Callaghan v R

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999, s21A(2)(j), s24, s50(1)

R v Eric John Andrews NSWCCA, unreported, 28 April 1993 R v Kaiva NSWCCA, unreported, 9 November 1998 R v Brett John Kelly [2000] NSWCCA 557 CASES CITED: R v Kitchener [2003] NSWCCA 134 R v Shane John Ravet [2001] NSWCCA 535 R v SAE NSWCCA, unreported, 3 April 1997 R v David Webb NSWCCA, unreported, 9 November 1998

PARTIES: Jason Callaghan - Applicant Crown - Respondent

COUNSEL: A Francis - Applicant V Lydiard - Respondent

SOLICITORS: SE O'Connor - Applicant S Kavanagh - Respondent

IN THE COURT OF CRIMINAL APPEAL 2006/293

JAMES J SIMPSON J HALL J

Friday 10 March 2006 Jason CALLAGHAN v REGINA Judgment 1 JAMES J: I agree with Simpson J. 2 SIMPSON J: The applicant seeks leave to appeal against the severity of sentences imposed upon him in the District Court on 14 October 2005 following his pleas of guilty to two charges of break and enter with intent to steal. On the first count the applicant was sentenced to imprisonment for a fixed term of six months; on the second, to imprisonment for a total period of two years with a non-parole period of twelve months. Both sentences were fixed to commence on 15 July 2005, the first to be served concurrently with the second, longer term. 3 Given the very narrow scope of the application, the circumstances of the offences and matters personal to the applicant may be outlined succinctly. 4 The two offences were committed in the same premises, nine days apart. On 11 January 2005, late at night, and again on 20 January 2005, in the early hours of the morning, the applicant used an object to smash a glass panel in a video shop at Seven Hills. He entered the premises and searched drawers and cupboards but left without taking any money or property. On the earlier occasion, having left the premises, the applicant returned and re-entered, but again left with no property. 5 The applicant was arrested on 27 January 2005. He has remained in custody since that date. At the time of these offences he was at liberty on parole in respect of a series of offences for which he was sentenced in the Parramatta Local Court on 24 June 2004. The sentencing judge took this into account, properly, as a factor aggravating the applicant's criminality: see Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Procedure Act"), s21A(2)(j). She did not, of course, specify the extent (if any) by which she increased the sentence by reference to this circumstance. 6 The circumstances which give rise to the application are these. On 24 June 2004 the applicant was sentenced to the terms of imprisonment mentioned above, of which the longest was a head sentence of 20 months, commencing 31 October 2003 and expiring 30 June 2005, with a non-parole period expiring on 30 December 2004. By reason of s50(1) of the Sentencing Procedure Act, the applicant was entitled to release at the expiration of the non-parole period, on 30 December 2004. It may be assumed that he was, in fact, duly released on that date. He was then, as I have mentioned, arrested in relation to the present offences on 27 January 2005. 7 As a result of his being charged with these offences the Parole Board made an order revoking parole, effective from 27 January 2005. It appears to have been accepted that the parole revocation was exclusively referable to the charges that gave rise to the present application. Parole Board records suggest the sentence in respect of which parole was revoked expired on 14 July 2005. There is no explanation for the date, (which appears not to be congruent with the date of the expiration of the head sentence as recorded), but, since no point was taken in this appeal concerning the dates, it is not necessary to explore this matter. 8 The significance, for present purposes, of the date of 14 July 2005 is that it provides an explanation for the sentencing judge having selected 15 July 2005 as the commencement date for both of the sentences she imposed. The effect of the selection of that commencement date is that the sentences in respect of the present offences are made fully cumulative upon the head sentence in respect of the previous offences. This was her Honour's express intention. She said: "Your parole was revoked and it is appropriate that you serve the balance of that parole before commencing to serve the time in respect of these offences."

(By the time the applicant was sentenced the expiry date of the previous sentences had passed. What her Honour intended by this statement was to deny the applicant any concurrency of the sentence she was imposing with the previous sentence.) 9 The only ground of the application was spelled out as follows: "The sentencing judge erred by doubly punishing the applicant for the fact that the offences were committed whilst on parole." 10 It was submitted that there was "an aspect" of double punishment in circumstances where there was a finding that the offences were aggravated by their having been committed whilst on parole, the breach of parole and consequent incarceration of the applicant, and the subsequent accumulation of the sentences upon the expiration of the parole period. 11 Before moving to the previous decisions of this Court, it is convenient to refer to some relevant statutory provisions. These appear in the Sentencing Procedure Act. S24 relevantly provides: " 24 Court to take other matters into account

In sentencing an offender, the court must take into account:

(a) any time for which the offender has been held in custody in relation to the offence, ..." (italics added) S47 relevantly provides:

(1) A sentence of imprisonment commences: (a) subject to section 70 and to any direction under subsection (2), on the day on which the sentence is imposed, or (b) ...

(2) A court may direct that a sentence of imprisonment: (a) is taken to have commenced on a day occurring before the day on which the sentence is imposed, or (b) commences on a day occurring after the day on which the sentence is imposed, but only if the sentence is to be served consecutively (or partly concurrently and partly consecutively) with some other sentence of imprisonment.

(3) In deciding whether or not to make a direction under subsection (2)(a) with respect to a sentence of imprisonment, and in deciding the day on which the sentence is taken to have commenced, the court must take into account any time for which the offender has been held in custody in relation to the offence to which the sentence relates .

(4) The day specified in a direction under subsection (2)(b) must not be later than the day following the earliest day on which it appears (on the basis of the information currently available to the court) that the offender:

(a will become entitled to be released from custody, or

having regard to any other sentence of imprisonment to which the offender is subject.

