Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Prowse v R [2017] NSWCCA 68 Hearing dates: 3 April 2017 Date of orders: 03 April 2017 Decision date: 03 April 2017 Before: Leeming JA at [1]; R A Hulme J at [2]; Beech-Jones J at [20] Decision: 1. Leave to appeal against sentence granted and appeal allowed. 2. The commencement date of the sentence imposed in the District Court on 26 August 2016 is quashed and in lieu the sentence is specified to commence on 8 May 2015. The non-parole period will expire on 7 February 2019 whereupon the applicant will become eligible for release on parole. Catchwords: CRIMINAL LAW – appeal against sentence – pre-sentence custody – preferable course to back date sentence – confusion as to how much pre-sentence custody referable to index offence – where primary judge erred by making broad but adverse assessment – conservative but more favourable assessment proposed by applicant accepted Legislation Cited: Crimes Act 1900 (NSW) s 93(G) Crimes (Sentencing Procedure) Act 1999 (NSW) s 24 Criminal Appeal Act 1912 (NSW) s 6(3) Cases Cited: Lehn v R [2016] NSWCCA 255 Wiggins v R [2010] NSWCCA 30 Category: Principal judgment Parties: Matthew Allan Prowse (Applicant) Regina (Respondent) Representation: Counsel: Ms J Paingakulam (Applicant) Ms M Cinque SC (Crown) Solicitors: Legal Aid NSW Solicitor for Public Prosecutions File Number(s): 2013/89248 Decision under appeal Court or tribunal: District Court Date of Decision: 26 August 2016 Before: English DCJ File Number(s): 2013/89248 Judgment 1. LEEMING JA: I agree with the reasons given by R A Hulme J and the orders his Honour proposes. 2. R A HULME J: Matthew Prowse ("the applicant") was sentenced in the District Court at Campbelltown by her Honour Judge English on 26 August 2016 for an offence of firing a firearm in a manner likely to injure a person. The offence is contrary to s 93G(1)(c) of the Crimes Act 1900 (NSW) and the maximum penalty is imprisonment for 10 years. The applicant was sentenced to imprisonment for 5 years with a non-parole period of 3 years and 9 months dating from 27 August 2015. 3. Leave is sought to appeal on a single ground which relates to the period of custody in which the applicant had been held prior to sentencing: The sentencing judge erred in setting the commencement date of the sentence. 1. Section 24 of the Crimes (Sentencing Procedure) Act 1999 (NSW) requires that "In sentencing an offender, the court must take into account … any time for which the offender has been held in custody in relation to the offence". 2. Section 47 authorises a court to back date a sentence and in deciding whether to do so "the court must take into account any time for which the offender has been held in custody in relation to the offence": s 47(3). 3. It has been said on many occasions by this Court that the preferred method of taking into account pre-sentence custody is by back dating the sentence (rather than, for example, reducing the term of the sentence): see the discussion about this in Wiggins v R [2010] NSWCCA 30 at [3]-[8] (Howie J). 4. The applicant was arrested and refused bail in respect of the index offence on 23 March 2013. He was released on bail on 25 June 2013 but in the time thereafter until he was sentenced on 26 August 2016 he spent various periods in custody referable to a variety of other matters as well as being again refused bail for the present matter. The total time in which he was in custody (regardless of the reason) was 23 months and 28 days. 5. A factor which complicated a calculation of how much pre-sentence custody was referrable to the present matter was a sentence imposed on 27 August 2014 in the Local Court for an offence of possessing an unregistered firearm. He received a sentence (upon call up for a breach of a community service order) of 12 months with a non-parole period of 9 months commencing 27 February 2014. He was immediately released on bail pending appeal. When he appeared before the District Court on 26 September 2014 his appeal was dismissed but the commencement date was adjusted to take into account the period he had been on bail pending the hearing of the appeal. Accordingly the sentence was specified to commence on 7 March 2014. 6. That matter provides a complication because the applicant was not actually in custody for most (6 months 10 days) of the period between 7 March and 26 September 2014. The judgments of the Local Court magistrate and the District Court judge were unavailable to the primary judge and they have not been provided to this Court. The best that can be said is that it can be assumed that some of the time the applicant had been in custody since his arrest for the index offence was counted in his favour when the sentence for the possess firearm offence was back dated. Supporting that assumption is the fact that between the applicant's arrest for the possess firearm offence on 17 August 2012 and his arrest for the index offence he had only spent about 2 months in custody. 7. The parties were agreed in the court below that the applicant had been in custody since the time of his arrest (23 March 2013) for a total period of 23 months and 22 days. This became 23 months 28 days by the date sentence was imposed. 8. Counsel for the applicant contended before her Honour that it was clear that 5 months should be deducted from the credit he should receive because of sentences served for other offences but it was "not so clear" that a further 6 months should be deducted in respect of the period from March to September 2014 when the non-parole period for the possess firearm sentence was running. 9. The Crown contended that there should be a deduction of 11 months from the 23 month 22 day period and the applicant should receive credit for the balance. 10. The judge concluded: "Doing the best I can I allow him a 12 month backdate". (ROS 10) 11. The applicant now contends that taking an approach least favourable to him he is entitled to credit of 15 months and 19 days. That period is calculated from the end of the non-parole period for the possess firearm sentence until the date of sentence for the index offence, minus a period of 2 months (16 April to 15 June 2016) when the applicant served a fixed term sentence for an offence of assaulting a law officer (presumably a correctional service officer). 12. The Crown takes issue with the applicant putting forward an argument in this Court that is a reformulation of that which was put in the court below. It also pointed out that the manner in which pre-sentence custody is taken into account is a matter for the discretion of the sentencing judge. 13. In my view, the sentencing judge was in error in adopting such a broad approach of selecting a period of 12 months by which to back date the sentence. It must be said, however, that she was not assisted by the submissions put to her. The conservative approach advocated by counsel for the applicant should be accepted. Despite the rather complicated custodial history, the 15 month 19 day period suggested is referrable, quite unequivocally, solely to custody for the present matter. 14. The applicant's submissions also included that if error was established the Court would find that "a different sentence is warranted in law and should have been passed: s 6(3) Criminal Appeal Act 1912 (NSW)". However, no submissions were made that the sentence should be any less than that which was imposed in the District Court. 15. The Court should regard the error as an arithmetical one that did not affect the exercise of the primary judge's discretion in the assessment of the sentence itself: see Lehn v R [2016] NSWCCA 255 at [72] (Bathurst CJ). In these circumstances, intervention should be confined to correction of the error. 16. I propose the following orders: 1. Leave to appeal against sentence granted and appeal allowed. 2. The commencement date of the sentence imposed in the District Court on 26 August 2016 is quashed and in lieu the sentence is specified to commence on 8 May 2015. The non-parole period will expire on 7 February 2019 whereupon the applicant will become eligible for release on parole. 1. BEECH-JONES J: I agree with R A Hulme J and the orders his Honour proposes. ********** 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: 11 April 2017