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Court of Criminal Appeal 20 June 2001

Regina v Pyrda

[2001] NSWCCA 230

Theft & property
CRIMINAL LAW AND PROCEDURE BACKDATE SENTENCE APPEAL

Citation: Regina v Pyrda [2001] NSWCCA 230
Court: Court of Criminal Appeal, New South Wales
Date: 20 June 2001
Judge(s): Howie J; Smart AJ

Background

The applicant pleaded guilty before a magistrate to three charges of break, enter and steal under s 112 of the Crimes Act 1900, all arising from a single incident on the night of 30-31 December 1999 when he entered a group of professional rooms and stole a total of $410. He was committed to the District Court for sentence, where he maintained his guilty plea.

Judge Puckeridge DCJ imposed a sentence of three years' imprisonment with a non-parole period of 16 months, commencing from the date of sentencing (14 December 2000). Eight additional matters were taken into account on a Form 1. The applicant had been in continuous custody solely on account of these offences from 22 September 2000, following a re-arrest for unrelated matters that resulted in bail being refused.

The applicant sought leave to appeal on the single ground that the sentencing judge erred by failing to backdate the sentence to the date he first entered custody in connection with these offences.

  • Whether the sentencing judge erred by declining to backdate the sentence to the commencement of the applicant's pre-sentence custody for the offences in question.
  • Whether, even if error was established, the Court of Criminal Appeal should intervene by re-sentencing the applicant.

Decision

The Court found that Judge Puckeridge had erred in refusing to backdate the sentence. His Honour had declined to backdate on the basis that the applicant had committed the index offences while on parole and had committed further offences (on the Form 1) while on bail. Howie J held that these were not proper reasons to withhold a backdating direction. Sections 24(a) and 47(2) and (3) of the Crimes (Sentencing Procedure) Act 1999 require the sentencing court to take into account time already served in custody in relation to the offences being sentenced, and the established mechanism for giving that requirement proper effect is to backdate the commencement date of the sentence.

Howie J acknowledged the importance of backdating recognised in a consistent line of Court of Criminal Appeal authority. The principle promotes clarity for the prisoner and any later court, ensures the prisoner receives the benefit of pre-sentence custody, and preserves the correct statutory ratio between the non-parole and parole periods.

However, the Court declined to re-sentence the applicant in full. In Howie J's assessment, if the matter were approached afresh, the applicant would likely receive a heavier sentence. Given his criminal history, the fact that the offences were committed on parole and some Form 1 matters on bail, and the non-parole period already reduced for special circumstances, a more severe non-parole period would likely have resulted. Because there was no Crown appeal, it would have been inappropriate to increase the overall sentence.

The Crown conceded that the applicant was at least entitled to credit for the brief period he spent in custody between 4 and 19 September 2000. The Court therefore allowed the appeal only to the limited extent of adjusting the commencement date of the sentences to 29 November 2000, with a corresponding adjustment to the parole release date.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed to the limited extent that the sentences imposed by Puckeridge DCJ are to commence from 29 November 2000.
  • The applicant is to be released to parole on 28 March 2002.
  • Parole is subject to the conditions originally imposed by Puckeridge DCJ.

Key Takeaways

  • The Court of Criminal Appeal confirmed that, absent good reason to the contrary, a sentencing court should backdate a sentence of imprisonment to the date the offender entered custody in relation to the offences being sentenced, giving effect to the requirements of ss 24(a) and 47(3) of the Crimes (Sentencing Procedure) Act 1999.
  • Committing the index offences while on parole, or committing further offences while on bail, does not of itself constitute a sufficient reason to refuse a backdating direction.
  • In dismissing the substantive ground of appeal, the Court applied the principle that identifying error does not automatically produce intervention: where re-sentencing would result in a heavier outcome and there is no Crown appeal, the appellate court may decline to re-sentence and confine relief to a narrow correction.
  • The decision illustrates the Court's recognition that fairness to the prisoner requires pre-sentence custody to be properly accounted for, whether through backdating or explicit allowance in fixing the head sentence and non-parole period.
  • A line of Court of Criminal Appeal authority stretching back to R v McHugh (1985) 1 NSWLR 588 underpins the backdating principle, and R v Deeble is cited as an authoritative articulation of the reasons for the practice.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 112
- Justices Act 1902 (NSW), s 51A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 24(a), 44, 47(2)(a), 47(3)

Cases
- R v McHugh (1985) 1 NSWLR 588
- R v Deeble (NSWCCA, unreported, 19 September 1991)
- R v Close (1992) 32 NSWLR 743
- R v Reid (NSWCCA, unreported, 26 March 1997)
- R v Cook [1999] NSWCCA 234
- R v English [2000] NSWCCA 245
- R v Kaiva (NSWCCA, unreported, 9 November 1998)
- R v Sae (NSWCCA, unreported, 3 April 1997)