Prowse v The Queen - [2017] NSWCCA 68

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Prowse v R [2017] NSWCCA 68
Hearing dates: 3 April 2017
Date of orders: 03 April 2017
Decision date: 03 April 2017
Before: Leeming JA at [1];
R A Hulme J at [2];
Beech-Jones J at [20]
Decision:
1. Leave to appeal against sentence granted and appeal allowed.
2. The commencement date of the sentence imposed in the District Court on 26 August 2016 is quashed and in lieu the sentence is specified to commence on 8 May 2015.
The non-parole period will expire on 7 February 2019 whereupon the applicant will become eligible for release on parole.

Catchwords: CRIMINAL LAW – appeal against sentence – pre-sentence custody – preferable course to back date sentence – confusion as to how much pre-sentence custody referable to index offence – where primary judge erred by making broad but adverse assessment – conservative but more favourable assessment proposed by applicant accepted
Legislation Cited: Crimes Act 1900 (NSW) s 93(G)
Crimes (Sentencing Procedure) Act 1999 (NSW) s 24
Criminal Appeal Act 1912 (NSW) s 6(3)
Cases Cited: Lehn v R [2016] NSWCCA 255
Wiggins v R [2010] NSWCCA 30
Category: Principal judgment
Parties: Matthew Allan Prowse (Applicant)
Regina (Respondent)
Representation:
Counsel:
Ms J Paingakulam (Applicant)
Ms M Cinque SC (Crown)
Solicitors:
Legal Aid NSW
Solicitor for Public Prosecutions

File Number(s): 2013/89248
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

26 August 2016

Before:

English DCJ

File Number(s):

2013/89248

Judgment

LEEMING JA: I agree with the reasons given by R A Hulme J and the orders his Honour proposes.
R A HULME J: Matthew Prowse (“the applicant”) was sentenced in the District Court at Campbelltown by her Honour Judge English on 26 August 2016 for an offence of firing a firearm in a manner likely to injure a person. The offence is contrary to s 93G(1)(c) of the Crimes Act 1900 (NSW) and the maximum penalty is imprisonment for 10 years. The applicant was sentenced to imprisonment for 5 years with a non-parole period of 3 years and 9 months dating from 27 August 2015.
Leave is sought to appeal on a single ground which relates to the period of custody in which the applicant had been held prior to sentencing:

The sentencing judge erred in setting the commencement date of the sentence.

Section 24 of the Crimes (Sentencing Procedure) Act 1999 (NSW) requires that “In sentencing an offender, the court must take into account … any time for which the offender has been held in custody in relation to the offence”.
Section 47 authorises a court to back date a sentence and in deciding whether to do so “the court must take into account any time for which the offender has been held in custody in relation to the offence”: s 47(3).
It has been said on many occasions by this Court that the preferred method of taking into account pre-sentence custody is by back dating the sentence (rather…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Prowse v The Queen

Details

AGLC: Prowse v The Queen [2017] NSWCCA 68
Case: [2017] NSWCCA 68
Decision Date: 03 April 2017

CaseChat Overview and Summary

The appeal involved the applicant, Prowse, against the sentence imposed by the primary judge following a conviction for an index offence. The central issue was the length of pre-sentence custody that should be credited against the overall sentence. The applicant argued that there was confusion about the amount of pre-sentence custody attributable to the index offence, and that the primary judge's broad adverse assessment of the pre-sentence custody should be reconsidered. The applicant proposed a conservative but more favourable assessment, which the court was required to evaluate.

The court considered the applicant's submission regarding the confusion about the pre-sentence custody and the need for a more precise calculation. It examined whether the primary judge had erred in making the broad adverse assessment of the pre-sentence custody and whether the applicant's proposed conservative assessment was a preferable course. The court acknowledged the difficulty in determining the exact amount of pre-sentence custody attributable to the index offence but found that the primary judge's broad adverse assessment was not justified. Instead, the court accepted the applicant's conservative but more favourable assessment as a preferable course.

The court found that the primary judge had indeed erred by making a broad adverse assessment of the pre-sentence custody. It accepted the applicant's proposed conservative but more favourable assessment as a preferable course. The court emphasised the importance of accurately calculating the pre-sentence custody to ensure fairness in the sentencing process. By accepting the applicant's assessment, the court aimed to provide a more precise and equitable outcome. The applicant's appeal was successful in this regard.

The court ordered that the sentence be backdated to reflect the correct amount of pre-sentence custody attributable to the index offence. This meant that the applicant's sentence would be reduced by the amount of pre-sentence custody that should have been credited against the overall sentence. The court's decision aimed to rectify the error made by the primary judge and provide a fair and accurate outcome for the applicant.

Orders