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16
Court of Criminal Appeal 14 November 2003

Regina v Delaney

[2003] NSWCCA 342

Also reported as (2003) 59 NSWLR 1
DrugsTheft & property
CRIMINAL LAW SENTENCING QUASI CUSTODY

Citation: Regina v Delaney [2003] NSWCCA 342
Court: NSW Court of Criminal Appeal
Date: 14 November 2003
Judge(s): James J, Santow JA, Barr J

Background

The applicant was convicted after trial in the District Court of robbery in company, arising from an incident on 7 January 2002 in which a group of men robbed a convenience store in Darlinghurst, with actual violence used against the store owner. He also pleaded guilty to being conveyed in a stolen motor vehicle. The sentencing judge imposed a four-year term with a two-year non-parole period for the robbery offence.

On the day after his arrest, the applicant was granted bail on condition that he enter and reside in a Salvation Army residential rehabilitation program. He completed Stage One at the William Booth Institute in Sydney and proceeded to Stage Two at a Salvation Army facility in Canberra, spending approximately six and a half months in those programs before his bail was revoked.

The applicant sought leave to appeal on a single ground: that the sentencing judge erred by failing to credit him for the time spent in residential rehabilitation as a form of quasi-custody (a period of restricted liberty that, while not formal imprisonment, may be treated as reducing the effective sentence still to be served).

  • Whether time spent residing in a residential drug rehabilitation program as a condition of bail constitutes quasi-custody for sentencing purposes
  • Whether the sentencing judge was required to reduce the sentence to reflect that period of restricted liberty
  • Whether, given any error, a lesser sentence was warranted in law under s 6(3) of the Criminal Appeal Act

Decision

James J (with whom Santow JA agreed) found that the sentencing judge had erred. The conditions attached to the applicant's bail, which required him to reside continuously at Salvation Army facilities and complete their program, constituted a significant deprivation of liberty. That deprivation is recognised as quasi-custody and should be taken into account as a mitigating factor in sentencing.

James J found that the applicant had spent approximately six and a half months in these residential programs. Applying the relevant principles, his Honour considered a credit of three months appropriate for that period and reduced the head sentence and non-parole period accordingly. Special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act, founded on the need to foster the applicant's rehabilitation prospects, were also found to apply.

Barr J dissented on the outcome. While agreeing that the sentencing judge had erred in failing to account for the rehabilitation period, his Honour considered that reducing the non-parole period to the level proposed by James J would render it insufficient to reflect the objective seriousness of the offence. Barr J referred to R v Henry as a guide to the appropriate sentencing range, noting that this case was at least as serious as, if not more serious than, the general run of robbery-in-company matters given the applicant's criminal history and his not-guilty plea. Barr J would have dismissed the appeal on the basis that no lesser sentence was warranted in law under s 6(3).

The majority, comprising James J and Santow JA, prevailed and the appeal was allowed with the sentence reduced.

Orders Made

  • Leave to appeal against sentence granted
  • Sentence for robbery in company quashed and replaced with a term of three years and nine months, commencing 26 September 2002, with a non-parole period of one year and ten and a half months, expiring 10 August 2004
  • Sentence for stealing (being conveyed in) a motor vehicle confirmed

Key Takeaways

  • The Court of Criminal Appeal confirmed that time spent in a residential drug rehabilitation program as a condition of bail can constitute quasi-custody and must be taken into account as a mitigating factor at sentencing.
  • Conditions that require an offender to reside continuously at a specified facility, complete a structured program, and remain under supervision represent a genuine and material restriction on liberty, not merely a lenient bail condition.
  • Where a sentencing judge fails to give credit for such a period, that failure constitutes a legal error that can ground a successful appeal under the Criminal Appeal Act.
  • Even where error is established, s 6(3) of the Criminal Appeal Act requires the Court to consider whether a lesser sentence is actually warranted in law before substituting a new sentence, as illustrated by Barr J's dissent on that precise question.
  • R v Henry (1999) 46 NSWLR 346 was cited as an indicator, not a rigid rule, of the sentencing range for robbery-in-company offences, with individual offence characteristics capable of moving a sentence above or below that general range.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act (NSW), s 44(2)
- Criminal Appeal Act (NSW), s 6(3)

Cases
- R v Henry (1999) 46 NSWLR 346
- R v Campbell (unreported, 12 April 1999)
- R v Eastway (unreported, 19 May 1992)
- R v Kivits (unreported, 4 November 1993)
- R v Thompson (unreported, [2000] 362)