Jones v R

1. [1]

   WRIGHT J: I have had the advantage of reading in draft the judgments of Fagan J and Rigg J. I agree with the orders proposed by Rigg J for the reasons her Honour has given. Were it necessary to consider whether some other lesser sentence was warranted in law, I agree with Fagan J’s reasons for concluding that no lesser sentence would be warranted in the present case.

2. [2]

   FAGAN J: I have had the advantage of reading in draft the judgment of Rigg J and I agree with the orders she proposes. My reasons for supporting the orders are different from her Honour’s. I would uphold ground 2, which is as follows:

3. [3]

   The aggregate sentence was passed by his Honour Judge Turnbull SC on 29 November 2024, for one count of recklessly inflicting grievous bodily harm contrary to s 35(2) of the Crimes Act 1900 (NSW) and one count of intentionally damaging property. The indicative sentences were 5 years imprisonment with a non-parole period of 3 years for the reckless infliction of grievous bodily harm and 3 months for the damage to property. His Honour dispensed with any measure of notional accumulation and imposed an aggregate sentence of 5 years imprisonment with a non-parole period of 3 years.

4. [4]

   The offences were committed at Walgett in the early hours of 21 July 2023. The property damaged by the applicant was an iPhone that the victim’s father had recently purchased for her, with an approximate value of between $1500 and $2400. The victim left the phone in the applicant’s possession while she attended a celebration at the home of a family member. When she returned to the applicant and asked for it back, he said that he had smashed it and produced it in a severely damaged condition. The inference from the circumstances is that he was enraged at not having been able to contact the victim during the night. He accused her of having “cheated on him”.

5. [5]

   The two then had an argument. The victim became frightened by the applicant’s aggression and left the applicant to walk to her parents’ home. The applicant followed her and commenced his assault on the street. The applicant was aged 22 years at the time. The sentencing judge observed that he was “an athletic young man” and that the victim, his 18 year old girlfriend, was “not in any way his physical equal”. His Honour described the applicant’s attack on the victim as “remorseless in its conduct”. He punched her to the head, knocked her down, dragged her across the ground, kicked her to the jaw “with a lot of force”, followed her when she got up and tried to escape from him and then punched and kicked her again, multiple times. The victim vomited while the assault was taking place. This was a cowardly, savage and sustained attack.

6. [6]

   After the applicant’s arrest on 23 July 2023 he was remanded in custody until he was sentenced, following pleas of guilty, on 29 November 2024. When the offences were committed on 21 July 2023 the applicant was on parole under a sentence that had been imposed for several counts of assaulting and hindering or resisting police. The head sentence was to expire on 4 November 2023. By order of the State Parole Authority his parole was revoked with effect from 21 July 2023. The Community Corrections report recommending revocation cited the charges arising out of the events of 21 July 2023, the applicant’s unsatisfactory response to supervision, his “anger and aggression and unaddressed drug use” and concerns about “escalating and violent antisocial behaviour” that was considered to intensify the risk of him reoffending in ways that would endanger the community. As a result of the revocation of parole, the first 3 months and 14 days of the applicant’s custody following his arrest on 23 July 2023 were jointly referable to his remand for the index offences and to completion of his earlier sentence.

7. [7]

   The next 3 months and 8 days of the applicant’s custody, from 6 November 2023 to 13 February 2024, were solely referable to his remand for the index offences.

8. [8]

   Two days after the applicant’s arrest on these charges, whilst he was in Wellington Correctional Facility on remand, he commenced to make prison calls to the victim in breach of an Apprehended Domestic Violence Order (ADVO). There were 30 such calls between 25 and 30 July. The applicant told the victim she was “a dog” and that, with respect to being bashed and kicked by him and having her jaw broken, she “needed it”. He said, “I don’t feel nothing about it”.

9. [9]

   In early August 2023, police learned of the calls and caused Corrective Services to remove the victim’s phone numbers from the applicant’s list of permitted contacts. Then in early October 2023 police charged the applicant with 30 counts of breach of the ADVO, one charge for each of the calls he made in late July 2023. On 14 February 2024 in the Local Court at Walgett the applicant was sentenced for six of the 30 matters and the remainder were taken into account on a Form 1. An aggregate term of 7 months imprisonment was imposed, commencing on 14 February 2024 with a non-parole period of 2 months concluding on 13 April 2024.

10. [10]

    On 25 separate days between 18 September and 29 October 2023 the applicant made another 69 phone calls to the victim from gaol. As can be seen from the dates, this course of conduct continued after charges had been laid for the July 2023 calls. In March 2024 police laid 24 charges of breaching the ADVO during September-October 2023. In three of the calls he threatened to burn the victim and her car when he got out of prison, to “stab you right in the head” and to break her jaw again. Three charges of stalking and intimidating were laid in respect of those threats.

11. [11]

    The applicant pleaded guilty to the charges arising out of the September-October 2023 calls. On 28 May 2024 he was sentenced to individual terms of imprisonment. Each of the stalk/intimidate counts attracted imprisonment for 18 months with a non-parole period of 12 months. That became the total effective sentence because all the individual penalties were ordered to be served concurrently. The sentences were fixed to commence on 15 March 2024, thus being cumulative by one month upon the aggregate sentence that had been passed for the July 2023 calls. The 12 month non-parole periods for the stalk/intimidate offences would conclude on 14 March 2025. The sentences for the September-October 2023 offences were the subject of a severity appeal to the sentencing judge, heard at the same time as the sentence proceedings for the index offences. The severity appeal was dismissed.

12. [12]

    The period of pre-sentence custody from 14 February 2024 up to 29 November 2024 when Judge Turnbull SC passed sentence for the index offences was 9 months and 16 days. That period was referable in part to the applicant’s remand for the index offences and in part to the non-parole periods fixed by Walgett Local Court for the two groups of offences arising out of the applicant’s gaol calls to the victim.

13. [13]

    These circumstances gave rise to three distinct issues that had a bearing upon the extent, if any, to which the commencement of the aggregate sentence for the index offences should be backdated from 29 November 2024 when the sentence was passed.

14. [14]

    The question that logically had to be considered first was whether the aggregate sentence for the index offences should be made concurrent, or partly concurrent, with the combined non-parole periods that the Walgett Local Court had fixed for the July 2023 and September-October 2023 offences. That question required application of the principle of totality.

15. [15]

    The second question was whether there should be counted in the applicant’s favour, as time already served towards the sentence that was to be passed for the index offences, the 3 months and 8 days from 6 November 2023 to 13 February 24, during which the applicant was in prison solely by way of remand for those offences. At [114]-[121] Rigg J refers to relevant sections of the Crimes (Sentencing Procedure) Act 1999 (NSW) and decisions of this Court, by which there has been established a consistent practice of giving full credit for such time on remand, by the mechanism of backdating.

16. [16]

    The third question was whether there should be counted in the applicant’s favour the whole or any part of the 3 months and 14 days from 23 July 2023 to 5 November 2023 when the applicant was on remand but was also serving out the balance of his earlier term of imprisonment, under revocation of parole. At [56] Rigg J refers to Callaghan v R [2006] NSWCCA 58, which is authority for the proposition that a sentencing judge has a broad discretion in relation to this and may backdate a sentence to allow for the whole of any time on remand during which the offender was also serving out a revoked parole period, or may allow credit for only part of that time, or may decline to make a backdate allowance for any of it.

17. [17]

    With respect to the first question, if it was thought that there should be no accumulation – that the aggregate sentence of 5 years imprisonment with a non-parole period of 3 years sufficiently addressed the total criminality of the index offences, the breaches of the ADVO and the three counts of stalking/intimidating – then the commencement date for the aggregate sentence would be backdated, on account of totality considerations only, to 14 February 24. Whether there should be further backdating to allow for time served on remand would then have to be considered under the second and third questions referred to above.

18. [18]

    At the opposite extreme, if it was considered that the principle of totality called for full accumulation then, at this first stage, the aggregate sentence for the index offences would commence upon expiry of the second of the non-parole periods fixed in the Local Court, namely, 15 March 2025. That commencement date would, again, be adjusted back to give credit for time served, pursuant to the sentencing judge’s decision on the second and third questions.

19. [19]

    Of course, the extent of concurrence or accumulation of the respective sentences could be determined at any point between those two extremes, in the accordance with the sentencing judge’s evaluative judgement on totality. For present purposes the point being made is that the decision upon this issue is a distinct and substantive one that would be given effect by selecting the commencement date – subject to further adjustment for time served – at some point between the beginning and the end of the non-parole periods imposed in the Local Court for the related ADVO and stalk/intimidate offences.

