La v R

Court of Criminal Appeal (NSW)|2021-06-21|Before: Basten JA, Price J, Garling J

Judgment

BASTEN JA: I agree with Garling J. As he explains, the term "quasi-custody", as applied to a condition of pre-sentence bail, must be used with an appreciation that it is formulaic and no more than a label for a range of factual considerations. It has no legal content or consequence, although the constituent proven facts may have.
PRICE J: For the reasons enunciated by Garling J, I joined in the orders made by the Court on 21 June 2021.
GARLING J: Having pleaded guilty to three offences relating to the supply of prohibited drugs, the applicant, by way of an aggregate sentence, was sentenced to a term of imprisonment for 3 years and 3 months by Bourke SC DCJ ("the Judge") with a non-parole period of 1 year and 10 months.
The sentence was ordered to commence from 10 January 2020. The non‑parole period expires on 9 November 2021, and the sentence expires on 9 April 2023.
The applicant seeks leave to appeal against that sentence, but only with respect to one aspect of it. He asserts that there was an error of law made by the Judge in failing to take account, when imposing sentence, of the fact that for a significant period of time whilst he (the applicant) was on bail awaiting sentence, he undertook a residential rehabilitation program which, he contends, amounted to quasi-custody and should have been allowed for specifically by the Judge.
At the conclusion of the hearing of the appeal, the Court made orders granting leave to appeal, and dismissing the appeal. These are my reasons for joining in with those orders being made.

Remarks on Sentence

Having set out the charges and the facts together with the applicant's plea of guilty, the Judge turned to the subjective matters relevant to the applicant. His Honour summarised the evidence which had been given and noted that the applicant had a reasonably long-standing drug habit, having commenced using prohibited drugs at the age of 14. He noted the applicant's past history of being found in possession of capsules of MDMA at a previous dance party. The applicant admitted to the police that he had been supplying capsules of MDMA there to a group of friends and another group of people.
His Honour noted that the applicant had been sentenced by another Judge of the District Court to a term of imprisonment of 18 months to be served by way of an Intensive Corrections Order, which had expired about seven weeks before the offending for which he was before the Court.
His Honour was satisfied that the applicant had taken significant positive steps toward rehabilitation including the lengthy period of residential rehabilitation at Niagara Lodge whilst on bail for the offences, the subject of this application. He was satisfied that the applicant had applied himself diligently to his rehabilitation and had made some progress.
His Honour found that there were some prospects that the applicant would not re‑offend, but that he could not express any confidence about that and, ultimately, thought that the applicant's prospects of avoiding future offences were best described as uncertain.
His Honour turned his attention to the question of delay. The applicant, as noted earlier, was arrested on 15 June 2018. He remained in custody for a period of 8 months and 20 days until released on bail on 7 March 2019. The applicant thereafter remained on bail until the sentencing proceedings, which took place on 28 August 2020 and then 2 October 2020 when sentence was imposed.
Before imposing the sentence, his Honour turned to consider the various sentences which had been imposed on other offenders who were part of the criminal group to which the second offence related.
His Honour then turned to consider the appropriate sentence. In so doing, he made a finding of special circumstances. He then considered the principle of totality and ultimately decided that an aggregate sentence should be imposed.
His Honour indicated the following sentences: 1. for the first offence, a sentence of 2 years imprisonment; 2. for the second offence, including the two offences on the Form 1, a sentence of 2 years and 4 months; and 3. for the third offence, a sentence of 1 year and 3 months.
His Honour then imposed the aggregate sentence of 3 years and 3 months, with a non‑parole period of 1 year and 10 months. He backdated the commencement of the aggregate sentence to 10 January 2020 in order to give the applicant the benefit of all of the time that he had spent in custody prior to being released on bail.

Grounds of Appeal

The applicant seeks leave to appeal and relies upon two grounds. They are as follows: Ground 1: The learned sentencing judge was in error in failing to take into account the residential rehabilitation undertaken by the applicant which amounted to quasi-custody. Ground 2: The learned sentencing judge erred in not taking into account the period which the applicant spent in residential rehabilitation (quasi-custody) in fixing the sentence
It is clear that both grounds refer to the same matters of fact and submissions of law and, accordingly, can be dealt with together.

