Sentencing Trends & Issues No 32 — Pre-sentence Custody and Other Constraints on Liberty

Number 32 – May 2005

Pre-sentence Custody and Other Constraints on Liberty

Andrea Hadaway
Research Officer

Hugh Donnelly
Manager, Research and Sentencing

Introduction

This Sentencing Trends examines the sometimes difficult task of taking into account pre-sentence custody and other constraints on liberty. Two questions routinely arise for sentencers in this area of the law:

1. What time should be taken into account?
2. How should the time be taken into account or counted, given the sentencing option selected?

The difficulty of the task ranges from straightforward to complex. The following principles can be drawn from the cases and are the subject of discussion:

•  Section 24 of the Crimes (Sentencing Procedure Act) 1999 obliges a court to take into account “any time for which the offender has been held in custody in relation to the offence.” Section 47 permits backdating and provides that the court “must take into account any time for which the offender has been held in custody in relation to the offence to which the sentence relates.” R v Finnie¹ is authority for the proposition that the enactment of ss 24 and 47 did not alter the common law. In R v SAE² Gleeson CJ said the “usual principle” at common law is:

• This description of the common law must be regarded as incomplete. Where custody is referable to two discrete episodes of offending, the courts rarely invoke the common law principle that credit for pre-sentence custody is only counted if it is “exclusively referable” to the offence(s) for which a person stands for sentence. Discussed below at page 3.

• Where the Parole Board revokes parole as a consequence of the commission of a second offence, time spent in custody is taken into account, despite the fact that the offender is in custody for breaching parole conditions. If a judge refuses to credit the pre-sentence custody time for the second offence the appeal court will pose the question: Has the offender been double punished?( ie, for the fact that the second offence was committed on parole and by any refusal of the sentencing judge to count pre-sentence custody). However, ultimately pre-sentence custody is a discretionary matter. There is not a hard and fast rule that the second sentence must be backdated rather than be served consecutively. “Double punishment” is merely a factor within the sentencing judge’s discretion and only applicable where there is an appearance, to the offender and the appeal court, of double punishment. Discussed below at page 4.

• Where parole is revoked due to a breach of the conditions of parole other than the commission of the subject offence, time spent in custody in relation to the breach is not taken into account. However, where the offender’s parole status is affected by the commission of the second offence, the court must attempt the hypothetical exercise of deciding what the applicant’s parole position would have been, had the second offence not been committed. Where the revocation of parole has been continued partly due to the commission of the second offence, time in pre-sentence custody referable to the continuation of the revocation of the parole should be taken into account. Discussed below at pages 5–7.

• Where the time spent in pre-sentence custody is referable to two groups of offences and the defendant is separately sentenced for each group, if the first sentence imposed 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. But where an offender faces multiple charges dealt with separately (ie by separate judges) the second judge cannot deny the offender of the benefit of pre-sentence custody referable to the second group of offences simply because the first judge has backdated the first sentence so that it coincides with the period the offender was in custody for the second group of offences.³ The offender is entitled to have that period taken into account by the second judge. Discussed below at page 7.

• 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 taken into account as a form of credit. Discussed below at page 7.

• It is desirable to backdate a sentence to take into account pre-sentence custody, rather than to discount. A few accepted exceptions to this rule are where a sentencing judge deliberately chooses to discount a sentence to three years or less, so that the court may make a parole order and attach appropriate conditions; or where the offender was on parole at the time when the offences that are the subject of the sentence were committed, and that parole is revoked; and where there is a statutory impediment (periodic detention, suspended sentences, home detention and bonds). Discussed below at page 8 onwards.

• Recent authority, particularly R v Newman; R v Simpson⁴and R v Walsh,⁵ holds that a sentence can be backdated to a time when the offender was not in custody. The logic to the contrary in cases such as R v Schodde⁶ does not hold sway. Discussed below at pages 10–11.

• Pre-sentence protective custody may be given greater value than the actual time spent in custody. In R v Patison⁷ it was accepted that every year served in strict protection is the equivalent of 18 months or two years in normal conditions of imprisonment.⁸ Pre-sentence protective custody should only be taken into account once and the court should be careful not to double count. If a prisoner continues to serve his or her sentence in protective custody post-sentence, the court can avoid double counting by simply imposing an adjusted and reduced term of imprisonment taking into account the time already served. Discussed below at pages 11–12.

• Onerous bail conditions should be taken into account at sentence. The question in any given case turns on what the court considers to be onerous. Delay combined with onerous bail conditions may constitute a form of punishment to be taken into account on sentence. There is no formula for taking it into account. Discussed below at page 12.

• Pre-sentence custody spent in a residential program may be taken into account on sentence, where the conditions are “quasi-custodial’” and impose a form of punishment on the defendant. Sentencers are not required to quantify a discount in relation to the period spent by an offender in a residential treatment program, however a figure of between 50% and 75% is often cited. Discussed below at page 15.

This paper essentially reports the law as expressed by the Court of Criminal Appeal. The two-judge bench cases are identified and cited only as interesting factual applications of established principle.⁹

1. The legislation and common law

There are Commonwealth and State provisions that address pre-sentence custody.¹⁰ Section 24 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Act) provides that a court sentencing an offender must take into account “any time for which the offender has been held in custody in relation to the offence.”

The provision is silent on the question of whether pre-sentence custody attributable both to other offences and the offence for which the offender stands for sentence should be taken into account. The section also leaves the issue of exactly how such time is to be taken into account to the sentencing officer’s discretion.

Section 47(2) of the Act allows the court to direct that a sentence is taken to have commenced before the date on which the sentence is imposed (“backdating”). Section 47(3) provides, inter alia, that:

“in deciding the day on which the sentence is taken to have commenced, the court must take into account any time for which the offender has been held in custody in relation to the offence to which the sentence relates.”

The section does not oblige a court to backdate a sentence, but the court must take into account the pre-sentence custody served by an offender “in relation to the offence,” when deciding whether it should commence the sentence at a time prior to the sentence date.

The wording of ss 24 and 47, particularly the phrase “custody referable to the offence,” was new. At common law, it was said only pre-sentence custody that was “exclusively referable” to the offence for which the defendant was sentenced was taken into account on sentence.¹¹ Gleeson CJ in R v SAE¹² stated the principle in the following terms:

“The usual principle is that allowance is made for pre-sentence custody but only in circumstances where such pre-sentence custody is exclusively referable to the crime for which the offender has been sentenced.”

Prima facie, the failure of Parliament to use the word “exclusively” means that the terms of ss 24 and 47 are more generous to an offender than the common law. But in R v Finnie¹³ the court made clear that Parliament did not intend to depart from the common law. Dunford J said¹⁴ that:

“It is true that [ss 24 and 47] do not refer to the offender being held in gaol ‘exclusively’ for those offences…as Gleeson CJ said in R v SAE ….”

“A similar reference to pre-sentence periods in custody ‘exclusively referable to the offences for which the sentence is being passed’ is to be found in R v McHugh …”

“The reason for the allowance for pre-sentence custody being limited in this way is obvious. If it were otherwise, a person serving a sentence during a period whilst on remand for the offences for which he is being sentenced would have the benefit, in effect, of not serving those sentences if given credit for such periods when sentenced for the subsequent offence. It was therefore not appropriate to give the respondent credit for the period he was in prison in respect of the periodic detention offence.”

There are obvious difficulties in determining what constitutes pre-sentence custody “in relation to an offence.” The following discussion will demonstrate the importance of defence representatives ensuring that bail is formally refused even where an offender is serving another sentence. Some of the most common scenarios faced by sentencers will be tackled.

