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Court of Criminal Appeal 6 May 2024

Huynh v R

[2024] NSWCCA 61

Theft & propertyDomestic & family violence

Citation: Huynh v R [2024] NSWCCA 61
Court: Court of Criminal Appeal, New South Wales
Date: 6 May 2024
Judges: Adamson JA; Basten AJA; Wilson J

Background

The applicant pleaded guilty in the District Court to aggravated break and enter with intent (knowing persons were present) and contravention of an Apprehended Domestic Violence Order. On 10 February 2023, the sentencing judge imposed an aggregate sentence of four years' imprisonment with a non-parole period of three years, backdating the commencement date to 17 March 2022.

The chronology of the applicant's pre-sentence custody was complicated. Between his arrest for the subject offences in October 2021 and the imposition of sentence, he spent 372 days in custody in total. Of that figure, 311 days were directly referable to the subject offences, 24 days arose from a separate arrest for unrelated offences (the H83833822 offences), and 38 days arose from a further arrest for other offences (the H85215060 offences). Community correction orders were ultimately imposed for both sets of unrelated offences. A further 14 days passed between the sentence hearing on 27 January 2023 and the pronouncement of sentence on 10 February 2023.

The applicant sought leave to appeal on the sole question of the sentence's commencement date, arguing the sentencing judge had both made an arithmetical error and failed to give proper credit for the full extent of his pre-sentence custody.

  • Whether the sentencing judge made an arithmetical error by failing to account for the 14 days in custody between the sentence hearing and the imposition of sentence.
  • Whether the sentencing judge erred in the exercise of the discretion under s 47(2)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW) to backdate the sentence commencement date.
  • Whether the sentencing judge was required to take into account the 24 days and 38 days of pre-sentence custody referable to the unrelated H83833822 and H85215060 offences respectively.

Decision

Ground 1: Arithmetical error (unanimous)

The Crown conceded, and all three judges agreed, that the sentencing judge had failed to account for the 14 days in custody between the sentence hearing and the date sentence was formally imposed. This error alone would have warranted backdating the commencement date by a further 14 days, to 3 March 2022.

Ground 2: Exercise of discretion on pre-sentence custody (majority)

Adamson JA and Wilson J held that the sentencing judge's discretion under s 47(2)(a) must be exercised on a principled basis and with reasons. Because the sentencing judge neither explained why he chose to backdate by 330 days nor addressed how that figure related to the periods in custody for the unrelated offences, the majority found error was established.

The majority further found that, in the absence of any evidence from the Crown that the 24-day and 38-day periods had already been taken into account when the magistrates imposed the community correction orders, the sentencing judge should have credited the applicant for those periods. However, the applicant's counsel conceded on appeal that the 38 days for the H85215060 offences should not be included, which the Court accepted as a reasonable inference that those days had in fact been considered by the relevant magistrate. The 24 days for the H83833822 offences were therefore included in the recalculation.

Basten AJA in dissent on Ground 2

Basten AJA agreed on the arithmetical error but dissented on the broader approach to backdating. His Honour considered that, where the prosecution at the sentence hearing had not objected to taking both unrelated periods into account, and double counting is impermissible, the Court should have inferred the periods had not been credited in the community correction orders and credited all 372 days. In his Honour's view, the fact that a period of custody is referable to two different sets of offences is not automatically a reason to exclude it from backdating.

Orders Made

  • Leave to appeal granted from the aggregate sentence imposed by the District Court on 10 February 2023.
  • The commencement date of the sentence varied: a non-parole period of three years to commence on 19 January 2022 and expire on 18 January 2025, with an additional term of one year expiring on 18 January 2026.
  • The earliest eligible date for release to parole is 18 January 2025.

Key Takeaways

  • A sentencing judge's discretion to backdate a sentence commencement date under s 47(2)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW) must be exercised on a principled basis, with the reasoning explained, particularly where the calculation of pre-sentence custody is contested or involves multiple unrelated matters.
  • The period between a sentence hearing and the formal pronouncement of sentence counts as pre-sentence custody and must be reflected in the commencement date.
  • Where the Crown does not establish that a period of pre-sentence custody referable to unrelated offences was already taken into account in sentencing for those offences, the sentencing court should credit the applicant with that period when backdating.
  • Concessions made by an applicant's counsel on appeal as to the quantum of pre-sentence custody to be credited are entitled to significant weight; the Court of Criminal Appeal accepted that such a concession reasonably implied the existence of material showing credit had been given elsewhere.
  • Basten AJA's dissent confirms that the mere fact a period of custody is referable to two different sets of offences does not, without more, preclude that period from being taken into account in backdating, with Regina v Karageorge [1999] NSWCCA 213 applied.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 113
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 14
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 24, 43, 47
- Criminal Appeal Act 1912 (NSW), s 5
- Criminal Procedure Act 1986 (NSW), s 166

Cases
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Regina v Karageorge [1999] NSWCCA 213
- R v McHugh (1985) 1 NSWLR 588
- Erceg v District Court (NSW) [2003] NSWCA 379; 143 A Crim R 455
- Regina v Erceg [2004] NSWCCA 15
- Regina v English [2000] NSWCCA 245
- Wiggins v R [2010] NSWCCA 30
- Martinez v R [2015] NSWCCA 5
- Mattiussi v R [2023] NSWCCA 289
- McIntosh v R [2015] NSWCCA 184
- R v RJ [2023] NSWCCA 273
- R v Wood [2005] NSWCCA 159
- R v Huynh [2023] NSWDC 24