Garry Owen Wilson v Department of Corrective Services [1997] NSWSC 107 (4 April 1997)

Garry Owen WILSON v. DEPARTMENT OF CORRECTIVE SERVICES

60650/95

12 February 1997

IN THE COURT OF CRIMINAL APPEAL

HUNT CJ AT CL, SMART J, JAMES J

CATCHWORDS: PERIODIC DETENTION - RESUMPTION AFTER DETERMINATION OF APPEAL - CANCELLATION FOR FAILURE TO REPORT - APPEAL OF CANCELLATION - SENTENCING AFTER CANCELLATION - APPEAL ON GROUNDS OCCURRING AFTER SENTENCE

EX TEMPORE/RESERVED: Reserved

ALLOWED/DISMISSED: Orders made - Further argument required

HEADNOTE

W was sentenced to 12 months' periodic detention. He appealed against conviction and sought leave to appeal against the severity of his sentence. He was granted bail pending determination of his appeal. The CCA dismissed his appeal against conviction. No order was made for him to report to gaol and serve the balance of his periodic detention. His solicitor advised that he was not required to do so because of an anomaly in the law. Thus W withdrew his application for leave to appeal against sentence. The solicitor's advice was wrong.

W applied to the High Court for special leave to appeal his conviction. This appeal was discontinued by W's solicitor almost two years later, allegedly wrongly.

Notices advising W of his default in attending periodic detention did not reach him as he had changed address without advising the department (as was required). For the same reason W failed to attend a District Court hearing at which the periodic detention order was cancelled because of his failure to report. A warrant issued for his arrest. No sentence was passed in his absence.

W was later sentenced in the District Court to 17 weeks prison. This period was imposed due to a mistaken representation of the circumstances by a solicitor for the department. The department now wishes to return to the District Court for imposition of what it contends is the correct sentence (41 weeks).

W sought leave from the CCA to appeal out of time against the original sentence or alternatively to have the sentence of periodic detention revived and the 17 week prison sentence overturned. He also sought, in the Court of Appeal to have the order cancelling his periodic detention quashed.

HELD:

1. Upon the determination of the appeal by the CCA, bail ceased and the stay of Mr Wilson's sentence ceased automatically. Thereafter the statutory obligation to report under s.9(2) Periodic Detention of Prisoners Act resumed automatically and it was not necessary for the CCA to make an order to that effect.

2. Where a detainee has not served his periodic detention and has failed to appear on the hearing of the application to cancel that order the judge has power to cancel that order, and cause a warrant to issue for the arrest of the detainee. It is correct for the judge not to sentence a detainee ex parte.

Generally, when the detainee is not present in court it is better for the court at that stage not to cancel the order to adjourn the application and issue or cause to be issued a warrant for the arrest of the detainee and hear all aspects of the matter together. There may be good reasons why the detainee did not attend.

3. There is no appeal to the CCA against an order of the District Court cancelling a periodic detention order.

4. There is a limited right of appeal against a court order imposing a sentence after a periodic detention order is cancelled. The court may have regard to all the circumstances leading up to the appeal, including cancellation of the periodic detention order.

5. Where one judge cancels the periodic detention order and another judge deals with the sentencing aspect, the second judge may take into account the circumstances leading up to and surrounding the cancellation.

6. The original periodic detention sentence remains subject to appeal in the ordinary way. An extension of time in which to appeal or seek leave to appeal may be granted. In exceptional cases leave may be granted by reason of circumstances occurring after the original sentence which amount to a miscarriage of justice.

7. Failure of legal practitioners to advise fully and accurately the position of their clients regarding periodic detention when an appeal is unsuccessful could lead to disciplinary action or payment of damages for professional negligence.

Orders in the Court of Criminal Appeal

1. (a) Stand over for further argument the application for leave to appeal and any appeal consequent upon leave against the sentence imposed by Judge Bell.

(b) Direct that the applicant deliver written submissions on sentence within 7 days, the Crown deliver written submissions on sentence within a further 7 days and the applicant lodge any reply within a further 4 days.

(c) Direct that there be no further oral hearing unless requested by either party within 4 days of the close of the written submissions.

2. Reserve all other issues for determination pending determination of the application for leave to appeal against the sentence imposed by Judge Bell.

JUDGMENT

HUNT CJ at CL: I agree with the orders proposed by Smart J, for the reasons which he has given.

SMART J: The interplay of the Periodic Detention of Prisoners Act 1981, the Bail Act 1978 and the Criminal Appeal Act 1912 gives rise to a series of intricate problems when bail is granted pending the determination of an appeal by the Court of Criminal Appeal, that Court makes no special order when it dismisses the appeal and the appellant does not return to serve the balance of his term of periodic detention. It has been necessary for there to be concurrent sittings of the Court of Appeal and the Court of Criminal Appeal to deal with the legal issues. Unfortunately, the course of proceedings is also not free from complexity.

