Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: R v Jagurdzia [2014] NSWCCA 3 Hearing dates: 5 February 2014 Decision date: 07 February 2014 Before: Simpson J, Hall J, Schmidt J Decision: 1. The Crown's appeal is upheld. It is noted the respondent's appeal has been withdrawn. 2. The sentence is quashed. 3. The matter is remitted to the District Court for re-sentence. Catchwords: CRIMINAL LAW - Crown appeal - sentence imposed contrary to law - non-parole period - released to parole without serving minimum period in custody - appeal allowed - matter referred to District Court for re-sentence Legislation Cited: Criminal Appeal Act 1912 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Cases Cited: Hili v R [2010] HCA 45; (2010) 242 CLR 520 Muldrock v R [2011] HCA 39; (2011) 244 CLR 120 O'Neil-Shaw v The Queen [2010] NSWCCA 42 Power v R [1974] HCA 26; (1974) 131 CLR 623 Regina v Pamplin [2001] NSWCCA 327 Category: Principal judgment Parties: Regina Elmir Jagurdzia Representation: Counsel: Ms J Girdham SC (Crown) Mr D Woodbury (Respondent) Solicitors: S Kavanagh - Solicitor for Public Prosecutions (Crown) J Taylor (Respondent) File Number(s): 2012/36554 Publication restriction: None Decision under appeal Date of Decision: 2013-09-12 00:00:00 Before: Craigie DCJ File Number(s): 2012/365554 Judgment OF THE COURT 1On 12 September 2013, Craigie DCJ sentenced Elmir Jagurzdia to 2 years, 5 months and 21 days imprisonment, fixing a non-parole period of 1 year, 7 months and 9 days, for an offence of robbery in company committed on 22 January 2012, with a balance of term of 10 months and 12 days, commencing on 12 September 2013, the day of sentencing. 2The offence carried a maximum penalty of 20 years imprisonment. The respondent entered a plea on the day after the expected trial date, with the result that a discount of 10% was allowed by the sentencing judge for his plea. His Honour found that the respondent's offence, which involved the theft of a skateboard from his 13 year old victim, fell into the low range. This was not in issue between the parties on appeal. 3The sentence imposed was fixed to commence on 3 February 2012, his Honour observing that he intended that the respondent be released to parole immediately. Shortly after the sentence was imposed the Crown drew to his Honour's attention that he had sentenced on the basis of inaccurate information as to the period during which the respondent had been held in custody prior to sentencing. The respondent had not spent 1 year, 7 months in custody, as his Honour had understood, but only in total some 207 days, of which only some 28 days were referable to this offence. 4It was common ground that his Honour had the discretion to reconsider the sentence. Having heard the parties his Honour said that he was minded to proceed on the basis that the respondent had been held in custody for this and other matters, for which he had not been and may never be convicted, and invited further submissions. The Crown submitted that the starting date for the sentence should be adjusted to reflect the shorter time that the respondent had spent in custody prior to sentencing. His Honour then vacated the earlier orders he had made and adjourned. On resumption his Honour announced that he considered that the respondent had 'served the time he should' and that the adjustment sought by the Crown would not see the respondent released until April 2014, which he regarded as quite excessive, given the nature of the offence. 5The orders his Honour had initially made were reinstated, with the result that the respondent was released to parole, having served only some 207 days in custody, most of which was referable to another offence, not the 1 year, 7 months and 9 days which his Honour had earlier understood the respondent had spent in custody referable to the subject offence which was encompassed in the non-parole period he had imposed. 6The respondent nevertheless remained in custody, because he was then bail refused in relation to an offence of wound with intent to cause grievous bodily harm. The trial on that charge commenced on 30 September 2013. It was adjourned and the next day the respondent pleaded guilty to an offence of reckless wounding in company. He remains in custody and is due to be sentenced for that offence by Tupman DCJ in the District Court on 10 February 2014. 