BJT v R

[2011] NSWCCA 12

Court of Criminal Appeal

New South Wales

Case Title:	BJT v R
Medium Neutral Citation:	[2011] NSWCCA 12
Hearing Date(s):	2 February 2011
Decision Date:	02 February 2011
Jurisdiction:
Before:	Beazley JA at 1 Hulme J at 2 Harrison J at 3
Decision:	1. Grant leave to appeal and allow the appeal. 2. Confirm the sentences imposed by his Honour Finnane DCJ on 23 October 2009, but order that the sentences commence on 10 September 2008 in lieu of 16 December 2008. 3. The applicant will be eligible for parole on 10 September 2011.
Catchwords:	CRIMINAL LAW - sentence appeal - relevant factors - whether sentence ought to have been backdated to take account of quasi-custodial sentence served in residential rehabilitation - appeal allowed - sentence backdated to reflect time spent in quasi-custody
Legislation Cited:	Crimes Act 1900
Cases Cited:	Hughes v Regina [2008] NSWCCA 48; (2008) 185 A Crim R 155 Reed v Regina [2007] NSWCCA 4 Regina v Delaney [2003] NSWCCA 342; (2003) 59 NSWLR 1 R v Marschall [2002] NSWCCA 197; (2002) 129 A Crim R 381
Texts Cited:
Category:	Principal judgment
Parties:	BJT (Applicant) Regina (Respondent)
Representation
- Counsel:	Counsel: D Barrow (Applicant) J Dwyer (Respondent)
- Solicitors:	Solicitors: S E O'Connor, Solicitor for Legal Aid Commission (Applicant) S Kavanagh, Solicitor for Public Prosecutions (Respondent)
File number(s):	2008/20004
Decision Under Appeal
- Court / Tribunal:
- Before:	Finnane DCJ
- Date of Decision:
- Citation:
- Court File Number(s)	2008/11/1535
Publication Restriction:

Judgment

1. BEAZLEY JA: I agree with Harrison J.

1. HULME J: I also agree.

1. HARRISON J: The applicant pleaded guilty on 9 December 2008 in the Children's Court to the following offences:

1. Robbery with an offensive weapon contrary to s 97(1) of the Crimes Act 1900 .

2. Inflicting actual bodily harm with intent to have sexual intercourse contrary to s 61K(a) of the Crimes Act 1900 .

1. Each offence carries a maximum penalty of 20 years imprisonment. Each offence was committed against the same victim who was 19 years of age at the time. The applicant appeared for sentence before his Honour Finnane DCJ at the District Court at Sydney on 23 October 2008. The sentences imposed upon the applicant were as follows:

1. For the s 97(1) offence an overall sentence of 4 years imprisonment with a non-parole period of 2 years.

2. For the s 61K(a) offence a sentence of 6 years with a non-parole period of 3 years.

1. Both sentences commenced on 16 December 2008. His Honour took into account two charges of common assault and one count of malicious damage on a Form 1. The applicant is eligible for release on parole on 15 December 2011.

1. The applicant seeks leave to appeal against the severity of the sentences imposed upon a single ground to which I shall shortly refer. The Crown does not oppose the grant of leave to appeal and concedes that, subject to the view of this Court, the sentence imposed by the sentencing judge should be reduced in the way contended for by the applicant.

Background

1. The applicant was born on 13 December 1990 and was 17 years of age at the time of the offences. Shortly after 11.30pm on 2 May 2008 the victim and her partner left the Metro Hotel in Orange. Following an argument between them, the victim walked by herself along Endsleigh Avenue where she was approached by the applicant on his pushbike. He was in possession of a small knife. He grabbed the victim from behind and forced her to walk to a nearby park. He pushed her to the ground and climbed on top of her. The victim struggled and was kicked by the applicant. He positioned himself upon the victim a second time and she scratched his face. The applicant left shortly afterwards taking the victim's handbag with him.

1. The victim suffered a laceration to one of her fingers, bruising and grazing to her elbows and knees, scratches to her neck, bruising to her right shoulder, ankle and heel and a painful left temple. As she stood up she realised that her underwear had been pulled down to her knees.

1. The applicant was arrested shortly afterwards at the local hospital where he had sought treatment for the scratches to his face. The victim's mobile phone was found in his possession. Semen found in the victim's underwear matched the applicant's DNA profile as did skin from under the victim's fingernails. He was interviewed and he admitted having been involved in the offences. He was arrested, charged and was refused bail.

