New South Wales Court of Criminal Appeal CITATION: Brendan White v R [2009] NSWCCA 118 HEARING DATE(S): 21 April 2009 JUDGMENT DATE: 23 April 2009 JUDGMENT OF: Grove J at 1; Howie J at 2; RA Hulme J at 3 DECISION: Leave to appeal granted. Appeal dismissed. CATCHWORDS: CRIMINAL LAW - sentence - relevant factors - suspended sentence - time spent in custody LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 R v Deeble, unreported, CCA, 19 September 1991 CASES CITED : R v Leete [2001] NSWCCA 337; (2001) 125 A Crim R 37 R v McHugh (1985) 1 NSWLR 588 R v Newman, R v Simpson [2004] NSWCCA 102; (2004) 145 A Crim R 361 PARTIES: Brendan WHITE Regina FILE NUMBER(S): CCA 2006/10353 COUNSEL: Ms A Francis - Appellant Ms J Dwyer - Crown SOLICITORS: S O'Connor (Legal Aid Commission) S Kavanagh (Solicitor for Public Prosecutions) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 06/31/0431 LOWER COURT JUDICIAL OFFICER: Hock J LOWER COURT DATE OF DECISION: 25 September 2008 IN THE COURT OF CRIMINAL APPEAL 2006/10353 GROVE J HOWIE J RA HULME J THURSDAY 23 APRIL 2009 Brendan Bradley WHITE v REGINA Judgment 1 GROVE J: I agree with the reasons expressed by R A Hulme J for the orders made by the Court on 21 April in which I joined. 2 HOWIE J: For the reasons given by R A Hulme J, I join in the order made by the Court dismissing the appeal. 3 RA HULME J: At the conclusion of the hearing of this matter the Court made orders granting leave to appeal but dismissing the appeal. These are my reasons for joining in those orders. 4 The applicant, Brendan Bradley White, sought leave to appeal against the severity of the sentence imposed upon him for an offence of affray. 5 He was sentenced by her Honour Judge English on 23 July 2007 to imprisonment for 18 months with execution of the sentence being suspended upon him entering into a bond to be of good behaviour pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999. One of the matters that it was submitted that Judge English should take into account was a period of 9 weeks of pre-sentence custody. 6 The applicant breached the bond by failing to submit to the supervision of the Probation and Parole Service. He admitted the breach when he was called up before her Honour Judge Hock. On 25 September 2008 Judge Hock revoked the bond. By virtue of the provisions of s 98(1)(c)(i) the effect of that revocation was that the order of Judge English suspending the execution of the sentence ceased to have effect. S 98(1)(c)(ii) stipulates: "Part 4 applies to the sentence, as if the sentence were being imposed by the court following revocation of the good behaviour bond, and section 24 applies in relation to the setting of a non-parole period under that Part." 7 This meant that Judge Hock was required to set a non-parole period (s 44) or give reasons for not setting a non-parole period (s 45). She was also required to specify the date of commencement of the sentence (s 47). In setting the non-parole period she was required to take into account any time for which the applicant had been held in custody in relation to the offence, the fact that the applicant had been the subject of a good behaviour bond, and anything done in compliance with his obligations under the bond (s 24). In relation to s 47 it should be noted that in deciding upon the date of commencement of the sentence a court "must take into account any time for which the offender has been held in custody in relation to the offence to which the sentence relates". So, if there is some period of pre-sentence custody, there are two ways in which it can be taken into account, either in determining the length of the non-parole period or in backdating the commencement of the sentence. 8 Judge Hock set a not parole period of 9 months, finding special circumstances on the basis that the applicant "would benefit from a longer period on parole". She specified the date of commencement of the sentence as 25 September 2008, the date of revocation. The applicant will be released on parole on the expiration of the non-parole period on 24 June 2009. 9 Two grounds of appeal were proposed if leave were to be granted. 1. Judge English erred by failing to demonstrably take into account the pre-sentence custody when imposing the term of the suspended sentence. 2. Judge Hock erred by failing to backdate the sentence after revoking the bond to take into account pre-sentence custody. 10 The two grounds involve consideration of the same issue, whether Judge English took into account the pre-sentence custody. This is because Judge Hock proceeded on the assumption that Judge English had done so. If Judge English did not, it is contended that one or the other of the judges was in error and it does not matter whom. 11 The desirable practice in allowing an offender credit for pre-sentence custody is to backdate the sentence but in some circumstances that is either inappropriate or impossible: see, for example, R v McHugh (1985) 1 NSWLR 588 at 590-591; R v Deeble, unreported, Court of Criminal Appeal 19 September 1991; and R v Newman; R v Simpson [2004] NSWCCA 102; (2004) 145 A Crim R 361 at [21] – [33]. 