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Court of Criminal Appeal 8 September 2023

Kljaic v R

[2023] NSWCCA 225

Traffic & driving
CRIMES APPEALS APPEALS AGAINST SENTENCE

Citation: Kljaic v R [2023] NSWCCA 225
Court: NSW Court of Criminal Appeal
Date: 8 September 2023
Judge(s): Beech-Jones CJ at CL, Harrison J, Wright J (Wright J delivering the principal judgment, with the others agreeing)

Background

The appellant pleaded guilty in the Local Court to two driving offences: furiously driving a motor vehicle causing bodily harm, and aggravated dangerous driving occasioning grievous bodily harm. In the District Court at Campbelltown, Colefax SC DCJ imposed an aggregate sentence of 4 years and 6 months' imprisonment.

The appellant had spent 199 days on remand before sentencing. The sentencing judge found that, during that remand period, the appellant had experienced what was described as "extra-curial punishment" (punishment falling outside the formal sentence, arising from the conditions of custody) due to Covid-19 restrictions and lockdowns. Specifically, the appellant was denied psychiatric and psychological services despite repeated requests, and was denied appropriate footwear, which was significant given his orthopaedic injuries.

To account for those conditions, the sentencing judge backdated the commencement of the sentence by a further 30 days beyond the 199 days actually spent on remand, so the sentence commenced 229 days before the date of sentence. The appellant challenged that approach on two grounds.

  • Whether the sentencing judge misapplied s 47 of the Crimes (Sentencing Procedure) Act 1999 (NSW) by backdating the sentence commencement date by 30 days more than the actual period spent in pre-sentence custody.
  • Whether the sentencing judge erred by treating the Covid-19 conditions adjustment as a discrete arithmetical step, rather than incorporating it into the instinctive synthesis that ordinarily governs the determination of a sentence.

Decision

On the first ground, Wright J (with whom the other judges agreed) held that ss 24(a) and 47(3) of the Crimes (Sentencing Procedure) Act 1999 do not limit the phrase "any time for which the offender has been held in custody" to a purely quantitative measure of days served. On its ordinary construction, "time" encompasses not only the duration of pre-sentence custody but also what occurred, and the conditions experienced, during that period. Accordingly, the sentencing judge was entitled to backdate the sentence commencement date by an additional 30 days to reflect the extra-curial punishment the appellant endured while on remand.

On the second ground, the Court considered whether using a discrete backdating adjustment, rather than folding the Covid-19 conditions into the overall instinctive synthesis, constituted error. The Court found it did not. The backdating adjustment was an arithmetical step that served distinct purposes: it made the sentencing reasoning transparent and accessible, and it operated separately from the purposes of sentencing set out in s 3A of the Act. Those features brought it within a recognised exception to the general rule against adding and subtracting from a subliminal figure.

The Court also rejected the argument that the additional 30-day backdating artificially inflated or effectively lengthened the overall sentence. The adjustment was confined to the conditions experienced during pre-sentence custody, as the appellant himself had framed the issue in his submissions before the sentencing judge. The Court was not persuaded that, absent the backdating, the sentence would have been shorter by more than 30 days.

Leave to appeal was granted because the grounds were arguable and warranted full consideration, but the appeal was dismissed.

Orders Made

  • Leave to appeal granted.
  • The appeal dismissed.

Key Takeaways

  • Under ss 24(a) and 47(3) of the Crimes (Sentencing Procedure) Act 1999, the phrase "any time" spent in pre-sentence custody is not confined to a bare count of days. It naturally encompasses the conditions and occurrences experienced during that custody.
  • A sentencing court may backdate the commencement of a sentence by more than the actual number of days spent on remand where extra-curial punishment has been identified, provided the adjustment is properly grounded in the remand conditions.
  • Arithmetical adjustments to a sentence commencement date, where used to promote transparency and to address matters distinct from the statutory purposes of sentencing, fall within recognised exceptions to the instinctive synthesis principle confirmed in Markarian v The Queen (2005) 228 CLR 357.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that such a discrete backdating step does not constitute error simply because it produces a commencement date earlier than the first day of remand.
  • The scope of any such adjustment remains anchored to what was specifically identified as extra-curial punishment during the remand period; it does not extend to conditions experienced after sentencing.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 52A(4), 53
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 24, 44, 47, 53A(2), 71
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Almaouie v R [2021] NSWCCA 274
- Bonett v R [2013] NSWCCA 234
- Gardiner v R [2018] NSWCCA 27
- Hughes v R [2008] NSWCCA 48
- Kaderavek v R [2018] NSWCCA 92
- R v Campbell [1999] NSWCCA 76
- R v Cartwright (1989) 17 NSWLR 243
- R v Eastway (CCA, unreported, 19 May 1992)
- R v English [2000] NSWCCA 245
- R v McHugh (1985) 1 NSWLR 588
- R v Newman; R v Simpson [2004] NSWCCA 102; 145 A Crim R 361
- Reddy v R [2018] NSWCCA 212
- Small v R [2018] NSWCCA 290
- Wiggins v R [2010] NSWCCA 30