Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Houcher v R [2018] NSWCCA 96 Hearing dates: 16 May 2018 Date of orders: 16 May 2018 Decision date: 23 May 2018 Before: Basten JA, Button J, Fagan J Decision: 1. Grant leave to appeal against the sentence imposed by the District Court on 5 May 2017. 2. Dismiss the appeal. Catchwords: CRIME – appeal – sentencing – time served on remand – whether sentencing judge failed to take one period of custody into account Legislation Cited: Crimes Act 1900 (NSW), s 97 Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 10 Category: Principal judgment Parties: Imran Houcher (Applicant) Regina (Respondent) Representation: Counsel: Ms Madeleine Avenell (Applicant) Mr Frank Veltro (Respondent) Solicitors: Mr R Funston, Legal Aid Commission of New South Wales (Applicant) Mr C Hyland, Office of the Director for Public Prosecutions (NSW) (Respondent) File Number(s): 2015/208968; 2016/026701 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Citation: Not published Date of Decision: 05 May 2017 Before: Colefax SC DCJ File Number(s): 2015/208968; 2016/026701 Judgment 1. THE COURT: The applicant seeks leave to appeal against an aggregate sentence imposed by his Honour Judge Colefax SC in the District Court at Parramatta on 5 May 2017 for two counts of robbery contrary to s 97(1) of the Crimes Act 1900 (NSW). The applicant had pleaded guilty. The sole ground for which leave is sought is that his Honour failed to backdate the commencement of the sentence to take into account 3 months of pre-sentence remand in custody. The aggregate sentence was 6 years and 6 months with a non-parole period of 4 years and 6 months, commencing from the date of his arrest on count 2, namely, 25 January 2016. 2. At the conclusion of the hearing of the application on 16 May 2018 leave to appeal was granted but the appeal was dismissed. The Court reserved its reasons, which are now published. The facts of the offences 1. The offence in count 1 was committed on 9 July 2015. The applicant, then aged 18, and his cousin aged 17 hired a taxi at the rank on Fitzwilliam Street Parramatta. They asked to be taken to Guildford. When the driver stopped as requested in that suburb the applicant, who was seated behind the driver, reached forward and took him by the throat with both hands. They demanded money and when he indicated submission they searched him and took approximately $200 in cash. 2. Images from the security camera in the taxi enabled police to identify the applicant and he was arrested on 17 July 2015. Bail was initially refused and the applicant remained in custody, solely on remand for count 1, for 3 months until bail was granted on 16 October 2015. It is this first remand period that the applicant alleges was not taken into account in the sentence against which he seeks leave to appeal. 3. The offence in count 2 was committed on 19 January 2016. The offender and his cousin observed the victim winning money on poker machines at the Vauxhall Inn at Granville. When the victim left the premises at closing time with $400 in winnings the applicant and his co-offender approached him at his motor vehicle and asked that he drive them first to an address in Guildford and then to a nearby train station. The victim obliged. Upon arrival at the station the co-offender demanded all of the victim's money while the applicant sat behind him in the vehicle. When the money was handed over the applicant and co-offender took it and fled on foot. 4. The applicant was arrested in relation to count 2 on 25 January 2016. Bail was refused and he remained in custody on this second remand up to the date sentence was passed. 5. An offence of dealing with property suspected of being the proceeds of crime (s 193C(1) of the Crimes Act) was taken into consideration on count 2 on a Form 1. The particulars were that in the early hours of 19 January 2016 the applicant and his co-offender took a taxi to a brothel in Clyde and there spent $250 of the money which they had just taken from the victim of count 2. His Honour observed that in imposing penalty for count 2 "there will not be any meaningful increase in the sentence" on account of the Form 1 offence. The applicant's subjective case 1. The applicant's plea of guilty to count 1 was entered late and his Honour allowed a discount of 10%. An early plea was entered on count 2 and a 25% discount was applied. In view of the narrow ground of appeal it will be sufficient to recount the applicant's subjective case briefly. His Honour received evidence that the applicant had commenced using drugs at 13 years of age, was still using them at the time of the offences and had demonstrated no inclination to rehabilitate himself in this respect. As explained in more detail below, the offence in count 1 was committed whilst the applicant was on bail for a charge laid in April 2015. The second robbery occurred while he was on bail for count 1 and for another offence and during the currency of bonds which had in the meantime been imposed. His custodial history showed numerous infringements of prison discipline, particularly throughout his second remand, including use of illicit drugs. 2. The applicant gave no evidence on sentence. The histories he had provided for a pre-sentence report and for a psychiatrist's report were conflicting and found by his Honour to be unreliable. His Honour found no expression of remorse and concluded that "considerations of general and specific deterrence are fully engaged". Prospects of rehabilitation were found to be poor and unlikely to be enhanced by a longer period of parole. His Honour found special circumstances and varied the ratio between the non-parole period and head sentence slightly "because of his young age only". Criminal and custodial history 1. On 8 April 2015 the applicant committed offences of assaulting and resisting police, for which he was charged on 9 April 2015. On 9 July 2015 he carried out the first of the subject robberies and, before being arrested for that on 17 July, he committed an offence of destroying or damaging property, on 13 July. As earlier mentioned the applicant was in custody on remand for the first robbery for 3 months from 17 July 2015 to 16 October 2015. 