20. [20]

    His Honour’s only expression of reasons for backdating the commencement of the aggregate sentence for the index offences appears at the end of his remarks on sentence, as follows:

21. [21]

    Immediately following that passage his Honour indicated sentences for the reckless infliction of grievous bodily harm and for the intentional damage to property, which underlay the aggregate sentence of 5 years imprisonment with a non-parole period of 3 years. His Honour concluded as follows:

22. [22]

    In my view the learned judge’s reasons for allowing 9 months of backdating and adopting the commencement date of 29 February 2024 are inadequate in multiple respects. The global period of 9 months is undifferentiated as between the three sources of justification for backdating that called for decision by his Honour: backdating to give effect to a discretionary judgment about degree of concurrence and accumulation relative to the Local Court sentences for related offending, backdating to give credit for pre-sentence custody served solely on remand for the index offences and backdating to give effect to a discretionary judgment about allowance for pre-sentence custody referable both to remand and to revoked parole.

23. [23]

    His Honour did not identify the extent to which he considered that the aggregate sentence should be concurrent with the Local Court sentences. The statements that he was allowing “a not insubstantial backdate”, which would “allow for most of” the Local Court sentence “to be served concurrently with the sentence which I am about to impose” was insufficient. It is not acceptable that the outcome of his application of the principle of totality is obscured behind terms such as “not insubstantial” and “most of”.

24. [24]

    There were strong considerations in favour of significant accumulation of the penalty for the index offences on the penalty earlier imposed in the Local Court for the threatening and intimidating phone calls. Those calls added materially to the criminality of the whole episode. They were made to the victim of the vicious assault earlier described, while she was recuperating from her injuries and surgery. Relative concurrence or accumulation was to be achieved by backdating. Failure to quantify what part of the 9 months backdating was undertaken in order to give effect to the principle of totality was a substantive deficiency of reasons.

25. [25]

    It was also deficient not to have stated in terms that the whole of the pre-sentence custody that was solely referable to remand for the index offences – the 3 months and 8 days referred to at [7] above – was allowed in the backdating. It is likely that it was fully allowed, having regard to the entrenched practice of sentencing courts in that respect. However, that should have been stated.

26. [26]

    Thirdly, the reasons fail to record how the learned judge exercised his discretionary judgment with respect to the 3 months and 14 days of presentence custody that were jointly referable to the applicant’s remand and to the balance of his earlier sentence after revocation of parole. If his Honour intended that the whole of that period was to be allowed and that it was therefore a component of the 9 months of backdating, that should have been said. The remarks on sentence leave one in doubt as to whether the whole period was credited or, if not, how much was credited and, in either case, for what reasons.

27. [27]

    The learned judge bundled up, into a global period of 9 months, three elements of backdating, each of which rested upon quite different discretionary considerations. His Honour’s reasons provide no indication of the factors upon which the respective discretions were exercised. The quantitative outcomes of the exercise of the three discretionary judgments, respectively, are not disclosed.

28. [28]

    For those reasons I would grant leave to appeal and uphold ground 2. Ground1 need not be resolved. For the purpose of considering re-sentence, I have already recounted the circumstances of the offending that contribute to its objective seriousness. It was an aggravating circumstance that the index offences were committed while the applicant was on parole. I take into account that the applicant is entitled to the 25% discount that the learned judge afforded him for an early plea of guilty.

29. [29]

    His Honour found that the applicant was not in any way contrite or remorseful and that he takes no responsibility for his conduct in the index offences. The judge was satisfied beyond reasonable doubt that the applicant “remains of the opinion that what he did was justified”. His Honour recorded that the applicant was belligerent in his demeanour, conduct and response to questioning during the sentence proceedings.

30. [30]

    The applicant conveyed to the sentencing judge that “pity [for the victim] was absent, he does not know how she feels and unfortunately I did get the clear impression that he did not really care to know”. The fact is that the victim suffered severe pain in the immediate aftermath of this the assault. She had to travel three hours by road from Walgett to Dubbo for treatment. Even then her injuries were so severe and complicated that she had to continue on to Westmead for surgery. That was another 4½ hours drive in considerable pain. The victim did not achieve full physical recovery until November 2023.

31. [31]

    The applicant is of indigenous descent. His Honour found that his moral culpability for the offending is reduced by reason of a seriously deprived background, in which his father was physically abusive towards his mother on a weekly basis and the applicant was driven to intervene for his mother’s protection. As his Honour accepted, the reduction in moral culpability warrants moderation of the weight to be given to general deterrence. However, both specific and general deterrence remained relevant as sentencing objectives, particularly having regard to the further objective of community protection in the face of what his Honour found to be the “dangerousness” of the applicant.

32. [32]

    The applicant was exposed to sexual abuse as a child but he declined to provide details of this to the judge. He underperformed at school and has a very limited history of employment in unskilled work. He has used methyl-amphetamine and cannabis daily for several years.

33. [33]

    The applicant has a significant record of offences committed prior to July 2023, including robbery in company at the age of 18 (sentenced to 3 years and 3 months imprisonment with a non-parole period of 1 year and 9 months); aggravated break and enter a dwelling house in company with intent to steal, also committed at the age of 18 (sentenced to 2 years imprisonment with a non-parole period of 8 months); police pursuit at the age of 19 (9 months imprisonment with a non-parole period of 5 months); assault and hinder or resist a police officer, five counts, at the age of 22 years (7 months imprisonment, with a non-parole period of 1 month and 21 days). As the sentencing judge said, the applicant’s criminal antecedents disentitle him from leniency.

34. [34]

    Now at the age of 25, when re-sentence is to be considered, the applicant has been in prison for 5 years and 7 months out of his 7 years of adult life. Full allowance must be made for the adversity of the applicant’s background. The risk of institutionalisation and the diminishing prospects of rehabilitation are recognised. However, the countervailing consideration of protection of the community is very strong in a case where, whatever be the origins of the applicant’s antisocial conduct, it has now taken the form of appalling violence and persistent threatening behaviour towards of a defenceless female partner.

35. [35]

    Taking all these matters into account, I would not arrive at an indicative sentence for the reckless infliction of grievous bodily harm any less than the sentence of 5 years that his Honour nominated. The indicative sentence of three months for the intentional damage to property was also appropriate but I would accumulate the two sentences into an aggregate of 5 years and 2 months imprisonment with a non-parole period of 3 years and 1 month. The gratuitous damage to property, at considerable economic loss to either the victim or her father, warranted punishment additional to that imposed for the personal violence in the primary charge. The applicant has no means from which to make good the loss caused by his destruction of the phone, even if he had any desire or intention to do so.

36. [36]

    In my view the principle of totality would require an accumulation of 9 months between the Local Court sentences arising from the offender’s abusive and threatening gaol calls and the aggregate sentence for the index offences. At [24] above I have referred to the additional criminality involved in the calls, particularly those that included threats of harm. Making a threat of death by telephone to anyone in any circumstances is a serious matter. The applicant’s death threats to a young female upon whom he had recently carried out a severe physical attack warranted punishment that was appropriately reflected in the individual sentences imposed by the Local Court. Nine months accumulation of sentence would be required to address the ongoing aggression of the applicant towards the victim, which persisted for three months after the attack for which the sentence of 5 years was imposed.

37. [37]

    Exercising the re-sentencing discretion, I would not give the applicant credit for the period during which he was serving out his earlier sentence after revocation of parole. There were multiple reasons for that revocation, as referred to at [6] above. The earlier convictions for assaulting and hindering police, to which the sentence related, were entirely unconnected with the fresh offending in the index matters. I see no reason why his completion of the earlier sentence in full-time custody, parole revoked, should count to any extent towards his sentence for the index offences.

38. [38]

    The Crown has not appealed against inadequacy of the sentence imposed by Judge Turnbull SC and the Court did not during the hearing of the leave application issue a warning in accordance with Parker v DPP (1992) 28 NSWLR 282. I therefore would not propose an order that the applicant be resentenced. Rather, on the basis of the above considerations I conclude that no lesser sentence than that imposed at first instance, nor any earlier date of commencement, is warranted. The appeal should therefore be dismissed.

39. [39]

    RIGG J: On 29 November 2024 the applicant Jermaine Jones was sentenced by his Honour Judge Turnbull SC in the District Court to an aggregate sentence of 5 years imprisonment with a non-parole period of 3 years. The sentence was imposed following pleas of guilty entered in the Local Court, in relation to two offences:

    1. (1)

       Inflicting grievous bodily harm, reckless as to causing actual bodily harm, contrary to s 35(2) of the Crimes Act 1900 (NSW); and

    2. (2)

       Intentionally or recklessly destroying or damaging property, contrary to s 195(1)(a) of the Crimes Act. This offence was on a certificate under s 166 of the Criminal Procedure Act 1986 (NSW).

