Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: Cross v R (No. 2) [2012] NSWCCA 234
• Hearing dates: 29 May 2012
• Decision date: 21 November 2012
• Before: Allsop P, Hidden and Davies JJ

Decision

The sentences imposed on 10 September 2012 be varied to read as follows:

(1) In respect of Count 1 and taking into account the matter on the Form 1, a non-parole period of 18 months commencing 9 March 2010 and expiring 8 September 2011 with a balance of term of 6 months;

(2) In respect of Count 2 and taking into account the matter on the Form 16BA, a fixed term of 15 months commencing 9 June 2011 and expiring 8 September 2012;

(3) In respect of Count 3, a non-parole period of 3 months commencing 9 September 2012 and expiring 8 December 2012 with a balance of term of 2 years and 9 months expiring 8 September 2015.

(4) Direct that the Applicant be released to parole on 8 December 2012 with the following additional conditions:

(a) The Applicant to report to the Sydney office of the Probation and Parole Service within seven days of his release to parole; and

(b) He is to accept and comply with all reasonable directions for treatment and counselling.

• Catchwords: CRIMINAL LAW -sentencing - parole orders - whether to be made for each of a number of partly cumulative sentences
• Legislation Cited: Crimes (Administration of Sentences) Act 1999; Crimes (Sentencing Procedure) Act 1999
• Cases Cited: Cross v R [2012] NSWCCA 114
• Category: Consequential orders
• Parties: Terry Cross (Applicant); Crown
• Representation: Counsel: D Barrow (Applicant); T Smith (Crown); Solicitors: Legal Aid NSW (Applicant); Solicitor for Public Prosecutions (Crown)
• File Number(s): 2009/161797 & 2010/60784

Decision under appeal

• Date of Decision: 2010-12-14 00:00:00
• Before: G D Woods DCJ
• File Number(s): 2009/161797 & 2010/60784

Judgment

1 THE COURT:Judgment was delivered in this matter on 10 September 2012: Cross v R [2012] NSWCCA 114. The issue of whether an order should be made under s 50 Crimes (Sentencing Procedure) Act 1999 was raised but not determined pending the receipt of any further submissions the parties wished to make. This was because the Sentencing Judge made no such order and the parties did not address the matter in their submissions at the hearing of the appeal.

2 The particular issue was whether s 50 mandated the making of a parole order in respect of Count 1 even where the Applicant was required to serve two further terms of imprisonment after the date of the expiry of the non-parole period in respect of Count 1. There was the further matter that the date of expiry of the non-parole period in respect of Count 1 had passed.

3 Section 50 of the Act provides:

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.

4 There are some difficulties with the section that are highlighted in the present matter. In the first place, the purpose of the section is obscure. There is the further question of whether the section is directed to each individual sentence or whether it is to be applied in respect of the total sentence. If the former is the case the difficulties highlighted by the present case are apparent.

5 The better view is, however, that the section was addressed to each individual sentence that is imposed. Although sub-s (2) provides some support for that view, the sub-section may equally be addressing the position where an offender has previously been sentenced and the question of a parole order for the sentence later being imposed is under consideration.

6 There is the further difficulty of what purpose might be intended by making a parole order which cannot be effected as a result of a sentence for a further offence being imposed at the same time. That is the precise difficulty in the present case.

7 The submissions of both parties focussed on the word "may" in sub-s (2) to suggest that the Court had a discretion whether or not to impose a parole order in respect of Count 1. However, the use of the word "may" in the particular context of sub-s (2) suggests that it is a facultative provision rather than a provision which provides a discretion to the sentencing court.

8 From the point of view of strict compliance with the section it is likely that a court is obliged to make a parole order notwithstanding that it cannot be complied with. One justification for so doing would be allowing for the possibility that the sentence in respect of the later offence being set aside or interfered with on appeal in such a way that the parole order imposed for the first offence takes effect.

9 Nevertheless, where, in the present case, the non-parole period for Count 1 has expired before the re-sentencing by this Court the making of a parole order in respect of Count 1 would be entirely futile. In our opinion no parole order should be made in respect of Count 1.

10 The submissions on behalf of the Applicant proposed two conditions additional to those to which a parole order is automatically subject pursuant to s 128 Crimes (Administration of Sentences) Act 1999 as follows:

(i)The Applicant to report to the Sydney office of the Probation and Parole Service within seven days of his release to parole; and

(ii)He is to accept and comply with all reasonable directions for treatment and counselling.

We consider it is appropriate that such additional conditions should be imposed in the light of the offences for which he was convicted.

11 In those circumstances we propose that the sentences imposed on 10 September 2012 be varied to read as follows:

(a) In respect of Count 1 and taking into account the matter on the Form 1, a non-parole period of 18 months commencing 9 March 2010 and expiring 8 September 2011 with a balance of term of 6 months;

(b) In respect of Count 2 and taking into account the matter on the Form 16BA, a fixed term of 15 months commencing 9 June 2011 and expiring 8 September 2012;

(c) In respect of Count 3, a non-parole period of 3 months commencing 9 September 2012 and expiring 8 December 2012 with a balance of term of 2 years and 9 months expiring 8 September 2015.

(d) Direct that the Applicant be released to parole on 8 December 2012 with the following additional conditions:

(i)The Applicant to report to the Sydney office of the Probation and Parole Service within seven days of his release to parole; and

(ii)He is to accept and comply with all reasonable directions for treatment and counselling.

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Decision last updated: 21 November 2012