AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
14
Court of Criminal Appeal 18 April 2018

Refaieh v R

[2018] NSWCCA 72

Also reported as (2018) 272 A Crim R 245
Drugs
SENTENCING APPEAL AGAINST SENTENCE SEVERITY COMMENCEMENT DATE OF SENTENCE

Citation: Refaieh v R [2018] NSWCCA 72
Court: Court of Criminal Appeal, NSW
Date: 18 April 2018
Judges: Hoeben CJ at CL, Johnson J, N Adams J (reasons)

Background

The applicant pleaded guilty in the Local Court to knowingly taking part in the supply of a large commercial quantity of cocaine, an offence under the Drug Misuse and Trafficking Act 1985 (NSW) carrying a maximum penalty of life imprisonment. He was committed for sentence to the District Court, where Judge Toner SC sentenced him to a non-parole period of four years, commencing 20 August 2015, with a balance of term of two years.

The applicant's custodial history was complicated. After his arrest on the drug supply charge in April 2014, he spent approximately 63 days in custody before being granted bail. He was then arrested in October 2014 on a separate murder charge, for which bail was refused, while his bail on the drug supply charge technically remained on foot but was never formally entered. The murder charge was later no-billed, meaning the applicant was acquitted without trial.

The question before the Court of Criminal Appeal was whether the sentencing judge had erred by not backdating the drug supply sentence to cover the period during which the applicant was held in custody on remand solely because of the murder charge, a period that was not referable to the drug supply offence.

  • Whether the period the applicant spent on remand for the murder charge constituted time held "in relation to" the drug supply offence, triggering the mandatory requirement under s 47(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW) to take that time into account.
  • If s 47(3) was not engaged, whether the sentencing judge's exercise of the general discretion under s 47(2) to fix the commencement date of the sentence miscarried by failing to backdate the sentence to cover that remand period.

Decision

On the first ground, the Court confirmed that the period the applicant spent in custody solely because of the murder charge was not time held "in relation to" the drug supply offence. During that period, the applicant was on bail (not entered) for the drug supply matter and was detained exclusively on remand for the separate murder charge. Section 47(3) therefore did not compel the sentencing judge to treat that remand period as pre-sentence custody referable to the drug supply offence.

On the second ground, the Court found that the sentencing judge had correctly identified and applied the relevant principles, including the principle that an offender cannot "bank" time served in custody on one charge to credit it against a sentence on a different charge. The judge was also alive to the possibility that the applicant might not be convicted of the murder, which is precisely what occurred.

The Court acknowledged that it was open to the sentencing judge to exercise the broad discretion under s 47(2) differently, and that other judges may well have backdated the sentence to absorb some or all of that remand period. However, the fact that a different approach was available did not establish that the sentencing discretion had miscarried in the sense required by House v R (1936) 55 CLR 499.

The Crown conceded a one-day arithmetic error in the commencement date. Consistent with the approach in Kentwell v The Queen (2014) 252 CLR 601 and Lehn v R (2016) 93 NSWLR 205, the Court corrected the error without re-exercising the sentencing discretion afresh, adjusting the commencement date from 20 August 2015 to 19 August 2015.

Orders Made

  • Leave to appeal granted.
  • The appeal allowed to the extent of one day.
  • The sentence adjusted so that the non-parole period of four years commences 19 August 2015 and expires 18 August 2019, with a balance of term of two years expiring 18 August 2021.

Key Takeaways

  • Time spent in custody on remand for one charge is not automatically time held "in relation to" a separate offence for the purposes of s 47(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW), even if both matters are proceeding concurrently.
  • The Court of Criminal Appeal confirmed that where an offender remains on bail (technically unrevoked) for one charge while being held in custody solely because bail is refused on a different charge, the custody period is referable to the latter charge only.
  • Under s 47(2), a sentencing court retains a broad discretion to backdate a sentence to account for remand time served on a different charge, but a failure to exercise that discretion in a particular way does not constitute error unless the requirements of House v R are met.
  • No error was established merely because other judges might have exercised the s 47(2) discretion differently, including by backdating the sentence to cover a remand period that ultimately related to an acquittal.
  • An arithmetic error in the commencement date of a sentence, once conceded, can be corrected by the Court of Criminal Appeal without the need to re-exercise the full sentencing discretion, consistent with Kentwell v The Queen and Lehn v R.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 24, 44, 47
- Drug Misuse and Trafficking Act 1985 (NSW), s 25
- Bail Act 2013 (NSW), ss 7, 14, 50, 51
- Criminal Appeal Act 1912 (NSW), s 5

Cases:
- House v R (1936) 55 CLR 499; [1936] HCA 40
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255
- R v Niass (Court of Criminal Appeal (NSW), 16 November 1988, unreported)
- Delaney v R (2013) 230 A Crim R 581; [2013] NSWCCA 150
- Hamilton v R [2016] NSWCCA 59
- Hampton v R (2014) 243 A Crim R 193; [2014] NSWCCA 131
- Hutchen v R [2015] NSWCCA 101
- Parkhizkar v R (2014) 245 A Crim R 515; [2014] NSWCCA 240
- R v Callaghan (2006) 160 A Crim R 145; [2006] NSWCCA 58
- R v Cartwright (1989) 17 NSWLR 243
- R v Connell [2013] NSWCCA 155
- R v Thompson (2005) 156 A Crim R 467; [2005] NSWCCA 11
- Sultana v R [2007] NSWCCA 107