Towney v R

1. Mr Towney seeks leave to appeal on one ground: "His Honour erred in his consideration of the commencement date for the sentence."

The error conceded

1. The applicant had been the subject of sentences imposed in two Local Courts which preceded the sentencing by King SC DCJ on 19 August 2021. He was sentenced at Wyong Local Court on 17 June 2020 for multiple offences to an aggregate term of imprisonment for 18 months with a non-parole period of 11 months, 21 days, effective from 29 April 2020. He was also sentenced at Cessnock Local Court on 7 April 2021 for a single offence to imprisonment for a fixed term of 3 months, effective from 18 February 2021. The combined effective sentence in respect of the Local Court matters was 1 year, 6 months with a non-parole component of 1 year, 19 days. That total effective sentence ran from 29 April 2020 to 28 October 2021 with the non-parole component expiring on 17 May 2021. (See "Pre-existing Sentences" graph annexed to this judgment.)
2. Section 47(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) provides that a sentence commences on the day it is imposed but this is subject to exceptions. Section 47(2)(a) provides that a sentence may be backdated and sub-s (3) provides that in deciding whether to backdate, a court is to take into account any pre-sentence custody. (Section 24(a) also requires a court to take into account pre-sentence custody.)
3. Given Mr Towney was arrested and refused bail in respect of the index offences on 28 April 2020, it was within his Honour's discretion to backdate the sentence as far as to that date. However, he was also required to apply the principle of totality in considering the extent to which the sentence might overlap the Local Court sentences. In this respect, after stating the indicative sentences for each offence his Honour said: [1] "I have taken into account the fact that he has been in custody since 28 April 2020, although until 17 May 2021 he was in fact serving other sentences. It is necessary to take into account the concept of totality as referred to in Pearce, [2] and I have done so. I have determined that I would backdate the sentence into the period while serving the other offences referred to. I intend to start the sentence in this matter from 7 months after his arrest, which means that the sentence will commence on 18 January 2021."
4. The first sentence in that passage stated the position correctly. But in the last sentence there is a clear miscalculation in that "seven months after his arrest" on 28 April 2020 was 27 November 2021. It appears that his Honour inadvertently calculated 7 months from 17 July 2020 which was the date Mr Towney was sentenced in the Local Court at Wyong.
5. There can be no doubt the judge was aware that the applicant had been in custody since his arrest for the index offences on 28 April 2020. He expressly said so in the passage of his sentencing remarks extracted above. He had also expressly said so on a number of occasions earlier in his remarks on sentence. [3]
6. Counsel for the applicant referred to what was submitted to be an incorrect statement by the judge of 17 June 2020 being the applicant's date of arrest for the index offences. It was in the context of his Honour referring to the offending which gave rise to the sentences imposed in the Local Courts. There were three correct references (one by implication) to the date of arrest but then a reference to a date of arrest for "these offences" being 17 June 2020. [4] Because of the context it is unclear what "these offences" was a reference to, but it is clear that the applicant was not arrested for anything on 17 June 2020.
7. In summary, the judge correctly referred to the applicant's date of arrest on 28 April 2020 multiple times and correctly referred to 17 June 2020 as being the date of sentencing at Wyong Local Court. [5] Inexplicably, however, he calculated the commencement date of the sentence he was imposing at "seven months after his arrest" as being 18 January 2021. That implies he inadvertently added seven months to 17 June 2020.
8. The error of calculating the date of commencement of the sentence is undeniable and was conceded by the Crown. The Court should grant leave and allow the appeal.

