Abdul-Kader, Mostafa v The Queen - [2007] NSWCCA 329

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: ABDUL-KADER, Mostafa v R [2007] NSWCCA 329

FILE NUMBER(S):
2007/3229

HEARING DATE(S): 18 October 2007

JUDGMENT DATE: 29 November 2007

PARTIES:
Mostafa ABDUL-KADER (Appellant)
Regina (Respondent)

JUDGMENT OF: Beazley JA Hulme J Latham J

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): SC 2005/1091

LOWER COURT JUDICIAL OFFICER: Kirby J

LOWER COURT DATE OF DECISION: 5 September 2006

COUNSEL:
P Hamill SC (Appellant)
D Arnott SC (Respondent)

SOLICITORS:
Murphy's Lawyers Inc (Appellant)
S Kavanagh, Solicitor for Public Prosecutions (Respondent)

CATCHWORDS:
CRIMINAL LAW - evidence – the ‘credibility rule’ – exception to credibility rule – re-establishing credit – prior consistent statement – question of admissibility of prior consistent statement to support or establish credit – trial judge held prior consistent statement would not help in determining whether evidence arrived at by reconstruction or suggestion – whether trial judge erred in refusing tender of statement
CRIMINAL LAW – sentencing – parity – appellant’s criminality of a lower objective seriousness – co-accused three years younger and of limited intellect – whether trial judge erred in imposing sentence
CRIMINAL LAW – sentencing – date of commencement of sentence - pre-sentence custody – custody not exclusively referable to sentence being passed – appellant serving sentence for other offences – whether trial judge failed to give credit for time in custody

LEGISLATION CITED:
Crimes Act 1900 ss 18, 19A, 97(1)
Crimes (Sentencing Procedure) Act 1999 ss 24(a), 47(3), Div 1A
Criminal Appeal Act 1912 s 6(2)
Criminal Procedure Act 1986 s 150
Evidence Act 1995 ss 66, 102, 108(3)(b), 192

CASES CITED:
Graham v The Queen [1998] HCA 61; (1998) 195 CLR 606
R v Ali [2000] NSWCCA 177
R v Close (1992) 31 NSWLR 743
R v DBG [2002] NSWCCA 328; (2002) 133 A Crim R 227
R v McHugh (1985) 1 NSWLR 588
R v MDB [2005] NSWCCA 354
R v Newman; R v Simpson [2004] NSWCCA 102; (2004) 145 A Crim R 361
R v Simpson (1992) 61 A Crim R 58
Regina v Abdulkader & Hohaia [No 1] [2006] NSWSC 198
Roberts v R [2007] NSWCCA 112

DECISION:
1. Appeal against conviction dismissed
2. Leave to appeal against sentence allowed
3. Appeal against sentence dismissed.

JUDGMENT:

- 34 -

IN THE COURT OF
CRIMINAL APPEAL

CCAP 2007/3229
BEAZLEY JA
HULME J
LATHAM J
29 November 2007

Mostafa Abdul-Kader v Regina

Headnote

The appellant was tried and convicted on a joint indictment with John Hohaia for murder and the offence of robbery in company. The appellant was sentenced to imprisonment for a term of 21 years with a non-parole period of 15 years 9 months in respect of the murder. John Hohaia was sentenced in respect of the murder to a term of 21 years imprisonment with a non-parole period of 18 years. On the count of robbery in company, each was sentenced to a fixed term of 18 months imprisonment to be served concurrently.

At trial the appellant relied upon an alibi defence that at the time of the murder he was at his place of employment. The appellant called Robert Dibb in support of his alibi. Mr Dibb stated that he spoke to the appellant on the night of the murder and that the appellant told him that he was on his way to work. It was the Crown’s case, in respect of this evidence, that Robert Dibb was either mistaken about the date that he saw the appellant, or that he may have been fabricating the evidence. In response, counsel for the appellant at trial sought to tender a previous consistent statement made by Robert Dibb to a solicitor. The written statement was made eight months after the night in question. Counsel relied upon s 108(3)(b) of the Evidence Act 1995 (NSW) (the Evidence Act) which, relevantly, provides that the “credibility rule” does not apply if it is suggested that evidence given by a witness has been fabricated, re-constructed or is the result of suggestion. Robert Dibb’s prior consistent statement was rejected by the trial judge.

The appellant appeals against his conviction on the ground that the trial judge erred in refusing leave to adduce Robert Dibb’s prior consistent statement and further, that the trial judge erred in the application of ss 108(3)(b) and 192 of the Evidence Act.

The appellant also seeks leave to appeal against sentence on the basis that his sentence lacks parity with the sentence imposed on John Hohaia, and further, that a different, less severe, sentence was warranted in law and ought to have been imposed. In particular, the appellant submitted that the trial judge failed to take into account his period of pre-sentence custody.

Held per Beazley JA (Hulme and Latham JJ agreeing):

Did the trial judge err in refusing the tender of the prior consistent statement?

(1) The exercise of the discretion under s 108 of the Evidence Act depends upon the effect of the evidence on the witness’ credibility: [42]
Graham v The Queen [1998] HCA 61; (1998) 195 CLR 606 (followed); R v Ali [2000] NSWCCA 177; R v MDB [2005] NSWCCA 354 (considered); R vDBG [2002] NSWCCA 328; (2002) 133 A Crim R 227 (cited)

(2)          There was nothing in Robert Dibb’s prior consistent statement that explained how it was that he remembered the date on which he said he saw the appellant. The trial judge’s assessment was correct that the jury would not have received any assistance from the statement in determining whether Robert Dibb had arrived at the date by a process of reconstruction or suggestion: [50]
(3)          The trial judge was alive to the likelihood of the Crown’s general challenge to the truthfulness of Robert Dibb. While his Honour confined his remarks to the reliability of the evidence, he did not err by not addressing the question whether the evidence was fabricated. Even if his Honour should have addressed that question, the answer would have been the same: [63]
Did the appellant’s sentence lack parity with his co-offender?
(4)          The appellant does not have a basis to feel aggrieved at the sentence imposed. His role was less than that of John Hohaia which was reflected in his lesser sentence. In addition, John Hohaia was younger and of limited intellect, which were factors his Honour was entitled to take into account: [79]
               Roberts v R [2007] NSWCCA 112 (referred to)
Did the trial judge fail to give proper effect to pre-sentence custody?
(5)          It is desirable sentencing practice that, where there has been a period of pre-sentence custody exclusively referable to the offences for which sentence is being passed, the commencement of the sentence and the non-parole period should be back-dated for an equivalent period. In this case, the appellant was already serving a period of imprisonment, so that the five months pre-sentence custody to which his Honour referred, included the appellant being in custody for other offences: [87]-[88], [92]
R v Newman; R v Simpson [2004] NSWCCA 102; (2004) 145 A Crim R 361; R v McHugh (1985) 1 NSWLR 588 (considered)

