Hraichie v R [2022] NSWCCA 155
Hraichie v R [2022] NSWCCA 155 · Read the judgment on AustLII
Catchwords: Sentencing – offences whilst in custody – ‘convicted inmate’
When an offender commits an offence whilst already in custody, the law provides that in certain circumstances, the sentence for the fresh offence should be completely accumulated on the original sentence. In this decision, the Court of Criminal Appeal (‘CCA’) has held that if an offender is bail refused but otherwise entitled to parole, the provision requiring the sentences to be consecutive may not technically apply – but that technicality may not save you, because of the policy considerations underlying the section.
The applicant has an unenviable history of criminal conduct, including delivering a letter threatening to kill the Corrective Services Commissioner, and doing acts in preparation for a terrorism offence. In August 2019 he was sentenced for a range of serious offences of violence he committed whilst already in custody: wounding with intent to murder and causing grievous bodily harm to another inmate (including carving the phrase ‘E4E’ into the victim’s forehead). On another occasion, also whilst also still in custody, he further committed offences of aggravated detain for advantage and assault: this time he had attempted an ‘exorcism’ on another inmate. The sentence for the exorcism offences started the day after the earlier sentence expired. At the time he committed this attempted exorcism, he had completed the non-parole period for the other offence, but had stayed on remand, bail refused (that is, if he weren’t bail refused, he would’ve been out on parole).
Section 56(1)(a) s 56(2)(a) of the Crimes (Sentencing Procedure) Act 1999 provide that when sentencing a defendant who has committed an assault or offence against the person whilst in custody, if they are a ‘convicted inmate of a correctional centre’ and subject to another unexpired sentence, then the new sentence must be wholly accumulated on the old sentence. That provision was applied by the District Court judge sentencing him for the exorcism offence. He received significant sentences and the applicant appealed a number of them, on grounds including that the judge sentencing him for the exorcism offence had applied s 56 incorrectly, because he was not technically a ‘convicted inmate’ for the purposes of the section.
The s 56 question was taken up by R A Hulme J (with whom Beech-Jones CJ and N Adams J agreed). The starting point is the definition of ‘convicted inmate’ in the Crimes (Sentencing Procedure) Act, which in turn refers the reader to the Crimes (Administration of Sentences) Act (at [142]-[143]). Relevantly, s 4(1)(a) of the Crimes (Administration of Sentences) Act defines ‘convicted inmate’ as a person committed to a correctional sentence to serve a sentence or the remainder of a sentence by way of full-time detention, other than a person who is on release on parole. At the time of the exorcism offences, the applicant was entitled to parole, but for the fact that he was bail refused for other offences (at [145]). Accordingly, he was not a ‘convicted inmate of a correctional centre’, and s 56 did not apply (at [146]).
Nevertheless, for the purposes of sentencing his Honour considered it important to set out the important policy underlying s 56 and the ‘potential application of that policy even in cases to which the section does not apply’. Quoting from one of the sentencing judgments involving this offender, those policy reasons were said to include the importance of maintaining prison discipline and protecting offenders from each other, a need to maintain public confidence in the administration of justice (by not allowing sentences committed whilst in custody to become wholly concurrent), and thus the deterrence of the commission of prison offences (all at [148]).
The appeal on this and other grounds was allowed. However, as mentioned above he had also been sentenced for yet more offending (involving planning a terrorist act), so that the applicant will first become eligible for parole in 2046, with a balance of term expiring in 2051; given this string of offending one might infer that his chances of being granted parole are not terribly high (at least as things presently stand).