REGINA v. BUTCHER

GREG JAMES, J: Following the judgment in this matter of the 17 May 2001, application under s.43 of the Crimes (Sentencing Procedure) Act 1999 has been jointly made by the appellant and the Crown.

Paragraph two of the judgment of 17 May 2001 wrongly referred to the applicant pleading guilty to three charges under the Drugs Misuse & Trafficking Act 1985, whereas, the applicant had pleaded guilty to four charges as the balance of the paragraph made plain. The word "three" in line one of paragraph two should be amended to read "four".

In consequence, some degree of confusion occurred later in the judgment and, in particular, at paragraph 68. That paragraph reads:- "I would deem it inappropriate to impose a non-parole period in respect of the sentence on count one in consequence of the non-parole period being imposed on the sentence imposed on count four. All sentences should date from 21 May 1999 and be served concurrently."

As submitted by both counsel for the applicant and senior counsel for the Crown, that paragraph wrongly creates the impression that no non-parole period was to be fixed in relation to count one. It should be amended to provide that no variation occur rather than no imposition.

Paragraph 68 should read:- "I would deem it inappropriate to vary the non-parole period in respect of the sentence on count one. All sentences should date from 21 May 1999 and be served concurrently."

It is also necessary to amend the orders to ensure that all matters raised in the judgment are disposed of. In accordance with the application, I would propose that the orders should read:- (a) Leave to appeal granted; appeal allowed on counts one and four; sentences on those counts quashed. (b) In lieu of the sentences imposed on count one the applicant is sentenced to four years imprisonment to commence 21 May 1999, with a non-parole period of two years commencing on that day and ending on 20 May 2001. (c) In lieu of the sentences imposed on count four, the applicant is sentenced to five years imprisonment to commence 21 May 1999, with a non-parole period of three years commencing on that day and ending on 20 May 2002. (d) Appeal on counts two and three dismissed.

The judgment should therefore be re-opened pursuant to s.43(2)(b) Crimes (Sentencing Procedure) Act 1999 and amended as I have proposed.

SMART, AJ: I agree.