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Court of Criminal Appeal 26 August 2022

Shavali v R

[2022] NSWCCA 178

Public order & justice offences
CRIME SENTENCE APPEAL AGAINST SENTENCE FAILURE TO TAKE PRE INTENSIVE CORRECTION ORDER IMPOSED ERROR CONCEDED BY CROWN

Citation: Shavali v R [2022] NSWCCA 178
Court: NSW Court of Criminal Appeal
Date: 26 August 2022
Judges: Brereton JA, Wilson J, Cavanagh J

Background

The applicant had been sentenced in November 2020 to an aggregate term of three years imprisonment, to be served by way of an Intensive Correction Order (ICO). An ICO is a community-based sentence that imposes conditions such as supervision, community service work, and restrictions on travel, as an alternative to full-time custody.

The applicant had spent approximately one year and 73 days in pre-sentence custody before the sentence was imposed. He sought leave to appeal on the basis that the sentencing judge failed to demonstrably take that pre-sentence custody into account when fixing the three-year term.

By the time the appeal was heard, the applicant had completed both the community service component and a period of supervision under the ICO. His remaining obligations were minimal: notifying the Community Corrections Office of any change of address, not leaving the State or Australia without permission, and accepting resumed supervision if directed.

  • Whether the sentencing judge erred by failing to demonstrate that pre-sentence custody had been taken into account when fixing the aggregate sentence
  • Whether any sentencing error warranted resentencing, and if so, what the correct sentence should be
  • Whether the Court of Criminal Appeal could backdate a new ICO to the date of the original sentence, or was required to commence any new ICO from the date of resentencing
  • Whether, given the practical constraints, resentencing to any further ICO would impose a harsher burden on the applicant than the sentence already being served
  • Whether the appeal had any real utility given the applicant's circumstances at the time of hearing

Decision

The Crown conceded Ground 1. Although the sentencing judge had clearly been aware of the pre-sentence custody, it was not apparent from the sentencing remarks how that custody had been factored into the term imposed. The Court held that the requirement for the sentencing discretion to be demonstrably exercised with regard to pre-sentence custody was not satisfied, and error was established. Ground 2 (manifest excess) was not addressed, as the Court was not persuaded the aggregate sentence was unreasonable or plainly unjust.

Having found error, the Court was required to resentence. This task presented what Brereton JA described as unique difficulties. Established authority from Mandranis v R and R v Edelbi confirmed that any new ICO made by the Court of Criminal Appeal must commence from the date on which it is imposed; it cannot be backdated to the date of the original sentence. An earlier decision in Blanch v R had permitted backdating, but the Court in Mandranis declined to follow that approach, and the Court in Edelbi agreed with Mandranis. Those authorities required the Court to deduct time already served and impose a sentence for the balance only.

Applying that approach, the period remaining to be served would have been less than one month. However, the Court recognised a further difficulty: any new ICO would, by statute, require the applicant to submit to supervision from its commencement. At the time of resentencing, the applicant was subject to only minimal restrictions and was not under active supervision. Imposing a short ICO would therefore increase the burden on his liberty compared with his current position, making it a harsher outcome for a successful appellant. The Court found this result both unjust and practically pointless.

The Court ultimately dismissed the appeal. While the Justices agreed that a lesser sentence had been warranted and that the error was real, no available resentencing option could produce a genuinely better outcome for the applicant. Cavanagh J added that the lack of any practical benefit to the applicant had been apparent throughout the proceedings, and it was regrettable that the utility of the appeal had not been assessed at an earlier stage.

Orders Made

• Grant leave to the applicant to appeal
• Dismiss the appeal

Key Takeaways

  • The Court of Criminal Appeal confirmed that it is not sufficient for a sentencing judge merely to refer to pre-sentence custody in passing; the sentencing remarks must demonstrate how that custody was taken into account in fixing the term.

  • Under ss 70 and 71 of the Crimes (Sentencing Procedure) Act 1999 (NSW), an ICO imposed by the Court of Criminal Appeal on resentencing must commence on the date it is made and cannot be backdated to the date of the original sentence, following Mandranis v R and R v Edelbi (which declined to follow the earlier approach in Blanch v R).

  • Where an applicant has largely completed an ICO by the time the appeal is heard, resentencing to a fresh ICO may impose greater restrictions on liberty than the applicant currently faces, producing a harsher rather than a more lenient outcome for a successful appellant.

  • The judgment illustrates the practical trap created by the interaction between statutory ICO commencement requirements and the obligation to account for pre-sentence custody: the legislation can prevent the Court from imposing the sentence it identifies as appropriate. Brereton JA observed that any remedy for this structural problem lies with the legislature.

  • In dismissing the appeal, the Court signalled that the utility of a sentence appeal should be assessed at an early stage, particularly where the applicant has substantially completed the sentence and the available resentencing options offer no real benefit.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 70, 71, 73(2)(b)
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Weapons Prohibition Act 1998 (NSW)

Cases:
- Blanch v R [2019] NSWCCA 304
- Casella v R [2019] NSWCCA 201
- Deron v R [2006] NSWCCA 73
- Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54
- JJ v R [2020] NSWCCA 165
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Mandranis v R (2021) 298 A Crim R 260; [2021] NSWCCA 97
- Parker v Director of Public Prosecutions (1992) 28 NSWLR 282
- R v Edelbi (2021) 105 NSWLR 133; [2021] NSWCCA 122
- R v Zamagias [2002] NSWCCA 17