Refaieh v R

1. [1]

   HOEBEN CJ AT CL: I agree with N Adams J and the orders which she proposes.

2. [2]

   JOHNSON J: I agree with the reasons and proposed orders of N Adams J.

3. [3]

   N ADAMS J: The applicant seeks leave to appeal against his sentence under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) on two grounds:

   1. (1)

      The sentencing judge failed to take into account the time for which the applicant was held in custody in relation to the offence pursuant to s 47(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the “Sentencing Act”).

   2. (2)

      The trial judge’s discretion to fix the commencement date of the sentence miscarried.

4. [4]

   The second ground was relied upon only in the event that the first ground was unsuccessful. The issue for determination is a narrow one: did the sentencing judge err by failing to back-date the applicant’s sentence to take into account pre-sentence custody served on remand in relation to an unrelated offence.

5. [5]

   On 21 October 2015, the applicant pleaded guilty to one count of knowingly taking part in the supply of a large commercial quantity of a prohibited drug (cocaine) pursuant to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (the “trafficking charge”). That offence carries a maximum penalty of life imprisonment and/or a fine of $550,000. It also has a standard non-parole period of 15 years imprisonment. The late Judge Toner SC sentenced the applicant to a non-parole period of 4 years imprisonment to commence from 20 August 2015 with a balance of term of two years. The sentence included a 25% discount for the utilitarian value of his guilty plea. Special circumstances were found “given the need for assistance in rehabilitation into the community given his long criminal history”: s 44(2) of the Sentencing Act.

6. [6]

   Given the narrow scope of this application, I do not propose to dwell on the agreed facts upon which the applicant was sentenced. Briefly, the applicant and his co-offenders were all arrested following a police operation involving a civilian participant and an undercover officer (“UCO”). A co-offender, Nathan Rodgers, had agreed to supply one kilogram of cocaine to the civilian participant and the UCO. On 3 March 2014, the civilian participant met Rodgers and a co-offender, Fouad El-Hassan, in a shopping centre. El-Hassan told Rodgers and the civil participant that the supply would take place at an address in Wiley Park and they were to follow him there. At this time the UCO was waiting in the car park. Rodgers, El-Hassan, the civil participant and the UCO drove in a convoy to a nearby McDonald’s where the supply of the cocaine was again discussed. El-Hassan left and returned with Omar Zahed.

7. [7]

   The civilian participant then got into Rodgers’ car and they followed El-Hassan and Zahed to the Wiley Park address where they met with the applicant. The applicant was in the rear patio area when one of the males lifted up a cushion on one of the outdoor chairs and exposed a block of white powder. He asked the civilian participant to sample the powder, which the civilian participant declined. The civilian participant then returned to McDonalds with Rodgers. El-Hassan followed in another car. The sale subsequently took place in the toilet area where the UCO removed the block of cocaine from Zahed’s backpack and placed $235,000 in it. They both left the toilet and Zahed and the applicant left whilst Rodgers and El-Hassan remained in McDonald’s.

8. [8]

   The block of white powder contained 1001g of cocaine with a purity of 76%.

The applicant’s bail history

1. [9]

   The applicant was arrested on 29 April 2014 in relation to the trafficking charge. On 30 June 2014 he was granted bail in the Local Court but he did not formally enter bail until 1 July 2014 at which time he was released. He was thus held in custody solely in relation to the trafficking charge for 63 days.

2. [10]

   The applicant remained on bail until 21 October 2014 on which date he was arrested and charged with murder and a back-up charge of shoot with intent to murder (the “murder charge”). He was refused bail on the murder charge but continued to have a grant of bail on the trafficking charge.

3. [11]

   After 21 October 2014 the trafficking charge matter was mentioned in the Local Court on 12 November 2014, 21 January 2015, 18 February 2015, 13 April 2015, 20 May 2015, 9 July 2015, 12 August 2015 and 26 August 2015. On each occasion the applicant was legally represented and appeared by way of audio-visual link from custody. On each occasion the record describes the applicant’s bail status as being “BTC”, (Bail to Continue). The applicant was thus being detained from that date solely in relation to the murder charge.

4. [12]

   On 21 October 2015, the applicant pleaded guilty in the Local Court to the trafficking charge and was committed for sentence to the District Court. The applicant’s notice of committal on that date contains the following description of the applicant’s custodial status in relation to the trafficking offence as: “Bail Granted – Not Entered”.

