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Court of Criminal Appeal 15 February 2008

Starmer v Regina

[2008] NSWCCA 27

Drugs
CRIMINAL LAW AND PROCEDURE SENTENCE PRE SENTENCE CUSTODY

Citation: Starmer v Regina [2008] NSWCCA 27
Court: New South Wales Court of Criminal Appeal
Date: 15 February 2008
Judge(s): McClellan CJ at CL, Grove J, Simpson J

Background

The applicant pleaded guilty in the District Court to conspiracy to import a traffickable quantity of cocaine. He had recruited his sister in the United Kingdom to post greeting cards containing the drug to an address connected with him. Police intercepted telephone calls and two of the cards, establishing that approximately 70.4 grams gross (32.4 grams pure) of cocaine had been imported.

The sentencing judge imposed a three-year term of imprisonment with release on recognizance after 18 months. The sentence was directed to commence on the date it was imposed, 19 January 2007, notwithstanding that the applicant had spent approximately five weeks in pre-sentence custody between 22 February and 29 March 2006.

The applicant appealed on a single ground: that the sentencing judge erred by failing to demonstrably account for pre-sentence custody by backdating the sentence by the equivalent period.

  • Whether a sentencing judge is required to backdate a sentence to account for pre-sentence custody exclusively referable to that sentence.
  • Whether the sentencing judge's failure to backdate the sentence in this case constituted an error warranting appellate intervention.
  • Whether the allowance for pre-sentence custody was adequately and demonstrably reflected in the sentence as imposed.

Decision

The Court affirmed that backdating a sentence to reflect pre-sentence custody is the desirable and preferable practice, both for State and Federal offences. Backdating promotes accuracy in the record and transparency in the sentencing process. However, the Court made clear that this practice is not obligatory, and departing from it does not, by itself, establish sentencing error.

Appellate intervention requires a demonstrated error. The Court noted that in prior cases where intervention had occurred, the relevant defect was ambiguity in the sentencing remarks, where it was unclear whether pre-sentence custody had been properly taken into account at all. No such ambiguity existed here.

The sentencing judge expressly stated that she had set a non-parole period "somewhat shorter than the norm" to account for the five and a half weeks the applicant had spent in custody. The Court calculated that, had the standard Federal offence proportion between non-parole period and head sentence (60 to 66 percent) been applied, the non-parole period would have fallen between 21.6 and 23.76 months. The 18-month non-parole period actually imposed was sufficiently below even the lower end of that range to confirm that a reduction greater than five weeks had been made. No error was established.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal dismissed.

Key Takeaways

  • Backdating a sentence to reflect pre-sentence custody exclusively referable to that sentence is the desirable and preferable practice, and this principle applies to both State and Federal offences.
  • Departure from the backdating practice does not constitute reversible error in isolation. The question for the Court of Criminal Appeal is whether pre-sentence custody was clearly and adequately accounted for in the sentence as a whole.
  • Appellate intervention in cases of this kind has been limited to situations where ambiguity in the sentencing remarks made it unclear whether pre-sentence custody had been taken into account at all.
  • Sentencing is an exercise in judicial assessment, not arithmetic. There is no requirement for sentences to be expressed in round figures, and the relevant analysis involves examining the overall structure and result of the sentence.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that an express statement by the sentencing judge, supported by calculations showing the allowance was not inadequate, is sufficient to rebut any suggestion that pre-sentence custody was overlooked.

Legislation and Cases Referenced

Cases cited:
- R v McHugh (1985) 1 NSWLR 588
- Assafiri v R [2007] NSWCCA 159
- R v Bernier [1998] 102 A Crim R 44
- R v Viana [2001] NSWCCA 171
- R v Nasher [2005] NSWCCA 238
- R v Hall [2005] NSWCCA 217
- R v Howard [2001] NSWCCA 309