Huynh v R

1. [1]

   ADAMSON JA: Davis Huynh (the applicant) seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the aggregate sentence imposed by Fitzsimmons SC DCJ (the sentencing judge) on 10 February 2023 in the District Court at Sydney.

2. [2]

   The applicant was committed for sentence from Burwood Local Court on 7 September 2022, following a plea of guilty to an offence of aggravated break and enter with intent (knowing persons there) pursuant to s 113(2) of the Crimes Act 1900 (NSW), which carries a maximum penalty of 14 years’ imprisonment (the break and enter offence), and an offence on a certificate pursuant to s 166 of the Criminal Procedure Act 1986 (NSW) of contravene prohibition/restriction in an Apprehended Domestic Violence Order (ADVO) contrary to s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), which carries a maximum penalty of 2 years’ imprisonment and/or 50 penalty units (the s 166 offence) (together the subject offences).

3. [3]

   The sentencing judge imposed an aggregate sentence of 4 years’ imprisonment commencing on 17 March 2022 and expiring on 16 March 2026 with a non-parole period of 3 years. The earliest date on which the applicant will be eligible for release will be 16 March 2025. As can be seen from the ratio of 75% between the non-parole period and the total term, no finding of special circumstances was made.

4. [4]

   The indicative sentences, after deduction of 25% for the plea of guilty were 3 years and 9 months’ imprisonment for the break and enter offence and 9 months’ imprisonment for the s 166 offence.

5. [5]

   The only issue before this Court is the commencement date of the sentence. The Crown submitted and the applicant accepted that, even if both grounds of appeal were made out, the principles in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 did not require this Court to re-sentence the applicant and that all that was required to correct any error was to alter the commencement date of the sentence.

6. [6]

   The applicant sought leave to appeal on the following grounds:

7. [7]

   The Crown conceded ground 1 but contended that the matter raised in ground 2 was a matter of discretion for the sentencing judge and that it had not been established that the sentencing discretion miscarried.

The sentence hearing

1. [8]

   The proceedings on sentence were heard on 27 January 2023. The material tendered by the Crown (which was ultimately not contested) established the following chronology.

2. [9]

   The H83833822 offences and the H85215060 offences have been described as “other offences” because they were separate and distinct from the subject offences. However, they all involved acts of domestic violence (including assault and intentionally choking) and breaches of an ADVO in respect of the applicant’s long-term partner.

3. [10]

   At the sentence hearing, the Crown informed the Court that the applicant had spent a total of 372 days in custody, of which 311 were referable to the subject offences. Counsel who appeared for the applicant at the sentence hearing agreed with the Crown’s figures. The figure of 310 days was also mentioned but this appears to be based on the misapprehension that the applicant’s time in custody between 13 and 14 October 2021 was only one day, when the applicant was entitled to have it count as two days, since he spent part of each of two days in custody.

4. [11]

   The figure of 372 represented the total number of days which the applicant spent in custody between his arrest on 13 October 2021 and the sentence hearing on 27 January 2023. The figure of 310 was arrived at by deducting 62 days, being the sum of 24 days (referable to the H83833822 offences) and 38 days (referable to H85215060 offences), from the total of 372.

5. [12]

   At the sentence hearing, the Crown submitted that it would be open to the sentencing judge to back-date the commencement of the sentence from “anywhere” between 310 days and 372 days before the day on which the sentence was imposed. It was ultimately agreed before the sentencing judge that the relevant figures were 311 days and 372 days.

6. [13]

   The Crown’s submission that the sentence could be back-dated by a maximum of 372 days was favourable to the applicant since it involved regarding all the time spent in custody for the H83833822 offences and the H85215060 offences as constituting custody referable to the subject offences, whereas the figure of 311 involved a deduction for the time spent in custody for all of the H83833822 offences and the H85215060 offences. It is reasonable to assume that the Crown made this concession as it did not have available the reasons of the respective magistrates and therefore could not establish that the pre-sentence custody for either of the H83833822 offences or the H85215060 offences had been taken into account by the magistrates when ordering the Community Correction Orders.