Facts About Residential Rehabilitation

The grounds of appeal call up the facts, matters and circumstances surrounding the applicant's period of residential rehabilitation at Niagara Lodge, a facility on the Central Coast of NSW.
The evidence before the Judge consisted of the oral evidence of the applicant and some documents. During the course of the sentencing proceedings, the applicant was called to give sworn evidence. He told the Court that as a condition of his grant of bail, he was required to live at the Niagara Lodge. He was asked what services were provided, and he described them as "full time rehabilitation and … we had NA which is Narcotics Anonymous and Alcoholics Anonymous, that's all". He told the Court that he stayed at the facility and participated in programs every day. He also told the Court that about six months after he commenced living at the facility, he obtained full-time work and would go out to work each day and return to live at the Lodge in the evenings. He also attended meetings of NA or AA on a weekly basis.
An affidavit of the applicant's fiancé was placed before the Judge. She informed the Court that she had met the applicant during the period he was living at Niagara Lodge and that they had commenced a relationship shortly after that meeting. She informed the Court that she had fallen pregnant to the applicant in late 2019 and was due to give birth on 25 August 2020. She confirmed that after the applicant had completed his first six months of rehabilitation, he commenced working full-time for a roofing company on the Central Coast and continued working with them for the next seven months. She noted that he resided each night at Niagara Lodge, although it was not clear for what period this arrangement existed.
A reference provided to the Court by Mr Joshua Britain, the assistant manager of a gym in the Gosford area, informed the Court that he had known the applicant for about five months from the time the applicant had joined the gym and commenced attending there to ensure proper exercise. Although the letter was undated, it was clearly written at a time when the applicant was in full-time work. I would infer it was written shortly before the sentencing proceedings took place.
In addition, there were two documents from Niagara Lodge. One was dated 2 October 2019 and the second was dated 6 December 2019. Both were signed by Mr Ross Shepherd, the director of the rehabilitation facility.
In the first letter, Mr Shepherd described Niagara Lodge in these terms: "Niagara Lodge is a residential rehabilitation program for drug & alcohol dependent persons with group work and individual counselling with a residential co-ordinator."
He gave a comprehensive description of how the applicant had engaged in the programs offered by Niagara Lodge and what progress he had made. He said that the applicant had attended an Alcoholics Anonymous or Narcotics Anonymous program daily for six months, and had worked his way, diligently, through "the first seven steps" and was currently working "his way through the eighth step". Mr Shepherd attested to the fact that the applicant had been compliant with the rules of the program and had shown significant progress during his time there.
Included in the letter was this material: "We are supporting Josh in his recovery and while he has been working for one of our committee men for the past three months while continuing to attend house groups and Narcotics Anonymous meetings five nights a week."
The letter of 6 December 2019 contained some expressions to a similar effect but seems to have been obtained to clarify precisely when it was that the applicant had been in attendance at Niagara Lodge. In the course of that letter, Mr Shepherd said: "Joshua has spent nine months with us working a living skills program and learning new social skills, communication, interaction with his peers, support groups, family values and health and education. He will be given the opportunity to return to the work force after this and continue to live at the facility."
Mr Shepherd noted that the applicant had been tested weekly for consumption of illicit drugs by random urine testing. All test results had been negative for consumption of illicit drugs.
Mr Shepherd made further reference to the applicant's work, saying this: "Joshua has been working in the community and working his program here. He has shown himself a positive leader amongst our community. He has also been leading a Narcotics Anonymous meeting on Wednesday night for the past few months."
Although a report was tendered from an expert psychologist, that report did not contain any further detail about the residential rehabilitation programs.

Relevant Legal Principles

A sentencing court is entitled to take into account any conditions of bail granted to an offender awaiting sentence where those conditions may be particularly harsh or restrictive. Such terms are often referred to as "quasi-custody". Prior to a court taking into account conditions of quasi-custody as a basis for reducing a sentence, or commencing a sentence from an earlier date than it otherwise would have, there has to be an evidentiary foundation to establish the nature, kind and effect of any restrictions: see Bonett v R [2013] NSWCCA 234 at [50] where Adamson J said: "Whether restrictions outside of gaol amount to quasi-custody is a question of fact: see for example R v Cartwright (1989) 17 NSWLR 243 at 258 per Hunt and Badgery-Parker JJ and R v Serratore [2000] NSWSC 696 per Kirby J at [31]-[35]. The weight to be given to any such quasi-custody in reducing the sentence imposed is a matter for the discretion of the sentencing Judge. Although quasi-custody may be a relevant consideration it is not a mandatory relevant consideration. However, in circumstances where there is an evidentiary foundation for its being taken into account, the sentencing Judge may be obliged, in some circumstances, to have regard to it even when not specifically asked to."
The question of whether time spent in residential rehabilitation programs amounts to quasi-custody has been considered in a number of authorities including Kelly v R [2018] NSWCCA 44 and also in Small v R [2018] NSWCCA 290. At [37] of Small, Hoeben CJ at CL said: "37. Time spent in a residential rehabilitation program may constitute quasi-custody. Whether the conditions amount to quasi-custody is a question of fact. … A reduction in sentence does not depend entirely on whether the residential program has been productive nor the applicant's motive for undertaking it. The rationale for the allowance is the need to factor into the sentencing exercise the restriction on an offender's liberty during the period of the program. … … 39. The question of in what manner quasi-custody should be taken into account is a matter for the discretion of the sentencing Judge and a question of fact and degree. There is no mandatory requirement to accommodate quasi-custody by way of backdating, nor to provide reasons for not doing so, even if backdating may appear to be the preferable course."
A range of factors which may assist an offender in establishing the onus of demonstrating that a particular rehabilitation program fulfils the description of quasi-custodial conditions has been identified in a variety of decisions of this Court. They were summarised in Kelly at [11].

