Regina v Pyrda

WEDNESDAY 20 JUNE 2001 REGINA v MARAK PYRDA JUDGMENT

1 HOWIE J: This an application for leave to appeal against what is asserted to be the severity of a sentence imposed upon the applicant by his Honour Judge Puckeridge QC. The applicant pleaded guilty before a magistrate to three offences of break enter and steal contrary to s 112 of the Crimes Act and was committed to the District Court for sentence pursuant to s 51A of the Justices Act. He adhered to his plea before his Honour and was sentenced to imprisonment for 3 years with a non parole period of 16 months. In imposing that sentence Judge Puckeridge took into account eight matters on a Form 1, three of which were for breaking and entering with intent to commit a felony. 2 The single ground of appeal is that his Honour failed to back-date the sentence to the date upon which the prisoner entered into custody for the offences for which he was sentenced. The sentencing judge dated the sentence and non-parole period from 14 December 2000 the date when sentence was imposed. The applicant, however, was arrested on 9 September 2000 and was in continuous custody solely by reason of these offences from 22 September 2000. 3 In light of the limited nature of the complaint made to this Court it is unnecessary to detail the facts of the matter. The three charges for which the applicant was committed for sentence were all committed on the one occasion as part of the one course of criminal activity. At sometime in the evening of 30 December or the early morning of 31 December 1999, the applicant gained entry into a group of professional rooms and from each of the three premises he took a small amount of cash that he found there. The total amount of money obtained by the applicant was $410. 4 The police were notified and on attending the premises located the fingerprints of the applicant in one of the offices. When he was arrested on 4 September 2000, the applicant denied any knowledge of the offences and refused to participate in a recorded interview. The applicant was released from custody on bail on 19 September 2000, but was rearrested for having possession of heroin and goods in custody on 22 September 2000 and thereafter refused bail. 5 The applicant, who is aged 21 years, has a record for offences of dishonesty dating from September 1995. He served a six month period of imprisonment from February 1999 after an appeal from sentences imposed in the Local Court for offences of dishonesty and assault were dismissed by the District Court. He was sentenced again in May of that year for offences of dishonesty and violence. On 31 August 1999 the applicant was sentenced in the District Court to 15 months imprisonment for an offence of break enter and steal. A non-parole period of 6 months was fixed to commence from 11 June 1999 with a parole period of 9 months. The applicant was released to parole on 10 December 1999 and was serving that parole when the offences for which he was sentenced by Judge Puckeridge were committed. 6 The question of the appropriate starting date of the sentences was raised by the sentencing judge during a discussion with the prosecutor about the custodial history of the applicant. His Honour expressed the view that because the applicant had breached his bail conditions by committing further offences on 22 September the sentence should start from the date sentence was imposed. During the address of the solicitor then appearing for the applicant, his Honour again indicated his view that, in light of the fact that the applicant had breached his bail conditions, the sentence should not be back-dated. However, it was submitted on the applicant's behalf that the sentence should date from 22 September. 7 During his very brief remarks on sentence his Honour stated: It has been submitted on behalf of the prisoner that the sentence should date back till the time that he was in custody, a date some time in September. However, I do not think it is appropriate that any sentence date back to that date. The offences occurred soon after the prisoner was released from custody on 10 December 2000 (sic), that is the offences which form the basis of the substantive charges and it would appear that the offences which occurred on 22 September 2000 occurred shortly after the prisoner was allowed bail in-- LAW: It should be 1999, you said 2000. HIS HONOUR: That is the offence, 22 September 2000, yes shortly after the prisoner was allowed bail. For these reasons the sentence imposed by the court will date from today's date. 8 It seems clear that his Honour formed the view that the applicant should not have the benefit of a back-date in the sentence because he had committed the offences for which he was to be sentenced while on parole and because the applicant had committed two of the offences on the Form 1 while he was on bail for those offences. In my opinion his Honour was in error in coming to that conclusion. 9 On a number of occasions this Court has indicated the importance of a sentence being back-dated to commence on the date that the offender went into custody for the offence for which sentence is being passed; R v McHugh (1985) 1 NSWLR 588; R v Deeble (NSWCCA, unreported, 19 September 1991); R v Close (1992) 32 NSWLR 743; R v Reid (NSWCCA, unreported, 26 March 1997); R v Cook [1999] NSWCCA 234; R v English [2000] NSWCCA 245. In R v Deeble Badgery-Parker J, with whom the other members of the court agreed, stated: ..