The Factual History

A jury found Mr Wilson guilty of receiving a stolen vehicle. On 31 July 1992 he was sentenced by Judge Bell to 12 months imprisonment to be served by way of periodic detention commencing on 7 August 1992. Mr Wilson claimed that despite the verdict he was not guilty so he lodged an appeal. He also sought leave to appeal against the severity of the sentence.

On 31 August 1992 a judge of the Supreme Court granted Mr Wilson bail pending the determination of his appeal to the Court of Criminal Appeal. Mr Wilson appeared before that court when his appeal was heard and determined on 1 October 1993. The Court of Criminal Appeal dismissed his appeal against conviction and his application for leave to appeal against sentence was withdrawn. That court made the usual order that time served should count. It did not make any order directing the accused to report to the gaol and serve the balance of his periodic detention. There is no record of anything being said to this effect.

It should not be necessary for the Court to say anything. Counsel and the solicitor for an appellant should explain to their client, as part of their duty to him, that, on dismissal of his appeal, he must resume his periodic detention.

The reverse happened. By letter of 18 August 1993 the solicitor wrote to Mr Wilson:

"Please make a time to see (barrister's name) with me about this sentencing business as discussed on the telephone. The twelve months of periodic detention will be up by the time the appeal is heard. It is my understanding that you will not be required to serve it due to the anomaly in the law. I advise that you consider dropping the appeal on the sentencing."

Mr Wilson accepted the advice and did not pursue his sentence appeal. It is plain that the lawyers said nothing to the Court of Criminal Appeal and advised their client that because of the effluxion of time he was no longer required to serve the sentence. An anomaly had existed but it had been cured by reason of the Periodic Detention of Prisoners (Amendment) Act 1992 which commenced on 22 March 1993 and had retrospective effect.

Mr Wilson has sworn that at the hearing of the appeal there was no discussion in court of the fact that he was on bail pending the hearing and that he was not told that he had to return to finish his periodic detention.

After the appeal was dismissed Mr Wilson instructed his solicitor that he wished to appeal further. On 27 October 1993 an application was lodged with the High Court seeking special leave to appeal. According to enquiries made on behalf of Mr Wilson Notice of Discontinuance was filed on 13 July 1994 by Mr Wilson's then solicitor. Mr Wilson has denied that he gave any instructions to discontinue and asserts that he wanted to proceed with his appeal. I interpolate that there is a reference in the papers to the High Court appeal being discontinued on 29 August 1995.

Mr Wilson has said that he was in contact regularly with his solicitor and told her in response to her inquiry that he wanted to proceed with his application to the High Court. He said that he believed that it would take a long time. There is no need to pursue this matter further. Its only relevance is in providing a further reason why the accused did not return to serve the balance of his periodic detention.

In February 1993 Mr Wilson changed his address from 16 The Ridge, Helensburgh to

8 Terrigal Place, Engadine. He did not notify the Governor of the Prison at Malabar of his change of residential address as soon as practicable after it occurred as required by regulation 39(1)(a). Thus he committed an offence against discipline under s.33(1)(d) and was liable on conviction to imprisonment not exceeding twelve months or a fine. It does not appear whether Mr Wilson was ever told that he had to notify any change in his address.

On 14 November 1993 an Asst Supt at the Malabar PDC reported that Mr Wilson had not attended since the dismissal of his appeal and recommended that cancellation action under s.25 should be taken.

On 15 November 1993 the officer in charge, Malabar PDC gave a "First Notice under section 21(5)" to Mr Wilson advising Mr Wilson that he had failed to report for the period 1-3 October 1993 and that the term of his sentence had been extended by one week and by an additional one week as a result of his failure to report. On 17 November 1993 a "Second Notice under section 21(5) was given to Mr Wilson for his failure to report for the period 8-10 October 1993. On 18 November 1993 a "Final Notice under section 21(5) was given to Mr Wilson for his failure to report for the period 15-17 October 1993. Each notice was forwarded to Mr Wilson by pre-paid post at his last known address of 16 The Ridge, Helensburgh.

By a document bearing date 17 November 1993 the Governor, Malabar PDC recommended that an application for cancellation of the Periodic Detention Order be made. It is not clear what happened to this document, if anything.

By letter bearing date 5 December 1994 sent to Mr Wilson's former address the Governor, Malabar PDC advised Mr Wilson that his attendance had reached an unsatisfactory level and as a result court action may be/is now pending against him, that his sentence could be converted into full time custody and that he should re-attend.

