AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 6 February 2015

R v Wortley

[2015] NSWDC 365

Drugs
CRIMINAL LAW SENTENCE SUPPLY PROHIBITED DRUG DRUGS DESTROYED S166 MATTERS DISMISSED

Citation: R v Wortley [2015] NSWDC 365
Court: District Court of New South Wales
Date: 6 February 2015
Judge: Berman SC DCJ

Background

The offender had appeared before the District Court in November 2014 on charges of supplying a prohibited drug. At that earlier hearing, the sentencing judge considered there was a real possibility of imposing a sentence of imprisonment to be served by way of an Intensive Corrections Order (ICO), an alternative to full-time custody that allows an offender to serve their sentence in the community under strict supervision. The matter was adjourned for a suitability assessment.

Initially, the assessment was positive. The offender's accommodation was found suitable, and a urinalysis test in January 2015 returned a clean result. However, within days of that report, the situation changed significantly.

Just before sentencing, the offender was re-arrested on fresh charges and bail was refused. He was now ineligible for an ICO, and his prospects of rehabilitation were assessed as materially worse than they had appeared in November 2014.

  • Whether the collapse of ICO suitability warranted a longer custodial sentence than the court had previously contemplated
  • How pre-sentence custody should be accounted for in determining the length and commencement date of the sentence
  • Whether special circumstances existed to justify a longer parole period relative to the non-parole period
  • The appropriate structure of concurrent or cumulative sentences across two separate offending dates

Decision

The court determined that the sentence length it had contemplated in November 2014 remained appropriate, despite the changed circumstances. The fact that the sentence would now be served as full-time imprisonment, rather than an ICO, was itself sufficient to reflect the deterioration in the offender's situation. The court expressly declined to increase the sentence length on account of the fresh charges.

On the question of pre-sentence custody, the court noted the offender had already spent approximately two months and eight days in pre-sentence custody. Rather than backdating the sentence by that period, the court factored it into the overall length of the sentence. The sentence commencement date was set at 3 February 2015, being the date the offender was re-arrested, so that if he were ultimately acquitted of the fresh charges, the current period of custody would be credited against this sentence.

For the offence committed on 11 December 2013, the court imposed a fixed term of nine months imprisonment. For the earlier offence of 1 August 2013, the court imposed a non-parole period of 14 months with a head sentence of two years. The court found special circumstances, primarily because the offender had been making genuine progress until shortly before sentencing, meaning an extended period of supervised parole was considered beneficial to both the offender and the community.

Orders Made

  • For the offence of 11 December 2013: fixed term of nine months imprisonment, commencing 3 February 2015
  • For the offence of 1 August 2013: non-parole period of 14 months and head sentence of two years, commencing 3 February 2015
  • Non-parole period to expire on 2 April 2016, with the offender to be released to parole on that date
  • Finding of special circumstances recorded
  • Drugs ordered to be destroyed
  • Matter on the section 166 certificate withdrawn and dismissed

Key Takeaways

  • The District Court confirmed that a shift from an ICO to full-time imprisonment can, in itself, sufficiently reflect a deterioration in an offender's circumstances, without any corresponding increase in the length of the sentence.
  • Where an offender is re-arrested before sentencing, backdating the sentence to the date of re-arrest protects against the risk of that remand period going uncredited if the fresh charges do not result in conviction.
  • Pre-sentence custody need not always be addressed by backdating; a court may instead factor it into its determination of the appropriate sentence length, provided that course is expressly stated.
  • Special circumstances justifying a longer parole period relative to the non-parole period can be grounded in recent positive rehabilitation progress, even where that progress has been interrupted by further offending.
  • Under section 166 of the relevant legislation, associated matters certified under that provision may be withdrawn and dismissed at sentencing, as occurred here with the drug destruction order.

Legislation and Cases Referenced

Legislation:
- Section 166 of the relevant NSW legislation (specific Act not identified in the judgment)

Cases cited: None cited in the provided text.