2. Parole scenarios

It is not easy to extract bright-line rules on the question of whether pre-sentence custody counts when an offender commits an offence whilst he or she is on parole. Although it has been said that a sentencing judge has a discretion as to how pre-sentence custody is taken into account,¹⁵ it is desirable that there be consistency of approach on the question of what custody time should be taken into account.
A. Parole revoked as a consequence of the subsequent offence

When a person commits an offence whilst on parole, they may spend time in custody referable to that offence (“the second offence”), especially where bail is refused. However, the Parole Board may on occasions revoke the person’s parole due to the commission of the second offence and order the person to serve the balance of the term of the first sentence. An offender may thus be in custody referable to two offences, namely, the revocation of parole for the first offence and the second or subsequent offence. It has been held that, where the Parole Board revokes parole due to the commission of the second offence, time spent in custody is taken into account for the second offence, despite the fact that the balance of the term for the first offence may lose its effect.¹⁶ Otherwise, there is an element of double punishment in taking into account, as an aggravating feature, the commission of the second offence whilst on parole, and at the same time refusing to take into account time spent in pre-sentence custody.¹⁷ In the two-judge case of  R v Pyrda,¹⁸ the court held that the appropriate way to deal with a situation where the offence is committed whilst the defendant is on parole is as a circumstance of aggravation, which entitles the sentencing judge:¹⁹

“to impose a heavier sentence than otherwise might have been justified in order to reflect both the increased seriousness of the applicant’s criminality for the offences for which he was to be sentenced and the need for general and specific deterrence.”

In other words, it is not appropriate to decline to give the defendant the benefit of the pre-sentence custody served, which is referable to both the parole revocation and the offence. Howie J said:²⁰

“While I accept that the general rule is that an offender does not get credit for the period during which he or she is in custody serving some other sentence, see R v SAE … that rule would not require this court to refuse to intervene where the applicant was prejudiced by an error in passing sentence. If [the sentencing] judge had back-dated the sentence, as in my view he should have done, the balance of the applicant’s parole would have been served concurrently with the sentences imposed by him. If the Parole Board had come to the view that the applicant’s parole ought to have been revoked regardless of the outcome of the proceedings before the District Court, then it had power to do so before he was sentenced.”

In R v Ravet²¹ the court rejected a Crown submission that the sentencing judge erred in backdating the sentence for an offence committed when the offender was on parole. Stein JA made clear that backdating was technically permissible although a longer sentence was perhaps more appropriate in the circumstances of the case (at [30]). His Honour said that the earlier two-judge bench cases of R v Kaiva and R v Webb²² establish no principle of sentencing:²³

“So long as the circumstance of aggravation is reflected in the sentence, there is authority that a sentence may be backdated to the commencement of custody provided the circumstance is justified, rather than accumulated on the unexpired term of parole. See, for example, R v Kaiva and R v Webb (unrep 9/11/98, NSWCCA). I do not accept that these cases establish any principle. Rather, they are examples that such a step may obviously be within a judge’s sentencing discretion if the circumstances warrant. It is accepted here that the effect of the backdating by his Honour leaves a very short sentence indeed and, on one view, that may be seen to be an error.”

In R v Nykolyn²⁴ the sentencing judge backdated the applicant’s sentence to the date on which the applicant was taken into continuous custody. At that time the applicant was also serving the balance of his parole. The sentencing judge did not accumulate the sentence for the second criminal episode on the balance of the parole period, as “there was no evidence to suggest that the applicant would have served the whole of the balance of parole.”²⁵

Wood CJ at CL said of the approach taken:²⁶

“While it was not strictly impermissible for her Honour to have reduced the non-parole period to account for the earliest period of pre-sentence custody, rather than backdating its commencement, I am not persuaded that there was necessarily an error in doing so. Had the applicant been given the full benefit of all of the pre-sentence custody in backdating the sentence and the non-parole period, the revocation of the earlier parole would have lost its effect. However, the fact of the earlier period of custody was obviously a matter properly to be taken into account and which we should also take into account when we come to consider the balance of the matters relied upon and, in particular, the question of whether or not the sentence as a whole was excessive.”

Re-offending whilst on parole is not only a circumstance of aggravation, it is also a relevant matter in applying the principle of totality. The court in R v Loh²⁷ described the application of the principle of totality in the following terms:²⁸

“While it is true that the further offences have had the effect of causing the respondent’s return to prison to serve out the balance of his parole, and while he is not to be additionally punished for the earlier offences (R v Kaiva(unrep 9/11/98 NSWCCA), the present case remains one where the fact of him re-offending on parole needed to be taken into account in relation to totality: R v Hajjo (unrep, 31/8/92 NSWCCA).”

However, it would be wrong to suggest that there is a hard and fast rule that a sentence should always be backdated in such a case, instead of being accumulated on the unexpired term of parole. It is more accurate to say that “double punishment” is merely a factor within the sentencing judge’s discretion²⁹ or only applicable where there is an appearance of double punishment.³⁰
B. Parole revoked as a consequence of breach of another condition of parole

Where parole is revoked for unrelated reasons, such as a breach of the conditions of parole³¹ and not the commission of a second 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.³² This time is not “referable” to the second offence, as required by ss 24 and 47. As Simpson J put it in the two-judge bench case of R v Kitchener:³³

“If, on the other hand, the revocation or continued revocation of parole could be seen as solely or principally attributable to the breach of the non-association condition, then there could be no complaint about the commencement date of the sentence.”

Again, in the two-judge bench case of R v Bojan³⁴ there was no error in the refusal to backdate where:³⁵

“the applicant was in custody following the revocation of his parole; not for the offences for which he was about to be sentenced, but for other matters.”

O’Keefe J held that the backdating of the sentence, if at all, could only begin from the date that the applicant was charged for the subject offences.³⁶

The parole status of the defendant may, however, be affected by the commission of the second offence. In such as case, the court may need to attempt the hypothetical exercise of deciding what the applicant’s parole positionwould have been, had the second offence not been committed. The exercise requires the court to determine whether the commission of the second offence has caused a continuation of the revocation of parole.³⁷ Where the revocation of parole has been continued partly due to the commission of the second offence, the principle of double punishment, expressed above, will apply; and time in pre-sentence custody referable to the continuation of the revocation of the parole should be taken into account and is referable to the second offence.³⁸

In the two-judge bench case of R v Kitchener,³⁹ Simpson J (with whom Wood CJ at CL agreed) suggested that it was “a matter of pure speculation”⁴⁰ as to whether the applicant would have been granted parole during his additional term if the subject offences had not been committed. Her Honour, however, went on to say:⁴¹

“Although I have grave reservations about the appropriateness or desirability of attempting the hypothetical exercise of deciding what the applicant’s parole position would have been had the parole been revoked only as a result of his breach of the condition concerning the motorcycle club, and not by reason of the commission of these offences, I have concluded that that exercise must be undertaken. If it is the case that the revocation, or continued revocation, of parole is properly seen as attributable to the commission of these offences, and the fact that they were committed on parole is taken into account as an aggravating feature, then, it seems to me, the principles stated in Kaiva apply and the applicant would be entitled to perceive that there is an element of double punishment. If, on the other hand, the revocation or continued revocation of parole could be seen as solely or principally attributable to the breach of the non-association condition, then there could be no complaint about the commencement date of the sentence.”

Simpson J then examined the evidence of the applicant’s exemplary conduct in gaol to suggest that the applicant could have expected to have been released on parole within a relatively short period, had he not committed the subject offences. Her Honour concluded that the applicant was required to serve the balance of the parole period because of the commission of the second offence and the sentence for the subject offences was extended because the offences were committed whilst on parole. Thus, there was an element of double counting and the appeal succeeded. In setting the “notional date”⁴² on which the applicant could have expected to have been released, if it were not for the commission of the subject offences, her Honour examined the prior parole revocation and the time spent in custody for this breach.

