Ground 3: alleged error in ordering that the sentence be served by way of an ICO
33This ground has two aspects: first, the way in which the sentencing judge conducted the sentence hearings and structured the sentence; and secondly, the result. The second aspect will be considered below in the context of the manifest inadequacy ground.
34Section 5 of the Act provides that a court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. Section 7 of the Act provides that, subject to Part 5, a court that has sentenced an offender to imprisonment of not more than two years may make an ICO directing that the sentence be served by way of intensive correction in the community. The expression "intensive correction" in the Act has the same meaning as it does in the Crimes (Administration of Sentences) Act 1999 (NSW), namely intensive correction in the community pursuant to an order.
35Section 47 of the Act provides that, relevantly, a sentence is to commence on the day it is imposed unless the Court directs that it is taken to have commenced on a previous day. In deciding whether such a direction is to be made, the Court must take into account any time for which the offender has been held in custody in relation to the offence.
36The way in which the sentence hearing was conducted is set out above. In my view, the process was affected by a number of errors by reason of his Honour's failure to have regard to the purposes of bail and the requirement that a sentencing discretion be ultimately exercised immediately before a sentence is passed rather than, as here, conditionally in advance.
37The respondent had been on bail since 6 February 2013. The long title of the Bail Act 1978 (NSW) (which applied on 7 March 2014) (the Bail Act) was: "An Act relating to bail for accused persons in or in connection with criminal proceedings." Section 14 of the Bail Act provided that:
"A power conferred by this Act to grant bail shall, subject to this Act, be deemed to include a power to refuse bail, but the power to refuse bail may only be exercised in conformity with this Act."
38Section 6 of the Bail Act provided that bail may be granted in respect of the period of any adjournment. The word "adjournment" in s 6 included the period between the conviction of a person and the sentencing of the person: s 16(e1). Section 32 of the Bail Act obliged the court to take into account certain nominated matters and only those matters: s 32(1). There was nothing identified by the judge in any of the criteria there mentioned to justify a refusal of bail. However his Honour was aware that he was not entitled to order that the term be served in the community by way of an ICO if the term was greater than two years.
39In my view, the remarks on sentence given on 7 March 2014 reveal that the purpose for which his Honour ordered that the respondent be taken into custody was to punish the respondent by sentencing him to a period of imprisonment, rather than to fulfill any of the purposes of the Bail Act (see the italicised portions of the extracts above in [15] from the proceedings on sentence). His Honour appears to have embarked on the sentencing process on 7 March 2014 and, in part, imposed the sentence, or at least the custodial portion of it, with a view to ordering an ICO at a later date.
40It is within the power of a sentencing judge either to backdate a sentence or to commence a sentence from the date of its imposition. What the Act requires is that any time for which the offender has been held in custody be taken into account in sentencing: s 24(a). However, this Court has said on a number of occasions that a sentence should take account of prior periods in custody by backdating the sentence, unless there is a good reason, which is articulated by the sentencing judge, for not adopting that approach: see the summary of authorities in Wiggins v R [2010] NSWCCA 30 at [3]-[8] and [14] per Howie J, Harrison J agreeing.
41In my view, on 7 March 2014, his Honour decided that, provided the respondent received an appropriate assessment result, an ICO would be imposed. His Honour revoked the respondent's bail on that date for the express purposes of providing "some full time custodial component to this sentence" and to ensure that the "sentence would not exceed two years". It was not, in my view, a valid exercise of the power to revoke bail to order the accused into custody for the evident purpose of having this period "count" in terms of a sentence by reason of s 24(a). In substance, his Honour contrived a further period of custody with a view to making an ICO at the later date, when that was not an available sentencing option having regard to s 7 of the Act. His Honour sentenced the respondent on 7 March 2014 to three months' imprisonment, with a view to further sentencing him, at a second stage, on 6 June 2014, by making an ICO.
42My conclusion is fortified by the circumstance that the hearing on 6 June 2014 was very brief, since his Honour appears to have regarded it as a foregone conclusion that he would make an ICO. Although the Crown objected, his Honour had already determined the matter. The reason the sentencing judge did not back-date the sentence was that it would have made patent the unavailability of an ICO and his Honour's non-compliance with the constraint in s 7 of the Act. This was not a valid exercise of his Honour's discretion not to make a direction pursuant to s 47(2) of the Act to backdate the sentence.
43His Honour's approach did not comply with s 7 of the Act. Nor was it in accordance with appropriate sentencing practice, which is to impose a sentence once, rather than, as his Honour appears to have done, in two stages.
44Effectively, his Honour imposed a sentence of two years and three months and directed that the latter two years of the sentence be served by an ICO. This sentencing option was not open to his Honour since s 7 of the Act authorises an ICO only for sentences of no more than two years. One of the fundamental duties of judicial officers is to comply with legislation. The process the sentencing judge engaged in in the present case tended to subvert it. Ground 3 has been made out.