1. Thereafter the applicant remained in juvenile custody from 3 May 2008 until 13 August 2008. He was then granted bail upon conditions that included a requirement that he reside at "Tarlo", a facility some 25 kilometres from Goulburn run by the New South Wales Department of Ageing, Disability and Home Care. It is described as a young persons' intensive rehabilitation service and forms part of that Department's Criminal Justice Program. The applicant commenced his period at Tarlo on 13 August 2008 and remained there until 25 February 2009 when he was charged with further offences of common assault and malicious damage and his bail was revoked. Before that occurred he had spent a total of 6 months and 12 days at the centre. The applicant thereafter was returned to and remained in custody from 25 February 2009 until he appeared for sentence. This time was spent in several adult correctional facilities. His Honour did backdate the commencement of the sentences he imposed to 16 December 2008 to allow for the continuous period of almost 8 months served by the applicant in custody from 25 February 2009 until he was sentenced on 23 October 2009, but that period is not germane to the considerations raised on this application.

Ground of appeal

1. The applicant relies upon the following single ground of appeal:

His Honour erred by failing to backdate the sentence to take account of the quasi custody the applicant had served in residential rehabilitation.

1. The applicant contends that he is entitled to, and should have been given credit for, one half of the period of 6 months and 12 days that he spent at Tarlo. As I have earlier indicated, the Crown accepts that contention.

Consideration

1. It is uncontroversial that the authorities support the proposition that time spent in a full time residential rehabilitation facility in circumstances similar to the applicant's time in Tarlo can to some extent appropriately be taken into account as time served for which credit can be given by the sentencing tribunal. It is important to observe that neither the applicant nor the Crown raises any criticism of the sentence imposed by his Honour beyond a recognition and acceptance that the principles applicable to what should be done concerning time spent in residential rehabilitation facilities were not taken into account. This is unremarkable in this case as neither counsel for the applicant nor the Crown raised the issue with his Honour during the sentencing proceedings.

1. In Regina v Delaney [2003] NSWCCA 342; (2003) 59 NSWLR 1, this Court considered the relevance of attendance in a rehabilitation program for the purposes of determining a starting date for a sentence of imprisonment. James J at [20] - [24] said this:

"[20] Counsel for the applicant referred to decisions of this Court in R v Eastway (unreported 19 May 1992) especially at pp 6 to 7 per Hunt CJ at CL; R v Campbell (unreported 12 April 1999) especially per Kirby J at paras 24 and 25; R v Thompson (unreported [2000] 362) especially per James J at par 30.

[21] In R v Campbell Kirby J said at par 24:

'The last complaint was the failure by his Honour to take account of the time spent by the applicant undergoing rehabilitation. It was appropriate that the applicant should have received recognition and credit for the time spent in rehabilitation. In R v Eastway (CCA, unreported, 19 May 1992), the Court consisting of Gleeson CJ, Hunt CJ at CL and Matthews J, identified the reasons for doing so. The rehabilitation courses are residential. Persons who undergo them are subject to discipline and restrictions. The Court determined, in that case, that the prisoner should be given credit for half the time spent in rehabilitation. In some cases the proportion has been somewhat higher, as high as 75 percent.'

[22] In my opinion, her Honour did err in refusing to take into account the time which the applicant had spent in The Salvation Army programs. The programs both in Sydney and Canberra were residential programs. In his letter of 4 April 2002 Major Harmer referred to the strict discipline expected of clients who enter the William Booth program and in his affidavit of 10 November 2003 Major Harmer reiterated that The Salvation Army program is very strict. The letter from Mr Fairhall listed the activities comprised in the program in which the applicant was participating, including carrying out regular community and housekeeping chores as required. In my opinion, the conditions of the residential programs in which the applicant was participating amounted to conditions of quasi-custody.

[23] If the applicant was participating in programs the conditions of which amounted to conditions of quasi-custody, then the applicant should not, in my opinion, be disentitled from obtaining a credit in sentencing, by reason of the circumstance that part of his motivation for undertaking the programs might have been to create a favourable impression at any sentence hearing. The applicant's motive for undertaking the programs might be relevant in the assessment of the applicant's prospects of rehabilitation but in my view it is not relevant in determining whether he should be entitled to some credit in sentencing, on the basis that he has already undergone a kind of punishment by being subjected to quasi-custody.

