Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Hamilton v R [2016] NSWCCA 59 Hearing dates: 20 April 2016 Decision date: 20 April 2016 Before: Hoeben CJ at CL at [1] Harrison J at [2] Schmidt J at [3] Decision: (1) Leave to appeal is granted. (2) The appeal is upheld. (3) The sentence is quashed. (4) The appellant is resentenced to a total term of 34 months imprisonment commencing on 21 October 2014, with a non parole period of 18 months expiring on 20 April 2016 and a balance of term of 16 months expiring on 20 August 2017. (5) Under s 50(1) of the Crimes (Sentencing Procedure) Act the applicant be released on parole at the expiry of the non-parole period on 20 April 2016. (6) The applicant's parole be supervised and that he comply with all reasonable directions of the Department of Corrective Services relating to his ongoing treatment and counselling for substance abuse. Catchwords: CRIMINAL LAW – appeal against sentence – whether sentencing judge erred in not backdating or otherwise taking into account applicant's pre-trial custody – whether sentence imposed in respect of the s 112(2) offence resulted in miscarriage of justice – appeal upheld – sentence quashed – resentenced Legislation Cited: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Appeal Act 1912 (NSW) Cases Cited: Hampton v R [2014] NSWCCA 131; (2014) 243 A Crim R 193 Kaminic v R [2014] NSWCCA 116 Kentwell v R (2014) 252 CLR 601 Khoury v R [2011] NSWCCA 118; (2011) 209 A Crim R 509 Markarian v R [2005] HCA 25; (2006) 228 CLR 357 R v Birks (1990) 19 NSWLR 677 R v Newman & Simpson [2005] NSWCCA 102; (2004) 145 A Crim R 361 Category: Principal judgment Parties: Barry Keith Hamilton (Applicant) Regina (Respondent) Representation: Counsel: Ms K Shead and Ms B Baker (Applicant) Mr H Baker (Respondent) Solicitors: Legal Aid (NSW) (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2014/125475 Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 06 February 2015 Before: Lerve DCJ File Number(s): 2014/125475 EX TEMPORE Judgment 1. HOEBEN CJ at CL: I agree with Schmidt J. 2. HARRISON J: I agree with Schmidt J. 3. SCHMIDT J: In February 2015 Lerve DCJ sentenced Barry Hamilton, then aged 20 years, for an offence under s 112(2) of the Crimes Act 1900 (NSW), of aggravated break, enter and commit serious indictable offence whilst in company, which he had committed in April 2014. The offence involved smashing a window to enter a house at Coonamble, where $700 was stolen. The maximum penalty for the offence was 20 years imprisonment, with a standard non-parole period of 5 years. He was sentenced to a non-parole period of 18 months commencing from the date of sentence, due to expire on 5 August 2016, with a further term of 16 months, due to expire on 5 December 2017. 4. The applicant seeks leave to appeal against that sentence on two grounds: "Ground 1: The sentencing judge erred in not backdating or otherwise taking into account the applicant's pre-trial custody. Ground 2: The sentence imposed in respect of the s. 112(2) offence is infected by error, and that this error has resulted in a miscarriage of justice which should be rectified by this Court." 1. Both grounds of appeal can be dealt with together, the Crown conceding that the appeal should be upheld and the applicant resentenced. 2. An affidavit of Mr Thomson, a solicitor employed by the NSW Office of the Director of Public Prosecutions was received on appeal and sentence. 3. The applicant was granted bail in respect of this offence after he was charged on 27 April 2014. He came before the Coonamble Local Court on 20 May, when bail was continued. On 29 September, however, he was arrested and bail refused on an unrelated aggravated robbery offence under s 95 of the Crimes Act. On 21 October he entered a plea to the s 112 offence in the Local Court and was then committed for sentence before the District Court in Dubbo and was also refused bail for that offence. 4. On sentence in February 2015 the applicant had thus spent over 3 months in custody, bail refused, for this offence. 5. In written submissions on sentence it was contended for the applicant that his presentencing custody should be taken into account from 29 September 2014. That submission was inaccurate, because he was not then in custody in respect of this offence. This was raised in oral submissions before Lerve DCJ and the matter was stood down so that the parties could consider the applicant's custodial history. 6. On resumption it was announced by the applicant's solicitor that it had been agreed that the sentence should commence from that day. After his Honour raised his concern as to the operation of the principle of totality, given the s 95 offence which was being dealt with in the Local Court, it was submitted that the commencement date was in the Court's discretion, but that totality did not arise, because he had not yet been sentenced for the other offence. 7. In his sentencing remarks, after referring to the agreed commencement date, Lerve DCJ ordered that the sentence commence from that day, 6 February 2015. 