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Court of Criminal Appeal 30 July 1999

Regina v Karageorge [1999] NSWCCA 213 revised - 05

[1999] NSWCCA 213

Fraud & dishonestyPublic order & justice offences
CRIMINAL LAW SENTENCING

Citation: Regina v Karageorge [1999] NSWCCA 213
Court: NSW Court of Criminal Appeal
Date: 30 July 1999
Judge(s): Spigelman CJ, Sperling J, Simpson J

Background

The appellant was a solicitor who faced multiple sets of charges across several years, spanning tax fraud complicity, giving false evidence, attempting to pervert the course of justice, and attempting to obtain a false passport. Bail was refused or revoked across a number of those matters from mid-1997 onwards, following the passport offences, which demonstrated a serious risk of absconding.

In October 1997, the appellant was sentenced on one set of charges (referred to in the judgment as "matter 3"). That sentence was later quashed on appeal in July 1998, with a new trial ordered. During the entire period from October 1997 to July 1998, the appellant had also been in custody on separate charges (matters 1, 4 and 5) because bail had been refused or revoked in those matters independently.

When the District Court sentenced the appellant in December 1998 on matters 1, 4 and 5, it declined to give credit for the October 1997 to July 1998 period, on the basis that the appellant had been serving the (subsequently quashed) sentence in matter 3 during that time. The appellant challenged that approach on appeal.

  • Whether a sentencing court must give credit for time spent in pre-trial custody where, during that same period, the offender was also concurrently serving a sentence that was later quashed on appeal.
  • Whether the existence of two simultaneous, independent grounds for custody prevents the offender from receiving credit against the sentence for the matters that independently justified his detention.

Decision

Sperling J, with whom Spigelman CJ and Simpson J agreed, held that the appellant was entitled to credit for the disputed period. The relevant principle, drawn from earlier authority, is that a sentencing court should give credit for time in custody that is directly attributable to the offences before it for sentence. During the October 1997 to July 1998 period, the appellant was being held on matters 1, 4 and 5 independently of the matter 3 sentence, because bail had been separately refused or revoked in those matters. The custody was therefore attributable to the offences before Davidson DCJ regardless of the concurrently running sentence.

Sperling J rejected the Crown's argument that allowing credit in these circumstances would bring the law into disrepute. A sentence that has been quashed should count for nothing against the person concerned. It would be unjust to deny credit for pre-trial custody simply because that period happened to overlap with a sentence that was subsequently set aside.

Spigelman CJ added two important qualifications. First, because the appellant had been in custody for two separate reasons during the relevant period, he could not later expect to receive double credit if convicted again on the matter 3 charges at retrial. Second, the Chief Justice flagged that the outcome was driven by the particular clarity of the facts: bail had plainly been refused because of the passport offences, leaving no real question about whether the appellant would have been held in any event. The Court expressly discouraged future litigation in less clear-cut cases about what the prospects of bail might hypothetically have been.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence set aside.
  • In lieu of the original sentence, the appellant was sentenced to twelve months imprisonment commencing 7 August 1998 and expiring 6 August 1999, to be released on a recognisance for a period of eighteen months expiring 6 February 2000.

Key Takeaways

  • Where an offender is held in pre-trial custody on bail refusal or revocation for particular offences, that period of custody is attributable to those offences for sentencing credit purposes, even if the offender was simultaneously serving a separate sentence during the same period.
  • A conviction that is subsequently quashed on appeal should be treated as counting for nothing against the offender. It cannot operate to strip the offender of a sentencing credit they would otherwise have been entitled to receive.
  • The Court of Criminal Appeal confirmed that the settled principle requires credit for time in custody "in respect of" the offences before the sentencing court, drawing on a line of authority including Niass, Chung, David and Baartman. In those earlier cases, no overlap existed between the relevant pre-trial custody and the offences being sentenced, which distinguished them from this case.
  • Double counting remains impermissible: an offender who receives credit for a period of custody attributable to two concurrent grounds cannot later seek credit for that same period again if retried and convicted on the charges underlying the quashed sentence.
  • Spigelman CJ limited the practical reach of this decision by noting it turned on an unusually clear factual foundation. Cases where the bail position is uncertain or contested may not support the same outcome, and the Court indicated it would not encourage speculative litigation about hypothetical bail prospects.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth), s 29B
- Crimes Act 1900 (NSW), s 319

Cases:
- Niass (CCA, 16 November 1988, unreported)
- Webster and Jones (CCA, 3 August 1992, unreported)
- Chung (CCA, 9 March 1994, unreported)
- David (CCA, 20 April 1995, unreported)
- Baartman (Dunford J, 18 December 1998, unreported)