[24] Nor do I consider that the applicant is disentitled from receiving credit, by reason of the circumstance that he did not complete any program. Once again, whether an applicant completed a program of the kind conducted by The Salvation Army would be relevant in assessing his prospects of rehabilitation. It does not seem to me to be relevant in determining whether he should receive a credit in sentencing by reason of having spent periods of time in conditions of quasi-custody."

1. More recently in Hughes v Regina [2008] NSWCCA 48; (2008) 185 A Crim R 155 Grove J in this Court said this at [38]:

"[38] It is appropriate for an offender to receive recognition and credit for time spent in rehabilitation which has been productive: R v Eastaway (unreported, NSWCCA 19 May 1992). An allowance of approximately 50 percent of the credit that would be given in respect of pre-sentence custody has been endorsed: R v Douglas (unreported, NSWCCA 4 March 1997). Pre-sentence custody and the similar concept of rehabilitation "custody" is preferably catered for by backdating of the commencement date of sentence: R v McHugh (1985) 1 NSWLR 588. What is here involved is therefore a potential backdating of a little over fifty days. I would reject the Crown submission that this ground should be rejected because that period is de minimis."

1. There is agreement in this case that an allowance of one half of the time spent by the applicant at Tarlo, amounting to 3 months and 6 days, would have been an appropriate period by which to reduce the sentence that the sentencing judge imposed in fact in accordance with the principles referred to in these cases. If this Court were to accept that contention then the applicant's sentences should have commenced on 10 September 2008. Correspondingly he would have become eligible for parole on 10 September 2011.

1. In Reed v Regina [2007] NSWCCA 4, Price J, with whom Adams and Howie JJ agreed, observed at [19] and [24] that it was not contentious that six months residential rehabilitation at Guthrie House was equivalent to three months full-time custody. In R v Marschall [2002] NSWCCA 197; (2002) 129 A Crim R 381, Smart AJ said the following at [30] with respect to incomplete rehabilitative steps taken by a resident of a centre in what is referred to as quasi-custody of the sort undertaken by the applicant at Tarlo:

"[30] Notwithstanding the opportunity that a participant is given, the fact remains that he or she has been in quasi custody. If the participant has only spent two or three months at the residential centre, it may well be thought that such a person has not applied himself or herself to the program sufficiently to warrant any credit being given. On the other hand, when a person has stayed in such a centre for six months or more and applied himself or herself to drug rehabilitation but in the end has not succeeded, then some credit should usually be given for the time spent in quasi custody in the residential centre. Whether any credit should be given and the amount of any credit will depend on all the circumstances, including that the treatment has not yielded a successful result. Otherwise, if a participant who does not succeed has spent, say, nine months in a centre in quasi custody and then serves his full sentence, he will in fact have spent longer in a custodial situation than if he had just served his sentence. Of course, no mathematical exercise should be undertaken. One relevant factor will be the leniency or severity of the sentence imposed. Where a sentence is at the lower end of the permissible range, it may be wrong to give any credit as the resulting sentence would not adequately reflect the criminality involved."

1. In this case it appears that the accommodation at Tarlo met the strict requirements that correspond to quasi-custody. The applicant resided there for just over six months and despite the fact that he committed two offences, taken into account on the Form 1, the Criminal Justice program was nevertheless willing to have him back at the centre. Credit for the quasi-custodial time spent in a residential program such as Tarlo ought not to be forfeited if the principles to which Smart AJ referred in Marschall are applied. In any event, the sentencing judge was of the view that the matters on the Form 1 were "not of a very extreme nature".

1. In all other respects his Honour took into account all relevant factors touching the exercise of the sentencing discretion, including the applicant's early pleas of guilty for which a 25 per cent discount was given. The sentences that were imposed were not so lenient as to suggest that his Honour had in effect taken the quasi-custodial nature of the applicant's period at Tarlo into account without specifically saying so.

1. In my opinion the applicant should be re-sentenced to take account of his time at Tarlo. I consider that 3 months and 6 days, being one half of that period, is an appropriate period by which further to backdate the sentences otherwise imposed by his Honour.

Orders

1. In the circumstances I consider that the following orders should be made:

1. Grant leave to appeal and allow the appeal.

2. Confirm the sentences imposed by his Honour Finnane DCJ on 23 October 2009, but order that the sentences commence on 10 September 2008 in lieu of 16 December 2008.

3. The applicant will be eligible for parole on 10 September 2011.

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