7On 20 September 2013, the Crown brought an appeal under s 5D of the Criminal Appeal Act 1912 (NSW) on the ground that the sentence pronounced was manifestly inadequate. By consent a second ground was added at the hearing that the sentence imposed was contrary to law. 8On 20 December, the respondent sought leave to appeal the sentence on three grounds. Firstly, that the miscalculation of the time he had spent in custody had led the sentencing judge to impose a longer period of imprisonment than he had intended. Secondly, that his Honour had erred in failing to give proper or adequate consideration to whether the appropriate sentence was a non custodial sentence, as s 5(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) required. Thirdly, that the sentence had given rise to a justifiable sense of grievance, given the sentence which had been imposed on his co-offender. 9It was common ground at the hearing that the sentencing judge had fallen into error, that the Crown appeal should be upheld and the matter remitted to the District Court for re-sentence, where it could be dealt with by Tupman DCJ, who is to sentence the respondent for the outstanding wounding charge on 10 February 2014. Sentencing for that offence will require the resolution of questions of totality arising from this offence. 10It was in those circumstances and on that basis that the respondent withdrew his application for leave to appeal, the Crown accepting that thereby he did not abandon his case that the sentencing judge had erred, with the result that too heavy a sentence had been imposed upon him for this offence. That is the case which he will press in the District Court on re-sentence. 11Ordinarily, if a sentence is quashed by this Court on appeal, it must pass another sentence in substitution on the offender (see s 6(1) of the Criminal Appeal Act). Power to remit the matter to the District Court for re-sentencing, after a sentence is quashed by this Court is, however, granted by s 12(2) of that Act (see Regina v Pamplin [2001] NSWCCA 327 and O'Neil-Shaw v The Queen [2010] NSWCCA 42). 12The parties' common view as to the errors into which his Honour fell, so that the Crown appeal must be upheld and that in the circumstances which have arisen, the re-sentence should be undertaken in the District Court must be accepted. 13The approach which his Honour adopted failed to adhere to settled principle. The Crimes (Sentencing Procedure) Act and the authorities which bind sentencing judges do not permit a sentence to be structured so as to ensure that an offender is released from custody on the date of sentencing, without the offender having first served in custody the minimum period which it is determined justice requires be served for that offence. 14Section 44 of the Crimes (Sentencing Procedure) Act requires that a non-parole period be set and that the balance of the term of the sentence imposed must not exceed one-third of the non-parole period, unless the there are special circumstances for it being more. Section 47 permits a Court to direct that a sentence commence on a date prior to sentencing and requires when a commencement date is fixed, that any time for which the offender has been held in custody in relation to the offence be taken into account. 15A non-parole period, that is, the minimum period for which the offender must be kept in detention in relation to the offence, must be fixed having regard to all the purposes of sentencing, the objective seriousness of the offence and the offender's subjective circumstances (see Power v R [1974] HCA 26; (1974) 131 CLR 623 at 628-629 and Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 at [40]). It must reflect the minimum period which justice requires that the offender serve in custody (see Muldrock v R [2011] HCA 39; (2011) 244 CLR 120 at [57].) 16Here his Honour fixed a non-parole period of 1 year, 7 months, setting a commencement date which resulted in the respondent's release to parole on sentencing. That was the minimum time under the sentence that the District Court imposed that the respondent ought to have been kept in custody in relation to the offence. As the result of his Honour's approach in fact he was released to parole having been kept in custody for this offence for only some 28 days and in total for this and other offences for only 207 days. In so approaching the sentencing exercise his Honour plainly erred, with the result that the Crown appeal must be upheld and the respondent re-sentenced. Orders 1. The Crown's appeal is upheld. It is noted the respondent's appeal has been withdrawn. 2. The sentence is quashed. 3. The matter is remitted to the District Court for re-sentence. ********** Amendments 10 February 2014 - additional note added to order 1 Amended paragraphs: Orders DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 February 2014