Sentencing Bench Book — Sentencing procedures generally

Backdating a sentence by a period equivalent to the pre-sentence custody is the preferable, and usual, approach: Wiggins v R [2010] NSWCCA 30 at [2], [3]–[6]; Martinez v R [2015] NSWCCA 5 at [19]; Salafia v R [2015] NSWCCA 141 at [65]; Kaderavek v R [2018] NSWCCA 92 at [20]. Before the enactment of the provisions of the Act, it was accepted at common law, in cases such as R v McHugh (1985) 1 NSWLR 588, that where there had been a continuous period of pre-sentence custody, the practice was to backdate a sentence to take account of pre-sentence custody, rather than to discount or reduce it. Nothing in s 47 of the Act prevents backdating a sentence for an offence even where there has been discontinuous custody: R v Newman and Simpson [2004] NSWCCA 102 at [26].

In R v Newman and Simpson at [26]–[31], Howie J summarised the reasons in favour of backdating:

The length of a sentence should not be discounted unless reasons are clearly articulated for adopting that approach: Wiggins v R at [3], [8]; R v Newman and Simpson at [25]; R v Jammeh [2004] NSWCCA 327 at [18] and R v Howard [2001] NSWCCA 309 at [24]. However, there are some situations where it will not be appropriate or even permissible to backdate a sentence and, in such cases, the sentence can be reduced to take this time into account.

One such situation, identified by Badgery-Parker J in R v Deeble (unrep, 19/9/91, NSWCCA) at 3–4 and applied in R v Leete [2001] NSWCCA 337 at [29], is where a sentencer may reduce a sentence to three years or less, thereby making an offender’s release upon expiry of the non-parole period an entitlement rather than based on eligibility: Wiggins v R at [8]; White v R [2009] NSWCCA 118. See also s 158 Crimes (Administration of Sentences) Act 1999.

Another relates to the nature of the sentencing option selected by the sentencer as it is not possible to backdate some sentencing options. Intensive correction orders (ICOs), community correction orders and community release orders each commence on the date on which they are made (ss 71(2), 86 and 96 respectively) and therefore cannot be backdated to take into account any period of pre-sentence custody. Thus, any such period must be taken into account by reducing the term of sentence. Taking this approach with respect to an ICO was endorsed by the court in Mandranis v R [2021] NSWCCA 97 at [61]. See also R v Edelbi [2021] NSWCCA 122 at [79]–[80].

Where a defendant is given credit for a period of pre-sentence custody, this time should be reflected in both the total sentence and the non-parole period: R v Newman and Simpson at [25] and R v Youkhana [2005] NSWCCA 231 at [10]. Under the proper approach — fixing the sentence and the non-parole period, and then making allowance for the period in custody — the applicant gets the benefit of the whole of the period served where it is deducted from the non-parole period. The judge erred in R v Youkhana by taking into account the periods spent in custody when setting the head sentence. The period spent in custody must be deducted from the whole of the sentence including the non-parole period. The difference between the approach adopted and the correct approach is most obvious when there is no finding of special circumstances. In such a case, the offender obtains the benefit of only 75% of the period served by way of a reduction in the non-parole period. The mathematical problem would not have arisen had the judge backdated the commencement of the sentence.

On some occasions it is sufficient for a sentencing judge to express in the remarks on sentence that a period of pre-sentence custody has been “taken into account”: R v Frascella [2001] NSWCCA 137; R v Rose [2001] NSWCCA 370 and R v Deron [2006] NSWCCA 73 at [9]. However, such an incantation may not be sufficient where there has been an irregular period of pre-sentence custody. Where a sentence is expressed in whole years, it may be more difficult to infer the sentencing judge has actually taken this period of custody into account: R v Galati [2003] NSWCCA 148.

In R v Bushara [2006] NSWCCA 8 at [37] it was held that when sentencing an offender for multiple offences, a judge must ensure that pre-sentence custody is deducted from the aggregate non-parole period. Consideration must be given to the period of pre-sentence custody when considering the relationship between the aggregate non-parole period and balance of the term: at [22], [24], [35]. The effective sentence in Bushara did not reflect the finding of special circumstances.