How the Court should respond to the error

1. The question is how the Court should approach the next step; whether to reconsider the sentencing task entirely or to just vary the sentence to correct the error. Mr Towney contends that the Court should engage in a complete re-exercise of the sentencing discretion; alternatively, it should correct the error. The Crown contends that the error is of a type for which the latter is all that is required.
2. The Court has the guidance of the judgment of the High Court in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 40 at [42] and of a five-judge bench decision of this Court in Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255.
3. In Kentwell v The Queen French CJ, Hayne, Bell and Keane JJ said (at [42]): "When a judge acts upon wrong principle, allows extraneous or irrelevant matters to guide or affect the determination, mistakes the facts or does not take into account some material consideration, the Court of Criminal Appeal does not assess whether and to what degree the error influenced the outcome. The discretion in such a case has miscarried and it is the duty of the Court of Criminal Appeal to exercise the discretion afresh taking into account the purposes of sentencing and the factors that the Sentencing Act, and any other Act or rule of law, require or permit. As sentencing is a discretionary judgment that does not yield a single correct result, it follows that a range of sentences in a given case may be said to be "warranted in law". A sentence that happens to be within the range but that has been imposed as the result of a legally flawed determination is not "warranted in law" unless, in the exercise of its independent discretion, the Court of Criminal Appeal determines that it is the appropriate sentence for the offender and the offence. This is not to say that all errors in the sentencing of offenders vitiate the exercise of the sentencer's discretion. By way of example, s 44(1) of the Sentencing Act requires the court when sentencing an offender to imprisonment to first set the non-parole period and then set the balance of the term. Prior to 1 February 2003, a court was required to first set the term of the sentence and then specify the non-parole period. A court which sentences an offender to imprisonment after 1 February 2003 by first setting the term of the sentence commits legal error. Without more, the error does not affect the exercise of the sentencer's discretion."
4. In Lehn v R, the Court sat as a bench of five judges to consider the limits of when it may confine itself to correction of the error in question when upholding an appeal against sentence. The error there under consideration concerned the amount of discount allowed for an offender's plea of guilty. Bathurst CJ (with whom the other members of the Court agreed) commenced his analysis by considering the terms of s 6(3) of the Criminal Appeal Act 1912 (NSW) which provides: "On an appeal under section 5(1) against sentence, the court, if it is of 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."
5. Bathurst CJ noted (at [68]): "The section, as a matter of language, does not provide that if a discrete error is found, the sentence can be adjusted to take account of that error. It seems to me that if there is an error which affects the exercise of the sentencing discretion, the section requires the court to form its own view of the appropriate sentence, although, as pointed out in Kentwell at [43], not necessarily to resentence."
6. However, his Honour identified the possibility of an exception to this (at [72]): "That is not to say that there will not be occasions when, notwithstanding error, it is not necessary to re-exercise the sentencing discretion. It will not be necessary where, for example, an arithmetical error occurred in the calculation of the commencement and end date of the sentence or the date of the expiration of a non-parole period arrived at in the proper exercise of discretion or, for example, an error in the calculation of the effect of a discount for a plea or assistance to the authorities, where the extent of the discount to be allowed was reached in accordance with proper principles."
7. Reference was made by Mr Towney to cases in which errors were identified as "discrete" and amenable to correction without the Court engaging in a complete re-exercise of the sentencing discretion. [6] However, Mr Towney sought to distinguish this case, contending that erroneous findings relevant to the starting date of the sentence had the capacity to infect aspects of the sentencing discretion. He contended that the error was not one of arithmetical miscalculation but was a matter of erroneous factual consideration, that being that Mr Towney was arrested on 17 June 2020. As a result, the judge considered that 17 June 2020 was as far back as backdating could go in accordance with ss 24 and 47 of the Crimes (Sentencing Procedure) Act. His Honour was therefore in breach of those provisions because, although he was not required to fully backdate to 28 April 2020, he was required to take into consideration that Mr Towney had been held in custody in relation to the offences for which he was being sentenced as early as that date. [7]
8. It was submitted that his Honour's erroneous understanding of the extent of presentence custody had the capacity to infect other sentence considerations - principally totality. [8]
9. It was also contended that the judge's finding of special circumstances was affected in that the extent of the variation to the non-parole and parole periods of the sentence would differ. [9]

