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2
Court of Criminal Appeal 5 May 2020

Sahyoun v R (No 2)

[2020] NSWCCA 95

Other
CRIMINAL LAW APPEAL AGAINST SENTENCE APPLICANT RE VARIATION OF ORDERS CRIMINAL APPEAL RULES(NSW) R 50C(3) ORDERS VARIED

Citation: Sahyoun v R (No 2) [2020] NSWCCA 95
Court: NSW Court of Criminal Appeal
Date: 5 May 2020
Judge(s): Gleeson JA and Fullerton J

Background

Four days before this decision, on 1 May 2020, the Court of Criminal Appeal allowed the applicant's appeal against a sentence imposed by the District Court on 9 November 2018. On resentence, the Court by majority imposed an aggregate term of imprisonment of 2 years and 6 months to be served by way of an intensive correction order (ICO), an order that allows a custodial sentence to be served under supervision in the community rather than in full-time custody.

The orders as entered on 1 May 2020 contained several errors. They included a non-parole period, specified a commencement date that did not sit comfortably with the statutory framework, and failed to include the mandatory standard and additional conditions that the legislation requires every ICO to carry.

This No 2 judgment addressed those errors, using the Court's power under r 50C(3) of the Criminal Appeal Rules (NSW) to set aside or vary an order within 14 days of its entry.

  • Whether the orders entered on 1 May 2020 required variation, and if so on what basis
  • Whether it was permissible to specify a non-parole period alongside an ICO
  • How to determine the correct commencement date of the ICO, given that the applicant had been on bail for a significant period pending the appeal
  • Whether the mandatory standard conditions and at least one additional condition of the ICO needed to be expressly stated in the orders

Decision

Non-parole period. Section 7(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act) expressly prohibits a court from setting a non-parole period when directing that a sentence be served by way of an ICO. The reference to a non-parole period in Order 3 was accordingly incorrect and had to be deleted.

Commencement date. Section 71(1) of the Sentencing Act provides that an ICO commences on the date it is made. Two earlier Court of Criminal Appeal decisions, R v Pullen and Blanch v R, had backdated ICOs to align with the original sentencing date, relying on the substitution power in s 6(3) of the Criminal Appeal Act 1912 and on pre-sentence custody provisions. In this case, however, neither approach translated cleanly, because the applicant had been on bail for a substantial period between the original sentence and the resentence on appeal, making the periods of pre- and post-sentence custody difficult to account for by simple backdating. The Court instead adopted a different approach: it commenced the ICO on 1 May 2020 (the date the resentence was passed) but reduced the aggregate term from 2 years and 6 months to 2 years, 2 months and 7 days to credit the applicant for the approximately 3 months and 24 days he had spent in custody. The effective length of the order remained unchanged.

Standard and additional conditions. Sections 73 and 73A of the Sentencing Act require a sentencing court to impose mandatory standard conditions on every ICO, and at least one additional condition, at the time of sentence. The original Order 4 had not included these conditions. The Court supplemented the order to include the two standard conditions (no offending; submission to community corrections supervision) and an abstention-from-drugs condition as the appropriate additional condition for this applicant, operative for the duration of the order.

Orders Made

  • Order 3 varied: The aggregate term of imprisonment was re-expressed as 2 years, 2 months and 7 days, commencing 1 May 2020 and expiring 7 July 2022, to be served by way of an ICO. The non-parole period was deleted.
  • Order 4 set aside and replaced: The ICO was expressed to be subject to the following conditions:
  • The offender must not commit any offence
  • The offender must submit to supervision by a community corrections officer
  • The offender is to abstain from consuming drugs

Key Takeaways

  • Under s 7(2) of the Sentencing Act, a non-parole period cannot coexist with an ICO direction; any order purporting to set both is defective on its face.
  • The Court of Criminal Appeal confirmed that r 50C(3) of the Criminal Appeal Rules provides a narrow but available mechanism to correct entered orders within 14 days, and that the time limit is strict (r 50C(4) expressly prevents extension).
  • Where backdating to the original sentencing date is impractical, because a significant period of bail has intervened, a sentencing court on appeal may instead commence the ICO from the date of resentence and reduce the aggregate term to credit prior custody periods.
  • Under ss 73 and 73A of the Sentencing Act, the standard ICO conditions and at least one additional condition must be expressly imposed at the time of sentence; they are not implied and must appear in the orders themselves.
  • The decision illustrates how the Blanch and Pullen approaches to backdating ICOs on resentence apply principally to cases involving pre-sentence custody, and may not translate to cases where the offender has been at liberty on bail pending the appeal.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3, 7, 47, 71, 73, 73A
- Criminal Appeal Rules (NSW), r 50C
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- Sahyoun v R [2020] NSWCCA 87 (the principal resentencing decision)
- Blanch v R [2019] NSWCCA 304
- R v Pullen [2018] NSWCCA 264