Cowan v R (No 2) [2015] NSWCCA 134

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Cowan v R (No 2) [2015] NSWCCA 134 Hearing dates: 29 April 2015 Date of orders: 05 June 2015 Decision date: 05 June 2015 Before: Bathurst CJ Simpson J Bellew J Decision: Pursuant to s. 50(1) of the Crimes (Sentencing Procedure) Act 1999 the Court directs the release of the applicant at the expiration of his non-parole period on 2 July 2015. Catchwords: CRIMINAL LAW – Sentence – Where previous orders of the Court imposed a total sentence of 3 years – Where no parole order was made – Statutory provision requiring the making of a parole order where a sentence of 3 years or less is imposed – Order made Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) Cases Cited: Cowan v R [2015] NSWCCA 118 Category: Principal judgment Parties: Glen Eric Cowan - Applicant Crown - Respondent Representation: Counsel: Ms H Cox - Applicant Mr P Ingram SC – Respondent

Solicitors: C O'Neil, Aboriginal Legal Service - Applicant Solicitor for Public Prosecutions – Respondent File Number(s): 2013/267517 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of New South Wales Before: Acting Judge Black

Judgment 1. THE COURT: On 29 May 2015 this Court delivered judgment in Cowan v R [2015] NSWCCA 118. The effect of the orders made by the Court on that occasion was to impose a sentence of 3 years imprisonment upon the applicant, comprising a non-parole period of 1 year and 10 months expiring on 2 July 2015, and a balance of term of 1 year and 2 months expiring on 2 September 2016. 2. Section 50 of the Crimes (Sentencing Procedure) Act 1999 is in the following terms: 50 Making of parole orders by court (1) When a court imposes a sentence of imprisonment for a term of 3 years or less, being a sentence that has a non-parole period, the court must make an order directing the release of the offender on parole at the end of the non-parole period. (2) A parole order may be made under this section even though at the time it is made it appears that the offender may not be eligible for release at the end of the non-parole period because of some other sentence to which the offender is subject. (3) The failure of a court to comply with the requirements of this section with respect to a sentence does not invalidate the sentence. 1. It has been drawn to the Court's attention that no order was made pursuant to s. 50 when judgment was delivered. The Solicitor for the applicant now seeks such an order, the making of which is not opposed by the Crown. 2. Accordingly, the further order of the Court is as follows: 1. Pursuant to s. 50(1) of the Crimes (Sentencing Procedure) Act 1999 the Court directs the release of the applicant at the expiration of his non-parole period on 2 July 2015.