Reddy v R [2018] NSWCCA 212

Reddy v R [2018] NSWCCA 212 · Read the judgment on AustLII

Catchwords: Quasi custody – residential rehabilitation – voluntary vs involuntary participation

In this case the Court of Criminal Appeal (‘CCA’) has confirmed that it is not a precondition of giving a defendant credit for time in residential rehabilitation that they were compelled to be there. The real question is whether they did in fact subject themselves to the restrictions of the course.

The applicant was the driver in a car which rear-ended another car at between 110 and 120km/h. The other car’s driver was very seriously hurt, with a spinal injury, four fractured ribs and a collapsed lung, cuts and bruises. Before the accident, witnesses saw the applicant weaving in and out of lanes, driving on the breakdown and exit lanes, as well as wandering within the lane causing other drivers to take evasive action. The applicant was seriously drunk: he returned a blood alcohol reading of 0.270 some time after the collision. That said, apart from his drinking his subjective case was described as ‘compelling’. Importantly for present purposes, he voluntarily participated in two residential rehabilitation programs. He was sentenced to imprisonment for 3 years and 5 months, with a non-parole period of 2 years, commencing on the day of sentence. No submission had been made at first instance that the sentence should be backdated to take account for the period of quasi-custody he had spent in residential rehabilitation. This, along with the asserted manifest excess of the sentence, was the basis of his appeal.

The Court (Campbell J; Bathurst CJ and Fullerton J agreeing) allowed the appeal. It observed that authorities had long recognised that it was possible to reduce or backdate sentences to take account of an offender’s participation in pre-sentence residential rehabilitation programs (at [31]). It makes no difference that participation was voluntary, rather than by compulsion of court order; although that was a reason in one case for not reducing the sentence in a previous decision, it is not a condition of a sentencing court taking quasi-custody into account that it should have been under legal compulsion (at [33]). Later, in the course of considering separately whether the sentence imposed was manifestly excessive, the Court also suggested that what matters more is not whether the participation was voluntary or compelled, but rather whether the applicant did in fact subject himself to the restrictions of the course (at [45]). Ultimately the Court held that the length of the original sentence was appropriate, but proposed to backdate the sentence by allowing for 50 per cent of the period spend in quasi custody (at [47]), that percentage rate of recognition having been endorsed in previous authorities (at [46] – though note that the Court did not make reference to other authorities which have purported to endorse other rates of recognition).