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Court of Criminal Appeal 28 October 2008

Mirojub LUKENIC v R

[2008] NSWCCA 250

Fraud & dishonestyTheft & property
CRIMINAL LAW PLEAS OF GUILTY MULTIPLE OFFENCES RECEIVING STOLEN PROPERTY DISPOSING OF STOLEN PROPERTY POSSESSION OF STOLEN PROPERTY

Citation: Lukenic v R [2008] NSWCCA 250
Court: New South Wales Court of Criminal Appeal
Date: 28 October 2008
Judge(s): McClellan CJ at CL, Simpson J, McCallum J

Background

The appellant pleaded guilty in the District Court to multiple offences involving stolen property, including three counts of receiving stolen property, one count of disposing of stolen property, and one count of possessing property stolen outside New South Wales. He also asked the court to take into account three further similar offences and an offence of aiding and abetting custody of a false instrument.

Puckeridge DCJ sentenced the appellant on 10 August 2007. The overall sentence amounted to a head sentence of 2 years and 11 months, with a non-parole period of 1 year and 9 months. His Honour found special circumstances and adjusted the ratio between the head sentence and the non-parole period accordingly.

Before sentencing, the appellant had spent 3 months and 14 days in pre-sentence custody, having been arrested on 4 July 2005 and released on bail on 18 October 2005. The sentencing judge backdated the commencement of the first count to 10 May 2007, acknowledging approximately "3 months or thereabouts" of pre-sentence custody. However, the appellant contended that this fell 14 days short of the full credit he was entitled to receive.

  • Whether the sentencing judge erred by failing to give proper credit for the full period of pre-sentence custody (3 months and 14 days rather than the approximately 3 months allowed).
  • Whether, as argued by the Crown, the sentences were in any event unduly lenient and reflected error in applying the principles from Pearce v The Queen.
  • Whether the appellant had demonstrated that lesser sentences were warranted in law under s 6(3) of the Criminal Appeal Act 1912.

Decision

The sole ground of appeal was narrow: the sentencing judge had acknowledged the principle of backdating for pre-sentence custody but had applied it inaccurately, giving credit for only approximately three months when the actual period was three months and fourteen days.

Simpson J, with whom McClellan CJ at CL and McCallum J agreed, accepted that the appellant was entitled to credit for the full period of pre-sentence custody. The Court drew on its earlier decision in McCabe v R [2006] NSWCCA 220, which had accepted that an applicant was entitled to credit for the whole of a pre-sentence custodial period. The Court found no reason to depart from that approach.

The Crown's submission that the sentences were unduly lenient and reflected error under Pearce v The Queen was not accepted as a reason to deny the adjustment. The Court allowed the appeal to the extent of adjusting the commencement dates of the sentences on counts 1 to 4 by 14 days, bringing the start date forward to 26 April 2007.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed; original sentences quashed and replaced with the following:
  • Count 1: Fixed term of 1 year and 9 months, commencing 26 April 2007 and expiring 25 January 2009.
  • Counts 2, 3 and 4: Non-parole period of 1 year and 4 months commencing 26 July 2007 and expiring 25 November 2008, with a balance of term of 1 year and 2 months expiring 25 January 2010.
  • Count 5: Non-parole period of 1 year and 4 months commencing 26 September 2007 and expiring 25 January 2009, with a balance of term of 1 year and 2 months expiring 25 March 2010.

Key Takeaways

  • A sentencing court is required to give credit for the full, precise period of pre-sentence custody, not merely an approximate figure. An under-calculation of 14 days was sufficient to ground a successful appeal.
  • The Court of Criminal Appeal confirmed, following McCabe v R, that an offender is entitled to credit for the whole of any pre-sentence custody referable to the offences being sentenced.
  • Where a sentencing judge accepts the principle of backdating but applies it inaccurately, the Court of Criminal Appeal will intervene to adjust the commencement dates of sentences accordingly.
  • The Crown's contention that sentences were unduly lenient did not prevent the Court from correcting the discrete error in pre-sentence custody calculation.
  • Upholding the appeal on this narrow, technical ground did not require the Court to revisit the overall sentencing structure or the finding of special circumstances.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), including Part 3 Division 3 and s 44(2)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- Pearce v The Queen [1998] HCA 57; 194 CLR 610
- R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
- McCabe v R [2006] NSWCCA 220; 164 A Crim R 344