Kljaic v R

Judgment

1. BEECH-JONES CJ at CL: I agree with Wright J.
2. HARRISON J: I agree with Wright J.
3. WRIGHT J: By a notice of appeal filed on 12 April 2023, Mr Vojislav Kljaic, the applicant, seeks leave to appeal under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) against the aggregate sentence imposed on him by Colefax SC DCJ on 14 April 2022 in the District Court at Campbelltown.

The aggregate sentence

1. The applicant pleaded guilty in the Local Court to two offences: furiously driving a motor vehicle causing bodily harm; and, aggravated dangerous driving occasioning grievous bodily harm. For this offending, Colefax SC DCJ imposed an aggregate sentence of imprisonment for 4 years and 6 months, commencing on 28 August 2021 and expiring on 27 February 2026, with a non-parole period of 2 years and 8 months expiring on 27 April 2024. In addition, the applicant was disqualified from driving for a period of 3 years commencing on 28 April 2024.
2. In accordance with s 53A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Procedure Act), the sentencing judge said that the sentences that would have been imposed for each offence had separate sentences been imposed instead of an aggregate sentence were as follows: Seq Offence Maximum Penalty Indicative Sentence 2 Furiously driving a motor vehicle causing bodily harm contrary to s 53 of the Crimes Act 1900 (NSW) 2 years 12 months 6 Aggravated dangerous driving occasioning grievous bodily harm contrary to s 52A(4) of the Crimes Act 11 years 3 years 9 months

Grounds of appeal

1. The applicant sought to rely on two grounds of appeal: "GROUND ONE The sentencing judge erred by misapplying section 47 of the Crimes (Sentencing Procedure) Act 1999 (NSW) and setting the commencement of the non-parole period 30 days before the period representing the period actually spent by the applicant in pre-sentence custody. GROUND TWO The sentencing judge erred by excluding from the instinctive synthesis the effects of COVID-19 restrictions on the applicant while he was remanded in custody in setting the aggregate sentence of imprisonment."
2. In order to consider these grounds, it is necessary to review only the relevant parts of the remarks on sentence. Since there was no challenge to the sentencing judge's findings or assessments and there was no contention that the aggregate sentence was manifestly excessive, the review of the remarks may be considerably briefer than would otherwise have been the case.

Relevant parts of the remarks on sentence

1. After considering the objective circumstances and seriousness of the offending and the applicant's subjective case and concluding that no sentence other than full time imprisonment was appropriate for either offence, Colefax SC DCJ then relevantly: 1. noted that the applicant had been arrested on 8 March 2021 and released on bail on 22 September 2021 and stated that the sentence would be backdated to take that period of detention into account; 2. accepted that "during that period on remand, [the applicant] sustained extra-curial punishment because of Covid-19 restrictions and lockdowns, i.e. a denial of psychiatric and psychological services despite repeated requests; and a denial of appropriate foot wear which was something of significance given [the applicant's] orthopaedic injuries. These circumstances of extra-curial punishment will also be taken into account in fixing the start date of the sentence"; and, 1. directed that the aggregate sentence commence on 28 August 2021.
2. Thus, the 229 days' difference between the date of commencement of the aggregate sentence, 28 August 2021, and the date of sentencing, 14 April 2022, was made up of: 1. 199 days that the applicant spent on remand between 8 March 2021 and 22 September 2021; and 2. 30 days to take account of what the sentencing judge described as "circumstances of extra-curial punishment" (adopting the description used by the applicant's counsel in oral and written submissions on sentence) [1] because of Covid-19 restrictions and lockdowns (which apparently included "a denial of psychiatric and psychological services") and a denial of appropriate foot wear, during the 199 days on remand.