(5) A direction under subsection (2)(b) may not be made in relation to a sentence of imprisonment imposed on an offender who is serving some other sentence of imprisonment by way of full-time detention if: (a) a non-parole period has been set for that other sentence, and (b) the non-parole period for that other sentence has expired, and (c) the offender is still in custody under that other sentence.

(6) A sentence of imprisonment starts at the beginning of the day on which it commences or is taken to have commenced and ends at the end of the day on which it expires." (italics added) 12 On behalf of the applicant reliance was placed upon a number of previous decisions of this Court, to some of which I was a party. Two separate strands of authority have emerged. One is represented in R v Eric John Andrews, NSWCCA, unreported, 28 April 1993. There Hunt CJ at CL (as he then was) said: "It is quite fallacious to assert (as it is so often asserted) that the prisoner is being punished twice for the same thing in those circumstances. The parole is revoked because, by reason of the further offence committed, it has been demonstrated that the applicant was unable to adapt to normal lawful community life and therefore is no longer entitled to parole in relation to the earlier offence; the sentence is imposed as punishment for the further offence itself committed whilst on parole: R v Ian Jeffrey Gale (CCA, 20 April 1993, unreported) at 3. That does not mean that there will not be some situations in which it would be just to date the new sentence back to a date prior to its imposition. In my view, however, this is not the case in which to lay down guidelines in relation to when that should be done."

That statement was adopted by Meagher JA, with whom Hidden J agreed, in R v Brett John Kelly [2000] NSWCCA 557. 13 The other line of authority is exemplified by the decision in R v Kaiva, NSWCCA, unreported, 9 November 1998. There Kirby J, with whom I agreed, said: "Secondly, his Honour expressly took into account, as a circumstance of aggravation, the fact that the offence was committed whilst the applicant was on parole. That was entirely appropriate. The sentence which he then passed reflected that circumstance. Having taken that matter into account, to then not backdate the sentence gives the appearance of penalising the prisoner for a second time, in respect of the same matter. That, it seems to me, is also undesirable." (emphasis added) 14 It is apposite to emphasise here that Kirby J did not hold that double punishment actually occurred; merely that the process gave that appearance. On the same day, the same bench took an identical approach in R v David Webb, NSWCCA, unreported, 9 November 1998. 15 However, in Regina v Shane John Ravet [2001] NSWCCA 535, Stein JA expressly declined to accept that Kaiva and Webb established any principle. His Honour regarded them, rather, as examples demonstrating that backdating to the date of revocation of parole may be within a judge's sentencing discretion in appropriate circumstances. 16 In R v Kitchener [2003] NSWCCA 134 the court was constituted by Wood CJ at CL (as he then was) and myself. 17 There, an offender whose parole had been revoked was sentenced in respect of subsequent offences in such a fashion as to allow credit for only six days of a thirteen month balance of term. The reasons for the parole revocation were not confined to the subsequent offending, but included other specified breaches of parole conditions. 18 I considered, and Wood CJ at CL agreed, that, in some circumstances, a court sentencing in respect of subsequent offences would find it necessary to attempt the hypothetical exercise of assessing what the offender's parole position would or might have been had parole been revoked not as a result (solely) of the subsequent offending, but solely or partly as a result of his other breaches of parole conditions. 19 The Crown drew attention to the decision of this Court in R v SAE NSWCCA, unreported, 3 April 1997, per Gleeson CJ, with whom Mason P and Dowd J agreed. Gleeson CJ said: "The usual principle is that allowance is made for pre-sentence custody but only in circumstances where such pre-sentence custody is exclusively referable to the crime for which the offender has been sentenced." 20 I do not accept that his Honour intended to lay down as an absolute rule that, where pre-sentence custody is referable partly to the crime for which an offender is being sentenced, and partly to some other circumstance, such as revocation of parole, that pre-sentence custody may never be taken into account. The judgment was delivered ex-tempore and the passage cited was not essential to this decision. 21 That the matter is discretionary appears to be the prevailing view of members of this Court. Even in Andrews and Kelly, the court accepted that a judge might backdate a sentence where parole had been revoked by reason of the offence for which the offender is then to be sentenced. 22 I maintain the view that a discretion exists. There is no clear rule which will govern all cases. The circumstances that bring an offender before a court for sentence after parole has been revoked are far too varied to permit a single absolute rule. 23 It would, in my opinion, in some cases be unfair not to backdate to some point (not necessarily the date of revocation of parole) before the expiration of the earlier parole period. It is always open to an offender to seek and be granted parole even after a revocation; to sentence in such a way as to commence the subsequent sentence only on the date of expiration of the whole of the previously imposed head sentence is to assume that, absent the subsequent offences, the offender would not have been granted a second chance at parole. 24 However, I am also of the view that, particularly where, as here, the re-offending has occurred within a very short time of release on parole, and the balance of term to which the offender is exposed is quite short, it may be appropriate to proceed on the hypothesis that the whole of the period spent in custody up to the expiration of the parole period is, as Hunt CJ at CL said, referable to the earlier offences and not to the subsequent offences. 25 Thus, I am of the view that the sentencing judge did have a discretion to make the sentences wholly or partly cumulative upon the sentence to which the applicant was, as a consequence of the revocation of parole, serving. That allowed her a period of six months. She could have specified the current sentences to commence at any time during that period. 26 The second question which arises is whether is has been shown that the exercise of her discretion miscarried. I am unable to see that that has been established. I would, accordingly, grant leave to appeal but dismiss the appeal. 27 HALL J: I agree with Simpson J.

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