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Court of Criminal Appeal 9 June 2005

Regina v HALL

[2005] NSWCCA 217

DrugsFraud & dishonesty
CRIMINAL LAW SENTENCE

Citation: Regina v Hall [2005] NSWCCA 217
Court: NSW Court of Criminal Appeal
Date: 9 June 2005
Judge(s): Studdert J, James J, Howie J

Background

The applicant was arrested on 30 July 2003 after police executed a search warrant at his home and found prohibited drugs, fraudulent documentation, and a sophisticated computer-based system used to manufacture false New South Wales driver's licences. He was refused bail and remained in custody for 90 days before being released on conditional bail in late October 2003.

The applicant pleaded guilty to four counts of making a false instrument, four counts of possessing implements for making a false instrument, and three summary drug-related offences. He was sentenced in the District Court on 20 August 2004 by Judge Blackmore SC. The total effect of the sentences was four years' imprisonment with a total non-parole period of two years and six months, with all sentences commencing from the date of sentencing.

The sentencing judge noted in his remarks that he had taken into account the applicant's approximately three months of pre-sentence custody. However, none of the sentences were backdated to reflect that time already served.

  • Whether the sentencing judge erred by failing demonstrably to take into account the applicant's 90 days of pre-sentence custody when structuring the sentences.

Decision

The Court of Criminal Appeal found that the ground of appeal was made out. Although the sentencing judge stated in his remarks that he had taken into account the pre-sentence custody, the sentences imposed commenced from the date of sentencing without any backdating. The Court noted that it was possible the judge had reduced a notional sentence from four and a half years to four years to account for both the pre-sentence custody and the applicant's cooperation with police, but this reasoning was not made explicit in the remarks on sentence.

Because the pre-sentence custody was not demonstrably reflected in the final sentences, the Court held that the sentencing judge's approach fell into error. The Crown submitted that the appeal should nonetheless be dismissed because no lesser sentence was warranted, but the Court rejected that argument. While the objective seriousness of the offences was significant and the applicant had limited favourable subjective circumstances beyond his guilty pleas and limited assistance to police, the Court was not persuaded that a lesser effective sentence was unwarranted.

The Court re-sentenced the applicant by backdating the commencement of each sentence to 22 May 2004, thereby giving concrete and transparent effect to the 90-day period already spent in custody.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal allowed.
  • Original sentences quashed and the applicant re-sentenced as follows:
  • Four counts of making a false instrument: non-parole period of two years commencing 22 May 2004, expiring 21 May 2006, with a balance of one year.
  • Four counts of possessing implements for making a false instrument: non-parole period of 18 months commencing 22 May 2005, expiring 21 November 2006, with a balance of 18 months.
  • Three summary offences: fixed terms of three months each commencing 22 May 2004, expiring 21 August 2004.
  • Earliest eligible parole date: 21 November 2006.

Key Takeaways

  • A sentencing court's acknowledgment of pre-sentence custody in remarks on sentence is not sufficient on its own: the custody must be demonstrably reflected in the structure of the sentence, typically through backdating the commencement date.
  • Where a sentencing judge states that pre-sentence custody has been considered but does not backdate the sentence or otherwise make the credit transparent, the Court of Criminal Appeal may find that the custody was not demonstrably taken into account, even if some reduction in the overall term may have been intended.
  • The appropriate mechanism for recognising pre-sentence custody is to backdate the sentence commencement date by the period spent in custody before sentencing.
  • A Crown submission that no lesser sentence is warranted will not automatically defeat a re-sentencing application where the ground of error has been established and there are some favourable subjective circumstances, such as an early guilty plea and an offer of assistance to police.
  • In re-sentencing following a successful appeal on this ground, the Court of Criminal Appeal replaced the original sentences with identically structured terms but adjusted the commencement dates to give transparent effect to the 90-day pre-sentence custody period.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 300(1), 302A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 24(1)(a), 47(3)
- Criminal Procedure Act 1986 (NSW), s 166

Cases:
- Regina v Galati [2003] NSWCCA 148
- Regina v Howard [2001] NSWCCA 309
- Regina v Philips; Regina v Simpson [2002] NSWCCA 167