8. The applicant now claims that this approach involved relevant error, given that he had been bail refused for this offence on 21 October and that he should, accordingly, be resentenced. That claim is advanced in circumstances where, it is common ground, in August 2015 the Director of Public Prosecutions no billed the s 95 charge, for which he then still remained bail refused. 9. The applicant's case was that the concession as to the start date of his sentence, 2 February involved a legal error, given the requirements of s 24(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW). The usual and preferable course is that presentence custody is taken into account in a sentencing exercise such as this, for the reasons discussed in R v Newman & Simpson [2005] NSWCCA 102; (2004) 145 A Crim R 361 at [26] – [31]. The case which had been advanced for the appellant on sentencing was thus submitted to have involved error and that it was a mistake which had resulted in a miscarriage of justice, which should now be rectified. 10. The requirements of s 24 and s 47(2)(a), which require presentence custody to be considered and which permit a court to direct that a term of imprisonment commence on a day before the day on which a sentence is imposed, do not mean that offenders accrue "credit in the bank" for time spent in custody for matters not referable to those for which they are being sentenced, such as the time that the applicant spent in custody for the s 95 offence (see Hampton v R [2014] NSWCCA 131; (2014) 243 A Crim R 193 at [26] - [39]). In Kaminic v R [2014] NSWCCA 116 it was also observed that s 24 does not impose a mandatory requirement that sentences be backdated in every case where presentence custody has been served, although reasons for not doing so should be clearly stated. Here Lerve DCJ provided such reasons, namely, the parties' agreement. 11. Ordinarily a party is bound by the way a case is presented at first instance, but that rule is not absolute, as the Crown accepted, it having to bend to what the interests of justice require in a particular case (see R v Birks (1990) 19 NSWLR 677 at 683 and 685 and Khoury v R [2011] NSWCCA 118; (2011) 209 A Crim R 509 at [104] - [105]). 12. Here it could clearly not be known to the parties or to the sentencing judge, that the s 95 charge would later be no billed, but the Crown properly conceded that in the applicant's circumstances on sentencing, the starting date for the sentence imposed for this offence should, as a matter of justice, have been 21 October 2014, not 6 February 2015. 13. The Court's powers on appeal are those given by s 6(3) of the Criminal Appeal Act 1912 (NSW) which requires: "6(3) ... the court, if it is of the opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal." 1. As discussed in Khoury v R at [110] "evidence of events or circumstances or facts that have arisen entirely since sentencing generally cannot be taken into account on appeal, no matter how compelling they may be". However, error having been established and the Crown accepting that some other sentence is warranted, the Court must itself exercise the sentencing discretion as discussed in Kentwell v R (2014) 252 CLR 601 at [42]). 2. In all of those circumstances, in resentencing the applicant it is appropriate to take into account not only that the applicant was bail refused in relation to this offence, from 21 October 2014, but also that the s 95 offence, in respect of which he was bail refused from 29 September, was later no billed. Those circumstances compel the acceptance of the parties' common ground that this sentence should start from the date on which the applicant was refused bail in respect of this offence, 21 October 2014. 3. Otherwise I consider that no lesser sentence than that imposed on the appellant is warranted, namely, a sentence comprising a non parole period of 18 months and a further term of 16 months. That sentence properly reflects the evidence as to the nature and seriousness of the applicant's offence, the objective and subjective matters and other relevant factors discussed by Lerve DCJ, considered by way of the instinctive synthesis discussed in Markarian v R [2005] HCA 25; (2006) 228 CLR 357, about which there was no other dispute between the parties. 4. In the result the applicant must be resentenced to a total term of imprisonment of 34 months. The earliest date of his release will be 20 April 2016, after service of a non-parole period of 18 months, commencing 21 October 2014. The balance of his term will expire on 20 August 2017. Orders 1. Accordingly, I would order: 1. Leave to appeal is granted. 2. The appeal is upheld. 3. The sentence is quashed. 4. The appellant is resentenced to a total term of 34 months imprisonment commencing on 21 October 2014, with a non-parole period of 18 months expiring on 20 April 2016 and a balance of term of 16 months expiring on 20 August 2017. 5. Under s 50(1) of the Crimes (Sentencing Procedure) Act the applicant be released on parole at the expiry of the non-parole period on 20 April 2016. 6. The applicant's parole be supervised and that he comply with all reasonable directions of the Department of Corrective Services relating to his ongoing treatment and counselling for substance abuse. ********** 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: 20 April 2016