Refaieh v R [2018] NSWCCA 72 | Case summary

The proceedings on sentence

On 8 July 2015, nearly nine months after pleading guilty in the Local Court, the applicant's proceedings on sentence were heard before Toner SC DCJ. During oral submissions, his Honour enquired of the applicant's counsel as to the appropriate commencement date of the sentence. I have extracted the exchange that ensued below, but in order to follow it, it is necessary to first note the relevant statutory provisions governing the fixing of commencement dates for sentences. Section 24(a) of the Sentencing Act provides that, in sentencing an offender, the court must take into account "any time for which the offender has been held in custody in relation to the offence" (emphasis added). Section 47(1) of the Sentencing Act provides that sentences are to generally commence on the day they are imposed, s 47(2) provides courts with a general discretionary power to backdate the commencement of sentences and s 47(3) requires a sentencing court exercising its discretion under s 47(2) to take into account time the offender has been held in custody "in relation to the offence".
In response to the sentencing judge's inquiry as to when he should commence the applicant's sentence, the following exchange occurred (Mr Howell was the applicant's barrister): "HOWELL: He was arrested on 29 April. He had a short period on bail between 1 July-- HIS HONOUR: Can you just tell me when he's been in custody from? HOWELL: Sorry, your Honour, I've calculated it - I haven't put the Crown on notice but I've calculated it as being 18 August 2014. HIS HONOUR: Do you disagree with that? HATFIELD: I'll check that, your Honour. HIS HONOUR: In any event he's been in custody solely referable to this matter? HOWELL: No, he was arrested for other matters but they're outstanding matters. HIS HONOUR: Have they been dealt with? HOWELL: No. HIS HONOUR: What are they? HOWELL: There's a charge of murder and a charge of attempted murder as I understand it. I don't think they've got a trial date. HIS HONOUR: So he's pleading not guilty to those, is that right? HOWELL: Yes, that's right and that was the reason for his rearrest on 21 October 2014. HIS HONOUR: 23 October, I've got 18 August. HOWELL: I've worked out as a commencement date - taking into account the period that he was on bail I've calculated a commencement date of 18 August 2014 to take into account the total time he's been in custody before today but some of that time is not referable to this offence. HIS HONOUR: Hang on, he's not in custody when he's on bail. HOWELL: No, quite right, your Honour. HIS HONOUR: How long has he been in gaol for? HOWELL: Well, two periods, 29 April 2014 to 1 July 2014 and 21 October 2014 to currently. HIS HONOUR: So he was bailed by the Supreme Court at some stage, is that right? HOWELL: He was bailed for these matters that your Honour's dealing with. HIS HONOUR: In any event his bail was pulled when he was arrested in relation to the murder charge, is that right? HOWELL: I don't think technically it was. I don't think the step was taken by the solicitor. HIS HONOUR: I see but he was taken into custody bail refused, righto. HOWELL: It will be my ultimate submission it doesn't matter whether or not the solicitor said revoke the bail or not. HIS HONOUR: I don't know, he might still be on bail in relation to these matters. HOWELL: But the practical effect is he hasn't. HIS HONOUR: Well, I don't know about that. You can't bank time as you know. If he's simply in gaol at the moment bail refused in relation to the murder charges but he' still on bail in relation to these matters it's an interesting question as to whether he's entitled to this time when calculating the commencement date of the sentence that I'm to impose. HOWELL: It's an interesting question, can I just suggest this, the corollary-- HIS HONOUR: It's fascinating stuff. but can I also say because it might happen for instance that he beats the murder, attempted murder charges, right, and what might happen in relation to that is that somebody could stand up and say, well, bad luck you just burnt time and you're not entitled to this time in relation to this sentence, the one I'm dealing with, on the basis that you were on bail in relation to it. HOWELL: I agree. So the future question I'd submit is, if there's to be a sentence at a later date for those other matters, the question is concurrency or cumulation in the event that it occurs. HIS HONOUR: It's not a matter for me, somebody up in the Supreme Court is going to have to wrestle with that. HOWELL: On this sentence to ensure that on at least one sentence the time that is served practically in reality is taken into account. HIS HONOUR: I don't know about that because if for instance he beats the murder charge, the attempt murder charges, it might be just his fate that he spent time in custody bail refused in relation to it but he's found not guilty, that happens all the time sadly. HOWELL: My submission would be that if that was to be what happened practically speaking it would work an injustice for that particular offender where there was an opportunity to take that time into account on another sentencing exercise at an earlier time. HIS HONOUR: Anyway, this might all be moot because the Crown might simply agree with you, I don't know, but I think the best thing to find out at the moment is as to what his bail status is in relation to this particular matter. HOWELL: We think, without being sure because he's had a change of solicitors, but we think that his bail was revoked at the time that he was committed from the Local Court. HIS HONOUR: Somebody will probably know the answer to that. I would have thought - in the old days you used to have the gaol recorder would tell us about that but his custody record would probably tell you that. I don't know if the custody record - Crown, is the custody record part of your tender? HATFIELD: Yes, your Honour. HIS HONOUR: Well, have a look back and that will probably tell you. Well, do you know, Crown? HATFIELD: I'll have to look. HIS HONOUR: Have a look, there's no urgency about that copy. HATFIELD: On the day that he was committed for sentence I note that the bail status indicated bail granted but not entered. HIS HONOUR: Well, that's another hybrid, okay,. Well if bail's granted but not entered he's in custody because bail is only effective once a person enters their bail."