Although R v Kitchener was a two-judge bench case, it was followed last year in R v Walker,⁴³ albeit in circumstances where the appellant planned to appeal the Parole Board’s decision to revoke her parole. The subject offence of robbery in company was the cause of the applicant’s arrest but not the revocation of parole. Parole had been revoked prior to the commission of the offence for a failure to report, however the warrant was not executed until the applicant was arrested for the robbery in company offence. The balance of the parole period (seven months and ten days) was to expire in October 2002. The applicant applied for reconsideration of the revocation and the hearing was stood over because of the subject offence. On appeal, the applicant argued that there was a reasonable probability that the determination of the application for reconsideration would have resulted in her being released to parole well before October 2002. The applicant argued that any custody served after a time when she would have been released on parole would have been attributable to the subject offence and that the sentence should have been backdated further than to the expiry of the parole period. The court (Dowd J; Hislop J and Smart AJ) allowed the appeal and stated:⁴⁴

“It was submitted by the Crown that it is a matter of supposition whether and to what extent, if at all, the Probation Board would have released the applicant to parole prior to 5 October 2002 and that this court should not speculate in that regard. I agree the matter is speculative. However, in R v Kitchener [2003] NSWCCA 134, Simpson J (with whom Wood CJ at CL agreed) held that such an exercise should be embarked upon and that if the continued revocation of parole was properly seen as attributable to the commission of the subject offence and the fact the offence had occurred on parole had been taken into account as an aggravating factor in determining the head sentence, this would result in an element of double punishment which should be corrected.”

The sentence was backdated to June 2002, being the time that the court hypothesised the applicant was likely to have been released on parole.

3. Time already counted in previous proceedings

Where the time spent in pre-sentence custody is referable to two groups of offences and the defendant is separately sentenced for each group, if the first sentence imposed 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.⁴⁵ Where an offender faces multiple charges dealt with separately (ie by separate judges) the second judge cannot deny the offender of the benefit of pre-sentence custody referable to the second group of offences simply because the first judge has backdated the first sentence so that it coincides with the period the offender was in custody for the second group of offences.⁴⁶The offender is entitled to have that period taken into account by the second judge.

4. Time spent in custody in relation to another matter for which the offender is acquitted

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 be taken into account as a form of credit.⁴⁷ In R v Niass,⁴⁸ Lee CJ at CL said:⁴⁹

“there is good reason to keep intact the division between the functioning of the court dealing with a particular offender in respect of the offence on which he comes before the court and taking into account periods spent in custody in respect of that offence, and the function which the State has undertaken on occasions to recompense persons who, when the justice system has miscarried, may seek solatium.”

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. In R v Evans⁵⁰ it was relevant to the respondent’s rehabilitation if he was returned to custody and also to an assessment of his culpability, since his “capacities of self-control had been weakened by the experience he had endured”⁵¹ through no fault of his own.

R v Evans was distinguished in R v Chung.⁵² In R v Chung the applicant submitted that 15 months spent in custody before being acquitted for another offence was relevant because, following R v Evans, it meant that the applicant was more vulnerable and susceptible to temptation. The court rejected that submission, distinguishing the facts in R v Evans and saying:⁵³

“This applicant, on the other hand [like Evans], did not spend his time in prison as a convicted child molester with all the particular hardships that involves.”

The fact that an offender has spent time in custody in relation to a sentence, which is later successfully appealed, may also be relevant to an assessment of special circumstances justifying a variation in the statutory ratio between the non-parole period and the term of the sentence.⁵⁴

Where the time spent in custody is referable not only to the offence which was subsequently successfully appealed, but also to a different offence for which the offender is sentenced, the offender may be given credit for this time.⁵⁵ In R v Karageorge⁵⁶ the applicant spent nine months in custody after being sentenced for an offence of attempting to pervert the course of justice. At the same time the offender’s bail was revoked for an offence under s 29B of the Crimes Act 1914 (Cth) (the offence under appeal) and bail was refused for two other matters on a Form 1. Sperling J held that the applicant would have been in custody during this period because of his bail status, irrespective of the sentence of imprisonment for perverting the course of justice.⁵⁷ Thus, the period in custody was attributable to the matters under appeal and should have been taken into account. Sperling J distinguished the cases of R v Niass, R v Webster and Jones, R v Chung, R v David and R v Baartman, where there was no overlap between the periods in custody under a sentence for an unrelated offence, later successfully appealed, and the time in custody during which bail was refused in relation to the offence for which the sentence was imposed.⁵⁸ Sperling J added:⁵⁹

“Sentencing is a discretionary exercise. Fairness and reasonableness have constantly to be borne in mind. It would be unjust to disallow credit for time in custody pending trial because that time overlapped a sentence later set aside. A sentence set aside should count for nothing against the person concerned, let alone operate to negate an entitlement which that person would otherwise have under the law. The need to avoid injustice in this case outweighs, by a large margin, any incongruity that might be perceived as arising from doing so.”

The case emphasises the prudence of defence representatives ensuring that bail is formally refused, so as to enable the custody time to be “referable” to that offence.

Spigelman CJ (with whom Simpson J agreed) added that the applicant should not expect to receive credit twice for this period if he were convicted at the new trial for the offence of perverting the course of justice.⁶⁰ His Honour also commented:⁶¹

“Bail had been refused and, in view of the passport offences [Form 1], it was a very clear case as to what the prognosis for any bail application or change of conditions would have been. Not all cases will be as clear as this. If this matter arises again, the court would not wish to encourage litigation about what may or may not have been the prospects of bail in a case that is not as clear as this one.”

5. Immigration detention centre time

In R v Chen⁶² the applicant committed an offence of break, enter and steal. He was subsequently arrested, spent nine months in pre-sentence custody (referable to another charge), served five days imprisonment, then remained in an immigration detention centre for five months before being moved back into the prison system. The applicant was charged for the break and enter almost a year after the offence was committed. McClellan AJA said:⁶³

“Although the applicant spent time in custody, this was either for unrelated offences or because of his status as an illegal immigrant. Although there was a lapse of time it was relatively short and, in my opinion, principles of totality have no relevance. The imposition of an appropriate sentence in relation to the present offence did not require consideration of the previous periods of detention. Although the applicant was required to endure a period of detention in relation to charges for one of which he was ultimately sentenced for a short period, it does not appear that he was required by reason of his incarceration to endure periods of uncertainty or deprived of an opportunity to have the present charge disposed of at an earlier time.”

The court also held that the issue of delay was sufficiently accounted for by the sentencing judge finding special circumstances to vary the ratio between the non-parole period and the head sentence.⁶⁴

6. How to count pre-sentence custody (backdating versus discounting)

Section 47(2) of the Act permits the court to backdate a sentence. It requires the court to consider the pre-sentence custody served by an offender in relation to the offence when deciding whether to commence the sentence at an earlier time.
A. Continuous custody

Prior to the enactment of the Act, it had always been accepted at common law that, where there had been a continuous period of pre-sentence custody, there was a practice to backdate a sentence to take account of pre-sentence custody, rather than to discount or reduce a sentence.⁶⁵ Even though ss 24 and 47 of the Act do not oblige the sentencing judge to backdate the commencement of a sentence to take into account pre-sentence custody,⁶⁶ the desirability of the practice of backdating a sentence, rather than discounting the sentence by reference to a period of pre-sentence custody, has repeatedly been stressed.⁶⁷

For example, Howie J in R v Newman; R v Simpson⁶⁸ said (with the concurrence of the members of the court):⁶⁹

“I accept that the approach that was advocated in McHugh is a matter of practice and that a sentencing judge has a discretion as to how to take into account pre-sentence custody. See R v Nykolyn (2003) 39 MVR 385. But it should be emphasised once again that backdating is the preferable course and it should be adopted unless it is clearly inappropriate to do so.”

It has also been emphasised that a sentencing judge should give reasons where the rule of practice is not followed.⁷⁰

As there is no legislative requirement to backdate a sentence where there has been a period or periods of pre-sentence custody, 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.”⁷¹ Such an incantation may not be sufficient where there has been an irregular period of pre-sentence custody and, where a sentence is expressed in whole years, it may be more difficult to infer that the sentencing judge has actually taken this period of custody into account.⁷²

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.⁷³
B. Reasons for backdating

In R v Newman; R v Simpson,⁷⁴ Howie J identified a number of reasons in favour of backdating:

• It preserves the denunciatory and deterrent value of the sentence so that it is, and appears to be, adequate both to public perception and reflected in statistical information.

