of the fixed term of imprisonment for 2 months imposed upon the applicant on 8 June 2012 is varied from 29 May 2015 to 14 January 2015. Catchwords: CRIMINAL LAW - consequential orders pursuant to s 59 of the Crimes (Sentencing Procedure Act) 1999 - sentence appeal allowed - adjustment of starting date of later unrelated sentence Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Category: Consequential orders Parties: Dennis Boyd (applicant) The Crown (respondent) Representation: Solicitors: Matthews Dooley & Gibson (applicant) Solicitor for Public Prosecutions (Crown) File Number(s): 2009/158071

Judgment 1McCLELLAN CJ at CL: I agree with Button J. 2BELLEW J: I agree with Button J. 3BUTTON J: On 7 March 2013, this Court delivered judgment dismissing an appeal against conviction, but varying the commencement date of the single sentence under appeal. That latter step was taken with the concurrence of both parties. That sentence featured a head sentence of imprisonment for 7 years 6 months with a non-parole period of imprisonment for 4 years. It was imposed for an offence of supplying a commercial quantity of a prohibited drug. 4The Court has been informed by a solicitor acting for the applicant that, on 8 June 2012 in the Local Court of New South Wales at Penrith, the applicant was sentenced to a fixed term of imprisonment for 2 months as a result of a conviction for being an inmate of a prison in possession of a mobile phone. That term of imprisonment was expressed to commence at the end of the non-parole period of the sentence of which the commencement date was adjusted in this Court. The commencement date of the sentence of 2 months was 29 May 2015. 5Some time later, an appeal to the District Court of New South Wales with regard to that sentence was dismissed. 6Pursuant to the orders of this Court, the non-parole period of the sentence for the drug offence now expires on 13 January 2015. It can be seen that there will arise in the future a lacuna in the custody of the applicant that requires correction. 7Section 59 of the Crimes (Sentencing Procedure) Act 1999 ("The Act") is as follows: "Court may vary commencement of sentence on quashing or varying other sentence (1) A court that quashes or varies a sentence of imprisonment imposed on a person (on appeal or otherwise) may vary the date of commencement of any other sentence that has been imposed on that person by that or any other court. (2) If a person is subject to two or more sentences, this section applies to each of them. (3) A court may vary a sentence under this section on its own initiative or on the application of a party to the proceedings on the quashing or variation of the other sentence. (4) An appeal does not lie merely because the date of commencement of a sentence is varied under this section. (5) The term of a sentence, or the non-parole period of a sentence, cannot be varied under this section." 8It is appropriate for this Court to exercise its powers under s 59(1) of the Act to adjust the commencement date of the sentence of imprisonment for 2 months, so that is commences at the end of the non-parole period of the lengthy sentence. Both the solicitor for the applicant and the Crown agree that that wholly mechanistic adjustment should be made, and are in agreement as to the precise order. 9Accordingly, I propose the following order: (1)Pursuant to s 59 of the Crimes (Sentencing Procedure) Act, the commencement date of the fixed term of imprisonment for 2 months imposed upon the applicant on 8 June 2012 is varied from 29 May 2015 to 14 January 2015.