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Court of Criminal Appeal 23 November 2017

Thomas, Brett David v R

[2017] NSWCCA 273

Public order & justice offences
CRIME SENTENCING OFFENCES OF DETAIN FOR ADVANTAGE

Citation: Thomas, Brett David v R [2017] NSWCCA 273
Court: NSW Court of Criminal Appeal
Date: 23 November 2017
Judge(s): Meagher JA; Rothman J; Button J

Background

The appellant pleaded guilty in the District Court to two counts of detaining a person for advantage, contrary to s 86(1)(b) of the Crimes Act 1900. The offences involved detaining two young women at knifepoint for the appellant's personal gratification, and were regarded by the sentencing judge as particularly serious. The maximum penalty for each offence is 14 years imprisonment.

The District Court sentenced the appellant on 16 December 2015 to an aggregate sentence of 5 years imprisonment with a non-parole period of 3 years and 6 months. The sentencing judge intended the aggregate sentence to commence two months into a pre-existing sentence the appellant was serving for breach of an Apprehended Domestic Violence Order (ADVO). However, because the ADVO sentence had not commenced on the day the appellant entered custody, the judge miscalculated the starting date of the new sentence.

The result was that the aggregate sentence did not account for 17 days the appellant had spent in custody solely for the offences being sentenced. The appellant sought to have the matter reopened before the sentencing judge, but that application was refused. He then sought leave to appeal to the Court of Criminal Appeal.

  • Whether the sentence commencement date was miscalculated so as to fail to credit the appellant with 17 days served in custody solely on the subject offences.
  • Whether the District Court had the power to correct the error by reopening the sentencing proceedings under the "slip rule" or under s 43 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • What procedural orders the Court of Criminal Appeal was required to make under s 6(3) of the Criminal Appeal Act 1912 when allowing a sentencing appeal.

Decision

Both parties agreed that the sentence commencement date was incorrect and that it should be moved back by 17 days, from 6 October 2014 to 20 September 2014. Neither party disputed the duration of the head sentence or non-parole period, and neither contended that a lesser sentence was warranted. The Court announced its orders at the hearing on 14 November 2017 and reserved its reasons.

On the question of the District Court's power to correct the error, the Court of Criminal Appeal confirmed that the sentencing judge had correctly declined to reopen proceedings. The sentence as imposed was not "contrary to law," meaning s 43 of the Crimes (Sentencing Procedure) Act 1999 was unavailable. The Court cited Achurch v The Queen (2014) 253 CLR 141 and R v Fuller (No 2) [2017] NSWSC 1351 in support of this conclusion, and noted there was also a significant question about whether the District Court could deploy the slip rule in these circumstances.

A procedural point arose from the draft orders proposed by the parties. Those draft orders purported to "vary" the commencement date of the existing sentence. However, s 6(3) of the Criminal Appeal Act 1912 requires that, where a sentencing appeal succeeds and the Court is satisfied a different sentence should have been imposed, the existing sentence must be quashed and a new sentence substituted in its place. The Court therefore quashed the original sentence and re-imposed it in the corrected form rather than simply varying it.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed in part.
  • Sentence imposed by the District Court on 16 December 2015 quashed.
  • In substitution, an aggregate sentence imposed for both counts: a non-parole period of 3 years and 6 months commencing 20 September 2014 and concluding 19 March 2018, with a remainder of term of 1 year and 6 months concluding 19 September 2019.
  • First eligible for release to parole: 19 March 2018.

Key Takeaways

  • Under s 6(3) of the Criminal Appeal Act 1912, where a sentencing appeal succeeds, the Court of Criminal Appeal must quash the existing sentence and substitute a new one. It cannot merely vary the original sentence, even where the change is narrow and uncontested.
  • A sentence that contains a miscalculated commencement date is not thereby "contrary to law" within the meaning of s 43 of the Crimes (Sentencing Procedure) Act 1999, so the sentencing court lacks power under that provision to reopen and correct the error.
  • Where a defendant has served pre-sentence custody solely referable to the offences being sentenced, the sentence must be backdated to credit that time; a failure to do so correctly will enliven a ground of appeal even where the duration of the sentence is otherwise unimpeachable.
  • The Court of Criminal Appeal confirmed the full length of the aggregate sentence and non-parole period, noting neither party suggested a lesser sentence was warranted, and expressly confirmed the indicative sentences and the guilty plea discount applied below.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 86(1)(b) (detain for advantage)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 43
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- Achurch v The Queen (2014) 253 CLR 141; [2014] HCA 10
- R v Fuller (No 2) [2017] NSWSC 1351