40. [40]

    I will refer at times to these two offences as the sentence offences. His Honour specified an indicative sentence of 5 years imprisonment with a non-parole period of 3 years for the first offence, and an indicative sentence of 3 months imprisonment for the offence on the s 166 certificate.

41. [41]

    The first offence has a maximum penalty of 10 years imprisonment and a standard non-parole period of 4 years. The offence on the s 166 certificate carries a maximum penalty of 5 years and a jurisdictional limit of 2 years imprisonment when dealt with summarily, applicable to his Honour’s sentencing exercise.

42. [42]

    The sentence was ordered to commence on 29 February 2024. The applicant will be first eligible for release to parole on 28 February 2027.

43. [43]

    The applicant seeks leave to appeal against his sentence, pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW). He relies on the following grounds of appeal:

    1. (1)

       The sentencing judge erred in his Honour’s decision as to the commencement date of the aggregate sentence.

    2. (2)

       In addition, or in the alternative, the sentencing judge failed to provide reasons, or to provide adequate reasons, for his Honour’s decision as to the commencement date of the aggregate sentence.

Circumstances of the offending

1. [44]

   The applicant was sentenced on the basis of a statement of facts agreed between the parties. In light of the nature of the grounds of appeal they will be described very briefly. The document was substantially more detailed than that which follows, as was the sentencing judge’s summary of the offending.

2. [45]

   At the time the offences were committed, the applicant was 22 years old and the victim was 18 years old. They had been in a relationship for approximately one year. On the evening of 20 July 2023 into the early hours of the morning of 21 July 2023, the victim went out with family and friends, leaving her iPhone 12 Pro Max with the applicant. When she later returned to the applicant’s house and asked about her phone, he stated “Don’t you fuckin worry about the phone, I smashed it” and showed her the extensively damaged phone.

3. [46]

   An argument ensued and the victim became scared and decided to leave and walk to her house. The applicant followed her and as she was walking along the street, he punched her in the face causing her to fall to the ground. The applicant then dragged the victim by her hooded top along the ground over to the gutter. The victim tried to get up but he “booted his foot into her jaw with a lot of force”. She managed to get up and started running and then walking away. He again followed her and punched her multiple times and kicked her around five times.

4. [47]

   The victim ran home and her parents called the police and an ambulance. She was taken to a medical facility in Walgett and then referred to Dubbo Hospital. She was spitting up blood and bleeding from the gums. Her jaw was broken in two places with fractures extending into her tooth roots. She also had facial bruising, a haematoma under her tongue and tenderness to her face and shoulder. The victim was referred to Westmead Hospital in Sydney for surgery where she had two teeth removed and metal plates and screws inserted into her jaw. Post-operatively there was a period of impaired eating and dependency on others for assistance with daily tasks. Around seven weeks later she still experienced numbness and ongoing pain requiring analgesia, and her mental health was also affected.

5. [48]

   The applicant was arrested in connection with this offending on 23 July 2023 and remained in custody refused bail until he was sentenced.

Other sentences and periods of custody

1. [49]

   The only aspect of the applicant’s subjective case relevant to the determination of the grounds of appeal is his recent criminal history. The following offences, sentences and periods of incarceration are relevant to his grounds of appeal:

   1. (1)

      Between 4 April 2023 and 3 November 2023 the applicant was serving a sentence of 7 months imprisonment for four offences of assaulting police and one offence of hindering police (“sentence 1”). The non-parole period ended on 24 May 2023. The applicant was released to parole on 26 May 2023 (the same date sentence 1 was imposed).

   2. (2)

      Between 26 May 2023 and 23 July 2023 the applicant was at liberty but subject to parole for sentence 1.

   3. (3)

      On 23 July 2023 the applicant was arrested and bail refused for the sentence offences which were committed on 21 July 2023. By virtue of the decision of the State Parole Authority on 9 August 2023, between 23 July 2023 and 5 November 2023, the applicant was serving the balance of parole for sentence 1.

   4. (4)

      Between 6 November 2023 and 13 February 2024 the applicant remained in custody bail refused and was not serving any sentence during this time. This period is solely referable to the sentence offences (“the solely referable period”).

   5. (5)

      Between 14 February 2024 and 13 April 2024 the applicant was serving the 2 month non-parole period of a 7 month term of imprisonment imposed in the Walgett Local Court on 14 February 2024 for six offences of breaching an apprehended domestic violence order (“ADVO”) with 24 further contraventions of the ADVO taken into account on a Form 1 document (“sentence 2”). The non-parole period ended on 13 April 2024 however the applicant remained in custody as he was on remand for the sentence offences and serving another sentence (see below).

   6. (6)

      Between 15 March 2024 and 14 March 2025 the applicant was serving the 12 month non-parole periods of six sentences of 18 months imprisonment, with a further 21 fixed terms of imprisonment of 6 months, all of which were concurrent, imposed in the Walgett Local Court on 28 May 2024 for 24 offences of breaching an ADVO and 3 offences of intimidation (“sentence 3”).

2. [50]

   Also before the sentencing judge was a severity appeal from the Walgett Local Court in connection with sentence 3. For that reason, the facts of that offending were before the sentencing Court. The agreed facts described a series of telephone calls made from the applicant to the victim of the sentence offences from custody in September and October 2023. These included instances of serious offending involving the applicant threatening to kill the victim upon his release from custody, to stab her, burn her, and break all the screws in her jaw, and stating that he should have jumped on her head. It will be seen that the Local Court judge who imposed sentence 3 afforded concurrency with sentence 2 to the extent of half of the 2 month non-parole period of sentence 2.

3. [51]

   The facts of sentence 2 were not before the Court, although the solicitor appearing for the applicant informed the sentencing judge that these breaches of the ADVO were also based on telephone calls to the same victim from the applicant in custody. Those offences all occurred in July 2023.

The proceedings at first instance

1. [52]

   For reasons that will be explained further below, the positions of the parties at first instance and their interaction with the sentencing judge are relevant to the grounds of appeal, and it is necessary to include some detail of these.

2. [53]

   As will be seen, a date suggested by the applicant’s representative as a suitable commencement date for the applicant’s sentence of 10 January 2024 is of significance on the appeal. It is important to understand what this submission was based on. The written submissions for the applicant at first instance addressed pre-sentence custody only on the assumption that the severity appeal would succeed, and that his Honour would be imposing an aggregate sentence for the sentence offences and the 27 offences the subject of sentence 3.

3. [54]

   The applicant’s submissions calculated 1 year, 3 months and 17 days from arrest on 23 July 2023 to the sentence hearing date of 13 November 2024. I pause to note that this calculation was slightly wrong – the correct figure was 1 year, 3 months and 21 days; but as will be explained, such minor miscalculations have no bearing on the grounds of appeal.

4. [55]

   Deducted from this was the period of revoked parole relating to sentence 1 (3 months and 2 weeks: see above at [49](1) and (3)) and the non-parole period of sentence 2 (2 months: see above at [49](5)), or in total “5 months and 2 weeks in custody referable to other matters”, with the result that:

5. [56]

   The written submissions referred to the discretionary principle outlined in Callaghan v R [2006] NSWCCA 58; (2006) 160 A Crim R 145 (“Callaghan”) at [21]-[23] such that the Court could consider further backdating the sentence, as the revocation of parole occurred solely because of the sentence offences. The submissions concluded:

6. [57]

   There was no submission advanced for the applicant in writing (or orally) regarding pre-sentence custody or a suitable commencement date in the event the severity appeal against sentence 3 was not successful.

7. [58]

   The “Crown Sentence Summary” which, as frequently occurs, was the coversheet for the Crown tender of documents, indicated that the applicant had been in custody since 23 July 2023 (not solely referable to this matter). The details of the other sentences being served was set out. Against an item “Calculation of time spent in custody”, it stated 15 months and 20 days (as at 11 November 2024).

8. [59]

   The Crown written submissions addressed time in custody by stating that the applicant was arrested on 23 July 2023 and had remained bail refused since that time. It was stated that the applicant had served and was serving periods of imprisonment for other offences including those for which the severity appeal was before the Court, the outcome of which would impact the time in custody solely referable to the sentence matters.

9. [60]

   The Crown confirmed the applicant “has/will spend time in custody for unrelated offences” and detailed the sentences for those matters (sentences 2 and 3). The submission was then advanced that “Noting the above, the offender’s time in custody from 23 July 2023 – 13 February 2024 (6 months and 22 days) is presently unaccounted for.” In context, as will be discussed further below, that meant unaccounted for by sentences imposed in the Local Court. Part of this period of 6 months and 22 days had been accounted for by the State Parole Authority’s decision which resulted in the applicant serving parole for sentence 1 between 23 July and 5 November 2023.

10. [61]

    The Crown written submissions confirmed that parole was revoked on 9 August 2023 and the applicant served 3 months and 2 weeks in custody due to the revocation of parole (to 5 November 2023).

