Sahyoun v R

Court of Criminal Appeal (NSW)|2019-11-08|Before: Gleeson JA, Fullerton J

Solicitors: Galloways Solicitors & Attorneys (Applicant) Solicitor for Public Prosecutions (NSW) (Crown) File Number(s): 2015/233108 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 9 November 2018 Before: Judge Maiden SC File Number(s): 2015/233108

Judgment

GLEESON JA and FULLERTON J: On 1 May 2020, the Court made orders granting leave to appeal, allowed the applicant's appeal against sentence and quashed the sentence imposed by the District Court on 9 November 2018. On re-sentence, the Court, by majority, imposed the following sentence: (3) In lieu thereof, the applicant is sentenced to an aggregate term of imprisonment of 2 years and 6 months to date from 7 January 2020 with a non-parole period of 15 months to date from 7 January 2020. (4) Direct that the sentence be served by way of an intensive corrections order.
These orders were entered on 1 May 2020: Sahyoun v R [2020] NSWCCA 87. Rule 50C(3) of the Criminal Appeal Rules, provides that "[w]ithin 14 days after an order is entered, the Court may of its own motion set aside or vary the order as if the order had not been entered." The Court may not extend the time limited by subrule (3): r 50C(4). Nothing in this rule affects any other power of the Court to set aside or vary an order (including any power to correct clerical mistakes or errors arising from accidental slips or omissions): r 50C(5).

Order 3

Section s 7(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (Sentencing Act) provides that if the Court makes an intensive correction order directing that a sentence of imprisonment be served by way of intensive correction in the community, the Court is not to set a non-parole period for the sentence. Accordingly, the specification in order 3 of a non-parole period is inappropriate and should be deleted from the order.
Section 71(1) of the Sentencing Act provides that an intensive correction order commences on the date on which it is made. It is also necessary to have regard to s 47 of the Sentencing Act which relevantly provides: 47 Commencement of sentence (1) A sentence of imprisonment commences, subject to section 71 and to any direction under subsection (2), on the day on which the sentence is imposed. (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) commences on a day occurring after the day on which the sentence is imposed, but only if the sentence is to be served consecutively (or partly concurrently and partly consecutively) with some other sentence of imprisonment. (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 or, in the case of an aggregate sentence of imprisonment, any of the offences to which the sentence relates. … (6) A sentence of imprisonment (or an aggregate sentence of imprisonment) starts at the beginning of the day on which it commences or is taken to have commenced and ends at the end of the day on which it expires.
In R v Pullen [2018] NSWCA 264, the Court (Harrison J, Johnson and Schmidt JJ agreeing) allowed a Crown appeal against an aggregate sentence of imprisonment for 15 months to be served by way of an intensive correction order, and on resentence imposed an aggregate period of imprisonment for 3 years to be served by way of an intensive correction order backdated to commence on 24 August 2018, the date the applicant was originally sentenced in the District Court.
In Blanch v R [2019] NSWCCA 304, the Court (Campbell J, Hoeben CJ at CL, Price J agreeing) allowed the applicant's appeal against an aggregate sentence of 2 years and 9 months, commencing on 13 March 2019, with a non-parole period of 1 year and 6 months expiring on 12 September 2020, and on resentence imposed an aggregate of imprisonment of 2 years and 9 months to be served by way of an intensive correction order backdated to commence on 13 March 2019, being a date before the sentencing judge passed the sentence to be quashed. This was to allow for the applicant's pre-sentence custody for a period when bail was refused.
In Blanch at [92], a possible difficulty was identified arising from the terms of s 71(1) of the Sentencing Act, namely that the intensive correction order will commence on the date on which it is made only if the date of this Court's orders is taken as the date of commencement. In Blanch the Court addressed this issue by treating the re-sentence passed on appeal as in substitution for the sentence passed by the sentencing judge which is quashed when the sentence appeal is upheld, such that the order on appeal is taken to have been passed "then rather than now", referring to s 6(3) of the Criminal Appeal Act 1912 (NSW). Campbell J said at [94]: [94] I note that in Pullen the Court quashed the sentence at first instance and made an ICO commencing on the same date. That is, the order of the Court of Criminal Appeal was backdated, as usually occurs, to commence on the same day as the sentence at first instance which was quashed on appeal. In my judgment this approach is justified by the powers conferred upon the court under s 6(3) as follows: On an appeal under s 5(1) against the sentence, the court, if it is of the opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal. (My emphasis.) The re-sentence passed on appeal is in substitution for the sentence passed at first instance which is quashed when the sentence appeal is upheld. It seems to me that s 71 is accommodated by reading it in the light of s 6(3) so that when this Court makes an order in substitution for the sentence of the learned sentencing judge which is to be quashed this Court's sentence is taken to have been passed then rather than now. That is to say the sentence is quashed ab initio. Given the applicant's pre-sentence custody for a period when bail was refused, ss 24 and 47 justify backdating the sentence to a date before his Honour passed the sentence to be quashed, viz 3 April 2019.
In this case, on re-sentence by this Court the commencement date of the aggregate sentence of imprisonment for 2 years and 6 months to be served by way of intensive correction order was backdated to commence on 7 January 2020 to take into account the time the applicant had spent time in custody of 3 months and 24 days, comprising pre-sentence custody (2 days), and post-sentence custody (3 months and 22 days).
The circumstances of the present case do not easily lend themselves to the reasoning in Blanch, or the approach in Pullen, given that the applicant has been on bail pending his appeal for a significant period. In this case were the commencement date of the intensive correction order to commence on "the date on which it is made" in accordance with s 71(1) of the Sentencing Act but referable to the date he was sentenced in the District Court (the approach in Pullen) the order will expire on 15 January 2021 and were the approach in Blanch taken the broken periods of pre and post sentence custody are not readily accounted for. Another approach in a case like the present is to commence the sentence to be served by way of an intensive correction order on the date the order is made on resentence, an approach also consistent with s 71(1) of the Sentencing Act but to reduce the period of the aggregate sentence to allow for the applicant's pre and post-sentence custody.
Adopting this approach, Order 3 should be varied such that the applicant is sentenced to an aggregate term of imprisonment of 2 years, 2 months and 7 days to be served by way of an intensive correction order commencing on 1 May 2020 and expiring on 7 July 2022. The effect of this variation is not to change the effective period of the intensive correction order which was imposed by Order 3.

