Riad Taha v R. [2017] NSWDC 180

District Court New South Wales

Medium Neutral Citation: Riad Taha v R. [2017] NSWDC 180 Hearing dates: 28 April 2017 Decision date: 28 April 2017 Jurisdiction: Criminal Before: Colefax SC DCJ. Decision: Severity Appeal Allowed Catchwords: Offender with mobile phone in custodial setting– Limits on start date of sentence – current state of Law unsatisfactory – Referral of issue to Minister for CorrectiveServices and Attorney General Legislation Cited: s 27DA(1) of the Summary Offences Act and s 58 of the Crimes (Sentencing Procedure) Act. Category: Principal judgment Parties: Riad Taha (Appellant)

Crown (Respondent) Representation: Appellant: Mr Bide (solicitor Legal Aid)

Crown: Mr Henderson (Solicitor) File Number(s): 2017/00013676 Publication restriction: Nil

Judgment 1. On 20 March 2017 Riad Taha was sentenced in the Local Court for the offence of being in possession of a mobile phone/SIM card, whilst an inmate. 2. This involves a contravention of s 27DA(1) of the Summary Offences Act. 3. The maximum penalty for that offence is two years in prison. 4. The learned Magistrate imposed a penalty of three months' imprisonment to date from 10 January 2020. 5. In order to understand the reason for that start date, and the outcome of the appeal, some brief background is required. 6. As at 13 January 2017 Mr Taha was serving a term of imprisonment which was an aggregate sentence for the offences of supplying a prohibited drug (two counts), knowingly deal with proceeds of crime, and knowingly participate in a criminal group. 7. The aggregate term of imprisonment for those three offences was eight years commencing 11 July 2014. A non-parole period was fixed of five years six months commencing 11 July 2014 and concluding 10 January 2020. There was a balance on parole of two years and three months. 8. On 13 January 2017, whilst an inmate in the Cessnock Correctional Centre, Mr Taha and his cell were the subject of a random search by Corrective Services Officers. These searches are regularly undertaken by those officers for the purpose of seizing contraband articles and the possession of prohibited weapons and or drugs. 9. It does not require more than a moment's reflection to realise the seriousness of offenders having access to such items whilst in custody. They present a real and substantial threat to the safety of officers and other inmates and substantially undermine the security of those correctional institutions. 10. When this search was undertaken in Mr Taha's cell, he was found to have on his person a mobile phone, a battery, a SIM card and a charger chord. 11. The possession of at least the mobile phone and the SIM card are prohibited items inside a correctional facility. 12. Because of the seriousness of that offence, it might be thought that a term of imprisonment of three months constituted considerable leniency. 13. It is apparent that it was the intention of the Local Court that the punishment for this serious breach of correctional security should commence at the expiration of the non‑parole period for the aggregate sentence. That intention is not only understandable but, subject to one comment, utterly desirable. 14. Regrettably, however, the Local Court was not empowered to make the start date of that sentence as the commencement of the non-parole period. This is because of s 58 of the Crimes (Sentencing Procedure) Act. The effect of that section is such that, in practice, where an inmate is serving a significant period of imprisonment (that is one in excess of five years) there is effectively no punishment available to the Local Court for any such inmate. 15. This seems to me to be a highly unsatisfactory situation because the more serious offenders face no real disincentive to engage in serious breaches of security in the correctional context. There is no disincentive for them to have possession of (at least) mobile phones which is a serious breach of correctional security. 16. This is a matter which should be immediately drawn to the attention of the Minister for Correctional Services and the Attorney General. 17. As it is, (and as the Crown has conceded) I have no alternative but to allow the appeal on the state of the current law. 18. The appeal is, with regret, allowed. The conviction is confirmed. The fixed term of imprisonment of three months is confirmed, but I vary the start date from 10 January 2020 to 20 March 2017. 19. I direct that the Registrar to forward a copy of these remarks, once they are transcribed, to the Ministers of the Crown I have identified. I also direct that a copy of them be placed on the case law website.