Submissions

The applicant submitted that in light of the fact that counsel before the Judge had submitted to the Judge that he "… would take into account that period of time as part of the quasi-custody type calculation. … he has done a significant amount of time with respect to that restriction on his liberty", and that the Judge in his sentencing remarks, had failed to discuss the question of whether or not the residential rehabilitation undertaken by the applicant did or did not amount to quasi-custody, error was demonstrated because the Judge had not considered the submission notwithstanding the evidence as to what happened with the applicant whilst he was at Niagara Lodge.
The applicant accepts in his submissions that in the Court below there were no submissions made on his behalf as to how the time in residential rehabilitation should be calculated, nor as to whether a percentage discount should be applied by the Court to the time spent residential rehabilitation, or whether the sentence ought otherwise be backdated.
However, the applicant pointed to the certain fact which was established that he had been in Niagara Lodge for nine months, from 7 March 2019 to 6 December 2019, and had thereby been subjected to a significant restriction on his liberty.
As well, the applicant points to the fact that the Crown did not, before the Judge, make any submission on the question of whether or not the time spent by the applicant in residential rehabilitation should not be taken into account as quasi‑custody. There were no submissions made by the Crown to the Court with respect to any approach by the Judge of giving credit for the time that the applicant spent in that rehabilitation program.
The applicant's submission to this Court can be encapsulated in this way: "Further, in addition to the absence of any finding of fact as to whether the applicant's time in residential rehabilitation amounted to quasi-custody, there is nothing in the learned sentencing judge's remarks on sentence, reflecting a determination as to whether the Court would exercise its discretion to backdate, or not to backdate, the sentence to take into account the time spent in residential rehabilitation, as quasi-custody. It appears from the structure of the sentence that there was no backdate or adjustment of the sentence of the applicant to reflect the time that the applicant spent in residential rehabilitation."
The applicant pointed to the following unchallenged facts as indicating that the applicant's time spent in residential rehabilitation ought be regarded as time of a quasi-custodial nature and merited, as a matter of law being taken into account, by the sentencing Judge. The features were that the program was one of residential rehabilitation, which the applicant attended for at least nine months; the program included group work and individual counselling; the applicant attended AA or NA programs daily for a period of some months and led a Wednesday night NA meeting for some months; although working outside Niagara Lodge, the applicant continued to attend during that period at house groups and NA meetings five nights per week; the applicant was subject to a weekly drug testing regime via the provision of random urine samples; the applicant participated in the rehabilitation program at Niagara Lodge during which any breach of the rules by a participant were reported to authorities.
The Crown's submissions challenged whether these underlying facts constituted sufficient evidence to enable the Judge to have come to a conclusion that the applicant's time spent in residential rehabilitation amounted to quasi-custody.
In particular, the Crown points to the absence of any evidence or other material which suggested that the applicant was subject to any restrictions at all other than being required to attend the rehabilitation programs offered and, for the first six months, reside at Niagara Lodge. The Crown submitted that there was no evidence or other material which suggested any restriction on the applicant's liberty, such as his ability to come and go, or to receive visitors. The Crown submitted that there was no evidence about any restrictions on the applicant's ability to use a phone or access the internet, and that there was no evidence at all as to what level of discipline, if any, applied. There was no evidence or material that there were house rules that were strict in terms of restriction of liberty. The Crown submitted that it was also clear that the applicant, during his period of time of residential rehabilitation, was able to meet his present fiancé through a mutual friend and commence an intimate relationship with her. The Crown also pointed to the fact that the applicant went out to work full-time. The Crown noted that there was no suggestion of any set timetable on any day or any restrictions on freedom generally.
In light of the absence of any evidence or material about those facts, particularly given that the applicant had given evidence on sentence, including describing when asked what occurred at the residential rehabilitation facility, the Crown submitted that the evidence did not establish that the factual conditions amount to quasi-custody, and there was no error of the Judge to have failed to take it into account as quasi‑custody, or in having not made a finding to that effect.
The Crown noted that the Judge had referred to the period of time which the applicant had spent on residential rehabilitation, including the nature of the programs which he had undertaken, in the context of assessing his prospects of rehabilitation and likelihood of reoffending. It submitted that this demonstrated that the Judge had not overlooked the applicant's time in residential rehabilitation.

