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Court of Criminal Appeal 7 February 2014

R v Jagurdzia

[2014] NSWCCA 3

Theft & property
CRIMINAL LAW CROWN APPEAL SENTENCE IMPOSED CONTRARY TO LAW NON PAROLE PERIOD APPEAL ALLOWED

Citation: R v Jagurdzia [2014] NSWCCA 3
Court: NSW Court of Criminal Appeal
Date: 7 February 2014
Judges: Simpson J, Hall J, Schmidt J

Background

The respondent was sentenced in the District Court on 12 September 2013 for robbery in company, an offence carrying a maximum penalty of 20 years imprisonment. The sentencing judge imposed a total term of 2 years, 5 months and 21 days, with a non-parole period of 1 year, 7 months and 9 days. A 10% discount was applied for a guilty plea entered the day after the expected trial date, and the offending was assessed as falling in the low range.

The sentence was backdated to 3 February 2012, which meant the respondent was released to parole immediately upon sentencing. Shortly after, the Crown drew the sentencing judge's attention to a critical error: the respondent had not served approximately 19 months in custody as assumed, but only around 207 days in total, of which only approximately 28 days related to the subject offence.

Despite being informed of the miscalculation, the sentencing judge reinstated the original orders. His Honour took the view that the respondent had already "served the time he should" and that the correction sought by the Crown would result in a release date he regarded as excessive for the nature of the offence. The Crown appealed on grounds of manifest inadequacy and, with consent, on the further ground that the sentence was contrary to law.

  • Whether the sentencing judge erred by structuring a sentence so that the respondent was released to parole on the day of sentencing, having served only approximately 28 days in custody referable to the offence, while the fixed non-parole period was 1 year, 7 months and 9 days.
  • Whether the sentence was imposed contrary to law by failing to ensure the offender served the minimum custodial period reflected in the non-parole period.
  • Whether, following the quashing of the sentence, the matter should be re-sentenced by the Court of Criminal Appeal or remitted to the District Court.

Decision

The Court of Criminal Appeal upheld the Crown appeal, finding that the sentencing judge had committed a plain error of law. The approach taken was inconsistent with settled sentencing principle: a sentence cannot lawfully be structured so as to ensure an offender is released from custody on the date of sentencing without first serving the minimum period that justice requires for the offence.

The Court explained that the non-parole period, required by section 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW), represents the minimum time an offender must be detained. It must be fixed having regard to all purposes of sentencing, the objective seriousness of the offence, and the offender's subjective circumstances. The Court cited Power v R (1974), Hili v The Queen (2010), and Muldrock v R (2011) in affirming these principles.

By backdating the commencement of the sentence to a date that brought the non-parole period to an end on the very day of sentencing, the sentencing judge effectively released the respondent after only 28 days in custody referable to the offence. That result was irreconcilable with a non-parole period of over 19 months, which is the statutory minimum the court had itself determined was required by justice.

Both parties agreed the matter should be remitted to the District Court for re-sentencing rather than resolved by the Court of Criminal Appeal substituting its own sentence. The Court accepted this course, noting that re-sentencing in the District Court would also permit the judge to address questions of totality, given the respondent was awaiting sentence on a separate reckless wounding offence.

Orders Made

  • The Crown's appeal is upheld (noting the respondent's appeal has been withdrawn).
  • The sentence is quashed.
  • The matter is remitted to the District Court for re-sentence.

Key Takeaways

  • A non-parole period represents the minimum period an offender must be kept in custody for an offence, and a sentence cannot lawfully be structured to circumvent that minimum, regardless of how the sentencing judge views the overall proportionality of the outcome.
  • Under section 47 of the Crimes (Sentencing Procedure) Act 1999 (NSW), backdating the commencement of a sentence to account for pre-sentence custody must accurately reflect time actually served in relation to the offence, not time mistakenly assumed to have been served.
  • Accurate information about pre-sentence custody is a foundational element of the sentencing exercise: a miscalculation that causes the sentencing court to misapprehend the custodial period already served will ordinarily constitute an error requiring correction.
  • Where a Crown appeal succeeds and re-sentencing would benefit from consolidation with an outstanding sentencing matter before the same judge, the Court of Criminal Appeal has power under section 12(2) of the Criminal Appeal Act 1912 (NSW) to remit the matter to the District Court rather than substitute its own sentence.
  • Withdrawing an application for leave to appeal does not amount to abandoning the substantive arguments underlying that appeal; those arguments remain available to be pressed before the sentencing court on re-sentence.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), ss 5D, 6(1), 12(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5(1), 44, 47

Cases
- Power v R [1974] HCA 26; (1974) 131 CLR 623
- Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
- Muldrock v R [2011] HCA 39; (2011) 244 CLR 120
- Regina v Pamplin [2001] NSWCCA 327
- O'Neil-Shaw v The Queen [2010] NSWCCA 42