Submissions

1. Under the first ground of appeal, the applicant submitted that the 30 day backdating of the commencement of the sentence to take into account the extra-curial punishment involved a misapplication of s 47 of the Sentencing Procedure Act. In particular, it was contended in substance that, on the proper construction of ss 24(a) and 47(3) of that Act, the words "any time for which the offender has been held in custody", being a factor that the court must take into account on sentence, referred only to the actual time spent in custody, a quantitative metric, and not to other qualitative features such as the conditions in, and circumstances of, custody. This was said to be supported by a consideration of ss 44 and 71 of the Sentencing Procedure Act and the purposes of sentencing as stated in s 3A of that Act.
2. The applicant referred to authorities to the effect that backdating the commencement of the sentence was the preferable means of taking into account time spent in custody in relation to an offence for which the offender is to be sentenced and that "quasi-custody" by way of time spent in rehabilitation may also be taken into account by backdating. It was submitted that, in these cases, what was taken into account was the "actual time" spent in custody or quasi-custody and this was done by backdating the commencement of the sentence by that amount of time or a percentage of that time. It was also contended that backdating a sentence by more than the actual time spent in custody amounted to artificial backdating and had the effect of falsely inflating the sentence.
3. On these bases, it was submitted that, by backdating the commencement of the sentence by 30 days more than the time the offender actually spent in custody, the sentencing judge fell into error by acting on a wrong principle. Thus, the sentencing discretion had miscarried and the applicant should be resentenced.
4. The Crown in response to the first ground of appeal drew attention to authorities which established that s 47 provided a sentencing judge with a degree of flexibility and only required that the sentencing judge "take into account" time held in custody. It was submitted that where the sentence was directed to commence before the date of sentencing, there was no limitation in s 47 on when the sentence might commence noting that, in Kaderavek v R [2018] NSWCCA 92, it was said, at [19]-[20] that s 47(3) and general principles of sentencing required that an offender be given credit (at least) for periods of incarceration that were solely referable to the offences for which they were being sentenced and the preferable course was to backdate the commencement of the sentence.
5. In addition, it was submitted that this was not a case where the sentencing judge had mistakenly directed that the sentence commence on a day before the offender had been arrested, as occurred in Almaouie v R [2021] NSWCCA 274. In the present case it was said that the sentencing judge made a deliberate and considered decision in exercising his sentencing discretion, as to the commencement date. The Crown referred to R v Newman, R v Simpson [2004] NSWCCA 102; 145 A Crim R 361. Finally, it was submitted that the applicant's sentence was ameliorated by the approach adopted by the sentencing judge and, given the degree of flexibility provided by s 47, the applicant had not demonstrated error.

