Marai v R [2023] NSWCCA 224
Marai v R [2023] NSWCCA 224 · Read the judgment on AustLII
Catchwords: Sentencing – non-gaol custodial conditions – back-dating sentences
This case also grapples with the question of back-dating sentences of imprisonment. Here, the CCA has held that in appropriate circumstances it may be appropriate to give full credit for time spent in immigration detention, even if the offender was technically on bail at the time.
The applicant was sentenced in the District Court for using a carriage service to procure a person under 16 for sexual activity. He was sentenced to 3 years imprisonment, to be released onto recognizance after 1 year and 8 months. The sentencing judge backdated the sentence by 77 days to take account of pre-sentence custody. The applicant appealed on grounds asserting that the sentencing judge ought to have further backdated the sentence to take account of approximately seven months during which he was in immigration detention – albeit he was notionally on bail for the offence at the time of that detention.
The Court (Sweeney J, with whom Kirk JA agreed; Fagan J agreeing that the appeal should be allowed, but dissenting as to the extent of the adjustment) held that the period ought to have been taken into account.
Section 47(2) of the Sentencing Act provides courts with a general discretion to backdate the commencement date of sentences. Section 47(3) provides that in exercising that discretion, the court must take into account time served in custody which relates to the offence. But previous authority establishes that s 47(3) does not fetter the scope of the general discretion in s 47(2)(a) (at [62]). Sections 24(a) and 47(3) of the Sentencing Act use the term ‘any time for which the offender has been held in custody in relation to the offence’ (emphasis in original). The words ‘in relation to’ and ‘custody’ are not defined (at [63]). A review of decisions considering time in immigration sentencing (at [64]–[82]) shows that there has been a range of approaches by courts to taking immigration into account on sentence. Generally, although not always, the courts have required a nexus between the immigration detention and the offence; that is, they have approached the question in terms of the provisions in the Sentencing Act by asking whether the immigration detention was ‘in relation to’ the offence for sentence. Otherwise, relevant factors included fairness and transparency in the sentencing process, and construing the sentencing provisions broadly to achieve those aims (at [83]). Although ss 24(a) and 47(3) mandate that a sentencing court must take into account time spent in custody ‘in relation to’ the offence, the broader discretion in s 47(2) is not so circumscribed. A sentencing discretion should be exercised fairly and reasonably (at [84] – emphasis in original). For a variety of reasons not presently important (but mostly to do with the timing of administrative and other steps relating to the appellant’s immigration status), the majority considered that the whole of the time that he had been in immigration detention should be taken into account.
Practitioners will note that although immigration detention is by far the most common example of this, the general approach may be applicable in other areas as well. For example, defendants who have been taken from the scene of an offence to hospital for involuntary mental health treatment may not be charged until they are ready for discharge from hospital; in an appropriate case, a strong argument can be made that this was time ‘in relation to’ the offence. Similar arguments might be made in cases involving prolonged extradition proceedings.