11. [62]

    The sentence hearing was held on 13 November 2024 at which time the applicant’s severity appeal against sentence 3 was also heard. The sentencing judge noted that “the question of a backdate is obviously a live issue here”.

12. [63]

    While receiving submissions on the severity appeal, his Honour returned to the issue of the commencement date and the following exchange took place with the applicant’s solicitor (“solicitor”) and the advocate for the Crown (“Crown”). The references to colours are to MFI B in the sentence hearing, which was a visual identification of the applicant’s existing sentences:

13. [64]

    His Honour then made reference to a number of aspects of the facts of the applicant’s acts of intimidation of the victim whilst in custody (offences the subject of sentence 3), observing it to be “chilling stuff”. The following further exchange then took place:

14. [65]

    On 29 November 2024 the sentencing judge imposed sentence and delivered reasons. In the same judgment, his Honour also dealt with the applicant’s severity appeal against sentence 3. It is apparent from the sentencing remarks that the applicant was appearing via audio visual link. He was described as standing and pacing through the whole of his Honour’s delivery of his reasons, and consistently putting his hands down his pants. He removed his shirt at one stage, turned his back to the screen, was described as menacing in his appearance, and interrupted the sentencing judge on one occasion, swearing about his perception that he had been muted.

15. [66]

    His Honour dismissed the severity appeal, but noted:

16. [67]

    His Honour later made reference to sentence 3 this way:

17. [68]

    Later in the remarks on sentence, his Honour said “And the question then arises as to a backdate. He has spent, already, 15 months and 20 days in custody from the date he was arrested, 23 July 2023. He was in custody from 23 July 2023, not entirely referable to this matter, in structured matters which arose and were dealt with in the Local Court”. His Honour then set out the terms of the applicant’s sentence 2. His Honour then set out the terms of sentence 3, and stated:

18. [69]

    His Honour ordered that the sentence was backdated 9 months from the date of sentencing, so that 29 February 2024 “will be when this sentence is deemed to commence so that he will be eligible to apply for release to parole on 28 February 2027”. His Honour asked both practitioners whether any error had been observed, and they both indicated that none had been.

Relevant legislation

1. [70]

   Section 24 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Act”) provides a list of matters a Court is to take into account when sentencing an offender, including at paragraph (a) “any time for which the offender has been held in custody in relation to the offence”.

2. [71]

   Section 47(1)–(3) of the Act relevantly provides:

Arguments in support of grounds 1 and 2

1. [72]

   It is appropriate to deal with the two grounds of appeal together.

2. [73]

   The applicant submits there are two aspects that either individually or combined establish error under ground 1. These were that the sentencing judge failed to take into account:

   1. (1)

      That from 4 November 2023 to 13 February 2024 the applicant spent 104 days in custody solely referable to the sentence offences; and/or

   2. (2)

      That from 23 July 2023 to 3 November 2023 the applicant was on remand for the sentence offences with parole revoked for sentence 1 because of the commission of the sentence offences; and the principles in Callaghan and R v DW [2012] NSWCCA 66; (2012) 221 A Crim R 63 (“DW”) apply in such circumstances.

3. [74]

   In relation to the first aspect of ground 1, the applicant submitted that the sentencing judge made no reference to the solely referable period, and accordingly it can be inferred that it was not taken into account. The applicant sought to draw an analogy with a discount for assistance to authorities, referring to R v Gallagher (1991) 23 NSWLR 220, and a discount for guilty pleas, referring to R v Thomson (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [52] (“Thompson”) and Tsoumbanellis v R [2025] NSWCCA 107 (“Tsoumbanellis”) at [30]. In the applicant’s submission, it is expected that time in custody solely for an offence would ordinarily deserve particular weight in the proper exercise of discretion under s 47(2)(a) of the Act to fix an earlier commencement date.

4. [75]

   Further, the applicant submitted that it was necessary in the application of s 47(3) of the Act for the sentencing judge to identify the “solely referable period” as distinct from other periods the applicant was in custody for the sentence offences and other offences.

5. [76]

   In relation to the second aspect of ground 1, it was submitted for the applicant that although the sentencing judge identified specific matters for which the applicant was in custody (sentences 2 and 3), none of these were the revocation of parole for sentence 1, and in those circumstances, it can be inferred that the judge did not take that period into account in accordance with principle. The applicant submitted that submissions were made at first instance on the applicant’s behalf regarding Callaghan and DW, and that those principles required consideration.

6. [77]

   In the applicant’s submission, the errors are underscored by the fact that the parties were in agreement that 10 January 2024 was an appropriate commencement date for the sentence, which had been determined by each party in consideration of the period between arrest on 23 July 2023 and 14 February 2024.

7. [78]

   It was also submitted that the sentencing judge’s focus on accumulation (between the sentence to be imposed and sentence 3) was in contrast to the parties’ positions which evaluated the time that had been spent in custody since arrest, and sought to ensure that time spent in custody was accounted for; and thereby overlooked the necessity (required by ss 24 and 47 of the Act) of taking into account the applicant’s time in custody for the sentence offences together with the revocation of parole (23 July 2023 to 3 November 2023), and then for the sentence offences alone (from 4 November 2023 to 13 February 2024).

8. [79]

   It was submitted for the applicant that it was not possible to conclude from the commencement date selected that there was no error in fixing it, or in the application of ss 24 and 47 of the Act and the principle in Callaghan. Referring to Lee v R [2016] NSWCCA 146 at [26], it was submitted that there was a real possibility that these principles were not properly applied.

9. [80]

   The applicant submitted that the error in both grounds is magnified in light of the following matters:

   1. (1)

      First, the question of backdating was dealt with in the sentencing judgment firstly in the context of the severity appeal, which was then dismissed, and it is thus uncertain whether (or if so, how) that discussion of backdating related to the commencement date of the sentence for the sentence offences.

   2. (2)

      Second, to the extent the sentencing judge relied upon the custodial table provided by the prosecutor below, that document tended to obscure the periods the applicant was in custody.

   3. (3)

      Third, acknowledging, by reference to Hampton v the Queen [2014] NSWCCA 131; (2014) 243 A Crim R 193 (“Hampton”) at [23], that it is the reasons for sentence and not the transcript of the sentence proceedings that establishes error, the interchanges in the sentence hearing were submitted to support the applicant’s argument. The prosecutor was submitted to have referred globally to the period between 23 July 2023 and 13 February 2024. The sentencing judge was submitted to have then also referred to that same period, stating that due to the operation of those “prior custodial terms”, his Honour “might” exercise his discretion to take “an additional step to go back to that point in time” (apparently referring to 10 January 2024). It was submitted that the defence advocate endeavoured to explain that a different course had been advanced – that the Callaghan point was to take an additional step back from 10 January 2024, not to 10 January 2024. The discussion on backdating was submitted to also not identify nor refer to the fact that the period from 4 November 2023 to 14 February 2024 was solely in relation to the sentence offences.

   4. (4)

      Fourth, the sentencing judge referred to the applicant having spent 15 months and 20 days in custody since his arrest but he had actually spent 16 months and 6 days in custody.

10. [81]

    During the hearing counsel for the applicant was asked whether it was not plain that in selecting the commencement date his Honour had clearly taken into account the solely referable period, plus the time attributable to the balance of parole which was revoked because of the commission of the sentence offences, as well as some allowance for totality. Counsel for the applicant responded that the suggestion was an available inference. It was submitted however that when s 47 of the Act is at play, it cannot be left to inferences. In response to further questioning, an affirmative answer was given to the question of whether, where following 25 days on remand a judge came to sentence on 26 February, and backdated the commencement date to 1 February, that would be insufficient indication that pre-sentence custody had been taken into account in accordance with the Act, and the judge would be required to state that the backdating was to take into account the 25 days of pre-sentence custody. It was submitted that:

11. [82]

    It was submitted that:

12. [83]

    The applicant submitted that further, or in the alternative, the applicant is not able to understand from the content of the sentencing reasons whether or not the two periods (from 23 July 2023 to 3 November 2023 and from 4 November 2023 to 13 February 2024) were taken into account. More specifically, the applicant submitted that the sentencing judge failed to give reasons as to: how he dealt with the solely referable period in determining the commencement date; how he responded to the submission that he had a discretion to backdate further, including based upon principles in Callaghan and DW; and why he “rejected the position that 10 January 2024, submitted on behalf of the applicant and accepted by the prosecutor, was an appropriate commencement date.”

13. [84]

    It was necessary, in the applicant’s submission, that the sentencing judge’s reasons exposed his reasoning as to the commencement date, engaged with the applicant’s case on the commencement date, and explained why the relevant submissions were rejected. The mandatory nature of ss 24 and 47(3) of the Act were submitted to underscore the obligation to give reasons in relation to the matters prescribed therein. Such obligation was submitted to be similar to that which exists to expressly refer to guilty pleas (a mandatory consideration under statute and common law), referring to Thompson at [46].