• The practice promotes transparency. It makes it clear to the defendant and to the appeal court that the offender has received a reduction in sentence for pre-sentence custody.

• It avoids questions of disparity when comparing one sentence to another that has been markedly reduced by pre-sentence custody.

• It avoids skewing statistical information on that offence where there are very few comparable sentences for similar offences and avoids giving a false indication of the range of sentences that have been imposed for a similar offence or similar offender.

• It avoids lengthy sentences being imposed in years, months and days, which may suggest that sentencing is an exact science and that a sentence can be determined to a precise number of days.

C. Accepted departures from backdating

There are a number of situations in which it will not be appropriate or permissible to follow the practice of backdating a sentence to take into account pre-sentence custody. In such cases, the sentence can be reduced to take this time into account.

I. At common law

In various judgments it has been suggested that this rule of practice is only to be departed from in “exceptional circumstances,”⁷⁵ in “an appropriate case,”⁷⁶ “unless it is clearly inappropriate to do so,”⁷⁷ or where there is a “good reason to the contrary.”⁷⁸

Three scenarios have been identified in the case law where it may be appropriate to depart from this practice. The first is where the offender has not been in continuous custody prior to sentence.⁷⁹ However, more recent comments by the court in R v Newman; R v Simpson suggest that this is not a good reason for discounting rather than backdating a sentence (see discussion below, “D. Broken Periods of Custody”).

A second reason was given by Badgery-Parker J in R v Deeble⁸⁰ and applied in R v Leete,⁸¹ namely, where a sentencing judge deliberately chooses to discount (rather than backdate) a sentence to three years or less so that the court may make a parole order and impose conditions on that parole, under ss 50 and 51 of the Act. A third situation is where the offender was on parole at the time when the offences that are the subject of the sentence were committed and that parole is revoked (see further discussion, above, in “2. Parole Scenarios”).

II. Periodic detention

It is not possible to backdate a sentence of periodic detention, as s 70(1) provides that a periodic detention order must commence “no earlier than seven days … after the date on which the order was made.”⁸²

III. Suspended sentences

Section 12(1)(a) was amended by the Crimes Legislation Amendment Act

2002 (NSW), to provide that the whole of the sentence must be suspended under s 12. Thus, where a defendant has served a period of pre-sentence custody and a suspended sentence is imposed under s 12, the time served cannot be accounted for by backdating the sentence to a time when the defendant was in custody.

A sentence of imprisonment which is suspended under s 12 must be wholly and not partially suspended. Moreover, the offender must enter into a bond at the time the suspended sentence is imposed. In R v Charters⁸³

the sentencing judge, when revoking the suspended sentence bond, erred by failing to have regard to the fact that the convicted person had already served six months of the two year sentence that had been suspended. The Court of Criminal Appeal structured the sentence so that it commenced from a date that took into account the period already served.

IV. Home detention

The nature of a home detention order means that it cannot be backdated. After imposing a sentence of imprisonment on an offender, the court may, under s 80(1) of the Act, refer the offender for assessment as to suitability for home detention. Thus, where a sentence of imprisonment by way of home detention is imposed, any period of pre-sentence custody must be taken into account by reducing the term of the sentence.

V. Bonds

A bond under s 9 of the Act may not be backdated to account for pre-sentence custody. A bond to be of good behaviour must be entered into at the time of its imposition and cannot be backdated. In reality, where a defendant has served pre-sentence custody, the more lenient option of a bond may, of course, be the appropriate sentence.

D. Broken periods of custody

Where the defendant has not been in continuous custody since arrest and charge, it has been held there is a difficulty in backdating a sentence.

In R v Schodde⁸⁴ Bell J, (with whom Giles JA and Carruthers AJ agreed) suggested that:⁸⁵

“[i]t is not appropriate to backdate the sentence to the date of the applicant’s arrest as his custody has not been continuous.”

However, in the Crown appeal of R v MacDonald⁸⁶ the court (Gleeson CJ, Kirby P and Hunt CJ at CL) held that:

“[the proposition] [t]hat a sentencing judge has power to back-date a sentence, even in circumstances where the offender has been at large during the intervening period, is not in doubt.”⁸⁷

In that case, the court regarded the imposition of a full time custodial sentence for manslaughter as imperative to achieve the denunciatory role of sentencing.

More recently, Howie J in R v Newman; R v Simpson⁸⁸ maintained that periods of broken pre-sentence custody did not prevent the court from backdating a sentence to take these periods of custody into account, even where the sentence is backdated to a point when the defendant was not, in fact, in custody.

Howie J held that:⁸⁹

“The difficulty arises in cases where, as here, the pre-sentence custody did not continue unbroken to the date of sentence. In such a case the court is faced with two options: it can simply state that the pre-sentence custody is being taken into account and reduce the sentence accordingly; or it can backdate the sentence even though the offender was not actually in custody on the date when the sentence is deemed to have commenced. Notwithstanding some doubt expressed about the latter practice in R v Sayak (unrep, 16/9/93, NSWCCA, Clarke JA, Hunt CJ at CL and Grove J) this court has dealt with the matter in this way on more than one occasion. See R v MacDonald (unrep, 12/12/95, NSWCCA, Gleeson CJ, Kirby P and Hunt CJ at CL), R v Howard [2001] NSWCCA 309 and R v Philips; R v Simpson [2002] NSWCCA 167. There is nothing in s 47 of the Act that would suggest that a court could not make such an order.”

His Honour further maintained that:⁹⁰

“the fact that a sentence would have to be backdated to a period when the offender was not in custody in order to comply with the practice is not a good reason for failing to follow it.”

Howie J reiterated this view when sitting alone in the recent case of R v Walsh (on appeal from the Drug Court):⁹¹

“The way her Honour ought to have dealt with the time served in the most simple way, and the most accepted way of showing to a defendant that the period has been taken into account, is to backdate the sentences to a period equivalent to that served in pre-sentence custody. A court is able to make that order notwithstanding that the applicant was not in fact in custody for that period, and it has been common practice in this court and the District Court generally, to impose sentences commencing on a day on which the applicant was not actually in custody, but in order to make it plain that the court has reduced the sentence by way of taking into account pre-sentence custody.”⁹²

In a number of recent cases, such as R v Howard,⁹³ R v Philips; R v Simpson,⁹⁴ R v Galati⁹⁵ and R v Jammeh,⁹⁶ whilst not expressly stating the principle that a sentencing judge may backdate a sentence to a period when the offender was not in custody, this was what in fact occurred.

7. How should pre-sentence protective custody be counted?

Where an offender has spent a period of pre-sentence custody in protection, this may be given greater value than the actual time spent in custody. R v Rose⁹⁷ concerned a Crown appeal against a s 11 deferral of sentence, with residential rehabilitation in the Bridge Program as a condition of bail. In that case, Hoeben J (with whom Spigelman CJ and Barr J agreed) said:⁹⁸

“The extent and nature of the respondent’s pre-sentence custody was a matter properly taken into account by her Honour. It amounted to four months and seven days and had been spent in protective custody. There was ample evidence, which her Honour was entitled to accept, that the respondent’s time in protective custody had been significantly more onerous than normal prison time. It was accordingly open to her Honour to give to that period an equivalence of at least six months or more of ordinary prison time. (AB v The Queen (1999) 198 CLR 111 at [105]; R v Howard [2001] NSWCCA 309 at [18]).”

The respondent’s conditions of protective custody were that he was in his cell for all but three hours per day and had no access to drug and alcohol rehabilitation. The suggested credit of “six months or more” for four months and seven days in protective custody is in line with the comments of Kirby J in the High Court decision of AB v The Queen.⁹⁹ Kirby J, referring not to pre-sentence custody but to the appellant’s term of imprisonment in protective custody, stated:¹⁰⁰

“However, it is well recognised in England and in Australia that every year in protective custody is equivalent to a significantly longer loss of liberty under the ordinary conditions of prison.”

