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Court of Criminal Appeal 5 September 2023

Marai v R

[2023] NSWCCA 224

Sexual offences

Citation: Marai v R [2023] NSWCCA 224
Court: NSW Court of Criminal Appeal
Date: 5 September 2023
Judges: Kirk JA, Fagan J, Sweeney J

Background

The appellant was convicted in the District Court of using a carriage service to procure a person under 16 years of age for sexual activity, a Commonwealth offence. Before sentencing, his visa was cancelled and he was placed in immigration detention, meaning he spent a significant period in that detention while formally on bail in respect of the criminal proceedings.

The sentencing judge backdated the sentence by 77 days to account for pre-sentence custody in a correctional facility. However, the judge gave the appellant no credit for the 211 days he spent in immigration detention between his release on bail from remand custody and the date of sentencing. The appellant's counsel had specifically raised this period in submissions as a matter warranting credit, but the judge offered no reasons for declining to account for it.

The appellant did not challenge the length of the sentence itself. His appeal focused solely on whether the sentencing judge erred by ignoring the immigration detention period and by failing to explain that decision.

  • Whether the sentencing judge erred by failing to give reasons for not crediting the period of immigration detention when that matter had been expressly raised in submissions
  • Whether, on resentence, the appellant's time in immigration detention constituted "custody in relation to the offence" under ss 24(a) and 47 of the Crimes (Sentencing Procedure) Act 1999 (NSW) and s 16E of the Crimes Act 1914 (Cth)
  • How much of the immigration detention period should be credited, and by what legal mechanism

Decision

The Court of Criminal Appeal unanimously found error. By declining to credit the immigration detention and providing no reasons for that decision, despite it being squarely raised in submissions as a significant matter, the sentencing judge failed to properly exercise his sentencing discretion. The absence of reasons meant it was impossible to discern whether the judge had concluded the detention was not legally "custody," was not sufficiently connected to the offence, or had simply exercised a discretion against backdating without explanation.

On resentence, the majority (Sweeney J, Kirk JA agreeing) held that the 211-day immigration detention period should be credited by backdating the sentence commencement under the general discretion in s 47(2) of the Crimes (Sentencing Procedure) Act. The majority approached the matter as one of fairness, holding that the entire period in which the appellant was detained in connection with his prosecution should be recognised, without requiring evidence of hardship beyond the deprivation of liberty itself.

Fagan J agreed that error was established and that backdating was warranted, but took a narrower view of the relevant period. His Honour held that the immigration detention qualified as "custody in relation to the offence" under ss 24(a) and 47(3), but only from the point at which the Department of Home Affairs issued a Criminal Justice Stay Certificate (at the request of the Commonwealth Director of Public Prosecutions to hold the appellant for the purposes of finalising the criminal proceedings) until sentencing.

All three judges agreed that, in the absence of evidence about the particular conditions or burdens of immigration detention, it is open to treat such detention as equivalent to other forms of pre-sentence custody. The sentence terms themselves were confirmed as appropriate; only the commencement date required adjustment.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed in the District Court set aside
  • Appellant re-sentenced to 3 years imprisonment, commencing 7 January 2022, with release pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth) after serving 1 year and 8 months imprisonment on 6 September 2023

Key Takeaways

  • A sentencing judge who declines to credit pre-sentence immigration detention, when that issue has been expressly raised in submissions, must give reasons sufficient to explain the basis for that decision. Failure to do so constitutes error in the exercise of the sentencing discretion.
  • In the absence of evidence about the nature or conditions of immigration detention, a sentencing court has no basis for treating such detention as less burdensome than other forms of custody, and may treat it as equivalent for backdating purposes.
  • The majority of the Court of Criminal Appeal applied the general discretion under s 47(2) of the Crimes (Sentencing Procedure) Act to backdate the sentence for the full period of immigration detention connected to the prosecution, while Fagan J preferred to work through ss 24(a) and 47(3) and limit credit to the period covered by a Criminal Justice Stay Certificate.
  • Under s 16E of the Crimes Act 1914 (Cth), a sentencing court dealing with a Commonwealth offence must take into account any period spent in custody in relation to the offence. The Court confirmed that immigration detention can fall within this obligation, though the precise statutory pathway attracted different views among the judges.
  • Where the correct commencement date for a backdated sentence has already passed by the time of the appeal, the Court of Criminal Appeal may frame its orders so that release occurs the day after the appellate orders are made.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth), ss 16E, 20(1)(b)
- Criminal Code Act 1995 (Cth)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 24(a), 47

Cases
- Sahhitanandan v The Queen [2019] VSCA 115
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
- Refaieh v R [2018] NSWCCA 72
- R v Cheraghi [2020] NSWCCA 70
- Taylor v R [2020] NSWCCA 46
- Glynn Kaderavek v R [2018] NSWCCA 92
- Parhizkar v R [2014] NSWCCA 240
- Islam v The Queen [2014] ACTCA 2
- Alimudin v McCarthy; Nurdin v Bravos (2008) 23 NTLR 102; [2008] NTCA 7
- Underwood (a Pseudonym) v The Queen [No 2] [2018] VSCA 87
- R v Dadash [2012] NSWSC 1511
- Travelex Ltd v Federal Commissioner of Taxation (2010) 241 CLR 510; [2010] HCA 33