The proceedings on sentence

1. [13]

   On 8 July 2015, nearly nine months after pleading guilty in the Local Court, the applicant’s proceedings on sentence were heard before Toner SC DCJ. During oral submissions, his Honour enquired of the applicant’s counsel as to the appropriate commencement date of the sentence. I have extracted the exchange that ensued below, but in order to follow it, it is necessary to first note the relevant statutory provisions governing the fixing of commencement dates for sentences. Section 24(a) of the Sentencing Act provides that, in sentencing an offender, the court must take into account “any time for which the offender has been held in custody in relation to the offence” (emphasis added). Section 47(1) of the Sentencing Act provides that sentences are to generally commence on the day they are imposed, s 47(2) provides courts with a general discretionary power to backdate the commencement of sentences and s 47(3) requires a sentencing court exercising its discretion under s 47(2) to take into account time the offender has been held in custody “in relation to the offence”.

2. [14]

   In response to the sentencing judge’s inquiry as to when he should commence the applicant’s sentence, the following exchange occurred (Mr Howell was the applicant’s barrister):

3. [15]

   His Honour later returned to the question of the appropriate commencement date of the applicant at which time the following further exchange took place:

4. [16]

   I have extracted the above transcript on the basis that the applicant contends under the second ground that the sentencing judge failed to appreciate that he had a general discretion to backdate the sentence even if it was not referable to the trafficking charge. Although this court has been critical of reliance on transcript (rather than the Reasons) to establish error (see R v Pham [2005] NSWCCA 94 at [11] and R v Thompson (2005) 156 A Crim R 467; [2005] NSWCCA 340 both cited in Hampton v R (2014) 243 A Crim R 193; [2014] NSWCCA 131 (“Hampton v R”) at [23]), I consider it appropriate to extract the relevant transcript in this matter given the nature of the complaint made.

5. [17]

   Counsel for the applicant subsequently filed further written submissions on the question of the appropriate commencement date of the applicant’s sentence (“the supplementary submissions”). In the supplementary submissions, the applicant’s then counsel confirmed that, after the applicant was taken into custody on 21 October 2014 in relation to the other offences, no application was made for his bail in relation to the trafficking offence to be formally refused and his bail was in fact continued on a number of occasions until 21 October 2015.

6. [18]

   Having accepted that the applicant was technically on bail for the trafficking charge from 21 October 2014 until 21 October 2015, it was submitted that “the issue is whether as a matter of law the Court is entitled to take into account in determining the commencement date of the sentence the period that Mr Refaieh has been in custody since 21 October 2014” (emphasis added). It was submitted that the Court was entitled, in the exercise of its discretion, to do so on a number of bases.

7. [19]

   First, s 47(2)(a) of the Sentencing Act provides the discretion to direct that a sentence be backdated.

8. [20]

   Second, s 47(3) of the Sentencing Act provides that, in exercising its discretion, the Court must take into account time served in custody pre- sentence which relates to the offence, but s 47(3) does not fetter the scope of the general discretion provided by s 47(2)(a) of the Act. Counsel relied on five factors which favoured the exercise of the discretion to backdate the sentence to 21 October 2014:

   1. (1)

      There was no guarantee that he would be convicted in relation to the murder;

   2. (2)

      Had his solicitors been more prudent and applied for his bail to be revoked there would be no dispute about his entitlement to have his sentence backdated to cover that period;

   3. (3)

      Taking the period of custody into account for the trafficking offence would ensure that it was taken into account in respect of a sentence he will actually be serving;

   4. (4)

      To not take the time into account created the risk that a period of one year and nine months would not be counted towards any sentence of imprisonment that the applicant was required to serve; and

   5. (5)

      The exercise of the general discretion provided by s 47(2) of the Sentencing Act must be informed by consideration of fairness and reasonableness and the need to avoid a practical injustice being occasioned to the applicant.

Reasons of the sentencing judge

1. [21]

   Having received the supplementary submissions, his Honour dealt with this issue in his reasons for sentence as follows:

2. [22]

   Thus it can be seen that the sentencing judge backdated the sentence to take into account two of the three time periods which the applicant’s counsel had urged should be taken into account in relation to the applicant’s sentence.

3. [23]

   The “first period” of time that his Honour took into account was the period from 29 April 2014 until he was released on bail on 1 July 2014. This was clearly time in custody “in relation to” the trafficking offence.