His Honour later returned to the question of the appropriate commencement date of the applicant at which time the following further exchange took place: "HOWELL: I submit that the start date should be 18 August 2014. The way I get there is, if your Honour just turns to p 3 of 4 of the convictions, sentences and appeals record at about point 3 on the page. HIS HONOUR: Do you disagree with this, Crown? What's your start date for Mr Refaieh? HATFIELD: Your Honour, the Crown's position is that he can't bank the time that's referrable to another offence. HIS HONOUR: Because he's on these other charges? HATFIELD: Yes, that's a separate matter so strictly speaking under s 47 crediting the time referrable to this offence-- HIS HONOUR: Yes I understand you Crown, I think we've had this chat. But you can send me a note about it if you want to but give it to the Crown and if you want a reply to it Crown you can. But I don't want a 50 paged document thanks very much I want something on an A4 page in dot form, at worst. HOWELL: I'm not going to do anything, I won't do any other - the reason I'm hesitating-- HIS HONOUR: You say that, yeah. HOWELL: I'll do I it. The reason I don't want to make the submission now is I just want to be sure. HIS HONOUR: You can, like on Monday. HOWELL: I just want to confirm what exactly happened in the Local Court. HIS HONOUR: But prima facie the Crown is right and you'll recall that the discussion we had earlier in relation to this namely, that if he was on bail in relation to this matter, arrested in relation to the murder, attempted murder charge, bail is refused in relation to those but remained on bail in relation to these matters. He is on bail in relation to these matters, he is not in custody in relation to these matters. If he had have been bail refused - if his bail had of been pulled in relation to these matters, different business because he would have been doing time coincidently. HOWELL: That's what I want to find out your Honour. HIS HONOUR: It's significant, and the Crown I don't think will disagree with the proposition that if it turns out his bail had been revoked in relation to these matters after he was arrested on the murder and attempted murder charges, that he was coincidently effectively serving time in relation to these matters. The Crown will hold their hands up to the proposition that time ought to be taken into account, won't you Crown? HATFIELD: Yes your Honour. HOWELL: Can I say something about that and I'll go one step further because there's an issue there if - result of my enquiries has shown that he had bail granted but not entered for the period that he was also bail refused in respect of other matters that are not finalised. Whether or not I have an answer to the Crown's submissions that's been made. HIS HONOUR: You made it because as I said earlier on, bail is not efficacious until its entered, he's not entitled to his liberty until he enters his bail, that's what you're going to say to me, is that right? HOWELL: Yes, and globally I'm going to say your Honour, that there may be - first of all I'm going to say that your Honour has a discretion, I expect I'm going to say your Honour has a discretion as to whether or not to back date or not. HIS HONOUR: Well if he was on bail. HOWELL: But not entered, yes. HIS HONOUR: I don't know whether that necessarily involves a - well I suppose it always involves a discretion to some extent as to the commencement date of the sentence with some restrictions. HOWELL: The discretion is provided by 472 [sic - 47(2)], that says that your Honour made that date, in effect - paraphrase - your Honour made that date but 473 [sic - 47(3)] says, your Honour must take into account the time that's referable to the defence as a mandatory consideration to-- HIS HONOUR: I know, that's why I'm saying what I'm saying, that if he was granted bail but bail hadn't been entered, he's still in custody. Because he's not entitled to be at liberty until such time as he enters his bail. And the Crown is not going to disagree with that either, I suspect, although he's very silent on that one. HATFIELD: No your Honour, I'll need to consider that point but if my friend can point to me something that's not entered and he was effectively held on that charge-- HIS HONOUR: Sure, a good example of it is that if a surety is fixed in relation to a bail and if you meet all the conditions of bail saved for the fact that he can't make the surety, well he's still in custody. HOWELL: I point to one other feature of the bundle that supports that, which is the notice of committal indicates that on 21 October 2015, that is one year after he went into custody for the initial charges. The record of bail status is, "Bail granted, not entered", on that notice of committal - I've got to go back-- HIS HONOUR: You can tell me about that in your note and send it to the Crown before you send it to me because the Crown may well agree with you. Mr Crown, if you want to contest on what's been said, well by all means drop me a note about it."
