Mattiussi v R [2023] NSWCCA 289

Mattiussi v R [2023] NSWCCA 289 · Read the judgment on AustLII

Catchwords: Sentencing practice – backdating – calculations of time in custody

The Court of Criminal Appeal (‘CCA’) has criticised the over-complicated way that time in custody is often expressed in submissions, and suggested a simpler way to express the same information.

The applicant was sentenced in the District Court for a variety of sexual and domestic violence offences. He received a sentence of 7 years, 6 months, with an (oddly specific) non-parole period of 5 years, 3 months and 2 days. That sentence was to date from 9 March 2021. The commencement date is important to this summary because the principal ground of appeal was that the sentencing judge had failed to backdate the sentence to take into account a period during which the applicant would have otherwise been on parole.

The Court (R A Hulme AJ, with whom Adamson JA and Button J agreed) observed that the sentencing judge had been provided with inaccurate information as to the applicant’s pre-sentence custody. The ‘Crown Sentence Summary’ – a pro-forma which will be familiar to any practitioner who has ever done a sentence matter prosecuted by the NSW DPP – observed that the total time in custody was 2 years, 3 months, and 2 days, of which the time ‘solely referable to subject offending’ was 1 year, 1 month, and 4 days. For part of the time that the applicant had been in custody he had been serving an unrelated Local Court sentence.

The problem with the Crown’s original calculations was that the Local Court sentence had been shorter than three years; parole would have been automatic, if the appellant hadn’t been bail refused on the present matters. On the appeal, the Crown submitted that the time in custody was a total of 399 days, being the 1 year, 1 month and 4 days referred to above, but that included 125 days during which the applicant would have been on parole, if he hadn’t been bail refused on the present offences.

If you’re finding the dates and numbers of days bewildering, you are not alone: the Court specifically noted that submissions expressed as above (mirroring the submissions of the applicant) demonstrate the ‘terrible complexity’ that can be brought to the commencement date of a sentence when there are lengthy periods being calculated into, and from, a number of days. The Court observed that this unnecessarily complicates the computation of pre-sentence custody in all but straightforward cases (at [34]). The Crown’s practice of only providing pre-sentence custody information to the sentencing judge as a number of years, months, and days is awkward and unhelpful (at [70]). The only thing that matters is the date to which a sentence should be backdated. In some cases, it may be that a range of days should be considered, depending on totality. Where that arises, it is essential that it is brought to the judge’s attention. It would be far simpler for the Crown to advise that an offender has been in custody since a particular date, and that within that date has served a period of unrelated custody. Thus, in the present case, the judge could have been told that the sentence could be backdated to 15 May 2020 at the most, but at the least until 15 February 2021.

The practice of only telling a judge that there was a period of custody as a number of years months or days (or still worse, just a number of days which spans perhaps months or years) is unhelpful and should be avoided (at [71]-[73]).