4. [24]

   The “second period” of time that his Honour took into account was that from 21 October 2015 (when the applicant pleaded guilty) until the applicant was sentenced on 15 July 2016 (267 days, however see below at [27]). The committal papers show that a different result was entered for the applicant’s bail status on 21 October 2015.

5. [25]

   The “third period” of time was the period from 21 October 2014 (when the applicant was arrested and refused bail on the murder charge) until 21 October 2015 (when he pleaded guilty to the trafficking offence). The court papers show that his bail was continued on the trafficking charge during this period. His Honour did not backdate the sentence to take this third period into account. I shall hereafter refer to this period as the “third period”.

6. [26]

   In backdating the applicant’s sentence, his Honour made a minor arithmetic error which resulted in one day that the offender had served in custody not being taken into account.

7. [27]

   His Honour correctly took into account 63 days that the applicant had spent in custody with respect to the period between 29 April 2014 and 1 July 2014. However, for the period between 21 October 2015 and 15 July 2016, his Honour only allowed for 267 days, whereas 268 days should have been taken into account. As a result, his Honour only allowed for a total of 330 days (63 days + 267 days) instead of a total of 331 days (63 days + 268 days). Therefore, the sentence should have commenced on 19 August 2015 instead of 20 August 2015 and should have expired on 18 August 2019 rather than 19 August 2019.

8. [28]

   I shall return to the question of the arithmetic error further below.

Post sentence events

1. [29]

   On 7 April 2017, the Director of Public Prosecutions directed that there be no further proceedings in relation to the murder charge.

The applicant’s submissions

1. [30]

   In relation to the first ground of appeal it was noted that the words “in relation to” in s 47(3) of the Sentencing Act have not been defined. However, reliance was placed on decisions of this court in support of the submission that the definition of “in relation to” is sufficiently broad to capture the applicant’s circumstances: R v Callaghan (2006) 160 A Crim R 145; [2006] NSWCCA 58 (“R v Callaghan”); R v Windle [2012] NSWCCA 222 (“R v Windle”); Sultana v R [2007] NSWCCA 107 (“Sultana v R”); R v Karageorge [1999] NSWCCA 213 (“R v Karageorge”). A broad construction of the words was urged. It was the applicant’s position that when this approach is combined with the general discretion in s 47(2), the result is a purposive construction that minimises the prospects of an unjust result in sentencing.

2. [31]

   It was submitted at the hearing that there is a sufficient temporal link between the third period and the trafficking offence to bring the third period within the definition of being “in relation to” the trafficking offence. The case was distinguishable from those in which an applicant spends a period of time in custody, is acquitted, is charged with a subsequent offence and then seeks that the sentence be back-dated to include the period of time prior to the commission of the offence.

3. [32]

   Another circumstance relied upon is that because the applicant was in fact in the custody of Corrective Services New South Wales at the relevant time, rather than at large, the grant of bail was essentially futile. It was submitted that s 7(3) of the Bail Act 2013 (NSW) provides that bail is an entitlement to be at liberty. It is thus illusory to say that the applicant was on bail in relation to the trafficking offence when he was in custody, in effect, “in relation to” the trafficking offence.

4. [33]

   It was also submitted that it is far from clear that under the Bail Act the applicant could have simply sought to have his bail revoked in any event.

5. [34]

   In relation to the second ground of appeal, it was submitted that his Honour, after having found that the custody was not “in relation to” the subject offence for the purpose of s 47(3), failed to turn his mind to whether he should exercise his discretion to backdate the sentence under s 47(2) nonetheless. The applicant’s contention was that his Honour erred by approaching the exercise on the basis that if the time was not spent “in relation to” the trafficking offence then that was the end of the matter. It was also submitted that if his Honour did exercise the discretion under s 47(2), he failed to provide reasons for declining to do so.

6. [35]

   The applicant provided examples of when the discretion in s 47(2) had been applied such as to take into account quasi-custodial conditions such as residence at residential rehabilitation facilities, immigration detention and onerous bail conditions: Parkhizkar v R (2014) 245 A Crim R 515; [2014] NSWCCA 240; R v Dadash [2012] NSWSC 1511; R v Connell [2013] NSWCCA 155 and R v Cartwright (1989) 17 NSWLR 243. It was submitted that it was difficult to reconcile the positions of a person who might be credited with time spent in quasi custody with the applicant’s situation.

