REGINA v. WOOD [2005] NSWCCA 159

Court of Criminal Appeal (NSW)|2005-04-01|Before: Grove J, Howie J, Hall J

JUDGMENT OF: Grove J at 1; Howie J at 2; Hall J at 7

DECISION: Leave to appeal granted. Appeal allowed in part. The order of Knight, DCJ. be quashed insofar as the term of imprisonment was expressed to commence on 16 July 2005 and to expire on 11 January 2006. In lieu of the order made by Knight, DCJ., order that the fixed term of imprisonment of five months and 27 days to commence on 3 February 2005 and to expire on 29 July 2005.

CATCHWORDS: Criminal law - appeal against sentence - taking into account period of pre-sentence custody - s.47 Crimes (Sentencing Procedure) Act 1999 - involvement in planning of the offence - s.21A Crimes (Sentencing Procedure) Act 1999 - principle in De Simoni - principle of totality

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999

McHugh (1985) 1 NSWLR 588 CASES CITED: Newman & Simpson (2004) 145 A. Crim. R. 148 De Simoni (1981) 147 CLR 683

Crown: P. Barrett COUNSEL: Applicant: B. Rigg

Crown: S. Kavanagh SOLICITORS: Applicant: S.E. O'Connor

IN THE COURT OF CRIMINAL APPEAL 2004/3302

GROVE, J. HOWIE, J. HALL, J.

THURSDAY 28 APRIL 2005 REGINA v. COLIN BARRY WOOD Judgment 1 GROVE, J: I agree with Hall, J. 2 HOWIE, J: The relevant facts are set out in the judgment of Hall J. The period served by the applicant solely referrable to the drug offences dealt with by Judge Morgan was between 19 September 2001 and 15 February 2002, a period of four months and 27 days. The period served that was solely referable to the offence for which Judge Knight sentenced the applicant was between 13 January 2003 and 26 June 2003, a period of five months and 14 days. Judge Morgan sentenced the applicant on 27 June 2003. 3 Her Honour had two methods of taking into account the period served by the applicant that was referable to the drug offences when sentencing him for those matters: she could have deducted the time served from the sentences she was imposing and dated the sentences from the date of their imposition, that is 27 June 2003 or, alternatively, she could have backdated the sentences to commence at a date anterior to the imposition of the sentences being a period that was equivalent to the period already served. Her Honour chose the latter of those methods. However, when backdated, the sentences for the drug offences were then taken as being served during the period for which the applicant was in custody for the offence for which Judge Knight ultimately sentenced him. 4 Had Judge Morgan taken the alternative course of deducting the period served by the applicant for the drug offences from the sentence she was imposing, the sentence would have commenced on 27 June 2003 and would have been 4 months and 27 days shorter than it was. In that situation it would have been clear that the applicant had not received the benefit of the period he was in custody from 13 January 2003 until the 26 June 2003. It would then have been obvious that Judge Knight had to give him credit in accordance with s 47 of the Crimes (Sentencing Procedure) Act for that period. 5 The applicant cannot be denied the benefit of the period served in custody for the accessory offence simply because Judge Morgan happened to adopt one option for giving him the benefit for the period served for the drug offences rather than the other. Judge Morgan did not purport to take into account the period served for the accessory offence and, as Hall J points out, she could not lawfully do so. The fact that the sentences for the drug offences happened fortuitously to coincide with the period the applicant was in custody for the accessory offence did not affect his entitlement to have that period taken into account by Judge Knight. 6 For this reason and those given by Hall J I agree with the orders he proposes. 7 HALL, J: In this application for leave to appeal, the applicant claims that the sentencing judge erred:- In failing to bring into account a period of pre-sentence custody from 13 January 2003 to 26 June 2003. In finding that there were only four days of pre-sentence custody solely referable to certain drug offences. 8 Additionally, the applicant relied upon two other grounds set out in paragraphs four and five of the Grounds of Appeal to which I will later refer. The remarks on sentence of the Court (Knight, DCJ.) are dated 1 June 2004. 9 This application principally concerns a question as to whether time spent in custody between 13 January and 26 June 2003 (in all a period of five months and 14 days) was solely referable to an offence for which the applicant was sentenced by Knight, DCJ. on 1 June 2004. (An offence of being an accessory after the fact.) If it was, that pre-sentence custody was not taken into account. A further question considered was, if it was solely referrable to that offence, whether in the circumstances of the case it was available to be taken into account.