The sentencing judgment

1. [14]

   The sentencing judge said, of present relevance, at [60]:

Consideration

1. [15]

   The relevant statutory provisions are ss 24 and 47 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Act). Section 24(a) of the Act provides that the court must take into account any time for which the offender has been held in custody in relation to the offence. Section 47(2)(a) entitles a sentencing court to direct that a sentence is taken to have commenced on a day occurring before the day on which the sentence is imposed. In other words, s 47(2)(a) of the Act authorises back-dating. The combined effect of ss 24 and 47 is that a sentencing judge may back-date a sentence to take account of time spent in custody in relation to the offence. This method is both authorised and preferred: Wiggins v R [2010] NSWCCA 30 at [2] (McClellan CJ at CL) and [3]–[8] (Howie J).

2. [16]

   As referred to above, the Crown accepts, as alleged in ground 1, that the sentencing judge ought to have back-dated the sentence by a further 14 days to allow for the further time in custody between the sentence hearing and the sentencing judgment.

3. [17]

   In order to correct this error, it is necessary to back-date the sentence by a further 14 days. If this were the only error, this Court would order that the sentence commenced on 3 March 2022, 14 days before 17 March 2022.

4. [18]

   It is plain from the sentencing judge’s reasons that the sentencing judge was persuaded by the Crown who appeared at the sentence hearing that his Honour had a discretion (which was apparently unfettered) to choose any number of days between 310 or 311 and 372 days, to which to back-date the sentence.

5. [19]

   However, this discretion had to be exercised (or evaluative judgment had to be made) on a principled basis and required his Honour to make a judgment as to how many of the 62 days ought be regarded as being referable to the subject offences. As the sentencing judge did not have access to the reasons of the magistrates who had imposed Community Correction Orders for the H83833822 offences and the H85215060 offences, his Honour could not know with certainty that the time in custody for each set of those offences had been taken into account by the magistrates. Given the Crown’s concession at the sentence hearing, no assumption could be made that it was. While pre-sentence custody should only be taken into account once (R v Wood [2005] NSWCCA 159 at [5] (Howie J); Martinez v R [2015] NSWCCA 5 at [30]-[34] (R A Hulme J, Gleeson JA and Campbell J agreeing)), it would be unfair to an offender not to take it into account at all.

6. [20]

   The sentencing judge did not explain on what basis his Honour chose to back-date the sentence by 330 days or how it related to the time spent in custody for the H83833822 offences and the H85215060 offences. This itself established error. Further, the sentencing judge purported to “accumulate” the sentence for the subject offences on the Community Correction Orders for the other offences. This, too, was an error since the Community Correction Orders were non-custodial (although they coincided with periods in custody). It is not necessary to address this matter further as it was not the subject of a ground of appeal.

7. [21]

   As referred to above Mr Trevallion, who appeared for the applicant with Mr Lang did not, in this Court seek, on re-sentence, back-dating for the 38 days spent in custody for the H85215060 offences. Although he did not explain why he did not seek such back-dating for the 38 days but did seek back-dating for the 24 days for the H83833822 offences, it can reasonably be inferred that, by the time Mr Trevallion made the concession about the 38 days in this Court, he was privy to material which indicated that the magistrate, when sentencing the applicant for the H85235060 offences, took into account the 38 days which the applicant spent in custody between 15 February 2022 (when he was arrested for those offences) and 24 March 2022 (when the Community Correction Order was imposed for those offences). I note that neither Mr Trevallion nor Mr Lang appeared on behalf of the applicant before the sentencing judge. I assume that they made enquiries before the hearing in this Court to ascertain whether, and to what extent, any pre-sentence custody had been taken into account for either the H85215060 offences or the H83833822 offences and ascertained that the 38 days had been taken into account for the H85215060 offences.

8. [22]

   On the basis of this concession, Mr Trevallion properly confirmed that he did not seek to have the commencement date backdated other than to take into account the full 24 days for the H83833822 offences and the 14 days between the proceedings on sentence and the imposition of the sentence for the subject offences.