7. [36]

   The applicant referred to a number of cases that have emphasised that regardless of the technicalities of bail or detention in any particular case, the overarching consideration is to do justice in the circumstances of the particular case: R v Callaghan; R v Windle; Sultana v R; and R v Karageorge. It was submitted that for justice to be achieved, his Honour should have accounted for the substantial time the applicant spent in custody while his case was pending, “for which he has received no credit”.

8. [37]

   It was also contended that, when looking at the sentence received by the applicant’s co-offender, Mr El-Hassan, the applicant has a justifiable sense of grievance. Ultimately, the applicant submitted that the Court should set aside the sentence and re-sentence the applicant to take into account 696 days of pre-sentence custody.

The Crown’s submissions

1. [38]

   In relation to ground one, the Crown submitted that there was no error in the sentencing judge’s conclusion that the third period was not time spent in custody “in relation to” the trafficking offence. Reliance was placed on the decisions in Hampton v R, R v Niass (Court of Criminal Appeal (NSW), 16 November 1988, unrep) (“R v Niass”) and Hamilton v R [2016] NSWCCA 59 (“Hamilton v R”). It was submitted that the decisions relied upon by the applicant do not assist in this regard and nor does reliance upon the provisions of the Bail Act.

2. [39]

   It was noted that the court papers for the committal hearing on 21 October 2015 indicated that a new bail decision was made on that day and it was therefore open to his Honour to treat the second period of time differently to the third period.

3. [40]

   As for ground two, it was submitted that: no House v R (1936) 55 CLR 499; [1936] HCA 40 (“House v R”) error has been demonstrated in the exercise of the sentencing judge’s discretion; the applicant’s parity analogy should not be accepted; and that the cases relied upon by the applicant regarding quasi-custody are all distinguishable.

Consideration

1. [41]

   The first ground of appeal concerns whether the sentencing judge was required to take into account the “third period” by virtue of s 47(3) of the Sentencing Act which provides that “the court must take into account any time for which the offender has been held in custody in relation to the offence” (emphasis added).

2. [42]

   I note at the outset that, as is evidenced by the transcript extracts and the summary of the supplementary submissions filed in the District Court, it was not suggested to the sentencing judge that the third period was time spent “in relation to” the trafficking offence. Rather, the submissions in the District Court were all directed to the exercise of the sentencing judge’s general discretion to backdate the commencement of a sentence as a matter of practical fairness.

3. [43]

   I am not satisfied that, as a matter of construction, it could be argued that the third period, during which time the court papers record the applicant having a grant of bail for the trafficking charge, could be considered to be a period during which the applicant was held in custody “in relation to” the trafficking offence.

4. [44]

   Although the applicant relied upon a number of decisions of this court in support of this ground, it was accepted that there is no authority for the proposition that an offender who has bail on the subject charge should be considered to be in custody “in relation to” it because he is being held on remand in relation to an unrelated charge. Rather, the decisions relied upon concern the issue of commencement dates for sentences in circumstances where an offender is detained on more than one basis.

5. [45]

   The decision in R v Callaghan, relied upon by the applicant, is authority for the proposition that, when parole is revoked because of the commission of a subsequent offence, the sentencing judge has a discretion as to when the subsequent sentence should commence. In that matter, the sentencing judge had commenced the offender’s sentence for the subsequent offences after the balance of parole had expired. Simpson J (as her Honour then was), with whom James and Hall JJ agreed, held that a discretion exists in terms of whether to backdate the sentence to the date parole was revoked, to another point in time during the parole period, or to after the head sentence had expired. Her Honour held that the course of action taken by the sentencing judge is to be informed by the circumstances of the particular case and observed (at [24]-[25]):

6. [46]

   Thus, that decision is concerned with the general discretion as to when to commence a sentence for an offence committed when the offender has been in custody both serving a balance of parole and bail refused on the subsequent offences. It does not assist on the question of whether, when an offender has bail for one offence but is bail refused on another, he or she can be considered to be in custody in relation to both offences.

7. [47]

   In R v Windle, another decision relied upon by the applicant, the offender was serving the parole portion of his sentence (his non-parole period had expired) when he committed a further offence in custody. The sentencing judge backdated the commencement date for the subsequent sentence to the first date at which parole was considered following the commission of the subsequent offence. Although the backdating of the sentence was not a point agitated on appeal, Basten JA, with whom Price and Campbell JJ agreed observed:

8. [48]

   These decisions confirm that there is a general discretion as to when to commence a sentence committed whilst on parole which leads to parole being revoked. They do not assist on the construction of “in relation to” in s 47(3) of the Sentencing Act.

