Sentencing Trends No 11 — Sentenced to the Rising of the Court

“Sentenced to the Rising of the Court”

by
Ian MacKinnell
Project Officer

Introduction

The sentencing of an offender “to the rising of the court” (hereafter referred to as ROC) is one of the penalties available to the criminal courts in New South Wales. Over the last five years, this penalty was used in under 3% of offences finalised in the Local Courts and in less than 1% of offences finalised in the higher courts. Nevertheless most judges and magistrates have used this penalty at one time or another, and it is traditionally viewed as part of the armoury of the sentencer. Moreover, as an analysis of sentencing statistics will show, it is a prevalent outcome in relation to multiple counts of dishonesty offences.

This paper will examine the nature and function of ROC and analyse its use by the courts as evidenced in sentencing statistics. One of the more noteworthy features of this penalty is that so little has been written about it. It is not mentioned in any legislation. Although the Court of Criminal Appeal (CCA) has occasionally considered appeals where offenders have been sentenced to or seek ROC, the use or nature of ROC itself has not been the subject of judicial consideration.

The nature of ROC

ROC is the shortest possible period of custody; it is not a distinct type of penalty. Fox and Freiberg (1985, p354) have noted that “[t]he restraint on [the offender’s] liberty in the courtroom from the moment the sentence is passed is regarded as equivalent to being held in a prison”. This restraint endures only until the court adjourns, and the usual form of words employed indicates that the court adjourns immediately (“I sentence you to the rising of the court, for which purpose the court now rises”). The period “equivalent to being held in prison”, therefore, may only be a matter of seconds.

In its effect upon the offender, ROC resembles a dismissal under s.556A, except that a conviction is recorded and the offender may be liable to further penalties (eg to mandatory licence disqualification upon conviction for major traffic offences). As a term of imprisonment, ROC could also be combined with other penalties – ie s.554 recognizance or fine – which further distinguishes it from a s.556A dismissal[1]. However, for most offenders the only practical difference between ROC and a s.556A dismissal will be the recording of the conviction. In spite of its formal status as a term of custody, ROC is generally regarded as one of the most lenient penalties available to the sentencer. ROC lacks the stigma or personal trauma of detention in a cell that would occur in any longer sentence.

Recent Judicial Decisions

As an appellate remedy, ROC has occasionally been used by the CCA. In Thurgar [NSW CCA 17 Dec 1990], the Court imposed a sentence of “imprisonment until the rising of the court”, following its decision that the appellant had been in custody for a period that “exceeds what would have been an appropriate term of imprisonment”. However, in the main ROC has received scant judicial attention – its use has only been mentioned in the context of particular cases.

In recent cases considered by the CCA which involved ROC as a penalty at first instance (see Appendix), it has been imposed either where an offender has already served time in custody on remand (Jones), or where the offence accompanied other, more serious matters (eg the cases of Diamond, Williams, and Jansz). Several of these cases have drawn attention to the inadequacy of the penalty in relation to serious offences such as robbery.

The fact that ROC is a custodial order of minimal length is important for understanding its use in the Local Courts. A minimal or nominal duration of custody falls within the general power of the Local Courts to impose a custodial penalty less than the maximum penalty prescribed by statute, whereas a distinct type of penalty would require explicit statutory authority in that jurisdiction. This implies, however, that ROC is restricted to offences where the maximum penalty is imprisonment or penal servitude; and it also implies that it cannot be used in conjunction with certain other penalties (eg it could not be imposed with a recognizance under s.558).

Sentencing Statistics

Nature of Data

The sentencing statistics used in this report were collected by the NSW Bureau of Crimes Statistics and Research, which counts ROC as a distinct type of penalty and not as a duration of penal servitude or imprisonment. The statistics cover most first instance matters finalised in the Local, District and Supreme Courts of New South Wales during the five-year period from January 1990 to December 1994.

The statistics do not include:

• the results of appeals from Local Courts heard in the District Court.
• the results of appeals to the CCA.
• matters that resulted in non-penal orders (eg under the Mental Health Act 1990) or in penalties restricted to juveniles (eg under the Children (Criminal Proceedings) Act 1989).
• matters that resulted in a licence disqualification only.

ROC for Offenders on Remand or Serving a Prior Sentence

Several CCA judgments and Fox & Freiberg (1985) suggest that ROC may be used where an offender has been held in custody for a sufficient or excessive period, either on remand or for a previous sentence that was quashed. Sentencing statistics, however, show that this use of ROC is quite rare. The higher court data for 1990-1994 indicates that 37 cases were finalised with ROC as the principal penalty out of more than 20,000 persons sentenced. Of these, only 8 offenders were in custody prior to sentencing, either on remand or for a previous offence. In general the vast majority of offenders held in custody prior to sentencing received a custodial sentence (5,622 out of the 6,272 offenders in custody prior to sentence); and the most common non-custodial penalty for these offenders was a recognizance with supervision (389 cases).

In the Local Courts, nearly 2,000 offenders were sentenced to ROC as their principal penalty during 1990-1994 (out of about 450,000 offenders); 364 of these offenders were in custody, including 285 offenders on remand. The graph below shows that ROC was the principal penalty in 1.7-2.1% of cases where the offender was in custody on remand or for a prior offence, but in less than 0.4% of cases where the offender was on unconditional bail or where bail was not applicable (eg the matter was dealt with by summons or court attendance notice). Overall, ROC was the principal penalty in less than 0.5% of cases dealt with in the Local Courts.

The relatively high proportion of offenders sentenced to ROC who were in custody for a prior offence may indicate that ROC is used not only to terminate a period in custody but also where other penalties (eg fines) are inappropriate owing to the offender’s continuing imprisonment.

