Regina v Brown

[2002] NSWCCA 143

CITATION:	Regina v Brown [2002] NSWCCA 143
FILE NUMBER(S):	CCA 60512/00
HEARING DATE(S):	8 December 2000
JUDGMENT DATE:	24 April 2002
PARTIES :	Harold Milton Brown - Applicant Crown - Respondent
JUDGMENT OF:	Simpson J at 1; Dowd J at 7

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	00/11/-192
LOWER COURT JUDICIAL OFFICER :	Blanch CJ

COUNSEL :	LMB Lamprati (Crown) PJD Hamill (Applicant)
SOLICITORS:	SE O'Connor (Crown) DJ Humphreys (Applicant)
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999
DECISION:	Refer paragraph 6

CCA 60512/00

SIMPSON J
DOWD J

24 April 2002

REGINA v BROWN

SUPPLEMENTARY Judgment

1 SIMPSON J: On 8 December 2000 this Court (constituted by Dowd J and myself) heard and determined an application for leave to appeal against the severity of a sentence imposed upon the applicant by Blanch CJ of DC. In effect the order made by this Court left untouched the total term of the sentence of four years imposed by His Honour, but reduced the non-parole period from two years to fifteen months, the non-parole period expiring on 26 April 2002. What was not drawn to the attention of this Court was that, subsequent to the imposition of sentence by Blanch CJ of DC, but before the determination of the appeal, the applicant was sentenced by McGuire DCJ, on 26 October 2000, to a further term of imprisonment of two years and four months with a non-parole period of four months, which was ordered to commence at the expiration of the original non-parole period specified by Blanch CJ of DC which was 29 January 2003.

2 If the sentence imposed by McGuire DCJ is not adjusted, that sentence will commence on 29 January 2003, well after the expiration of the non-parole period imposed by this Court.

3 Section 59 of the Crimes (Sentencing Procedure) Act 1999 provides for circumstances such as this. Sub s(i) of that section provides:

“(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 consecutive sentence that has been imposed on that person by that or any other Court.”

4 The applicant has requested this Court to exercise its powers under s59(1). His request is supported by an affidavit of his solicitor, Madeleine Schneider, who has filed an affidavit setting out the material facts. Also placed before the judges who constituted the Court of Criminal Appeal was a copy of a letter from the Solicitor for Public Prosecutions dated 26 March 2002. In that letter the request made on behalf of the applicant was acknowledged, and the following was added:

“Please be advised that this office has no objection to this matter being heard in Chambers by Justices Simpson and Dowd, as requested by Ms Schneider.”

5 I take this to mean rather more than it says. I take the author of the letter to be raising no objection to the exercise of power under s59(1).

6 In my opinion it is appropriate to make the order sought. I propose that the original orders made by this Court be varied by the addition of the following:

“Pursuant to s59(1) of the Crimes (Sentencing Procedure) Act 1999, the date of commencement of the sentence imposed on the applicant by McGuire DCJ on 26 October 2000 be varied so that that sentence commences on 27 April 2002.”

7 DOWD J: I have read the judgment of Simpson J in draft form. I concur in her Honour’s judgment and the proposed order.