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Court of Criminal Appeal 8 May 2002

REGINA v. DUNCAN

[2002] NSWCCA 164

Theft & property
CRIMINAL LAW APPEAL SENTENCE PARITY COMMENCEMENT DATE PRE

Citation: Regina v Duncan [2002] NSWCCA 164
Court: NSW Court of Criminal Appeal
Date: 8 May 2002
Judge(s): Greg James J; Carruthers AJ

Background

The appellant was an 18-year-old man who pleaded guilty in the District Court at Moree to break, enter and steal in circumstances of aggravation, contrary to s 112(2) of the Crimes Act 1900, which carries a maximum penalty of 20 years imprisonment. The offence involved two men entering a dwelling at approximately 6:30 am, armed with pieces of timber fitted with protruding nails, and confronting the occupants in a frightening episode during which $50 was taken. Both offenders had significant prior criminal records and had committed the offence while under the influence of alcohol and cannabis.

The appellant had been arrested on 24 July 2001 and remained continuously in custody from that date through to sentencing on 22 November 2001. His co-offender, who was older, had been on bail and was ultimately sentenced to a total of five months imprisonment. The sentencing judge imposed on the appellant a term of three years and four months commencing on the date of sentence, with a non-parole period of 18 months.

The appeal raised concerns about the commencement date of the sentence. By commencing the sentence on the date it was imposed rather than the date of arrest, the sentencing judge effectively failed to account for approximately four months of pre-trial custody that related solely to this offence.

  • Whether the sentencing judge erred by failing to backdate the sentence to the date the appellant was taken into custody
  • Whether the resulting sentence was manifestly excessive having regard to the sentence imposed on the co-offender and the principle of parity
  • Whether the sentencing judge's apparent expectation that the Children's Court would impose a further sanction justified the approach taken

Decision

The Court of Criminal Appeal rejected the ground that the sentence was manifestly excessive in the general sense. Greg James J accepted that the objective seriousness of the offence, the appellant's criminal history, and the commission of the offence while on bail all supported a substantial term. The court also accepted that the sentencing judge had properly applied a discount for the early guilty plea and genuine remorse.

However, the court found a specific error in the sentencing judge's failure to backdate the sentence to 24 July 2001, the date the appellant was first taken into custody for this offence. Greg James J described backdating in these circumstances as a "long standing practice" of the court, and found no reasonable basis for departing from it. The entire period of pre-trial custody was solely referable to this offence.

The court inferred that the sentencing judge had proceeded on the assumption that the Children's Court would impose some further sanction in relation to a separate charge then pending before it, and that this influenced the decision not to backdate the sentence. In the event, that Children's Court matter was dismissed with a caution, partly because the magistrate felt constrained by the District Court sentence already imposed. The court found this did not justify the approach taken below.

Carruthers AJ agreed with Greg James J's reasons and proposed orders.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed in the District Court quashed
  • Substituted sentence of imprisonment for three years and four months, commencing 24 July 2001 and expiring 23 November 2004
  • Non-parole period commencing 24 July 2001 and expiring 23 January 2003

Key Takeaways

  • The Court of Criminal Appeal confirmed that where pre-trial custody is solely referable to the offence being sentenced, backdating the sentence to the date of arrest is the established practice, and departure from it requires a sound basis.
  • A sentencing judge's assumption that a separate court will impose an additional sanction does not, without more, justify a failure to credit pre-trial custody through backdating.
  • Parity between co-offenders requires careful attention, particularly where the sentences reflect different circumstances such as bail status, age, and the concurrency of terms.
  • The ground of manifest excess was not established here: the court distinguished between an overall sentence being excessive and the narrower error of failing to backdate, treating the latter as a discrete and correctable legal error.
  • Under s 112(2) of the Crimes Act 1900, break, enter and steal in circumstances of aggravation carries a maximum penalty of 20 years imprisonment, and the court treated the seriousness of the offending, the prior record, and the commission while on bail as properly weighty sentencing factors.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 112(2)

Cases
- Fernando [2002] NSWCCA 28