I have extracted the above transcript on the basis that the applicant contends under the second ground that the sentencing judge failed to appreciate that he had a general discretion to backdate the sentence even if it was not referable to the trafficking charge. Although this court has been critical of reliance on transcript (rather than the Reasons) to establish error (see R v Pham [2005] NSWCCA 94 at [11] and R v Thompson (2005) 156 A Crim R 467; [2005] NSWCCA 340 both cited in Hampton v R (2014) 243 A Crim R 193; [2014] NSWCCA 131 ("Hampton v R") at [23]), I consider it appropriate to extract the relevant transcript in this matter given the nature of the complaint made.
Counsel for the applicant subsequently filed further written submissions on the question of the appropriate commencement date of the applicant's sentence ("the supplementary submissions"). In the supplementary submissions, the applicant's then counsel confirmed that, after the applicant was taken into custody on 21 October 2014 in relation to the other offences, no application was made for his bail in relation to the trafficking offence to be formally refused and his bail was in fact continued on a number of occasions until 21 October 2015.
Having accepted that the applicant was technically on bail for the trafficking charge from 21 October 2014 until 21 October 2015, it was submitted that "the issue is whether as a matter of law the Court is entitled to take into account in determining the commencement date of the sentence the period that Mr Refaieh has been in custody since 21 October 2014" (emphasis added). It was submitted that the Court was entitled, in the exercise of its discretion, to do so on a number of bases.
First, s 47(2)(a) of the Sentencing Act provides the discretion to direct that a sentence be backdated.
Second, s 47(3) of the Sentencing Act provides that, in exercising its discretion, the Court must take into account time served in custody pre- sentence which relates to the offence, but s 47(3) does not fetter the scope of the general discretion provided by s 47(2)(a) of the Act. Counsel relied on five factors which favoured the exercise of the discretion to backdate the sentence to 21 October 2014: 1. There was no guarantee that he would be convicted in relation to the murder; 2. Had his solicitors been more prudent and applied for his bail to be revoked there would be no dispute about his entitlement to have his sentence backdated to cover that period; 3. Taking the period of custody into account for the trafficking offence would ensure that it was taken into account in respect of a sentence he will actually be serving; 4. To not take the time into account created the risk that a period of one year and nine months would not be counted towards any sentence of imprisonment that the applicant was required to serve; and 5. The exercise of the general discretion provided by s 47(2) of the Sentencing Act must be informed by consideration of fairness and reasonableness and the need to avoid a practical injustice being occasioned to the applicant.

Consideration

The first ground of appeal concerns whether the sentencing judge was required to take into account the "third period" by virtue of s 47(3) of the Sentencing Act which provides that "the court must take into account any time for which the offender has been held in custody in relation to the offence" (emphasis added).
I note at the outset that, as is evidenced by the transcript extracts and the summary of the supplementary submissions filed in the District Court, it was not suggested to the sentencing judge that the third period was time spent "in relation to" the trafficking offence. Rather, the submissions in the District Court were all directed to the exercise of the sentencing judge's general discretion to backdate the commencement of a sentence as a matter of practical fairness.
I am not satisfied that, as a matter of construction, it could be argued that the third period, during which time the court papers record the applicant having a grant of bail for the trafficking charge, could be considered to be a period during which the applicant was held in custody "in relation to" the trafficking offence.
Although the applicant relied upon a number of decisions of this court in support of this ground, it was accepted that there is no authority for the proposition that an offender who has bail on the subject charge should be considered to be in custody "in relation to" it because he is being held on remand in relation to an unrelated charge. Rather, the decisions relied upon concern the issue of commencement dates for sentences in circumstances where an offender is detained on more than one basis.
The decision in R v Callaghan, relied upon by the applicant, is authority for the proposition that, when parole is revoked because of the commission of a subsequent offence, the sentencing judge has a discretion as to when the subsequent sentence should commence. In that matter, the sentencing judge had commenced the offender's sentence for the subsequent offences after the balance of parole had expired. Simpson J (as her Honour then was), with whom James and Hall JJ agreed, held that a discretion exists in terms of whether to backdate the sentence to the date parole was revoked, to another point in time during the parole period, or to after the head sentence had expired. Her Honour held that the course of action taken by the sentencing judge is to be informed by the circumstances of the particular case and observed (at [24]-[25]): "[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."