It is an error for a judge to revoke bail so a period of custody counts towards the sentence by reason of s 24(a): R v West [2014] NSWCCA 250. In R v West, the judge unilaterally revoked the offender’s bail while an intensive correction order (ICO) report was obtained, stating this gave the offender about four months of full-time custody, after which the judge imposed an ICO for a period of two years. This approach did not accord with usual sentencing practice which requires that the sentencing discretion be exercised immediately before a sentence is passed, rather than conditionally in advance and in two stages: at [36], [41], [43].

In Mattiussi v R [2023] NSWCCA 289, Hulme AJ (Adamson JA and Button J agreeing) at [70]–[73] made observations regarding the need for simplicity in the Crown’s provision of pre-sentence custody information to a sentencing judge. The date, or range of dates, to which a sentence should be backdated is an essential matter of which the judge should be informed in addition to the actual period of pre-sentence custody: [71]. It is unhelpful to only tell a judge there was a period of pre-sentence custody of a certain number of years, months or days: [73].

When a person commits an offence whilst on parole, they may spend time in custody referable to that offence (“the second offence”), if bail is refused. However, the Parole Authority may, on occasions, revoke the person’s parole due to the second offence and order the person to serve the remaining period of the first sentence. An offender may thus be in custody referable to two offences; namely, the revocation of parole for the first offence(s) and the second offence.

Where parole is revoked as a consequence of the commission of a subsequent offence(s), it is a matter within the sentencer’s discretion whether the subsequent sentence should be backdated only to the time the offender was taken into custody for the subsequent offence: Callaghan v R [2006] NSWCCA 58 at [21]–[23]. Simpson J said at [22]–[23]:

A number of matters inform the exercise of the discretion: first, the fact that imprisonment for the period of the revoked parole is due to the original sentence and revocation occurred because the offender had been unable to adapt to civilian life; second, the fact that the revocation arises in consequence of a new offence for which a fresh sentence is being imposed, rather than for some unconnected cause; third, the proportion of time the offender complied with the terms of parole; and, fourth, the periods of revocation: R v DW [2012] NSWCCA 66 at [35].

This principle does not apply if parole has not been revoked by the Parole Authority. In a case where an offender has committed a subsequent offence, the court should not treat parole as having been notionally revoked: R v Skondin [2006] NSWCCA 59 at [16]–[17].

In R v Callaghan and R v DW, parole was revoked for an earlier sentence solely due to commission of the second set of offences. The court in both cases held that the judge did not err by refusing to backdate to the date the applicant was taken into custody.

Where parole is revoked for unrelated reasons, such as a breach of the conditions of parole and not the commission of the subject offence (for example, reporting or non-association requirements or for an unrelated offence), time spent in custody as a consequence of the breach is not taken into account upon sentence for the second offence: R v Bojan [2003] NSWCCA 45 and R v Walker [2004] NSWCCA 230. This time is not “referable” to the second offence, as required by ss 24 and 47 Crimes (Sentencing Procedure) Act 1999. As an example, see R v Kitchener [2003] NSWCCA 134 at [56] (a two-judge bench case).

However, the matter is not as clear cut as it seems. The parole status of the defendant may be affected by the commission of the second offence. In such a case, the court may need to attempt the hypothetical exercise of deciding what the applicant’s parole position would have been, had the second offence not been committed: R v Walker. It was said in R v Walker that the court will need to determine whether the second offence has caused a continuation of the revocation of parole. In R v Walker it was held that where the revocation of parole has been continued partly due to the commission of the second offence, pre-sentence custody referable to the continuation of the revocation of the parole may be taken into account upon sentence for the second offence.

A court has a discretion to impose a partially concurrent or wholly cumulative sentence upon a revoked parole period. The discretion has to be exercised in a principled way: Barnes v R [2014] NSWCCA 224 at [28]–[29].

In Barnes v R, the applicant had his parole revoked for an offence and was then sentenced for a subsequent offence with the sentence to commence at the expiry of the revoked parole period. The court, at [27], rejected the applicant’s argument that imposing a sentence that was totally cumulative made no allowance for the offender having a second chance at parole for the first offence.