9. [23]

   The sentencing judge was in error in failing to explain why his Honour considered that 19 days (out of the total of 62 days spent in custody for the other offences) ought be regarded as referable to the subject offences. Although this error was not the subject of ground 2, the lack of reasons serves to confirm that the allowance which the sentencing judge made for pre-sentence custody was not made on a rational basis.

10. [24]

    In circumstances where the Crown did not provide the sentencing judge with any basis (beyond speculation) to conclude that the time spent in custody for the H83833822 and H85215060 offences had already been taken into account by the magistrates in fixing the term of the Community Correction Orders, the sentencing judge ought to have allowed the whole of the pre-sentence custody when imposing the sentence for the subject offences. For the reasons given above, this Court is in a better position than the sentencing judge because of the concession made on behalf of the applicant with respect to the 38 days for the sentence for the H85215060 offences.

Conclusion

1. [25]

   For the reasons given above, I am satisfied that the commencement date of the aggregate sentence should take into account the total number of days (387 days) spent in pre-sentence custody less the 38 days spent in pre-sentence custody for the H85215060 offences, with the result that the commencement date of the sentence is backdated to 26 February 2022, being 349 days before 10 February 2023.

Further matters

1. [26]

   The sentence imposed in this case demonstrates the importance of providing assistance to sentencing judges to ensure that errors of the variety established are avoided. For the reasons given by this Court in Mattiussi v R [2023] NSWCCA 289 at [54] (R A Hulme AJ, myself and Button J agreeing), it is preferable for the Crown to nominate a commencement date for the sentence (or a range of commencement dates) rather than a number of days. Had this approach been adopted, the error which is the subject of the first ground would have been avoided.

2. [27]

   Further, if the Crown intends to submit that pre-sentence custody has already been taken into account in sentencing for other offences, it will usually be necessary for it to obtain the reasons of the judicial officer who imposed the sentence for the other offences. Otherwise the judge imposing a sentence for the subject offences will have no guidance as to the time for which the offender has been held in custody for the subject offences and may, as in the present case, have no basis for finding that any of the pre-sentence custody has already been taken into account in the other sentences.

3. [28]

   I note that Basten AJA has addressed the validity of Community Correction Orders made when the person is serving a custodial sentence for other offences. I would prefer not to express a view about this topic. The parties agreed that such orders could be made in these circumstances. The matter was not the subject of argument and did not arise for determination in the present appeal.

Proposed orders

1. [29]

   For the reasons given above, I propose the following orders:

   1. (1)

      Grant leave to appeal.

   2. (2)

      Allow the appeal.

   3. (3)

      Set aside the aggregate sentence imposed by Fitzsimmons SC DCJ on 10 February 2023 and, in lieu thereof, impose a sentence of 4 years’ imprisonment, commencing on 26 February 2022 and expiring on 25 February 2026, with a non-parole period of 3 years, commencing on 26 February 2022 and expiring on 25 February 2025.

   4. (4)

      Note that the first day on which the applicant will be eligible for parole is 26 February 2025.

2. [30]

   BASTEN AJA: I agree that the applicant, Davis Huynh, should have leave to appeal and that his appeal against sentence should be allowed. I also agree that because the necessary correction with respect to ground 1 arises from an arithmetical error, it can be addressed by a simple adjustment to the commencement date of the sentence, without the need for this Court to resentence. Indeed, there was no need to come to this Court.

3. [31]

   Ground 2 should also be upheld and a further adjustment made to the commencement date of the sentence to back-date the only custodial sentence for the time spent in custody on remand.

Ground 1

1. [32]

   The sentencing judge imposed a sentence of four years’ imprisonment, commencing on 17 March 2022. [1] There was no challenge to the length of the sentence, only to the back-dated commencement date. The back-dating was intended, appropriately, to give the applicant the benefit of time spent in custody on remand. The judge was given a calculation of that period as at the date of the sentencing hearing. Ground 1 concerned the failure of the sentencing judge, in determining the commencement date for the aggregate sentence, to allow for the additional 14 days in custody between the sentencing hearing and the delivery of judgment.

