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District Court 3 September 2020

R v Brookes (No. 2)

[2020] NSWDC 504

Public order & justice offences

Citation: R v Brookes (No. 2) [2020] NSWDC 504
Court: District Court of New South Wales
Date: 3 September 2020
Judge: Letherbarrow SC DCJ

Background

The offender had been sentenced on 14 August 2020 following a sentence hearing on 22 July 2020. The original sentence imposed a non-parole period of 2 years and 5 months backdated to commence on 18 August 2018, with a total sentence of 3 years and 9 months expiring on 17 May 2022.

Shortly after sentence was imposed, Crown counsel filed submissions on 19 August 2020 seeking to reopen the proceedings under s 43 of the Crimes (Sentencing Procedure) Act 1999, on the basis that the commencement date contained an error. Defence counsel agreed in written submissions that the commencement date appeared to be infected by error.

The error arose from the interaction between the subject offence, the offender's earlier custodial history, and a subsequent parole revocation. The offender had been released to parole on 9 December 2018, committed the subject offence on 16 December 2018, was arrested for that offence on 18 December 2018, and had remained in custody since. His parole for earlier offences was then revoked on 9 January 2019, with the revoked parole period expiring on 11 August 2019.

  • Whether the original commencement date of 18 August 2018 was contrary to law, warranting reopening of proceedings under s 43 of the Crimes (Sentencing Procedure) Act 1999
  • What the correct commencement date should be, given the interaction between the sentence for the subject offence and the period of revoked parole
  • Whether the sentence should run concurrently, partly cumulatively, or fully cumulatively with the revoked parole period
  • Whether the statutory ratio between the head sentence and the non-parole period should also be revisited

Decision

The District Court accepted that the original commencement date of 18 August 2018 was erroneous. Under s 24 of the Crimes (Sentencing Procedure) Act 1999, a sentencing court must take into account time spent in custody in relation to the offence, and under s 47(3), when backdating a sentence, the court must account for that custody. Because the offender was not taken into custody for the subject offence until 18 December 2018, the sentence could not lawfully commence prior to that date.

Three options were before the court as to the appropriate commencement date. A concurrent sentence would commence on 18 December 2018; a partly cumulative sentence would commence on a date between 9 January 2019 and 11 August 2019; and a fully cumulative sentence would commence on 12 August 2019. The Crown urged a partly cumulative approach, while the defence submitted for full concurrency from 18 December 2018.

The court exercised its discretion to backdate the sentence to 18 December 2018, making the sentence run concurrently with the revoked parole period. The court noted that the parole revocation was entirely caused by the subject offence, and that while the offender had committed the offence only seven days after release (suggesting poor adaptation to community living), care was needed to avoid double-counting the aggravating circumstance of offending on parole. The court also noted that the bulk of the offending was drug-related.

The court declined to revisit the ratio between the head sentence and the non-parole period. The offender's written submissions had argued for a variation to that ratio, but the court found no error of law in the ratio as originally determined and refused to reopen that aspect of the sentencing remarks.

Orders Made

  • The corrected sentence imposes a non-parole period of 2 years and 5 months commencing on 18 December 2018 and expiring on 17 May 2021, at which point the offender becomes eligible for parole
  • The total sentence is 3 years and 9 months commencing on 18 December 2018 and expiring on 17 September 2022
  • Paragraphs 15, 62, and 63 of the original remarks on sentence and original orders 1 and 2 were withdrawn

Key Takeaways

  • Under s 24 and s 47(3) of the Crimes (Sentencing Procedure) Act 1999, a sentence cannot be backdated to a date before the offender was first taken into custody in relation to the offence in question; doing so constitutes an error that can be corrected by reopening under s 43.
  • A sentencing court retains a discretion, confirmed in R v Newman, R v Simpson (2004), to backdate a sentence rather than discount it, and backdating is generally the preferred approach.
  • Where a parole revocation flows directly from the commission of the subject offence, the court may exercise a discretion to make the sentence concurrent with the revoked parole period, with reasons given for that course: see R v Gray [2018] NSWCCA 241.
  • The risk of double-counting is a live consideration where an offence is already treated as aggravated by having been committed on parole, and that same circumstance is also weighed in determining how the sentence relates to the revoked parole period.
  • Reopening proceedings under s 43 does not automatically reopen all aspects of the original sentence; the District Court here declined to revisit the statutory ratio between the head sentence and the non-parole period, finding no legal error in that aspect of the original orders.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 24, 43, 47(2), 47(3)

Cases
- R v Gray [2018] NSWCCA 241
- R v Newman, R v Simpson (2004) 145 A Crim R 361
- Callaghan v R (2006) 168 A Crim R 145