No reason for the delay from November 1993 to December 1994 appears from the papers.

It appears that an application for cancellation of periodic detention was lodged with the District Court. There is no copy of it with the papers. On 12 January 1995 the District Court Criminal Registry issued a Notice of Listing appointing Wednesday 15 February 1995 for hearing the application. On 13 January 1995 a copy of the notice was posted to Mr Wilson, 16 The Ridge, Helensburgh, pursuant to regulation 46.

On 15 February 1995 Judge Phelan heard the application ex parte, cancelled the Periodic Detention Order and issued a bench warrant for the arrest of Mr Wilson. His Honour stated that he would not proceed to sentence Mr Wilson in his absence.

According to Mr Wilson he was notified by the police on 4 August 1995 of the warrant for his arrest. He was telephoned by the police on 7 October 1995 and supplied with further details. By arrangement with the police he attended at the police station on

8 August 1995. He was taken before the District Court and granted bail.

On 20 September 1995 Chief Judge Blanch sentenced Mr Wilson to seventeen weeks imprisonment, the judge expressing the view that he had no power to fix a minimum and an additional term, the sentence being less than six months. The judge directed that the sentence date from 8 August 1995, the date of apprehension, and expire on 4 December 1995. As Mr Wilson had been on bail from 8 August 1995 to 20 September 1995, the period to be served in prison full time was just under 11 weeks.

At the hearing the judge was told by the solicitor for the Department of Corrective Services that taking into account the decision of R v. Nolan (Common Law Division, 17 July 1992) the period which Mr Wilson was required to serve was 17 weeks.

Mr Wilson's legal representatives accepted what the Department said.

The solicitor for the department has explained that he inadvertently mis-stated the correct position to the judge because he was unaware that Mr Wilson had been on bail from 31 August 1992 and that because of Nolan he assumed that Mr Wilson was entitled to receive what was in effect, a windfall of 28 weeks for the periods he failed to report between 31 August 1992 and 22 March 1993. That was the date the amendment earlier mentioned came into operation. The solicitor overlooked that the legislation had retrospective operation.

The Parties' Present Positions

The department has applied to the District Court under s.24 of the Criminal Procedure Act 1986 to re-open the proceedings and impose what it contends is the correct sentence. That application has been stood over part heard pending the outcome of these proceedings. In the solicitor's affidavit it was said that the sentence which the court was obliged in law to impose on Mr Wilson was 41 weeks full time imprisonment calculated as follows:

(a) the original sentence was 52 weeks;

(b) 1 week must be subtracted because he served one period of periodic detention on 7 August 1992 (the CCA ordered time served to count);

(c) a further 3 weeks must be subtracted for public holidays, namely 24 December 1993, 1 April 1994 and 23 December 1994; (The Court was told that this is departmental policy)

(d) a further 3 weeks must be subtracted because the Department of Corrective Services has credited the respondent with 3 weeks for the detention periods commencing on 14 August 1992, 21 August 1992 and 28 August 1992, respectively; (the Court was told that it is departmental policy to allow such a credit where the department gives that credit incorrectly)

(e) a further 6 weeks is subtracted by virtue of s.29(1) and s.29(2) of the PD Act because the respondent was taken into full-time custody on 20 September 1995 and released on appeals bail on 31 October 1995.

(f) 2 weeks must be added as penalty periods by virtue of ss.21(2) and (3) of the PD Act.

The Departmental practice as to Christmas and Easter is based in the Periodic Detention of Prisoners Act 1981 in the definition in s.4 of `detention period'. This does not include the whole or any part of Christmas Day, Good Friday or Easter Sunday.

The Department seeks the dismissal of the application of Mr Wilson so that it can return to the District Court and have Chief Judge Blanch impose the sentence of 41 weeks.

Mr Wilson seeks in essence, on one approach, to have the sentence of periodic detention imposed upon him revived and to be given credit for at least 24 weekends made up as follows:

(a) 1 weekend actually served in early August 1992;

(b) 21 weekends being the equivalent of 42 days full time custody;

(c) 2 weekends being the Christmas and Easter weekends.

On this basis Mr Wilson would have a further 28 weekends to serve by periodic detention. Mr Wilson raised whether he should be given credit for weekends erroneously credited to him by the Department but the court indicated that such an approach as well as an approach based on Nolan was not attractive, such credits being undeserved and unwarranted.

The applications which we have to consider are:

(1) Application to the Court of Criminal Appeal for leave to appeal against the sentence of 17 weeks imposed by Chief Judge Blanch;

(2) Application to the Court of Criminal Appeal for leave to appeal out of time against the original sentence imposed by Judge Bell;

(3) Application to the Court of Appeal to quash the order of Judge Phelan cancelling the order of periodic detention.

