WIGGINS, Daniel Peter v R

R v English [2000] NSWCCA 245 R v Howard [2001] NSWCCA 309 R v Phillips [2002] NSWCCA 167 CASES CITED : R v Newman and Simpson [2004] NSWCCA 102; 145 A Crim R 361 Abdul-Kader v R [2007] NSWCCA 329; 178 A Crim R 281 White v R [2009] NSWCCA 118 R v Hall [2005] NSWCCA [2005] NSWCCA 217 Starmer v R [2008] NSWCCA 27

COUNSEL: L Lamprati - Crown A Francis - Applicant

SOLICITORS: S Kavanagh - Crown S O'Connor - Applicant

IN THE COURT OF CRIMINAL APPEAL 2008/10012

McCLELLAN CJ AT CL HOWIE J HARRISON J

TUESDAY 2 MARCH 2010 Daniel Peter WIGGINS v REGINA Judgment 1 McCLELLAN CJ at CL: I agree with Howie J that this Court should not intervene and the appeal should be dismissed. 2 When an offender has already served a period in custody for the offence for which he is being sentenced he or she will always consider the sentence process to be unjust unless they are assured that the pre-sentence custody is reflected in the sentence. Because sentences are expressed by reference to years and months confidence in the system is best maintained by commencing the sentence at a date when the period of pre-sentence custody can be clearly identified as having been taken into account. Although there will be cases where this is not appropriate they should be infrequent. 3 HOWIE J: This Court has repeatedly stated that the preferable course to adopt, where an offender has served a period of pre-sentence custody, is to backdate the sentence imposed by a period equivalent to the pre-sentence custody. In R v English [2000] NSWCCA 245, Giles JA stated (my underlining):

[22] This Court has on a number of occasions said that it is desirable that a sentencing judge back-date a sentence to take into account pre-sentence custody. It is not necessary to go further back than R v McHugh (1985) 1 NSWLR 588 and what may be regarded as the definitive decision in R v Deeble (19 September 1991, unreported), in which the reasons for the practice are outlined: they need not be repeated here. Subsequent cases included R v Reid (26 March 1997, unreported) and R v Foster (30 October 1996, unreported). The desirability is put not as something which is mandatory, but as a rule of practice of importance, and in my view the importance should be emphasised once again. If a sentence is not back-dated to take into account pre-sentence custody the reason or reasons for not doing so should be clearly stated. 4 In R v Howard [2001] NSWCCA 309 Wood CJ at CL stated:

[25] It is not clear why the two periods of pre sentence custody were not demonstrably reflected in the sentencing order. In my view, error did occur in this respect, having regard to the provisions of s24 as well as s47(2) and s47(3) of the Act, and to the principles and practice discussed in McHugh (1985) 1 NSWLR 588; Deeble NSWCCA 19 September 1991, and English (2000) NSWCCA 245. Although I otherwise consider the sentence appropriate, in the absence of any statement or reason for not backdating for the periods in question or for reducing the sentence from the other end, I am of the view that the Court should intervene to adjust them accordingly. 5 In R v Phillips [2002] NSWCCA 167 James J stated:

[58] S24 of the Crimes (Sentencing Procedure) Act required his Honour to take into account any time for which Ms Simpson had been held in custody in relation to the subject offence. S47(3) of the Act is generally to the same effect. However, there is no legislative requirement that the sentence be backdated to take into account a period of pre-sentence custody. There is much authority on the other hand as to the desirability of such a course. Thus, reference may be made to the well known passage in the judgment of Chief Justice Street, speaking on behalf of this Court, in Regina v McHugh (1985) 1 NSWLR 588 at 590-599 where the Chief Justice said: "It is desirable sentencing practice that, where there has been a period of pre-sentence custody exclusively referable to the offences for which the sentence is being passed, the commencement of the sentence (and the non-parole or non-probation period) should be backdated for an equivalent period. This is to be preferred to a process of assessing the proper sentence (non-parole or non-probation period) and allowing, as it were, a discount in consequence of the pre-sentence custody. 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."

[59] Over the years, the practice recommended by the Chief Justice has been regularly applied. (See for example Regina v Deeble (unreported CCA 19 September 1991) and Regina v English [2000] NSWCCA 245.)