Consideration

1. The provisions of the Sentencing Procedure Act which are directly relevant to time spent in custody on remand are ss 24 and 47. Relevantly, these sections provide: "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, … … 47 Commencement of sentence (1) A sentence of imprisonment commences, subject … to any direction under subsection (2), on the day on which the sentence is imposed. (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, … …. (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 or, in the case of an aggregate sentence of imprisonment, any of the offences to which the sentence relates. …".
2. Section 24(a) makes the time spent in custody on remand in relation to an offence a mandatory consideration for a sentencing judge to take into account when sentencing an offender for that offence. That section does not, however, require a sentencing judge to take that matter into account in any particular way.
3. Section 47(2)(a) permits a sentencing judge to direct that a sentence commence on a day before the day on which the sentence is imposed. Section 47(3) makes it a mandatory consideration for a sentencing judge to take into account, when deciding whether or not to backdate a sentence, any time for which the offender has been held in custody in relation to the relevant offence or offences. Similarly to s 24(a), s 47(3) does not specify how the time spent in custody is to be taken into account, although it is implicit that backdating the sentence is an option.
4. The absence of any statutory restriction on how the time spent in custody prior to sentence should be taken into account has been recognised in authorities such as Kaderavek v R [2018] NSWCCA 92 (Kaderavek) in which Hamill J (Beazley P and Schmidt J agreeing) said, at [19]: "[Section 47] provides a sentencing Judge with a degree of flexibility. The prima facie position is that the sentence commences on the day it is imposed. If the sentence is to commence before that date, the section provides no particular guidance except that the sentencing Judge 'must take into account any time for which the offender has been held in custody in relation to the offence'. Otherwise, the determination of the commencement date is to be determined by reference to general sentencing principles and other relevant provisions." (emphasis in original)
5. Nonetheless, it was also recognised by Hamill J that s 47(3) and general principles of sentencing require that an offender "be given credit (at least)" for periods of incarceration that are solely referable to the offences for which they are being sentenced: Kaderavek at [20].
6. It is also a well-established principle that the desirable or preferable course in order to take into account, or give credit for, a period of pre-sentence custody is to backdate the commencement of the sentence for an equivalent period: R v McHugh (1985) 1 NSWLR 588 (McHugh) at 590-1 (Street CJ, Hunt and Enderby JJ). The desirability of this approach has been held not to be because the approach is mandatory but rather because it is an important rule of practice: R v English [2000] NSWCCA 245 (English) at [22] (Giles JA, Adams J agreeing); Wiggins v R [2010] NSWCCA 30 (Wiggins) at [2] (McClellan CJ at CL) and [8] (Howie J). As Howie J noted in Wiggins, backdating is "simple, transparent and does not result in an apparently lesser sentence being imposed than was actually served by the offender". If a sentence is not backdated to take into account pre-sentence custody, the reason or reasons for not doing so should be clearly stated: English at [22].
7. The applicant's contention did not involve generally rejecting those principles or the approach to backdating referred to above. Rather, the applicant submitted that on the proper construction of ss 24(a) and 47(3): 1. "any time for which the offender has been held in custody" in relation to relevant offences refers only to the actual period of such pre-sentence custody and does not include, for example, the conditions in custody during that period; and consequently, 1. if that "time" is taken into account by backdating, the backdating could not be for more time than the actual period spent in pre-sentence custody on account, for example, of the conditions of the pre-sentence custody being harsher than normal.
8. In my view, this construction of ss 24(a) and 47(3) should not be adopted for a number of reasons. First, the text of those provisions indicates that what must be taken into account is "any time", not just the period of time. The ordinary English meaning of "time" includes, but is not limited to, the temporal duration of an event or events. It also naturally includes what occurred, or conditions experienced, during that event or those events. For example, in the question "did you enjoy your time at the beach?", the word "time" refers primarily to what occurred or the conditions experienced during the period when the person was at the beach rather than merely the temporal duration of the time. Thus, on an ordinary reading of the words used, the use of the words "any time" in both ss 24(a) and 47(3) appears to be intended to refer to both the temporal duration of the pre-sentence custody and any occurrences or conditions during that custody.
