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Court of Criminal Appeal 23 May 2018

Houcher v R

[2018] NSWCCA 96

Theft & property
CRIME APPEAL SENTENCING TIME SERVED ON REMAND

Citation: Houcher v R [2018] NSWCCA 96
Court: NSW Court of Criminal Appeal
Date: 23 May 2018
Judges: Basten JA, Button J, Fagan J

Background

The applicant, a young offender, pleaded guilty in the District Court at Parramatta to two counts of robbery under s 97(1) of the Crimes Act 1900 (NSW). The first robbery was committed in July 2015, and the second in January 2016. Following his arrest for the first offence, the applicant spent approximately three months on remand before being granted bail. He was then arrested for the second robbery in January 2016 and remained in custody continuously until sentencing in May 2017.

The sentencing judge imposed an aggregate sentence of six years and six months with a non-parole period of four years and six months, backdating the commencement of the sentence to 25 January 2016, the date of arrest for the second offence. That approach credited 15 of the 18 months of total pre-sentence custody against the sentence.

The applicant sought leave to appeal on a single ground: that the sentencing judge had inadvertently failed to account for the three-month first remand period, which predated his arrest for the second robbery.

  • Whether the sentencing judge failed to take into account the applicant's first period of pre-sentence custody (approximately three months) when fixing the commencement date of the aggregate sentence.
  • Whether, in backdating the sentence to 25 January 2016, the sentencing judge made a deliberate and considered decision rather than an inadvertent error.

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal. The Court found no basis to conclude that the first remand period had been inadvertently overlooked.

The Court reasoned that both periods of pre-sentence custody had been clearly identified and debated at the sentencing hearing. Only one week elapsed between the hearing and the delivery of sentence, making it unlikely the dates were forgotten. By invoking "reasons of totality" as the basis for backdating, the sentencing judge indicated he had considered the extent to which all pre-sentence custody should count as time served. The Court treated this as a deliberate and considered exercise of sentencing judgment.

The Court also examined the composition of the 18 months of pre-sentence custody. Eight of those months were attributable to short fixed terms of imprisonment imposed when bonds were revoked for entirely unrelated offences. Only 10 months were solely referrable to remand for the robberies. Against that backdrop, the decision to allow 15 months to count represented a degree of concurrence that was within the range open to the sentencing judge, and the Court described it as a reasonable and moderate outcome.

Finally, the Court rejected the applicant's submission that the Magistrate had imposed the 8-month sentences of imprisonment merely for administrative convenience rather than on their merits. The Court noted that those sentences had not been appealed, and it declined to impute improper reasoning to the Magistrate.

Orders Made

No orders were made in this decision.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentencing judge's reference to "totality" when backdating a sentence is a sufficient indication that the question of pre-sentence custody has been addressed deliberately, not overlooked.
  • A failure to backdate a sentence to the earliest possible date does not, without more, establish that an earlier period of custody was inadvertently disregarded.
  • Where part of the pre-sentence custody period was served pursuant to sentences imposed for unrelated offending, a sentencing court is not required to credit the full accumulated period against the sentence for the offences under consideration.
  • The Court confirmed it would not impute to a Magistrate that imprisonment was imposed in lieu of revoked bonds as a matter of mere administrative convenience rather than as a genuine exercise of sentencing discretion.
  • No error was established in allowing 15 of 18 months of pre-sentence custody to count as time served, given the overlap of offending across a short timeframe involving a young offender.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97(1) (robbery)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 9 (good behaviour bonds imposed with conditions) and s 10 (dismissal or conditional discharge)

Cases cited: No cases cited in the judgment text.