9. [49]

   Hutchen v R [2015] NSWCCA 101 concerned an offender whose parole had been revoked when he was arrested for a subsequent offence. The court rejected the argument that the time spent in custody following the revocation of the offender’s parole was “in relation to” this new offence. Hoeben CJ at CL, with whom Adams and MacCallum JJ agreed held (at [36]):

10. [50]

    These decisions concerning sentencing of offenders whose parole has been revoked following subsequent offending establish that there is a general discretion as to when to commence the sentence but the balance of term is not time spent “in relation to” the subsequent offence. They do not support the construction of “in relation” to in s 47(3) advanced by the applicant.

11. [51]

    Another decision relied upon by the applicant on this issue is Sultana v R. In that decision the offender was sentenced with respect to one count on an indictment with two further offences taken into account on a Form 1 (see s 32 of the Sentencing Act). The two Form 1 offences were charged prior to the date that the offence on the indictment was charged. Although the offender had spent two months and 17 days in pre-sentence custody with respect to the Form 1 offences prior to the offence on the indictment being charged, the sentencing judge did not backdate the sentence so as to account for this period. Rather, he commenced the imprisonment term from the date the offender entered pre-sentence custody with respect to the offence on the indictment. The Court (Hidden J with whom McClellan CJ at CL and Rothman J agreed) allowed the appeal and re-sentenced the offender to account for the two months and 17 days and in doing so observed at [15]:

12. [52]

    I have not found that decision to be of assistance in construing whether the third period in the present matter was custody “in relation to” the trafficking offence.

13. [53]

    The Crown relied upon the decision in Hamilton v R. In that matter, the applicant was granted bail on 27 April 2014 in relation to an offence of aggravated break and enter. On 29 September 2014, he was arrested for an unrelated aggravated robbery and was bail refused in relation to that offence only. On 21 October 2014, he pleaded guilty to the first charge and was then bail refused on that offence as well. Thus, in the period between 29 September 2014 and 21 October 2014, the applicant was on bail in respect to the offence in relation to which he was being sentenced even though he was at that time in custody bail refused in relation to an unrelated offence. The matter for which he was arrested on 29 September 2014 was subsequently “no-billed” in August 2015. It was accepted by the Crown on appeal that the sentencing judge erred in commencing the sentence from the date it was imposed and that the sentence should be backdated to the date upon which he was formally bail refused in respect of the offence the subject of the appeal. Schmidt J (with whom Hoeben CJ at CL and Harrison J agreed) observed (at [14]):

14. [54]

    Her Honour went on to observe at [19]:

15. [55]

    Hamilton v R is factually similar to the present matter although it is to be accepted that the parties in that matter agreed that the backdating should not extend to the time the applicant was in custody for the matter which was “no-billed” and on bail for the subject offence; it is not clear from the decision whether the court heard any argument on this issue.

16. [56]

    Having regard to all of these decisions I am not satisfied that any of them support the applicant’s argument that the words “in relation to” ought to be construed so broadly as to include time when the applicant was on bail for the offence but not eligible to be released because of other charges.

17. [57]

    Nor am I satisfied, contrary to the applicant’s submissions, that any assistance as to the construction of the words “in relation to” in the present matter is to be found in the Bail Act. It is to be accepted that, although the applicant was entitled to be released on bail for the trafficking charge, he remained in custody on the murder charge, but the operation of ss 7 and 14 of the Bail Act does not act to alter the applicant’s bail status for the trafficking offence during the third period. “Bail” is defined in s 7 as follows:

18. [58]

    Section 14(3) of the Bail Act provides:

19. [59]

    The fact that the applicant was not entitled to be released from custody during the third period does not mean that his bail status for the trafficking charge throughout that period was altered. If at any stage during that time he was either granted bail in relation to the murder charge or it had been discontinued he would have been entitled to immediate release.

20. [60]

    No evidence was put before this court nor the court below as to why it was that the applicant’s bail was not revoked during the relevant period. There are three possible explanations. The first explanation is that it was oversight. This was advanced as an explanation in the supplementary submissions filed in the District Court. The second explanation is that a decision was made not to seek to have bail revoked as this would enable his immediate release should there be any change in relation to the murder charge.

