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Court of Criminal Appeal 29 June 2022

Ahmad v R

[2022] NSWCCA 144

Theft & property
CRIMINAL LAW APPEAL AGAINST SENTENCE APPEAL AGAINST SENTENCE APPEAL AGAINST SENTENCE

Citation: Ahmad v R [2022] NSWCCA 144
Court: NSW Court of Criminal Appeal
Date: 29 June 2022
Judges: Meagher JA, Mitchelmore JA (with reasons), Bellew J

Background

The applicant pleaded guilty in the District Court to three offences: stealing a motor vehicle, taking and driving a conveyance without the owner's consent, and larceny. The offences involved two separate incidents in February 2021, during which the applicant broke into vehicles, removed ignition barrels, and stole one vehicle and goods from another. He was sentenced to 2 years and 3 months imprisonment with a non-parole period of 12 months, backdated to 25 August 2021.

At the time of the offences, the applicant was on parole from a 2017 drug supply sentence. The State Parole Authority revoked his parole on 17 March 2021, but stipulated that the revocation was to be treated as having taken effect from 29 January 2021, a date that pre-dated the offending.

The applicant sought leave to appeal his sentence on three grounds: that the sentencing judge took into account an irrelevant factor; that he was incorrectly found to have been on conditional liberty at the time of the offences (and that this was treated as an aggravating factor); and that the sentencing judge failed to consider an intensive correction order (ICO) as required by statute.

  • Whether comments made by the sentencing judge during pre-sentence exchanges with parties could demonstrate that an irrelevant factor was taken into account in the final reasons for sentence.
  • Whether the backdated revocation of a parole order (under s 171(4) of the Crimes (Administration of Sentences) Act 1999 (NSW)) retrospectively altered an offender's status so that he was no longer on conditional liberty at the time of offending, removing it as an aggravating factor under s 21A(2)(j) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • Whether the sentencing judge was obliged to expressly consider s 66 of the Crimes (Sentencing Procedure) Act 1999 (NSW) in relation to an ICO, where the applicant had raised but ultimately not pressed that submission.

Decision

Ground 1: Irrelevant factor. The applicant's argument rested on comments made during an exchange between the sentencing judge and the parties before sentence was formally delivered. The Court found those exchanges did not form part of the sentencing judge's reasons. An applicant cannot rely on pre-sentence exchanges to establish error in the sentence itself.

Ground 2: Conditional liberty and the backdated revocation. The Court held that the applicant's concession before the sentencing judge, that he was on conditional liberty at the time of offending, was properly made. Section 171(4) of the Crimes (Administration of Sentences) Act 1999 operates prospectively: it extends the term of a sentence by reference to the days the offender was at large after the revocation takes effect. It does not retrospectively alter an offender's status in the community at a time before any revocation order was made. The fact that the Parole Authority nominated a backdated revocation date of 29 January 2021 did not mean the applicant was not on conditional liberty when he committed the offences.

Ground 4: ICO and s 66. The Court accepted the Crown's account of what occurred at the sentencing hearing: after the judge indicated the sentence he proposed, the applicant's counsel did not press the earlier submission for an ICO. Because the submission had not been maintained, the sentencing judge was not obliged to direct himself to s 66. The Court distinguished the decision in Blanch v R [2019] NSWCCA 304, where the entire case for the applicant at first instance had been premised on an ICO being ordered. No such circumstances existed here.

Leave to appeal was granted, but the appeal was dismissed on all grounds.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal dismissed.

Key Takeaways

  • Statements made by a sentencing judge during pre-sentence exchanges with counsel do not form part of the formal reasons for sentence and cannot, without more, establish that an irrelevant factor was taken into account.
  • Under s 171(4) of the Crimes (Administration of Sentences) Act 1999 (NSW), the backdating of a parole revocation order operates prospectively to extend a sentence for time spent "at large." It does not retroactively change an offender's status as a person on conditional liberty at the time of offending.
  • Where an applicant's counsel raises but then abandons a submission for an ICO after hearing the sentence proposed by the judge, the sentencing court is not required to address s 66 of the Crimes (Sentencing Procedure) Act 1999 (NSW) in its reasons.
  • In dismissing the appeal, the Court confirmed that Blanch v R is limited to circumstances where the applicant's entire sentencing case was built around obtaining an ICO, making it clearly distinguishable from cases where that option was simply not pressed at the hearing.
  • A concession made by an applicant's counsel on a legal question before the sentencing court carries weight on appeal; the Court confirmed that the concession regarding conditional liberty was properly made in the circumstances.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 117, 154A(1)(a), 154F
- Crimes (Administration of Sentences) Act 1999 (NSW), s 171
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(j), 66

Cases:
- Blanch v R [2019] NSWCCA 304
- Dang v R [2014] NSWCCA 47
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Mohindra v R [2020] NSWCCA 340
- Morrison v R [2009] NSWCCA 211; (2009) 197 A Crim R 103