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District Court 2 August 2022

Refojos v R

[2022] NSWDC 417

Traffic & drivingFirearms & weapons
CRIME APPEAL SEVERITY OF SENTENCE DRIVING OFFENCE SENTENCE CUSTODY SENTENCES ADJUSTED.

Citation: Refojos v R [2022] NSWDC 417
Court: District Court of New South Wales
Date: 2 August 2022
Judge: Neilson DCJ

Background

The appellant was sentenced by a Local Court Magistrate at the Downing Centre on 24 June 2022 for two separate offences. The first was driving a motor vehicle during a period of disqualification (a further offence of that type), committed at Surry Hills in the early hours of 9 January 2022. The second was having custody of a knife in a public place without a reasonable excuse (also a further offence), committed at Brighton Le Sands on 23 May 2022.

For the driving offence, the Magistrate imposed a fixed term of imprisonment of three months, commencing 24 May 2022. For the knife offence, the Magistrate imposed an Intensive Corrections Order (ICO) of 12 months, to commence at the expiration of the custodial sentence.

The appellant appealed against the severity of both sentences. The appeal raised two technical errors in the sentences as imposed, as well as a challenge to the length of the ICO.

  • Whether the sentencing Magistrate correctly accounted for pre-sentence custody when calculating the commencement date of the custodial sentence
  • Whether an ICO can lawfully be ordered to commence at the expiration of a separate custodial sentence, given the terms of s 71 of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Whether the length of the 12-month ICO was appropriate having regard to the nature of the offending and the discount for an early guilty plea

Decision

Pre-sentence custody: The appellant had been held in custody for 18 days solely referable to the driving offence (three days in January 2022 and 15 days in February to March 2022). The Magistrate did not account for these days. The custodial sentence should therefore have commenced on 5 May 2022, not 24 May 2022.

ICO commencement error: Section 71(1) of the Crimes (Sentencing Procedure) Act 1999 provides that an ICO commences on the day it is made. The limited exception in s 71(2) did not apply. The Magistrate's order that the ICO commence at the expiration of the custodial sentence was therefore contrary to law. Neilson DCJ resolved both errors together by reducing the custodial sentence by two days so that it expired on the date of the appeal hearing, allowing the ICO to commence immediately on that day.

Length of the ICO: The appellant had pleaded guilty at an early stage, attracting a 25% discount. The District Court found that the Magistrate's starting point of 16 months (out of a possible 24-month head sentence) was well above the mid-range of seriousness and not warranted by either the nature of the offence or the circumstances of the plea. Neilson DCJ assessed the correct starting point as 14 months, which after the 25% discount produced a head sentence of 10 months.

Community service hours: The submission that 100 hours of community service was onerous was rejected. Given the appellant's certified capacity to perform 21 hours of work per month, completing 100 hours over a 10-month ICO was not considered excessive.

Orders Made

  • The sentences imposed by the Downing Centre Local Court on 24 June 2022 were set aside.
  • For the driving offence: imprisonment for 3 months less 2 days, commencing 5 May 2022 and expiring 2 August 2022.
  • For the knife offence: imprisonment for 10 months to be served by way of an Intensive Corrections Order, commencing 2 August 2022, with the following conditions:
  • Not commit any offence
  • Submit to supervision by a Community Corrections officer
  • Complete 100 hours of community service work
  • Participate in rehabilitation/treatment as directed by Community Corrections
  • Abstain from drugs
  • Report to Sutherland Community Corrections Office by close of business on 5 August 2022

Key Takeaways

  • Under s 71(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), an ICO commences on the day it is made; a sentencing court cannot order it to take effect at the expiration of a separate custodial sentence (subject to the limited exception in s 71(2), which will not apply in most cases).
  • Pre-sentence custody directly referable to the offence being sentenced must be factored into the calculation of the sentence commencement date; failure to do so constitutes an error warranting correction on appeal.
  • The District Court found that a starting point of 16 months for a knife-in-public-place offence (against a 24-month maximum) was not justified by the circumstances and sat well above the mid-range of seriousness.
  • An early guilty plea entered at the first available opportunity attracted a 25% sentencing discount on the facts of this case.
  • Requiring 100 hours of community service over a 10-month ICO was not considered onerous where the offender had a certified work capacity of 21 hours per month.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), particularly s 71(1) and s 71(2)

Cases cited: None cited in the judgment.