Quasi-custody
11I have referred to what was effectively a direction by Judge Blackmore that, if the applicant were granted parole, he should be placed immediately into a full-time drug rehabilitation program and should not be permitted to be at large. There was evidence, to which his Honour did not expressly refer, that a position might be available to the applicant in the well known rehabilitation program conducted by Odyssey House. A letter from that organisation disclosed that it was willing to "induct" the applicant into the program "as soon as practicable", and that the program would be "of some 12 months duration." There was also a letter from Granya House offering him a position on a specified date while he was awaiting sentence if he were released on bail. The letter did not disclose the length of the program. He remained in custody and that opportunity was not available to him. Mr Brady submitted that a rehabilitation program of that kind would amount to a form of quasi-custody which should have been taken into account, but his Honour failed to do so.
12That it is appropriate for an offender to be given credit on sentence for having undergone a full-time residential rehabilitation program is not in doubt. Mr Brady referred us to the recent decision of this court in Renshaw v R [2012] CCA 91, in which the principle was re-stated, with reference to relevant authority, by Hoeben JA at [28] - [32]. Among the cases referred to by Hoeben JA was R v Campbell [1999] NSWCCA 76, in which Kirby J noted that in earlier cases credit had been allowed for 50% or even 75% of the time spent in rehabilitation.
13Two difficulties confront this submission. The first is that, while it was open to his Honour to recommend conditions of a parole, he had no power to direct them. Plainly enough, this is what he purported to do. It is entirely understandable that his Honour took that course, given that it had been recommended by the Probation and Parole officer who prepared the pre-sentence report and the representatives of the Crown and the applicant before his Honour (who did not appear in this court) did not address the question whether he had the power to do so.
14By s 50(1) of the Crimes (Sentencing Procedure) Act 1999, a court imposing a sentence of 3 years or less must, if a non-parole period is specified, order that the offender be released on the expiration of that non-parole period. In that event, s 51 empowers the court to impose conditions on that parole order. That regime, however, is confined to sentences of 3 years or less. Where the sentence is in excess of 3 years, the court cannot direct the release of an offender at the expiration of a non-parole period and cannot impose conditions upon any parole order which might be made. In that situation, whether a parole order is made and, if so, what conditions are imposed upon it are matters for the Parole Authority, not the sentencing court: see ss 134 - 135 of the Crimes (Administration of Sentences) Act 1999 and Muldrock v The Queen [2011] HCA 39, 244 CLR 120, at [4].
15The second difficulty is that in Renshaw, and the earlier cases referred to by Hoeben JA, the offender had completed a rehabilitation program before sentence was passed. Not only was the sentencing court able to assess the benefit of the program, it was able to be informed of the conditions of it and, in particular, the discipline which it imposed upon the offender. We were not referred to any authority in which consideration was given to the extension of leniency on this basis in anticipation of an offender undertaking rehabilitation.
16All this Mr Brady acknowledged. Nevertheless, he submitted that an allowance for prospective quasi-custody should have been made. In the light of the evidence of the 12 month program at Odyssey House, he contended for a reduction of sentence of the order of 6 months. (He noted that the program undertaken by Eric Williams at Granya House was also for 12 months.) He argued that, in the light of what Judge Blackmore had to say, coupled with the recommendation of the author of the pre-sentence report, it was most likely that the applicant would not be released to parole except to undertake a course of residential rehabilitation and would not be allowed to be at large until he had completed it.
17That may be so, but it cannot be predicted with any certainty. Whether a place at Odyssey House, Granya House or any other program would be available when the applicant becomes eligible for parole is unknown. Equally, whether it would be necessary or desirable for him to undertake such a program would fall to be determined at that time. These are matters exclusively within the province of the Parole Authority, to be determined by it when the applicant becomes eligible for release. Recommendations to the authority by a sentencing court are no more than that, and they may or may not be acted upon.
18In these circumstances, I am not persuaded that an allowance for quasi-custody was called for. In this context there is another matter raised by the Crown prosecutor in this court which is worthy of note. Judge Blackmore said of both the applicant and Sullivan that, in the absence of pleas of guilty, he would have imposed a total sentence on each of them of 6 years and 6 months. This he reduced by 25% in recognition of the utilitarian value of the pleas. That reduction would produce a sentence, in round figures, of 4 years and 10 months. His Honour reduced that term further so as to impose a 4 year sentence on both men. He said that he did so "in the hope that some initial consideration might lead to a change in these young men, particularly in the case of Mr Sullivan." He noted that Sullivan was "still a young man and a lengthy sentence would be particularly difficult for him."
19It is clear that that further reduction of 10 months was not in recognition of quasi-custody in the applicant's case because his Honour extended the same benefit to Sullivan, for whom a residential rehabilitation program was not in prospect. It means no more than that his Honour extended additional leniency to both men in the light of their youth and in the hope of fostering their rehabilitation. However, it is a relevant matter in determining whether the lack of an allowance to the applicant for quasi-custody has caused the sentencing process to miscarry. I prefer to express no concluded view about whether a reduction of sentence for quasi-custody would ever be appropriate where an offender had the prospect of a rehabilitative program but has not yet undergone it. In the present case, however, I do not consider that such an allowance was required and I would reject this ground of the application.