DG v R (No 1) [2023] NSWCCA 320
DG v R (No 1) [2023] NSWCCA 320 · Read the judgment on AustLII
Catchwords: Sentencing – Intensive Correction Orders – Eligibility – Backdating versus reducing
In this decision the Court of Criminal Appeal (‘CCA’) has put to bed the question of whether a sentence of imprisonment can be reduced to enable consideration of an Intensive Correction Order (‘ICO’): it is not a permissible exercise of a sentencing judge’s discretion.
The applicant pleaded guilty to a number of drug and firearms offences: for a total of 18 days across two periods of time he used a mobile phone to arrange sales of cocaine totalling 29.5g. When he was arrested, police found two pistols, ammunition, and a pistol magazine, which he also possessed in contravention of a firearms prohibition order. He gave evidence by affidavit that he had committed the drug offences to discharge his own drug debts, and that he had committed the firearms offences as a result of violence and threats to which he was subject when he said he no longer wished to distribute drugs. He was sentenced to 3 years and 6 months with a non-parole period of 2 years and 4 months.
The applicant appealed on grounds including that the sentencing judge had erred in failing to make the assessment required by s 66(2) of the Crimes (Sentencing Procedure) Act 1999 – that is, that the judge had failed to consider an ICO. Although the sentence was longer than the three-year limit for ICOs, the applicant contended that the sentencing judge ought to have considered whether to reduce the term to 2 years and 6 months by taking into account the pre-sentence time that the applicant had been in custody, instead of backdating the sentence to commence from the date of his arrest. Then, having done so, it was submitted that the sentencing judge ought to have considered whether that sentence, being less than three years, ought to be served by way of an ICO.
Dedicated readers of these pages will recall that the issue of whether pre-sentence custody could be used to reduce a sentence below the 3-year limit for ICOs was raised in Mandranis v R [2021] NSWCCA 97 (‘Mandranis’). In that decision, the CCA (differently constituted) observed that, because ICOs cannot be backdated and therefore must commence on the day they are imposed, it was unclear how pre-sentence custody should be taken into account. An additional question, which did not strictly arise for determination in that decision, was whether it would be an appropriate exercise of discretion to reduce a sentence by way of pre-sentence custody to a level below which an ICO might become available.
Here, the CCA (Wilson, Fagan, and Sweeney JJ, in a unanimous judgment) were required to revisit the question squarely of whether it is appropriate to reduce the sentence in order to get a sentence under the threshold to enable consideration of an ICO. The judgment first canvasses the authorities describing the orthodox process of determining the length and form of a sentence of imprisonment: determine the length first, then determine how that sentence should be served (at [12]-[17]). Turning to the question of whether a sentence should be backdated or reduced to account for pre-sentence custody, the Court described R v McHugh (1985) 1 NSWLR 588 as ‘seminal’, providing for a ‘settled practice’ of backdating (at [20]). The reason for that approach is the fact that backdating ensures the collection of sentencing statistics, and entails transparency and accurate representation in the court’s record (at [21]). The authorities are clear: if the practice of backdating is to be departed from, then the sentencing judge should clearly state the reasons for doing so.
In the present case, if the course proposed by the applicant had been adopted, the only reason for doing so would have been to circumvent the 3-years-or-less requirement in s 68(3) of the Crimes (Sentencing Procedure) Act 1999. Far from the sentencing judge having been in error by not engaging in such manipulation, to have done so would have been an impermissible exercise of discretion, since doing so would involve acting upon an irrelevant and impermissible consideration (at [22]). Noting that N Adams J, in Mandranis, had said that the question of whether such an exercise was appropriate didn’t arise and didn’t need to be decided in that case, it was raised squarely in this case. Having now to decide the matter, the Court here determined that where an aggregate sentence of 3 years of more is considered appropriate and the offender has served some pre-sentence custody, it would be an impermissible exercise to reduce the term to 3 years or less with a commencement date that is not backdated for the purpose of satisfying s 68(3) and facilitating a shortened sentence that is served by way of an ICO (at [25]). For those and other reasons, the appeal was dismissed.
Practitioner’s will remember that, although this judgment talks about a ‘3-years-or-less’ rule, that is only for multiple charges. For a single charge the limit is in fact two years, which can lead to peculiar circumstances in which an offender is better off pleading to two offences rather than one. Given that and the other peculiarities of sentencing in respect of ICOs, practitioners might expect this not to be the last word on the topic of eligibility for the one alternative form of imprisonment now available in NSW.