14. [85]

    It was submitted that the solely referable period was never referred to, by his Honour or the parties. It was submitted that in contradistinction from the position referred to in the judgment of Wright J in Hunt v R [2021] NSWCCA 192 (“Hunt”) at [29](6), the inference should not be drawn that time served had been taken into account because nobody articulated the solely referable period, the chart that was before his Honour did not identify the solely referable period, and s 47 of the Act was not invoked.

15. [86]

    The respondent submitted there was no error in his Honour setting a commencement date of 29 February 2024, nor any failure to take into account either the solely referable period or the balance of parole. It was submitted to be plain from the extent of the backdating that his Honour intended to take into account the full 6 months and 22 days nominated by the Crown as well as an additional period of concurrency with sentence 3. His Honour backdated the sentence by significantly more than the period the Crown had contended was unaccounted for. There was no dispute between the parties regarding this amount, and his Honour expressly stated during the hearing his agreement with the suggestion that the period of revoked parole was to be credited to the applicant.

16. [87]

    It was submitted that the period of 6 months and 22 days nominated by the Crown was favourable to the applicant in two ways. Firstly, it took into account the entirety of the period of revoked parole whereas it would have been well open to his Honour in the circumstances of this case, in accordance with the principles outlined in Callaghan at [24]-[25], to not allow the applicant credit for some or all of this time. Secondly, it did not make clear that backdating by that amount from any point earlier than 15 March 2025 (the expiry of the 12 month non-parole periods forming part of sentence 3) was allowing for additional concurrency with those sentences from the date used to backdate, to 15 March 2025. The notional concurrency with those sentences was calculated as being 5 months and 24 days.

17. [88]

    It was submitted that the omission of reference to the revoked parole in the part of the judgment quoted above in the body of [68], criticised by the applicant in the way described above at [76], was a relevant omission because it confirmed that his Honour had adopted the course suggested at first instance by the Crown. The revoked parole was, unlike sentences 2 and 3, not a period that required exclusion from recognition of the applicant’s time in custody prior to sentence.

18. [89]

    The respondent contended that the extent of accumulation of the applicant’s sentence on the non-parole period for sentence 3 was a matter for the sentencing judge’s discretionary determination, subject to the application of the totality principle, including the obligation to avoid the impression there is a discount for multiple offending, referring to R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381 at [18] and Danishyar v R [2025] NSWCCA 46 at [43].

19. [90]

    It was submitted that given the circumstances of the offending, it would have been open to his Honour to entirely accumulate the sentence upon the expiry of the non-parole period for sentence 3 on 15 March 2025 (other than the time credited pursuant to s 47 of the Act). Had his Honour credited the applicant for only the solely referable period, and not made any allowance for totality, the commencement date would have been 7 December 2024 (3 months and 8 days earlier than 15 March 2025). Further allowance for the entire period of revoked parole would have resulted in a commencement date of 24 August 2024. The period between that date and the date on which the sentence was ordered to commence exposed the notional concurrency with sentence 3 (which was calculated as 5 months and 24 days). This was submitted to be entirely consistent with his Honour’s statement in the remarks on sentence that there would be some degree of concurrency with sentence 3, as well as giving the applicant complete credit for the solely referable period and the period of revoked parole.

20. [91]

    The respondent submitted that the adequacy of reasons depended upon an assessment of the issues in the case, including the extent to which they were relied upon by counsel, their bearing upon the decision, and their significance to the course of proceedings: DL v The Queen (2018) 266 CLR 1; [2018] HCA 26 (“DL”) at [33] (Kiefel CJ, Keane and Edelman JJ). Where there is no dispute between the parties on a particular issue, the obligation to provide detailed reasons may be correspondingly reduced, as in Testici v R [2025] NSWCCA 88 (“Testici”) at [121]-[122]. Here, while it may have been preferable for his Honour to explicitly confirm in the sentencing judgment that he had taken into account when backdating the solely referable period and the period in which revoked parole was served, there was no dispute between the parties that the applicant should receive full credit for the period of 6 months and 22 days, and the extent of his Honour’s reasons on the issue must be considered in that context.

21. [92]

    The respondent submitted that insofar as the applicant raised 10 January 2024 as the appropriate sentence commencement date, it was calculated on the basis the severity appeal would be upheld and provided to the sentencing judge on that conditional basis. Given the conditional nature of that proposed date, the exchanges between the sentencing judge and the practitioners did not elevate 10 January 2024 to an agreed position between the parties, nor did his Honour accept it as binding, as evident from his statements in the sentence hearing (see above at [64]). Accordingly, in the respondent’s submission, it was not incumbent on his Honour to provide reasons for departing from the 10 January 2024 date, beyond those for dismissing the severity appeal, as that had the effect of determining that the 10 January 2024 date no longer had any foundation.

22. [93]

    The respondent’s case was that the sentencing judge’s reasons, when considered together with the sentence commencement date, are sufficiently clear to confirm the applicant received full benefit for the relevant periods of pre-sentence custody. The respondent submitted that while his Honour did not expressly state he was giving the applicant credit for the solely referable period and the balance of parole, the fact his Honour did so can be discerned from the following seven matters:

    1. (1)

       His Honour, after dismissing the severity appeal, noted that it had “a bearing on the backdate and that will be reflected in… the approach adopted on the sentence, the backdate, the totality issue...”.

    2. (2)

       His Honour stated he would impose a sentence with “some degree of concurrency” with the “appeal matters”.

    3. (3)

       His Honour noted the applicant had been in custody from arrest on 23 July 2023, but that period was not entirely referable to the sentence offences. His Honour then recited the terms of sentences 2 and 3, before indicating he would give a “not insubstantial backdate to allow for most of that time to be served concurrently with the sentence I am about to impose”. It was submitted to be apparent that his Honour was referring to the practical effect of the sentence and not revising his earlier indication about the extent of the concurrency.

    4. (4)

       Consistently with the point above, the actual sentence imposed was entirely concurrent with sentence 3, and concurrent with all but the first two weeks of sentence 2.

    5. (5)

       During the sentence proceedings, in an exchange with the defence solicitor, his Honour stated, “The balance of parole… I’m not going to double count it. I would only potentially accumulate on the non-parole period which is two months.” His Honour, having unequivocally stated to the parties that he would not accumulate on the revoked parole, received no further submissions on that issue. His Honour was therefore bound by principles of procedural fairness to abide by that indication. The commencement date demonstrates his Honour did so.

    6. (6)

       The Crown identified the period of custody that had not been accounted for (by a further sentence) from 23 July 2023 to 13 February 2024 (6 months 22 days) and confirmed orally that, “At the very least the Crown would say your Honour should backdate seven months from today, effectively six months 22 days.” The issue of the applicant receiving credit for this full period was therefore not in dispute between the parties.

    7. (7)

       The commencement date confirms his Honour’s reasoning. It was submitted to be plain that his Honour was troubled by the offending comprising sentence 3, ultimately determining there would be only “some concurrency”. Yet his Honour ultimately imposed a sentence that was entirely concurrent with not just sentence 3 but also most of sentence 2. Having regard to the whole of the remarks on sentence, that significant degree of concurrency was submitted to establish that the sentencing judge gave the applicant credit for both the revoked parole and the solely referable period. That is, his Honour backdated by the 6 months and 22 days the Crown conceded had not been accounted for, and further backdated to allow for a period of concurrency as between the sentence and the pre-existing non-parole period.

23. [94]

    For reasons I will explain below, I take the references at propositions (4) and (7) to be to the appearance of entire concurrency rather than entire concurrency in substance. If not intended that way, the interpretation of the submission I have preferred is a more accurate reflection the applicant’s custodial situation.

Determination

1. [95]

   When the applicant was sentenced on 29 November 2024, he had been held in custody in relation to the sentence offences for just over 16 months – from 23 July 2023 until that date. However in accordance with the orthodox practice that will be outlined below, he had no expectation to be afforded direct backdating for any period longer than that solely referable to the sentence offences of a little over 3 months, equivalent to the period when he was in custody only because he was refused bail in connection with the sentence offences, between 6 November 2023 and 13 February 2024. He had the benefit of a submission for the Crown, which was understandably not opposed, and was squarely adopted by the sentencing judge during the sentencing hearing, that he should also have the benefit of the period of time he spent in custody serving his revoked parole for sentence 1, resulting in an expectation as at the date of the sentence hearing of credit for 6 months and 22 days. Backdating any longer than that, or calculating it from a date any earlier than 15 March 2025, could only be attributable to a discretionary determination to allow some notional concurrency with sentence 3, due to the totality principle.