Thus, that decision is concerned with the general discretion as to when to commence a sentence for an offence committed when the offender has been in custody both serving a balance of parole and bail refused on the subsequent offences. It does not assist on the question of whether, when an offender has bail for one offence but is bail refused on another, he or she can be considered to be in custody in relation to both offences.
In R v Windle, another decision relied upon by the applicant, the offender was serving the parole portion of his sentence (his non-parole period had expired) when he committed a further offence in custody. The sentencing judge backdated the commencement date for the subsequent sentence to the first date at which parole was considered following the commission of the subsequent offence. Although the backdating of the sentence was not a point agitated on appeal, Basten JA, with whom Price and Campbell JJ agreed observed: "The sentencing judge did not explain why he backdated the sentence to the point at which parole was presumably (whether it occurred or not was not noted by the sentencing judge) first considered after the fresh offending. There was no necessary error in taking such a course and, as neither party sought to challenge the approach taken, this Court should adopt the same commencement date in resentencing."
These decisions confirm that there is a general discretion as to when to commence a sentence committed whilst on parole which leads to parole being revoked. They do not assist on the construction of "in relation to" in s 47(3) of the Sentencing Act.
Hutchen v R [2015] NSWCCA 101 concerned an offender whose parole had been revoked when he was arrested for a subsequent offence. The court rejected the argument that the time spent in custody following the revocation of the offender's parole was "in relation to" this new offence. Hoeben CJ at CL, with whom Adams and MacCallum JJ agreed held (at [36]): "It is incorrect to characterise the time spent in custody, as a result of the revocation of parole, as 'any time for which the offender has been held in custody in relation to the offence' as referred to in s 47 of the Crimes (Sentencing Procedure) Act 1999."
These decisions concerning sentencing of offenders whose parole has been revoked following subsequent offending establish that there is a general discretion as to when to commence the sentence but the balance of term is not time spent "in relation to" the subsequent offence. They do not support the construction of "in relation" to in s 47(3) advanced by the applicant.
Another decision relied upon by the applicant on this issue is Sultana v R. In that decision the offender was sentenced with respect to one count on an indictment with two further offences taken into account on a Form 1 (see s 32 of the Sentencing Act). The two Form 1 offences were charged prior to the date that the offence on the indictment was charged. Although the offender had spent two months and 17 days in pre-sentence custody with respect to the Form 1 offences prior to the offence on the indictment being charged, the sentencing judge did not backdate the sentence so as to account for this period. Rather, he commenced the imprisonment term from the date the offender entered pre-sentence custody with respect to the offence on the indictment. The Court (Hidden J with whom McClellan CJ at CL and Rothman J agreed) allowed the appeal and re-sentenced the offender to account for the two months and 17 days and in doing so observed at [15]: "Of course, whether to backdate a sentence for any reason is a matter within the discretion of the sentencing judge, although it is a discretion for which there is ample guidance in the authorities. It seems to me that the terms of ss24(a) and 47(3) of the Crimes (Sentencing Procedure) Act are capable of embracing pre-sentence custody referable to Form 1 matters, but I do not find it necessary to decide that question. The fact is that Form 1 matters normally have an impact, sometimes a substantial impact, on the sentence passed for the principal offence. Justice demands that pre-sentence custody exclusively referable to such offences should normally be taken into account and, consistently with authority, it is preferable that that be done by backdating the sentence for the principal offence."
I have not found that decision to be of assistance in construing whether the third period in the present matter was custody "in relation to" the trafficking offence.
The Crown relied upon the decision in Hamilton v R. In that matter, the applicant was granted bail on 27 April 2014 in relation to an offence of aggravated break and enter. On 29 September 2014, he was arrested for an unrelated aggravated robbery and was bail refused in relation to that offence only. On 21 October 2014, he pleaded guilty to the first charge and was then bail refused on that offence as well. Thus, in the period between 29 September 2014 and 21 October 2014, the applicant was on bail in respect to the offence in relation to which he was being sentenced even though he was at that time in custody bail refused in relation to an unrelated offence. The matter for which he was arrested on 29 September 2014 was subsequently "no-billed" in August 2015. It was accepted by the Crown on appeal that the sentencing judge erred in commencing the sentence from the date it was imposed and that the sentence should be backdated to the date upon which he was formally bail refused in respect of the offence the subject of the appeal. Schmidt J (with whom Hoeben CJ at CL and Harrison J agreed) observed (at [14]): "The requirements of s 24 and s 47(2)(a), which require presentence custody to be considered and which permit a court to direct that a term of imprisonment commence on a day before the day on which a sentence is imposed, do not mean that offenders accrue "credit in the bank" for time spent in custody for matters not referable to those for which they are being sentenced, such as the time that the applicant spent in custody for the s 95 offence (see Hampton v R [2014] NSWCCA 131; (2014) 243 A Crim R 193 at [26] - [39]). In Kaminic v R [2014] NSWCCA 116 it was also observed that s 24 does not impose a mandatory requirement that sentences be backdated in every case where presentence custody has been served, although reasons for not doing so should be clearly stated."
