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2
Court of Criminal Appeal 2 February 2011

BJT v R

[2011] NSWCCA 12

Assault & violenceTheft & property
CRIMINAL LAW SENTENCE APPEAL RELEVANT FACTORS APPEAL ALLOWED CUSTODY

Citation: BJT v R [2011] NSWCCA 12
Court: NSW Court of Criminal Appeal
Date: 2 February 2011
Judge(s): Beazley JA, Hulme J, Harrison J

Background

The appellant was 17 years old when he committed two serious offences against a lone female victim in Orange in May 2008: robbery with an offensive weapon and inflicting actual bodily harm with intent to have sexual intercourse. Each offence carries a maximum penalty of 20 years imprisonment. He pleaded guilty in the Children's Court and was sentenced in the District Court.

Following his arrest, the appellant spent approximately three months in juvenile custody before being granted bail on conditions that required him to reside at "Tarlo," a residential intensive rehabilitation facility operated by the NSW Department of Ageing, Disability and Home Care under its Criminal Justice Program, located near Goulburn. He remained at Tarlo for approximately six months and twelve days before his bail was revoked after he committed two common assault offences and an act of malicious damage.

At the sentencing hearing, neither the Crown nor defence counsel raised the issue of credit for the time spent at Tarlo. The sentencing judge backdated the sentences to reflect time spent in ordinary adult custody after bail revocation, but did not separately account for the period at Tarlo. The appellant sought leave to appeal on the single ground that the sentencing judge erred by failing to backdate the sentence to reflect that quasi-custodial period.

  • Whether time spent in a full-time residential rehabilitation facility constitutes "quasi-custody" for the purposes of sentencing credit.
  • Whether the sentencing judge erred by failing to backdate the sentences to reflect the appellant's time at Tarlo.
  • What portion of the time spent in quasi-custody should be credited against the sentence.

Decision

Harrison J (with Beazley JA and Hulme J agreeing) held that the established authorities clearly support the proposition that time spent in a full-time residential rehabilitation facility, in conditions that amount to quasi-custody, can appropriately be taken into account by a sentencing tribunal. The conditions at Tarlo, including discipline, restrictions and structured programming, met the requirements that correspond to quasi-custody under the relevant case law.

The Court noted that the failure to raise this issue at the original sentencing hearing was understandable, as neither party had drawn it to the judge's attention. The Crown did not oppose the appeal and conceded the point, accepting that the applicable principles had not been applied.

Harrison J also addressed the fact that the appellant had committed further offences while at Tarlo. Drawing on the reasoning in R v Marschall, the Court found that credit for quasi-custodial time should not be forfeited simply because the participant did not successfully complete the program or re-offended during the period, particularly where the sentencing judge characterised the Form 1 matters as "not of a very extreme nature." The Court also noted that the sentences as imposed were not so lenient as to indicate that the sentencing judge had already implicitly accounted for the Tarlo period.

The Court determined that one half of the period at Tarlo, being three months and six days, was an appropriate credit. The sentences were backdated accordingly.

Orders Made

  • Leave to appeal granted and appeal allowed.
  • Sentences imposed by Finnane DCJ on 23 October 2009 confirmed, but commencement date varied from 16 December 2008 to 10 September 2008.
  • Eligibility for parole set at 10 September 2011.

Key Takeaways

  • Time spent in a full-time residential rehabilitation facility under strict disciplinary conditions can constitute quasi-custody for which credit is available at sentencing, consistent with the line of authority running from R v Eastway through Delaney and Marschall.
  • Credit for quasi-custodial time is not automatically forfeited because the offender re-offended during the program or did not complete it; those matters are relevant to assessing rehabilitation prospects but do not preclude a sentencing credit for the restrictive conditions endured.
  • The proportion of quasi-custodial time credited will depend on all the circumstances. The Court applied a one-half reduction in this case, reflecting an approach consistently used (alongside proportions as high as 75 per cent in some cases) rather than any fixed mathematical formula.
  • Where a sentence is at the lower end of the permissible range, a sentencing court may decline to give quasi-custodial credit on the basis that any reduction would fail to adequately reflect the criminality involved. That consideration did not arise here.
  • Failure by both parties to raise the quasi-custody issue before the sentencing judge did not prevent the Court of Criminal Appeal from correcting the resulting error on appeal.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 97(1), 61K(a)

Cases:
- Hughes v Regina [2008] NSWCCA 48; (2008) 185 A Crim R 155
- Reed v Regina [2007] NSWCCA 4
- Regina v Delaney [2003] NSWCCA 342; (2003) 59 NSWLR 1
- R v Marschall [2002] NSWCCA 197; (2002) 129 A Crim R 381
- R v Eastway (unreported, NSW CCA, 19 May 1992)
- R v Campbell (unreported, NSW CCA, 12 April 1999)
- R v Thompson (unreported, NSW CCA, 2000)