The various notices and applications filed did not make it clear that Mr Wilson was seeking leave to appeal out of time against the sentence imposed by Judge Bell. This Court permitted Mr Wilson to make that application. While Mr Wilson was ready to proceed the Department claimed that it and the Crown were not able to deal with the appeal against Judge Bell's sentence and required an adjournment. No arrangements had been made by the Department with the Crown.

It is well established that there is no appeal to the Court of Criminal Appeal against the order of a District Court judge cancelling a periodic detention order.

There is however a limited appeal against the subsequent Court order imposing a sentence. In considering that appeal it is legitimate for the court to have regard to all the circumstances leading up to that appeal including the cancellation of the periodic detention order.

Application To Court Of Appeal

It is convenient to take first the application to the Court of Appeal to quash the order made by Judge Phelan cancelling the periodic detention order. Mr Wilson contends that the sentence of periodic detention was stayed or suspended by the grant of bail and did not become operative until the Court of Criminal Appeal made an order requiring Mr Wilson to resume attendance at a Periodic Detention Centre on a specific date.

The Statutory Background

Section 5(1) of the Periodic Detention of Prisoners Act enables the sentencing court to order that the person sentenced serve the sentence by way of periodic detention.

Section 6 provides that as soon as practicable after a court has made an order for periodic detention the person shall be committed to prison by warrant under the hand of a justice. Under s.7 the justice must cause to be served a notice of the date, time and place the person is first to report to prison including the day of the week on which the prisoner is thereafter to report. Section 8 provides that a sentence of imprisonment to be served by way of periodic detention shall commence on the date specified in the order of the court imposing the sentence as the date on which the sentence shall commence. Section 9(1) provides that the periodic detainee shall serve his sentence by way of periodic detention in accordance with the Act. Section 9(2) requires the detainee to first report as specified in the notice and thereafter during the sentence on the day specified in the notice. Section 9(2) ceases to apply where a cancellation order is made.

Section 5(1)(c) of the Criminal Appeal Act provides for an appeal against sentence with the leave of the Court of Criminal Appeal.

Section 6 of the Bail Act provides that bail may be granted in respect of the period between the lodging of an appeal and its determination. "Bail" by s.4, means the authorisation to be at liberty under the Bail Act instead of in custody. Thus when the appeal is determined adversely there is no longer any authorisation to be at liberty upon the days appointed for periodic detention.

At the relevant time s.18(3) of the Criminal Appeal Act, 1912 provided:

"The time during which an appellant, pending the determination of the appellant's appeal, is at liberty on bail, and (subject to any directions which the court may give to the contrary on any appeal), the time during which an appellant, if in custody, is specially treated as an appellant under this section, shall not count as part of any term of imprisonment or penal servitude under the appellant's sentence. Any imprisonment or penal servitude under such sentence, whether it is the sentence passed by the court of trial or the sentence passed by the court shall, subject to any directions which the court may give as aforesaid, be deemed to be resumed or to begin to run, as the case requires, if the appellant is in custody, as from the day on which the appeal is determined, and if the appellant is not in custody as from the day on which the appellant is received into prison, under the sentence."

Mr Wilson was not in gaol when the appeal was determined. Nor would it have been permissible to take him into gaol (custody) on the dismissal of his appeal. On any view he was not required to report to the Periodic Detention Centre until 7 pm on the day on which his appeal was dismissed. Section 18(3), when it refers to custody, is not speaking of the custody of the court but gaol.

Section 18(3) deals with the position of an appellant pending the determination of his appeal. The time during which he is at liberty on bail is not to count as part of his term of imprisonment or penal servitude. Where he is in custody it is provided that the sentence is deemed to resume as from the day the appeal is determined subject to any directions which the court may give. It was the almost invariable practice of the court to direct that time served should count. As to those on bail the section recognised that there may be some delay on the part of those who had been on bail returning to prison even though their authorisation to be at liberty under the Bail Act had come to an end. Thus it was provided that the sentence be deemed to be resumed from the day on which the appellant is received into prison. If it were not for this provision the appellant would receive the benefit of the sentence resuming or running as from the determination of the appeal even though he had not returned to prison. One object of the provision was to ensure that an appellant did not receive an undeserved credit because he was on bail or, on the expiry of bail, because there was some delay in his returning to prison.

Section 18(3) does not deal with the expiry of bail. That follows as a result of the provisions of the Bail Act.