…It needs I think to be emphasised that, unless there is good reason to the contrary, it is always desirable that a sentencing judge should not only take into account pre-sentence custody in determining the sentence to be imposed but should back-date the sentence to the commencement of that pre-sentence custody. The reasons are several. First of all, it secures clarity and leaves the prisoner concerned and any later court which comes to look at the matter in no doubt as to what has been done. Secondly, it is a means of ensuring that proper weight is attached to the pre-sentence custody, so that the prisoner has no doubt that he is being treated fairly. Thirdly, it allows the proper application of the statutory proportion between the minimum term and the additional term prescribed prima facie by s 5 of the Sentencing Act . 10 The same reasons apply to the provisions of the Crimes (Sentencing Procedure) Act. Further, there are provisions of that Act which mandate that the sentencing court take the period served in custody into account. Section 24(a) of that Act provides that the court must take into account any time for which the offender has been held in custody in relation to the offence. Section 47 relevantly provides: 1) A sentence of imprisonment commences: (a) subject to section 70 and to any direction under subsection (2), on the day on which the sentence is imposed, or (b). …… (2) A court may direct that a sentence of imprisonment: (a) is taken to have commenced on a day occurring before the day on which the sentence is imposed, or (b)….. (3) In deciding whether or not to make a direction under subsection (2) (a) with respect to a sentence of imprisonment, and in deciding the day on which the sentence is taken to have commenced, the court must take into account any time for which the offender has been held in custody in relation to the offence to which the sentence relates. 11 These provisions require that the court takes into account the period served by the offender for the offence for which he is to be sentenced. That requirement can only be given effect if allowance is made for time served either by back-dating the sentence or by deducting the period from the sentence to be imposed. The preference, where there has been a continuous period of custody up until the date of sentence, is for the sentence to be back-dated. 12 His Honour determined that the applicant would not get the benefit of the period served because the offences were committed on parole and, in respect of two matters on the Form 1, on bail. That in my view was not an appropriate way to deal with those features of the offences before the court. They were circumstances of aggravation which the sentencing judge was obliged to take into account when determining the appropriate sentence. Because of the presence of these features his Honour was entitled to impose a heavier sentence than otherwise might have been justified in order to reflect both the increased seriousness of the applicant's criminality for the offences for which he was to be sentenced and the need for general and specific deterrence. 13 For the reasons expressed by Badgery-Parker J which I have quoted earlier, it was appropriate that the sentences commence from the date that the applicant entered into continuous custody. His parole had not been revoked at the time that Judge Puckeridge sentenced the applicant and, therefore, the applicant had been in custody solely for the offences for which he was to be sentenced. That period should have been taken into account both when calculating the length of the sentence to be imposed and when determining the date upon which to commence the sentence under s 47(2)(a). 14 The Crown has submitted that there was no error in the present case because Judge Puckeridge, having determined not to back-date the sentence, did not appear to thereafter take into account the fact that the applicant was on parole or bail as a matter of aggravation. Therefore, so it was argued, it was not a case where the applicant appeared to be doubly punished for breaching parole such as occurred in R v Kaiva (NSWCCA, 9 November 1998). In that case this Court found that it was erroneous for a sentencing judge both to refuse to back-date a sentence and to take into account that the applicant was on parole when determining the sentence to be imposed. 15 I am not confident that his Honour addressed these aggravating features only when determining the date upon which to commence the sentences, without his Honour making it perfectly clear that this was the only way in which he was taking these matters into account. The fact that offences were committed while he was on parole and on bail were such serious features of the applicant's offending and were so significant in an assessment of the likelihood of further offences and the prospects for rehabilitation that I find it difficult to see how they could be adequately reflected by a decision not to give a back-date of three months. In my view his Honour would have been in error in taking that approach if that is in fact what he did. 16 The Crown has argued that this Court should not intervene even if it finds there is error because, since the applicant was sentenced by Judge Puckeridge, the Parole Board has revoked the applicant's parole and dated that revocation from 22 September 2000. Therefore, it is argued, the applicant was not in custody for the period between 22 September and the date of sentence only by reason of the offences for which he was sentenced because he is now to be taken as serving the balance of his parole during that period. 