In R v Howard¹⁰¹ the appellant spent one month and 15 days in pre-sentence protective and strict custody and would likely serve his sentence on protection. Wood CJ at CL said:¹⁰²

“It is the fact, as Kirby J pointed out in AB [v The Queen] (1999) 73 ALJR 1385 at 1408, that every year in protective custody is equivalent to a significantly longer loss of liberty under the ordinary conditions of prison. It is also the fact that such form of detention can deny to a prisoner the full opportunities for programs and courses available to mainstream prisoners. Additionally, any prisoner with a history of being on protection, particularly one who has killed or abused a child, is potentially a marked man for whom the risk of reprisal is high. Had his Honour ignored those circumstances then error would have been demonstrated. However, it was a matter expressly acknowledged and said to have been taken into account.”

In that case, the appeal was allowed to take into account the period on pre-sentence custody, which was not demonstrably reflected in the sentencing order. In the result, the sentence was backdated one month and 15 days only. The court held that, given the circumstances of the case, which involved the manslaughter of an infant, and the fact that the applicant was subject to a recognisance to be of good behaviour at the time of the offence, the sentence imposed made sufficient allowance for the applicant’s past and future protective custody.

In R v Patison¹⁰³ it was accepted that every year served in strict protection is the equivalent of 18 months or two years in normal conditions of imprisonment.¹⁰⁴

Pre-sentence protective custody should only be taken into account once and the court should be careful not to double count. If a prisoner continues to serve his or her sentence in protective custody post-sentence, the court can avoid double counting by simply imposing an adjusted and reduced term of imprisonment taking into account the time already served.

8. Other constraints on liberty

A. Onerous bail conditions

New South Wales courts have accepted the proposition that onerous bail conditions should be taken into account at sentence.¹⁰⁵ The question in any given case turns on what the court considers to be onerous. The test of what is “onerous” or “stringent” seems difficult to satisfy. The cases indicate, however, that delay combined with onerous bail conditions may constitute a form of punishment to be taken into account on sentence. Under s 36(1) of the Bail Act 1978 (NSW), the court may grant bail unconditionally or subject to conditions specified in ss 36(2), 36A and 36B. These conditions may require the defendant to report or reside at a particular residence, or may include financial requirements (such as the giving of security, depositing of money or forfeiture of money), the surrendering of the defendant’s passport, non-association and place restriction conditions, and participation in an intervention program for treatment or rehabilitation.

Where the conditions of bail have been onerous or stringent, the court may determine that the time spent on bail was a form of punishment, which should be taken into account upon sentence. There is no specific formula for taking into account onerous bail conditions and delay. It is enough for a sentencing court to make it clear in the remarks that those factors have been recognised and taken into account. In R v Cartwright¹⁰⁶ the court gave the appellant credit for 75% of the time spent on bail. However, this figure has not been applied more generally. As the discussion below indicates (see “C. Quasi-custodial sentences”), the principle from R v Cartwright — that credit is to be given for 75% of the time spent on bail — has been applied in cases where time is spent in a residential program in conformity with a bail requirement.

The case law must be examined more closely to understand what the courts have seen as onerous or stringent bail conditions and how this has been taken into account. In R v Cartwright,¹⁰⁷ the appellant was on bail for eight months before trial for two charges of importing heroin, but was effectively in the custody of the Australian Federal Police. The appellant’s bail conditions were that he reside in Canberra, report daily to the Federal Police, accept their supervision and obey their reasonable direction. The court allowed the applicant credit for 75% of the time spent on bail and held that:¹⁰⁸

“this period of quasi-custody should have been taken into account in the circumstances — by giving credit for a substantial proportion (but not the whole) of that period. We assess that a fair allowance in this case for that additional period of eight months is a reduction of six months in the minimum period.”

In R v Dennis¹⁰⁹ the applicant pleaded guilty to seven counts of indecently assaulting his young male neighbour and two counts of buggery. The applicant was on bail for 18 months on condition that he not approach or contact the complainant and that he report three times a week to a Sydney suburban police station that was located not far from his home. These conditions were held not to be “either individually or collectively” particularly onerous or stringent and they “did not impose any really serious restriction on the applicant’s liberty.”¹¹⁰

In R v Williams¹¹¹ the applicant spent two years on bail between his arrest and sentence and was required to attend a police station every day during that period. Counsel for the applicant submitted in oral argument that this amounted to stringent bail conditions. Clarke JA accepted the submission.¹¹²

In R v Sayak¹¹³ the applicant’s bail condition was to reside at premises nominated by officers attached to a witness protection program for almost three months. The court held that this condition did not constitute quasi-custody and should not be taken into account.

In R v Hanley,¹¹⁴ a Crown appeal, the court held that a court may take into account the fact that a defendant had onerous bail conditions where those conditions restricted a large part of the defendant’s life.¹¹⁵ No further information was given about the nature of the bail conditions in that case.

Where the defendant commits the subject offence whilst on parole for other offences, reporting conditions whilst on bail may not constitute a form of punishment to be taken into account at sentence. In the Crown appeal of R v McVittie¹¹⁶ Giles JA said:¹¹⁷

“That the court granting bail considered it necessary that liberty be conditioned upon his reporting to the police does not benefit him when it comes to sentencing. He had committed the offences whilst on parole and reporting was an eminently understandable condition of liberty; it was not a mitigating factor or a benefit in sentencing.”

The nature of the offence and the purposes of punishment may determine whether bail conditions are taken into account upon sentence. In R v Fowler¹¹⁸ the appellant argued that the sentencing judge had failed to take into account the period during which the appellant was subject to bail conditions (including reporting), the uncertainty caused by three trials and the length of time since the commission of the offence. The court held that:¹¹⁹

“We accept that in an appropriate case the length and terms of an offender’s period on bail awaiting trial or sentence is a matter relevant to the determination of the proper sentence to be imposed. What weight is to be given to such a matter will vary from case to case, depending upon what other factors need to be considered and what sentence is required in the particular case to address the purpose of punishment. Where that purpose is the protection of the community and the conditions of bail are particularly onerous, such as where the offender has been required to reside at a rehabilitation establishment, very significant weight might be placed upon such a factor where it is appropriate having regard to the nature of the offence. However, in other cases, less weight may be given to such a consideration, particularly where the imposition of a sentence of imprisonment is required for the purposes of denouncing the crime and reflecting general deterrence.”

In dismissing the appeal, the court held that the sentencing judge was not required to reduce the appellant’s sentence because of the restrictions to his liberty over a lengthy period and the disruption this had caused to the appellant’s life. In this case, the sentence given was the very least that the defendant should serve.

The court in R v Webb¹²⁰ found that the sentencing judge was not in error in failing to credit the applicant for time spent on bail (for one year and eight months). The applicant’s conditions of bail were that he was prohibited from leaving his home for approximately the first three weeks, except to report to police, attend court and medical appointments. He frequently saw his former partner and had full access to their three children. The applicant was restricted in going out socially, however he had no restriction on receiving visitors at home. Grove J said that these conditions “do not mandate any such mitigation of sentence.”¹²¹
B. Delay

The length of time on bail due to delay in the proceedings may, similarly, be seen as a form of punishment which may be taken into account. In
R v Keyte, ¹²² where the appellant was on bail for nearly three years, Street CJ said:¹²³

“The conditional liberty, albeit under bail, is a matter which can properly be weighed in representing a penal consequence that the appellant has already undergone.”

Hulme J in R v Khamas¹²⁴ approved the earlier authority of R v Herbert¹²⁵ and said:¹²⁶

“a lengthy delay awaiting trial coupled with stringent bail conditions may operate in reduction in sentence but there is a vast difference between reporting to a nearby police station, albeit on a daily basis, and the types of ‘quasi-custody’ which have been taken into account in favour of a prisoner in cases such as Cartwright (1989) 17 NSWLR 243 and Eastway (unrep, 19/3/92, NSWCCA).”

In that case, the court allowed a Crown appeal against a sentence of two years periodic detention for two counts of armed robbery and one count of assault. The sentencing judge opined that the respondent’s reporting requirement (daily since his arrest) was a deprivation of his liberty and it was recognised as counting in reduction of sentence.

