Regina v Karageorge

SPIGELMAN CJ SIMPSON J SPERLING J

Friday 30 July 1999 REGINA v Constantine KARAGEORGE JUDGMENT

1 SPIGELMAN CJ: I invite Mr Justice Sperling to give judgment in this matter. 2 SPERLING J: On 21 July 1994, the applicant was charged with offences which included being knowingly concerned in the commission of an offence against the law of the Commonwealth: Crimes Act 1914 (Cth), s 29B. The charges related to the applicant's complicity in an attempted fraud on the Australian Tax Office. He was then acting as solicitor for Mr Leonard McPherson and Mr McPherson's wife. He was granted bail. I will refer to this as matter 1.

3 On 24 October 1996, the applicant was charged with offences relating to allegedly false evidence given on 11 July 1996 in an application to vary his bail conditions. He was also charged with attempting to pervert the course of justice in dealings with a journalist, Mr Perkins, in relation to Mr McPherson's pending trial. Bail was refused by the Local Court but granted by the Supreme Court on 31 October 1996. I will refer to these charges as matters 2 and 3.

4 On 14 July 1997, the applicant was charged with a state and a Commonwealth offence relating to an attempt to obtain a false passport with a view to absconding. Bail was refused. I will refer to these charges as matters 4 and 5.

5 On 1 August 1997, bail was revoked in relation to matters 1 and 3. No doubt, bail was refused in matters 4 and 5 and revoked in matters 1 and 3 because the applicant had demonstrated he could not be trusted to attend at his trial for those offences.

6 On 9 September 1997 the applicant was convicted in matter 3 and remanded in custody for sentence. On 20 October 1997, he was sentenced to a term of imprisonment commencing on 14 July 1997, that being the date on which he was taken into custody on matters 4 and 5.

7 On 1 June 1998, while in custody serving that sentence, the applicant pleaded guilty in matter 1 and requested that the offences in matters 4 and 5 be taken into account.

8 On 17 July 1998, the conviction in matter 3 was quashed by the Court of Criminal Appeal and a new trial was ordered.

9 The applicant was now in custody in relation to matter 1, bail revoked, and matters 4 and 5, bail refused. On 2 October 1998, he applied for bail in relation to those matters. Bail was refused.

10 On 20 November 1998, the applicant was convicted in matter 2. On 26 November 1998, he was sentenced by Hidden J to a term of imprisonment of fourteen months, to be released on a recognisance after eight months expiring on 15 July 1999. In fixing the commencement date of that sentence his Honour gave the applicant credit for the applicant's period in custody from the first day of that trial, 16 November 1998.

11 On 17 December 1998, Davidson DCJ sentenced the applicant in matters 1, 4 and 5. He fixed a sentence of twelve months commencing on 15 July 1999 when the applicant was due to be released under Hidden J's sentence, the applicant to be released on a recognisance after eight months expiring on 14 January 2000.

12 In so doing Davidson DCJ, by agreement, took into account 220 days in prior custody. That was the time in custody from 24 October 1996, when the applicant was charged in matters 2 and 3, and 16 November 1998, the commencement date of Hidden J's sentence, less the period from 20 October 1997 to 17 July 1998 when the applicant was serving the sentence in matter 3 later set aside.

13 The present application is for leave to appeal against sentence, on the ground that Davidson DCJ should have given credit for the period 20 October 1997 to 17 July 1998 as well as for the balance of the period 24 October 1996 to 16 November 1998.

14 If that is correct, Davidson DCJ should have fixed the commencement date of the sentence some nine months earlier. That would have more than taken up the period of six months to be served under that sentence before being released on recognisance. In consequence, the applicant would have been entitled to be released in relation to that sentence well before 15 July 1999, the date on which he was entitled to be released under Hidden J's sentence.

15 The applicant's argument should be upheld for the following reasons. During the period 20 October 1997 to 17 July 1998, the applicant was in custody for two reasons each of which was, at the time, sufficient to cause him to be so held. First, bail had been refused in matters 4 and 5 on 14 July 1997 and revoked in matter 1 on 1 August 1997. They were the matters for which he was sentenced by Davidson DCJ on 12 December 1998. Secondly, he was serving the sentence imposed on 20 October 1997 in matter 3. That was the conviction which was subsequently quashed.

