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Court of Criminal Appeal 22 May 2007

Sultana v Regina

[2007] NSWCCA 107

Theft & property
CRIMINAL LAW: SENTENCE PERIOD OF PRE

Citation: Sultana v Regina [2007] NSWCCA 107
Court: New South Wales Court of Criminal Appeal
Date: 22 May 2007
Judge(s): McClellan CJ at CL, Hidden J, Rothman J

Background

The applicant pleaded guilty in the District Court to one charge of break, enter and steal on indictment. He also asked the sentencing judge to take into account two further offences (another break, enter and steal and a break and enter with intent to steal) listed on a Form 1. A Form 1 is a document that allows an offender to ask the court to consider additional charges when passing sentence on the principal offence, without those additional charges being formally sentenced separately.

The sentencing judge imposed a term of two and a half years imprisonment, with a non-parole period of sixteen months, commencing 13 April 2006. That date reflected when bail was revoked in connection with the indictment offence. However, the applicant had spent an earlier period of two months and seventeen days in custody from 5 January to 23 March 2005, a period referable exclusively to the Form 1 offences, arising from bail being refused after he became eligible for parole on an unrelated sentence.

The applicant sought leave to appeal on the sole ground that the sentencing judge should have backdated the sentence by a further two months and seventeen days to account for that earlier period of pre-sentence custody.

  • Whether pre-sentence custody referable exclusively to Form 1 offences (rather than to the principal offence on the indictment) must be taken into account when backdating a sentence.
  • Whether sections 24(a) and 47(2)-(3) of the Crimes (Sentencing Procedure) Act 1999, which require courts to account for time spent in custody "in relation to the offence", extend to custody attributable to Form 1 matters.
  • Whether the Court should decline to intervene on the basis that backdating would render the sentence inadequate, having regard to section 6(3) of the Criminal Appeal Act 1912.

Decision

Hidden J (with whom McClellan CJ at CL and Rothman J agreed) held that the sentencing judge erred in declining to backdate the sentence. The established practice, confirmed in authority, is that where a period of pre-sentence custody is exclusively referable to the offences for which sentence is being passed, the sentence should commence on a date that accounts for that period. Departing from that practice requires a stated reason, and no adequate reason was given here.

The Court reasoned that, although a court sentencing on an indictment charge with Form 1 matters is technically imposing sentence only for the principal offence, the Form 1 procedure expressly increases the penalty for that offence by reference to the additional matters admitted. It would therefore be inconsistent to treat custody referable to those same Form 1 offences as irrelevant to backdating. The provisions of sections 24(a) and 47(3) were found to be capable of extending to such custody.

On the question of inadequacy, the Court doubted whether section 6(3) of the Criminal Appeal Act is even engaged by the commencement date of a single sentence, as distinct from its length. In any event, the Court concluded that backdating by two months and seventeen days would not produce an inappropriately lenient outcome on the facts, noting the existing sentence was already lenient.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence imposed in the District Court confirmed, but backdated to commence 28 January 2006 (rather than 13 April 2006).
  • Non-parole period to expire 27 May 2007.
  • Balance of term to expire 27 July 2008.
  • Applicant directed to be released on parole on 27 May 2007.

Key Takeaways

  • Pre-sentence custody referable exclusively to Form 1 offences can, and ordinarily should, be taken into account when backdating a sentence imposed on the principal indictment offence.
  • Under sections 24(a) and 47(3) of the Crimes (Sentencing Procedure) Act 1999, a court must account for time spent in custody "in relation to the offence," and the Court of Criminal Appeal found this language is capable of reaching custody attributable to Form 1 matters, given those matters directly increase the penalty imposed.
  • Backdating is the preferred mechanism for recognising pre-sentence custody, rather than informally reducing the length of a sentence. A sentencing judge who departs from this practice should expressly state the reason for doing so.
  • The Form 1 procedure is not simply a technicality: because its entire purpose is to increase the sentence beyond what the principal offence alone would attract, the additional offences are properly treated as relevant to backdating.
  • Refusing to backdate does not become defensible merely because the overall sentence is lenient. The Crown's submission that the sentence was already low was not a reason the sentencing judge had actually relied upon, and the Court declined to treat it as a sufficient basis to withhold correction.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 24(a), 47(2), 47(3), Division 3 of Part 3
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- R v McHugh [1985] 1 NSWLR 588
- R v Deeble (Court of Criminal Appeal, unreported, 19 September 1991)
- Re Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 1 of 2002) (2002) 137 A Crim R 180