More recently, in the murder appeal of R v Yeo,¹²⁷ Adams J said:¹²⁸

“In some circumstances, a lengthy period on bail awaiting trial should be regarded as representing a ‘penal consequence’ already suffered by an offender and the sentence adjusted accordingly: R v Keyte (unrep, 26/3/86, NSWCCA). Even where such conditions are onerous, however, it may not operate to reduce the sentence that is otherwise appropriate: R v Herbert (unrep, 4/11/93, NSWCCA); R v Fowler [2003] NSWCCA 321. The circumstances and nature of the applicant’s crime were so grave, in my mind, as not to require that a lesser sentence be imposed by virtue of the period she spent on bail, even on the onerous conditions to which it was subject.”
C. Quasi-custodial pre-sentence conditions

Section 24(d) of the Act provides that in sentencing an offender the court must take into account, in the case of an offender who is being sentenced following an order under s 11(1)(b2):

“(i) anything done by the offender in compliance with the offender’s obligations under the order; and

(ii) any recommendations arising out of the offender’s participation in the intervention program or intervention plan.”

Time spent in a residential program, either in conformity with a bail requirement or under a s 11 adjournment, may constitute a period of quasi-custody, which may be taken into account to reduce the sentence eventually imposed.¹²⁹ Residential rehabilitation programs that have constituted quasi-custodial conditions have included Odyssey House, the Bridge Program, Miracle Haven, the Northside Clinic and Bennelong Haven. To qualify for a discount on sentence, the conditions on the program must closely resemble imprisonment and thus impose a form of punishment on the defendant. The discount given for time spent in a residential treatment program does not need to be quantified.¹³⁰ However, following R v Cartwright¹³¹ and R v Eastway,¹³² a figure of between 50% and 75% is often cited. This figure may be reduced as the conditions in the program become less strict.¹³³ A discount will not be given in every case,¹³⁴ however these cases may be narrowly applied.

I. Odyssey House

Odyssey House provides residential and non-residential rehabilitation programs for men and women with a drug, alcohol or gambling problem.¹³⁵ In the unsuccessful Crown appeal of R v Eastway,¹³⁶ the sentencing judge deducted 14 months from the respondent’s sentence, which represented credit for 50% of the time spent in drug rehabilitation at Odyssey House. Hunt CJ at CL regarded that approach as “a very fair assessment in the circumstances of this case, and I see no error demonstrated in relation to that deduction.”¹³⁷

In the two-judge bench case of R v Everingham,¹³⁸Dunford J rejected the submission that some months spent at Odyssey House as a condition of bail following the arrest of the applicant should have been taken into account to reduce the minimum term:

“Residence at Odyssey House, although it involves a very strict and restrictive lifestyle, is very different to prison and, in particular, persons are free to leave Odyssey House whenever they wish, as many do. Whilst in some cases it is, and has been, appropriate to take time spent in Odyssey House into account as a form of quasi-custody in sentencing, that does not apply in all cases and I do not consider this is a case where it was necessary to take account of it.”¹³⁹

II. Salvation Army’s Miracle Haven

Miracle Haven is a residential rehabilitation program run by the Salvation Army at a farm in Morisset. In R v Kivits¹⁴⁰ the court dismissed an argument that the 30 weeks that the appellant spent at the Salvation Army program was a form of quasi-custody and that the sentence should be reduced because the appellant had, to some extent, already been punished. Although the appellant would have been in breach of his bail if he had left the program, his lifestyle at Miracle Haven (being fed, housed, counselled and cared for) was much better than his previous lifestyle and that “more than offset any detriment to him by restriction of his liberty.”¹⁴¹ In other words, the appellant benefited from the program and without it he would have been destitute. However, R v Kivits has been interpreted as a special case.¹⁴²

In the two-judge bench case of R v Campbell,¹⁴³ Kirby J said that “[i]t was appropriate that the applicant should have received recognition, and credit”¹⁴⁴ for one year at Miracle Haven for alcohol and drug rehabilitation. In allowing the appeal, the minimum term was reduced from ten months and 14 days to two months and 25 days, taking into account 132 days spent in pre-sentence custody and the year spent in rehabilitation.

III. Salvation Army’s Bridge Program

The Bridge Program, administered by the Salvation Army’s William Booth Institute, is a long-term residential program (lasting eight to 10 months) in three phases addressing alcohol, gambling and drug addiction.¹⁴⁵ The two-judge bench case of R v Psaroudis¹⁴⁶ described R v Kivits as “a special case”¹⁴⁷ and said that in the “ordinary case”¹⁴⁸ credit for between 50% and 75% of the time spent in such a program should be given, depending on the circumstances. In this case, Sperling J thought that credit for 50% for the first 16 weeks, 25% for the second 16 weeks (three months discount for first 32 weeks) and 12.5% for the remaining period would be appropriate (making a total discount of four months).

R v Thompson¹⁴⁹ is another two-judge bench case where six months spent on the Bridge Program as a condition of bail was described by the court as a “rigorous rehabilitation program in a quasi-custodial institution”¹⁵⁰ and credit was given. More recently, in R v Delaney,¹⁵¹ the majority of the court gave the applicant credit for 50% of the time spent in residential rehabilitation on the Bridge Program, describing the conditions there as quasi-custodial and a form of punishment. James J distinguished R v Kivits on the basis that the applicant had failed to reach the level of destitution that Mr Kivits had.¹⁵²

IV. Psychiatric care

In R v Perry¹⁵³ the court applied the decision of Kivits to a situation where the applicant, who suffered a mental illness, was released on bail on the condition that she remain in psychiatric case. The two-judge bench stated:¹⁵⁴

“It is however clear that, in my view, referring to R v Kivits (unrep, 4/11/94, NSWCCA) … restrictive or supervised accommodation requirements do not necessarily amount to quasi-custody. It is not appropriate to equate the supervision that somebody of the nature of the applicant requires, as being of the same nature as the quasi-custody which a person of different abilities and not needing the level of supervision that she does would suffer as a result of restrictive custody in places such as those run by the Salvation Army.”

V. Northside Clinic/Bennelong’s Haven

The Northside Clinic in Greenwich is a 94-bed private psychiatric hospital that offers drug and alcohol services. It conducts a three-week voluntary medicated detoxification and rehabilitation program.¹⁵⁵ Bennelong’s Haven Family Rehabilitation Centre is a residential facility for alcohol and drug rehabilitation in the mid-north coast of New South Wales that operates as an alternative to gaol for young Aboriginal people.¹⁵⁶

In R v Sullivan¹⁵⁷ the applicant spent 11 months in rehabilitation at the Northside Clinic and Bennelong’s Haven. The sentencing judge did not quantify the discount given for time in rehabilitation. Bell J said that:¹⁵⁸

“[n]either Cartwright nor Eastway require that a sentencing judge quantify a discount in relation to the period spent by an offender in a residential treatment program or the like.”

D. Intervention programs

Following the enactment of the Crimes Legislation Amendment (Criminal Justice Interventions) Act 2002 (NSW), Part 4 of the Criminal Procedure Act 1986 (NSW) provides for the recognition and operation of intervention programs. According to s 346, an intervention program is a “program of measures declared to be an intervention program under s 347.” Clause 11D of the Criminal Procedure Regulation 2000 (NSW) declares that the Circle Sentencing Intervention Program is an intervention program for the purposes of Part 4 of the Criminal Procedure Act 1986 (NSW).

