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Court of Criminal Appeal 3 April 2017

Prowse v R

[2017] NSWCCA 68

Firearms & weapons
CRIMINAL LAW APPEAL AGAINST SENTENCE PRE SENTENCE CUSTODY PREFERABLE COURSE TO BACK DATE SENTENCE CONFUSION AS TO HOW MUCH PRE

Citation: Prowse v R [2017] NSWCCA 68
Court: Court of Criminal Appeal, New South Wales
Date: 3 April 2017
Judge(s): Leeming JA; R A Hulme J; Beech-Jones J

Background

The applicant was sentenced in the District Court at Campbelltown in August 2016 for firing a firearm in a manner likely to injure a person, an offence under s 93G(1)(c) of the Crimes Act 1900 (NSW) carrying a maximum of 10 years imprisonment. The primary judge imposed a sentence of 5 years with a non-parole period of 3 years and 9 months, commencing 27 August 2015.

The applicant sought leave to appeal on a single ground: that the sentencing judge set the wrong commencement date for the sentence. The dispute centred on how much of the applicant's pre-sentence custody should be credited to the index offence, as distinct from other matters for which he was also in custody at various points.

The applicant's custodial history between his arrest in March 2013 and sentencing in August 2016 was complicated. It included periods referable to other offences, a separate 12-month sentence for possessing an unregistered firearm (parts of which overlapped with his time in custody for the index offence), and a short fixed-term sentence for assaulting a law officer. The parties agreed the total time in custody across all matters was approximately 23 months and 28 days, but disagreed on how much of that should count against the index sentence.

  • Whether the sentencing judge erred in selecting 12 months as the back-date period for pre-sentence custody, rather than undertaking a more precise calculation referable to the index offence
  • How much of the applicant's pre-sentence custody was properly attributable solely to the index offence, having regard to concurrent periods of custody for other matters
  • Whether any error in the commencement date was an arithmetical error (not affecting the overall sentencing discretion) and whether intervention should be limited to correcting that error

Decision

R A Hulme J, with whom Leeming JA and Beech-Jones J agreed, held that the sentencing judge fell into error by adopting a broad approach, selecting 12 months as the back-date figure without a more careful accounting of which periods of custody were attributable to the index offence. His Honour noted, however, that the sentencing judge was poorly assisted by the submissions put before her.

The Court accepted the conservative calculation advanced by the applicant on appeal: a credit of 15 months and 19 days. That period ran from the end of the non-parole period for the separate possess-firearm sentence through to the date of sentencing, minus the 2 months served for the assault on a law officer. That period was, in the Court's view, unequivocally referable only to custody for the index offence.

The Court characterised the error as arithmetical in nature rather than one touching the primary judge's overall exercise of sentencing discretion. Accordingly, intervention was confined to correcting the commencement date. The applicant did not seek a lesser sentence overall, and none was imposed.

Orders Made

  • Leave to appeal against sentence granted and appeal allowed.
  • The commencement date of the sentence imposed in the District Court on 26 August 2016 was quashed; in lieu, the sentence was specified to commence on 8 May 2015.
  • The non-parole period will expire on 7 February 2019, whereupon the applicant becomes eligible for release on parole.

Key Takeaways

  • Under s 24 and s 47 of the Crimes (Sentencing Procedure) Act 1999 (NSW), a sentencing court must take into account time held in custody in relation to the offence being sentenced, and the preferred method of doing so is back-dating the sentence rather than reducing its term.
  • A broad or impressionistic selection of a back-date figure, without proper accounting of which periods of pre-sentence custody are attributable to the index offence, may constitute a sentencing error.
  • Where a defendant's custodial history is complicated by concurrent custody for other matters, the appropriate approach is to identify the period that is unequivocally referable only to the index offence, even if that produces a conservative (and more favourable) result for the offender.
  • An arithmetical error in setting the commencement date does not necessarily vitiate the sentencing judge's overall assessment of the appropriate sentence; the Court of Criminal Appeal may limit its intervention to correcting the specific error.
  • Sentencing judges benefit significantly from clear, precise submissions on pre-sentence custody calculations, particularly where the offender's custodial history involves overlapping sentences and multiple matters.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 93G(1)(c)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 24, 47
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- Wiggins v R [2010] NSWCCA 30 (on the preferred method of crediting pre-sentence custody)
- Lehn v R [2016] NSWCCA 255 (on arithmetical error and limiting the scope of appellate intervention)