Huynh v R [2024] NSWCCA 61
Huynh v R [2024] NSWCCA 61 · Read the judgment on AustLII
Catchwords: Sentencing – pre-sentence custody
In the first of two summaries this month dealing with pre-sentence custody, the Court of Criminal Appeal (‘CCA’) observed that pre-sentence custody must be taken into account – but only once. If the Crown contends that some pre-sentence custody is referrable to another offence, it must obtain the reasons of the other judicial officer. Otherwise, there will be no basis for a finding that it was already taken into account in another matter.
The applicant pleaded guilty and was sentenced for an offence of aggravated break and enter with intent to commit a serious indictable offence. There was also an offence of contravene an Apprehended Domestic Violence Order to be dealt with pursuant to s 166 of the Criminal Procedure Act. He was sentenced to 4 years with a non-parole period of 3 years.
Between his arrest and the day of the sentencing hearing, the applicant had spent 372 days in custody. 311 of those days were unambiguously referable to the subject offences. The remaining days were made up of two blocks of days (24 days and 38 days respectively), each involving unrelated offences for which he had been bail refused for a time. In each case, a magistrate had eventually imposed a Community Correction Order (‘CCO’). There was also a period of 14 days between the sentencing hearing and the day when the sentence was imposed; when the sentence was imposed, the sentencing judge failed to account for those final 14 days. The applicant appealed on two grounds: first, that the sentencing judge made an arithmetical error when calculating the commencement date of the sentence, and secondly, that the sentencing judge ought to have taken into account all of the applicant’s pre-sentence custody, in accordance with ss 24 and 47 of the Crimes (Sentencing Procedure) Act (‘Sentencing Act’).
In allowing ground 1, Adamson JA (with whom Wilson J agreed – Basten JA also agreeing on ground 1 but dissenting on ground 2 with additional reasons) observed that at sentence, the representative for the Crown had submitted that the sentence could be backdated for between 311 and 372 days (at [12]). The implication was that there was a discretion which was apparently unfettered (at [18]). However, the discretion to backdate a sentence must be exercised on a principled basis. In this case it required the sentencing judge to make a judgment as to how many of the 62 days ought to be regarded as being referable to the subject offences. The sentencing judge did not have access to the reasons of the magistrates who had imposed the unrelated sentences, so that he could not know with certainty that the time in custody for each of those offences had been taken into account by the magistrates in imposing the CCOs in those cases; given the Crown’s concession, no assumption could be made that it was. Pre-sentence custody should be taken into account only once, but it would be unfair to an offender not to take it into account at all (at [19]). In this case the sentencing judge did not explain the basis of the selection of backdating by 330 days or how it related to the time spent in custody for the unrelated sentences, and this itself established error (at [20]). The sentencing judge failed to explain why his Honour made the determination he made, and the lack of reasons serves to confirm that the allowance made was not made on a rational basis (at [22]). In circumstances where the Crown did not provide the sentencing judge with any basis (beyond speculation) to conclude that the time spent in custody had already been taken into account by the magistrates in fixing the terms of the CCOs, the sentencing judge ought to have allowed the whole of the pre-sentence custody when imposing the sentence for the current offences (at [24]). If the Crown intends to submit that pre-sentence custody has already been taken into account in sentencing for other offences, it will usually be necessary for it to obtain the reasons of the judicial officer who imposed the sentence for the other offences, since otherwise the sentencing judge will have no basis for finding that any of the pre-sentence custody has already been taken into account in the other sentences (at [27]).
As noted, Basten JA was in dissent on ground 2. His Honour made some additional observations. Key among those was a ‘post-script’ in which his Honour mused on the unavailability of CCOs when an offender is already in custody. Adamson JA and Wilson J explicitly distanced themselves from these observations, finding that it was unnecessary to decide, and the issue had not been argued before them. The essence of his Honour’s post-script was that, in his Honour’s assessment, it is not merely inappropriate, but unavailable to impose a non-custodial sentence (other than a fine) in circumstances where an offender is serving another custodial sentence. At least by implication, non-custodial alternatives to custody cannot be served in custody. They are intended to be served in the ‘community’, with appropriate conditions imposed (at [60]).
Practitioners may immediately notice some practical issues with his Honour’s observations – not least in the impact it would have on the validity of sentencing statistics, and the probable effect it would have in increasing short sentences of imprisonment. As a dissent, it is noted here only to prepare practitioners in the event it comes up in their matters.