12 There are a number of situations in which it would, or might, be inappropriate to adopt the preferable backdating approach. There is the example referred to in R v Deeble, supra, of a sentencer preferring to discount rather than backdate a sentence to three years or less so as to make the offender's release on parole on the expiration of the non-parole period an entitlement rather than an eligibility: see, similarly, R v Leete [2001] NSWCCA 337; (2001) 125 A Crim R 37 at [29]. Alternatives to imprisonment and alternatives to full-time imprisonment are inapt for backdating and there is a statutory bar in the case of periodic detention (s 70). 13 It was submitted on the applicant's behalf that in the remarks on sentence of English DCJ there is no clear statement that she took the pre-sentence custody into account by reducing the term of the sentence and that there is nothing that she said that would support an inference that this was what she did. It was then submitted that Hock DCJ was in error in assuming that English DCJ had taken the prior custody into account. 14 In the proceedings on sentence before English DCJ the Crown Prosecutor included reference to the pre-sentence custody in her opening outline of the case. She correctly informed the judge that the applicant had been refused bail upon arrest on 13 December 2005 and had remained in custody until released on bail on 14 February 2006. The applicant gave evidence in the proceedings in which he made mention of his experience in custody. He told her Honour of how he had been placed in a "special cell" for "a couple of days" because of concern that he might self-harm. He described being in this special cell as a worse experience than being in the cell he had previously occupied. During the course of submissions there was an exchange between the applicant's counsel and her Honour in which she sought confirmation of the period in which the applicant had been in custody. Counsel then continued by submitting: "When one has regard to the importance of that two month period, in my respectful submission, a sentencing court when considering the actions of Brendan would not be contemplating a sentence anything near a period of two years imprisonment. The reason I raise that your Honour is so that I might raise for the benefit of s 12, because were a court to consider the period of imprisonment which might be otherwise imposed for this offence, taking into account the two months and the circumstances in which that two months were apparently served, then the court would say to itself a sentence of less than two years imprisonment is appropriate. The court would then inquire, is it reasonable in the circumstances of this offender to suspend the imposition of this full time sentence" A little later he added: "(Y)our Honour would be well within your Honour's discretion to consider that in the circumstances of this young man's case any sentence of imprisonment which might be imposed, taking into account that earlier period, ought be suspended" 15 These extracts from counsel's submissions make it clear in my view that he was imploring the learned judge to have regard to the pre-sentence custody by imposing a sentence of less than two years and suspending its execution. 16 On the topic of pre-sentence custody her Honour said in her remarks: "The imposition of a custodial sentence is appropriate, but I find to impose a sentence which is to be served either by way of fulltime custody or periodic detention would be to cause him grave physical harm. He is a vulnerable young man who needs considerable assistance. That can best be afforded to him outside the prison system. He will, of course, be at risk if he breaches the conditions of his liberty and that should act as a sufficient warning to him. He did spend two months in custody and no doubt received a short, sharp shock as a result. Some of that time was spent in segregation due to concerns for self harm". 17 The conclusion is inescapable, it seems to me, that the issue of pre-sentence custody was very clearly in her Honour's mind and she gave the applicant credit for it by acceding to the submission that had been made by counsel on his behalf. Counsel invited her Honour to give effect to the pre-sentence custody by imposing a sentence of less than 2 years duration and by suspending it. This is precisely what her Honour did. 18 Ms Francis, who appeared for the applicant in this Court but not the court below, submitted that the authorities on the subject of pre-sentence custody require that it be "demonstrably taken into account" and that there is no clear indication in the remarks on sentence of English DCJ that she had done so. One matter emphasised in the submissions was the lack of identification in her Honour's remarks of a "starting point". I would not so parse and analyse her Honour's words. A submission was made to her that she should do something that she obviously accepted and gave effect to. 19 There is no merit in the contention that her Honour did not take into account the pre-sentence custody. It follows that her Honour Judge Hock was correct to proceed on the assumption that Judge English had done so. 20 For these reasons I joined in the orders of the Court. 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