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Court of Criminal Appeal 9 July 2001

R v Rose [2001] NSWCCA 370 revised - 3

[2001] NSWCCA 370

Sexual offencesAssault & violence

Citation: R v Rose [2001] NSWCCA 370
Court: NSW Court of Criminal Appeal (on appeal from District Court)
Date: 9 July 2001
Judge(s): Simpson J, Sperling J

Background

The applicant pleaded guilty to sexual intercourse without consent and assault occasioning actual bodily harm at the commencement of his trial in the District Court at Lismore on 15 June 2000. Both offences were committed on 23 January 1999 against the same victim. The offending involved sustained sexual violence after the victim rejected the applicant's advances, and a contemporaneous triple-zero recording left no doubt as to the absence of consent.

The applicant was arrested on the day of the offences and held in custody for 17 days before being granted bail on 8 February 1999. At sentencing, the Crown incorrectly told the judge that the pre-sentence custody period was 24 days, and the judge proceeded on that basis, expressly noting the 24 days when imposing sentence.

The sentencing judge imposed five years imprisonment with a three-year minimum term for the sexual intercourse charge, and two years with a 15-month minimum term for the assault charge, both sentences to be served concurrently. The applicant sought leave to appeal, arguing that the sentencing judge had not properly dealt with the pre-sentence custody period in accordance with the Crimes (Sentencing Procedure) Act 1999.

  • Whether a sentencing court, having acknowledged a period of pre-sentence custody, is obliged under s 47(3) of the Crimes (Sentencing Procedure) Act 1999 to actually back-date the sentence to account for that custody.
  • Whether the sentencing judge's express acknowledgment of the pre-sentence custody period was sufficient to discharge the statutory obligation under s 47(3).

Decision

The central question was whether s 47(3) of the Crimes (Sentencing Procedure) Act 1999 requires a court to back-date a sentence when pre-sentence custody has been served, or whether it only requires the court to take that custody into account when exercising its discretion.

Simpson J adopted the reasoning of the Court of Criminal Appeal in R v Frascella, where Smart J held that s 47(3) imposes an obligation to consider pre-sentence custody but does not compel back-dating. The discretion to back-date under s 47(2)(a) remains with the sentencing judge. An express acknowledgment that the period has been taken into account is sufficient to satisfy the statutory requirement.

On the facts, Simpson J was satisfied that the sentencing judge had taken the pre-sentence custody period into account both in determining the length of the sentence and in fixing its commencement date. The judge's express reference to the custody period immediately preceded the specification of the commencement date of the minimum term, making clear that the statutory obligation had been met. The fact that the Crown had overstated the period by seven days (saying 24 days rather than the actual 17) was immaterial, as it operated in the applicant's favour.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Under s 47(3) of the Crimes (Sentencing Procedure) Act 1999, a sentencing court is obliged to take pre-sentence custody into account but is not required to actually back-date the sentence; the discretion to back-date under s 47(2)(a) remains with the judge.
  • The Court of Criminal Appeal confirmed its earlier approach in R v Frascella: an express statement by the sentencing judge that pre-sentence custody has been considered is sufficient to discharge the s 47(3) obligation.
  • Where a Crown Prosecutor misstates the length of pre-sentence custody in a manner that is more generous to the offender, that error does not constitute a ground of appeal that benefits the applicant.
  • No error was established in the sentencing judge's approach merely because the sentence was not formally back-dated, provided the custody period was demonstrably factored into both the length and commencement of the sentence.
  • In dismissing the appeal, the Court treated the sentencing judge's sequential reference to the custody period and the commencement date as clear contextual evidence that the statutory requirement had been satisfied.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 47

Cases:
- R v McHugh (1985) 12 NSWLR 588
- R v Frascella [2001] NSWCCA 137