In Whan v. McConaghy [1984] HCA 22; 153 CLR 631 at 636 in the joint judgment of Mason, Murphy, Wilson and Deane JJ it is stated that the specification of a commencing date does not itself form part of the sentence. At 638 their Honours said:

"Notwithstanding that, in its modern garb, bail may operate more as a form of conditional liberty than as form of alternative custody (as it used to do when the bailed person was given over into the custody of his sureties), and thereby assume a character more akin in effect to a stay of execution of an order, it does not of itself interfere with the operation of the order: R. v. Brooke [1788] EngR 57; (1788) 2 T.R. 190, at p.196 [1788] EngR 57; [100 E.R. 103,at p.106]. A stay of execution as its name implies, operates directly on the judgment or order the subject of the stay. Bail, in the absence of the exercise of any associated or supplementary powers that may be available, merely authorizes the accused person to be at liberty notwithstanding the operation of the sentence."

This earlier passage at 635-36 should also be recalled:

"A sentence of imprisonment, like any other court order, must operate in accordance with its terms as interpreted in the context of any statutory provisions pursuant to which it is imposed or framed. If the sentence does not itself direct that the term of imprisonment which the offender is ordered to serve be a period commencing on a particular day or if overriding statutory provisions do not have that effect, the term of imprisonment will ordinarily commence when the offender is taken into custody and begins to serve it. The framing of the sentence or the effect of overriding statutory provision can however, intentionally or inadvertently, be such that the imprisonment to which an offender is sentenced is imprisonment during a period which is identified by reference to a nominated specific commencing date. In such a case, if the offender fails to serve the term of imprisonment imposed, he may be guilty of some further offence (see, e.g., Periodic Detention of Prisoners Act, s.33). In the absence of statutory provision or valid court order to the contrary however, the term or period during which the offender is sentenced to be imprisoned will commence on the designated day."

My consideration of the operation of the three Acts leads to the following conclusions:

(a) The sentence of 12 months periodic detention commenced on Friday 7 August 1992. Thereafter, under s.9(2) of the Periodic Detention of Prisoners Act

Mr Wilson had an obligation to report to the PDC each Friday and stay there until 4.30 pm on Sunday;

(b) On a judge granting bail on 31 August the sentence was in effect stayed and Mr Wilson was authorised to be at liberty under the Bail Act (Whan v. McConaghy at 634 and s.6 of Bail Act). He did not have to report to prison while bail subsisted.

(c) Upon the determination of Mr Wilson's appeal by the Court of Criminal Appeal bail ceased and the "stay" ceased to operate;

(d) Thereafter, the statutory obligation to report pursuant to s.9(2) of the Periodic Detention of Prisoner's Act resumed and Mr Wilson was required to continue to report.

(e) This Court (comprising the Chief Justice, Finlay and Campbell JJ) did not err in not making any order that Mr Wilson was to further attend on a nominated day to resume serving his periodic detention.

The correct procedures are important as the liberty of the subject is involved. However, no encouragement should be given to adopt the methods used in the earlier proceedings before the Court of Criminal Appeal. I appreciate that Mr Wilson was acting on advice.

As Mr Wilson did not attend, after the dismissal of his appeal, to serve his periodic detention I am of the opinion that Judge Phelan was entitled to make a cancellation order. There is no basis for granting relief in the nature of prohibition or certiorari.

Application to the Court of Criminal Appeal

In R v. Sommerville (1995) 36 NSWLR 184 the Chief Justice and Barr AJ held that the Court of Criminal Appeal has no jurisdiction to hear an appeal from a decision of a District Court judge cancelling an order for periodic detention. The Periodic Detention of Prisoners Act conferred no right of appeal and a cancellation order was not a sentence within s.5(1)(c) of the Criminal Appeal Act. (That includes the extended definition of "sentence" under s.2 of that Act).

The Chief Justice further held that because s.27(1)(c) deems the unexpired portion of the original sentence to be a separate term of imprisonment imposed at the time of the cancellation then some limited appellate consequences flow. The Chief Justice could not accept the view (advanced by Simpson J in that case) that the term of imprisonment referred to in s.27(1)(c) is deemed to be imposed by the original sentencing judge. Nor can I.

The Chief Justice pointed out that questions may arise whether the judge was correct in deciding to set or not to set minimum and additional terms and the length of the terms which he set. These may be dealt with by the Court of Criminal Appeal.

This case exposes a further difficulty. Because Mr Wilson was not before the court at the time of cancellation of the periodic detention order the judge declined (and wisely so) to sentence the prisoner in his absence. The judge had nothing before him which would enable him to decide whether there should be a minimum term and an additional term and, if so, the length of each.

