Mandranis v R [2021] NSWCCA 97

Mandranis v R [2021] NSWCCA 97 · Read the judgment on AustLII

Catchwords: Sentencing – Intensive Correction Orders – backdating vs reducing the sentence

In this decision, the Court of Criminal Appeal (‘CCA’) has endorsed a practice of reducing, rather than backdating, sentences of imprisonment when there is pre-sentence custody and an Intensive Correction Order (‘ICO’) is ultimately imposed.

The applicant was a self-employed mechanic. In addition to offering the usual auto repair services on his premises, it appears he was also buying and selling drugs (GBL and ice) from his workshop. He pleaded guilty to one count of ongoing supply (involving 13 individual transactions) and one of operating drug premises. He was sentenced to imprisonment for 3 years, with a non-parole period of 2 years. In sentencing the applicant, the sentencing judge recorded that the offence had a maximum penalty of 20 years (which was correct) and a standard non-parole period of 5 years (which wasn’t). On the appeal, the Crown conceded the error; that meant that the CCA had to resentence the applicant.

The process of resentencing provided the Court (Simpson AJA, Garling J agreeing; N Adams J also agreeing, with some brief additional remarks) with an opportunity to discuss a couple of important topics around the subject of ICO sentencing procedures.

Part of the judgment is a recounting of the saga (dutifully reported in these pages) of inconsistent authorities discussing how to take into account s 66 of the Crimes (Sentencing Procedure) Act, which requires that community safety be the ‘paramount’ consideration’, in light of the other purposes of sentencing in s 3A of the same Act. The Court here considered that it was required to make a ‘somewhat invidious’ choice between ‘two powerfully reasoned and supported decisions’ of the CCA. It should be sufficient to record that here the Court considered that the preferable previous approach was stated in Casella v R [2019] NSWCCA 201 (at [48]-[49]) and that s 66 subordinates (but does not exclude) other considerations to community safety (at [50]). However, that is only at the point when consideration is being given of whether to make an ICO – the other purposes of sentencing will have already been taken into account when considering whether the only appropriate sentence is one of imprisonment (also at [50]).

What the Court had to grapple with next will be very common: the applicant had already served 8 months fulltime custody but the CCA wanted to impose an ICO. Sections 24(a) and 47(3) of the Crimes (Sentencing Procedure) Act oblige a sentencing court to take into account any period of pre-sentence custody. Normally that is done by backdating a sentence of imprisonment, but ss70 and 71 would preclude the making of an ICO in any such case (at 55]). An ICO commences on the day it is made; its commencement cannot be backdated (at [56]). This led the Court here to hold that the usual procedure in setting and imposing a sentence of imprisonment (as stated in Zamagias [2002] NSWCCA 17) must be moderated to meet changing circumstances (at [59).

Provided that the appropriate term of imprisonment is determined before consideration is given to an ICO, it would be acceptable for the term to be reduced by the amount of time that the offender has been in custody (at [61]). This would mean that the sentence actually recorded and imposed would be less than the sentence which had been found appropriate. That has the potential to distort sentencing statistics, but the remedy to that problem lies in the hands of the legislature (at [61]-[62]).

The Court observed that this might mean that more sentences could be available to be served by way of an ICO. For example, where an offender has served 12 months already and the appropriate sentence would otherwise be 4 years, the sentence might be reduced to 3 years by reason of the presentence custody. However, whether that is a legitimate exercise of the sentencing discretion did not arise in this case and therefore the Court explicitly declined to decide it (at [64]). On that topic, in the additional remarks of N Adams J, her Honour considered that it would be ‘a rare case’ in which an ICO could be considered for an aggregate sentence the starting point of which exceeds three years. Her Honour amplified the caution that such a decision may not represent a legitimate exercise of the sentencing discretion – but, again, her Honour explicitly declined to decide the question (at [67]).

Presumably it will not be long before that proposition is tested in the appellate courts.