Towney v R

1. [1]

   DAVIES J: I agree with R A Hulme AJ.

2. [2]

   IERACE J: I also agree with R A Hulme AJ.

3. [3]

   R A HULME AJ: Guyra Towney applies for leave to appeal in respect of an aggregate sentence imposed in the District Court on 19 August 2021 by his Honour Judge King SC.

4. [4]

   The sentence was one of imprisonment for 4 years, 6 months with a non-parole period of 3 years. It was imposed following the applicant pleading guilty to offences of recklessly causing grievous bodily harm and possession of a shortened firearm (not a pistol). The latter offence was on a certificate pursuant to s 166 of the Criminal Procedure Act 1986 (NSW).

5. [5]

   The following table sets out details of the offences, including the maximum penalties and standard non-parole period where applicable, as well as the indicative sentences assessed by the judge which followed a reduction of 25% on account of the applicant’s early pleas of guilty.

6. [6]

   Mr Towney seeks leave to appeal on one ground:

The error conceded

1. [7]

   The applicant had been the subject of sentences imposed in two Local Courts which preceded the sentencing by King SC DCJ on 19 August 2021. He was sentenced at Wyong Local Court on 17 June 2020 for multiple offences to an aggregate term of imprisonment for 18 months with a non-parole period of 11 months, 21 days, effective from 29 April 2020. He was also sentenced at Cessnock Local Court on 7 April 2021 for a single offence to imprisonment for a fixed term of 3 months, effective from 18 February 2021. The combined effective sentence in respect of the Local Court matters was 1 year, 6 months with a non-parole component of 1 year, 19 days. That total effective sentence ran from 29 April 2020 to 28 October 2021 with the non-parole component expiring on 17 May 2021. (See “Pre-existing Sentences” graph annexed to this judgment.)

2. [8]

   Section 47(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) provides that a sentence commences on the day it is imposed but this is subject to exceptions. Section 47(2)(a) provides that a sentence may be backdated and sub-s (3) provides that in deciding whether to backdate, a court is to take into account any pre-sentence custody. (Section 24(a) also requires a court to take into account pre-sentence custody.)

3. [9]

   Given Mr Towney was arrested and refused bail in respect of the index offences on 28 April 2020, it was within his Honour’s discretion to backdate the sentence as far as to that date. However, he was also required to apply the principle of totality in considering the extent to which the sentence might overlap the Local Court sentences. In this respect, after stating the indicative sentences for each offence his Honour said: [1]

4. [10]

   The first sentence in that passage stated the position correctly. But in the last sentence there is a clear miscalculation in that “seven months after his arrest” on 28 April 2020 was 27 November 2021. It appears that his Honour inadvertently calculated 7 months from 17 July 2020 which was the date Mr Towney was sentenced in the Local Court at Wyong.

5. [11]

   There can be no doubt the judge was aware that the applicant had been in custody since his arrest for the index offences on 28 April 2020. He expressly said so in the passage of his sentencing remarks extracted above. He had also expressly said so on a number of occasions earlier in his remarks on sentence. [3]

6. [12]

   Counsel for the applicant referred to what was submitted to be an incorrect statement by the judge of 17 June 2020 being the applicant’s date of arrest for the index offences. It was in the context of his Honour referring to the offending which gave rise to the sentences imposed in the Local Courts. There were three correct references (one by implication) to the date of arrest but then a reference to a date of arrest for “these offences” being 17 June 2020. [4] Because of the context it is unclear what “these offences” was a reference to, but it is clear that the applicant was not arrested for anything on 17 June 2020.

7. [13]

   In summary, the judge correctly referred to the applicant’s date of arrest on 28 April 2020 multiple times and correctly referred to 17 June 2020 as being the date of sentencing at Wyong Local Court. [5] Inexplicably, however, he calculated the commencement date of the sentence he was imposing at “seven months after his arrest” as being 18 January 2021. That implies he inadvertently added seven months to 17 June 2020.

8. [14]

   The error of calculating the date of commencement of the sentence is undeniable and was conceded by the Crown. The Court should grant leave and allow the appeal.

How the Court should respond to the error

1. [15]

   The question is how the Court should approach the next step; whether to reconsider the sentencing task entirely or to just vary the sentence to correct the error. Mr Towney contends that the Court should engage in a complete re-exercise of the sentencing discretion; alternatively, it should correct the error. The Crown contends that the error is of a type for which the latter is all that is required.

2. [16]

   The Court has the guidance of the judgment of the High Court in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 40 at [42] and of a five-judge bench decision of this Court in Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255.