[60] Although the practice was not followed in Regina v Frascella [2001] NSWCCA 137 and Regina v Rose [2001] NSWCCA 370 by two judge Benches of this Court, it has been more recently followed and affirmed in the judgment of a Full Bench of this Court in Regina v Howard [2001] NSWCCA 309…….. 6 In R v Newman and Simpson [2004] NSWCCA 102, 145 A Crim R 361 I stated:

[23] It should be noted that McHugh was a case in which the appellant had continued in custody for a considerable period up to the date he was sentenced. This Court has repeatedly emphasised the importance of the practice being followed regardless of the different sentencing regimes in force from time to time. See, for example, R v English [2000] NSWCCA 245. However, it has been acknowledged that the sentencing judge can depart from the practice in an appropriate case and where reasons are given for doing so. See Leete (2001) 125 A Crim R 37.

[24] It is trite law that a sentencing court must take into account the period served in pre-sentence custody where that period is referrable to the offence for which sentence is being passed. The court is required to take that matter into account by s 24(a) of the Crimes (Sentencing Procedure) Act. Section 47(3) of that Act also obliges the court to take time served into account when determining the commencement date of a sentence.

[25] It is also trite law that the time spent in pre-sentence custody should be a matter to be considered in fixing the length of the non-parole period. In those cases where the sentence is backdated to a period before the sentence is imposed, the non-parole period will automatically be reduced by an amount equivalent to the reduction in the head sentence. This is because the non-parole period must begin on the date when the head sentence commences.

[26] The difficulty arises in cases where, as here, the pre-sentence custody did not continue unbroken to the date of sentence. In such a case the court is faced with two options: it can simply state that the pre-sentence custody is being taken into account and reduce the sentence accordingly; or it can backdate the sentence even though the offender was not actually in custody on the date when the sentence is deemed to have commenced. Notwithstanding some doubt expressed about the latter practice in R v Sayak (NSWCCA, unreported, 16 September 1993), this Court has dealt with the matter in this way on more than one occasion. See R v McDonald (NSWCCA, unreported, 12 December 1995); R v Howard [2001] NSWCCA 309, and R v Phillips and Simpson [2002] NSWCCA 167. There is nothing in s 47 of the Act that would suggest that a court could not make such an order.

[27] In my view, although there is an element of fiction involved in backdating a sentence to a period when the offender was not in custody, there is much to be said in its favour. Firstly, it preserves the denunciatory and deterrent value of the sentence to be pronounced. If a sentence is decreased by a substantial period already served in custody, it can have the appearance of being inadequate both to public perception and when it appears in the statistical information that is now so often relied upon by sentencing courts. This was one of the reasons expressed in McHugh for the adoption of the practice and it remains a highly important consideration.

This passage was approved by Kirby J in Abdul-Kader v R [2007] NSWCCA 329; 178 A Crim R 281. 7 Despite the repeated endorsement of this Court for the preferable course of backdating a sentence to reflect the period of pre-sentence custody, this is yet another case where the sentencing judge has not taken that course and yet given no reasons for not having done so. The result is an application for leave to appeal that could have been avoided by the simple expedient of commencing the sentences imposed upon the applicant six months earlier than the date of sentencing. 8 I cannot understand why the preferred course is not universally adopted. It has everything in its favour as was made clear in the decision in McHugh almost 25 years ago: it is simple, transparent and does not result in an apparently lesser sentence being imposed than was actually served by the offender. There is nothing that can be said in support of the alternative method. In my view it should cease unless there is a good reason, which the judge clearly specifies, for not adopting that approach. One reason was referred to in White v R [2009] NSWCCA 118 in the following passage:

[12] There are a number of situations in which it would, or might, be inappropriate to adopt the preferable backdating approach. There is the example referred to in R v Deeble, supra, of a sentencer preferring to discount rather than backdate a sentence to three years or less so as to make the offender's release on parole on the expiration of the non-parole period an entitlement rather than an eligibility: see, similarly, R v Leete [2001] NSWCCA 337 ; (2001) 125 A Crim R 37 at [29]. Alternatives to imprisonment and alternatives to full-time imprisonment are inapt for backdating and there is a statutory bar in the case of periodic detention (s 70). 9 The applicant in the present matter was convicted after trial of two offences: aggravated robbery contrary to s 92(1) of the Crimes Act and assault occasioning actual bodily harm contrary to s 59 of that Act. McGuire ADCJ (the Judge) sentenced him on 12 December 2008 to an overall sentence of 5 years 2 months and an overall non-parole period of 3 years 2 months. The Judge commenced the sentences from 3 October 2008, that was the date upon which the applicant re-entered custody after being convicted of the offences. The sentences, therefore, were backdated 2 months. 10 However the applicant had served approximately a period of four months before being released to bail. The preferred course would have been for his Honour to have dated whatever sentence he imposed upon the applicant for the two offences from a date roughly six months before the date of sentence. As was made clear in R v Newman and Simpson, it would not have mattered that the commencement date was fictional in that the applicant was at large until 3 October. But his Honour after imposing the sentences stated:

In fixing sentence, I have taken into account the offender's incarceration of approximately four months prior to him being returned to custody on 3 October 2008. 11 This Court should be loathed not to take his Honour at his word and find that an error has occurred by a failure to take into account the period of pre-sentence custody. But it has done so; see for example R v Hall [2005] NSWCCA 217. Yet, as Giles JA stated in English, an error can be established simply by the failure of the judge to explain why the sentence was not backdated. But in any event and with the greatest respect, it is difficult to understand how his Honour derived the sentence that he did by having taken the period of 4 months into account. 12 For the s 59 offence his Honour imposed a fixed term of 6 months from 3 October 2008 and expiring on 2 April 2009. It is possible that his Honour thought that the appropriate sentence for that offence was 10 months and had deducted four months from it. But that seems unlikely as a 10 month sentence is a curious starting point particularly as there was no discount involved for a plea of guilty. 13 For the aggravated robbery offence his Honour imposed a sentence of 5 years. That sentence does not appear to have been determined by taking 4 months pre-sentence custody into account. That sentence commenced on 3 December 2008, that is two months after the commencement of the sentence for the s 59 offence. It is difficult to see how that commencement date was derived having regard to the 4 months pre-sentence custody. 14 But this speculation by the Court should be unnecessary and evidences the lack of transparency in sentencing where a judge simply indicates that a sentence has been imposed having regard to a period of pre-sentence custody. If this Court is left speculating about how the period of pre-sentence custody was taken into account, the offender must be at least in the same position. 15 In Starmer v R [2008] NSWCCA 27 Grove J stated:

[12] However, it is not obligatory for a sentencing judge to adopt the practice and it does not, viewed in isolation, demonstrate error to depart from it. Counsel for the applicant has pointed to cases where this Court has intervened, but in all of them the sentencing proceedings were detected to have been affected by ambiguity so that it was not clearly demonstrated that appropriate account had been given to service of pre-sentence custody; R v Nasher [2005] NSWCCA 238; R v Hall [2005] NSWCCA 217; R v Howard [2001] NSWCCA 309.

[13] In order to attract intervention by this Court it is necessary to show that relevant error has occurred. On some occasions this can be detected by analysis of the sentence structure in terms of ingredient periods and ultimate result but this is not always the case. The task of the sentencing judge is one of assessment and not one of simple arithmetical calculation. There is no requirement for judges to sentence only in "round figures".

I am prepared to find that error has occurred, but the question then raised is whether any lesser sentence is warranted. 16 The aggravated robbery offence took place on 6 November 2007. The applicant confronted the victim when he was riding his bike. The applicant grabbed the handlebars and said that he intended to take the victim's wallet and watch. He forced him off the bike and then started to punch him. The victim fell to the ground and the applicant kicked him repeatedly and then struck him with a fence paling. He produced a penknife and placed it against the victim's temple threatening to stab him. He unsuccessfully tried to remove the victim's watch. The applicant then took the victim's bike and rode away. The victim suffered some injuries including a wounding to the head. The Judge concluded that the victim might have exaggerated the extent of the attack upon him. He noted that the bike was of "major value" to the victim. 17 The second incident occurred sometime in the early part of 2008. The applicant approached the victim near Mount Druitt Station when the victim was in the company of his granddaughter and daughter. The applicant said. "If you go to court, I'll punch your fucking head in" and made some threat about getting certain persons "onto him". He than punched the victim to the mouth. The victim suffered some minor injuries. 18 The applicant denied both incidents but was convicted by a jury. The applicant had a criminal record for various matters including the possession of a knife and violence. He had served a short period in custody. He was subject to four bonds at the time of the offending and the pre-sentence report indicates his response to supervision "was unsatisfactory and deemed to be superficial". He was aged 28 years of age when sentenced. There was evidence that he had suffered a disturbed background with violence from his father and stepfather. 19 In my opinion the sentence imposed for the s 59 offence was verging on being manifestly inadequate. It can only be justified if it is assumed that it reflects the period of 4 months of pre-sentence custody. The sentence for the robbery offence was completely appropriate given the actual use of violence and infliction of injuries. In my opinion the sentence seen as a whole was lenient. In view of the breach of bonds and his attitude to supervision, the applicant was very fortunate to receive a finding of special circumstances. I am unpersuaded that this Court should effectively reduce the sentence by a further four months. 20 I propose that leave be granted to appeal but the appeal be dismissed. 21 HARRISON J: I agree with Howie J. **********

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