If a court takes account of the whole period of pre-sentence custody, it is not appropriate to again take that pre-sentence custody into account when sentencing the defendant for the second group of offences: R v Wood [2005] NSWCCA 159 at [5]; Martinez v R [2015] NSWCCA 5.

Where an offender is sentenced in relation to one matter, time spent in custody referable exclusively to an unrelated offence, which has been successfully appealed, is not to be taken into account as a form of credit: R v Niass (unrep, 16/11/88, NSWCCA); R v David (unrep, 20/4/95, NSWCCA). In R v Niass, Lee CJ at CL said at 2:

R v Niass was subsequently confirmed by the five-judge bench decision of Hampton v R [2014] NSWCCA 131 at [35].

Although not taken into account as a form of credit, time spent in custody in relation to another offence, which is successfully appealed, may be taken into account where the sentence has been served under particularly onerous conditions. For example, see R v Evans (unrep, 21/5/92, NSWCCA) and Kljaic v R [2023] NSWCCA 225.

In R v Karageorge [1999] NSWCCA 213 it was held that the time spent in custody was referable not only to the offence, which was subsequently successfully appealed, but also to a different offence, for which the offender was sentenced. The case emphasises the prudence for defence representatives of ensuring bail is formally refused to enable the custody time to be “referable” to that offence.

Similarly, time spent in custody in relation to offences for which an offender is discharged or acquitted is not to be taken into account as a form of credit: Hampton v R at [27]; Rafaieh v R [2018] NSWCCA 72 at [74]. Bare reliance on a period of custody for an unrelated matter, without more, is extraneous to the exercise of sentencing discretion for other matters, particularly in the case of broken periods of custody: Hampton v R at [30].

Although statutory provisions in NSW confirm that time in custody relating to the instant offence is a mandatory factor to be taken into account on sentence, there is nothing requiring a judge to take custody for an unrelated offence into account: Hampton v R at [26], [28]; Rafaieh v R at [74]; ss 24(a), 47(3) Crimes (Sentencing Procedure) Act.

The courts no longer assume that being in protective custody will place an offender in a more onerous prison environment than that of the general prison population: Clinton v R [2009] NSWCCA 276. If an offender wants such a consideration taken into account, the offender should present evidence of it: R v Jarrold [2010] NSWCCA 69 [26]–[27]. Where an offender has spent a period of pre-sentence custody in protection which is more onerous, this may be given greater value than the actual time spent in custody: R v Rose [2004] NSWCCA 326. The reduction depends on the circumstances of the particular case.

The decision of R v Rose “is not authority for a mathematical approach to determining the relevance of time spent in protection”: Clinton v R at [21]. A mathematical formula is not appropriate as there are too many variables, there is not always a significant difference between being on protection and being part of the normal prison population and there may be some benefits from being on protection that offset some of the deprivations: at [25].

Pre-sentence custody referable to a Form 1 matter “should normally be taken into account” by backdating the sentence for the principal offence to which the Form 1 is attached, because Form 1 matters “normally have an impact, sometimes a substantial impact on the sentence passed for the principal offence”: Sultana v R [2007] NSWCCA 107 at [15].

A court may have regard to detention in an immigration facility notwithstanding an offender has been granted bail for an offence. The sentencing judge in R v Parhizkar [2013] NSWSC 871 took into account “in an unquantifiable sense” that the length of time the offenders were kept in immigration detention was “exacerbated by the fact that there have been pending criminal proceedings against them”: at [108]. On appeal, the applicant argued that he should have been given a quantified allowance for immigration detention: Parhizkar v R [2014] NSWCCA 240 at [69]. Basten JA noted at [70] that the argument was not drawn to the judge’s attention and that no evidence of the circumstances of the period in immigration detention was presented to the judge. Basten JA held (Price J at [93] and McCallum J at [98] agreed) that in those circumstances it could not be said the judge erred in the approach that was taken.

In R v Dadash [2012] NSWSC 1511 and Marai v R [2023] NSWCCA 224, immigration detention after the offender was granted bail was taken into account as part of the backdating of the sentence. In Marai v R, Sweeney J (Kirk JA agreeing) held the applicant’s detention was referable to the offence for sentence as the Commonwealth Director of Public Prosecutions requested the applicant’s visa be cancelled after bail was granted: [95].