Background 10 The applicant was charged with respect to an assault on one Patrick Parry that occurred on 11 January 2003 with being an accessory after the fact. The maximum penalty for the offence was five years imprisonment. He was sentenced by Knight, DCJ. to a fixed term of imprisonment of five months and 27 days to commence on 16 July 2005 and to expire on 11 January 2006. This was upon the basis of an otherwise appropriate sentence of six months less the four days pre-sentence custody(being the days from 13 to 16 January 2003 inclusive). 11 It is necessary to distinguish the proceedings here in question from proceedings resulting from charges against the applicant for certain drug offences for which he was sentenced separately by Morgan, DCJ. on 27 June 2003. 12 Morgan, DCJ. imposed a fixed term sentence of 18 months imprisonment for two of the three drug offences. The 18 months commenced on 17 January 2003. 13 On the third charge relating to the manufacture of a drug known as MDA, Morgan, DCJ. imposed a sentence of four years commencing on 13 January 2003, with a two year non-parole period commencing 17 July 2003 (to expire 16 July 2005). This latter date, it will be observed, was the commencement of the term of imprisonment imposed by Knight, DCJ. 14 The applicant had been in custody for the drug offences between 19 September 2001 and 5 January 2002 and between 6 January 2002 to 15 February 2002, being a sentence following revocation of a periodic detention order. Between 16 and 29 February 2002, the applicant was in custody in relation to the revoked periodic detention order. Bail was granted for the drug charges on 15 February 2002. 15 The sentence imposed by Morgan, DCJ. on 27 June 2003 was expressed to commence on 17 January 2003 for the purpose of provision being made for the time that had been spent in custody between 19 September 2001 and 15 February 2002 (a period of four months and 27 days). 16 The applicant was arrested on 13 January 2003. He, at that time, was on bail for the drug offences until he was sentenced for them by Morgan, DCJ. on 27 June 2003. The pre-sentence custody served between 13 January 2003 and 26 June 2003 was the period in custody pending the disposition of the accessory offence ultimately dealt with as mentioned previously by Knight, DCJ. on 1 June 2004. The sentencing judge (Knight, DCJ.) expressly adverted to the issue of time spent in custody at pp.8-9 of the remarks on sentence. 17 It appears Knight, DCJ. was entitled to more precise information than that provided to him which seems to have resulted in two factual errors. On p.9 of the remarks on sentence, Knight, DCJ. stated that on 17 January 2003 the applicant was bail refused in relation to the drug charges. That, as counsel for the applicant has observed, is an error. His bail for those offences had not been revoked. His Honour was similarly in error when he added:- "Her Honour dated the first and third of those sentences back to 17 January 2003 when you were first taken into continuous custody in relation to the drug charges …" 18 Knight, DCJ. (at p.9) also noted:- "Her Honour, in imposing the sentences which she did on 27 June 2003, expressly backdated them to 17 January 2003. She does not appear to have expressly referred to the period from 19 September 2001 to 16 January 2003 when you were in custody in relation to the drug charges bail refused … But in any event, it is not a matter for me to determine in relation to the present sentence." 