An accused person or offender may be referred to an intervention program:

• as a condition of bail under s 36A of the Bail Act 1978 (NSW);

• with an adjournment and a grant of bail before a finding of guilt is made;

• where there is a finding of guilt and a dismissal of charges without a conviction under s 10 of the Act;

• as a condition of a good behaviour bond under ss 9 or 10 of the Act (see s 95A of the Act); or,

Endnotes

1 R v Finnie [2002] NSWCCA 533.

2 R v SAE (unrep, 3/4/97, NSWCCA) at 7.

3 R v Walker [2005] NSWCCA 159 at [5].

4 R v Newman; R v Simpson (2004) 145 A Crim R 361.

5 R v Walsh [2004] NSWCCA 428.

6 R v Schodde (2003) 142 A Crim R 307.

7 R v Patison (2003) 143 A Crim R 118.

8 R v Patison (2003) 143 A Crim R 118 at 136–137.

9 As Carruthers AJ put it in R v Hayes [2001] NSWCCA 358 at [20] (cited with approval by Wood CJ at CL in R v Hendricks (2001) 125 A Crim R 303 at [12]): “two-judge benches of this court are constituted to deal with cases where questions of sentencing principle are not really in issue, but rather to deal with matters where there are well-established sentencing principles, and the question which arises is the application of those principles to the facts of the particular case.”

10 Section 16E(2) of the Crimes Act 1914 (Cth) governs sentences for Commonwealth offences. It provides that: “[w]here the law of a State or Territory has the effect that a sentence imposed on a person for an offence against the law of that State or Territory or a non-parole period fixed in respect of that sentence: (a) may be reduced by the period that the person has been in custody for the offence; or (b) is to commence on the day on which the person was taken into custody for the offence; the law applies in the same way to a federal sentence imposed on a person in that State or Territory or to a non-parole period fixed in respect of that sentence.” There are specific provisions for criminal proceedings in the Supreme Court and District Court relating to persons affected by mental disorders.

Section 23(4) of the Mental Health (Criminal Procedure) Act 1990 No 10 provides: “In nominating a limiting term in respect of a person or imposing any other penalty or making any other order, the court may, if it thinks fit, take into account the periods, if any, of the person’s custody or detention before, during and after the special hearing (being periods related to the offence).”

11 R v McHugh (1985) 1 NSWLR 588 at 590; R v SAE (unrep, 3/4/97, NSWCCA) at 7.

12 R v SAE (unrep, 3/4/97, NSWCCA) at 7.

13 R v Finnie [2002] NSWCCA 533.

14 R v Finnie [2002] NSWCCA 533 at [48]–[51].

15 R v Nykolyn (2003) 39 MVR 385.

16 R v Kaiva (unrep, 9/11/98, NSWCCA); R v Webb (unrep, 9/11/98, NSWCCA); R v Pyrda [2001] NSWCCA 230; R v Loh (2002) 127 A Crim R 577; R v Kitchener [2003] NSWCCA 134; R v Turner [2004] NSWCCA 260.

17 R v Kaiva (unrep, 9/11/98, NSWCCA); R v Webb (unrep, 9/11/98, NSWCCA); R v Pyrda [2001] NSWCCA 230; R v Loh (2002) 127 A Crim R 577; R v Kitchener [2003] NSWCCA 134; R v Turner [2004] NSWCCA 260.

18 R v Pyrda [2001] NSWCCA 230.

19 R v Pyrda [2001] NSWCCA 230 at [12].

20 R v Pyrda [2001] NSWCCA 230 at [17].

21 R v Ravet [2001] NSWCCA 535.

22 R v Webb (unrep, 9/11/98, NSWCCA).

23 R v Ravet [2001] NSWCCA 535 at [34].

24 R v Nykolyn (2003) 39 MVR 385.

25 R v Nykolyn (2003) 39 MVR 385 at 389.

26 R v Nykolyn (2003) 39 MVR 385 at 391.

27 R v Loh (2002) 127 A Crim R 577.

28 R v Loh (2002) 127 A Crim R 577 at 583.

29 R v Ravet [2001] NSWCCA 535.

30 R v Bojan [2003] NSWCCA 45.

31 Clause 215 of the Crimes (Administration of Sentences) Regulations 2001 (NSW) sets out the standard conditions of parole. Part 7 of the Crimes (Administration of Sentences) Act 1999 (NSW) sets out the Parole Board’s power to revoke parole. Section 171 provides that the Parole Board may determine that the revocation takes effect from the date on which it is made, or on an earlier date. The earliest allowable date is the date that it appears to the Parole Board that the offender failed to comply with obligations under the parole order. Section 171(3) provides that: “If an offender is not taken into custody until after the day on which the revocation order takes effect, the term of the offender’s sentence is, by this subsection, extended by the number of days the person was at large after the order took effect.”

32 R v Bojan [2003] NSWCCA 45; R v Kitchener [2003] NSWCCA 134; R v Walker [2004] NSWCCA 230.

33 R v Kitchener [2003] NSWCCA 134 at [56].

34 R v Bojan [2003] NSWCCA 45.

35 R v Bojan [2003] NSWCCA 45 at [15].

36 R v Bojan [2003] NSWCCA 45 at [10].

37 R v Kitchener [2003] NSWCCA 134; R v Walker [2004] NSWCCA 230.

38 R v Kitchener [2003] NSWCCA 134; R v Walker [2004] NSWCCA 230.

39 R v Kitchener [2003] NSWCCA 134.

40 R v Kitchener [2003] NSWCCA 134 at [55].

41 R v Kitchener [2003] NSWCCA 134 at [56].

42 R v Kitchener [2003] NSWCCA 134 at [63].

43 R v Walker [2004] NSWCCA 230.

44 R v Walker [2004] NSWCCA 230 at [18]–[19].

45 R v Kennedy (unrep, 31/8/93, NSWCCA).

46 R v Walker [2005] NSWCCA 159 at [5].

47 R v Niass (unrep, 16/11/88, NSWCCA); R v Evans (unrep, 21/5/92, NSWCCA); R v Webster and Jones (unrep, 3/8/92, NSWCCA); R v Chung (unrep, 9/3/94, NSWCCA); R v David (unrep, 20/4/95, NSWCCA); R v Baartman(unrep, 18/12/98, NSWSC).

48 R v Niass (unrep, 16/11/88, NSWCCA). R v Niass was applied in R v Webster and Jones (unrep, 3/8/92, NSWCCA).

49 R v Niass (unrep, 16/11/88, NSWCCA) at 3.

50 R v Evans (unrep, 21/5/92, NSWCCA).

51 R v Evans (unrep, 21/5/92, NSWCCA) at 7.

52 R v Chung (unrep, 9/3/94, NSWCCA).

53 R v Chung (unrep, 9/3/94, NSWCCA) at 8.

54 R v David (unrep, 20/4/95, NSWCCA) (Two-judge bench).

55 R v Karageorge [1999] NSWCCA 213.

56 R v Karageorge [1999] NSWCCA 213.

57 R v Karageorge [1999] NSWCCA 213 at [16].

58 R v Karageorge [1999] NSWCCA 213 at [19].

59 R v Karageorge [1999] NSWCCA 213 at [21].

60 R v Karageorge [1999] NSWCCA 213 at [28].

61 R v Karageorge [1999] NSWCCA 213 at [29].

62 R v Chen [2004] NSWCCA 369.

63 R v Chen [2004] NSWCCA 369 at [34].

64 R v Chen [2004] NSWCCA 369 at [36].

65 R v McHugh (1985) 1 NSWLR 558.

66 R v Howard [2001] NSWCCA 309; R v Schodde (2003) 142 A Crim R 307; R v Nykolyn (2003) 39 MVR 385; R v Chen [2004] NSWCCA 369.

67 See, for example, R v Deeble (unrep, 19/9/91, NSWCCA); R v Close (1992) 31 NSWLR 743; R v Schodde (2003) 142 A Crim R 307.

68 R v Newman; R v Simpson (2004) 145 A Crim R 361.

69 R v Newman; R v Simpson (2004) 145 A Crim R 361 at 369–370.

70 R v McHugh (1985) 1 NSWLR 558 at 591; R v Deeble (unrep, 19/9/91, NSWCCA); R v Newman; R v Simpson (2004) 145 A Crim R 361 at 367–368; R v Jammeh [2004] NSWCCA 327 at [18].