Her Honour went on to observe at [19]: "In all of those circumstances, in resentencing the applicant it is appropriate to take into account not only that the applicant was bail refused in relation to this offence, from 21 October 2014, but also that the s 95 offence, in respect of which he was bail refused from 29 September, was later no billed. Those circumstances compel the acceptance of the parties' common ground that this sentence should start from the date on which the applicant was refused bail in respect of this offence, 21 October 2014."
Hamilton v R is factually similar to the present matter although it is to be accepted that the parties in that matter agreed that the backdating should not extend to the time the applicant was in custody for the matter which was "no-billed" and on bail for the subject offence; it is not clear from the decision whether the court heard any argument on this issue.
Having regard to all of these decisions I am not satisfied that any of them support the applicant's argument that the words "in relation to" ought to be construed so broadly as to include time when the applicant was on bail for the offence but not eligible to be released because of other charges.
Nor am I satisfied, contrary to the applicant's submissions, that any assistance as to the construction of the words "in relation to" in the present matter is to be found in the Bail Act. It is to be accepted that, although the applicant was entitled to be released on bail for the trafficking charge, he remained in custody on the murder charge, but the operation of ss 7 and 14 of the Bail Act does not act to alter the applicant's bail status for the trafficking offence during the third period. "Bail" is defined in s 7 as follows: "(1) Bail is authority to be at liberty for an offence. (2) Bail can be granted under this Act to any person accused of an offence. (3) A person who, because of bail, is entitled to be at liberty for an offence is entitled (if in custody) to be released from custody. Note. Limitations to the entitlement to be at liberty are specified in section 14."
Section 14(3) of the Bail Act provides: "Bail does not entitle a person to be at liberty while the person is in custody for some other offence, or reason, because of which the person is not entitled to be at liberty."
The fact that the applicant was not entitled to be released from custody during the third period does not mean that his bail status for the trafficking charge throughout that period was altered. If at any stage during that time he was either granted bail in relation to the murder charge or it had been discontinued he would have been entitled to immediate release.
No evidence was put before this court nor the court below as to why it was that the applicant's bail was not revoked during the relevant period. There are three possible explanations. The first explanation is that it was oversight. This was advanced as an explanation in the supplementary submissions filed in the District Court. The second explanation is that a decision was made not to seek to have bail revoked as this would enable his immediate release should there be any change in relation to the murder charge.
A third possible explanation was advanced by counsel for the applicant at the hearing of the appeal. It was submitted that the reason why no application was made to have the applicant's bail revoked on the trafficking charge could well have been that there is no obvious mechanism under the Bail Act to do so. I am unable to accept this submission. It is true that s 50 of the Bail Act only permits "detention applications" to be brought by the prosecutor and not an accused person but there are other avenues by which the applicant could have sought to have his bail revoked on the trafficking charge from 21 October 2014. For example, s 51 of the Bail Act provides that an "interested person" (including the offender) may seek a bail variation and the court has the power to revoke bail on such an application. Although s 51(9) provides that "[a] court must not revoke bail on a variation application unless revocation is requested by the prosecutor in the proceedings," I do not accept that a court would decline an offender's application to have his or her bail revoked if the request was not joined by the prosecutor. In short, I am not satisfied that the process of seeking to have bail revoked is so difficult under the Bail Act that this Court should proceed on the basis that the third period in this matter should be considered time in custody "in relation to" the trafficking charge. The fact remains that there was no evidence before the court as to why the applicant did not seek to have his bail revoked on the trafficking charge and it is inappropriate to speculate on that issue.
As for the applicant's submission that he was effectively in custody "in relation to" the trafficking offence during the third period because it was not spent at large, as I have already noted, if the murder charge had been withdrawn or the applicant had been granted bail in relation to it, he would have been entitled to immediate release from custody.
