Citation: Regina v Sorensen [1999] NSWCCA 79
Court: NSW Court of Criminal Appeal
Date: 12 April 1999
Judge(s): Grove J, Kirby J
Background
The appellant had been convicted of receiving stolen property and two counts of armed robbery, with a related offence of being conveyed in a stolen vehicle taken into account. The armed robberies involved the appellant using a knife to hold up two video stores, each operated by a woman, between April and September 1996. Before sentencing, the appellant spent approximately nine months and one week in pre-sentence custody awaiting trial.
By the time the matter came before the District Court for sentencing in July 1998, the appellant was already serving a separate, unrelated sentence imposed in the Local Court earlier that year, which was not due to expire until 11 October 1998. The sentencing judge imposed a four-year term structured as a three-year fixed term with a one-year additional term.
The appellant appeared in person before the Court of Criminal Appeal. He did not contest the severity of the sentence itself. His sole complaint was that the sentencing judge had failed to give him proper credit for the nine months and one week he had spent in pre-sentence custody.
Legal Issues
- Whether the sentencing judge gave adequate credit for the appellant's pre-sentence custody period of approximately nine months and one week.
- Whether the method chosen by the sentencing judge to reflect that credit, backdating the commencement of the sentence rather than discounting from the sentence expiry date, was erroneous.
Decision
Kirby J, with Grove J agreeing, reviewed the sentencing judge's remarks carefully. His Honour had expressly acknowledged on more than one occasion that the appellant was entitled to credit for the pre-sentence custody period.
Rather than commencing the sentence at the expiry of the unrelated sentence (11 October 1998) and then discounting by nine months and one week, the sentencing judge backdated the commencement date to 11 December 1997, the date the appellant entered full-time custody on the unrelated matters. The Court of Criminal Appeal read this approach as a practical means of capturing and rounding up the pre-sentence credit to the appellant's benefit.
The Court acknowledged that the sentencing judge could have structured the sentence differently, for example by starting the clock at the expiry of the existing sentence and then applying an explicit discount. However, it found no error in the approach actually taken, noting that the outcome was at least as favourable to the appellant as the alternative method would have been.
Orders Made
- Leave to appeal refused.
- Appeal dismissed.
Key Takeaways
- The Court of Criminal Appeal confirmed that a sentencing court is not confined to one particular method of giving effect to pre-sentence custody credit, provided the credit is genuinely reflected in the final sentence.
- Backdating the commencement of a new sentence, rather than discounting from a future expiry date, can be a valid and permissible mechanism for acknowledging time already served awaiting trial.
- No error arises from choosing a particular sentencing structure if the effect of that structure is at least as beneficial to the offender as any other available approach would have been.
- In dismissing the appeal, the Court emphasised that the sentencing judge had expressly recognised the entitlement to credit and had structured the sentence in a way that rounded the credit in the appellant's favour.
- An appellant who does not challenge the quantum of a sentence, but only the mechanical method by which credit was calculated, must demonstrate that the method actually adopted produced a less favourable outcome than the correct method would have.
Legislation and Cases Referenced
No legislation or cases were cited in the provided text or metadata.