9. Secondly, the specific context in which the words "any time" are to be applied is that a sentencing court must "take into account" any time spent in pre-sentence custody when: (a) sentencing an offender, under s 24(a); and, (b) deciding whether or not to make a direction to backdate a sentence and thus, in deciding the day to commence the sentence, under s 47(2)(a) and (3). As has been noted above, there is no limitation specified in the relevant provisions as to how the time spent in pre-sentence custody may be taken into account and these provisions afford a sentencing judge considerable flexibility. This context suggests that a narrow construction of "any time" as being limited to temporal duration was not intended by the Parliament. Rather, the flexibility inherent in those provisions indicates that the legislative intention was that a sentencing court should be able to take into account not only the actual length of time spent in pre-sentence custody but also occurrences and conditions in custody during that time.
10. Contrary to the applicant's submission, it does not appear to me that anything in ss 44 and 71 of the Sentencing Procedure Act is inconsistent with the construction of "any time" as referring to both the duration and conditions of pre-sentence custody. Under s 44(1) the non-parole period is to be "the minimum period for which the offender must be kept in detention in relation to the offence". This indicates that, if the legislature had intended to limit the factor to be taken into account under ss 24(a) and 47(3) to the temporal period spent in pre-sentence custody, the words "the … period", as used in s 44(1), rather than the words "any time" could have been used to limit the sentencing consideration to the temporal period spent in pre-sentence custody.
11. As to s 71 of the Sentencing Procedure Act, that section provides: "71 Commencement of intensive correction order (1) An intensive correction order commences on the date on which it is made. (2) Subsection (1) does not apply to an intensive correction order made in relation to a sentence of imprisonment that is to be served consecutively (or partly concurrently and partly consecutively) with some other sentence of imprisonment the subject of an intensive correction order."
12. Given the nature of intensive correction orders (ICOs) and the fact that consecutive or partially consecutive sentences may both be served by way of ICOs, it is understandable that not every ICO should be required to commence on the day on which it is made. It does not follow, however, that this provision is inconsistent with the construction of "any time" in ss 24(a) and 47(3), which has been set out above. Nor does it provide any compelling reason for adopting the narrower construction of "any time" for which the applicant contends.
13. In addition, the purposes of sentencing set out in s 3A of the Sentencing Procedure Act are not inconsistent with the wider interpretation of "any time" set out above. When s 3A is considered in the context of the Sentencing Procedure Act as a whole, there does not appear to me to be any reason why those purposes should be construed as preventing the conditions and occurrences during pre-sentence custody from being taken into account in determining the sentence and its commencement date, as provided in ss 24(a) and 47(2) and (3), including by its commencement date being backdated by more than the total number of days spent in pre-sentence custody.
14. The approach of taking into account both the temporal duration and occurrences and conditions experienced during pre-sentence custody is also consistent with the way in which time spent in pre-sentence "quasi-custody" has been dealt with. Time spent in "quasi-custody" is not a mandatory or obligatory consideration under ss 24(a) or 47(3) of the Sentencing Procedure Act: Gardiner v R [2018] NSWCCA 27 at [34] (Simpson JA, Fullerton and McCallum JJ agreeing); Small v R [2018] NSWCCA 290 (Small) at [35] (Hoeben CJ at CL, Johnson and Campbell JJ agreeing). Nonetheless, it is well established that in circumstances where there is an evidentiary foundation for it being taken into account, a sentencing judge may be obliged to have regard to quasi-custody, even when not specifically asked: Bonett v R [2013] NSWCCA 234 at [50] (Adamson J, Gleeson JA and R A Hulme J agreeing); Small at [35].
15. The situations which have been found to amount to quasi-custody have included: 1. participation in residential rehabilitation where the person was subject to discipline and restrictions: R v Eastway (CCA, unreported, 19 May 1992) (Gleeson CJ, Hunt CJ at CL and Mathews J) referred to in R v Campbell [1999] NSWCCA 76 (Campbell) at [24] (Kirby J); 2. being on bail but subject to particularly onerous conditions such as the offender being required to live in Canberra and not return to Sydney, report daily to police, obey reasonable directions of police and submit to supervision to enable the offender to give further assistance to authorities: R v Cartwright (1989) 17 NSWLR 243 at 258 (Hunt and Badgery-Parker JJ, Mahoney JA agreeing).
16. The fact that the conditions in quasi-custody are often, if not always, less onerous than conditions in custody is usually recognised by backdating the sentence by only a percentage of the period of quasi-custody: Campbell at [24]; Hughes v R [2008] NSWCCA 48 at [38] (Grove J, McClellan CJ at CL and Simpson J agreeing); Reddy v R [2018] NSWCCA 212 at [31] (Campbell J, Bathurst CJ and Fullerton J agreeing); Small at [38]. Depending on the conditions experienced during the period of quasi-custody, the percentage adopted has often been 50% to 75% of the total period.
