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Court of Criminal Appeal 25 November 2004

Regina v Walsh

[2004] NSWCCA 428

DrugsFraud & dishonestyTheft & propertyTraffic & driving
CRIMINAL LAW SENTENCING FAILURE TO TAKE INTO ACCOUNT PRE SENTENCE CUSTODY SENTENCES BACKDATED ACCORDINGLY

Citation: Regina v Walsh [2004] NSWCCA 428
Court: New South Wales Court of Criminal Appeal
Date: 25 November 2004
Judge(s): Howie J

Background

The applicant had been sentenced in the Drug Court for a series of property offences, including break, enter and steal, stealing a motor vehicle, goods in custody, and driving whilst disqualified. He entered a Drug Court program but reoffended almost immediately after release and was returned to custody. He was subsequently sentenced for both the original offences and the new offending.

The core problem arose from a discrepancy between what the sentencing judge had said and what the sentences actually reflected. Judge Milson had stated he took into account approximately four months and two days of pre-sentence custody when structuring the original Drug Court sentences. However, because he imposed the maximum permissible terms under Local Court jurisdiction, it appeared he had not in fact reduced the sentences to reflect that custody.

When Judge Orchiston later re-sentenced the applicant following his failure on the Drug Court program, she proceeded on the assumption that Judge Milson had already accounted for that pre-sentence custody. That assumption led to sentences that, on analysis, exceeded the maximum available penalties once the pre-sentence period was properly factored in. The applicant sought leave to appeal against Judge Orchiston's sentences on this basis.

  • Whether Judge Orchiston erred by failing to backdate the sentences to account for approximately four months and two days of pre-sentence custody
  • What the appropriate mechanism was for correcting that error
  • Whether the consequential sentences imposed in the District Court required adjustment once the Drug Court sentences were varied

Decision

Howie J was satisfied that an error had occurred. Because Judge Milson had imposed the maximum sentences available within Local Court jurisdiction, the sentences as structured left no room for any reduction reflecting pre-sentence custody. Judge Orchiston, relying on Judge Milson's statement that custody had been taken into account, did not make any further adjustment, with the result that the pre-sentence custody period was effectively ignored.

The accepted method for acknowledging pre-sentence custody, Howie J confirmed, is to backdate the commencement date of the sentence by the equivalent period. A court may order a sentence to commence on a date before the sentencing date even if the offender was not actually in custody during that earlier period. Backdating in this way makes it plain on the face of the orders that the pre-sentence custody has been credited.

Howie J noted that both parties had ultimately agreed on the nature of the error and the appropriate fix. The Court was nonetheless independently satisfied that the concessions were correct before proceeding to vary the sentences accordingly.

Because the Drug Court sentences were backdated, the dates upon which non-parole periods expired under those sentences changed. That flow-on effect required consequential adjustment to the District Court sentences, which had been structured as cumulative on the Drug Court sentences. Howie J invoked section 59 of the Crimes (Sentencing Procedure) Act 1999 to vary those later sentences.

Orders Made

  • Leave to appeal granted
  • Sentences imposed by Judge Orchiston for drive whilst disqualified, steal motor vehicle, goods in custody, and two offences of break, enter and steal (previously commencing 15 August 2003) backdated to commence 13 April 2003
  • Sentence for the remaining break, enter and steal offence (previously commencing 15 August 2003) backdated to commence 13 May 2004
  • District Court sentences for drive whilst disqualified, stealing a motor vehicle, and larceny of compact discs varied so that their non-parole periods and fixed terms commence 13 November 2004 and expire 12 August 2005

Key Takeaways

  • The Court of Criminal Appeal confirmed that backdating a sentence's commencement date is the accepted and common mechanism for crediting pre-sentence custody, and may be done even where the offender was not physically in custody on the backdated start date.
  • Where a sentencing judge states that pre-sentence custody has been taken into account but then imposes the maximum available sentence, the face of the orders may disclose that no actual credit was given, leaving an apparent error for a subsequent court to address.
  • Under section 59 of the Crimes (Sentencing Procedure) Act 1999, an appellate court that varies an earlier sentence has power to adjust later sentences that were structured cumulatively upon it.
  • In dismissing the need for lengthy reasoning, Howie J noted that independent judicial satisfaction with the parties' agreed position remains necessary before a court acts on concessions, even where the Crown and applicant have reached agreement on both the error and its remedy.
  • Drug Court sentencing structures can involve layers of complexity across multiple courts and sentencing occasions, making mathematical precision in calculating custody credits particularly important.

Legislation and Cases Referenced

Legislation:
- Drug Court Act (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 59

Cases cited: None cited in the judgment.