Citation: [2000] NSWCCA 557
Court: Court of Criminal Appeal, New South Wales
Date: 6 December 2000
Judge(s): Meagher JA, Hidden J
Background
The appellant pleaded guilty to conspiracy to commit larceny arising from events in September 1998. He had originally faced the more serious charge of conspiracy to commit robbery in company, but the Crown accepted the lesser plea in full satisfaction of the indictment. The sentencing judge in the District Court imposed three years imprisonment with a non-parole period of 20 months, commencing 14 March 2000.
The appellant had been taken into custody on 17 September 1998, when bail was refused. During that pre-sentence custody, the Parole Board revoked his parole on an earlier armed robbery sentence (originally imposed in 1992), and he served the balance of that earlier sentence until 21 November 1999. From that date until sentencing on 15 June 2000, his custody related solely to the current offence.
The sole ground of appeal was that the sentencing judge failed to give proper credit for approximately 14 months of pre-sentence custody, which the appellant argued was attributable to having been charged with a more serious offence than the one to which he ultimately pleaded guilty.
Legal Issues
- To what extent should a non-parole period be backdated to account for pre-sentence custody where that custody is partly the result of a parole revocation on an earlier conviction?
- Whether the sentencing judge erred in principle in setting the commencement date of the sentence at 14 March 2000.
- Whether the Crown's delay in bringing proceedings to trial, arising from negotiations over which charge the appellant would plead guilty to, should affect the outcome of the sentence appeal.
Decision
The Court found no error in the sentencing judge's approach. Her Honour had been fully aware of the complexity of the pre-sentence custody period, recognising that some of it resulted from the current charge and some from the revocation of parole on earlier matters. She elected to backdate the non-parole period to partially, but not fully, reflect that pre-sentence custody, exercising a discretion the Court of Criminal Appeal found to be within proper bounds.
The Court drew on the principle articulated in R v Andrews (1993) that revoking parole does not amount to punishing an offender twice for the same offence. Parole is revoked because the further offending demonstrates that the offender could not adapt to lawful community life and was therefore no longer entitled to the benefit of parole on the earlier sentence. The new sentence then addresses the further offence itself. Meagher JA held that this reasoning applied squarely to the facts before the Court.
On the second argument, the appellant's counsel submitted that Crown negotiations had effectively stalled proceedings, and that the Crown could have brought the trial on sooner had it chosen to act on the disclosed plea position. The Court rejected this. Meagher JA accepted that the parties had exchanged views about the plea, but found no firm agreement had been reached. Had a real arrangement been made, it would have been addressed expressly before the sentencing judge, and it was not.
Orders Made
- Leave to appeal granted.
- Appeal dismissed.
Key Takeaways
- Determining how far back to date a non-parole period, where pre-sentence custody is mixed between current and earlier offences, is a discretionary sentencing exercise, and an appellate court will not intervene unless a clear error in principle is shown.
- The Court of Criminal Appeal confirmed that revoking parole when a further offence is committed does not constitute double punishment. Parole revocation reflects the loss of a privilege previously granted; the new sentence addresses the new offending.
- Where pre-sentence custody arises partly from parole revocation and partly from remand on the current charge, a sentencing court is not required to backdate the non-parole period by the full period of custody. Partial backdating may properly reflect both considerations.
- Informal negotiations between Crown and defence about which charges would attract a guilty plea do not, without more, create binding arrangements capable of affecting the sentence outcome on appeal.
- No error was established in the sentencing judge's reasoning merely because another judge might have arrived at a marginally different commencement date for the non-parole period.
Legislation and Cases Referenced
Cases Cited:
- R v Eric John Andrews (unreported, NSW Court of Criminal Appeal, 28 April 1993) (per Hunt CJ at CL)
Legislation: No specific legislation was cited in the judgment.