Citation: Regina v Wood [2005] NSWCCA 159
Court: New South Wales Court of Criminal Appeal
Date: 28 April 2005
Judge(s): Grove J, Howie J, Hall J
Background
The applicant was sentenced by Knight DCJ in the District Court on 1 June 2004 for being an accessory after the fact to an assault. The maximum penalty for that offence was five years' imprisonment. Knight DCJ imposed a fixed term of five months and 27 days, which he calculated by reducing a six-month sentence by four days to account for pre-sentence custody from 13 to 16 January 2003.
The complication arose from a separate set of drug offences. Morgan DCJ sentenced the applicant on 27 June 2003 for those matters and, to account for time the applicant had already served in custody on the drug charges, backdated those sentences to 17 January 2003. That backdating meant the drug sentences notionally ran during the same period the applicant had been held in custody pending resolution of the accessory charge (13 January 2003 to 26 June 2003).
The central dispute before the Court of Criminal Appeal was whether Knight DCJ erred by failing to credit the applicant with that five-month-and-14-day period of pre-sentence custody referable solely to the accessory offence. The applicant also raised grounds relating to an aggravating factor applied at sentencing and the principle of totality.
Legal Issues
- Whether Knight DCJ erred by failing to take into account the pre-sentence custody period from 13 January 2003 to 26 June 2003 under section 47 of the Crimes (Sentencing Procedure) Act 1999
- Whether the factual finding that only four days of pre-sentence custody were solely referable to the drug offences was correct
- Whether Knight DCJ impermissibly treated the applicant's role in planning the offence as an aggravating factor, contrary to the principle in De Simoni (1981) 147 CLR 683 (which prohibits sentencing a person more harshly by reference to a more serious offence for which they were not convicted)
- Whether Knight DCJ failed to properly apply the principle of totality when imposing the sentence cumulatively on the drug sentences
Decision
Pre-sentence custody (the primary ground)
The Court found that the period from 13 January 2003 to 26 June 2003 was solely referable to the accessory offence and should have been credited by Knight DCJ under section 47. Howie J explained the key principle clearly: the fact that Morgan DCJ chose to backdate the drug sentences so that they happened to overlap with the applicant's custody on the accessory charge did not extinguish the applicant's entitlement to credit for that custody. Morgan DCJ had not taken the accessory period into account, and could not lawfully have done so. Two available methods exist for giving credit for pre-sentence custody; the choice between them cannot deprive a person of credit they are otherwise entitled to receive.
The De Simoni ground
The Court accepted the Crown's submissions and rejected this ground. Although Knight DCJ referred to the applicant's role in cautioning his sister not to inform authorities, that conduct did not amount to treating the applicant as guilty of a more serious uncharged offence. The De Simoni principle was not contravened.
Totality
The Court found no error in Knight DCJ's approach to totality. His Honour had considered the cumulative effect of the sentences, noted that the accessory offence was entirely separate from the drug offences and was committed while the applicant was on bail, and imposed a short fixed term. That approach reflected an adequate exercise of sentencing discretion.
Orders
Having identified the error on the pre-sentence custody ground, the Court recalculated the sentence. Crediting the five months and 14 days of pre-sentence custody, only 13 days of the fixed term remained to be served. That balance was ordered to run cumulatively from the expiration of the non-parole period under the drug sentence (16 July 2005), expiring on 29 July 2005.
Orders Made
- The order of Knight DCJ, insofar as the term of imprisonment was expressed to commence on 16 July 2005 and to expire on 11 January 2006, was quashed.
- In lieu, the Court ordered a fixed term of imprisonment of five months and 27 days to commence on 3 February 2005 and to expire on 29 July 2005.
Key Takeaways
- Under section 47 of the Crimes (Sentencing Procedure) Act 1999, a sentencing court must credit time in pre-sentence custody that is solely referable to the offence being sentenced, regardless of whether that custody period coincidentally overlaps with a backdated sentence imposed for unrelated offences.
- The Court of Criminal Appeal confirmed that a sentencing judge has two lawful methods for crediting pre-sentence custody: deducting the time served from the sentence or backdating the sentence commencement. Whichever method a co-sentencing judge adopts cannot, of itself, extinguish a prisoner's entitlement to credit in separate proceedings.
- A sentencing judge cannot take into account custody referable to a different and separate offence when backdating an unrelated sentence, and a subsequent sentencing judge cannot treat that overlap as satisfying the credit obligation.
- Applying the De Simoni principle, referring to conduct associated with an offence does not automatically breach the rule against sentencing for an uncharged more serious offence; the conduct must actually elevate the sentencing to the level of a more serious uncharged offence before the principle is engaged.
- In assessing totality, a short fixed-term sentence imposed cumulatively on unrelated matters was found to be an appropriate exercise of discretion where the offences were genuinely separate and one was committed while the offender was on bail for the other.
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), sections 21A and 47
Cases
- De Simoni (1981) 147 CLR 683 (High Court: prohibition on sentencing by reference to more serious uncharged offences)
- McHugh (1985) 1 NSWLR 588
- Newman and Simpson (2004) 145 A Crim R 148