Mattiussi v R

Submissions made in the District Court

1. In written submissions under the heading "Totality", the advocate for the Crown made reference to the time in custody "solely referable to this matter" and then to the sentences imposed in the Local Court. It was submitted: [6] Those sentences of imprisonment are partially referable to this matter, noting that the offender was bail refused on these charges throughout that time. The past sentence facts have been included as part of the Crown sentencing bundle: "Without evidence of the facts and circumstances of the earlier offences, no sensible consideration can be given to the question of totality" per Simpson JA (with whom Bathurst CJ and Basten JA agreed) White v R [2016] NSWCCA 190 at [111]. The principle of totality should be applied. Questions of concurrence and accumulation are discretionary matters for the sentencing judge: GS v R [2016] NSWCCA 266 at [49]. The question for the Court will be how much overlap to impose. In MAK [2006] NSWCCA 381, the tension between the competing sentencing principles was explained: [15] … Whenever the court sentences an offender for multiple offences, including when they are different victims, or sentences an offender who is already serving a sentence after conviction for other offences, it is necessary for the judge to ensure that the aggregation of all of the sentences is a 'just and appropriate measure of the total criminality involved' …
2. Aside from informing his Honour that the period in custody "solely referable to this matter" was "1 year, 2 months, and 1 day", the written submissions for the applicant were confined to the need for his Honour to have regard to totality in sentencing for the two offences of sexual intercourse without consent, which occurred one after the other and the need to have regard to the Local Court sentence, including that it was served in full. [7]
3. The proceedings on sentence were exceedingly short. Documents were tendered including written submissions. A victim impact statement by V1 was read. Both parties declined to make any oral submissions.

What the judge said

1. The judge made reference to the principle of totality and first gave reasons for concluding there should be partial accumulation (notionally) as between the indicative sentences assessed for the index offences. He continued: [76] The second aspect to the issue of totality is the fact that since he has been in custody, the offender has been sentenced to imprisonment for two separate sets of domestic violence offences, and those sentences are partly referable to the present proceeding. He has been in custody for a period of 1 year, 2 months and 1 day that is solely referable to the subject offending. But the Crown fairly conceded that sentencing for the other sets of domestic violence offences are at least partially referable to the events for which he is now sentenced.
2. His Honour summarised the facts in relation to the offences of 17 and 19 April 2020 and continued: [79] The aggregate sentence is intended to reflect my assessment of the offender's criminality overall to cover all offences, reflecting, principally a sentence that is proportionate to the gravity of the offending, as well as the other considerations alluded to earlier in these remarks. [80] I take into account the period in which the offender has been in custody by reason of the subject offending and the other sentences, to comprehend his overall criminality.
3. The judge backdated the sentence he imposed by 18 months to 9 March 2021. It is apparent from this that he had some regard to the totality principle vis à vis the Local Court sentence because if he had confined his attention to the period of pre-sentence custody that he had been told was "solely referable" to the index offences (1 year, 2 months, 1 day) the backdating would only have been to 8 July 2021. If the information he had been provided was correct the approach taken might have appeared favourable to the applicant.

