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Court of Criminal Appeal 7 November 2022

Grimes v R

[2022] NSWCCA 237

Drugs
CRIME APPEALS APPEAL AGAINST SENTENCE CONCURRENCE BETWEEN PARTIES APPLICANT RE SENTENCE WITH CORRECT BACKDATE APPLIED

Citation: Grimes v R [2022] NSWCCA 237
Court: NSW Court of Criminal Appeal
Date: 7 November 2022
Judges: Button J; Fagan J; Yehia J

Background

The applicant had pleaded guilty to one count of conspiring to import two border-controlled drugs in a commercial quantity. On 21 April 2021, Judge Norrish QC sentenced him to a total term of 9 years' imprisonment with a non-parole period of 6 years.

Despite the sentencing judge explicitly raising the question of the correct commencement date, both counsel provided incorrect information, resulting in the sentence being backdated to the wrong date. The error meant the applicant's sentence commenced later than it should have.

The sole ground of appeal was the miscalculation of the backdate. Both parties agreed, after checking the matter, that the correct commencement date should have been 16 September 2019.

  • Whether a discrete backdating error in a sentence can be corrected on appeal without reopening the sentencing discretion at large.
  • What the correct commencement date of the applicant's sentence should be.

Decision

The Court of Criminal Appeal accepted the joint position of the parties that the sentence had been given an incorrect commencement date due to confusion on the part of both counsel at the original sentencing. Both parties had independently verified that 16 September 2019 was the correct backdating date.

The Court agreed with both parties that this type of error is discrete and mathematical in nature. It does not constitute the kind of error that reopens sentencing at large under s 6(3) of the Criminal Appeal Act 1912 (NSW), as confirmed by the High Court in Kentwell v The Queen and the Court of Criminal Appeal in Lehn v R. Accordingly, the court corrected the commencement date without otherwise disturbing the sentence.

The head sentence and non-parole period remained unchanged at 9 years and 6 years respectively. Only the commencement date and the resulting expiry dates were altered to reflect the correct calculation.

Orders Made

  • Leave to appeal out of time, and leave to appeal, granted.
  • Appeal allowed.
  • The applicant is sentenced to a total term of imprisonment of 9 years, with a non-parole period of 6 years, commencing on 16 September 2019.
  • The head sentence is to expire on 15 September 2028.
  • The non-parole period is to expire on 15 September 2025.
  • The first date on which the applicant will be eligible for possible release to parole is 15 September 2025.

Key Takeaways

  • A discrete mathematical error in the backdating of a sentence does not reopen the sentencing discretion at large under s 6(3) of the Criminal Appeal Act 1912 (NSW). The Court of Criminal Appeal confirmed it can be corrected in isolation.
  • Both Kentwell v The Queen (2014) 252 CLR 601 and Lehn v R [2016] NSWCCA 45 were cited as authority for the principle that not every sentencing error triggers a full resentencing exercise.
  • Where both parties agree on a discrete arithmetic correction to a sentence, the Court of Criminal Appeal can resolve the matter on the papers without extended argument.
  • Confusion between counsel at the original sentencing hearing about the applicable backdate does not prevent the appellate court from correcting the error, even when the sentencing judge had expressly raised the question.
  • Correcting a commencement date in these circumstances leaves the structure of the original sentence, including the head term and non-parole period, entirely intact.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Lehn v R [2016] NSWCCA 45