17. Since conditions in quasi-custody which are less onerous than those which would normally be experienced in custody may be taken into account by backdating a sentence by a percentage of the period spent in quasi-custody, there does not appear to be any logical reason why conditions which are more onerous than would normally be experienced in custody may not be taken into account by backdating a sentence by more than the actual period spent in pre-sentence custody, in an appropriate case.
18. The wider construction of the words "any time" is also not inconsistent with the applicable principles of sentencing. It is to be accepted that "sentencing courts may not add and subtract item by item from some apparently subliminally derived figure, passages of time in order to fix the time which an offender must serve in prison": Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 (Markarian) at [39] (Gleeson CJ, Gummow, Hayne and Callinan JJ). Nonetheless, as their Honours recognised in that same paragraph: "Accessible reasoning is necessary in the interests of victims, of the parties, appeal courts, and the public. There may be occasions when some indulgence in an arithmetical process will better serve these ends."
19. Where, in a case such as the present, backdating of the sentence is adopted in order to take into account pre-sentence custody and the period of backdating is fixed by reference to both the actual time spent in custody as well as the unusually harsh conditions in custody which were found to amount to extra-curial punishment, the situation appears to me to be one of those occasions when limited indulgence in an arithmetical process better serves the ends of making the reasoning in relation to the sentence imposed accessible to all concerned in the sentencing exercise.
20. Furthermore, in Markarian at [74] McHugh J made comments concerning the instinctive synthesis approach to sentencing and the awarding of discounts in the following terms: "Nor is the instinctive synthesis approach inconsistent with awarding a discount for some factor, provided that discount relates to a purpose distinct from a sentencing purpose. The distinction between permissible and impermissible quantification of "discounts" on a sentence will usually be found in whether the quantification relates to a sentencing purpose rather than some other purpose. So, the quantification of the discount commonly applied for an early plea of guilty or assistance to authorities is offered as an incentive for specific outcomes in the administration of criminal justice and is not related to sentencing purposes. The non-sentencing purpose of the discount for an early guilty plea or assistance is demonstrated by the fact that offenders are ordinarily entitled to additional mitigation for any remorse or contrition demonstrated with the plea or assistance, aside from the discount for willingness to facilitate the course of justice. That said, I think the use of discounts should be reserved for only one - maybe two - factors in a particular sentence that serve some goal other than a sentencing goal." (Footnote omitted)
21. In my view, the rationale underlying McHugh J's comments in relation to discounts can be applied in relation to backdating of the date of commencement of a sentence. Backdating which takes into account not only the period of the pre-sentence custody but also the unusual harshness of the conditions experienced can be seen as permissible since such backdating relates to a purpose other than the purposes of sentencing summarised in s 3A of the Sentencing Procedure Act and thus a purpose distinct from a sentencing purpose or goal, in the sense identified by McHugh J.
22. Having regard to all these considerations, I do not accept that ss 24(a) and 47(3) of the Sentencing Procedure Act should be construed so as to limit the words "any time" in the phrase "any time for which the offender has been held in custody in relation to the offence" only to the duration of the pre-sentence custody so that occurrences or conditions during that period could not be taken into account under those provisions by backdating beyond the actual period of pre-sentence custody.
23. In my view, on the proper construction of ss 24(a) and 47(3) of the Sentencing Procedure Act, it was open to the sentencing judge to take into account the restrictions and lockdowns as a result of Covid-19, including the non-availability of psychiatric and psychological services, and the failure to provide of appropriate foot wear, while the applicant was in pre-sentence custody, as part of his consideration of "any time for which the offender has been held in custody in relation to the offence". Moreover, the sentencing judge was permitted to take those conditions and occurrences during pre-sentence custody into account by backdating the sentence by 30 days in addition to the backdating of 199 days to take into account the 199 days spent in pre-sentence custody.
24. That is not to say, however, that backdating the commencement of a sentence for a period greater than the period of any pre-sentence custody is permissible to take into account factors other than unusually onerous conditions or adverse occurrences during that period or that it is appropriate generally in such cases. Each case will depend on its own facts and circumstances and the reasoning of the sentencing judge. In the present case, there was no error of principle in Colefax SC DCJ's approach in all the circumstances.
25. For these reasons, I would reject the applicant's first ground of appeal.