Submissions in this Court

1. It was argued by the applicant that the sentence "should have been backdated 1 year, 7 months and 2 days and not the 1 year, 2 months and 1 day as determined by the sentencing judge". The immediate response to that is that the judge did not determine the period; he accepted what he had been told by the parties. Moreover, the backdating was by 18 months, not just for the "solely referable" period. The period of backdating now suggested by the applicant would result in a date of commencement of 8 February 2021 as compared to the commencement on 9 March 2021 ordered by his Honour. [8]
2. The applicant's submissions contended that the error arose in two ways. One was that the judge should have taken into account the period of 4 months, 2 days from 15 May 2020, when the applicant entered custody following arrest for the index offences, to 16 September 2020, when the non-parole period for the Local Court sentences commenced. It was submitted: "This period needed to be added to the 1 years, 2 months and 26 days, where the applicant was also bail refused". [9]
3. The Crown took issue with this, contending that this period (4 months, 2 days) was included in the calculation of the "time in custody solely referable to subject offending" which was provided by the Crown and adopted on behalf of the applicant. It was submitted: A total of 399 days was taken into account in the Crown Sentence Summary, which is the 1 year, 1 month and 4 days referred to in that document as the time the applicant spent in custody solely referable to the present matters. That 399 days includes the 125 days between 15 May 2020 and 16 September 2020. [10]
4. This, and submissions like it, demonstrate the terrible complexity that can be brought to an issue such as this with relatively lengthy periods being calculated into, and from, a number of days. This practice, and another I will refer to later (at [70]), unnecessarily complicates the computation of pre-sentence custody in all but straightforward cases.
5. Another way the applicant put his case was that pre-sentence custody should have included the entire duration of the 5-month parole period of the Local Court sentence. He was entitled to be released on statutory parole upon the expiration of the non-parole period on 15 June 2021 pursuant to s 158 of the Crimes (Administration of Sentences) Act 1999 (NSW). It was only because he was bail refused on the District Court matter that he remained in custody. Thus he should have been allowed credit for the 5 months during which he would otherwise have been on parole. [11]
6. In responding to this, the Crown cited Karpatsis v R [2013] NSWCCA 111 for the following proposition (at [30]): [12] Where an offender has had parole revoked for an earlier offence on account of committing a new offence, it is not correct to say he is in custody on account of the new offence. He is in custody serving his sentence for the earlier offence.
7. The problem with that submission is that the applicant had not had his parole revoked. He had simply not been released on parole because he was bail refused in respect of the index offences.
8. The Crown referred to the terms of s 158 of the Crimes (Administration of Sentences) Act and submitted: The applicant was not entitled, as a matter of law, to have any period of the sentence he was serving on the Local Court matters counted as time already served that was solely referable to the present matters. That time was referable to the sentence for the Local Court matters. [13]
9. Section 158 is in the following terms: 158 Statutory parole order (1) An offender who is subject to a sentence of 3 years or less, being a sentence for which a non-parole period has been set, is taken to be subject to a parole order (a statutory parole order) directing the release of the offender on parole at the end of the non-parole period. Note - The provisions of Divisions 1, 3A and 5 of this Part and of Part 7 applying to parole orders, including provisions relating to conditions, revocation and release, apply to statutory parole orders (see definition of parole order in section 3 (1)). (2) A statutory parole order is conditional on the offender being eligible for release on parole in accordance with section 126 at the end of the non-parole period of the sentence. (3) If the offender is not eligible for release at that time, the offender is entitled to be released on parole as soon as the offender becomes so eligible. (4) This section does not authorise the release on parole of an offender who is also serving a sentence of more than 3 years for which a non-parole period has been set unless the offender is entitled to be released under Division 2.
10. Nothing in s 126 rendered the applicant ineligible for release on parole: 126 Eligibility for release on parole (1) Offenders may be released on parole in accordance with this Part. (2) An offender is eligible for release on parole only if - (a) the offender is subject to at least one sentence for which a non-parole period has been set, and (b) the offender has served the non-parole period of each such sentence and is not subject to any other sentence. (3) Nothing in this Part authorises the release of an offender who is required to be kept in custody in relation to an offence against a law of the Commonwealth. (4) An offender is not eligible for release on parole for a NSW offence if the offender is - (a) a Commonwealth post sentence terrorism inmate, or (b) a NSW post sentence inmate.
11. The effect of this is that the applicant was, pursuant to s 158(1), taken to be subject to a parole order directing his release at the end of the non-parole period (15 June 2021). Pursuant to s 158(2), he was eligible for release on parole according to the terms of s 126 in that he was subject to at least one sentence for which a non-parole period had been set and he had served that non-parole period (s 126(1)). The only circumstance that prevented the applicant's release was the fact that he was bail refused in respect of the index offences. That was not a matter in s 126 that qualified the applicant's entitlement to be on a statutory parole order in respect of the Local Court sentence even though he remained in custody because of the refusal of bail for the index offences.
12. The "Note" appended to s 158(1) indicates (inter alia) that the provisions for revocation of a parole order in Pt 7 of the Act apply to a statutory parole order. It is significant that there was no revocation by the Parole Authority of the applicant's parole order.
13. Another submission by the Crown concerned the applicant serving the non-parole period for the Local Court matters from 16 September 2020 to 15 June 2021 and the sentencing judge backdating the sentence for the index offences to 9 March 2021. The Crown described this as "an outcome generous to the applicant" because it gave him the benefit of reducing the effective sentence for the Local Court matters to less than 6 months' imprisonment. [14]
14. There is no merit in this. The applicant had been in continuous custody for almost 2 years, 3 months when sentenced for the index offences. Whereabouts within that period fell the 9-month non-parole period for the Local Court matters was just a matter of happenstance. It could well have been the case that the magistrate backdated the sentence to a date that would involve the non-parole period expiring before the date of commencement of the District Court sentence. Actual concurrency or accumulation upon the period in which the Local Court non-parole period was in force has nothing to do the amount of credit that should have been allowed to the applicant for pre-sentence custody.

