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Court of Criminal Appeal 11 May 2018

Glynn Kaderavek v R

[2018] NSWCCA 92

Assault & violenceDomestic & family violence
CRIME DOMESTIC VIOLENCE UNUSUAL CHRONOLOGY PRE CORRECT COMMENCEMENT DATE INCORRECT COMMENCEMENT DATE

Citation: Glynn Kaderavek v R [2018] NSWCCA 92
Court: NSW Court of Criminal Appeal
Date: 11 May 2018
Judge(s): Beazley P, Schmidt J, Hamill J (reasons by Hamill J)

Background

The applicant was sentenced in the District Court in January 2017 for three offences arising from serious domestic violence against his partner in August 2013: common assault, recklessly causing grievous bodily harm (he punched the victim with sufficient force to break her jaw), and perverting the course of justice by fabricating a home invasion story to conceal the attack. The sentencing judge imposed an aggregate sentence of seven years with a five-year non-parole period.

The chronology was unusual. After the August 2013 offences, the applicant committed further domestic violence against the same victim in March 2014. He was sentenced for those later offences in June 2014 and served that sentence (15 months with a 12-month non-parole period) before the present offences came to be dealt with. When Judge Buscombe sentenced him for the August 2013 offences in January 2017, the applicant had already completed the earlier sentence entirely, including its parole period, which expired on 7 July 2015.

The sentencing judge ordered the aggregate sentence to commence on 7 July 2015, being the date the earlier sentence expired. The applicant appealed on the basis that this commencement date was wrong, and that the sentence failed to account for pre-sentence custody, the totality principle, and the effect of accumulation on the ratio between the non-parole period and the head sentence.

  • Whether the sentencing judge erred by setting 7 July 2015 as the commencement date, when the applicant had in fact been held in custody on remand for the present offences from an earlier date (7 April 2015, the date the non-parole period for the earlier sentence expired).
  • Whether the sentence failed to account for the period of pre-sentence custody attributable to the present offences.
  • Whether the totality principle was properly applied when the aggregate sentence was fully accumulated on the earlier sentence.
  • Whether the finding of special circumstances was effectively nullified by the degree of accumulation, leaving the non-parole period disproportionate to the head sentence.

Decision

Hamill J identified a critical problem with the commencement date. The summary provided to the sentencing judge described 7 July 2015 as the date the applicant was "released from custody" for the earlier sentence. That description was apt to mislead, because from 7 April 2015 (when the non-parole period for the earlier sentence expired) the applicant remained in custody solely on remand for the present offences. The correct commencement date for the present sentence was therefore 7 April 2015, not 7 July 2015. The three-month discrepancy meant the applicant was not receiving credit for time spent in pre-sentence custody referable to the present offences, as required by the sentencing legislation.

The Court also found that the sentencing judge had not given proper effect to the totality principle. When the present sentence was fully accumulated on the earlier sentence, the combined non-parole period (as originally structured) represented approximately 71% of the combined head sentence. That ratio did not adequately reflect the judge's own finding of special circumstances, which was based on the applicant's rehabilitative needs and the desirability of a longer supervision period. The degree of accumulation effectively undermined the special circumstances adjustment.

Hamill J re-sentenced the applicant. The head sentence of seven years was retained, reflecting the objective seriousness of the offending (including the pattern of serious domestic violence against the same victim) and the subjective circumstances. However, the non-parole period was reduced from five years to four years and six months, and the commencement date was corrected to 7 April 2015. The result was an accumulated non-parole period of five years and six months, representing approximately 68.75% of the accumulated total sentence of eight years.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • The aggregate sentence imposed in the District Court is quashed.
  • In substitution: an aggregate sentence of 7 years commencing 7 April 2015 and expiring 6 April 2022, with a non-parole period of 4 years and 6 months commencing 7 April 2015 and expiring 6 October 2019.
  • The applicant is eligible for release to parole at the conclusion of the non-parole period.

Key Takeaways

  • Where an offender is held in pre-sentence custody on remand for the offences being sentenced, the sentence must commence from the date that custody became referable to the present offences, not from the later expiry date of any concurrent sentence being served at that time.
  • A sentence summary that misdescribes a custody date as a "release" date can mislead a sentencing judge into selecting an incorrect commencement date, producing a sentence that does not account for the full period of pre-sentence custody.
  • Under the totality principle, full accumulation of a new sentence on a pre-existing sentence requires the court to consider the combined effect on both the overall head sentence and the ratio between the aggregate non-parole period and the aggregate head sentence.
  • A finding of special circumstances can be effectively nullified if the degree of accumulation is not adjusted to give that finding practical effect in the combined sentence structure.
  • The Court of Criminal Appeal re-sentenced rather than remitting the matter, correcting the commencement date and reducing the non-parole period to produce a ratio consistent with the special circumstances finding and the totality principle.

Legislation and Cases Referenced

Legislation
- Crimes (Administration of Sentences) Act 1999 (NSW), s 158
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 33, 44, 47 and 53A

Cases
- Cherry v R [2017] NSWCCA 150
- DPP v Darcy-Shillingsworth [2017] NSWCCA 224
- GP v R [2017] NSWCCA 200
- Greenyer v R [2016] NSWCCA 272
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Lehn v R [2016] NSWCCA 255
- R v Hamid [2006] NSWCCA 302; (2006) 164 A Crim R 179
- R v Johnson [2015] NSWSC 31
- R v McHugh (1985) 1 NSWLR 588
- R v Newman and Simpson [2004] NSWCCA 102; (2004) 145 A Crim R 361
- R v Wiggins [2010] NSWCCA 30