Submissions

1. Under the second ground of appeal, the applicant effectively submitted that, in setting the aggregate sentence, the sentencing judge erred by backdating the sentence by an additional 30 days thus excluding from the instinctive synthesis the effects of COVID-19 restrictions on the applicant during pre-sentence custody. In support of this contention, the applicant relied upon the comments of the plurality and of McHugh J in Markarian which have been referred to above. It was also submitted in substance that the implications of Covid-19 on conditions in custody and concomitant hardship were matters which properly went to the length of the sentence determined in accordance with the instinctive synthesis approach.
2. The applicant then contended that the approach adopted by the sentencing judge of backdating the sentence by an additional 30 days deprived the applicant of the benefit of a mitigating factor being considered in the overall synthesis and meant that the overall sentence was longer than it ought to have been.
3. The Crown submitted that the principles stated in Markarian were subject to the exceptions referred to above and these were applicable in the present case. Thus, no error of principle was established in this case.
4. In addition, the Crown contended that backdating had the practical effect of shortening the non-parole period as well as the head sentence. It was noted that the sentencing judge had said that the conditions in custody would "also" be taken into account in fixing the start date of the sentence.

Consideration

1. The relevant sentencing principles in relation to the instinctive synthesis have already been referred to when considering ground 1. For the reasons given there, the approach adopted by the sentencing judge was not inconsistent with those principles, which are qualified in the ways set out by the plurality in Markarian and by McHugh J. As noted above, this adjustment was an example of one of those limited occasions when an arithmetical adjustment better served the ends of making the reasoning underlying the sentence accessible and transparent. It was also an adjustment which served a purpose other than one of the purposes of sentencing in s 3A of the Sentencing Procedure Act. In those circumstances, to the extent that the extra-curial punishment experienced by the applicant while on remand was excluded from the process of instinctive synthesis, such an approach was permissible, having regard to the exceptions to the general principles identified in Markarian.
2. Accordingly, no error of principle was made by the sentencing judge by backdating the commencement of the sentence by an additional 30 days to take into account of the conditions while on remand which were found to amount to extra-curial punishment.
3. Furthermore, I do not accept that the backdating of the sentence by an additional 30 days had the effect that the applicant's overall sentence was longer than it otherwise ought to have been. The 30 day backdating was related only to the "circumstances of extra-curial punishment" which were limited to the occurrences and conditions experienced by the applicant on remand. That was clear from the applicant's written submissions before the sentencing judge which limited the extra-curial punishment to what occurred to the applicant "[w]hilst on remand", [2] and from his Honour's reasoning, which has been quoted above at [8(2)].
4. The applicant singled out the conditions he experienced in pre-sentence custody for particular consideration by the sentencing judge and his Honour dealt with those matters by a discrete adjustment to the commencement date, as permitted under s 47(3) and applicable sentencing principles. It was not submitted by the applicant that those particular conditions related to post-sentence custody.
5. In all the relevant circumstances, there was, in my view, no proper basis to conclude that the sentence would have been shorter by more than 30 days if it had not been backdated to take into account the extra-curial punishment during pre-sentence custody.
6. For all these reasons, I would also reject the second proposed ground of appeal.

Leave to appeal

1. As the grounds of appeal were arguable and deserved full consideration, leave to appeal should be granted, but the appeal should be dismissed.

Proposed orders

1. Accordingly, I propose that the orders of the Court should be: 1. The applicant has leave to appeal. 2. The appeal is dismissed.

Endnotes

1. Tcpt, 29 March 2022, p 16(45) and "Outline of submissions on behalf of the offender" dated 28 March 2022 at par 19.
2. "Outline of submissions on behalf of the offender" dated 28 March 2022 par 19; Tcpt, 29 March 2022, p 16(45).

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