(6) Having regard to the terms upon which his Honour imposed sentence and the fact he specifically stated the appellant was entitled to have credit for time served in custody, his Honour took the appellant’s pre-sentence custody into account. In any event, it was not demonstrated that some other sentence in law was warranted: [93]
Criminal Appeal Act 1912 (NSW) s 6(3)

IN THE COURT OF
CRIMINAL APPEAL

CCAP 2007/3229
BEAZLEY JA
HULME J
LATHAM J
29 November 2007

Mostafa Abdul-Kader v Regina

Judgment

BEAZLEY JA: On 21 March 2006, the appellant was found guilty of the murder of Alexander Szirt contrary to s 18 of the Crimes Act 1900 (NSW) (the Crimes Act) and the offence of robbery in company contrary to s 97(1) of the Crimes Act.
The maximum penalty for the offence of murder is imprisonment for life: s 19A of the Crimes Act. Division 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Crimes (Sentencing Procedure) Act) prescribed a Standard Non-Parole Period of 20 years. The offence of robbery in company carries a maximum penalty of imprisonment for 20 years. The appellant was sentenced to imprisonment for a term of 21 years with a non-parole period of 15 years 9 months. On the count of robbery in company, the appellant was sentenced to a fixed term of 18 months to be served concurrently.
The appellant appeals against his conviction on the ground that the trial judge, Kirby J, erred in law in refusing leave to adduce the evidence of a prior consistent statement made by Robert Dibb, who gave evidence to support the appellant’s alibi at trial that he was at work at the time of the murder: ground 1(a); and, further, that the trial judge erred in law in the application of ss 108(3)(b) and 192 of the Evidence Act 1995 (NSW) (the Evidence Act): ground 1(b).
The appellant also seeks leave to appeal against sentence on the basis that his sentence lacks parity with the sentence imposed on the appellant’s co-offender, John Hohaia, and further, that a different, less severe, sentence was warranted in law and ought to have been imposed.
The appellant had been tried on a joint indictment with John Hohaia for the murder of Alexander Szirt (the deceased) during the early hours of 3 December 2003, and of the robbery in company of the deceased’s mobile phone and wallet. At trial, the appellant relied upon an alibi defence that at the time when the murder took place, he was at his place of employment, “Moussa’s Bakery and Pizzas” at Lakemba.
The appellant called Robert Dibb in support of his alibi evidence. He said that he saw the appellant shortly after midnight and spoke to him briefly. Robert Dibb’s evidence was that the appellant told him that he was on his way to work at a bakery. At the conclusion of Robert Dibb’s cross-examination, counsel appearing for the appellant at trial sought to adduce evidence of a statement that Robert Dibb had made to a solicitor on 29 July 2004, which was consistent with his evidence at trial. The tender of the statement was rejected: Regina v Abdulkader & Hohaia [No 1] [2006] NSWSC 198.
Outline of prosecution case
It was the Crown case that Alexander Szirt died between 3.15am and 5.15am on 3 December 2003, after a prolonged period of assault by the appellant and John Hohaia. The assault commenced at 52 Lucerne Street, Belmore, sometime after 10.30pm and continued until about 3am. Late in the afternoon of 3 December, the deceased was found in a car which was in a carpark in Wiley Park. Vinita Ram, the appellant’s then girlfriend, said the appellant drove her to the carpark at Wiley Park at about 5.15am and that the deceased was slumped in his car and was dead.
A post-mortem examination revealed that the deceased had died of asphyxia as a result of the inhalation of blood and the obstruction of airways. The examination also revealed various injuries which were consistent with the deceased having been assaulted by punching and/or kicking.
On the evening of 2 December 2003, the deceased, who lived at home with his family, had dinner and participated in a trivia night at the Hurlstone Park RSL Club with his parents and sister. During the course of the evening, he received a telephone call and at about 10.30pm, left the Club alone and drove a red Ford Laser to the home of John Hohaia’s mother at 52 Lucerne Street, Belmore. When he arrived, John Hohaia, John Hohaia’s mother, the appellant and Nicole Janes were present and sitting around a table drinking alcohol. The evidence was that everyone, with the exception of Nicole Janes, was affected by alcohol or cannabis, or both, at the time that the deceased arrived. George Choueiri was also at the premises, although the evidence is unclear as to whether he arrived with the deceased, or was already there when the deceased arrived.
The Crown evidence as to the appellant’s involvement in the offence
There was no dispute that the deceased was at 52 Lucerne Street, Belmore late on 2 December 2003, nor was there any dispute that the appellant and John Hohaia were also there. The deceased’s father made telephone contact with the deceased at 1.35am on 3 December, at which time the deceased said he would be home “soon”. At 2.24am, nearly the entire credit balance of $190 was withdrawn from the deceased’s National Australia Bank account at an ATM located at Haldon Street, Lakemba. At approximately 3.15am, Barbara Kitsios returned home from her job as a cleaner in the city, intending to visit her boyfriend who lived in a block of units next door to 52 Lucerne Street. She knew John Hohaia, and observed him walking drunkenly along Lucerne Street, towards her, with another man who, by the description she gave, was the deceased. Barbara Kitsios observed John Hohaia acting in an angry and threatening manner towards the deceased.
Barbara Kitsios also gave evidence that she saw the appellant’s white van in the street and that it was parked with its back end towards the properties on 52 Lucerne Street. She was familiar both with the van and the appellant as the person who drove the van. She said the van had a very loud motor, with which she was also familiar. Barbara Kitsios went to her boyfriend’s unit, where she went to bed. At about 4am, while lying in bed, she said she heard what sounded like a fight. She then heard the van being driven off very fast. Later, in the morning of 3 December, Barbara Kitsios saw a pool of blood on the footpath outside 52 Lucerne Street. Presumptive tests for blood undertaken by police later that day on several stains on the footpath and in the forecourt of 52 Lucerne Street reacted positively.