2. [33]

   There was no need to seek leave to appeal to this Court: the matter should have been dealt with in the District Court. Section 43 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (Sentencing Procedure Act) permits a sentencing court to reopen proceedings, as the title indicates, “to correct sentencing errors”. It may be that that step was not taken because s 43 was thought not to be engaged. Section 43 is only engaged where the court has “imposed a penalty that is contrary to law” or has “failed to impose a penalty that is required to be imposed by law”. There may have been a doubt (which I do not share) that a miscalculation of an intended period is not such an error. However, there is no reason to suppose that the District Court does not have power to correct an obvious error, either of its own motion, or on application by a party, so long as proper steps are taken to ensure that the parties are notified. In the past, such a correction has been made in the Registry, which was an entirely inappropriate course. [2]

3. [34]

   To correct that error, the sentence should be ordered to commence on 3 March 2022.

Ground 2

1. [35]

   Ground 2 challenged the failure of the judge to back-date the sentence to allow for the whole period of presentence custody, which the prosecutor had informed him (without demur from the offender) was 372 days. The sentence was back-dated, apparently on a discretionary basis, by 330 days.

2. [36]

   There was a time when time spent in custody on remand was not treated as equivalent to imprisonment pursuant to a sentence, nor, indeed, was time spent pending an appeal. It was then necessary for an appellant in this Court to seek an order that “time is to count”. The underlying reasoning was that a sentence of imprisonment carried with it, not merely confinement to custody, but a direction as to whether it was to be served with or without “hard labour”. Those times have long passed: the present practice is to treat all time spent in custody referrable to a particular offence as part of the punishment for that offence.

3. [37]

   Where time is spent on remand, bail refused, for an offence which does not result in a custodial sentence, there can be no direct correlation between the time spent in custody and the ultimate punishment: it is, however, appropriate to make indirect allowance for the earlier deprivation of liberty.

4. [38]

   However, where a custodial sentence results, it is possible, and usually necessary, to give direct allowance, by way of reducing the term to be served from the date of sentence, for time already spent in custody or, preferably, by backdating the sentence, even where to do so may create an anomaly because the offender was not in custody for part of that period. The reason for taking the latter course is to ensure that the sentence imposed can properly be judged according to the seriousness of the offending, and is not distorted by a reduction for time spent on remand.

5. [39]

   Thus, in R v McHugh, [3] Street CJ stated:

6. [40]

   Although that approach was partly supported by the need to permit the appropriate calculation of remissions, which no longer exist, the practice has been repeatedly adopted in relation to s 47 of the Sentencing Procedure Act. [4] In Regina v English [5] Giles JA stated of the practice adopted in McHugh:

7. [41]

   Indeed, in Wiggins, the principles stated in McHugh were not merely reindorsed in relation to the operation of ss 24 and 47 of the Sentencing Procedure Act, but expressed in terms which suggested an obligation to back-date, absent reasons for taking a different course, which required explanation. As expressed by Howie J, McClellan CJ at CL and Harrison J agreeing:

8. [42]

   The obligation is stated in s 24 of the Sentencing Procedure Act in the following terms:

9. [43]

   Where a period in custody is referable solely to the offence for which the offender is being sentenced, the obligation to “take that period into account” should be treated as an obligation to back-date the sentence so as to take the whole of that period into account. If that step is not taken, the sentencing judge is obliged to provide reasons for adopting a different approach. Indeed, the fact that a particular period may be referable to two different offences is not necessarily a reason for not taking it into account by way of back-dating. In Regina v Karageorge, [6] this Court gave credit for the whole of a period during which the applicant had been in custody, bail refused on the relevant offences, but while serving a sentence of imprisonment for another offence, which sentence was later quashed.

