Ahmad v R [2022] NSWCCA 144

Ahmad v R [2022] NSWCCA 144 · Read the judgment on AustLII

Catchwords: Sentencing – offences whilst on parole – parole previously revoked

When an offender is on parole, but parole is revoked and a warrant issued, an offence committed whilst the offender is still at large is not committed whilst on ‘conditional liberty’. But in this decision the CCA has pointed out that if the Parole Authority backdates the revocation, that doesn’t retrospectively change the offender’s status for the purpose of sentencing for the fresh offence.

The applicant was sentenced for stealing a motor vehicle, taking and driving a conveyance without the consent of the owner, and larceny. He was sentenced to 2 years with a non-parole period of 12 months. The sentencing judge took into account that the applicant was on conditional liberty at the time of the offending; he had been released to parole in January, and committed the offences in February. However, in March (after he had been arrested) the Parole Authority revoked his parole and, crucially to this issue, ordered that the revocation should be treated as having been revoked back in January. In other words, they backdated the revocation to a time before the fresh offences occurred.

The applicant appealed on grounds including that the judge inappropriately took into account that he was on parole at the time of the offending, given that the Parole Authority’s order was backdated to January, before the offences were committed.

It isn’t explicitly stated, but the premise of the applicant’s argument on this point seems to rest on the decision in Morrison v Regina [2009] NSWCCA 211 (‘Morrison’). That decision provides (at [44]) that an offender whose parole has been revoked is not a person who is to be regarded as being in the community under a form of conditional liberty (at the very least, where there is no evidence that the offender knows that parole has been revoked and a warrant issued).

Here, in Ahmad, the argument was that the Parole Authority’s order revoking parole retrospectively altered the applicant’s status, so that instead of being on conditional liberty, he was merely ‘unlawfully at large’ (which is not an explicit aggravating feature under the Crimes (Sentencing Procedure) Act).

The Court (Mitchelmore JA, with whom Meagher JA and Bellew J agreed) rejected this argument. The order for revocation of parole does not operate to alter, retrospectively, the status of an offender who is in the community on conditional liberty at a time before the revocation order is made. Rather, an order that the revocation take effect from an earlier date operates to extend the term of the offender’s sentence by the amount of time that the offender was unlawfully at large (at [30]). In Morrison, as far as the offender knew his parole term had expired. The term ‘at large’ in that decision was simply a reference to a person not being in custody, and nothing in that decision or the Crimes (Administration of Sentences) Act s171(4) served to retrospectively alter this applicant’s status as being on conditional liberty (at [31]).

For those and other reasons, the appeal was refused.

The practical takeaway is that, whilst practitioners should be careful to check when a parole revocation took effect (because if it was revoked before the fresh offence it may technically mean that the offender is not on conditional liberty) the key date is actually the date when the revocation order was made, not when it is ‘taken to have commenced’.