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Court of Criminal Appeal 20 April 2016

Hamilton v R

[2016] NSWCCA 59

Theft & property
CRIMINAL LAW APPEAL AGAINST SENTENCE TRIAL CUSTODY APPEAL UPHELD SENTENCE QUASHED RESENTENCED

Citation: Hamilton v R [2016] NSWCCA 59
Court: NSW Court of Criminal Appeal
Date: 20 April 2016
Judges: Hoeben CJ at CL, Harrison J, Schmidt J (judgment delivered by Schmidt J, with whom the others agreed)

Background

The appellant was a 20-year-old man sentenced in February 2015 by the District Court at Dubbo for an aggravated break, enter and commit serious indictable offence whilst in company, contrary to s 112(2) of the Crimes Act 1900 (NSW). The offence involved breaking a window to enter a house at Coonamble and stealing $700, and carried a maximum penalty of 20 years imprisonment with a standard non-parole period of five years.

The sentencing proceedings became complicated by the appellant's custodial history. He had been bail refused for this offence from 21 October 2014, but had also been in custody since 29 September 2014 on an unrelated aggravated robbery charge under s 95 of the Crimes Act. At the sentencing hearing, the parties agreed that the sentence should commence from the date of sentence, 6 February 2015, rather than being backdated to account for the pre-sentence custody.

The complication deepened after sentencing: in August 2015, the Director of Public Prosecutions no-billed the s 95 charge. This meant the appellant had spent months in custody on a charge that was ultimately abandoned, and that custody had not been reflected in his sentence.

  • Whether the sentencing judge erred by not backdating the sentence or otherwise taking into account the appellant's pre-sentence custody
  • Whether the sentence imposed for the s 112(2) offence was infected by error resulting in a miscarriage of justice
  • Whether the appellant could raise an argument on appeal that contradicted the concession made on his behalf at first instance
  • How the Court of Criminal Appeal should exercise its resentencing discretion in light of post-sentencing events (specifically, the no-billing of the s 95 charge)

Decision

The Court of Criminal Appeal upheld both grounds of appeal, with the Crown conceding that the sentence should be quashed and the appellant resentenced. The core problem was that the agreed commencement date of 6 February 2015 failed to account for the period during which the appellant was bail refused specifically in relation to the s 112(2) offence, from 21 October 2014 onwards. Schmidt J held that the concession made at the sentencing hearing involved legal error, and that this error produced a miscarriage of justice.

Schmidt J confirmed that ss 24 and 47(2)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW) require presentence custody to be considered and permit a sentence to be backdated, but do not create a mandatory obligation to backdate in every case. Importantly, the provisions do not give an offender "credit in the bank" for time spent in custody on unrelated matters. Here, the time spent bail refused solely on the s 95 charge from 29 September to 21 October 2014 could not be credited, but the custody referable to this offence from 21 October 2014 plainly should have been.

The Court also addressed whether the appellant was bound by the concession his legal representative made at first instance. While parties are ordinarily bound by the way a case is run at sentencing, that principle is not absolute and must yield to the interests of justice. Given that neither the parties nor the sentencing judge could have known at the time that the s 95 charge would later be no-billed, the Crown properly accepted that justice required the sentence to be backdated to 21 October 2014.

On resentencing, the Court left all other aspects of the sentence unchanged. The non-parole period of 18 months and balance of term of 16 months were found to be appropriate, and the instinctive synthesis applied by the sentencing judge was undisturbed. Only the commencement date was corrected, to 21 October 2014.

Orders Made

  • Leave to appeal granted
  • Appeal upheld
  • Original sentence quashed
  • Appellant resentenced to a total term of 34 months imprisonment commencing 21 October 2014, with a non-parole period of 18 months expiring 20 April 2016 and a balance of term of 16 months expiring 20 August 2017
  • Appellant to be released on parole at expiry of the non-parole period on 20 April 2016 under s 50(1) of the Crimes (Sentencing Procedure) Act
  • Parole to be supervised, with compliance required with all reasonable directions of the Department of Corrective Services relating to ongoing treatment and counselling for substance abuse

Key Takeaways

  • Sections 24 and 47(2)(a) of the Crimes (Sentencing Procedure) Act 1999 require courts to consider presentence custody and permit backdating, but do not impose a mandatory obligation to backdate in every case; where a court declines to backdate, it should clearly state its reasons.
  • Time spent in custody on an unrelated charge does not automatically accrue as sentencing credit for a separate offence. The relevant question is whether the pre-sentence custody is referable to the offence being sentenced.
  • A party is generally bound by concessions made at first instance, but that rule is not absolute. Where the interests of justice require it, an appellate court may permit a departure from the position adopted below, particularly where neither party nor the sentencing court could have anticipated a subsequent development (such as a no-bill of a related charge).
  • In dismissing errors in an applicant's favour, the Court of Criminal Appeal must exercise the sentencing discretion afresh under s 6(3) of the Criminal Appeal Act 1912 (NSW), rather than simply remitting the matter. Evidence of events arising entirely after sentencing generally cannot be taken into account on appeal, but where error is established and the Crown concedes a different sentence is warranted, the appellate court must resentence.
  • Subsequent no-billing of a related charge, though arising after sentence, can inform the resentencing exercise in the specific context of determining a just commencement date for a sentence, at least where the parties are in agreement.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 95, 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 24, 47(2)(a), 50(1)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- Hampton v R [2014] NSWCCA 131; (2014) 243 A Crim R 193
- Kaminic v R [2014] NSWCCA 116
- Kentwell v R (2014) 252 CLR 601
- Khoury v R [2011] NSWCCA 118; (2011) 209 A Crim R 509
- Markarian v R [2005] HCA 25; (2006) 228 CLR 357
- R v Birks (1990) 19 NSWLR 677
- R v Newman & Simpson [2005] NSWCCA 102; (2004) 145 A Crim R 361