R v Bonat (No 2) [2004] NSWCCA 242 (19 July 2004)

CITATION: R v Bonat (No.2) [2004] NSWCCA 242

FILE NUMBER(S):

60082/04

HEARING DATE(S): 5 & 19 July 2004

JUDGMENT DATE: 19/07/2004

PARTIES:

Regina

Stephen Bonat

JUDGMENT OF: Sperling J Sperling J Adams J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/71/0018

LOWER COURT JUDICIAL OFFICER: Norrish DCJ & Shadbolt DCJ

COUNSEL:

Ms J Bremner (Solicitor) for the Crown

Ms J Witmer (Solicitor) for the Appellant

SOLICITORS:

Director of Public Prosecutions

Legal Aid Commission for the Appellant

CATCHWORDS:

Criminal law

variation of sentence

no question of principle

LEGISLATION CITED:

Crimes (Sentencing Procedure) Act 1999, s59

DECISION:

The sentence imposed by Shadbolt DCJ on 10 October 2003, consisting of a one year non-parole period commencing 6 March 2007 and expiring on 5 March 2008 and a three year parole period expiring on 5 March 2011, be varied pursuant to s59 of the Crimes (Sentencing Procedure) Act 1999 so that the sentence commences on 7 March 2003, the non-parole period expires on 6 March 2004 and the total sentence expires on 6 March 2007.

JUDGMENT:

- 2 -

IN THE COURT OF

CRIMINAL APPEAL

60082/04

Sperling J

Monday, 19 July 2004

Regina v Stephen Bonat

Judgment No.2

1 Sperling J: On 5 June 2003 Norrish DCJ imposed sentences on the appellant, the effective sentence being for seven years and six months with a non-parole period of four years to date from 7 March 2003 and expiring on 6 March 2007.

2 The court has, this day, allowed an appeal against the convictions in respect of which the sentences were imposed and has directed the entry of verdicts of acquittal in lieu thereof (R v Bonat [2004] NSWCCA 240).

3 The court which heard and determined the appeal was constituted by Sheller JA, Adams J and myself.

4 The court is now informed that, on 10 October 2003, Shadbolt DCJ imposed a sentence on the appellant in relation to another matter consisting of a one year non-parole period, commencing on 6 March 2007 and expiring on 5 March 2008 and a three year parole period expiring on 5 March 2011. As is apparent, that sentence was dated to commence on the expiration of the effective non-parole period under the sentences imposed by Norrish DCJ.

5 Application is made on behalf of the appellant for an order pursuant to s 59 of the Crimes (Sentencing Procedure) Act 1999, which provides, so far as is material, that a court which quashes a sentence of imprisonment imposed on a person may vary the date of commencement of any other sentence that has been imposed on that person.

6 The order sought is as follows:

That the sentence imposed by his Honour Judge Shadbolt on 10 October 2003 consisting of a 1 year non-parole period commencing 6 March 2007 and expiring on 5 March 2008 and a 3 year parole period expiring on 5 March 2011 be varied, pursuant to section 59 of the Crime (Sentencing Procedure) Act 1999 so that the sentence commences on 7 March 2003, the non-parole period expires on 6 March 2004 and the total sentence expires on 6 March 2007.

7 The effect of this order would be to backdate the sentence imposed by Shadbolt DCJ to commence on the date of commencement of sentences (now quashed) imposed by Norrish DCJ. The non-parole period under the sentence imposed by Shadbolt J would then have expired on 6 March 2004 and would accordingly have been served.

8 The Crown does not object to the order being made.

9 I have conferred with Sheller JA and Adams J. We are in agreement that the order should be made. Accordingly, the order of the court is as sought.

-oOo-

LAST UPDATED: 19/07/2004