ROC for “Secondary Offences”

As noted above, ROC is sometimes used for offences where another charge incurs a more severe penalty (ie is the principal offence). The term “principal offence” in the following discussion refers to the offence that receives the most severe penalty (if an offender is found guilty of only one offence, that is the principal offence). There may be more than one count of the principal offence if several charges share the same offence type and penalty. All other proven offences are referred to here as “secondary offences”.

In the higher courts, 63% of proven charges were principal offences (reckoning multiple counts as separate charges). Principal offences were less likely to receive ROC than secondary offences: only 0.2% of principal offences resulted in ROC, compared to 1.1% of secondary offences.

In the Local Courts, 69% of proven charges were principal offences. The likelihood of ROC was much higher for secondary offences (7.8%) than for principal offences (0.6%). In fact, 85% of the charges resulting in ROC in the Local Courts were secondary offences.

These results suggest that ROC is primarily used as a way of disposing of secondary offences. In principle there are several different ways that a sentencer might deal with an offender found guilty of a number of charges:

• impose cumulative sentences of varying lengths for each of the counts;
• impose a longer sentence for the most serious count(s), and smaller concurrent sentences for the other counts;
• impose a long sentence for the most serious count(s), and a nominal penalty (eg ROC) for the other counts.

The third option may be particularly attractive when there are a large number of counts involved. It should be noted that these alternatives could effectively result in the same outcome for the offender. Judicial officers may differ in their use of ROC for multiple counts, therefore, without any substantive inconsistency in effect of sentencing (there is some anecdotal and statistical evidence to suggest that judicial officers vary in their usage of ROC).

ROC by Offence Type

In the higher courts data, ROC is used most frequently for “counterfeiting offences” (8.2% of counts), and for unlawful possession or use of weapons (2.2%). The major “counterfeiting offences” concerned were: uttering (13.0% of counts resulted in ROC); forgery (9.0%); obtaining a financial advantage by deception (3.9%); and using a false instrument with intent to induce a person to accept it as genuine (2.4%).

The Local Courts data shows that the highest usage of ROC occurs with “misappropriation” (ANCO category 322) and “fraud, forgery and false pretences” (ANCO category 321), but only when they are secondary offences: more than 40% of secondary “misappropriation offences” resulted in ROC, and more than 30% of “fraud, forgery and false pretences”. Offences against social security legislation also have a high incidence of ROC (over 20%). This confirms the finding that ROC is used primarily in relation to secondary offences.

Conclusion

In the sentencing statistics examined above, ROC is most commonly used for dealing with secondary offences, particularly where the courts must dispose of a large number of counts that constitute a single pattern of offending (such as dishonesty offences involving cheques). This practice is much more common in the Local Courts than in the higher courts. On the other hand, ROC is quite rare as the principal penalty for an offender, especially in the higher courts. While ROC has traditionally been viewed as an appropriate sentence for an offender who has served an adequate time in custody on remand or for a previous sentence quashed on appeal, this is in fact its least common function in the courts.

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References

Fox, RG & Freiberg, A. Sentencing: State and Federal Law in Victoria.

Melbourne, Oxford University Press, 1985.

Warner, Kate. Sentencing in Tasmania

. Annandale, Federation Press, 1991.

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Appendix

The following are the only cases in the Sentencing Information System where the CCA has imposed or mentioned ROC.

Diamond

[NSW CCA 18 Feb 1993]

The appellant participated in a robbery organised by his co-offender. The co-offender was “sentenced by a magistrate in the Children’s Court to the rising of the court”. The CCA regarded the sentence of ROC as very inadequate.

Herring

[NSW CCA 2 Dec 1994]

The CCA noted that the appellant had been sentenced to ROC for a prior conviction.

Jansz

[NSW CCA 30 Sep 1993]

The appellant had been sentenced to ROC for several charges of assault and had been required to enter into a recognizance in respect of a number of charges of robbery and armed robbery. These sentences were quashed on appeal as inadequate.

Jones

[NSW CCA 30 Jun 1994]

The CCA observed that a co-offender had been “sentenced … to the rising of the court because he had spent five weeks … in custody prior to being convicted”.

Longshaw

[NSW CCA 6 Nov 1990]; (1990) 20 NSWLR 554

The appeal was lodged in the CCA following a Crown appeal to the District Court concerning the adequacy of a sentence to ROC. The CCA did not consider the sentence itself, but only the issue of a judge’s sentencing discretion in an appeal from the Local Court.

Roberts, Lewis & McVean

[NSW CCA 24 May 1994]

ROC was mentioned in the course of discussing Diamond.

Thurgar

[NSW CCA 17 Dec 1990]

The CCA imposed a sentence of “imprisonment until the rising of the court”, following its decision that the appellant had been in custody for a period that “exceeds what would have been an appropriate term of imprisonment”.

Williams

[NSW CCA 13 Dec 1993]

The CCA noted that the appellant had been sentenced to ROC for a prior conviction.

Disclaimer
This paper was prepared by an officer of the Judicial Commission for the information of the Commission and for the information of judicial officers. The views expressed in the report do not necessarily reflect the views of the Judicial Commission itself but only the views of the officer of the Commission who prepared this report for the Commission.

Footnotes

1. As a matter of practice, there is little utility in combining ROC with a recognizance or fine, as the total penalty would be indistinguishable from a fine or recognizance simpliciter.

Judicial Commission of New South Wales GPO Box 3634 Sydney 2001

Level 5 Wynyard House 301 George Street Sydney 2000

Chief Executive Ernest Schmatt

Tel. (02) 9299 4421 Fax. (02) 9290 3194

ISSN 1036 4722