10. [44]

    Karageorge was also authority for a further proposition which is presently relevant. The Court observed that, although the point was not raised at the sentencing hearing, which was a mistake, “it has resulted in a miscarriage of justice which should be rectified.” [7]

11. [45]

    In the present case, error occurred in part because the legal representative of the applicant did not take a point and, indeed, assented to incorrect figures provided by the prosecutor. Although there was a degree of ambivalence, not to say incoherence, in the submissions for the applicant, in accordance with the approach in Karageorge the Court should apply the correct principle to the facts demonstrated by the evidence and adjust the sentence.

12. [46]

    The sentencing judge addressed the date of commencement of the sentence in the following passage:

13. [47]

    In relation to the figures given by the judge, the period of 372 days in custody from the date of his arrest for the present offending, up to the date of the sentence hearing, was correct. The period of 311 days in custody solely referrable to these offences was correct on two bases. The first was that the applicant was entitled to credit for (i) two days following his initial arrest, before his release on bail; and (ii) a period of 309 days from 24 March 2022 until the date of the sentencing hearing following the imposition of two community correction orders (CCOs), which were non-custodial sentences. Neither party disputed the entitlement to back-dating for the 311-day period.

14. [48]

    The periods omitted from this calculation were the following:

15. [49]

    The difference between the 372 days and the 311 days was 61 days. It constituted the addition of the two periods in custody following arrest for sequences 00-1 and 00-2 (sometimes described as “unrelated offences” in submissions and in the judgment, and sometimes recognised as related offences in that they involve breaches of apprehended domestic violence orders (ADVOs) relating to the applicant’s family). The 61-day calculation was erroneous and should have been 62 days, being the total number of days spent in custody following his arrest on sequence 00-1 (24) and his arrest on sequence 00-2 (38). The additional day not accounted for in the 61-day calculation was because the second period in custody commenced with the applicant’s arrest on 15 February 2022, and not the following day, when he was taken into corrective services custody.

16. [50]

    The evidence did not disclose why the applicant remained in custody from 24 March 2022, but as it was common ground that the period from 24 March 2022 was solely referable to the current offending (a CCO being a non-custodial order) it must be assumed that, at some stage prior to that date, his bail on the current offences had been revoked.

17. [51]

    The relevant issue for the purposes of ground 2 concerned the periods spent in custody following the arrests for the two breaches of the ADVOs, that is 24 days from 20 October 2021 to 12 November 2021 and 38 days from 15 February 2022 until 24 March 2022, a total of 62 days.

18. [52]

    The prosecutor’s submissions to the sentencing judge accepted that those periods were relevant and available for the back-dating of the current sentence. At the sentencing hearing the parties (and therefore, understandably, the sentencing judge) agreed that it was open to the judge to take the whole of those periods into account in fixing the commencement date for the current sentence, that is to back-date by up to 372 days. Double counting is impermissible; therefore, the position taken by the prosecutor must have been that they had not been taken into account in the Local Court in imposing the CCOs. There being no evidence to the contrary, the only appropriate course for this Court is to accept, in favour of the applicant, that they had not been “taken into account”.

19. [53]

    In any event, that is not an unreasonable assumption. It would be expected that the Local Court, if it had taken them into account, would have explained how it had done so when fixing the period of a non-custodial sentence. If there were evidence of that happening, it should properly have been put before the sentencing judge by the prosecutor: it was not. Nor was it put before this Court by the Director. Accordingly, the proper course for the sentencing judge was to take those two periods into account and back-date the sentence by a further 62 days.

20. [54]

    That the judge did not take that course is apparent from the fact that he back-dated by a period of 330 days, thereby, giving credit for 19 of the 62 days. He did so, adopting the language of the parties, by allowing “some degree of accumulation”. That language was misconceived: there was no power to accumulate a custodial sentence on a non-custodial sentence. It follows that the sentence should have been fixed to commence on 19 January 2022, being 43 days [8] earlier than the commencement date adjusted for the 14-day miscalculation the subject of ground 1.