Consideration

1. Characterising the judge's mistake as factual rather than arithmetical is correct but not determinative.
2. There was an amount of pre-sentence custody and the sentencing legislation required it to be taken into account. This is conventionally done by way of backdating the commencement of the sentence. That had the complication that during that period of pre-sentence custody the applicant had served other sentences. The judge was aware of the correct terms of those sentences. He was required by the principle of totality to consider whether to accumulate the sentence he was imposing upon those sentences and if so by how much. He determined that he would accumulate the sentence he was imposing upon the Local Court sentences by seven months. He simply made a mistake in calculating what then should be the commencement date because he inadvertently added seven months to a wrong date. He should have specified the commencement date as 28 November 2020, not 18 January 2021.
3. I am not persuaded that the judge thought the applicant had been arrested on 17 June 2020 and used that date to determine the extent of partial accumulation upon the Local Court sentences. Having earlier stated the correct date of arrest a number of times, in the critical passage set out earlier he expressly and correctly stated, "I have taken into account the fact that he has been in custody since 28 April 2020 although until 17 May 2021 he was in fact serving other sentences". The result of the miscalculation appears only four lines later in the transcript. It is inconceivable that in that brief period he suddenly came to a mistaken view that the date of arrest was 17 June 2020 and decided upon a period of accumulation of seven months based upon it.
4. The error in the commencement date had no bearing on the degree by which the judge intended to vary the proportions of non-parole and parole periods of the sentence. His Honour determined that a specific period in which the applicant might be allowed release on parole should be factored into the sentence. He said: "The term of the aggregate sentence is four years, six months, and I will on the basis of special circumstances restore the statutory relationship between the non-parole period and the balance of term, indeed even more in favour of the offender than necessary, but to allow for a full 18 months of parole, as I perceive it as being important to assist him in relation to dealing with in particular his drug problems, and or alcohol."
5. A similar error of backdating to the wrong date was raised in Almaouie v R [2021] NSWCCA 274. Beech-Jones CJ at CL accepted that it was amenable to correction without re-exercise of the sentencing discretion. He explained (at [24]-[25]): "Ground 2 contends that his Honour erred in commencing the sentence for the firearms offences on 18 December 2014 rather than the first day he went into custody namely 9 January 2015' Ground 2 can be addressed first. It seems that his Honour commenced the sentence for the firearms offences on the day the search warrant was executed at the applicant's home that discovered the firearms rather than the day he was arrested and refused bail, being 9 January 2015. An error of that kind concerns the exercise of the discretion conferred by s 47(2) of the Crimes (Sentencing Procedure) Act 1999 to fix the commencement date of a sentence. Although they are related, the exercise of that power is distinct from the exercise of the power to determine, say, the length of the non-parole period conferred by s 44(1). The commission of such an error does not necessarily engage any obligation in this Court to re-exercise the sentencing discretion as opposed to adjusting the start date to address the identified error (Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255 at [72] per Bathurst CJ). It does not do so here."
6. The Court did not proceed to correct the error because doing so was disadvantageous to the applicant. In another case of backdating error, the Court did proceed to correct the error without re-exercising the sentencing discretion afresh. In Huynh v R [2022] NSWCCA 45, Bellew J said (at [40]): "This Court can correct that error by taking into account the totality of the applicant's period of pre-sentence custody set out above and re-sentencing him. That does not require the Court to engage in a re-exercise of the sentencing discretion."
7. In the present case the Court should adopt the same approach and vary the sentence so as to correct the error. The commencement date should be changed to 28 November 2020 with the result that Mr Towney will become eligible for release on parole on 27 November 2023.

Orders

1. I propose the following orders: 1. Leave to appeal against sentence granted. 2. Appeal allowed. 3. Vary the aggregate sentence of 4 years and 6 months with a non-parole period of 3 years imposed in the District Court on 19 August 2021 by specifying that it is to date from 28 November 2020.
2. The applicant will become eligible for release on parole upon the expiration of the non-parole period on 27 November 2023.

Towney v R Annexure (Pre-existing Sentences) (6713, pdf)

Endnotes

1. Remarks on sentence (ROS) 24
2. Pearce v The Queen (1998) 199 CLR 610; [1998] HCA 57. For a succinct summary of the totality principle, see Cahyadi v R [2007] NSWCCA 1 at [27].
3. ROS 13.4, 13.8, 13.9 17.5
4. ROS 14.4
5. The latter at ROS 12.9
6. Applicant's written submissions (AWS) [39]
7. AWS [40]-[42]
8. AWS [43]
9. AWS [44]

Amendments 15 December 2022 - Annexure attached DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 December 2022