R v Philip LOUTAN [2013] NSWDC 101

District Court New South Wales

Medium Neutral Citation: R v Philip LOUTAN [2013] NSWDC 101 Decision date: 07 March 2013 Before: Cogswell SC DCJ Decision: Aggregate sentence of imprisonment reduced. Catchwords: CRIMINAL LAW - Sentence Procedure - sentence proceedings re-opened under s 43 Crimes (Sentencing Procedure) Act 1999 - sentencing judge's intention frustrated by original sentence - original sentence aggregate of 4 years imprisonment - fixed non-parole period reflected time spent in custody - low non-parole period reflected intention that offender be released immediately - no power to fix non-parole period for sentence over 3 years - not to vary would cause serious injustice - aggregate sentence of imprisonment reduced to 3 years - order made for offender's immediate release on parole under s 50 Crimes (Sentencing Procedure) Act 1999. Legislation Cited: Crimes (Sentencing Procedure) Act 1999, s 43, s 50. Category: Sentence Parties: Regina (Crown) Philip Loutan (Offender) Representation: Solicitors: Director of Public Prosecutions (Crown) Eliopoulos Lawyers (Offender) File Number(s): DC 2005/13393; DC 2011/410892

SENTENCE CORRECTION 1On 30 November 2012 I sentenced Philip Loutan to a period of 4 years and 9 months imprisonment. I took the unusual step of fixing an exceptionally low non-parole period. It was one that represented the 5 months or so that he had already spent in custody. That sentence reflected my clear intention, stated a number of times, that he should be released immediately. My reasons for having that intention are set out in previous judgments. Mr Loutan himself would clearly understand from what I had said to him in those judgments that he would be released immediately. 2Unfortunately what was overlooked by counsel and by me was that, in fixing a sentence of over 3 years, I do not have the power to fix the non parole period. That power lies with the Parole Authority, which of course is an independent body and exercises its own discretion. The error was picked up a few weeks after the sentence by the Corrective Services Department. That department pointed out the irregularity and the fact that Mr Loutan was at large when he should be in custody, because I had no power to grant him parole. 3Mr C. Eliopoulos, who appears for Mr Loutan, has applied to me to re open the sentence proceedings. I have that power under s 43 of the Crimes (Sentencing Procedure) Act 1999. I have re-opened them. Mr Eliopoulos argues that in order to give effect to my intention I need to reduce his client's sentence to 3 years. Mr D. I. Curran, who appears for the Director of Public Prosecutions, acknowledges that my intention in sentencing Mr Loutan was clear, and that this is quite an exceptional case so far as the offender's rehabilitation is concerned. He does not oppose, in those special circumstances, the course proposed by Mr Eliopoulos. 4There are two issues which concern me in re-opening the proceedings. One is that the power to re-open the proceedings may be exercised where I have "imposed a penalty that is contrary to law" or "failed to impose a penalty that is required to be imposed by law". 5On one view there has been no legal error on my part. I have announced the sentence, and simply had no power to order that he be released on parole. However, the authorities have made it clear that the section is to be given a broad interpretation. It has been described as a remedial or beneficial provision which should be construed broadly. A court may re-sentence an offender entirely in order to produce the result which the sentencing judge originally intended to be achieved. I am of the view that I do have the power in those circumstances because my original intention was clearly frustrated in the sentence which I imposed. 6The second concern that I have is that I had assessed the appropriate sentences with respect to one of the supplies of a prohibited drug, being 113 ecstasy tablets, as being 4 years. I also assessed 4 years as being the appropriate sentence for the supply of 5 grams of cocaine. Clearly it seems to me that I overlooked, in assessing those sentences and in imposing the ultimate aggregate sentence, the fact that they would deprive me of the power to order Mr Loutan's release on immediate parole, which was my intention. 