R v Perrin [2022] NSWCCA 170
R v Perrin [2022] NSWCCA 170 · Read the judgment on AustLII
Catchwords: Local Court – Sentencing – s 58 – ‘existing sentence’
In this decision the Court of Criminal Appeal (‘CCA’) has determined that, for the purposes of the 5-year Local Court jurisdictional sentencing limit in s 58 of the Crimes (Sentencing Procedure) Act, the question of whether there is an ‘existing sentence’ is to be addressed as at the day on which sentence is being imposed (as distinct from the day when the new sentence is to commence).
While the offender was in custody serving about 14 months of fulltime custody, he was charged with a number of historical domestic violence offences occurring years earlier. The original sentences expired before he was finally sentenced for the domestic violence offences, but he remained in custody, no longer subject to a current sentence of imprisonment, but bail refused on the fresh domestic violence offences. For those domestic violence matters he eventually received a further Local Court sentence of 5 years, but with a commencement date which was before the expiry of the original sentences. The result was that, taking into account all the time he was in custody for both the original matters and the domestic violence matters, he would’ve been in custody for about 5 years and 11 months. He appealed that outcome to the District Court, which partially allowed his appeal, imposing a total effective sentence of 5 years with a non-parole period of 3 years. However, the District Court judge was then asked by the DPP to submit questions of law to the CCA for determination. The questions submitted asked whether s 58 of the Crimes (Sentencing Procedure) Act constrains the length of a Local Court sentence (or the District Court when it is considering an appeal) if the offender is not serving any sentence at the time of sentencing; and does s 58 limit the length of a sentence if the offender is not currently serving a sentence, but the fresh sentence is being accumulated on another, expired, sentence?
Readers may be aware that, at its core, the intention behind s 58 is to limit the Local Court to total effective sentences of 5 years or less. So, if an offender has an existing sentence of 4 years, then in principle it seems parliament’s intention was that the Local Court could only impose a further 1 year. Despite what might be thought to be a relatively straightforward concept, any person who has had the misfortune of reading s 58 will know that the drafting is convoluted. The big question, for present purposes, is to establish what it means to be subject to be an ‘existing sentence’; the definition of ‘existing sentence’ is in s 58(4).
As the Court (Wright J, with whom Ward P and Harrison J agreed), the section does not specify the date at which the ‘existing sentence’ must be existing. There are two obvious possibilities: the date on which the new sentence is to be imposed (i.e. the date of sentencing hearing); or the date on which the new sentence is to commence (at [45]). For reasons of language and construction, supported by case law and confirmed by reference to the Explanatory Memorandum for the original Bill, the Court held that the proper construction is that the question of whether a sentence is ‘existing’ or ‘unexpired’ for the purposes of s 58 is to be determined as at the date on which the offender is being sentenced (at [66]).
In practice, this means that if an offender is facing an additional Local Court matter (whether at first instance or on appeal to the District Court), the offender will be keen that the fresh sentence is imposed before the old sentence expires; that way the total term cannot exceed 5 years, regardless of when it is ordered to commence. Otherwise, in principle there is no reason why an offender could not serve 5 years’ imprisonment and, the day after that expires, the Local Court could impose a further 5 years.
The result is that, where an offender has committed a fresh offence whilst on parole, or where they are in custody and charged with pre-existing offences, practitioners will need to carefully consider the offender’s criminal record, and re-read s 58 (ideally, at a safe distance from sharp objects).