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167
Court of Criminal Appeal 10 March 2006

Callaghan v R

[2006] NSWCCA 58

Also reported as (2006) 160 A Crim R 145
Theft & property
PLEAS OF GUILTY OFFENCES COMMITTED WHILST ON PAROLE PAROLE REVOKED EFFECT OF REVOCATION OF PAROLE

Citation: Callaghan v R [2006] NSWCCA 58
Court: NSW Court of Criminal Appeal
Date: 10 March 2006
Judge(s): James J, Simpson J, Hall J

Background

The applicant pleaded guilty in the District Court to two charges of break and enter with intent to steal. The offences occurred at a video shop in Seven Hills on two occasions in January 2005, nine days apart. On each occasion the applicant smashed a glass panel, entered the premises and searched for valuables, but left without taking any property.

At the time of the offences, the applicant was on parole from a series of earlier offences sentenced in the Parramatta Local Court in June 2004. His arrest on 27 January 2005 triggered revocation of that parole by the Parole Board, with the previous sentence running through to 14 July 2005.

The sentencing judge in the District Court imposed sentences commencing 15 July 2005, the day after the revoked parole period expired. This made the new sentences fully cumulative on the previous sentence, meaning the two sets of sentences ran back to back with no overlap. The applicant sought leave to appeal, arguing this approach amounted to double punishment.

  • Whether the sentencing judge doubly punished the applicant by treating the commission of offences while on parole as an aggravating factor and also making the new sentences fully cumulative on the revoked parole period
  • Whether a sentencing court retains a discretion to backdate a sentence to a point before the expiry of a revoked parole period, where the revocation was caused by the very offences being sentenced
  • Whether the sentencing judge's exercise of that discretion miscarried in this case

Decision

The Court of Criminal Appeal acknowledged two strands of authority within the Court concerning parole revocation and sentencing. One approach treated the entire period of custody following parole revocation as exclusively referable to the earlier offences, meaning it could not be backdated against the new sentence. The other recognised a discretion allowing a sentencing court to backdate the commencement of a new sentence to some point before the expiration of the revoked parole period, at least where the revocation was caused by the offence then being sentenced.

Simpson J, with whom James J and Hall J agreed, confirmed that a discretion exists and that no single absolute rule governs all cases. The circumstances in which offenders come before a court after parole revocation are too varied for a rigid approach. Simpson J noted that in some cases it would be unfair not to backdate a sentence at all, because full accumulation assumes the offender would never have obtained a further grant of parole, which may not be a safe assumption.

However, the Court also found that where reoffending occurred very soon after release and the remaining parole term was short, it could be appropriate to treat the entire post-revocation period as referable to the earlier sentence. Here, the applicant reoffended within weeks of release, and the remaining balance of the earlier sentence was only about six months. The sentencing judge had a discretion to commence the new sentences anywhere within that window and elected to start them at the end of the parole period.

The Court found no miscarriage in the exercise of that discretion. The fact that commission of offences while on parole was treated as an aggravating factor under s 21A(2)(j) of the Crimes (Sentencing Procedure) Act 1999, alongside the full accumulation of sentences, did not constitute double punishment in the relevant legal sense in these circumstances.

Orders Made

  • Leave to appeal against severity of sentence granted
  • Appeal dismissed

Key Takeaways

  • No absolute rule requires a sentencing court to backdate a sentence to a point within a revoked parole period, nor does any absolute rule prohibit it. A discretion exists, and the appropriate exercise depends on the facts of each case.
  • Where an offender reoffends very shortly after release on parole and the remaining balance of the previous sentence is short, it may be appropriate to treat all post-revocation custody as referable to the earlier offences.
  • Treating commission of offences while on parole as a statutory aggravating factor under s 21A(2)(j) of the Crimes (Sentencing Procedure) Act 1999, alongside making new sentences fully cumulative on the revoked parole period, does not necessarily constitute double punishment.
  • In dismissing the appeal, the Court confirmed that the sentencing judge had a six-month window within which to set the commencement date for the new sentences, and her choice to commence them at the expiration of the parole period did not amount to an error.
  • The discretion to backdate a sentence under s 47(2)(a) of the Crimes (Sentencing Procedure) Act 1999 must be exercised with attention to the particular circumstances, including the length of the remaining parole term and how soon after release the new offences were committed.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW): ss 21A(2)(j), 24, 47, 50(1)

Cases
- R v Eric John Andrews, NSWCCA, unreported, 28 April 1993
- R v Kaiva, NSWCCA, unreported, 9 November 1998
- R v Brett John Kelly [2000] NSWCCA 557
- R v Kitchener [2003] NSWCCA 134
- R v Shane John Ravet [2001] NSWCCA 535
- R v SAE, NSWCCA, unreported, 3 April 1997
- R v David Webb, NSWCCA, unreported, 9 November 1998