Order 4

Given the variation to Order 3, Order 4 in its present terms is superfluous but there is a need for supplementation of the Court's orders in view of s 73 and s 73A of the Sentencing Act.
Section 73(1) of the Sentencing Act provides that the sentencing court must at the time of sentence impose on an intensive correction order the standard conditions of an intensive correction order. The standard conditions are: (a) a condition that the offender must not commit any offence; and (b) a condition that the offender must submit to supervision by a community corrections officer: s 73(2).
Order 4 should be supplemented by making those standard conditions.
Section 73A(1) of the Sentencing Act provides that in addition to the standard conditions, the sentencing court must at the time of sentence impose on an intensive correction order at least one of the additional conditions referred to in sub-sec (2). The sentencing court is not required to impose an additional condition if the Court is satisfied that there are exceptional circumstances: s 73A(1A).
The appropriate additional condition with respect to the applicant is an abstention condition requiring abstention from the consumption of drugs: s 73A(2)(f). This condition should apply for the duration of the intensive correction order.
Accordingly, the Court makes the following orders: 1. Pursuant to r 50C of the Criminal Appeal Rules (NSW): 1. Vary Order 3 made on 1 May 2020 by deleting the words "2 years and 6 months to date from 7 January 2020 with a non-parole period of 15 months to date from 7 January 2020" and inserting the words "2 years 2 months and 7 days commencing on 1 May 2020 and expiring on 7 July 2022", such that Order 3 as varied reads: (3) In lieu thereof, the applicant is sentenced to an aggregate term of imprisonment of 2 years 2 months and 7 days to be served by way of an intensive correction order commencing on 1 May 2020 and expiring on 7 July 2022. 1. Set aside order 4 and in its place order: (4) The intensive correction order is subject to the following conditions: (a) the offender must not commit any offence; (b) the offender must submit to supervision by a community corrections officer; (c) the offender is to abstain from consuming drugs.

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