Determination

1. The Crimes (Sentencing Procedure) Act 1999 (NSW) provides for taking into account pre-sentence custody and for specification of the commencement of sentences. In summary: Section 24 requires a court to take into account any time an offender has been held in custody in relation to the offence: s 24(a). Section 47 provides that a sentence may be backdated or postdated but otherwise is to commence on the day it is imposed. In deciding whether to backdate a sentence a court must take into account any time for which the offender has been held in custody: s 47(3).
2. Wilson J observed in Salafia v R [2015] NSWCCA 141 at [65]-[67], that there is no absolute rule as to how pre-sentence custody is to be taken into account by a sentencing court but, for good reasons, backdating the commencement of a sentence has long been held to be the most appropriate course to take.
3. The 5-month period in which the applicant was "taken to be subject to" a statutory parole order should have been regarded as a period of custody solely referable to the index offences.
4. Even if it could be said that the applicant was serving the parole component of the Local Court sentences in the period 15 June 2021 to 15 November 2021, for the following reason there is a powerful argument for this period counting as part of pre-sentence custody in respect of the index offences.
5. It is a matter for discretion as to whether, and if so to what extent, a sentence might be backdated where the offender has been in custody both in respect of the index offence(s) and because of the need to serve the balance of parole in respect of an earlier sentence: Callaghan v R [2006] NSWCCA 58; (2006) 160 A Crim R 145 at [21]-[24].
6. The fact that the applicant was not serving balance of parole as a result of any revocation of parole would militate strongly in terms of concurrency by way of backdating the commencement of the new sentence to allow credit for the 5-month period. That was a view taken by McClellan CJ at CL in Aiken v R [2011] NSWCCA 208. There the offender committed offences while serving a sentence for earlier offences. The new sentence was backdated to 16 April 2009 which was the expiry date of the parole period in respect of the earlier sentences. However, the offender had been eligible for release on parole on 16 October 2008 and there had been no revocation of parole. It was held that the new sentence ought to have commenced on 16 October 2008. Thus, the offender was entitled to the benefit of being regarded as on parole for the earlier matters during the period of remand for the index charges.
7. A similar situation arose in R v Ellmore [2002] NSWCCA 242. The offender was sentenced for three groups of charges; two for historical offences which may be ignored and one involving offences committed between 30 March 2001 and 2 April 2001 while the offender was on parole in respect of an earlier sentence. The offender entered custody following arrest for the index offences on 24 April 2001. The overall effective sentence was specified to commence from the date of imposition, 18 January 2002.
8. The sentencing judge referred to the "ordinary expectation" that the Parole Board (as it then was) would revoke parole and was concerned that backdating the sentence would result in it being concurrent to some extent with balance of parole being served for the earlier sentence. That was held on appeal to be an erroneous approach. G James J said (at [29]-[30]) that it was for the court to pass sentence in accordance with principles and practices relevant to that exercise rather than seeking to advert to what course might be taken by the Parole Board. The judge's discretion in fixing the date of commencement of the sentence had miscarried. The appropriate commencement date was the date of arrest (24 April 2001) in accordance with "the ordinary rule". So, even though the offender was in custody having been bail refused for the index charges, he was still entitled to be regarded as being on parole for the earlier matters absent any revocation of the parole order.
9. The same applies to the applicant. Whether or not he was in fact on parole for the Local Court matters (and I consider that pursuant to s 158 of the Crimes (Administration of Sentences) Act he was), given that the parole had not been revoked it was appropriate to allow for that parole period to be counted as part of pre-sentence custody for the index offences.
10. The correct calculation of "solely referable" pre-sentence custody can be carried out quite simply (in contrast to the approach taken by the parties). There were several days of custody in April 2020 that were included by the Crown in its calculation of pre-sentence custody. They should have been ignored as they were referable to the Local Court matters. The applicant had been in custody for the index offences since 15 May 2020. It was open to the judge to backdate the sentence to that date. However, it was necessary to have regard to the 9 months of the non-parole period served in respect of the Local Court matters. Therefore, in the application of the totality principle it was available for the judge to consider that the sentence could be backdated to a date on or between 15 May 2020 and 15 February 2021.
11. Even if the Crown was correct in its contention that the entire 14-month period of the Local Court sentence should be excluded from custody which was solely referable to the index offences, the calculation could still be described with simplicity: the sentence could be ordered to commence on a date on or between 15 May 2020 and 15 July 2021.
12. The applicant contributed to the error in sentencing having occurred. Ordinarily a party is bound by the way a case is presented at first instance but that is not an absolute rule as sometimes it is necessary to bend to what the interests of justice require in a particular case: Hamilton v R [2016] NSWCCA 59 at [15].
13. The sentencing of the applicant miscarried because the parties led the judge into inadvertent error in failing to take into account the correct period of pre-sentence custody.
14. This ground should be upheld.