Finally, I do not accept the applicant's submission that his custodial status during the second period was virtually indistinguishable from the third period and that error is thus disclosed by his Honour's differentiation in this regard. During the third period his bail was never re-considered. Rather, the papers were marked that bail on the trafficking charge was continued on each occasion. That changed on 21 October 2015 as is evidenced by the papers being marked that, although bail was formally granted, it was not entered. On this basis it was open to the sentencing judge to conclude that the applicant was no longer on bail for the trafficking offence thereafter.
Overall, I am not satisfied that the sentencing judge erred in concluding that the period of time from 21 October 2014 until 21 October 2015 was not custody spent "in relation to" the trafficking offence. He was not asked to make such a finding in any event.
The second ground of appeal concerns whether, even it is to be accepted that the sentencing judge was not required to backdate the sentence to take into account the third period, his Honour erred nonetheless by failing to do so in the exercise of his discretion under s 47(2) of the Sentencing Act. As Hoeben CJ at CL observed in Delaney v R (2013) 230 A Crim R 581; [2013] NSWCCA 150 at [60]: "The commencement date for a sentence has always been a matter of discretion for the sentencing judge. If appropriate reasons have been given, it is necessary for a party challenging that decision to identify a House v R [1936] HCA 40; 55 CLR 499 error if the challenge is to be successful."
Two alternate complaints were made under this ground. First, it was contended that, having been satisfied that the third period was not pre-sentence custody spent "in relation to" the trafficking offence, his Honour failed to consider whether he should nonetheless exercise the discretion conferred upon him under s 47(2) of the Sentencing Act. Second, it was contended that if in fact his Honour did turn his mind to the exercise of his general discretion, he erred in the exercise of his discretion by declining to take into account the third period. I shall consider these two complaints in turn.
First, I do not accept that the sentencing judge mistakenly was of the view that if the relevant pre-sentence custody was not "in relation to" the trafficking offence that was the end of the matter. A fair reading of his Honour's reasons does not disclose this. Considerable time was spent during the hearing considering this issue (as the transcript of the proceedings on sentence extracted above shows) and supplementary submissions were filed on the question of the exercise of this discretion. Those submissions addressed the reasons why the discretion should be exercised in favour of backdating the sentence to take into account both the second and third periods. There is considerable overlap as between the reasons but they all turn on the simple proposition that if the backdating is deferred to the sentencing on the murder charge and he is acquitted on that charge a practical unfairness would result given that he was in fact in custody throughout the third period.
I am satisfied that when one has regard to the transcript of the proceedings on sentence, the supplementary submissions and the observations by his Honour extracted above, it could not be said that his Honour failed to apprehend that he had a discretion in this regard. Although his Honour did not specifically address these arguments in his reasons for sentence, it is tolerably clear that his reason for not backdating the sentence to include the third period is that the applicant was on bail during that time for the trafficking offence and it was time referable solely to the murder charge. The arguments all invited his Honour to effectively deem the third period as time when he was bail refused on the trafficking charge but his Honour was not inclined to do so. I am not satisfied that the reasons for adopting this course are inadequate.
Even if the applicant's bail on the trafficking charge had been revoked, the question would still have arisen as to whether the third period should be taken into account for the trafficking charge or the murder charge. There is nothing in either ss 24 or 47 of the Sentencing Act which mandates that when the same period on remand is referable to more than one separate offence the sentencing judge is required to take the remand period into account on the first sentence in time to ensure that it is actually taken into account. Nor am I aware of any decision of this court to that effect. Despite this, it seems to me that, as a matter of general practice, this is the preferred approach. It would then be open for the sentencing judge to make clear that the relevant period had already been taken into account to ensure that when it came time for the offender to be sentenced on the second offence that, putting to one side issues of totality, there was no "double counting" of the relevant remand period. This approach was taken in R v Karageorge, a case relied upon by both the applicant and the respondent in the present matter. The difficulty is that this presupposes that the applicant was in custody during the third period on both the murder charge and the trafficking charge.
In R v Karageorge, the applicant was charged with five separate offences on three separate dates. He was sentenced to a term of imprisonment for the third offence whilst being bail refused on the first, fourth and fifth offences. This court subsequently quashed his conviction on the third count and ordered a new trial. The question arose on appeal as to whether the time he was bail refused on counts 1, 4 and 5 could be taken into account when being sentenced for those offences given that he was also serving a sentence following a conviction on a count that was subsequently quashed. Mr Karageorge's appeal was allowed on the basis that, at the time he was serving the imprisonment sentence, he was also bail refused in relation to the subject offences. The Court rejected the Crown's argument that it would be incongruous that credit be allowed for time served in relation to a sentence set aside on appeal depending on whether bail has been allowed or disallowed in relation to the offence in question. Sperling J stated (at [22]): "It would be unjust to disallow credit for time in custody pending trial because that time overlapped a sentence later set aside. A sentence set aside should count for nothing against the person concerned, let alone operate to negate an entitlement which that person would otherwise have under the law."