The deceased’s body was found on the afternoon of 3 December in his car in a carpark at Wiley Park. A local resident had observed the car in the same position at 5.15am. It was the Crown case that the deceased had been killed sometime between 3.15am and 5.15am.
Nicole Janes, who was at the premises at 52 Lucerne Street when the deceased arrived, gave evidence that there was a dispute between the deceased and John Hohaia. The disagreement developed into an assault when John Hohaia, without warning, started punching the deceased, cutting his lip. This evidence was corroborated by the post-mortem examination, which indicated that the deceased had lacerations to the upper and lower lip.
Nicole Janes also gave evidence that the appellant joined in hitting and yelling at the deceased. She said that the appellant and John Hohaia then took the deceased outside the front of the house, where they punched and kicked him all over his body and took his wallet. She also gave evidence that they dragged the deceased to his car and placed him in it and that the appellant drove away in it. They returned sometime later, at which time the appellant dragged the deceased out of the car by the hair and the appellant and John Hohaia resumed hitting and kicking him.
John Hohaia gave evidence at trial, in which he admitted grabbing the deceased by the collar and punching him at least six times to the face, with both fists, either inside or outside the house. He otherwise did not remember the events of the evening.
George Choueiri gave evidence that he slept at 52 Lucerne Street on the night of 2/3 December 2003, but said he saw very little. However, he stated that the appellant returned to the premises at about 6 or 7am and that he had changed his clothes and shoes from the previous night.
Evidence was also given by Vinita Ram, who, at the time of the offences, was in a relationship and living together with the appellant at Lakemba. The house was shared by two other women. Vinita Ram gave evidence that she saw the appellant on several occasions on the night of 2/3 December. She was unable to specify the times of each occasion. On the first occasion, she said the appellant arrived at her home driving a red four-door car, possibly a Ford Laser. The appellant did not get out of the vehicle on that occasion and Vinita Ram came out of the house and spoke to the appellant. She said another person was in the car with the appellant. The description identified the other person as the deceased.
The appellant returned about an hour or two later and on that occasion, the appellant came into the unit. On this occasion, the appellant informed Vinita Ram that “Alex [the deceased]” was the person who had been in the car earlier and that he had been “a smart arse” and that John Hohaia had “cracked him”. The appellant also told Vinita Ram that they had locked the deceased in a room and that every few minutes John Hohaia would bash him. The appellant further told Vinita Ram that they had taken the deceased’s camera from him and he showed her a small chrome digital camera; that they had taken his mobile phone, and that the appellant had taken the deceased to an ATM and made him draw all his money out of his account. Vinita Ram recollected that the amount involved was about $200. The appellant further told her that they were going to make the deceased sign over his car the next day. The appellant left, saying he was going back to John Hohaia’s house.
The third visit was about an hour or two later when the appellant reappeared at the unit. He took Vinita Ram and their two flatmates for a joyride in a red Ford Laser motor vehicle.
The final occasion that Vinita Ram saw the appellant that night was an hour or two after the previous occasion. Vinita Ram said that it was at about sunrise. She described the appellant as being “freaked out”. He told her that he “wasn’t sure Alex was alive or dead” and that they had “taken him to the park, bashed him and … they bashed him there and they were kicking into him and they left him there”. Vinita Ram, the appellant and a friend drove to Wiley Park where the red car was parked. Vinita Ram saw the deceased’s body inside the car. She described it as appearing “purple” and being in a slumped position. She told the appellant that she did not think the deceased was alive. She suggested that they call an ambulance or make an anonymous call, but the appellant said not to do so.
They returned home and on Vinita Ram’s evidence, the appellant then showered and washed his clothes. Shortly afterwards, the appellant, Vinita Ram and the other two girls moved to another unit, because the appellant said he did not want anyone staying at his house after what had happened. The unit to which they moved to was leased by Jihad Moussa, who vacated it for them. Jihad Moussa owned the bakery at which the appellant claimed he was working at the time of the murder.
Evidence was also given by Bianca Kafer, one of the two flatmates who lived with the appellant and Vinita Ram. Bianca Kafer gave evidence of the occasion when the appellant took Vinita Ram, herself and the other flatmate for a joyride in the red Ford Laser. She also recalled the appellant returning that night looking a bit shocked and with a dark stain on his boots which she thought was blood. She also gave evidence that the appellant placed his boots in the washing machine later that morning. Bianca Kafer said that the three girls questioned the appellant as to what had happened and when he eventually replied, he said “I think he’s dead”.
The third flatmate, was not identified other than as “Abby”, and Bianca Kafer did not know her present whereabouts.
The alibi evidence
A Notice of Alibi dated 30 January 2006 was served upon the Director of Public Prosecutions pursuant to s 150 of the Criminal Procedure Act 1986 (NSW) (the Criminal Procedure Act). The Notice stated:
“That at his trial, the accused Mostafa Abdul-Kader intends to rely upon the alibi that from about 1 a.m. until about 10:00 a.m. on 3 December 2003 he was working at Moussa’s Bakery and Pizzas at 137A Haldon Street, Lakemba in the state of New South Wales.”
The Notice stated that the appellant intended to call Robert Dibb and Jihad Moussa in support of the alibi.
Evidence in support of the alibi