71 R v Frascella [2001] NSWCCA 137; R v Rose [2001] NSWCCA 370.

72 R v Galati [2003] NSWCCA 148. In that case the applicant’s sentence appeal was allowed, as the sentencing judge imposed four sentences expressed in whole years and backdated two of them to take into account one period of (continuous) pre-sentence custody. The applicant had spent an additional one month and 26 days in pre-sentence custody before being released on bail and the court held that, although the sentencing judge took this time “into account,” the imposition of sentences of whole years “tends to militate against any conclusion that an irregular period of one month and 26 days was really taken into account” (at [36]). The sentences were further backdated on appeal to take this time into account.

73 R v Karipidis [2003] NSWCCA 168; R v Newman; R v Simpson (2004) 145 A Crim R 361.

74 R v Newman; R v Simpson (2004) 145 A Crim R 361 at 368–369.

75 R v Close (1992) 31 NSWLR 743 at 748; R v Cook [1999] NSWCCA 234 at [39].

76 R v Newman; R v Simpson (2004) 145 A Crim R 361 at 368.

77 R v Newman; R v Simpson (2004) 145 A Crim R 361 at 370.

78 R v Deeble (unrep, 19/9/91, NSWCCA) at 3.

79 R v Close (1992) 31 NSWLR 743 at 748; R v English [2000] NSWCCA 245 at [23]; R v Pincham [2000] NSWCCA 478 at [12].

80 R v Deeble (unrep, 19/9/91, NSWCCA) at 3–4.

81 R v Leete (2001) 125 A Crim R 37 at 42.

82 See also R v Schodde (2003) 142 A Crim R 307.

83 R v Charters [2004] NSWCCA 40.

84 R v Schodde (2003) 142 A Crim R 307.

85 R v Schodde (2003) 142 A Crim R 307 at 315.

86 R v MacDonald (unrep, 12/12/95, NSWCCA).

87 R v MacDonald (unrep, 12/12/95, NSWCCA) at 8.

88 R v Newman; R v Simpson (2004) 145 A Crim R 361.

89 R v Newman; R v Simpson (2004) 145 A Crim R 361 at 368.

90 R v Newman; R v Simpson (2004) 145 A Crim R 361 at 370.

91 R v Walsh [2004] NSWCCA 428.

92 R v Walsh [2004] NSWCCA 428 at [15].

93 R v Howard [2001] NSWCCA 309.

94 R v Philips; R v Simpson [2002] NSWCCA 167.

95 R v Galati [2003] NSWCCA 148.

96 R v Jammeh [2004] NSWCCA 327.

97 R v Rose [2004] NSWCCA 326.

98 R v Rose [2004] NSWCCA 326 at [35].

99 AB v The Queen (1999) 198 CLR 111.

100 AB v The Queen (1999) 198 CLR 111 at 152 (footnotes omitted).

101 R v Howard [2001] NSWCCA 309.

102 R v Howard [2001] NSWCCA 309 at [18].

103 R v Patison (2003) 143 A Crim R 118.

104 R v Patison (2003) 143 A Crim R 118 at 136–137.

105 R v Cartwright (1989) 17 NSWLR 243; R v Dennis (unrep, 14/12/92, NSWCCA); R v Williams (unrep, 5/8/93, NSWCCA); R v Kennedy (unrep, 31/8/93, NSWCCA); R v Sayak (unrep, 16/9/93, NSWCCA); R v Herbert(unrep, 4/11/93, NSWCCA); R v Kirwin (unrep, 30/10/97, NSWCCA); R v Hanley (unrep, 9/10/98, NSWCCA); R v Khamas (1999) 108 A Crim R 499;
R v Fowler [2003] NSWCCA 321; R v Webb [2004] NSWCCA 330.

106 R v Cartwright (1989) 17 NSWLR 243.

107 R v Cartwright (1989) 17 NSWLR 243.

108 R v Cartwright (1989) 17 NSWLR 243 at 258–259.

109 R v Dennis (unrep, 14/12/92, NSWCCA).

110 R v Dennis (unrep, 14/12/92, NSWCCA) at 17.

111 R v Williams (unrep, 5/8/93, NSWCCA).

112 R v Williams (unrep, 5/8/93, NSWCCA) at 6. However, the appeal was dismissed as the sentencing judge had taken this factor into account and the sentence was reasonable in all the circumstances.

113 R v Sayak (unrep, 16/9/93, NSWCCA).

114 R v Hanley (unrep, 9/10/98, NSWCCA).

115 R v Hanley (unrep, 9/10/98, NSWCCA) at 6.

116 R v McVittie [2002] NSWCCA 344.

117 R v McVittie [2002] NSWCCA 344 at [26].

118 R v Fowler [2003] NSWCCA 321.

119 R v Fowler [2003] NSWCCA 321 at [242].

120 R v Webb [2004] NSWCCA 330.

121 R v Webb [2004] NSWCCA 330 at [18].

122 R v Keyte (unrep, 26/3/86, NSWCCA).

123 R v Keyte (unrep, 26/3/86, NSWCCA) at 4.

124 R v Khamas (1999) 108 A Crim R 499.

125 R v Herbert (unrep, 4/11/93, NSWCCA).

126 R v Khamas (1999) 108 A Crim R 499 at 503.

127 R v Yeo [2005] NSWCCA 49.

128 R v Yeo [2005] NSWCCA 49 at [109].

129 R v Eastway (unrep, 19/5/92, NSWCCA); R v Everingham (unrep, 4/7/94, NSWCCA) (two-judge bench); R v Psaroudis (unrep, 1/4/96, NSWCCA) (two-judge bench); R v Campbell [1999] NSWCCA 76 (two-judge bench); R v Thompson [2000] NSWCCA 362 (two-judge bench); R v Perry [2000] NSWCCA 375 (two-judge bench); R v Fowler [2003] NSWCCA 321; R v Delaney (2003) 59 NSWLR 1; R v Sullivan (2004) 41 MVR 250.

130 R v Sullivan (2004) 41 MVR 250.

131 R v Cartwright (1989) 17 NSWLR 243.

132 R v Eastway (unrep, 19/5/92, NSWCCA).

133 R v Psaroudis (unrep, 1/4/96, NSWCCA) (two-judge bench).

134 See R v Kivits (unrep, 4/11/93, NSWCCA); R v Perry [2000] NSWCCA 375.

135 <http://www.odysseyhouse.org.au> (accessed 6 December 2004).

136 R v Eastway (unrep, 19/5/92, NSWCCA).

137 R v Eastway (unrep, 19/5/92, NSWCCA) at 7.

138 R v Everingham (unrep, 4/7/94, NSWCCA).

139 R v Everingham (unrep, 4/7/94, NSWCCA) at 3–4.

140 R v Kivits (unrep, 4/11/93, NSWCCA).

141 R v Kivits (unrep, 4/11/93, NSWCCA) at 5.

142 R v Psaroudis (unrep, 1/4/96, NSWCCA) (two-judge bench); R v Delaney (2003) 59 NSWLR 1.

143 R v Campbell [1999] NSWCCA 76.

144 R v Campbell [1999] NSWCCA 76 at [24].

145 <http://salvos.org.au/SALVOS/NEW/me.get?site.sectionshow&FFFF328#bridge> (accessed 6 December 2004).

146 R v Psaroudis (unrep, 1/4/96, NSWCCA).

147 R v Psaroudis (unrep, 1/4/96, NSWCCA) at 5.

148 R v Psaroudis (unrep, 1/4/96, NSWCCA) at 6.

149 R v Thompson [2000] NSWCCA 362.

150 R v Thompson [2000] NSWCCA 362 at [31].

151 R v Delaney (2003) 59 NSWLR 1.

152 R v Delaney (2003) 59 NSWLR 1 at 6.

153 R v Perry [2000] NSWCCA 375.

154 R v Perry [2000] NSWCCA 375 at [33].

155 <http://www.ramsayhealth.com.au/nsc/default.htm> (accessed 9 December 2004).

156 <http://www.midcoast.com.au/~benhaven/> (accessed 9 December 2004).

157 R v Sullivan (2004) 41 MVR 250.

158 R v Sullivan (2004) 41 MVR 250 at 262.