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Court of Criminal Appeal 6 December 2000

Regina v Douihi

[2000] NSWCCA 521

Fraud & dishonestyTheft & property
SENTENCE ALLOWANCE FOR PRE SENTENCE CUSTODY

Citation: Regina v Douihi [2000] NSWCCA 521
Court: NSW Court of Criminal Appeal
Date: 6 December 2000
Judge(s): Hidden J, Howie J

Background

The appellant pleaded guilty in the District Court to charges including stealing cheques, using false instruments, and obtaining a financial benefit by deception. The deception offences arose from an elaborate scheme in which the appellant posed as a wealthy American diplomat and financier, inducing a motel proprietor to allow him to accumulate an unpaid accommodation bill of over $19,000 and to lend him a further $13,000. The cheque offences involved stolen cheque books used to obtain approximately $19,000 through third-party bank accounts.

Acting Judge Ford sentenced the appellant to a total sentence of 3 years and 6 months imprisonment, with a non-parole period of 18 months, backdated to commence on 18 July 1999. The appellant, appearing unrepresented, sought leave to appeal on the ground that the sentencing judge had failed to adequately account for the full period of pre-sentence custody he had served.

The appellant had a prior record for dishonesty offences and had been on a good behaviour bond for similar offences at the time he committed the conduct before the court. He had also absconded while on bail, travelled overseas, and was eventually rearrested on his return to Australia.

  • Whether the sentencing judge adequately accounted for the total period of pre-sentence custody the appellant had served.
  • Whether pre-sentence custody must be reflected in both the non-parole period and the head sentence, or whether it is sufficient to account for it only in the non-parole period.

Decision

The Court of Criminal Appeal accepted that the sentencing judge intended to account for the appellant's pre-sentence custody, but found that his Honour had done so only in fixing the non-parole period rather than also reducing the total (head) sentence. This constituted legal error. Under the Crimes (Sentencing Procedure) Act 1999, a sentencing court specifies a total sentence together with a non-parole period, and pre-sentence custody must be reflected in both components, not just one.

Howie J noted that the sentencing judge had initially appeared to conceive of the sentence in terms of a minimum term and an additional term, an approach that would have correctly distributed the pre-sentence custody adjustment across the whole sentence. When his Honour transposed that approach into the framework required by the Crimes (Sentencing Procedure) Act, the effect of the pre-sentence custody was confined only to the non-parole period, leaving the head sentence unreduced.

The Court was otherwise satisfied that the sentences were, if anything, lenient given the appellant's criminal history and the fact that he was on a good behaviour bond when he offended. The non-parole period was described as verging on inadequate and was left undisturbed. The only correction warranted was a reduction of two months to the head sentence for the obtaining by deception offence, reflecting the proper apportionment of the pre-sentence custody credit.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed in respect of the sentence on the second indictment (obtaining a financial benefit by deception).
  • Sentence for that offence quashed and replaced with 3 years and 4 months imprisonment.
  • Non-parole period of 18 months retained, commencing 18 July 1999 and expiring 17 January 2001.

Key Takeaways

  • Pre-sentence custody must be reflected in a reduction to the total (head) sentence, not solely in the fixing of the non-parole period; confining the adjustment to the non-parole period alone constitutes a sentencing error.
  • A reduction in the head sentence is never purely theoretical: it can have practical significance if an offender is later required to serve the balance of a parole period, and it reduces the overall duration of parole restrictions.
  • Under the Crimes (Sentencing Procedure) Act 1999, the structure of total sentence plus non-parole period requires courts to ensure that pre-sentence custody credit is properly distributed across both components.
  • In dismissing the balance of the appeal, the Court confirmed that the non-parole period and other sentences imposed were otherwise within the appropriate range given the appellant's history, including a current good behaviour bond for similar offending at the time the offences were committed.
  • The Court of Criminal Appeal will correct a mechanical sentencing error of this kind even where the overall sentences are otherwise regarded as lenient.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 300(1), 178BA
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 32

Cases: None cited in the judgment text.