Section 27(3) provides inter alia, that if an order for periodic detention is cancelled under s.25 the person in respect of whom the order was made must serve any unexpired portion of the sentence to which the order applied by way of full time imprisonment (subject to any parole order made under s.27(4)). Section 27(4) enables the court to set minimum and additional terms if it thinks fit and make a parole order. When the detainee is not present in court on the hearing of the application to cancel the Periodic Detention Order it is virtually impossible to deal with whether leave of absence or an exemption should be granted or the components of a sentence or the making of a parole order. There are two practical alternative courses which the judge can pursue when the detainee is not present. The first course is for the judge to adjourn the hearing and order the arrest of the detainee. When the detainee is arrested and brought before the court the judge hears all aspects of the matter including whether leave of absence or an exemption should be granted. He would also decide whether to cancel the periodic detention order, whether to set a minimum and an additional term and whether to make a parole order.

The alternative course on the non-appearance of the detainee on the application to cancel the order is to cancel the periodic detention order and issue or cause to be issued a warrant for the arrest of the detainee and adjourn the hearing of the sentence matters under s.27(4). Judge Phelan chose this latter course. That course reduces to some extent the courses open to the judge and raises the problem whether he can subsequently vacate a cancellation order made previously. What would be the position if the detainee was able to establish that although he had remained at his nominated residence he had not received any of the notices under s.21(5) or the Notice of Listing? Service by post often gives rise to problems. Mishaps with mail do occur. What would happen if the detainee had been in hospital or for other good reason (e.g., transport break down or strike) could not attend as required?

Where the course followed by Judge Phelan is taken there is no difficulty with another Judge dealing with the sentencing aspect. The Department did not object to another judge dealing with the sentencing aspect.

The Department by its counsel, indicated that it accepted that if the same judge dealt with the cancellation aspect and the sentencing aspect he could take into account all the circumstances leading up to and surrounding the cancellation. However, the Department submitted that if one judge made a cancellation order and a second judge dealt with the sentencing aspect the second judge could not have regard to the circumstances leading up to and surrounding the cancellation. Counsel observed that this was anomalous. He submitted that this would be the case even where the first judge died, retired, became ill or was unavailable.

The language of the statute does not require such a result which would in my view be unfair. The fact that a second judge is dealing with the sentencing aspect should not disadvantage Mr Wilson. When dealing with the liberty of the subject, unfair procedures and results are usually not embraced unless the language of the statute is clear and there is no other construction which is reasonably open. That is not the present case. I am unable to accept the Department's submission on this point.

Absent any finding that leave of absence or an exemption should be granted, the judge dealing with the sentencing aspect considers all the circumstances in deciding whether to fix minimum and additional terms and the length of each. There may be special circumstances requiring a longer than usual additional term. This is a limited jurisdiction.

If the view had been taken that the one judge had to deal with both aspects this would lead to setting aside Chief Judge Blanch's sentence and remitting the matter to Judge Phelan to deal with both aspects of the matter.

In Sommerville at 188 the Chief Justice held that the cancellation of a periodic detention order and the making or refusal of an order under s.27(4) did not quash or expunge the original sentence which itself remains subject to appeal or potential appeal in the ordinary way. The reasons given for that view are compelling. The Chief Justice also observed:

"I would construe s.27(1)(c) as having its deeming effect only to the extent necessary to achieve the statutory purpose that is, the ordering of the practical consequences of cancellation, including any appellate rights involving complaint about the making of the cancellation and the making or refusal of a s.27(4) discretion."

A troubling situation arises where a District Court Judge wrongly cancels a periodic detention order made by himself or another judge. The error may be one of fact or law. In some cases the error may be able to be corrected by orders in the nature of prohibition or certiorari and possibly even mandamus. In other cases the error may not be able to be so corrected. An appeal against the separate sentence is of limited use because that only enables a minimum and an additional term to be fixed.

As earlier foreshadowed a difficult situation arises where a judge cancels a periodic detention order ex parte based on documents served by post which never came to the notice of the detainee. The judge may even attempt to sentence the detainee in his absence. The detainee may be in hospital or trapped in another place by circumstances beyond his control. When the true facts emerge can the judge revoke his cancellation order? As that point was not argued and there is room for substantial argument I am reluctant to express any opinion upon it.

The problems mentioned point to the practical undesirability of making a cancellation order in the absence of the detainee except where the materials disclose that the reasons why he has not attended are insufficient. Usually, the better course will be to issue a warrant for the detainee's arrest.

As earlier mentioned, the original sentence remains subject to appeal or potential appeal in the ordinary way. An extension of time in which to appeal or to seek leave to appeal may be granted.

Usually the question which arises on an application for leave to appeal centres on whether the sentencing judge has made an error. However, in Sommerville the court pointed out that there were exceptional cases in which leave should be given by reason of what had happened following the original sentencing amounting to a miscarriage of justice.