2. [96]

   There was understandably no submission advanced at first instance that the applicant should receive the benefit of the whole of the time he had spent in custody, because he was also serving periods of imprisonment for unrelated offending during that time. The minor miscalculations as to how long the applicant had in fact been in custody altogether (the submission for the applicant that there had been 15 months and 17 days to 13 November 2024 which was incorrect by 4 days, and the Crown Sentence Summary which indicated 15 months and 20 days as at 11 November 2024, being the date used by his Honour when sentencing more than two weeks later) were not relevant when there was no intention nor basis to afford the applicant credit for the whole of that period. Had there been a basis to do so, this would have been a simple matter of commencing the sentence on the date of arrest. Accordingly the applicant’s submission, stated above at [80](4), that this miscalculation magnified the error asserted in grounds 1 and 2, cannot be accepted. This miscalculation is not the error alleged in either ground, nor supportive of either ground. To the extent that there was some miscalculation, it was immaterial.

3. [97]

   It is not correct that there was a position agreed between the parties but rejected by his Honour that 10 January 2024 was an acceptable commencement date for the sentence. The date of 10 January 2024 had no significance in the event the severity appeal was dismissed, as occurred, or even had it been successful but his Honour left the commencement dates of the sentences comprising sentence 3 as they were and reduced the length of the sentences, rather than imposing a fresh aggregate sentence for the sentence offences and the sentence 3 offences. It was a date nominated in the written submissions for the applicant based upon two outcomes: the severity appeal succeeding, and the applicant being sentenced for those 27 offences afresh as part of an aggregate sentence with the two sentence offences. The Court was in the eventuality of those two outcomes occurring asked to take into account, for the purposes of the commencement date of that sentence (which would have been longer than an aggregate sentence for only the two sentence offences), time spent in custody in relation to the sentence offences and the sentence 3 offences – which was all the time in custody except for the balance of revoked parole and the 2 month non-parole period for sentence 2. The written submission then advanced was that, in accordance with Callaghan, his Honour additionally had a discretion to not exclude the whole period of time during which the revoked parole was served, and so could further backdate the sentence.

4. [98]

   As noted above, there was no submission advanced for the applicant as to a suitable commencement date for sentence in the event the severity appeal was not successful. There was however no opposition to the submission advanced for the Crown. The Crown nomination of minimum backdating of 6 months and 22 days, with further discretionary backdating to account for totality, treated the aspect of revoked parole more favourably than the applicant’s nominated date of 10 January 2024.

5. [99]

   Once the severity appeal was dismissed, there was no principled basis on which the commencement date for the sentence should be 10 January 2024 in particular – other than there being complete accumulation upon the period spent serving the revoked parole (which the applicant reminded his Honour he had a discretion to not do, the Crown urged his Honour to not do, and his Honour stated he would not do) and no accumulation upon sentence 3 (for which there would be no principled basis, it was not a course sought, it would have been contrary to his Honour’s clear indications during the hearing that there would need to be separate recognition of the harm done to the victim in that offending, and his Honour’s consistent statement in his sentencing judgment of the seriousness of the sentence 3 offences and that there would be “some degree of concurrency” with sentence 3). Maintaining a commencement date of 10 January 2024 without the occurrence of the two preconditions on which it was based would in effect have illogically meant the applicant was at a significant advantage in the severity appeal being dismissed – keeping the commencement date nominated on the condition that it was successful, but with a sentence that only accommodated the sentence offences, not the further 27 offences the subject of the sentence 3 severity appeal. Such a sentence would plainly have been longer than the aggregate sentence appropriate for only the sentence offences. His Honour never had cause to consider such longer sentence, as he did not uphold the severity appeal. The date of 10 January 2024 thereafter had no anchor to any relevant point in these proceedings.

6. [100]

   The Crown submission advanced at first instance in writing and orally that his Honour was required to backdate by at least 6 months and 22 days was clear, and was to the advantage of the applicant in the two ways advanced by the respondent on appeal. Firstly, the submission foreclosed the prospect of his Honour not allowing credit for some or all of the period of revoked parole, even though his Honour had a discretion to take that course. It may well be that the discretionary nature of the consideration would have been made clear by the Crown advocate during the oral hearing, had his Honour not so clearly indicated that he was not going to accumulate upon that period.

7. [101]

   Secondly, the Crown position did not reiterate that backdating from any date earlier than 15 March 2025 was affording the applicant additional concurrency with sentence 3 between such date and 15 March 2025. His Honour may well have nonetheless been conscious of this, affording real concurrency of close to 6 months with sentence 3 on this basis (and perhaps explaining his Honour’s remark that 6 months “really just gets burnt there” during the sentence hearing).

8. [102]

   Contrary to the submission for the applicant referred to above at [80](3), his Honour during the quoted exchange was reinforcing that he would backdate by the 6 months and 22 days nominated by the Crown, that this would not go back as far as 10 January 2024 (which was correct – as at the date of the hearing on 13 November 2024 this would have resulted in a commencement date in late April 2024, and if from the expiry of the non-parole period of sentence 3 would have been 24 August 2024), and that he could go back a bit further to accommodate the totality principle.

9. [103]

   After his Honour clearly stated he was not going to double count the offending occurring whilst the applicant’s liberty was conditional (by not allowing for the time on revoked parole), the Crown, when asked whether 10 January 2024 was an acceptable starting date in the event the severity appeal was unsuccessful, submitted that it was, but that the way the severity appeal was before the Court created the scope for error. The Crown reminded his Honour that the period required to be taken into account was from 23 July 2023 to 13 February 2024. Although this wasn’t described verbally as “the solely referable period” and the period of revoked parole, this is what it was. The Crown repeated the submission that at the very least his Honour should backdate by that period of 6 months and 22 days, and that there would be a discretion to backdate further to allow for principles of totality in relation to the other custodial terms. His Honour indicated he would be inclined to do so, and the Crown submitted that it would not be heard against that. The Crown confirmed that it accepted 10 January 2024 would be an appropriate start date based on an exercise of discretion in that way.

10. [104]

    His Honour thereafter clearly put the applicant’s representative on notice that he may have to accumulate “a little more than the agreed position” in order to vindicate the dignity of the victim, noting that instances were rare of an offender on the telephone to a victim, saying he was going to do it again, and kill her when he gets out of custody, and burn her car. A commencement date of 10 January 2024 was not an agreed position, as no position had been articulated for the applicant in the event the severity appeal was dismissed; although there was no opposition to the Crown submission that there should be backdating of at least 6 months and 22 days. The Crown position was no more than that, as will be explained further below. However his Honour by this exchange was making clear that a commencement date as far back as 10 January 2024 may not reflect sufficient accumulation upon sentence 3.

11. [105]

    The responses of the advocate for the prosecution need very careful contextualisation by reference to his duties. The Crown reminding the sentencing judge of the date of the applicant’s arrest, the length of non-parole periods being served during the remand period due to offending not before his Honour for sentence, and the total period that was not (as at the time of the sentence hearing) attributable to those unrelated sentences (that is, 6 months and 22 days) accords with the assistance this Court has confirmed prosecutors should provide to sentencing Courts: see for example the judgment of R A Hulme J (Adamson JA and Button J agreeing) in Mattiussi v R [2023] NSWCCA 289 at [70]–[73]. The prosecutor should in fact have reminded his Honour that the degree of allowance for the revoked parole was a matter for his Honour’s discretionary determination, in accordance with the principles outlined in Callaghan. However the Crown position in this regard was clearly favourable to the applicant, and as I have noted above the Crown may well have intended to so qualify the submission regarding this period until his Honour so clearly stated that he intended to allow credit for that period.

12. [106]

    The Crown responses during the hearing on 13 November 2024 in the passage quoted above at [63] meant no more than that the Crown did not submit any particular date was unacceptable, as it should not have. It may have been more helpful to clearly remind his Honour that the date of 10 January 2024 had absolutely no significance in the event that he did not uphold the severity appeal. However in the context of the well-known duties of prosecutors, the responses provided can have caused no confusion that this date was a particular date endorsed by the Crown.

13. [107]

    The High Court in Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2 (“Barbaro”) held that it is neither the role nor the duty of the prosecution to proffer a statement of the specific result which it considers should be reached or a statement of the bounds within which that result should fall. A prosecutor should not be permitted to make submissions as to the available range of sentences as such submissions are statements of opinion, not propositions of law or fact which a sentencing judge may properly take into account: at [7], [39], [43], [49] (per French CJ, Hayne, Kiefel and Bell JJ).