3. [17]

   In Kentwell v The Queen French CJ, Hayne, Bell and Keane JJ said (at [42]):

4. [18]

   In Lehn v R, the Court sat as a bench of five judges to consider the limits of when it may confine itself to correction of the error in question when upholding an appeal against sentence. The error there under consideration concerned the amount of discount allowed for an offender’s plea of guilty. Bathurst CJ (with whom the other members of the Court agreed) commenced his analysis by considering the terms of s 6(3) of the Criminal Appeal Act 1912 (NSW) which provides:

5. [19]

   Bathurst CJ noted (at [68]):

6. [20]

   However, his Honour identified the possibility of an exception to this (at [72]):

7. [21]

   Reference was made by Mr Towney to cases in which errors were identified as “discrete” and amenable to correction without the Court engaging in a complete re-exercise of the sentencing discretion. [6] However, Mr Towney sought to distinguish this case, contending that erroneous findings relevant to the starting date of the sentence had the capacity to infect aspects of the sentencing discretion. He contended that the error was not one of arithmetical miscalculation but was a matter of erroneous factual consideration, that being that Mr Towney was arrested on 17 June 2020. As a result, the judge considered that 17 June 2020 was as far back as backdating could go in accordance with ss 24 and 47 of the Crimes (Sentencing Procedure) Act. His Honour was therefore in breach of those provisions because, although he was not required to fully backdate to 28 April 2020, he was required to take into consideration that Mr Towney had been held in custody in relation to the offences for which he was being sentenced as early as that date. [7]

8. [22]

   It was submitted that his Honour’s erroneous understanding of the extent of presentence custody had the capacity to infect other sentence considerations – principally totality. [8]

9. [23]

   It was also contended that the judge’s finding of special circumstances was affected in that the extent of the variation to the non-parole and parole periods of the sentence would differ. [9]

Consideration

1. [24]

   Characterising the judge’s mistake as factual rather than arithmetical is correct but not determinative.

2. [25]

   There was an amount of pre-sentence custody and the sentencing legislation required it to be taken into account. This is conventionally done by way of backdating the commencement of the sentence. That had the complication that during that period of pre-sentence custody the applicant had served other sentences. The judge was aware of the correct terms of those sentences. He was required by the principle of totality to consider whether to accumulate the sentence he was imposing upon those sentences and if so by how much. He determined that he would accumulate the sentence he was imposing upon the Local Court sentences by seven months. He simply made a mistake in calculating what then should be the commencement date because he inadvertently added seven months to a wrong date. He should have specified the commencement date as 28 November 2020, not 18 January 2021.

3. [26]

   I am not persuaded that the judge thought the applicant had been arrested on 17 June 2020 and used that date to determine the extent of partial accumulation upon the Local Court sentences. Having earlier stated the correct date of arrest a number of times, in the critical passage set out earlier he expressly and correctly stated, “I have taken into account the fact that he has been in custody since 28 April 2020 although until 17 May 2021 he was in fact serving other sentences”. The result of the miscalculation appears only four lines later in the transcript. It is inconceivable that in that brief period he suddenly came to a mistaken view that the date of arrest was 17 June 2020 and decided upon a period of accumulation of seven months based upon it.

4. [27]

   The error in the commencement date had no bearing on the degree by which the judge intended to vary the proportions of non-parole and parole periods of the sentence. His Honour determined that a specific period in which the applicant might be allowed release on parole should be factored into the sentence. He said:

5. [28]

   A similar error of backdating to the wrong date was raised in Almaouie v R [2021] NSWCCA 274. Beech-Jones CJ at CL accepted that it was amenable to correction without re-exercise of the sentencing discretion. He explained (at [24]-[25]):

6. [29]

   The Court did not proceed to correct the error because doing so was disadvantageous to the applicant. In another case of backdating error, the Court did proceed to correct the error without re-exercising the sentencing discretion afresh. In Huynh v R [2022] NSWCCA 45, Bellew J said (at [40]):

7. [30]

   In the present case the Court should adopt the same approach and vary the sentence so as to correct the error. The commencement date should be changed to 28 November 2020 with the result that Mr Towney will become eligible for release on parole on 27 November 2023.

Orders

1. [31]

   I propose the following orders:

   1. (1)

      Leave to appeal against sentence granted.

   2. (2)

      Appeal allowed.

   3. (3)

      Vary the aggregate sentence of 4 years and 6 months with a non-parole period of 3 years imposed in the District Court on 19 August 2021 by specifying that it is to date from 28 November 2020.

2. [32]

   The applicant will become eligible for release on parole upon the expiration of the non-parole period on 27 November 2023.