Ground 2 - error in relation to special circumstances

1. Having regard to the success of Ground 1, it is strictly unnecessary to deal with this ground, but it can be done so briefly.
2. On the question of whether there were special circumstances warranting a reduction of the proportion of the sentence represented by the non-parole period in accordance with s 44(2B) of the Crimes (Sentencing Procedure) Act the judge said: [81] The offender's Counsel submitted that special circumstances apply; arising from his drug dependence and need for rehabilitative opportunities; together with a loss of opportunities for interventions that were available under parole periods. [82] Not without some hesitation, I am persuaded that special circumstances apply, having regard to some loss of opportunity for rehabilitation during periods of parole served (during the pandemic) and the offender's patent need for rehabilitation prior to his return into the community. But the reduction in the statutory ratio is small. (Emphasis added)
3. Without the finding of special circumstances in the applicant's favour the non-parole period of the sentence would have been 5 years, 7.5 months. The finding had the effect of reducing this by about 4 months to 5 years, 3 months, 2 days.
4. The "2 days" in the non-parole period was not explained. Why or however it was calculated, sentencing is not a matter of arithmetic precision that requires expression of a period of custody in such exact terms. Rounding down to achieve a practical and sensible result is not only permissible but preferable. Generally as to this see R v Deng [2015] SASCFC 176 at [52]; Fitzgerald v R [2018] NSWCCA 170 at [57]; Kristensen v The Queen [2018] NSWCCA 189 at [42]; and Davidson v R [2022] NSWCCA 170 at [343].
5. The applicant's written submissions described the reduction in the non-parole period as "extremely modest". [15] Complaint was made that there was no explanation for this, save for the remark that it was with "some hesitation". [16]
6. Reference was made to other cases in which there were criticisms of an inadequate or unintended degree of reduction of a non-parole period following a finding of special circumstances. They are distinguishable because in the present case the judge explicitly stated an intention to make a "small" reduction. That is what in fact occurred. Issues such as these are entirely in the discretion of a sentencing judge. Provided the reasoning is exposed and there is no miscalculation or inadvertence, it is not a matter justifying intervention by this Court: Caristo v R [2011] NSWCCA 7 at [26]-[44].

