Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Thomas, Brett David v R [2017] NSWCCA 273 Hearing dates: 14 November 2017 Date of orders: 23 November 2017 Decision date: 23 November 2017 Before: Meagher JA; Rothman J; Button J Decision: (1) Leave to appeal granted. (2) Appeal allowed in part. (3) Sentence imposed by the District Court on Brett Thomas on 16 December 2015 be quashed and in lieu thereof the following sentence be imposed. (a) Brett David Thomas is sentenced to an aggregate sentence for both counts 1 and 2 of a non-parole period of 3 years and 6 months, commencing 20 September 2014 and concluding 19 March 2018 and a remainder of term of a further 1 year and 6 months concluding 19 September 2019. (b) Brett David Thomas is first eligible to be released to parole on 19 March 2018. Catchwords: CRIME – sentencing – offences of detain for advantage – where sentencing judge did not backdate the sentence sufficiently to account for prison time served solely in relation to the offences for which applicant was sentenced – whether sentence should be quashed and new sentence imposed to account for that time – parties in agreement as to orders to be made. Legislation Cited: Crimes Act 1900, s 86(1)(b) Crimes (Sentencing Procedure) Act 1999, s 43 Criminal Appeal Act 1912, s 6 Cases Cited: Achurch v The Queen (2014) 253 CLR 141; [2014] HCA 10 R v Fuller (No 2) [2017] NSWSC 1351 Category: Principal judgment Parties: Brett David Thomas (Applicant) Regina (Respondent Crown) Representation: Counsel: S Healy (Applicant) S Dowling SC (Respondent Crown) Solicitors: Legal Aid NSW (Applicant) Office of the Director of Public Prosecutions (Respondent Crown) File Number(s): 2014/214903 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 16 December 2015 Before: Tupman DCJ File Number(s): 2014/214903 JUDGMENT 1. THE COURT: The applicant, Brett Thomas, seeks leave to appeal and, if leave be granted, appeals the sentence imposed upon him in the District Court on 16 December 2015. The sentence was imposed and the remarks on sentence were provided ex tempore. 2. Some five months after sentence was imposed, the applicant sought to reopen the matter before the sentencing judge and, it seems, the application did not come to the attention of her Honour until later in the year at which time the new associate to her Honour informed the parties that her Honour had refused the application to reopen. 3. The issue in contention is the commencement date of the sentence. Her Honour did not backdate the sentence sufficiently to account for all of the days on which the applicant had served time in prison solely for the offences for which he was sentenced. The period in issue is 17 days. 4. The Crown concedes that the commencement date of the sentence should be 17 days earlier. The current sentence commenced on 6 October 2014 and the position, agreed between the applicant and respondent, is that the sentence should commence on 20 September 2014. 5. At the hearing of this appeal on 14 November 2017, the Court announced that it would make orders to give effect to that consensus and reserved its reasons for doing so. These are those reasons. 6. The applicant's offences were committed during the evening of 19 July 2014. He pleaded guilty at the Local Court, not at the earliest possible opportunity, but was given a discount of between 15 and 20%. Her Honour set indicative sentences of 4 years, and a non-parole period of 3 years, for each offence of detain for advantage contrary to s 86(1)(b) of the Crimes Act 1900, the maximum penalty for which is 14 years imprisonment. Her Honour imposed an aggregate sentence of 5 years imprisonment with a non-parole period of 3 years and 6 months. 7. The offences are particularly serious. The applicant detained two young women for advantage (his personal gratification), threatening them with a knife. It was not part of the Crown case that the advantage was a threat of sexual assault. Nevertheless, the assault and threat with knives is a very serious issue, which was the view of the sentencing judge. 8. In the course of sentencing the applicant, the sentencing judge took the view that there should be some degree of concurrency and some degree of accumulation with a sentence being served for the breach of an Apprehended Domestic Violence Order ("ADVO"). 9. Her Honour's remarks on sentence expressed the view that the aggregate sentence should commence two months into the sentence then being served for the breach of the ADVO. It seems that her Honour miscalculated the starting date of that order, as a result of the ADVO sentence not commencing on the day the applicant went into custody. 10. The applicant sought to reopen the matter before her Honour, presumably in order to save the costs of an appeal. Her Honour refused that application, but did so at a time that was some significant period after the sentence had been imposed. The application was for the reopening of the sentence proceedings. 11. The foregoing is not a criticism of her Honour. On the contrary, there is some significant issue about the capacity of the District Court to utilise the "slip rule", which was the application before her Honour. Moreover, the sentence imposed was not "contrary to law" and her Honour did not have the capacity to utilise the provisions of s 43 of the Crimes (Sentencing Procedure) Act 1999 (NSW): see Achurch v The Queen (2014) 253 CLR 141; [2014] HCA 10; R v Fuller (No 2) [2017] NSWSC 1351. 12. Given the limited nature of the appeal and the grounds for the appeal, it is unnecessary for the Court to resentence. No party suggests that the sentence imposed is, in terms of its duration, inappropriate, nor that the judge has, other than in relation to the commencement date of the sentence, committed any error of law or fact. Nor does any party suggest that a less severe sentence is warranted. 13. In those circumstances, the Court, in accordance with the express agreement of the parties, confirms the indicative sentences, including taking into account the offence on the Form 1 in the first of the offences, the level of discount for the plea of guilty and confirms the length of the head sentence imposed and the length of the non-parole period. No lesser sentence is warranted. 14. Given the consensus between the parties that leave should be granted and the appeal allowed, the Court announced, on 14 November 2017, that it would make orders to that effect and asked the parties to provide a draft form of those orders. 15. The draft orders provided on 14 November 2017 were in the following terms: "(1) Grant leave to appeal. (2) Allow the appeal to the extent of: (a) Confirming the aggregate sentence of 5 years imprisonment with a non-parole period of 3 years, 6 months. (b) Confirming each indicative sentence as being 4 years imprisonment. (c) Varying the commencement date such that the aggregate sentence commences on 20 September 2014. (3) Note that the earliest date that the appellant is eligible to be released to parole is 19 March 2018, and sentence will expire on 19 September 2019." 1. Section 6(3) of the Criminal Appeal Act 1912 requires, in the event that a sentencing appeal is successful, and the court is satisfied that some other sentence should have been passed, that the existing sentence be quashed (as distinct from varied) and such other sentence be passed in substitution therefor. The draft orders do not so provide. 2. For these reasons, the Court makes the following orders: 1. Leave to appeal granted. 2. Appeal allowed in part. 3. Sentence imposed by the District Court on Brett Thomas on 16 December 2015 be quashed and in lieu thereof the following sentence be imposed. 1. Brett David Thomas is sentenced to an aggregate sentence for both counts 1 and 2 of a non-parole period of 3 years and 6 months, commencing 20 September 2014 and concluding 19 March 2018 and a remainder of term of a further 1 year and 6 months concluding 19 September 2019. 2. Brett David Thomas is first eligible to be released to parole on 19 March 2018. ********** 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: 23 November 2017