21. [61]

    A third possible explanation was advanced by counsel for the applicant at the hearing of the appeal. It was submitted that the reason why no application was made to have the applicant’s bail revoked on the trafficking charge could well have been that there is no obvious mechanism under the Bail Act to do so. I am unable to accept this submission. It is true that s 50 of the Bail Act only permits “detention applications” to be brought by the prosecutor and not an accused person but there are other avenues by which the applicant could have sought to have his bail revoked on the trafficking charge from 21 October 2014. For example, s 51 of the Bail Act provides that an “interested person” (including the offender) may seek a bail variation and the court has the power to revoke bail on such an application. Although s 51(9) provides that “[a] court must not revoke bail on a variation application unless revocation is requested by the prosecutor in the proceedings,” I do not accept that a court would decline an offender’s application to have his or her bail revoked if the request was not joined by the prosecutor. In short, I am not satisfied that the process of seeking to have bail revoked is so difficult under the Bail Act that this Court should proceed on the basis that the third period in this matter should be considered time in custody “in relation to” the trafficking charge. The fact remains that there was no evidence before the court as to why the applicant did not seek to have his bail revoked on the trafficking charge and it is inappropriate to speculate on that issue.

22. [62]

    As for the applicant’s submission that he was effectively in custody “in relation to” the trafficking offence during the third period because it was not spent at large, as I have already noted, if the murder charge had been withdrawn or the applicant had been granted bail in relation to it, he would have been entitled to immediate release from custody.

23. [63]

    Finally, I do not accept the applicant’s submission that his custodial status during the second period was virtually indistinguishable from the third period and that error is thus disclosed by his Honour’s differentiation in this regard. During the third period his bail was never re-considered. Rather, the papers were marked that bail on the trafficking charge was continued on each occasion. That changed on 21 October 2015 as is evidenced by the papers being marked that, although bail was formally granted, it was not entered. On this basis it was open to the sentencing judge to conclude that the applicant was no longer on bail for the trafficking offence thereafter.

24. [64]

    Overall, I am not satisfied that the sentencing judge erred in concluding that the period of time from 21 October 2014 until 21 October 2015 was not custody spent “in relation to” the trafficking offence. He was not asked to make such a finding in any event.

25. [65]

    The second ground of appeal concerns whether, even it is to be accepted that the sentencing judge was not required to backdate the sentence to take into account the third period, his Honour erred nonetheless by failing to do so in the exercise of his discretion under s 47(2) of the Sentencing Act. As Hoeben CJ at CL observed in Delaney v R (2013) 230 A Crim R 581; [2013] NSWCCA 150 at [60]:

26. [66]

    Two alternate complaints were made under this ground. First, it was contended that, having been satisfied that the third period was not pre-sentence custody spent “in relation to” the trafficking offence, his Honour failed to consider whether he should nonetheless exercise the discretion conferred upon him under s 47(2) of the Sentencing Act. Second, it was contended that if in fact his Honour did turn his mind to the exercise of his general discretion, he erred in the exercise of his discretion by declining to take into account the third period. I shall consider these two complaints in turn.

27. [67]

    First, I do not accept that the sentencing judge mistakenly was of the view that if the relevant pre-sentence custody was not “in relation to” the trafficking offence that was the end of the matter. A fair reading of his Honour’s reasons does not disclose this. Considerable time was spent during the hearing considering this issue (as the transcript of the proceedings on sentence extracted above shows) and supplementary submissions were filed on the question of the exercise of this discretion. Those submissions addressed the reasons why the discretion should be exercised in favour of backdating the sentence to take into account both the second and third periods. There is considerable overlap as between the reasons but they all turn on the simple proposition that if the backdating is deferred to the sentencing on the murder charge and he is acquitted on that charge a practical unfairness would result given that he was in fact in custody throughout the third period.

28. [68]

    I am satisfied that when one has regard to the transcript of the proceedings on sentence, the supplementary submissions and the observations by his Honour extracted above, it could not be said that his Honour failed to apprehend that he had a discretion in this regard. Although his Honour did not specifically address these arguments in his reasons for sentence, it is tolerably clear that his reason for not backdating the sentence to include the third period is that the applicant was on bail during that time for the trafficking offence and it was time referable solely to the murder charge. The arguments all invited his Honour to effectively deem the third period as time when he was bail refused on the trafficking charge but his Honour was not inclined to do so. I am not satisfied that the reasons for adopting this course are inadequate.