I am of the opinion that there is material which is capable of sustaining the conclusion that the events subsequent to the imposition of the sentence have in their totality resulted in a miscarriage of justice.

Mr Wilson was wrongly advised by his solicitors as to his position and as a result did not attend at Malabar PDC after the dismissal of his appeal against conviction. He did not receive any of the warning notices under s.21(5). This was due to his failure to notify his change of address. His solicitor had his new address. On his version his solicitor wrongly withdrew his application to the High Court for special leave to appeal. The Notice of Listing went to his old address.

When the sentencing aspect came before Chief Judge Blanch he was supplied with wrong information as to the period to be served. Now there is an application by the Department to increase the sentence. A limited appeal will lie from that sentence.

The time appears to have come to hear an appeal against the original sentence, finalise the whole matter and put a stop to any further applications.

However, before taking any such step I would invite the Crown to put its submissions. Counsel who appeared for the Department stressed that he did not have instructions to appear for the Director of Public Prosecutions. Counsel did have instructions to appear amicus curiae. I was a little surprised by the approach of counsel for the Department. I would have expected arrangements to have been made by the Department with the Crown at least during the lunch-hour (if not before) for one counsel to appear and deal with all aspects. This has previously happened. Unfortunately, it will have the effect of increasing the costs burden of the applicant. In the circumstances the matter should proceed by way of written submissions subject to either party requesting an opportunity to speak orally to the submissions.

If the original sentence does not stand, the cancellation order and the consequent sentence cannot be supported. It is thus important that the appeal against the original sentence be dealt with and determined before any other orders are made.

I have not found it necessary to consider the validity of the notice which was first given to Mr Wilson. As Mr Wilson was on bail up to and including 1 October 1993 and the law usually does not deal in parts of a day I have considerable reservations whether Mr Wilson was bound to report to the Malabar PDC on 1 October 1993. The point was not argued and it may not lead anywhere.

Law Reform

Periodic Detention is a valuable part of the sentencing alternatives available to a court. It has an important role to play when dealing with first offenders, those who have had only minor prior offences and those cases where a bond would be inadequate but a full time custodial sentence may not be necessary. It is also useful where there are pressing family and health considerations.

With a system that is relatively new, practical experience, as might be expected, has revealed a number of problems .

It is critical that sentences of periodic detention be served and not avoided. I note that extensive amendments to the Act have recently been made to this end.

In practice the term specified by way of periodic detention is often longer than the term which would be set if full time custody was to be served. A sentence of 2 years periodic detention may be imposed to ensure that there is sufficient punishment. If a full time gaol sentence was imposed it may be for 9 or 12 months. The legislation with its automatic conversion of periodic detention into full time custody for the balance of the term, does not sufficiently recognise this. The problem could be overcome readily by the judge indicating at the time he imposes periodic detention what full time custodial sentence would be appropriate if there were no periodic detention. Credits would have to be given for any periodic detention served. There would also have to be heavy penalties for defaulting. These have recently been introduced.

In the cases which have come before this court it has appeared, on occasions, that some applicants have not realised that unless and until bail is granted they must serve their periodic detention. As this case illustrates, some appellants do not understand that if their application for leave to appeal is refused or their appeal is dismissed they must resume serving their periodic detention. Some detainees do not realise they must advise of any change of address.

It is highly desirable, if it does not happen already that, upon persons being sentenced to periodic detention they be given a pamphlet explaining their obligations in succinct and simple terms and that their obligations be pointed out to them by their legal advisers. The persons sentenced should be required to acknowledge in writing their understanding of their obligations.

The Position of Legal Practitioners

It has been the sad experience of the Court that many legal advisers of applicants and appellants do not understand the correct position as to periodic detention. Some have given advice which is blatantly wrong. They have not advised clients of the need to serve periodic detention unless and until bail is granted and their need to resume serving periodic detention if the application of leave to appeal or the appeal is unsuccessful in whole or in part.

Any failure to advise fully and accurately may well have serious civil and disciplinary consequences. A legal adviser would face an action for damages for professional negligence if he did not warn and fully advise the client as to his obligations to serve periodic detention and, as a result, the client was arrested and had to serve a full time custodial sentence. The damages could be quite high.

This is an area which requires the urgent attention of all legal practitioners who act for clients in criminal proceedings.