2. On 8 October 2015 a bond under s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) was imposed for the offence of destroying or damaging property. On 4 November 2015 bonds under s 9 were imposed for the earlier offences of assaulting and resisting police. On 24 November 2015 the applicant committed offences of stalking and intimidating and of assault, for which he was granted bail. Thus he was subject to three separate bonds and on bail in respect of two discrete instances of offending at the date of the second robbery, 19 January 2016. 3. On 27 May 2016 the applicant was called up on the s 9 bonds which had been imposed for the offences of assaulting and resisting arrest and was at the same time dealt with on the charges from 24 November 2015 (of stalking and intimidation and assault). For all of those matters he received short fixed terms of imprisonment, partly concurrent, totalling 8 months commencing from the date of his arrest for the second robbery and expiring on 24 September 2016. Consideration of pre-sentence custody by the sentencing judge 1. By the date of the sentence hearing before his Honour, on 28 April 2017, the applicant had been in custody for the first remand of 3 months (solely referable to count 1) plus the second remand of almost exactly 15 months. The second remand was in relation to count 2, but for 8 months of it the applicant had served the sentences imposed upon him on 27 May 2016 for entirely unrelated offences. These two periods of pre-sentence custody totalling 18 months were brought to the learned sentencing judge's attention in the Crown's written submissions. The applicant's counsel submitted that his Honour "could consider that [18 months] as the non-parole period". 2. In response the Crown's representative pointed out that, within the period of the second remand, from 25 January 2016 to 24 September 2016 the applicant's custody "was not solely referable to the current offences" but related to terms of imprisonment imposed upon bonds for other offences having been revoked. The Crown erroneously referred to this as a period of nine months, whereas it was in fact 8 months. But the dates were given to his Honour. The applicant's counsel rejoined by endeavouring to characterise the terms imposed on 27 May 2016 in lieu of the bonds as something less than genuine imprisonment. He submitted: One can understand why a Local Court Magistrate, faced with somebody in custody, on these matters would simplify his proceedings and impose sentences of imprisonment rather than other sentences that could be available to the Magistrate. 1. His Honour responded to this with the statement "I understand that submission". The Court interprets that as a courteous acknowledgement of what had been argued, not as acceptance of the argument. The sentences imposed by the Magistrate on 27 May 2016 were not appealed. It is not to be imputed to the Magistrate that he or she imposed sentences out of mere convenience in dealing with the call-up of bonds and without determining that the circumstances warranted penalties of that order. The learned sentencing judge is an experienced member of the District Court bench and could not be taken to have accepted this unsustainable submission. 2. Sentence was handed down one week after the sentence hearing. His Honour nominated indicative sentences of 4 years and 6 months for count 1 (after application of a 10% discount) and 4 years and 1 month for count 2 (after a 25% discount). In his remarks on sentence the learned judge referred to the fact that the applicant had been subject to bonds under ss 9 and 10 at the time of the second robbery. He said: The Local Court has called up those bonds and he received terms of full-time imprisonment which commenced 25 January 2016. For reasons of totality, the sentence I shall impose today will also be backdated to that date. 1. The effect of this was that, of a total of 18 months of pre-sentence custody, 15 months was to count as time served. Of those 18 months, 8 were referrable to the unrelated offences committed on 9 April 2015 (against police) and 24 November 2015 (stalking and intimidation and assault, in domestic circumstances). Thus only 10 months of the pre-sentence custody were attributable solely to remand for the robberies, yet his Honour allowed 15 months to count. That reflected a degree of concurrence which was within the range of judgment open to his Honour, having regard to the relatively short timeframe in which a series of offences had been committed by a young offender. This aspect of his Honour's decision was, in this Court's view, a reasonable and moderate exercise of sentencing judgment. 2. In support of the application for leave the applicant contends that in fixing sentences to commence on 25 January 2016 without express reference to the 3 months of the first remand, that earlier period of custody must have been "inadvertently overlooked". The Court sees no reason to draw such a conclusion. In view of the clear way in which the periods of pre-sentence custody were raised at the sentence hearing and debated and the short lapse of time from that hearing to the passing of sentence, it is not to be inferred that these dates were overlooked. By referring to "reasons of totality" his Honour made clear that he was addressing his mind to the degree to which pre-sentence custody should be allowed to count as time served. His Honour's reasons are thus a sufficiently clear intimation that the decision only to allow 15 of 18 months was considered and deliberate. 3. No other aspect of the sentencing decision has been challenged on appeal. In our view, if this Court were called upon to re-sentence, no greater degree of backdating of the term of imprisonment imposed by his Honour would be warranted. ********** 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 May 2018