21. [55]

    Should the factual basis for the approach set out above be rejected on the basis that the applicant did not articulate it? To seek to construct some kind of coherent concession from the submissions for the applicant is not possible. In written submissions, he sought a back-dating of 362 days to 14 February 2022, from 10 February 2023, (although why it was not 13 February 2022 was unclear). Why the back-dating was not for 372 days, plus 14 days, was also unclear.

22. [56]

    In the course of oral argument, counsel appeared to accept a suggestion from the Court that there should be a back-dating of 386 days (372 plus 14), [9] noting that the Director’s acceptance of 362 days would back-date the commencement date to 14 February 2022. He rejected the submission that he just wanted “24 days”, [10] being the period on remand from 20 October 2021. However, he then went on to agree that his “maximum claim” was 362 days, although the basis for that had not been explained.

23. [57]

    In dealing with ground 2, counsel said that the sentencing judge had “left out approximately 18 days”, which appears to have been 311 days plus 19, rather than 311 days plus 37 (not 38, because at that point the applicant mistook the arrest date as 16 February 2022, rather than 15 February 2022). But it appears that he was then seeking the benefit of the 38-day period from 15 February to 24 March 2022.

24. [58]

    The short point is that the applicant’s written submissions were confusing and apparently mistaken in several respects; no clarification was obtained in the course of oral submissions. It is not proper, on that basis, to construct a concession by the applicant when no basis for a concession is apparent from the evidence or from the submissions.

25. [59]

    If there were some concession, it must be that the Local Court expressly fixed the length of one or both of the CCOs by reference to some unidentified part of the period spent in custody on remand. Yet the sentencing judge accepted that the custodial sentence should be back-dated for the whole of the period from the imposition of the first CCO (being 309 of the 311 undisputed days). To treat some period of custody as having been taken into account in fixing the length of the CCOs cannot logically affect the present claim. A CCO cannot be backdated, but if it could be, and had been, to take into account the whole 62-day period on remand, the sentencing judge should, consistently, have back-dated for that period too. For this Court to assume that a magistrate had taken a period in custody into account in fixing a CCO is both speculative and irrelevant.

A post-script – validity of CCOs

1. [60]

   Although it is not necessary to decide more than has been explained above, in situations in which a person is serving another custodial sentence, it is generally inappropriate to fix a non-custodial sentence (other than a fine). In my view, that course is not merely inappropriate, but unavailable. As the heading to Pt 2, Div 3 of the Sentencing Procedure Act indicates, a CCO is “Non-custodial alternative”. At least by implication, and given its position in the hierarchy of sentencing options, it cannot be served in custody. It is intended to be served in the “community”, with appropriate conditions imposed pursuant to ss 87-90 of the Sentencing Procedure Act.

2. [61]

   Counsel for the applicant submitted that the standard condition that the offender “not commit any offence” could apply to a person in custody as well as to a person at large in the community. That may be true, in part, but it does not alter the conclusion that, given the structure of the Sentencing Procedure Act, and the name of the order, it is an order which is not intended to be imposed on a person in custody. There are cases in which this Court has approved an aggregate sentence of imprisonment where one or more of the offences would not have warranted a custodial sentence, were it not for the fact that the person was going to serve a sentence of imprisonment. In such cases, a brief individual custodial sentence is indicated. [11]

3. [62]

   Whether or not the CCOs were valid, it was common ground that, being non-custodial sentences, reference to “accumulation” on them was inappropriate.

Orders

1. [63]

   For these reasons, in my view the proper course is to make the following orders:

   1. (1)

      Grant the applicant leave to appeal from the aggregate sentence imposed by the District Court on 10 February 2023.

   2. (2)

      Vary order (4) to read:

   3. (3)

      The earliest date on which the offender is eligible to be released to parole is 18 January 2025.

2. [64]

   WILSON J: I agree with Adamson JA for the reasons her Honour has given. A concession having been made by counsel for the applicant as to the quantum of days spent in custody that should have been considered in imposing sentence in this matter, this Court is entitled to accept and act upon it. Like Adamson JA, I do not wish to express a view concerning the availability of community based sentencing orders to persons in custody, there having been no submissions made to the Court on that subject, and no need to consider it.