Jihad Moussa did not give evidence.
In his evidence at trial, Robert Dibb said that he had been at his home at 53 Barremma Road, Lakemba, on the night of 2 December 2003 (Appeal Tr 834 ff White Book 1515ff). He said that at around midnight, he drove to a 7/11 store on Canterbury Road, Lakemba, to buy something to eat. It took about five to ten minutes to drive from his place to the 7/11 store. He said that he ate the food in the carpark of the 7/11 store, had a cigarette and then commenced the drive home. He described the route that he took home, which included travelling along Haldon Street. Robert Dibb said that at the corner of the Boulevarde and Haldon Street, he saw the appellant. He said that this was between 12.30am and 1am. He said that he beeped his horn when he saw the appellant and the appellant waved at him and asked him what he was doing. He said that he explained that he had just been to get something to eat and asked the appellant what he was doing. Robert Dibb said that the appellant said he had just come back from a party and was on the way to work at the Bakery. Robert Dibb offered the appellant a lift, but he declined it.
In his examination-in-chief, Robert Dibb said that he became aware that the appellant had been charged in relation to the death of a person about a week after the night that he had spoken to him as described above. He said that he had read about it in the Torch, a weekly local newspaper circulated in the Lakemba area every Wednesday. Robert Dibb said that, about a week after he saw the item in the Torch, he spoke to the appellant’s father about what he had observed (Appeal book 1522, Tr 841).
In cross-examination, it became apparent that Robert Dibb had made a statement to a solicitor on 29 July 2004 about the events of that night and that he had been given a copy of his statement by the solicitor at that time (Appeal book 1526). The Crown Prosecutor cross-examined Robert Dibb about when he had seen the news item in the Torch. The cross-examination was based upon the assumption (which was correct in fact) that the appellant was arrested at about 5pm on 10 December 2003. The edition of the Torch for that week would have been already printed and distributed at that time. The Crown Prosecutor thus suggested that the article Robert Dibb had read must have been in the edition of the Torch published on 17 December 2003. Robert Dibb agreed with that “possibility” (Appeal book 1530).
The transcript of the cross-examination continues over a number of pages and question by question, was directed at undermining Robert Dibb’s recollection of the date that he saw the appellant in the early hours of a Wednesday morning (transcript 846-851; Appeal book 1527-1532). There was then some general cross-examination, which is set out below, of what might be described as of an ‘exploratory’ nature, culminating in a series of questions as to how Robert Dibb was able to fix the time and date that he saw the appellant as being between 12.30am and 1am on 3 December 2003:
“Q.You can actually remember today seeing the clock and the time that was on it [being a reference to looking at the clock on the dashboard of his car]?
A.           Roughly about that time.
Q.           What time do you say it was?
A.           At that time it was about maybe between 12.30 and 1.
Q.Would you accept there is quite a difference between 12.30 and 1 – would you accept that?
A.           What do you mean by that?
Q.Why do you say it was between 12.30 and 1 if you looked at the clock?
A.           Because I can’t exactly remember the exact time.
Q.You say, do you, that when you spoke to [the appellant’s] father you could remember this incident being Wednesday morning the 3 [sic] December because you could just remember it, right?
A.           I remember going to the 7/11 that day.
Q.He said nothing to you to make you aware it was Wednesday the 3 [sic] December?
A.           No.
Q.That was the day it was alleged he had been guilty of some crime?
A.           No, nothing whatsoever.
Q.And you didn’t learn about him being arrested and charged until you read about it in the newspaper?
A.That is correct.” (Emphasis added) (Tr 861, Appeal book 1542).
Robert Dibb was then cross-examined about what the appellant was wearing, and responded that he was wearing a green collared shirt, but he could not remember whether it was short or long sleeved and long pants, but he could not remember their colour. He was then asked:
“Q.You accept it is possible that you saw him on some other day – some other morning and not Wednesday the 3 [sic] December?
A.           No I am sure it was Wednesday.
Q.           You couldn’t be mistaken?
A.           No.
Q.           You couldn’t be in error?
A.           No.
Q.           Why are you so sure?
A.           Because I am.
Q.           Why?
A.           Because I remember that day.
Q.           Why do you remember that day?
A.           Because I know what I was doing that night.
Q.Did somebody tell you it was Wednesday 3 December that it was alleged that he was at a house where the deceased had died?
A.           No.
Q.           Did the solicitor ever explain that to you?
A.           No he didn’t.
Q.           But you couldn’t possibly be mistaken you say?
A.           No.” (Tr 863, Appeal book 1544)
There then followed a short number of questions about Robert Dibb’s friendship with the appellant and he was asked whether the appellant’s father had paid Robert Dibb’s expenses with the solicitor.
That was the end of his cross-examination. In re-examination, Robert Dibb was asked to identify the statement that he had made on 29 July 2004 and the tender of that document was then sought. The tender was objected to and was eventually rejected by his Honour. It is the rejection of the tender of that statement that is the subject of the appeal against conviction.
The prior consistent statement
The prior consistent statement commenced routinely with Robert Dibb’s name and address. The first paragraph then stated:
“On Wednesday 3rd December 2003, at approximately 12:00 midnight I was at my house at 53 Barremma Road, Lakemba.” (Appeal book 506)
The statement continued that, having felt hungry, he decided to go out to eat and so drove to the 7/11 store on Canterbury Road, Lakemba. He described how, on his way home, between 12.30am and 1am, whilst driving along Haldon Street, he saw the appellant and they had a conversation which was, relevantly, in the same terms as the conversation about which he had given evidence.
Basis upon which the prior consistent statement was sought to be tendered
Counsel for the appellant sought to have the statement admitted under s 108(3)(b) of the Evidence Act. As the heading to the section explains, s 108 is an exception to s 102 of the Evidence Act, which is described as “The credibility rule”. Section 102 provides:
“Evidence that is relevant only to a witness’s credibility is not admissible.”
Section 108 provides:
“108 Exception: re-establishing credibility
(1)The credibility rule does not apply to evidence adduced in re-examination of a witness.
…
(3)The credibility rule does not apply to evidence of a prior consistent statement of a witness if:
(a)evidence of a prior inconsistent statement of the witness has been admitted, or
(b)it is or will be suggested (either expressly or by implication) that evidence given by the witness has been fabricated or re-constructed (whether deliberately or otherwise) or is the result of a suggestion,
and the court gives leave to adduce the evidence of the prior consistent statement.”
Leave was required under s 192 of the Evidence Act before the statement could be adduced in evidence. That section provides:
“192 Leave, permission or direction may be given on terms
(1)If, because of this Act, a court may give any leave, permission or direction, the leave, permission or direction may be given on such terms as the court thinks fit.
(2)Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account:
(a)the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing, and
(b)the extent to which to do so would be unfair to a party or to a witness, and
(c)the importance of the evidence in relation to which the leave, permission or direction is sought, and
(d) the nature of the proceeding, and
(e)the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence.”
Trial judge’s reasons for refusing the tender of the prior consistent statement
The trial judge, after having set out the relevant portions of Robert Dibb’s evidence, including portions of the cross-examination, referred to ss 108 and 192 of the Evidence Act. His Honour observed at [18], as acknowledged by the appellant’s counsel, Mr Scragg, that the Crown had not suggested that Robert Dibb had fabricated his evidence. Rather, this was a case where the Crown proposed to suggest in its final address that Robert Dibb had either identified the relevant date of 3 December 2003 as a result of suggestion by some person, or that his evidence was the product of reconstruction. His Honour, at [24], posed the question:
“How does the making of a statement seven months after the event, in terms which simply repeat the assertion that [Robert Dibb] saw [the appellant] on Wednesday 3 December 2003, assist in determining whether his evidence was the product of reconstruction or suggestion?”
His Honour determined that the statement did not assist the determination. He observed that the other material in the statement, that is, the material apart from the assertion of the date in para 1, was not the subject of serious challenge by the Crown, such as to raise an issue of credibility. His Honour further observed that insofar as Robert Dibb referred to the date of 3 December 2003, the statement did not add to his evidence. It neither enlarged upon his thought processes as to how he knew some weeks after the event that the date he had seen the appellant was 3 December 2003, nor how he appreciated that seeing the appellant was relevant to the charge which the appellant faced. His Honour concluded at [24]:
“The statement does no more than the jury would infer having heard Mr Dibb's evidence, namely, that he had told the solicitor on 29 July 2004 that he saw [the appellant] on Wednesday 3 December 2003 between 12.30 and 1.00 am. I doubt whether the jury would get any assistance from the statement in determining whether in fact Mr Dibb had arrived at the date by a process of reconstruction or suggestion.”
His Honour then addressed each of the sub paras of s 192(2). For present purposes, the only provision to which reference needs to be made is s 192(2)(b). His Honour determined in relation to that provision that, for the same reasons as given in Graham v The Queen [1998] HCA 61; (1998) 195 CLR 606, no particular unfairness attached to either party because the statement did not really address the credibility attack, nor assist in resolving the issue of reconstruction or suggestion.
The law
The application of s 108 of the Evidence Act was considered by the High Court in Graham v The Queen. That case involved a charge of sexual assault by a father upon his daughter. Evidence was admitted of a complaint made by the complainant to a friend some six years after the alleged assault. The High Court held that the evidence of the complaint was not admissible under s 66 of the Evidence Act, because it had not been made at the time when the facts represented in the complaint were “fresh in the memory of the [representor]”: see at 608 [3]. The question then became whether the evidence of the complaint was admissible on the basis that s 108 applied. The cross-examination of the witness as to when the complaint was made was directed to a suggestion that the evidence of the complainant had been fabricated. (It was not suggested that there had been a reconstruction of evidence, or that the complainant’s evidence had been affected by suggestion.) Gaudron, Gummow and Hayne JJ stated at 609 [8]:
“In exercising the discretion under s 108(3) to permit the adducing of evidence of a prior consistent statement, it is important to bear two matters in mind. First, s 108 creates an exception to the ‘credibility rule’ - the rule that evidence that is relevant only to a witness's credibility is not admissible (s 102). Second, it is important to identify how the evidence relates to the statutory premise for its admission. Whether, if admissible, the complaint becomes evidence of the truth of what is asserted is not relevant to the exercise of the discretion to give leave under s 108. The exercise of the discretion under s 108 depends upon the effect of the evidence on the witness's credibility: here, the suggestion of fabrication.” (Emphasis added)
Their Honours then, at 609-610 [9], asked:
“How does the making of a complaint six years after the events bear upon that question?”
They continued:
“Unless the making of the complaint can be said to assist the resolution of that question, the evidence of complaint is not important (cf s 192(2)(c)) and would do nothing except add to the length of the hearing (cf s 192(2)(a)). And in this case, it is by no means clear that the making of a complaint six years after the event does assist in deciding whether the complainant had fabricated her evidence. Although trial counsel for the appellant suggested to the complainant, by his last question in cross-examination, that she was ‘making it all up’ the allegation of fabrication of evidence did not loom large in the trial. No question was put, and no answer was given, from which the time of alleged fabrication could be identified. The complaint having been made in 1994, and it having led at once to the start of police investigations, it may be doubted that a jury could gain assistance from its making in deciding whether the complainant had fabricated her story.”
Their Honours’ remarks are equally applicable to a case where the allegation is, not of fabrication, but of reconstruction or suggestion. The question to be asked, therefore, is: how does the statement which says no more than, on the specified date and time, the witness saw ‘x’ and had a conversation with him in ‘y’ terms, help resolve the question whether that statement was made in those terms because of a suggestion made to the witness or because it was a reconstruction?
The application of s 108 has been considered a number of times by this Court. In R v Ali [2000] NSWCCA 177, the Court was concerned with the admission under s 108(3)(a) of the evidence of a Department of Community Services (DOCS) worker of a complaint of sexual assault made to her by the complainant. The witness’ evidence was not admissible under s 66 of the Evidence Act because it did not have sufficient contemporaneity with the alleged assault. Sperling J (Priestley JA and Foster AJA agreeing) observed that the evidence was admitted under s 108(3)(a) as evidence capable of re-establishing the complainant’s credibility in regard to the possible effect of prior inconsistent representations that had been made in interviews with DOCS officers. His Honour also observed, at [46], in respect of s 108(3)(b):
“Where it is or will be suggested that a witness has fabricated evidence (or that the evidence is reconstructed, or the result of suggestion), a consistent out-of-court statement made as part of the train of events leading to the trial for the offence may not be admissible because it adds nothing to what is said by the complainant in evidence at the trial. In such a case, the out-of-court statement does not rationally answer the suggestion of fabrication, reconstruction or suggestion in relation to the evidence given by the complainant in court. The out-of-court statement merely tells the same story in materially the same context as the evidence given in court. It does nothing for the complainant’s credibility that the same story has been told out of court in such a case.” (Emphases added)
For the reasons already stated, these comments can be applied directly to this case.
See also R vDBG [2002] NSWCCA 328; (2002) 133 A Crim R 227 at 239-240, [50]-[51].
In R v MDB [2005] NSWCCA 354, the application of s 108(3) was again considered in the context of a complaint of sexual assault. The appellant had been convicted of sexually assaulting the 11 year old complainant on a camping trip. The complainant did not make any complaint at the time. However, six months later, when there was a suggestion of another camping trip, the complainant complained to his mother and to some friends that he did not wish to go camping with the appellant, because the previous time he had been camping with the appellant, he had been subject to the sexual abuse of which the appellant was convicted. On appeal, the appellant claimed that the trial judge had erred in admitting the evidence of the complaint which, as I have said, was made six months after the sexual assault the subject of the conviction. The Court rejected the appellant’s challenge to the admission of the evidence. That case also involved an allegation of fabrication. Simpson J, with whom Adams and Johnson JJ agreed, observed at [23] that:
“… it will often be the case that evidence of a prior consistent statement will assist in the determination of credibility where, for example, the suggestion of fabrication is tied to a time or event or circumstance, and the prior consistent statement can be shown to predate that time or event or circumstance.”
Her Honour pointed out, however, that s 108(3)(b) was not limited to that situation. In the case the subject of her Honour’s consideration, she considered that the circumstances in which the complainant made his complaint, namely, when the prospect of a second camping trip arose with the appellant, were significant. Her Honour considered that the evidence of the prior consistent statement, which included an explanation as to why and when he made his disclosure, was compelling evidence in rebutting the suggestion of fabrication, by explaining the context and circumstances in which he made the complaint.
In the present case, there was nothing in the prior consistent statement that explained how it was that Robert Dibb remembered or otherwise identified the date on which he said he had the conversation with the appellant as being 3 December 2003. The statement merely stated that on that date, he saw the appellant, explained why he was driving around at that time and then set out the conversation he said he had with the appellant. The attack made upon Robert Dibb in cross-examination was an attack upon the reliability of his identification of the date as 3 December 2003. In other words, there was nothing in the statement that would help repel the suggestion contained in the Crown cross-examination that the date was remembered because of reconstruction, or because of suggestion. In those circumstances, I am of the opinion that the trial judge was correct in concluding that the statement did no more than confirm Robert Dibb’s evidence that he had told a solicitor on 29 July 2004 that he saw the appellant on 3 December 2003 between 12.30 and 1am. I agree with his Honour’s assessment that the jury would not get any assistance from the statement in determining whether Robert Dibb had arrived at the date by a process of reconstruction or suggestion. Likewise, his Honour’s findings on the matters under s 192 of the Evidence Act were open to him and in my opinion, were correct.
That should be the end of the appeal on conviction. However, the manner in which senior counsel for the appellant approached the appeal was to contend that the Crown case was not limited to contesting the reliability of Robert Dibb’s evidence, but also challenged its veracity, that is, it was said the Crown case was that Robert Dibb’s evidence was a fabrication. It was then suggested that a prior consistent statement, made some seven months after the trial, was likely to assist the jury in determining whether the statement was a fabrication. This submission requires a consideration of the Crown’s final address to the jury.

