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Court of Criminal Appeal 14 December 2018

Small v R

[2018] NSWCCA 290

Drugs
CRIMINAL LAW SENTENCE APPEAL IMPRISONMENT FOR 4 YEARS WITH A NON PAROLE PERIOD OF 2 YEARS CUSTODY” CUSTODY

Citation: Small v R [2018] NSWCCA 290
Court: NSW Court of Criminal Appeal
Date: 14 December 2018
Judges: Hoeben CJ at CL; Johnson J; Campbell J

Background

The appellant pleaded guilty to one count of supplying a prohibited drug (approximately 160 grams of heroin) under the Drug Misuse and Trafficking Act 1900 (NSW). The offending arose from a heroin supply operation in Bathurst in 2015, in which the appellant and her partner purchased heroin in Sydney and arranged for a neighbour to distribute it. The appellant was sentenced in the Sydney District Court to four years' imprisonment with a two-year non-parole period.

Before the sentence was imposed, the appellant had spent almost seven months in pre-sentence custody and a further five months at Bennelong Haven, a residential drug rehabilitation facility, as a condition of bail. This period at the rehabilitation facility was the "quasi-custody" at issue. The sentencing judge acknowledged this period and stated he would take it into account, but did not backdate the commencement date of the sentence to reflect it and did not quantify the discount applied.

The appellant sought leave to appeal on the ground that the sentencing judge erred by failing to properly credit the time spent in quasi-custody.

  • Whether the sentencing judge was required to backdate the commencement date of the sentence to give credit for the period of quasi-custody.
  • Whether the sentencing judge's failure to quantify the discount for quasi-custody amounted to a sentencing error.
  • Whether any miscarriage of justice occurred given the sentencing judge's stated intention to take quasi-custody into account.

Decision

The Court of Criminal Appeal dismissed the appeal. Hoeben CJ at CL, with whom Johnson J and Campbell J agreed, found that the sentencing judge had expressly acknowledged the quasi-custody and stated that it would be taken into account when formulating the sentence. That was sufficient. There is no requirement in New South Wales that a sentencing judge must backdate the commencement date of a sentence to reflect a period of quasi-custody.

The Court noted that there is no authority in New South Wales requiring a sentencing judge to quantify the precise discount attributable to quasi-custody. Indeed, existing authority in cases such as R v Sullivan and Gibbs v R points in the opposite direction. The extent to which a sentence should be adjusted for quasi-custody is a matter entirely within the sentencing judge's discretion.

Two additional matters reinforced the dismissal. First, defence counsel at the sentencing hearing had acquiesced to the approach of taking quasi-custody into account without backdating or formal quantification. Second, a comparison between the sentence imposed on the appellant and that imposed on her co-offender (Neal, whose circumstances were similar) made clear that the sentencing judge had factored the quasi-custody into the formulation of the sentence.

The Court distinguished cases where appeals had previously succeeded on quasi-custody grounds. Those were cases where it was unclear whether the sentencing judge had considered quasi-custody at all, or where it was apparent that it had been overlooked entirely. Here, the sentencing judge had explicitly addressed the issue.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In New South Wales, there is no obligation on a sentencing judge to backdate the commencement date of a sentence to account for a period of quasi-custody.
  • A sentencing judge is also not required to quantify the precise discount applied for quasi-custody; the weight given to it remains a matter of judicial discretion.
  • Where a sentencing judge expressly acknowledges quasi-custody and states an intention to factor it into the sentence, no error arises simply because the adjustment is not particularised or reflected in a backdated commencement date.
  • Prior CCA decisions allowing appeals on quasi-custody grounds turned on the absence of any apparent consideration of quasi-custody by the sentencing judge, not merely the absence of formal quantification.
  • Acquiescence by defence counsel to a proposed sentencing approach (here, taking quasi-custody into account without backdating) is a relevant consideration in assessing whether error has been demonstrated on appeal.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 47(3)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Drug Misuse and Trafficking Act 1900 (NSW), s 25(1)

Cases:
- Bonett v R [2013] NSWCCA 234
- Brown v R [2013] NSWCCA 44
- Gibbs v R [2007] NSWCCA 171
- Hughes v Regina [2008] NSWCCA 48; 185 A Crim R 155
- Kelly v R [2018] NSWCCA 44
- R v AC (No 7) [2016] NSWSC 404
- R v Cartwright (1989) 17 NSWLR 243
- R v Eastway (NSWCCA, Hunt CJ at CL, 19 May 1992, unreported)
- R v Gardiner [2018] NSWCCA 27
- R v Neal; R v Small; R v Williams [2018] NSWDC 30
- R v Sullivan [2004] NSWCCA 99
- Reddy v R [2018] NSWCCA 212
- Regina v Campbell [1999] NSWCCA 76
- Regina v Delaney [2003] NSWCCA 342; 59 NSWLR 1
- Renshaw v R [2012] NSWCCA 91
- Truss v R [2008] NSWCCA 325