Sultana v Regina [2007] NSWCCA 107 | Case summary

Tuesday 22 May 2007 William Sultana v Regina Judgment 1 McCLELLAN CJ at CL: I agree with Hidden J. 2 HIDDEN J: The applicant, William Sultana, pleaded guilty on indictment in the District Court to a charge of break, enter and steal. He also asked the sentencing judge to take into account on a Form 1 a further offence of break, enter and steal and another of break and enter with intent to steal. On the charge on the indictment, taking into account those two offences on the Form 1, he was sentenced to imprisonment for two-and-a-half-years, comprising a non-parole period of sixteen months and a balance of term of fourteen months. The sentence was directed to date from 13 April 2006. He seeks leave to appeal against that sentence. 3 The application is based only upon the fact that the sentencing judge declined to backdate the sentence to take account of pre-sentence custody in respect of the Form 1 matters. To understand the argument it is necessary to sketch the chronology of the proceedings 4 The three offences were committed between June 2002 and April 2003. The offence of break, enter and steal on the indictment was committed at Macquarie Park in December 2002. Of the Form 1 offences, the charge of break, enter and steal arose from an offence committed at Baulkham Hills in April 2003 and the charge of break and enter with intent from an offence committed at Girraween in June 2002. The three offences were unrelated. 5 For reasons which need not concern us, the applicant was not arrested for any of these offences until much later. In the meantime, in April 2004 he was sentenced for another unrelated offence to a term of imprisonment with a non-parole period to expire on 5 January 2005. On 30 November 2004, while in custody serving that sentence, he was charged with the Form 1 offences. As one would expect, bail was refused at that time. However, bail remained refused after 5 January 2005, even though he was granted parole from that day. On 22 March 2005 he was granted bail in the Supreme Court. 6 The period he spent in custody from 5 January to 23 March 2005 was two months and seventeen days. It is that period which is the subject of this application. 7 On 31 March 2005 he was arrested and charged in relation to the break, enter and steal offence on the indictment. He was granted bail in respect of that matter until 13 April 2006 when, for reasons which again need not concern us, bail was revoked. The three charges were to be the subject of a trial, but in June 2006 he pleaded guilty to the Macquarie Park offence and asked that the other two offences be taken into account on the Form 1. He was sentenced on 23 October 2006 and, as I have said, the sentence was to date from 13 April 2006, the day on which bail was revoked in respect of the indictment offence. 8 The submission in the present application is that the sentence should have been backdated by a further period of two months and seventeen days to take account of the period the applicant had spent in custody which was referable exclusively to the Form 1 matters. 9 The matter was argued before the sentencing judge, who expressed his conclusion in the remarks on sentence as follows: I am not satisfied that I should take into account for the purposes of backdating the sentences the two months and seventeen days that the defence submitted ought to be taken into account for the matters on Form 1. I am satisfied that the submission by the Crown in answer to the defendant's submission that a date 13 April was the date on which the offender was put in custody for this offence ought to be the date if I so decide from which a sentence ought to be commenced. 10 Section 24(a) of the Crimes (Sentencing Procedure) Act requires a court, when sentencing an offender, to take into account any time which that offender has been held in custody in relation to the offence. Section 47(2)(a) empowers a court to backdate a sentence, and subs(3) provides that in doing so 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, of course, accord with long standing sentencing practice. Allowance for pre-sentence custody can be made by reducing the sentence or by backdating it. There is abundant authority that backdating is the preferable course: see, for example, R v McHugh [1985] 1 NSWLR 588 and R v Deeble (CCA, unreported, 19 September 1991). In McHugh, Street CJ said at 590-1: It is desirable sentencing practice that, where there has been a period of pre-sentence custody exclusively referable to the offences for which sentence is being passed, the commencement of the sentence…should be back-dated for an equivalent period. … The desirable practice will promote the accuracy of the record, preventing there being a hidden factor affecting the length of the custody involved in consequence of the sentencing order. … A judge departing from this practice could be expected to indicate his reason for so doing. 12 The question arises in the present case because, strictly speaking, the applicant was not sentenced for the form 1 offences. The sentence was passed in respect of the offence on the indictment, with the matters on the Form 1 being taken into account in accordance with the procedure established by Division 3 of Part 3 of the Crimes (Sentencing Procedure) Act. The principles governing that procedure were stated in the now familiar decision in Re Attorney-General's Application under s37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 1 of 2002) (2002) 137 A Crim R 180. 13 The Crown prosecutor in this Court relied upon the statement of Spigelman CJ in that case at [35] that the statutory scheme "emphasises that the court is concerned and concerned only with imposing a sentence for 'the principal offence'". For present purposes, however, that statement must be amplified by the oft quoted passage from his Honour's judgment at [42]: The position, in my opinion, is that, although a court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate, ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community's entitlement to extract retribution for serious offences which (sic) there are offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence. 14 Moreover, earlier in the judgment the Chief Justice said at [18]: A number of propositions with respect to the process of taking into account matters on a Form 1 are well established and are uncontroversial. First, the entire point of the process is to impose a longer sentence (or to alter the nature of the sentence) than would have been imposed if the primary offence had stood alone. Second, it is wrong to suggest that the additional penalty should be small. Sometimes it will be substantial. 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. 16 I have arrived at that conclusion without the benefit of any authority directly on point. In Deeble (supra) the applicant had been in custody since his arrest for the principal offence, but there had been an earlier discrete period of custody referable to an offence taken into account under the procedure then available in the Crimes Act. In delivering the leading judgment, Badgery-Parker J referred to the total of those two periods of pre-sentence custody, saying that that aggregate period was "to be taken into account". However, having decided that the court should intervene, his Honour substituted a sentence expressed to commence on the date of the applicant's arrest for the principal offence. Whether the earlier period of custody referable to the offence taken into account led to an adjustment of the substituted sentence is not clear. However that may be, the applicant in that case was unrepresented and the issue arising in the present case was not argued. 17 In oral submissions, argument centred upon whether we should decline to intervene because no lesser sentence was warranted: s6(3) of the Criminal Appeal Act. I have not recited the facts of any of the offences or the subjective material. However, it must be said that the principal offence was a serious one of its kind, as were the Form 1 offences, and the two and-a-half-years sentence is undoubtedly lenient. 18 The Crown prosecutor suggested that this may have been a reason why the sentencing judge declined to backdate the sentence but, as is apparent from the passage from the remarks on sentence quoted above, that is not the reason which his Honour expressed. However that may be, she argued that this Court should not backdate the sentence because to do so would render it inadequate. 19 I would question whether s6(3) is concerned with the date of commencement of a single sentence, as opposed to the length of it. The subsection may be relevant to the commencement dates of multiple sentences in a case where questions of accumulation or concurrency bear upon the length of the overall sentence. However, that also is not a matter which I need to decide. In my view, to backdate this sentence to the extent sought would be to do no more than recognize a period of pre-sentence custody referable to offences which were relevant to the sentence, and the result would not be inappropriately lenient. 20 I would grant leave to appeal and allow the appeal. I would confirm the sentence passed in the District Court but would backdate it by a period of two months and seventeen days. Accordingly, instead of 13 April 2006, the sentence would commence on 28 January 2006. The non-parole period would expire on 27 May 2007 and the balance of term on 27 July 2008. I would direct the applicant's release on parole on 27 May 2007. 21 ROTHMAN J: I agree with Hidden J.

Sultana v Regina

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