17 While I accept that the general rule is that an offender does not get credit for the period during which he or she is in custody serving some other sentence, see R v Sae (NSWCCA, 3 April 1997) that rule would not require this Court to refuse to intervene where the applicant was prejudiced by an error in passing sentence. If Judge Puckeridge had back-dated the sentence, as in my view he should have done, the balance of the applicant's parole would have been served concurrently with the sentences imposed by him. If the Parole Board had come to the view that the applicant's parole ought to have been revoked regardless of the outcome of the proceedings before the District Court, then it had power to do so before he was sentenced. 18 In my view an error in the sentencing of the applicant has been disclosed and it is one of such a nature that would normally require this Court to give leave to the applicant and to re-sentence him. In any event it will be necessary to re-sentence the applicant to the extent of allowing him the benefit of the period in custody from his arrest on 4 September until he was released to bail on 19 September 1999. The Crown has conceded that this adjustment should be made. 19 As I have already indicated the applicant is a young man who has a criminal record and has served prior periods in custody. His offending is a result of his drug addiction. Apparently he suffered physical violence at the hands of his father both before and after his parents separated. His schooling was disrupted by the family constantly moving to avoid his father. He told a psychologist that he used drugs to overcome his emotional problems as a result of his father's abuse. The applicant gave evidence before his Honour to the effect that he had not used drugs while in custody on remand and had sought drug counselling. He indicated that he did not want to continue using drugs on his release from custody but accepted that he had been given chances by the courts before. 20 An affidavit of the applicant was presented to the Court in case the Court was required to re-sentence him. The applicant has been taking methadone while in custody and has attended for drug counselling. The applicant states that he has taken his first steps at rehabilitation in order to ensure that he does not return to gaol again. 21 Notwithstanding this material and that which was before Judge Puckeridge, I believe that the applicant's sentence was unduly lenient even taking into account the refusal to back-date the sentence. The applicant committed the offences shortly after he was released from custody to parole. The offences were serious notwithstanding the small amount of money stolen. The applicant sawed through barred windows in order to gain entry to the premises. There were serious offences on the Form 1. 22 Judge Puckeridge found that there were special circumstances. However, the non-parole period fixed by his Honour seems to have been the result of some confusion on his part as to the application of s 44 of the Act. His Honour thought that applying the statutory proportion to a head sentence of three years would result in a non-parole period of two years. His Honour then reduced that non-parole period in light of his finding that there were special circumstances resulting in a non-parole period of 16 months. After imposing the sentence his Honour explained to the applicant that the non-parole period would have normally expired on 13 December 2002 (that is two years from the date of sentence) but that he had reduced it because of the applicant's hope to rid himself of the drug habit and as a result the non-parole period would expire on 13 April 2002. 23 If I were to now re-sentence the applicant, I doubt that I would find there were special circumstances in light of the applicant's criminal history and the fact that these matters were committed on parole and some on bail. Certainly I would not give him the benefit of a non-parole period of 16 months back-dated to 22 September 2000, such a sentence would be overly lenient. 24 Although the sentence should have been back-dated, in my view if this court were to re-sentence the applicant he would receive a heavier sentence than that imposed by Judge Puckeridge. In particular the non-parole period would be extended so that the applicant would no longer be released to parole in April of next year. As there is no Crown appeal it would not be appropriate to increase the applicant's sentence. Therefore, the application should in substance be dismissed. 25 However, in light of the Crown's concession that the applicant is entitled to a reduction of the sentence for the time spent in custody between 4 September and 19 September the appeal should be allowed to the extent of making the appropriate adjustment to the commencing date of the sentences. 26 I propose that the application for leave be granted and that the appeal be allowed to the extent that the sentences imposed by Judge Puckeridge are to commence from 29 November 2000 and the applicant is to be released to parole on 28 March 2002. The parole is to be subject to the conditions imposed by Judge Puckeridge. 27 SMART AJ: I agree with Howie J. 28 HOWIE J: The order of the court would be as I proposed.

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