19 Knight, DCJ., as observed earlier, expressly allowed for a reduction for the period 13 to 17 January 2003 to reduce the sentence he imposed to five months and 27 days by the four days spent in custody solely referrable to the accessorial charge (that sentence, as noted earlier, commenced on 16 July 2005 and expired on 11 January 2006). This sentence was wholly cumulative upon the other sentences being served at the time. 20 Morgan, DCJ. addressed time spent in custody in relation to the drug offences stating that the relevant period in that respect was four months and 27 days (p.5 of her Honour's remarks on sentence). The applicant submits that it is clear that her Honour took that pre-sentence custody into account in the manner contemplated in Regina v. McHugh (1985) 1 NSWLR 588, 590-599 as confirmed in Regina v. Newman & Simpson (2004) 145 A. Crim. R. 148. She did this, it is contended, by the back-dating of the sentences to a "deemed" commencement date considered by her Honour to have been four months and 27 days before the date of sentence, although the applicant was not in fact in custody before the latter dateHuH in relation to the drug offences (the applicant being in custody between 17 January and 26 June 2003 for the accessorial offence). 21 Whilst the method or manner of backdating by Morgan, DCJ. with respect to the drug offences involved, in the applicant's submission, "an element of fiction", it is nonetheless argued that it was a legitimate and appropriate sentencing option to take although the actual period of pre-sentence custody served for the drug offences was the period 19 September 2001 to 15 February 2002. 22 There are three factual matters that are fundamental to the submissions so ably formulated by Ms. Rigg of counsel on behalf of the applicant. They are:- 1. The fact that the applicant was not bail refused in relation to the drug offences on 17 January 2003. 2. The fact that the applicant, in accordance with principle, had to be given credit for the period of pre-sentence custody served in 2001-2002 of four months and 27 days and that Morgan, DCJ. on 27 June 2003 had allowed him credit for that period by backdating and commencing the drug sentences from 17 January 2003. 3. The fact that the pre-sentence period 13 January 2003 to 26 June 2003 was referrable to the accessorial offence in that it was custody arising from and imposed with respect to that offence (committed on 11 January 2003). 23 The Crown strongly submitted that the first ground of appeal claiming a failure by Knight, DCJ. to take into account the pre-sentence custody from 13 January 2003 to 26 June 2003 was not a valid ground because, apart from the four days of pre-sentence custody from 13 January 2003 to 16 January 2003, "there were no other days of pre-sentence custody available to be credited to the applicant" (paragraph 7 of the Crown written submissions). Support for this contention was said to lie in the fact that:- 1. Morgan, DCJ. took the period of pre-sentence custody 17 January 2003 to June 2003 into account by backdating the commencement of the two of three offences to 17 January 2003. 2. Although that period of pre-sentence custody "at the time it was served" was referrable to the accessorial offence, that period had been taken into account and "used up by the sentences imposed by her Honour Judge Morgan (paragraph 8 of the Crown's written submissions). 24 In resolving the competing contentions with respect to the pre-custody period in question, it is important to observe that:-