In his address to the jury, the Crown Prosecutor asserted that the jury should not accept the evidence supporting the appellant’s alibi. In about a page and a half, he dealt with Robert Dibb’s evidence. He focussed on the way in which Robert Dibb had fixed the date of 3 December as being the date that he saw the appellant. After briefly analysing the evidence, the Crown Prosecutor said:
“It is possible that it was the day before or two days before [the appellant’s] arrest, in December 2003 that Mr Dibb did see him if he saw him. The question is this: How is he able to say it was 3 December when he fixes it by reference to reading something in the Torch?” (Emphasis added) (Appeal book 1744)
The Crown Prosecutor then referred to some of the cross-examination, where he had challenged Robert Dibb as to how he could say it was 3 December that he saw the appellant and referred the jury to the following questions and answers:
“Q.         How do you say it was 3 December?
A.           Because it was 3 December, are you not listening to me?
Q.           But why was it 3 December?
A.           Because I know it was 3 December.
Q.           But what distinguishes 3 December from any other day?”
The Crown Prosecutor continued with his address as follows:
“[Robert Dibb] was unemployed, he’d spent the night on the computer and on the internet, got hungry and he went up and got something to eat.”
The Crown Prosecutor returned to the question as to how Robert Dibb fixed the date as 3 December. He then posed the question for the jury, “Where does [sic] Mr Dibb’s allegiances lie?” The Crown Prosecutor reminded the jury that their assessment of Robert Dibb as a witness was entirely a matter for them, but concluded, “is he truly objective, independent, or do his allegiances lie a little towards the accused?” The Crown Prosecutor again returned to how it was that Robert Dibb was able to remember the time and the date and pointed out that in any event, his description of the accused was not even consistent with the picture the accused painted of himself, which was of someone so intoxicated that it took nearly an hour for him to get from the premises in Lucerne Street to where Robert Dibb was, a distance that would normally take 12 to 14 minutes to walk.
The Crown Prosecutor concluded his address relating to Robert Dibb in these terms:
“If Mr Dibb is telling the truth and he did see the accused early one morning, was it 3 December? In my submission it is inconsistent with all of the other evidence.” (Appeal book 1745)
In my opinion, in his address to the jury, the Crown Prosecutor did raise the question of fabrication, although the primary focus was on the question of how it was that Robert Dibb could have remembered that date. However, the question of admissibility of the prior consistent statement was determined prior to the address to the jury. The question is, therefore, whether the fact that the Crown assertion of fabrication came in the final address had any relevance to his Honour’s determination. The appellant argued, as I understand it, that it was apparent, even at the time that his Honour was dealing with the admissibility of the statement, that there was to be a challenge to its truthfulness (as opposed to reliability) and that the actual address to the jury confirmed this was so. His Honour’s error, therefore, was to fail to take into account this aspect of the challenge to Robert Dibb’s evidence when determining the admissibility of the statement. This submission thus leads back to a consideration of the manner in which the application for admission of the statement was approached by both parties.
Counsel for the appellant submitted to the trial judge that it was apparent from the cross-examination that the challenge that was being made to Robert Dibb’s evidence was not merely as to how it was that he was able to fix the date as 3 December, but was also a challenge to the alibi itself. (Tr 968, White book 1650). It was contended that the Crown would invite the jury to find either, that this chance meeting on 3 December never happened or, if it did, it happened on another occasion and not 3 December (Appeal book 1574, Tr 892).
The trial judge specifically put to the appellant’s counsel at trial that, as he had understood the cross-examination, it was limited to the issue as to how it was that Robert Dibb was able to come up with the date 3 December. Counsel agreed that the date was the key issue in this context. His Honour then raised with counsel how it was that the statement addressed that matter. In short, his Honour asked the appellant’s counsel at trial to deal with the very question which is at the heart of an application under s 108(3), namely, what in the statement revealed Robert Dibb’s thought processes as to how it was that he recollected that date (Tr 893, Appeal book 1575). Counsel’s response at that stage was simply that this was evidence that had probative weight and it showed that that was a date that Robert Dibb had remembered between the time he had spoken to the appellant’s father sometime in December 2003 and the time he gave the statement eight months later (Tr 894, Appeal book 1576).
The trial judge asked the Crown Prosecutor to identify what submission was ultimately going to be made to the jury in respect of the statement. The Crown Prosecutor responded that, at that stage, he had not given it any thought. (It should be remarked that the first that the Crown knew of the existence of this statement was in cross-examination of Robert Dibb on the day before.) The Crown Prosecutor then said
“I would think that I would be asking the jury to consider whether, in fact, it was 3 December that this witness saw the accused.”
He added that it was a matter for the jury to determine whether or not they accepted Robert Dibb as a witness of truth. If they did, then there was a question as to whether he had correctly remembered the date (Tr 969-970, Appeal book 1651-1652).
The trial judge, during the course of argument on the application (to the extent that comments made by a trial judge in the course of argument may be relevant) remarked that he had no doubt that the Crown would invite the jury not to accept Robert Dibb’s evidence. His Honour pointed out, however, that he expected that the attack on Robert Dibb as a witness of truth would not be based on a challenge to his evidence that he went to a solicitor on 29 July 2004 and made a statement that identified 3 December as the date he saw the appellant walking to the bakery.
His Honour’s assessment of the Crown’s anticipated approach to Robert Dibb’s evidence was correct. Indeed, it was as stated by the Crown in the course of the submissions on the s 108 application. The Crown Prosecutor said that he was going to suggest to the jury that Robert Dibb should not be accepted as a witness of truth. As the passage of his address to the jury quoted above reveals, that suggestion was made, but only in the most general of terms. The real challenge to Robert Dibb’s evidence was how it was that he could fix the date as 3 December.
In my opinion, the trial judge did not err in his approach to the determination of the issue before him. The exchange between his Honour and counsel during the course of the application reveals that his Honour clearly understood the basis of the challenge to Robert Dibb’s evidence, namely, its reliability, but was also alive to the likelihood of a general challenge to his truthfulness as a witness. In his determination, his Honour confined his remarks to the former, that being the essential challenge to the evidence. I do not consider, in the circumstances, his Honour erred by not addressing his attention to the question whether the statement assisted in determining whether the evidence was fabricated. However, even if his Honour should have addressed that question, the answer would have been the same. There was nothing in the statement, or in the circumstances in which it was made, that would have assisted in the determination of the question whether it was fabricated.
Senior counsel for the appellant also placed some emphasis upon the importance of this evidence to the appellant’s case. This effectively was a submission directed to the operation of s 192. The alibi evidence was, of course, fundamental to the appellant’s defence. However, the making of a statement eight months later in which nothing more was said than what was contained in the evidence was not important, in the sense required by s 192. But, in any event, for the reasons that the trial judge expressed, this evidence did not qualify for admission under s 108. In those circumstances, the appeal should be rejected.
Operation of the proviso
Even if I am wrong and his Honour should have admitted the prior consistent statement made by Robert Dibb on 29 July 2004, I am of the opinion that this is a case in which the proviso should apply: Criminal Appeal Act 1912 (NSW) s 6(2). This was a strong Crown case. I have referred above in summary form to some, but not all, of the evidence. It is correct that there were some inconsistencies in Vinita Ram’s statement in particular. Likewise, there was a basis upon which her evidence could be open to challenge in that it was only after her relationship with the appellant ended that she told the police what became her evidence at trial. Nonetheless, there was a significant body of other evidence at trial which corroborated her evidence. The jury were entitled to accept her evidence and given its corroboration, it was likely to be correct, in all relevant aspects.
In my opinion, therefore, the appeal should be dismissed.
Application for leave to appeal against sentence
The appellant and John Hohaia were sentenced by Kirby J on 5 September 2006.
The appellant was sentenced in respect of the murder charge to a term of 21 years imprisonment with a non-parole period of 15 years 9 months commencing on 10 December 2004 and expiring on 9 September 2020. His Honour imposed a concurrent sentence of 18 months in respect of the charge of robbery in company, commencing on 10 December 2004 and expiring on 9 June 2006.