Discernment

All grants of conditional bail pursuant to s 20 of the Bail Act 2013 involve, or are highly likely to involve, some restriction. It may be noted that s 20A(2) of the Bail Act requires that any condition imposed on a grant of bail relates to the bail concerns which have been found to exist; that the condition is reasonably proportionate to the offence and the bail concern raised and that the bail condition is no more onerous than necessary to address the bail concern in relation to which it is imposed.
It will also be relevant when considering the issue of quasi-custody, to identify with some precision the length of time over which a person has been on bail, and whether the conditions during that period had changed in any way.
The mere fact that a grant of conditional bail involves some restriction on a person's liberty does not thereby, without more, constitute quasi-custody of a kind which makes it relevant to the imposition of a sentence.
Before a grant of conditional bail, and compliance by an offender with that grant can be relevant to sentence, the offender upon whom the onus falls on the balance of probabilities, must establish that such were the restrictions imposed upon the offender by reason of the conditions of bail, that the Court ought conclude that the effect of the conditional bail approached the effect of being held in custody - that is what gives rise to the description "quasi-custody".
If a person is free to come and go from the premises to which they are bailed, then there will be little or no restriction of any relevant kind. The mere fact that a person had to reside at a particular premises does not of itself, constitute a restriction sufficient to amount to quasi-custody, nor does the fact that a person is required by a condition of bail to undergo medical treatment, to seek psychiatric or psychological help or to participate in such rehabilitation program as may be appropriate for their condition. These are conditions imposed, as the Bail Act requires, to address the underlying offence or the bail concerns raised by the Crown when bail is applied for. They may be relevant considerations for a finding of quasi-custody, but in the absence of anything more would not ordinarily constitute quasi-custody.
In order to constitute a relevant or sufficient restriction, it seems to me that in the circumstances of this case, the Judge had to be provided with a great deal more evidence or relevant material which needed to address the freedom of the applicant to come and go from the premises. It is known, as a matter of fact, that the applicant was able to attend full-time work in the latter part of the rehabilitation program. It is known that he was able to meet and form a relationship with someone who was not working at the residential rehabilitation program and to whom he was introduced by a mutual friend.
It was not known to the Judge whether the applicant had a mobile telephone or not, nor whether he had access to the internet or other means of communication. All that was known to the Judge was that the applicant had to attend the rehabilitation program, reside at the premises and be subject to a random weekly urine drug sample test.
On my assessment, none of these constituted any restriction of a substantial kind to the applicant's liberty such as would require the Court to make a finding that his attendance, in accordance with this bail conditions, at the Niagara Lodge, constituted quasi-custody which ought to have been taken into account by the Judge.
In short, I am not satisfied that there was any error because the Judge did not take into account, and make a finding that, the conditions of the applicant's bail constituted quasi-custody of a kind which merited a reduction in sentence, or else having the sentence backdated to take that fact into account.
I reject the applicant's argument that the Judge failed to have regard to the conditions of bail, or the residential rehabilitation program generally. The remarks on sentence make it plain that the Judge was cognisant of the period of time the applicant had spent in residential rehabilitation. That is plain for a number of reasons: 1. he said so in specific terms; 2. he spent some time describing the evidence of the applicant's now fiancé, which covered that period of time, and the activity of the applicant; and 3. he gave careful consideration to the progress of the applicant through the rehabilitation program as that progress had been described by Mr Sullivan, the manager of Niagara Lodge.
It cannot be said that the sentencing Judge was unaware of, and failed to have regard to, such facts as were proved about the applicant's residential rehabilitation.
As it turns out, and without suggestion of error, the sentencing Judge did not regard the applicant's prospects of not offending in the future, i.e. being fully rehabilitated, as anything more than uncertain.
No error has been established. It follows that both grounds of appeal fail.

Orders

It is for these reasons that I joined in with the Court's making of the following orders at the conclusion of the oral hearing of the appeal: 1. Grant leave to appeal. 2. Appeal dismissed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 July 2021

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