(a) The period of pre-sentence custody in question was, at the time it was served, referrable exclusively to the accessorial offence.

(b) The backdating by Morgan, DCJ. only notionally involved that period - the period of four months and 27 days was both based upon and calculated by reference to the actual period of pre-sentence custody served in 2001-2002 which was exclusively referrable to the drug offences.

(c) On this basis it cannot be said that the period in question was "used up" . The period between 13 January to 26 June 2003 was used for backdating purposes, but the applicant's deprivation of liberty referrable to the drug offences actually occurred between 2002 and 2003. The period 13 January to 26 June 2003 was the period of deprivation of liberty wholly referrable to the accessorial offence for which credit is still to be given. 25 I, with respect, cannot accept the Crown's argument stated in point two in paragraph 23. 26 I shall explain, in addition to the matters referred to in paragraph 24, why I reject the argument. 27 Section 47(2)(a) of the Crimes (Sentencing Procedure) Act 1999 empowers a court to direct that a sentence of imprisonment is taken to have commenced on a day occurring before the day on which the sentence is imposed. 28 Section 47(3) provides (with my emphasis) that in relation to the making of a direction under s.47(2)(a), "… 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". 29 Even if Morgan, DCJ. had purported to give credit in sentencing for the drug offences for the period of pre-sentence custody served for an unrelated offence, that is the accessorial offence, that would be acting contrary to the provisions of s.47(3), it would not be custody "in relation to the offence to which the offence relates". The applicant, for reasons set out earlier, says, of course, that in any event that is not what her Honour either had in mind or did. 30 Accordingly, any attempt contrary to the provisions of s.47(3), to credit a period of pre-custody sentence served for one offence whilst sentencing for another offence would be productive of error. 31 Moreover, even if such a period was purportedly and wrongly credited in that way, the mandate under s.47(3) still applied to the sentencing by Knight, DCJ. to require that account be taken of the pre-sentence custody ("…must take into account any time … etc … in relation to the offence to which the sentence relates") 32 I am therefore of the opinion that the application for leave to appeal should succeed on this basis and that the sentence imposed should be quashed.

Ground 4 The sentencing judge erred in finding as an aggravating matter, that the offence was part of a planned activity with the primary offenders. 33 The applicant has submitted that the sentencing judge, having regard to the provisions of s.21A of the Crimes (Sentencing Procedure) Act 1999, sub-clause (n), namely that the offence was part of a planned or organised criminal activity, contravened the principle in Regina v. De Simoni (1981) 147 CLR 683. It was submitted on behalf of the applicant that the finding of the applicant's involvement in the planning of the offence effectively constituted a finding that he was a principal of some kind. 34 However, as counsel for the applicant conceded, the sentencing judge more than once emphasised that he was not sentencing the applicant in relation to the offence of maliciously inflict grievous bodily harm. It is clear that the sentencing judge had well in mind the offence for which he was sentencing the applicant and did not make any finding that the applicant was a principal in the "assault". His Honour did find that the planning involved the applicant cautioning his sister against informing the authorities of the true nature of the assault and the identity, or means of identifying the perpetrators of the primary offence. However, that does not mean that the De Simoni (supra) principle was contravened. 35 I accordingly am of the opinion that the Crown submissions on this ground are to be accepted.

Ground 5 The sentencing judge failed to properly take into account the principle of totality. 36 Knight, DCJ. referred to the sentences imposed by her Honour Judge Morgan and to the submissions that he should not accumulate the sentence he was imposing onto the drug charges. In rejecting that submission, his Honour observed that the offence was a totally separate offence to the drug offences and that it was committed whilst the applicant was on bail for those drug charge offence. Reference was made to the reasons why on the facts of the case the sentence should be a cumulative one to those imposed on the applicant for the drug matters. 37 I am of the opinion that the trial judge sufficiently had regard to the effect of the sentences and the need for them to be fully cumulative and, having regard to the fixed term of short duration of the sentence imposed by him, there was an appropriate exercise of the sentencing discretion. I do not believe that his Honour failed to give effect to the principle of totality in the particular circumstances of the case.

Determination 38 In order to give effect to the sentence imposed by Knight, DCJ., namely, a full-time custodial sentence of six months reduced to five months and 27 days in order to take into account the four day period between 13 to 16 January 2003 inclusive, it is necessary to allow for the period of pre-sentence custody of five months and 14 days served between 13 January 2003 and 27 June 2003, the balance of the sentence to be served, namely 13 days, is to be cumulative upon the expiration of the non-parole period under the sentence imposed by Morgan, DCJ. on the third charge, namely 16 July 2005. The period of 13 days will expire on 29 July 2005. 39 Accordingly, I propose the following orders:- 1. Leave to appeal granted. Appeal allowed in part. 2. The order of Knight, DCJ. be quashed insofar as the term of imprisonment was expressed to commence on 16 July 2005 and to expire on 11 January 2006. 3. In lieu of the order made by Knight, DCJ., order that the fixed term of imprisonment of five months and 27 days to commence on 3 February 2005 and to expire on 29 July 2005. **********

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