14. [108]

    In Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate; Construction, Forestry, Mining and Energy Union v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482; [2015] HCA 46 the High Court confirmed the application of this prohibition in criminal proceedings (but excluded it from civil proceedings). French CJ, Kiefel, Bell, Nettle and Gordon JJ held that when imposing punishment in criminal proceedings, there is no room for a judge to take account of the Crown’s opinion as to an appropriate length of sentence. The plurality also explained that “…it was held in Barbaro that it is inconsistent with the nature of criminal sentencing proceedings for a sentencing judge to receive a submission from the Crown as to the appropriate sentence or even as to the available range of sentences”: at [56]. At [40] their Honours referred to the determination in CMB v Attorney-General (NSW) (2015) 256 CLR 346; [2015] HCA 9 at [63]-[64] that the prosecutor remains under a duty to assist the Court to avoid appealable error where a sentencing judge indicates the form (as opposed to the duration) of a proposed sentencing order and the prosecutor considers it to be manifestly inadequate.

15. [109]

    In accordance with the above obligations, it was not the position of the Crown advocate to advance any submission as to what date, earlier than 6 months and 22 days before the hearing (or before 15 March 2025), would appropriately reflect totality considerations. This would have amounted in part to a submission as to the length of sentence that was just and appropriate for all the offending, and without even knowing the length of sentence to be imposed for the sentence offences. He was submitting that his Honour should backdate by at least 6 months and 22 days, which as at 13 November 2024 would have been something like 21 April 2024. This was not as far back as the date nominated by the applicant’s solicitor, and further backdating was a matter for his Honour’s discretion. The Crown advocate would presumably have given the same answer to scores or hundreds of other dates had they been raised. It was an utterly random date in the event the severity appeal was dismissed. There was in such event no principled basis to make any submission for or against any particular date earlier than 6 months and 22 days before sentencing (except perhaps to argue against complete concurrency, had it been raised; but it was not, and so this point does not need to be determined). The transcript suggests the Crown advocate did not completely understand how the date had been selected on the applicant’s behalf, and presumed some account for totality had founded the nomination of the commencement date (earlier than late April 2024). The Crown advocate would necessarily have provided the same answer to his Honour had his Honour asked him whether he wished to be heard against 29 February 2024, the date ultimately imposed.

16. [110]

    Accordingly the submissions advanced for the applicant that the parties were in agreement that 10 January 2024 was an appropriate commencement date (above at [77]) and that the sentencing judge wrongly focused on accumulation in contrast to the parties’ positions that evaluated time spent in custody since arrest (above at [78]) cannot be accepted. The applicant’s submission at first instance was based on accounting for time in custody which was predominantly served in connection with other offending (sentence 3), on the basis that his Honour would be sentencing the applicant for this offending, which did not eventuate. The Crown accounted for 6 months and 22 days which needed to be taken into account, and otherwise had no basis to submit anything as to how much further backdating was allowed for totality.

17. [111]

    What was clearly agreed during the sentencing hearing, and endorsed by his Honour, was that the applicant should receive credit for at least 6 months and 22 days, with something more to allow for totality, which was a matter for his Honour’s discretionary evaluation.

18. [112]

    I do not accept the submission for the applicant made during the hearing of the appeal that considering a 2 year period of remand in this case, rather than a bit over 16 months, and putting aside the issue of revoked parole, makes the propositions advanced more clear. It would have been contrary to principle for sentences 2 and 3 to have become subsumed in the sentence imposed by his Honour. Had the applicant been sentenced on 22 July 2025, such that he had been on remand for 2 years in connection with the sentence offences, he would within that time have also served 13 months imprisonment as the effective non-parole period for a very large number of additional serious offences. Bar considerations of totality, the commencement date for the sentence for the sentence offences would have been 23 August 2024, 13 months after his incarceration. In consideration of the principle of totality, it would have been open to commence the sentence at a somewhat earlier point in time.

19. [113]

    This submission advanced at the hearing is contrary to principle and also at odds with the tenor of the submissions otherwise advanced, which accord with principle, of determining the period solely or exclusively referable to the offending before the Court for the purposes of s 47 of the Act, and backdating to that extent.

20. [114]

    In Kaderavek v R [2018] NSWCCA 92 Hamill J (Beazley P and Schmidt J agreeing) referred at [19] to the degree of flexibility afforded when taking into account time already served:

21. [115]

    His Honour went on to state at [20] that the section and general principles of sentencing require that an offender be given credit (at least) for periods of incarceration that are solely referable to the offences for which he or she is being sentenced, and the preferable course is to “backdate” the commencement of the sentence. His Honour referred to R v McHugh (1985) 1 NSWLR 588 (“McHugh”) at 590, Wiggins v R [2010] NSWCCA 30 (“Wiggins”) at [3] and R v Newman; R v Simpson [2004] NSWCCA 102; (2004) 145 A Crim R 361 (“Newman and Simpson”) at [26].

22. [116]

    In McMillan v R [2024] NSWCCA 83 McNaughton J (Garling and Weinstein JJ agreeing) at [97] described the application of s 24(a) of the Act as not requiring as essential numerical equivalence, because:

23. [117]

    The issue there being considered, which does not arise in the present appeal, was the manner in which pre-sentence custody may be taken into account in sentencing an offender to something other than full-time custody. Her Honour went on at [103]-[105] to say of s 47:

24. [118]

    Whereas s 24 of the Act does not require numerical equivalence, accepted practice generally does require numerical credit for time served solely or exclusively in relation to the offending for sentence in connection with s 47. To the extent there has been any debate about this, it has been about the preferable method of reflecting this time by backdating, rather than reducing the length of the sentence imposed. There should be good reasons, which are explained, for taking the latter course rather than the established backdating method.

25. [119]

    In McHugh, decided prior to the enactment of the Act, Street CJ (with whom Hunt and Enderby JJ agreed) stated at 590-591:

26. [120]

    This practice has been consistently endorsed in relation to s 47 of the Act: see for example Wiggins at [3]-[8] (Howie J, with whom McClellan CJ with additional reasons and Harrison J agreed). In R v English [2000] NSWCCA 245 Giles JA at [22] said of the practice outlined in McHugh:

27. [121]

    In Newman and Simpson at [26]-[27] Howie J (with whom McColl JA agreed) reiterated the preferable course, even in a case complicated by broken periods of pre-sentence custody, such that the commencement date is not in fact a date the offender was in custody (see also [32]-[33]):

28. [122]

    As noted above at [94], I take part of the outlined submission of the respondent regarding concurrency in a particular way (or alternatively do not accept it if I am not correct to take it in that way). I do not accept that his Honour provided for complete concurrency with sentence 3. Although this is technically true, it is not true in substance. I do on the other hand accept the respondent’s position that his Honour clearly afforded a very significant amount of concurrency with sentence 3, in addition to providing credit for the 6 months and 22 days identified by the Crown at first instance. The sentence concludes close to 6 months earlier than it would have if his Honour had backdated only to reflect the solely referable period and the time spent serving revoked parole, and not to also make allowance for the totality principle.

29. [123]

    The commencement date of 29 February 2024 was a date after the commencement of the applicant’s sentences for the distinct offending the subject of sentence 3. At face value, the applicant was serving both sentences from 29 February 2024 to 15 March 2025. However the preferred method of taking the period of 6 months and 22 days of pre-sentence custody into account was to backdate it from the date of sentence (or this could have been from another date from then up to 15 March 2025), even though the applicant was not in fact serving either the solely referable period or the period of revoked parole at that time. An analogous “element of fiction” can occur when backdating to a date when some other sentence of imprisonment is in fact being served (as here) as with backdating to a time when an offender was not in fact in custody (as described above in Newman and Simpson): compare R v Wood [2005] NSWCCA 159 at [24]-[31] (Hall J, with whom Grove J agreed and Howie J agreed with additional reasons). Here, although on the face of his record the applicant was serving his sentence from 29 February 2024, 6 months and 22 days from then was to reflect time actually spent in custody from 23 July 2023 to 13 February 2024.

30. [124]

    The amount of concurrency in fact afforded to the applicant is the difference between the 6 months and 22 days nominated by the Crown, and the actual backdate of 9 months (which was extra backdating on top of the agreed position at the hearing), in addition to the period of time from the date of sentence to the expiry of the non-parole period of sentence 3 on 15 March 2025 (as the applicant was in fact serving both non-parole periods concurrently through this period). This is a period of close to 6 months imprisonment.

31. [125]

    This was a significant degree of concurrency with the 12 month non-parole periods the subject of sentence 3, in light of the very serious offending engaged in for which they were imposed. As outlined earlier, the applicant’s solicitor agreed that there would need to be partial accumulation upon those other sentences. His Honour repeated he would have to think further about the adequacy of a commencement date of 10 January 2024 as not providing enough accumulation on those other sentences. The degree of concurrency with the other sentences, like the length of the sentence and the ratio between the non-parole period and total sentence, was a matter regarding which his Honour had a very broad discretion, and which was not amenable to particular submissions being made by the parties other than general statements of principle.