16 The applicant would have been held in custody during the period in question because of matters 1, 4 and 5 irrespective of the sentence in matter 3. Bail was revoked in matter 1 and refused in matters 4 and 5 because matters 4 and 5 gave rise to too great a risk that the applicant would abscond if he was released pending his trial in matters 1, 4 and 5.

17 In these circumstances, the period of custody in question is attributable to matters 1, 4 and 5 irrespective of whether it was also the result of matter 3. By contrast, in relation to matter 3, the conviction for which the applicant was serving a sentence during the relevant period was later quashed.

18 In Niass, (CCA, 16 November 1988, unreported), the sentencing judge had refused to take into account time in custody pending trial on other charges of which the applicant had been acquitted. The relevant principle was stated by Lee CJ at CL as follows: "There have, of course, been cases where credit has been given in sentencing for periods of incarceration arising directly from the commission of the offence which brings the offender forward for sentence and that practice should be followed. 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."

The case fell outside the ambit of that principle because the period in custody was not "in respect of" the offence for which the applicant was sentenced. In later cases, time in custody has been disallowed for the same reason: Webster and Jones (CCA, 3 August 1992, unreported), Chung (CCA, 9 March 1994, unreported), David (CCA, 20 April 1995, unreported) and Baartman (Dunford J, 18 December 1998, unreported).

19 In Chung, David and Baartman, the judgments show explicitly that there was no overlap between the relevant period in custody, on the one hand, and, on the other hand, any period in custody, bail refused, in relation to the offence for which the sentence was imposed. There is nothing in Niass or Webster and Jones to suggest there was any such overlap in those cases.

20 The Crown submits that to uphold the applicant's arguments would bring the law into disrepute. It argues that, if bail had not been opposed in matters 4 and 5 on 14 July 1997 and if no application had been made to revoke bail in matters 1 and 3, as occurred on 1 August 1997, the applicant would have no ground on which to claim credit for time served in the period 20 October 1997 to 17 July 1998. It is said to be incongruous that credit should be allowed or disallowed 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.

21 I perceive no such incongruity. Sentencing is a discretionary exercise. Fairness and reasonableness have constantly to be borne in mind. 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. The need to avoid injustice in this case outweighs, by a large margin, any incongruity that might be perceived as arising from doing so.

22 I do not think it matters that this point was not raised at the sentencing hearing. That was a mistake. It has resulted in a miscarriage of justice which should be rectified. 23 The court was informed that the appellant would need to apply for a variation of his bail conditions in matter 3 (in which the new trial has been ordered) before he could be released from custody at this stage. That situation has been taken into account in proposing the following orders. 24 The orders I propose are as follows: 1. Application for leave to appeal granted. 2. Appeal allowed. 3. Sentence set aside. 4. In lieu thereof the applicant is sentenced to twelve months imprisonment commencing on 7 August 1998 and expiring on 6 August 1999, when he is to be released on a recognisance for a period of eighteen months expiring on 6 February 2000.

25 The effect of that sentence is as follows. Provided the appellant is otherwise entitled to be released, he will be released from custody on 6 August 1999 on a recognizance for a period of eighteen months to be of good behaviour, among any other conditions to be determined by the authorities.

26 SPIGELMAN CJ: I agree with his Honour's reasons and the orders he proposes.

27 I wish to add two matters. 28 First, the applicant has sought in these proceedings credit for a period in which he was in custody for two separate reasons: the first of those was his conviction on charges under s.319 of the New South Wales Crimes Act. The court has been informed that a new trial will proceed in this matter within a few months. This court is able to give credit for a substantial proportion but not all of the period of that custody in the form of the order proposed by Justice Sperling. What the implications may be for the sentencing, if he should be convicted again, on the s.319 charges will be a matter for the trial judge on that occasion. For the same reason as he was entitled to credit, notwithstanding the fact he was in custody, in effect, for two different reasons, he would not expect to receive credit twice.

29 The second matter is the fact this was a very clear case. Bail had been refused and, in view of the passport offences, it was a very clear case as to what the prognosis for any bail application or change of conditions would have been. Not all cases will be as clear as this. If this matter arises again, the court would not wish to encourage litigation about what may or may not have been the prospects of bail in a case that is not as clear as this one. Subject to this, I agree with everything said by Justice Sperling.

30 SIMPSON J: I also agree with the orders proposed and the reasons given by Mr Justice Sperling and the additional remarks of the Chief Justice.

31 SPIGELMAN CJ: The orders are as proposed.

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