29. [69]

    Even if the applicant’s bail on the trafficking charge had been revoked, the question would still have arisen as to whether the third period should be taken into account for the trafficking charge or the murder charge. There is nothing in either ss 24 or 47 of the Sentencing Act which mandates that when the same period on remand is referable to more than one separate offence the sentencing judge is required to take the remand period into account on the first sentence in time to ensure that it is actually taken into account. Nor am I aware of any decision of this court to that effect. Despite this, it seems to me that, as a matter of general practice, this is the preferred approach. It would then be open for the sentencing judge to make clear that the relevant period had already been taken into account to ensure that when it came time for the offender to be sentenced on the second offence that, putting to one side issues of totality, there was no “double counting” of the relevant remand period. This approach was taken in R v Karageorge, a case relied upon by both the applicant and the respondent in the present matter. The difficulty is that this presupposes that the applicant was in custody during the third period on both the murder charge and the trafficking charge.

30. [70]

    In R v Karageorge, the applicant was charged with five separate offences on three separate dates. He was sentenced to a term of imprisonment for the third offence whilst being bail refused on the first, fourth and fifth offences. This court subsequently quashed his conviction on the third count and ordered a new trial. The question arose on appeal as to whether the time he was bail refused on counts 1, 4 and 5 could be taken into account when being sentenced for those offences given that he was also serving a sentence following a conviction on a count that was subsequently quashed. Mr Karageorge’s appeal was allowed on the basis that, at the time he was serving the imprisonment sentence, he was also bail refused in relation to the subject offences. The Court rejected the Crown’s argument that it would be incongruous that credit be allowed for time served in relation to a sentence set aside on appeal depending on whether bail has been allowed or disallowed in relation to the offence in question. Sperling J stated (at [22]):

31. [71]

    Spigelman CJ (with whom Simpson J agreed) noted that the applicant should not expect to receive credit twice for this period if he was again convicted at his new trial on the count in relation to which his conviction had been quashed ( at [28]-[29]).

32. [72]

    The principle referred to in R v Karageorge above (at [68]) comes from the decision in R v Niass. In that case, the sentencing judge had rejected the applicant’s submission that time spent in custody on unrelated charges, of which he had been tried and subsequently acquitted, should count towards the offence before the Court. On appeal to this Court Lee CJ at CL, with whom Gleeson CJ and Allen J agreed, rejected the proposition that the applicant had a “legitimate grievance” in a sentencing sense. His Honour observed that “[m]any persons are acquitted for all sorts of reasons which have little to do with the question of actual innocence of that person” (at p 2). His Honour also stated:

33. [73]

    In Hampton v R, a five-judge bench of this Court confirmed that time spent in custody in relation to one offence cannot be “banked” such that if the applicant is subsequently acquitted on that charge it must be applied to the present sentence. Johnson and Bellew JJ (with whom Gleeson JA and Price and Garling JJ agreed) noted at [26] that the argument put forward by the applicant was that the sentencing judge was bound to consider the period of time spent in custody on remand for earlier unrelated charges upon which he was ultimately discharged and to “take it into account in the exercise of the sentencing discretion”. Their Honours went on to observe (at [27]-[30]):

34. [74]

    The facts in the present matter differ to those in Hampton v R and R v Niass. The unrelated custody in those matters was served prior to the commission of the offences in question. It was in that context that the court rejected any suggestion that there could be a form of “credit” in relation to that custody. Despite this, I accept the Crown submission that, by analogy, these decisions are authority for the proposition that there is no overriding obligation to take into account custody that does not fall within the definition of being “in relation to” the subject offence.

35. [75]

    The question of the appropriate commencement date for a sentence was recently considered in Little v R [2018] NSWCCA 63. In that matter the applicant had been bail refused in relation to both kidnapping and driving offences from 13 July 2015. He was sentenced in relation to the driving offences to a fixed term of 10 months to date from 13 July 2015. On 23 June 2016 he was sentenced in relation to the kidnapping charge to a term of imprisonment to commence on 13 November 2015 (4 months after bail had been refused). The sentencing judge expressly took into account the principle of totality both when formulating the sentence and determining the commencement date. On 23 February 2017 the conviction and sentence for the driving offences were set aside on appeal to the District Court, On appeal to this court, (Hoeben CJ at CL, with whom Johnson and Price JJ agreed), it was held that in reliance on the principles in Khoury v R [2011] NSWCCA 118; 209 A Crim R 509, the change in circumstances concerning the driving offences could be before the court. The court went on to hold that it was appropriate to intervene and re-sentence the applicant, but it refused to backdate the sentence to 13 July 2016 because the consideration of the totality principle was part of the overall intuitive synthesis on the part of the sentencing judge. Instead, the sentence was back-dated to commence two months earlier on 13 September 2015.

