Kljaic v R [2023] NSWCCA 225
Kljaic v R [2023] NSWCCA 225 · Read the judgment on AustLII
Catchwords: Sentencing – Conditions of custody – back-dating sentences
In this first of a duo of (apparently unrelated) cases on the topic of when and how sentences can be backdated, the Court of Criminal Appeal (‘CCA’) has concluded that in appropriate circumstances an available means of recognising difficult conditions in custody is to backdate a sentence to a date before the offender went into custody.
The applicant pleaded guilty to serious driving offences. In the District Court he was sentenced to 4 years and 6 months, with a non-parole period of 2 year and 8 months. He had spent 199 days in custody before being sentenced. The sentencing judge backdated the sentence a further 30 days to take account of what the judge described as ‘circumstances of extra-curial punishment’ arising from lockdowns, other restrictions arising in custody because of COVID-19, and a denial of appropriate footwear.
The applicant appealed on grounds including that the sentencing judge had mis-applied s 47 of the Crimes (Sentencing Procedure) Act 1999 (the ‘Sentencing Act’) by backdating the sentence further than the period the applicant had spent in custody.
The Court (Wright J, Beech-Jones CJ at CL and Harrison J agreeing) observed that s 24(a) of the Sentencing Act renders it mandatory that a sentencing judge takes into account the time in custody on remand (at [16]). Section 47(2)(a) allows a judge to start a sentence before the day it is being imposed, and s 47(3) makes it mandatory, when deciding whether to backdate a sentence, to take into account any time the offender has been in custody in relation to the offence or offences. But neither s 24(a) nor s 47(3) specifies how the time is to be taken into account (at [17]). It is well-established that it is preferable to backdate sentences – not because it is mandatory, but because it is more transparent and does not result in an apparently-lower sentence being imposed for an offence (at [20]). Sections 24(a) and 47(3) indicate that what must be taken into account is ‘any time’, not just the period of time. On an ordinary reading of the words used, ‘any time’ appears to be intended to refer to both the temporal duration and the occurrences or conditions of that custody – that is, including what occurred or the conditions experienced (at [22]). The flexibility inherent in the provisions confirms that this was Parliament’s intention (at [24]), and that interpretation is not inconsistent with the law as it has developed in relation to Intensive Correction Orders (at [25]-[26]), or the purposes of sentencing in s 3A (at [27]), or with the way quasi-custody has been taken into account (at [28]-[31]). Given that quasi-custody has been taken into account in a way which accounts for the fact that the conditions in quasi-custody are less onerous than full-time custody, then there does not seem to be any logical reason why conditions which are more onerous than normal should not be taken into account by backdating for more than the actual period spent in custody, in an appropriate case (at [31]).
Nevertheless, whilst backdating for longer than the offender has been in custody is a permissible approach where the conditions have been unusually onerous, that does not mean that it is an appropriate approach to take account of other factors, or that it is generally appropriate; each case will turn on its facts (at [38]).