In the ACT, immigration detention time linked to the offending is taken into account: Islam v R [2014] ACTCA 2 at [6]. The Crown conceded before the sentencing judge that the seven-month-period of immigration detention while Mr Islam was awaiting trial should be accounted for in determining the backdating of his sentence: at [7]. The backdating provision in s 63(2) Crimes (Sentencing) Act 2005 (ACT) uses the same expression — “held in custody in relation to the offence” — in s 24 Crimes (Sentencing Procedure) Act 1999 (NSW).

The completion of a MERIT program should not be equated with a period of quasi-custody: R v Brown [2006] NSWCCA 144. James J said at [59] that if any allowance was made “it would, in my opinion, only be a very small allowance”.

Hodgson JA said at [4] that completion of the program was a powerful consideration in the applicant’s favour. He went on to say:

The approach to participation in the Drug Court program prior to being sentenced should be the same as when an offender has been on bail for a lengthy period with strict conditions: R v Bushara [2006] NSWCCA 8 at [28]. Participation in the Drug Court is not equivalent to imprisonment. It is not a form of pre-sentence custody that would require a sentence to be backdated. The fact of participation is simply another matter the court takes into account when considering the appropriate sentence without attributing to it “any mathematical equivalence that would have a direct bearing on the length of the sentence”.

See Diversionary programs on JIRS for further information on diversionary and intervention programs.

Onerous bail conditions may be taken into account at sentence but there is no obligation to do so. It is a discretionary matter which depends on the circumstances of the individual case: R v Fowler [2003] NSWCCA 321 at [242]; R v Webb [2004] NSWCCA 330 at [18]; Hoskins v R [2016] NSWCCA 157 at [36]; Frlanov v R [2018] NSWCCA 267 at [24]; Banat v R [2020] NSWCCA 321 at [18].

The test of what is “onerous” or “stringent” seems difficult to satisfy. Delay combined with onerous bail conditions may constitute a form of punishment to be taken into account on sentence: see, for example, R v Khamas [1999] NSWCCA 436; see also Relevance of onerous bail conditions during delay at [10-530] Delay. Under the Bail Act 2013, bail conditions imposed for the purpose of mitigating an unacceptable risk may require the defendant to report or reside at a particular residence, or may include financial requirements (such as giving security) and non-association and place restriction conditions. Restrictive accommodation requirements will not necessarily amount to a form of quasi-custody: Bland v R [2014] NSWCCA 82 at [128]. In Banat v R the imposition of a curfew condition and the requirement for electronic monitoring were appropriately taken into account on sentence: at [25]–[27]. By comparison, in Frlanov v R the sentencing judge did not err by not taking into account the applicant’s daily reporting condition as that was not particularly onerous: at [26].

The nature of the offence and the purposes of punishment may determine whether bail conditions are taken into account upon sentence: R v Fowler at [242]. In R v Fowler the applicant argued that the sentencing judge had failed to take into account the lengthy period during which the applicant was subject to bail conditions (including reporting). However, the court held at [242] that while in an appropriate case the length and terms of an offender’s period on bail awaiting trial or sentence is relevant to determining the proper sentence, the weight given to such a matter will vary, depending upon other factors to be considered and what sentence is required in the particular case to address the purpose of punishment.

There is no specific formula for taking into account onerous bail conditions and delay. Nor is there a principle that dictates a reduction in sentence as a direct equivalent of a period of time spent subject to strict conditions on bail: Hoskins v R at [36]. It is enough for a sentencing court to make clear in its remarks that those factors have been recognised and taken into account. While in R v Cartwright the court gave the appellant credit for 75% of the time spent on bail, this figure has not been applied more generally.

The length of time spent on bail due to delay in the proceedings may, similarly, be seen as a form of punishment sometimes referred to as a “penal consequence” already suffered by an offender that may be taken into account: R v Yeo [2005] NSWCCA 49 at [109]; R v Fowler [2003] NSWCCA 321 at [242]–[243].