32. [126]

    The respondent’s submissions as to concurrency with sentences 2 and 3 should be taken as reflecting this high degree of concurrency (calculated by the respondent as 5 months and 24 days) in addition to the 6 months and 22 days for relevant pre-sentence custody. The appearance of complete concurrency with sentence 3, and all bar 2 weeks of sentence 2, is supportive of the fact that the backdating was to account instead (in part) for the solely referable period and the time spent serving revoked parole – as otherwise there would be complete concurrency with sentence 3, for which there would be no basis, and which was an outcome his Honour clearly did not intend.

33. [127]

    The content of what is required to be provided by way of reasons will be informed by the issues in the particular case: DL at 12-13 [32]-[33] (Kiefel CJ, Keane and Edelman J). A judgment may comply with the obligation to give reasons where it appears “expressly or by implication” that relevant principles were taken into account by the trial judge: Fleming v The Queen (1988) 197 CLR 250 (“Fleming”) at [30].

34. [128]

    Regarding taking pre-sentence custody into account, Wright J (with whom McCallum JA and Rothman J agreed) set out a number of principles in Hunt at [29], including:

35. [129]

    His Honour included in proposition (7) part of the judgment in R v Howard [2001] NSWCCA 309, that does not require repeating. The issue under consideration in Hunt, and to which the above principles are more clearly directed, is whether, where a sentencing judge has plainly not backdated to account for pre-sentence custody, pre-sentence custody has been taken into account in another way (such as by reducing the sentence), and the adequacy of reasons provided for taking such a course. No suggestion arises in this matter that the sentencing judge took the relevant pre-sentence custody into account in any way other than by backdating the commencement date of the sentence.

36. [130]

    It is not necessary for a judge to refer to every piece of evidence led in the proceedings, nor every controversy between the parties, but it remains essential that the judge exposes the reasoning on a point critical to the contest between the parties, does justice to the issues posed by the parties’ cases, refers to evidence that is important or critical to the proper determination of the matter, and generally explains any conclusion on a significant factual or evidential dispute that is a necessary step to the final decision: Ming v Director of Public Prosecutions (2022) 109 NSWLR 604; [2022] NSWCA 209 at [43] (Kirk JA with whom White and Mitchelmore JJA agreed). The Court of Appeal in that case was considering the issue of adequacy of reasons generally, in the context of determining whether a constructive failure to exercise jurisdiction was demonstrated, for the purposes of judicial review.

37. [131]

    Although the terms of ss 24 and 47 of the Act do not require a sentencing judge to state that any time for which the offender has been held in custody in relation to the offence has been taken into account, as distinct from so taking it into account, I accept that it should normally be done. I have referred earlier to authority which states that a judge should provide reasons for not taking such custody into account by the preferred backdating approach. I accept the submission for the respondent that it would have been preferable for his Honour to expressly state that he had taken into account the period in custody from 23 July 2023 to 13 February 2024 as part of the reason for backdating the sentence to 29 February 2024.

38. [132]

    Such an express statement would have served a number of the purposes of the provision of reasons, including as an expression of the open justice principle, so that justice may be seen to be done (both by the parties and the wider public), and to enable an appellate Court to ascertain the reasoning on which the decision was based for the purpose of determining any appeal against the decision: Wainohu v New South Wales (2011) 243 CLR 181; [2011] HCA 24 (“Wainohu”) at [54]–[58]; Thomson at [42]. The subject matter, of justification for incarceration, is of high importance. Such an express statement would also be supportive of the benefit of good decision making promoted by the provision of reasons: see for example AK v Western Australia [2008] HCA 8; 232 CLR 438 (“AK”) at [89], [108] (Heydon J), Wainohu at [56], Director of Public Prosecutions (NSW) v Wililo [2012] NSWSC 713; (2012) 222 A Crim R 106, in which Johnson J at [62] quoted the Hon AM Gleeson AC ‘The Judicial Method: Essentials and Inessentials’ (2010) 9 The Judicial Review 377 at 384.

39. [133]

    Regarding a discount at common law for the utilitarian value of a guilty plea, Spigelman CJ said in Thomson at [52]-[53]:

40. [134]

    There have however been multiple decisions of this Court where other factors have had the result that it can be inferred that the guilty plea was taken into account: see Borri v R [2023] NSWCCA 166 at [36]-[45]. After referring to this analysis, Dhanji J in Tsoumbanellis stated as follows at [48]-[49]:

41. [135]

    A number of statements of principle already referred to regarding the provision of reasons focus on the importance of the issues that were in dispute between the parties. Acknowledging as the applicant did the caution urged in Hampton against finding error in the transcript of proceedings, as compared to the judgment, the transcript of proceedings in this matter assists in understanding what the issues between the parties were. I acknowledge that it has been held that a transcript of argument in which it may be seen the judge did appreciate the relevant issues, and had a stated view about it, is not a substitute for explanation of reasoning in the judgment: AK at [16] (Gleeson CJ and Kiefel J), [85] and [111] (Heydon J). The High Court was there considering inadequate reasons for judgment in a judge alone trial, regarding a matter that was clearly in dispute.

42. [136]

    In this matter, for the reasons given, there was no agreement that 10 January 2024 was an acceptable commencement date to account for pre-sentence custody, the rejection of which his Honour was obliged to explain. There was agreement that the applicant should be afforded credit by backdating in the order of 6 months and 22 days to take into account his period in custody from 23 July 2023 to 13 February 2024, and that some extra backdating was within his Honour’s discretion to accommodate the totality principle. There was no real submission advanced that any allowance for concurrency with sentence 2 should be provided. Although this must have been what the reference to totality in the written submissions for the applicant at first instance related to, it was not developed any further, and the facts for the offences giving rise to sentence 2 were not before the Court to take this sentence into account in any meaningful way for the purposes of totality. It was clearly indicated by his Honour, with no contrary submission advanced, that in the event that the severity appeal was dismissed there would need to be partial accumulation on sentence 3, and that his Honour was of the preliminary view that after backdating by 6 months and 22 days, regard to the principle of totality could not allow the sentence to commence as early as 10 January 2024 given the separate and serious offending against the victim during the relevant telephone calls.

43. [137]

    I am satisfied that it can be inferred by implication that the relevant principles were taken into account by the sentencing judge: Fleming at [30]. As outlined in Testici, the fact that the relevant issue was not in dispute between the parties has an impact on the extent of reasons needed. The sentencing judge clearly referred in his sentencing judgment to the date the applicant was taken into custody. In confirming that the time since then was not entirely referable to the matters for sentence, because of the sentences for unrelated matters (quoted above in the body of [68]) his Honour was indicating engagement with the relevant principles for taking pre-sentence custody into account. I accept the argument for the respondent that his Honour immediately thereafter referring only to sentences 2 and 3, and not the period of revoked parole, supported the fact that his Honour treated the period of revoked parole in the way he indicated he would at the sentencing hearing – it was not time for which the applicant was to be deprived of credit. His Honour referred to the offending the subject of sentence 3 in terms similar to those used during the sentencing hearing, and stated there would be some concurrency with sentence 3. If not to accommodate the agreed period of 6 months and 22 days of pre-sentence custody, the commencement date provided for complete concurrency with the 12 month non-parole periods forming part of sentence 3, and for all bar 2 weeks of sentence 2. I do not regard it as reasonably possible that his Honour intended this to be the case. There was nothing in the remarks on sentence indicating that the schedule which was MFI B misled his Honour – it reflected the length of the applicant’s numerous sentences over time, and was taken into account on the issue of the applicant’s institutionalisation.

44. [138]

    The requirement to take into account pre-sentence custody is a fundamental one and in the particular circumstances of this case I am satisfied that his Honour did not fail to take such custody into account. The very substantial backdating (allowing for all of the agreed 6 months and 22 days, and additionally almost 6 months concurrency with sentence 3) does not allow for the conclusion advanced by the applicant. I note that the circumstances in which his Honour was providing his reasons for sentence were somewhat disruptive, and expressly stating that he had adopted the agreed position regarding the backdate was possibly intended but overlooked. I am of the view that regardless of whether this is so or not, there is no real prospect the parties, as legally advised, could not understand what the backdate was for. I am not of the view in this matter that there was an absence of such reasons as would be necessary to exclude the possibility of legal error, so as itself to constitute legal error. Alternatively, in the sense explained by Basten JA and McCallum J in the passage from Lee quoted by Dhanji in Tsoumbanellis, quoted above at [134], it was immaterial error.

Conclusion

1. [139]

   Neither ground of appeal is made out.

Orders

1. [140]

   For these reasons, I propose the following orders:

   1. (1)

      Grant the applicant leave to appeal; and

   2. (2)

      Dismiss the appeal.