John Hohaia was sentenced in respect of the murder charge to a term of 24 years imprisonment commencing on 4 December 2003 with a non-parole period of 18 years commencing on 4 December 2003 and expiring on 3 December 2021. His Honour imposed a concurrent sentence of a fixed term of 18 months in respect of the charge of robbery in company. John Hohaia was also sentenced in respect of an unassociated charge of assault occasioning actual bodily harm. His Honour imposed a concurrent term of 9 months in respect of that charge.
The appellant seeks leave to appeal against sentence on the ground that there was a lack of proper proportion between the sentence imposed on him and that imposed on John Hohaia, whose objective criminality and moral culpability was significantly higher: ground 2(a). The appellant contended that a different, less severe, sentence was warranted and ought to have been imposed: ground 2(b).
Kirby J found that John Hohaia was the principal aggressor and was primarily responsible for the battering sustained by the deceased (Remarks on Sentence [15]). His Honour found that the appellant was physically involved in the bashing of the deceased, although he was unable to precisely determine at what point the appellant engaged in the bashing, other than the evidence that he had attacked and kicked the deceased outside the house at 52 Lucerne Street. His Honour found, beyond reasonable doubt, that the appellant physically struck the deceased, but also that he played a much lesser role than John Hohaia in the brutality. His Honour held that the appellant was present and offering encouragement at various stages of the assault, including at the end.
His Honour found that John Hohaia’s motive in attacking the deceased was envy in respect of the advantages that the deceased enjoyed, including having a job, prospects, paying off his car and coming from a loving family. His Honour was unable to articulate any satisfactory motives that the appellant might have had in attacking the deceased. His Honour found that John Hohaia’s offence fell within the mid-range of objective seriousness and in the case of the appellant, who played a lesser, but significant role, that his crime fell below the mid-range of objective seriousness.
John Hohaia was 18 years and 5 months of age when he committed the crimes. His Honour accepted that he had shown, albeit recent, contrition, and that he had some prospects of rehabilitation, although that assessment was guarded. John Hohaia had a prior criminal history, mainly for driving offences and at the time of sentence for these offences, did not have convictions for offences of violence, although it is to be remembered that he was sentenced for the additional assault charge at the same time that these sentences were imposed.
His Honour considered that because of John Hohaia’s youth, it was appropriate to depart from and moderate the standard non-parole period of 20 years: see the Crimes (Sentencing Procedure) Act Div 1A.
The appellant was also young at the time of the commission of this offence, being aged 21 years, and his Honour took that into account. He did not, at any time, show contrition, at all times maintaining his innocence. The appellant had a prior criminal history, including driving offences, offences of dishonesty and an offence of assault for which he was fined a relatively modest sum. He was on a two year bond at the time of the commission of these offences, which, as his Honour stated, was a matter of aggravation. (Remarks on sentence [50]).
At the time of his arrest on 10 December 2003 for the murder of the deceased, the appellant had outstanding a charge against him for the supply of methylamphetamine, for which he had been arrested on 19 June 2003. He was tried for that offence in the District Court before a jury in May 2004 and was convicted and sentenced to a term of imprisonment of 32 months commencing on 11 May 2004 with a non-parole period of 20 months commencing on that date. The appellant was also serving a fixed term of imprisonment of 6 months commencing 10 December 2003 and concluding on 9 June 2004 for three other offences, namely, two offences of using a false instrument with intent and one offence of driving under the influence of alcohol or drugs. I need to return to these matters as it was submitted that his Honour failed to properly have regard to the appellant’s existing sentence when setting the commencement date of the sentence and for that reason also the appellant had a justifiable sense of grievance.
His Honour accepted that the appellant had periodically suffered from depression following his mother’s death when he was aged 16. There had also been also episodes of self-harm and a history of drug and alcohol dependency. His Honour also considered that the appellant’s prospects of rehabilitation were guarded, but may be reasonable, should he abstain from drugs and alcohol.
There was no finding of special circumstances.
Leaving to one side the complications that arise from the 6 month sentence that commenced on 10 December 2003, I do not consider that the appellant has a basis to feel aggrieved at the sentence imposed upon him. His involvement in the offence lasted throughout the night, although there were times when the deceased was only in the company of Mr Hohaia. The appellant was found to have physically assaulted the deceased and to have encouraged Mr Hohaia in what was clearly an horrendous and extended period of physical attack. His sentence was less than that imposed on Mr Hohaia and it is apparent that his Honour appropriately reflected the different role played by the appellant in the lesser sentence imposed on him. Finally, even though both were young men at the time of the commission of the offence, Mr Hohaia was only 18 years old and of limited intellect, whereas the appellant was 21 years of age. In Roberts v R [2007] NSWCCA 112, Barr J commented that a difference in age between two men in their early 20s, in that case, of four years, was significant. That comment is relevant here (although there was only approximately three years age difference), especially given that Mr Hohaia was only 18 at the time of the offence and of limited intelligence.
That leaves the question as to whether his Honour failed to give proper effect to the pre-sentence custody in such a way as to give rise to a sense of grievance. To understand this point, it is necessary to restate the manner in which his Honour imposed the sentence and the effect that had on the ratio of the non-parole period to the total sentence. It is also relevant that, in the case of Mr Hohaia, the ratio of the non-parole period to the total period was 75 per cent, a ratio that is sometimes referred to as the statutory norm.
It will be remembered that the appellant was arrested and taken into custody on 10 December 2003. The total sentence imposed upon the appellant for the murder offence was 21 years, with a non-parole period of 15 years 9 months. His Honour ordered that the sentence commence on 10 December 2004, with the non-parole period to expire on 9 September 2020. The sentence was partially accumulated upon the sentence for the drug offence of which he was convicted in May 2004, of 3 years 8 months with a non-parole period of 2 years 8 months commencing on 11 May 2004. The appellant was also serving the 6 month fixed term of imprisonment referred to above.
The trial judge recognised that the sentencing of the appellant, and in particular, the setting of the commencement date, was complicated by the fact that the appellant was already serving a sentence at the time that his Honour was imposing the sentence for the murder offence. His Honour also observed that the appellant was entitled to have credit for the five months that he was in custody between 10 December 2003 and 10 May 2004 and also some adjustment in respect of the sentence for the drug offence that was imposed on 11 May 2004. His Honour considered, therefore, that it was appropriate to commence the sentence from 10 December 2004. His Honour then stated the total sentence he was imposing, namely, 21 years, and specified the non-parole period of 15 years 9 months.
Because of the argument that has arisen on this point, it is appropriate to set out the terms in which his Honour articulated the sentence that he imposed. His Honour said at [75] of his Remarks on Sentence that he sentenced the appellant:
“… to imprisonment for 21 years with a non-parole period of 15 years and 9 months. Making due allowance for time in custody, but also taking into account the sentence you are now serving, your sentence will commence on 10 December 2004. Your non parole period will commence on 10 December 2004 and will expire on 9 September 2020.”
The appellant contends that this approach to the sentence indicates error in at least two ways. First, it was submitted that an accumulation on an existing sentence constitutes special circumstances justifying an adjustment of the non-parole period: see R v Close (1992) 31 NSWLR 743; R v Simpson (1992) 61 A Crim R 58. It was not contended that his Honour was bound to find special circumstances but, when his failure to do so was coupled with the next matter of which complaint is made, it was apparent, it was said, that there was a justifiable sense of grievance.
The second matter of which complaint is made is that although his Honour stated that he took into account the period of pre-sentence custody, it was submitted that the preferable course is to deduct the period of pre-sentence custody from the non-parole period by backdating the sentence.
This approach was endorsed most recently by this court in R v Newman; R v Simpson [2004] NSWCCA 102; (2004) 145 A Crim R 361. In that case, Howie J (McColl JA and Shaw J agreeing) described as “trite law” the principle that a sentencing court must take into account the period served in pre-sentence custody where that period is referable to the offence for which the sentence is being passed. Indeed, it is a matter of statutory prescription: see the Crimes (Sentencing Procedure) Act ss 24(a) and 47(3).