Spigelman CJ (with whom Simpson J agreed) noted that the applicant should not expect to receive credit twice for this period if he was again convicted at his new trial on the count in relation to which his conviction had been quashed ( at [28]-[29]).
The principle referred to in R v Karageorge above (at [68]) comes from the decision in R v Niass. In that case, the sentencing judge had rejected the applicant's submission that time spent in custody on unrelated charges, of which he had been tried and subsequently acquitted, should count towards the offence before the Court. On appeal to this Court Lee CJ at CL, with whom Gleeson CJ and Allen J agreed, rejected the proposition that the applicant had a "legitimate grievance" in a sentencing sense. His Honour observed that "[m]any persons are acquitted for all sorts of reasons which have little to do with the question of actual innocence of that person" (at p 2). His Honour also stated: "The courts recognise that in dealing with a particular offence it is always appropriate to take into account periods during which an appellant has been held in custody in respect of that offence. But to my knowledge, it goes no further than that… One can understand that a person, who, in regard to an offence of which he is subsequently acquitted, could in some circumstances feel that he had been unjustly dealt with by being kept in custody awaiting trial for that offence. But whether that grievance was justified would depend on the facts of the particular case."
In Hampton v R, a five-judge bench of this Court confirmed that time spent in custody in relation to one offence cannot be "banked" such that if the applicant is subsequently acquitted on that charge it must be applied to the present sentence. Johnson and Bellew JJ (with whom Gleeson JA and Price and Garling JJ agreed) noted at [26] that the argument put forward by the applicant was that the sentencing judge was bound to consider the period of time spent in custody on remand for earlier unrelated charges upon which he was ultimately discharged and to "take it into account in the exercise of the sentencing discretion". Their Honours went on to observe (at [27]-[30]): "The decision of this Court in R v Niass appears to stand in the way of that submission. That decision makes it clear that where what is sought to be done is to invite a sentencing court to take into account, as a relevant matter, a period in custody for an unrelated matter leading to acquittal or discharge, that factor is not, in and of itself, relevant to the sentencing exercise. Relevant statutory provisions confirm that time for which an offender has been held in custody in relation to the offence for which sentence is to be passed is a mandatory factor to be taken into account on sentence: ss.24(a), 47(3) Crimes (Sentencing Procedure) Act 1999. There is nothing in s.21A Crimes (Sentencing Procedure) Act which supports the Applicant's submission. It is true that s.21A is not exhaustive and factors available to be taken into account at common law remain available. However, this brings one to the decision in R v Niass, which has been applied frequently in this State. Later decisions of this Court tend to confirm this approach. Some have involved an acceptance that where other events occur during such a period in custody, those events may bear upon the issue of sentence. However, that is because they relate to the offender's subjective circumstances: R v Evans (NSWCCA, 21 May 1992, unreported); R v Webster and Jones (NSWCCA, 3 August 1992, unreported); R v Chung (NSWCCA, 9 March 1994, unreported); R v David (NSWCCA, 20 April 1995, unreported); R v Hudd (NSWCCA, 5 December 1995, unreported); R v Baartman (NSWSC, Dunford J, 18 December 1988, unreported); R v Karageorge [1999] NSWCCA 213; R v Giam (No. 2) [1999] NSWCCA 378; R v Rozynski [2001] NSWCCA 257; Huntingdon v R [2007] NSWCCA 196 and Kerr v R [2008] NSWCCA 201. These decisions confirm an approach that bare reliance on a period in custody for an unrelated matter, without more, is extraneous to the exercise of sentencing discretion for other matters. This is particularly so where there is a broken period of custody, as exists in this case."
The facts in the present matter differ to those in Hampton v R and R v Niass. The unrelated custody in those matters was served prior to the commission of the offences in question. It was in that context that the court rejected any suggestion that there could be a form of "credit" in relation to that custody. Despite this, I accept the Crown submission that, by analogy, these decisions are authority for the proposition that there is no overriding obligation to take into account custody that does not fall within the definition of being "in relation to" the subject offence.