36. [76]

    The decision in Little v R was concerned with a different issue. The applicant was in custody from 13 July 2015 in relation to both the kidnapping charge and the driving offences and the issue was one of totality. The grounds of appeal in Little v R initially relied upon error in not backdating the sentence to 13 July 2015. This ground of appeal was withdrawn when it was pointed out that this is a court of error and there was no error in the sentence at the time it was imposed. Leave was granted for the applicant to rely on a sole new ground of error being that because the sentence was partially accumulated upon the sentence for the driving offences in circumstances where the applicant had been concurrently in custody bail refused, the setting aside by the District Court of the sentence for the driving offences gave rise to a miscarriage of justice given the application of the totality principle by the sentencing judge.

37. [77]

    Having considered all of these decisions, the question is, ultimately, whether House v R error can be established in the approach taken by the sentencing judge. Gleeson CJ, Gummow and Callinan JJ restated the relevant principles in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25] when their Honours observed:

38. [78]

    I am not satisfied that any error of principle has been made by the sentencing judge. It was not suggested that his Honour allowed any extraneous or irrelevant matters to affect his decision. He did not mistake the facts nor did he fail to take a material consideration into account. Nor could it be said that his Honour’s decision not to backdate the sentence to take into account the third period was unreasonable or plainly unjust. Rather, the applicant’s central complaint is that his Honour should have exercised his discretion differently. Many of the arguments relied upon by the applicant in this court on this issue were also put to the sentencing judge but his Honour was not persuaded by them.

39. [79]

    Although it is to be accepted that the subsequent discontinuance of the murder charge has meant that the applicant spent the third period in custody in relation to an offence for which he was never convicted, that was not the situation which presented itself to the sentencing judge; there was no suggestion at that time that there would be no further proceedings in relation to it. Had the applicant ultimately been convicted of the murder charge, then no complaint could be made in relation to the present matter. Although a notice of intention to appeal was filed on 20 July 2016, that notice was extended on four occasions to 15 January 2018. The notice of appeal was not filed until 5 January 2018. Although it was filed within time, it is to be noted that it was not filed until after the murder charge was discontinued.

40. [80]

    Nor could it be suggested that his Honour did not turn his mind to the prospect that the applicant may not ultimately be convicted in relation to the murder charge. Again, the transcript discloses that his Honour was aware of the Niass principle that time cannot be “banked” as well as the consequences of his approach should the applicant be acquitted on the murder charge. This issue was a further matter addressed in the supplementary submissions.

41. [81]

    The applicant’s complaint regarding parity with Mr El-Hassan is answered in the same way. There would be no disparity had the third period been subsequently taken into account for the murder charge. Any sense of grievance on the part of the applicant flows from that rather than the commencement date for this sentence.

42. [82]

    The discretion under s 47(2) of the Sentencing Act is broad. It would have been open to the sentencing judge to have backdated some or all of the third period in the exercise of his sentencing discretion. Had that approach been taken, the practical result would have been that the applicant would not have spent time in custody for an offence in relation to which he was subsequently acquitted. Just because it was open to his Honour to exercise his discretion differently, and that other judges may well have done so, it does not follow that House v R error has been established in the approach taken in this matter.

43. [83]

    Finally, it was conceded by the Crown that the sentencing judge erred in his calculations by one day. It was accepted by counsel during the hearing of this appeal that it would be appropriate for this court to make that adjustment. As the High Court observed in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 citation at [42] there will be some cases where error can be corrected without the need to undertake the sentencing discretion afresh. The correction of an arithmetic error in the commencement date of a sentence falls within this category: Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255 at [72].

44. [84]

    In consideration of the above, I would make the following orders:

    1. (1)

       Leave to appeal is granted.

    2. (2)

       The appeal is allowed to the extent of one day.

    3. (3)

       The sentence imposed by Judge Toner SC on 15 July 2016 is adjusted so that the applicant is sentenced to a term of imprisonment with a non-parole period of four years commencing 19 August 2015 and expiring 18 August 2019 with a balance of term of two years, expiring 18 August 2021.