7I am aware that it is somewhat artificial for me to assess an appropriate sentence as 4 years and then to re-assess it as 3 years. Nevertheless I propose to do that in the circumstances of this case. There are two main reasons for that. One is that the result of the assessment is a frustration of my original intention in releasing Mr Loutan. The second reason is that Mr Loutan has been acting under the impression for a long time now that if he stayed out of trouble during adjournments, he would be released without any further custody. To my mind it would be a serious injustice to send him back into prison now. 8For those two reasons I propose to take the somewhat artificial course of indicating that the appropriate sentences for the two offences, one committed on 11 December 2004, the other committed on 21 December 2011, are 3 years. 9I also formally re-open the proceedings under s 43 of the Crimes (Sentencing Procedure) Act and under s 53A of that Act I impose an aggregate sentence of imprisonment with respect to those offences of 3 years to commence on 10 December 2011 and to expire on 9 December 2014. The non-parole period remains at 5 months and 7 days, which commenced on 10 December 2011 and expired on 16 May 2012. The balance of the term is 2 years, 6 months and 23 days, which commenced on 17 May 2012, and will expire on 9 December 2014. 10Under s 50 of the Crimes (Sentencing Procedure) Act I make an order directing that Mr Loutan be released on parole forthwith. The conditions of the parole are these: (1)That he be of good behaviour. (2)That he keep the Parole Authority informed of his residential address. (3)That he attend court if he receives notification to do so. (4)That he accept all reasonable recommendations and directions of the New South Wales Probation and Parole Service and accept their supervision, including any direction regarding intervention and monitoring regarding drug treatment, in particular random urinalysis. 11I direct that Mr Loutan present himself to the Probation and Parole Service office at Dee Why on or before next Friday 15 March 2013. 12I otherwise confirm the orders which I made on 30 November 2012. HIS HONOUR: Now Mr Curran, Mr Eliopoulos, are there any other orders I need to make? CURRAN: No, your Honour. ELIOPOULOS: No, your Honour. 13Mr Loutan, you have heard that. I have given my reasons. I have had to re-assess the sentences as 3 years for the two drug supplies. As I said, somewhat artificial, but it was a major frustration of my intention, which, as I said, was that you be released forthwith, and also a serious injustice to you. 14So that your sentence overall is now 3 years. It commenced, as we know, 10 December 2011 when you went into custody and it will expire now on 9 December 2014. So your sentence expires 9 December 2014 at the end of next year. 15The non-parole period is the same. It commenced on 10/12/11. It expired last year on 16 May, and you have been on parole since 17 May 2012 and that expires on 9 December 2014, when your sentence expires. 16I have directed you to turn up to Dee Why on or before Friday of next week. The conditions are the same: stay out of trouble, keep them informed of your address. If you get a notice, turn up at court, do not be chased and accept those reasonable recommendations and directions and let them help you. Does that all make sense? OFFENDER: Yes, your Honour. I understand. HIS HONOUR: And how is it going? OFFENDER: Very good. HIS HONOUR: Still going well? Good. And you've got work somewhere else? You're not working as a chef, where are you working? OFFENDER: No. I am so happy, I have a job, HMAS Kuttabul Navy Base. HIS HONOUR: That's right, Kuttabul, good. OFFENDER: I assist welders, and engineers, and yeah, I'm learning a lot, and I'm very happy. HIS HONOUR: Have you got a trade in that? OFFENDER: No, I'm actually a chef by trade. HIS HONOUR: Your trade is a chef, I knew that you're a chef. OFFENDER: That's right. HIS HONOUR: So you're a welder's assistant, or something like that? OFFENDER: Yes. I thought I'd give something different a go, and I'm very happy. HIS HONOUR: That's good. All right, Mr Loutan, that's very good. I have made the parole order, so I do not think I need to do anything else. I will sign the order, which will go downstairs. Keep up the good work, Mr Loutan. OFFENDER: Thank you, your Honour. HIS HONOUR: Thank you both for your assistance.