McMillan v R [2024] NSWCCA 83
McMillan v R [2024] NSWCCA 83 · Read the judgment on AustLII
Catchwords: Sentencing – pre-sentence custody
In the second part of this month’s duology on pre-sentence custody, the CCA closely examined the individual legislative provisions which require pre-sentence custody to be taken into account, both in sentencing an offender to custody, or in deciding to impose a less serious penalty. The Court also explicitly endorses Huynh, above.
After a jury trial, the applicant was sentenced in the District Court for robbery in company, contrary to Crimes Act 1900 (NSW) s 97(1). By the time of sentencing, he had served three distinct periods in custody: initially for the robbery alone, a second period referable to both the robbery and an unrelated offence (for which he was also bail refused), and a third only for the robbery. In other words, while he was bail refused for the robbery, he was charged with an unrelated offence, and that matter was dealt with to finality in the Local Court before he came to be sentenced for the robbery. The Magistrate had taken into account the time the applicant had spent in custody in deciding to impose a non-custodial sentence for the unrelated offence.
When he came to be sentenced for the robbery, the applicant’s representative at the District Court submitted, effectively, that all the time after the applicant was charged with the unrelated offence was referrable to both offences. This was, according to the Court, either incorrect or at least incomplete (at [21]). For the robbery he was sentenced to 6 years and 6 months with a non-parole period of 4 years. He appealed on grounds including that the sentencing judge had erred in his approach to pre-sentence custody.
The Court (McNaughton J, Garling and Weinstein JJ agreeing) noted that the Crown had conceded error. It is clear that the sentencing judge was led into error about what pre-sentence custody was solely referable to the instant offending. The sentence was affected by that error (at [89]). There are two provisions of the Sentencing Act dealing with pre-sentence custody: ss 24(a) and 47(3). Those two sections are often dealt with together when they are discussed in the authorities, but they are found in different parts of the Sentencing Act.
The part of the Sentencing Act which in which s 24(a) appears applies to ‘all penalties’, including non-custodial alternatives. Accordingly, if an offender has been held in custody in relation to any offence and a court is considering imposing a penalty, including a non-custodial option, the sentencing court must take into account any pre-sentence custody (at [93]-[94]). It can readily be seen that pre-sentence custody is a relevant factor to take into account in determining, if it is a borderline determination, whether a non-custodial penalty is appropriate (that is, whether the threshold in s 5 of the Sentencing Act is crossed) (at [95]). Read in context, the phrase ‘must take into account’ in s 24(a) must have a general meaning akin to, for instance ‘must consider’ or ‘must have regard to’, rather than any necessary arithmetical meaning (at [97]). Accordingly, when the magistrate was sentencing the applicant for the unrelated offending, they were entitled to take into account the pre-sentence custody in determining that three simultaneous 12-month Community Correction Orders were appropriate. A reading of the Local Court transcript indicates that the magistrate appeared to justify the otherwise more lenient sentence partly by reference to the pre-sentence custody (at [98]).
Unlike s 24(a), which applies to all offences, s 47 applies only to the imposition of custodial penalties (at [99]). Section 47(2)(a) provides that a court may direct that a sentence of imprisonment can commence on a day before it is imposed, and s 47(3) provides that in deciding whether or not to make such a direction under s 47(2)(a), the court must take into account any time for which the offender has been held in custody in relation to an offence to which the sentence relates (at [102]-[103]). Having (at [105]) endorsed various aspects of Huynh (see summary above), here the CCA had been provided, by the time of the appeal with the reasons of the magistrate.
In the present case, it is sufficiently clear that the magistrate took into account the 86 days of pre-sentence custody in deciding that the three CCO’s of 12 months rather than a longer CCO, or a more severe penalty, was warranted. Accordingly it would be inappropriate to take that period into account in sentencing for the present matter (at [107]).