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Court of Criminal Appeal 18 August 2021

Hunt v R

[2021] NSWCCA 192

Sexual offencesDomestic & family violence
SENTENCE CUSTODY BROKEN PERIODS OF PRE SENTENCE CUSTODY WHERE ONLY SECOND PERIOD OF PRE W HETHER FIRST PERIOD OF PRE

Citation: Hunt v R [2021] NSWCCA 192
Court: NSW Court of Criminal Appeal
Date: 18 August 2021
Judges: McCallum JA, Rothman J, Wright J (judgment of Wright J)

Background

The applicant was convicted in the District Court of six counts of domestic violence and sexual offences against his former partner, following a jury trial in October 2019. On 13 July 2020, the sentencing judge imposed an aggregate sentence of 11 years' imprisonment commencing 31 October 2019, with a non-parole period of 6 years and 8 months.

There were two separate periods of pre-sentence custody. The first ran from 9 or 10 June 2017 (arrest and bail refusal) to 22 March 2018, when the Supreme Court granted conditional bail. The second ran from 31 October 2019 (when the jury returned its verdict) until the date of sentencing.

The sentencing judge backdated the aggregate sentence to the commencement of the second period of pre-sentence custody. For the first period, the judge stated only that she had "taken into account" approximately 286 days of custody in sentencing the applicant for the sexual offences, without backdating the sentence by that period and without explaining why she had taken that approach.

  • Whether the sentencing judge erred by failing to backdate the sentence to account for the first period of pre-sentence custody, and by failing to give reasons for not doing so.
  • Whether the aggregate sentence was manifestly excessive (this ground was not ultimately considered given the outcome on the first ground).

Decision

The Court of Criminal Appeal found error in the sentencing judge's approach to the first period of pre-sentence custody. While the Court accepted that backdating is the preferable, but not mandatory, method for taking pre-sentence custody into account, it confirmed that where a judge declines to backdate, clear reasons must be given for that choice and for how the custody period has otherwise been factored into the sentence.

The sentencing judge's remarks disclosed neither why she did not backdate the sentence by the first period of custody, nor how that period was concretely taken into account. The Court found it was impermissible to leave the matter unexplained in a way that required speculation about the sentencing process. This lack of transparency constituted appellable error.

Having allowed the first ground of appeal, the Court did not proceed to consider the second ground concerning manifest excess. The Court resentenced the applicant to an aggregate term of 9 years and 6 months, commencing 17 January 2019, with a non-parole period of 5 years and 8 months. The earlier commencement date effectively gave credit for the first period of pre-sentence custody through backdating.

Orders Made

  • Leave to appeal granted.
  • The appeal is allowed.
  • The sentence imposed by the District Court on 13 July 2020 is quashed.
  • In lieu, the applicant is sentenced to an aggregate sentence of 9 years and 6 months, commencing 17 January 2019 and expiring 16 July 2028, with a non-parole period of 5 years and 8 months expiring 16 September 2024.
  • The applicant will first be eligible to be released on parole from 16 September 2024.
  • The offences are to be recorded on the applicant's criminal record as domestic violence offences pursuant to s 12(2) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).

Key Takeaways

  • Under s 24(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), a sentencing court must take into account any time an offender has spent in custody in relation to the offence. Backdating the sentence is the preferred method of doing so, but is not the only permissible approach.
  • Where a sentencing judge declines to backdate and instead takes a period of pre-sentence custody into account by some other means, clear and transparent reasons must be given both for not backdating and for the manner in which the custody period has been accounted for.
  • A bare statement that pre-sentence custody has been "taken into account" is insufficient if the sentencing remarks leave the parties and any appellate court to speculate about how and why that approach was adopted.
  • The Court of Criminal Appeal confirmed that broken or non-continuous periods of pre-sentence custody each require proper treatment, and the adequacy of the sentencing judge's reasoning in relation to each discrete period will be assessed on appeal.
  • In resentencing, the Court gave practical effect to the first period of pre-sentence custody by backdating the commencement of the aggregate sentence to 17 January 2019, a date reflecting appropriate credit for that period.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 12(2), 13(1), 14(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 24(1), 47(2), 47(3), 53A(2)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases
- Bugmy v The Queen (2013) 249 CLR 571
- DL v The Queen (2018) 265 CLR 215
- Kentwell v The Queen (2014) 252 CLR 601
- Kliendienst v R [2020] NSWCCA 98
- Lehn v R (2016) 93 NSWLR 205
- R v Argent [2004] NSWCCA 270
- R v English [2000] NSWCCA 245
- R v Howard [2001] NSWCCA 309
- R v Johnson [2005] NSWCCA 186
- R v Lulham [2016] NSWCCA 287
- R v McHugh (1985) 1 NSWLR 588
- R v Newman; R v Simpson [2004] NSWCCA 102
- Rodgers v R [2018] NSWCCA 47
- Salafia v R [2015] NSWCCA 141
- Smith v The Queen (1957) 97 CLR 100
- Wiggins v R [2010] NSWCCA 30