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Court of Criminal Appeal 23 April 2009

Brendan White v R

[2009] NSWCCA 118

Public order & justice offences
CRIMINAL LAW SENTENCE RELEVANT FACTORS SUSPENDED SENTENCE TIME SPENT IN CUSTODY

Citation: Brendan White v R [2009] NSWCCA 118
Court: NSW Court of Criminal Appeal
Date: 23 April 2009
Judge(s): Grove J, Howie J, RA Hulme J

Background

The appellant had been sentenced in the District Court for affray. At the time of sentencing, he had already spent approximately nine weeks in pre-sentence custody. The sentencing judge imposed 18 months' imprisonment but suspended the sentence under section 12 of the Crimes (Sentencing Procedure) Act 1999, requiring the appellant to enter a good behaviour bond.

The appellant later breached the bond by failing to comply with Probation and Parole supervision requirements. A second District Court judge revoked the bond, which automatically brought the suspended sentence into effect. That judge then set a non-parole period of nine months, commencing from the date of revocation, on the basis that the original sentencing judge had already accounted for the pre-sentence custody.

The appellant sought leave to appeal, arguing that neither judge had properly given him credit for the nine weeks spent in custody before sentence was first imposed.

  • Whether the original sentencing judge (Judge English) demonstrably took the pre-sentence custody into account when imposing the suspended sentence.
  • Whether the second sentencing judge (Judge Hock) erred by assuming that pre-sentence custody had already been credited, and by declining to backdate the sentence to account for it.

Decision

RA Hulme J (Grove J and Howie J agreeing) found no merit in either ground of appeal. The judgment examined the transcript of the original sentencing proceedings in detail and found that the issue of pre-sentence custody had been squarely raised before Judge English. The Crown prosecutor identified the custody period at the outset, the appellant himself gave evidence about his experience in custody, and defence counsel specifically submitted that the pre-sentence custody should lead to a sentence of under two years, which should then be suspended.

Judge English addressed the pre-sentence custody directly in her remarks on sentence, noting that the appellant "did spend two months in custody" and had experienced time in segregation. Hulme J held that it was inescapable that her Honour had the matter firmly in mind and gave effect to it precisely as defence counsel had invited: by imposing a sentence of less than two years and suspending its execution.

The Court rejected the submission that the absence of an explicit "starting point" in the remarks on sentence meant the credit had not been given. Hulme J observed that parsing and analysing her Honour's words in that way was unwarranted where a submission had plainly been made, accepted, and acted upon.

Because Judge English had properly credited the pre-sentence custody, Judge Hock was correct to proceed on that assumption when revoking the bond and setting the non-parole period. No error was established in either sentencing exercise.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Pre-sentence custody must be taken into account in sentencing, but the preferred method of backdating the sentence is not always the only permissible approach. In the case of a suspended sentence, credit may instead be given by reducing the term of imprisonment imposed.
  • A sentencing judge is not required to state an explicit "starting point" in remarks on sentence for it to be inferred that pre-sentence custody was properly accounted for. Where defence counsel makes a clear submission that is accepted and acted upon, that can be sufficient.
  • The Court of Criminal Appeal confirmed that the absence of a formal, itemised calculation in remarks on sentence does not, of itself, establish error, provided the substance of the credit is reflected in the sentence actually imposed.
  • Where a bond is subsequently revoked and a second judge is required to activate the sentence, that judge may properly proceed on the assumption that the original sentencing judge gave credit for pre-sentence custody, unless there is positive reason to think otherwise.
  • Under section 24 of the Crimes (Sentencing Procedure) Act 1999, when setting a non-parole period following revocation of a good behaviour bond, the court must consider any time spent in custody, compliance with bond obligations, and the fact of having been subject to a bond.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 12, 24, 44, 45, 47, 70, 98

Cases:
- R v McHugh (1985) 1 NSWLR 588
- R v Deeble, unreported, Court of Criminal Appeal, 19 September 1991
- R v Leete [2001] NSWCCA 337; (2001) 125 A Crim R 37
- R v Newman; R v Simpson [2004] NSWCCA 102; (2004) 145 A Crim R 361