Orders

I propose the following orders in the Court of Criminal Appeal proceedings:

1 (a) Stand over for further argument the application for leave to appeal, and any appeal consequent upon leave, against the sentence imposed by Judge Bell;

(b) Direct that the applicant deliver written submissions on sentence within 7 days, the Crown deliver written submissions on sentence within a further 7 days and that the applicant lodge any reply within a further 4 days;

(c) Direct that there be no further oral hearing unless this is requested by either party within 4 days of the close of the written submissions;

2. Reserve all other issues for determination pending determination of the application for leave to appeal against the sentence of Judge Bell.

JAMES J: I agree with the judgment of Smart J.

WILSON v. REGINA

WILSON v. DEPARTMENT OF CORRECTIVE SERVICES

60650/95

4 April 1997

COURT OF CRIMINAL APPEAL

HUNT CJ AT CL, SMART J, JAMES J

CATCHWORDS: SENTENCING - RECEIVING STOLEN MOTOR VEHICLE - EXCEPTIONAL CIRCUMSTANCES AFTER SENTENCING AMOUNTING TO MISCARRIAGE OF JUSTICE - R. v. SOMMERVILLE.

EX TEMPORE/RESERVED: Reserved

ALLOWED/DISMISSED: Allowed.

JUDGMENT

HUNT CJ at CL: I agree with the orders proposed by Smart J, for the reasons which he has given.

SMART J: Consequent upon the judgments of 12 February 1997 both the applicant and the Crown have made written submissions as to the sentence which should be imposed on him. Neither has sought a further oral hearing.

The applicant was convicted after a jury trial of having received a stolen motor vehicle between 7 January 1987 when it was stolen and 10 May 1990 when it was found in his possession. A Ford Fairlane was stolen from the Department of Health. The applicant had bought a similar vehicle from the same dealer about the same time. Subsequently, the applicant's vehicle suffered considerable damage but the engine and the transmission remained serviceable. The applicant had these removed and placed in the other Fairlane which had come into his possession, the engine in the stolen vehicle needing repair. He attempted to change the chassis number on the stolen vehicle to match the number of his own engine. This nearly succeeded. It failed because of a mistake made by his friend in transposing the number. Judge Bell described the scheme as "pre-meditated and quite sophisticated". The applicant intended the vehicle for his own use and not to sell it.

At the time of sentencing on 31 July 1992 the applicant was 37 and had no previous convictions. He told the police that he had been a party to a fraud on the liquidator of one of his own companies, changing the number of a company car so that he could continue to use it and defeat the liquidator's claim. He was married with a dependent family. He had started a new business and was working very long hours.

The sentence was, at the time of its imposition, correct. It recognised the serious objective criminality and the favourable subjective features. The Crown accepted that, having regard to the sorry history of the matter since then, it did fall within a class of case described by Gleeson CJ in R v. Sommerville (1995) 36 NSWLR 184 at 189 as "one of those exceptional cases in which by reason of a combination of circumstances following the original sentencing there can be seen to have been miscarriage of justice". The Crown did not oppose the application for leave to appeal out of time; this was a matter for the Court. The Crown took the view that if such leave were granted there should be some adjustment of the original sentence imposed by Judge Bell.

This Court has been provided with a reference by the company which "employs" the applicant as " a owner/driver contractor". This reference speaks highly of his work and his application. The pre-sentence report of 31 July 1992 assessed the applicant as suitable for community service.

As pointed out in the earlier reasons, the applicant has served 42 days in continuous full time custody and one weekend in custody. He is entitled to credits for Christmas and Easter. In the normal course, subject to satisfactory conduct, a person serving periodic detention would not serve much more than about 35-36 days in prison out of a sentence of 12 months periodic detention. The rest of the sentence would be served on various projects outside prison but under supervision.

Notwithstanding that the applicant has not been convicted of any offences since 31 July 1992 and appears to have worked hard and been a good family man, the gravity of the criminal conduct involved in the receiving does not permit the imposition of a recognisance.

Taking into account the periods already spent in custody and the unfortunate history of this matter, including the delay, the correct sentence is one which will require the applicant to serve 400 hours community service.

Accordingly I propose:

1(a) Leave to appeal against the sentence imposed by Judge H H Bell on 31 July 1992;

(b) Appeal against the sentence imposed by Judge H H Bell allowed;

(c) In lieu of the sentence imposed by Judge H H Bell, remit to a single judge of this Court pursuant to s.12(2) of the Criminal Appeal Act 1912 to finalise the terms of a Community Service Order requiring 400 hours community service; in the event of any difficulty arising as to such an order the matter to be referred back to this Court;

(d) Direct that the matter be dealt with by a single judge on 17 April 1995 at 9.30 am or at such other time as may be appointed by a single judge;

2(a) Leave to appeal from the sentence imposed by Chief Judge Blanch on 20 September 1995;

(b) Appeal allowed. Sentence quashed.

JAMES J: I also agree.