Howie J, at 367 [22], referred to the decision of this Court in R v McHugh (1985) 1 NSWLR 588, where Street CJ stated at 590:
“It is desirable sentencing practice that, where there has been a period of pre-sentence custody exclusively referable to the offences for which sentence is being passed, the commencement of the sentence (and the non-parole … period) should be back-dated for an equivalent period. This is to be preferred to a process of assessing the proper sentence (and non-parole … period) and allowing, as it were, a discount in consequence of the pre-sentence custody.” (Emphasis added)
His Honour observed that a difficulty arose in a case where the pre-sentence custody did not continue unbroken to the date of sentence. His Honour stated at 368 [26]:
“In such a case the court is faced with two options: it can simply state that the pre-sentence custody is being taken into account and reduce the sentence accordingly; or it can backdate the sentence …”
Howie J considered that the latter approach was available even if the offender was not actually in custody on the date when the sentence is deemed to have commenced. His Honour then went on, at 369 [29], to state the reasons the latter approach was preferable, including that by backdating the sentence, the court made it obvious to the offender that there had been a reduction in the sentence for the period already in custody. His Honour observed that it also eliminated any argument as to whether a discount had in fact been given, even though the sentencing judge had stated that the period spent in custody had been taken into account. His Honour further observed that the practice of backdating the commencement of the sentence avoided questions of disparity arising, in cases where there was no real substance in that argument.
The Crown recognised that there is some uncertainty arising from his Honour’s sentencing remarks as to precisely what sentence he was imposing. As senior counsel pointed out, his Honour did not specify whether he regarded the head sentence as one of 21 years and 5 months, or whether he delayed the commencement of the sentence by 12 months (that is, by the period of 5 months the appellant had already been in custody, plus the period of 7 months before his Honour partially accumulated the murder offence on the existing drug offence for which the appellant was already serving a sentence).
If the head sentence was intended to be one of 21 years and 5 months, then the ratio between the non-parole period and the total sentence was 73.5 per cent. If his Honour intended to delay the commencement of the sentence by 12 months, then the statutory ratio was 75.5 per cent. In this regard, the Crown also pointed out that the correct calculation of the length of time the appellant must spend in custody for the murder offence is 16 years 2 months, and not, as the appellant asserts, 16 years 9 months, as the period of 7 months is referable only to the drug offence.
In my opinion, the appellant has not established error in the trial judge’s sentencing process. Nor has he established that the question I presently have under consideration should give rise to a sense of grievance when regard is had to the sentence imposed upon the co-accused, and in particular, when regard is had to the non-parole period and the ratio that it bore to the co-accused’s total sentence, such as to call for appellate interference. In the first place, the trial judge stated that the appellant was entitled to have credited the first 5 months that he spent in custody. That is a permitted course and does not require, in the proper exercise of discretion, that the sentence be backdated to the commencement of the time in custody. Secondly, the desirable approach, as stated by Street CJ in R v McHugh and adopted in R v Newman; R v Simpson, is an approach that is appropriate where, as his Honour said in the passage cited above, the period of pre-sentence custody relates exclusively to the offences for which sentence is being passed. In this case, although his Honour does not specifically mention it in his Remarks on Sentence, the appellant was serving a 6 month period of imprisonment from 10 December 2003, so that the 5 months pre-sentence custody to which his Honour referred included the appellant being in custody for other offences.
In my opinion, having regard to the terms on which his Honour imposed the sentence and the fact he specifically stated that the appellant was entitled to have credit for the five months in question, I am of the opinion that the matter was taken into account. However, even if I am wrong, it has not been demonstrated that some other sentence is warranted in law: see the Criminal Appeal Act s 6(3).
In the circumstances, I consider that leave to appeal should be granted on the application for leave to appeal against sentence and the appeal dismissed.
The orders that I propose, therefore, are:
1.            Appeal against conviction dismissed;
2.            Leave to appeal against sentence allowed;
3.            Appeal against sentence dismissed.
HULME J: I agree with the orders proposed by Beazley JA and with her Honour's reasons.
LATHAM J: I agree with Beazley JA.

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LAST UPDATED: 29 November 2007