Resentencing

1. No further evidence was provided for this Court to consider in the event of resentencing. Submissions for the applicant beyond the question of pre-sentence custody were confined to the issues of totality and special circumstances. It was explicitly accepted that the Court would maintain the same indicative sentences and the same aggregate sentence but (a) by factoring in a correct assessment of pre-sentence custody and applying the totality principle, specify a new commencement date, and (b) maintain the finding of special circumstances. [17]
2. It is evident just from the brief description provided earlier (at [9]-[11]), that each of the three offences was of substantial gravity. The sentencing judge assessed the sexual intercourse offences as "approaching the mid-range" of objective seriousness and the intimidation offence as "above the mid-range". [18] The applicant's subjective case was meagre and there was no entitlement to any sentencing discounts. Having regard to the statutory guideposts of the maximum penalties, and in respect of the sexual intercourse offences the standard non-parole period (see above at [4]), I accept the applicant's concession that the sentences assessed by the primary judge should be maintained.
3. The judge applied the totality principle in the manner described in the remarks on sentence (see above at [28]-[30]) by factoring in an allowance additional to the period of custody "solely referable to the subject offending". If he had only taken into account the "solely referable" period that he was asked to accept, the sentence would have been backdated to 8 July 2021 but he extended the backdating to 9 March 2021. However, the correct calculation of pre-sentence custody provides a rather different context in which to consider the application of the principle of totality than that which was presented to the learned judge.
4. There was very little overlap in the criminality involved in the Local Court offences with that involved in the index offences. Some of the people involved were the same, but the nature and circumstances of the offending were significantly different and there was a temporal disconnection. I propose there be a degree of concurrency between the periods of custody referable to the Local Court and the index offences but only to a modest extent (3 months).
5. The sentencing judge found special circumstances by reason of the applicant's need for rehabilitation and I accept that this should be maintained. However, the extent by which the non-parole period will be reduced will again be "small".

A need for simplicity in providing information as to pre-sentence custody

1. Before departing the matter, I wish to make an observation about the practice of the Crown providing information to a sentencing judge concerning pre-sentence custody. On many occasions in this Court and at first instance I have seen the Crown Sentence Summary document providing information as to the period of time in which an offender has been in custody. This is what occurred in the present case when the judge was only given the awkward and unhelpful information about the custody being for a period of years, months and days.
2. The only thing that matters is the date to which a sentence should be backdated. In some cases, it might be a range of dates that should be considered, depending upon how the totality principle is to be applied. That is an essential matter of which the judge should be informed in addition to any information about the actual period of custody.
3. In the present case it would have been far simpler for the Crown to advise that the applicant had been in continuous custody since 15 May 2020 and that within that period he had served the 9-month non-parole period of a 14-month sentence imposed in the Local Court for other matters. Thus, the judge could have been told that the sentence could be backdated to 15 May 2020 at the most but at least until 15 February 2021.
4. The practice of only telling a judge that there was a period of pre-sentence custody of a certain number of years, months or days (or worse, just a large number of days which span months or years) is unhelpful and should be eschewed.

Orders

1. I propose the following orders: 1. Leave to appeal granted and appeal allowed. 2. Quash the sentence imposed in the District Court on 9 September 2022 and in lieu, sentence the applicant to an aggregate term of imprisonment for 7 years and 6 months with a non-parole period of 5 years and 3 months. 3. The sentence is taken to have commenced on 15 November 2020. 4. The applicant will become eligible for release on parole upon the expiration of the non-parole period on 14 February 2026.

Endnotes

1. AB 70-72, 74
2. AB 73-76
3. AB 63
4. Particulars of Trial, p3
5. AB 59-60
6. AWS at AB 92; R v Mattiusi (No 3] [2022] NSWDC 406 at [76]
7. CWS at AB 84
8. AWS at AB 92-3
9. AWS (CCA) 15
10. AWS (CCA) 14
11. CWS (CCA) 21
12. AWS (CCA) 10, 17
13. CWS (CCA) 14
14. CWS (CCA) 24
15. CWS (CCA) 26
16. AWS 26
17. AWS 27
18. CCA T5-7

Amendments 06 December 2023 - At [60] insertion of "a reduction of" which was inadvertently omitted 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: 06 December 2023