The question of the appropriate commencement date for a sentence was recently considered in Little v R [2018] NSWCCA 63. In that matter the applicant had been bail refused in relation to both kidnapping and driving offences from 13 July 2015. He was sentenced in relation to the driving offences to a fixed term of 10 months to date from 13 July 2015. On 23 June 2016 he was sentenced in relation to the kidnapping charge to a term of imprisonment to commence on 13 November 2015 (4 months after bail had been refused). The sentencing judge expressly took into account the principle of totality both when formulating the sentence and determining the commencement date. On 23 February 2017 the conviction and sentence for the driving offences were set aside on appeal to the District Court, On appeal to this court, (Hoeben CJ at CL, with whom Johnson and Price JJ agreed), it was held that in reliance on the principles in Khoury v R [2011] NSWCCA 118; 209 A Crim R 509, the change in circumstances concerning the driving offences could be before the court. The court went on to hold that it was appropriate to intervene and re-sentence the applicant, but it refused to backdate the sentence to 13 July 2016 because the consideration of the totality principle was part of the overall intuitive synthesis on the part of the sentencing judge. Instead, the sentence was back-dated to commence two months earlier on 13 September 2015.
The decision in Little v R was concerned with a different issue. The applicant was in custody from 13 July 2015 in relation to both the kidnapping charge and the driving offences and the issue was one of totality. The grounds of appeal in Little v R initially relied upon error in not backdating the sentence to 13 July 2015. This ground of appeal was withdrawn when it was pointed out that this is a court of error and there was no error in the sentence at the time it was imposed. Leave was granted for the applicant to rely on a sole new ground of error being that because the sentence was partially accumulated upon the sentence for the driving offences in circumstances where the applicant had been concurrently in custody bail refused, the setting aside by the District Court of the sentence for the driving offences gave rise to a miscarriage of justice given the application of the totality principle by the sentencing judge.
Having considered all of these decisions, the question is, ultimately, whether House v R error can be established in the approach taken by the sentencing judge. Gleeson CJ, Gummow and Callinan JJ restated the relevant principles in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25] when their Honours observed: "As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender's appeal, as 'manifest excess', or in a prosecution appeal, as 'manifest inadequacy'."
I am not satisfied that any error of principle has been made by the sentencing judge. It was not suggested that his Honour allowed any extraneous or irrelevant matters to affect his decision. He did not mistake the facts nor did he fail to take a material consideration into account. Nor could it be said that his Honour's decision not to backdate the sentence to take into account the third period was unreasonable or plainly unjust. Rather, the applicant's central complaint is that his Honour should have exercised his discretion differently. Many of the arguments relied upon by the applicant in this court on this issue were also put to the sentencing judge but his Honour was not persuaded by them.
Although it is to be accepted that the subsequent discontinuance of the murder charge has meant that the applicant spent the third period in custody in relation to an offence for which he was never convicted, that was not the situation which presented itself to the sentencing judge; there was no suggestion at that time that there would be no further proceedings in relation to it. Had the applicant ultimately been convicted of the murder charge, then no complaint could be made in relation to the present matter. Although a notice of intention to appeal was filed on 20 July 2016, that notice was extended on four occasions to 15 January 2018. The notice of appeal was not filed until 5 January 2018. Although it was filed within time, it is to be noted that it was not filed until after the murder charge was discontinued.
Nor could it be suggested that his Honour did not turn his mind to the prospect that the applicant may not ultimately be convicted in relation to the murder charge. Again, the transcript discloses that his Honour was aware of the Niass principle that time cannot be "banked" as well as the consequences of his approach should the applicant be acquitted on the murder charge. This issue was a further matter addressed in the supplementary submissions.
The applicant's complaint regarding parity with Mr El-Hassan is answered in the same way. There would be no disparity had the third period been subsequently taken into account for the murder charge. Any sense of grievance on the part of the applicant flows from that rather than the commencement date for this sentence.
The discretion under s 47(2) of the Sentencing Act is broad. It would have been open to the sentencing judge to have backdated some or all of the third period in the exercise of his sentencing discretion. Had that approach been taken, the practical result would have been that the applicant would not have spent time in custody for an offence in relation to which he was subsequently acquitted. Just because it was open to his Honour to exercise his discretion differently, and that other judges may well have done so, it does not follow that House v R error has been established in the approach taken in this matter.
Finally, it was conceded by the Crown that the sentencing judge erred in his calculations by one day. It was accepted by counsel during the hearing of this appeal that it would be appropriate for this court to make that adjustment. As the High Court observed in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 citation at [42] there will be some cases where error can be corrected without the need to undertake the sentencing discretion afresh. The correction of an arithmetic error in the commencement date of a sentence falls within this category: Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255 at [72].

Refaieh v R

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