R v Brookes (No. 2)

[2020] NSWDC 504

District Court

New South Wales

Medium Neutral Citation:

R v Brookes (No. 2) [2020] NSWDC 504

Hearing dates:

03 September 2020

Decision date:

03 September 2020

Jurisdiction:

Criminal

Before:

Letherbarrow SC DCJ

Decision:

1. Orders 1 and 2 of 14 August 2020 are withdrawn.

2. Imprisonment consisting of a non-parole period of 2 years and 5 months commencing on 18 December 2018 and expiring on 17 May 2021.

3. Total sentence of 3 years and 9 months commencing on 18 December 2018 and expiring on 17 September 2022.

Catchwords:

SENTENCING — Sentencing procedure — Correction of sentence

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

R v Gray [2018] NSWCCA 241

R v Newman, R v Simpson (2004) 145 A Crim R 361

Category:

Sentence

Parties:

Regina (Crown)
Ronald Brookes (Offender)

Representation:

Counsel:
Mr Chatterton (Crown)
Ms Fernando (Offender)

Solicitors:
Director of Public Prosecutions (Crown)
O’Brien Solicitors (Offender)

File Number(s):

2018/00389317, 2018/00102259, 2018/00096087

Publication restriction:

Statutory non-publication order re identity of victim

SENTENCE CORRECTION

1. The sentence hearing in this matter took place on 22 July 2020. The sentence was imposed on 14 August 2020. The offender was sentenced to a term of imprisonment consisting of a non-parole period of 2 years and 5 months backdated to commence on 18 August 2018 and expiring on 17 January 2021. The total sentence was one of 3 years and 9 months commencing on 18 August 2018 and expiring on 17 May 2022.

2. On 19 August 2020 the Court received submissions from Mr Chatterton who appeared for the Crown at the trial and at the sentence hearing but not when sentence was imposed. The submissions requested that the court reopen the proceedings pursuant to s 43 of the Crimes (Sentencing Procedure) Act1999 (the Sentencing Act). The basis for the application was that there was an error in the commencement date of the sentence.

3. Ms Fernando, who appeared on behalf of the offender at trial and on sentence, provided written submissions on 25 August 2020. It was accepted therein that the commencement date appeared to be infected by error.

4. The issue of back dating was discussed at paragraphs 11 to 15 of my remarks on sentence which were as follows:

(11) On 10 August 2018, the offender was arrested and charged in relation to two counts of intimidating a police officer in the execution of their duty and one count of resisting an officer in the execution of their duty. Such offences were committed that day. For each offence the offender was sentenced on 11 December 2018 to 12 months imprisonment with a non-parole period of four months with all three sentences commencing on 10 August 2018.

(12) At the conclusion of these three four-month non-parole periods, the offender was released to parole on 9 December 2018. The subject offence was committed on 16 December 2018, some seven days later. The commission of the subject offence whilst on parole for the three earlier offences is, of course, an aggravating feature. The offender was arrested for the subject offence on 18 December 2018 and has been in custody since.

(13) However, the position here is a little complicated in that on 9 January 2019, the offender’s parole for the three offences committed on 10 August 2018 was revoked by the Parole Authority and he was sentenced to serve the balance of his parole being a period of seven months and 25 days. This balance of parole expired on 11 August 2019.

(14) Here it would seem that the revocation of the offender's parole was entirely a result of his committing the subject offence.

(15) In these circumstances, I have a discretion to backdate the commencement of any period of imprisonment imposed in relation to the subject offence so that it commences before his arrest for same on 18 December 2018: see Callaghan v R (2006) 168 A Crim R 145. In my view, a period of four months is appropriate. Accordingly, the sentence of imprisonment which I will shortly impose will commence on 18 August 2018.

5. Section 43 of the Sentencing Act relevantly provides:

(1) This section applies to criminal proceedings (including proceedings on appeal) in which a court has--

(a) imposed a penalty that is contrary to law, or

(b) failed to impose a penalty that is required to be imposed by law,

and so applies whether or not a person has been convicted of an offence in those proceedings.

(2) The court may reopen the proceedings (either on its own initiative or on the application of a party to the proceedings) and, after giving the parties an opportunity to be heard--

(a) may impose a penalty that is in accordance with the law, and

(b) if necessary, may amend any relevant conviction or order. …

6. Section 24 of the Sentencing Act relevantly provides:

In sentencing an offender, the court must take into account--

(a) any time for which the offender has been held in custody in relation to the offence

7. The offender has been in custody for this offence since 18 December 2018 and the sentence cannot commence prior to that date as that is the first day that the offender was in custody in relation to this offence.

8. There is therefore an error in the proceedings and I have accepted that this issue should be re-visited.

9. Accordingly, paragraphs 15, 62 and 63 of my remarks on sentence and orders 1 and 2 are withdrawn.

10. The Crown submitted that in these circumstances three options were open to the Court. Firstly, if the Court were to impose a sentence that is concurrent with the period of revoked parole the commencement date would be 18 December 2018. Secondly, if the Court were to impose a sentence that is partly cumulative with the period of revoked parole the appropriate commencement date would be any day between 9 January and 11 August 2019. Thirdly, if the Court were to impose a sentence that is fully cumulative with the period of revoked parole then the appropriate commencement date would be 12 August 2019. Of the three options the Crown submitted I should adopt the second.

11. Ms Fernando submitted that the sentence should commence on 18 December 2018. It was acknowledged that this would make the sentence entirely concurrent with the period of revoked parole. It was said that this course was within the Courts discretion and that the court ought to give reasons for so doing: see R v Gray [2018] NSWCCA 241 at [68].

12. Section 47(2) the Sentencing Act allows a court to direct that a sentence is taken to have commences before the date on which it is imposed. s 47(3) relevantly provides that:

“...in deciding the day on which the sentence is taken to have commenced, the court must take into account any time for which the offender has been held in custody in relation to the offence to which the sentence relates.”

13. It has been held that the section does not oblige a court to backdate a sentence but it is generally desirable to do so rather than discount or reduce the sentence: see R v Newman, R v Simpson (2004) 145 A Crim R 361 at [26]-[31].

14. The offender’s parole was revoked as a result of this offence thus, as conceded by the Crown, the court has a discretion to backdate the sentence to the time that the offender was taken into custody for this offence.

15. The offender was in the community for only seven days before he committed this offence which suggests he made little attempt to adapt to living in the community or to complying with the terms of his parole. The offence has been found to have been aggravated by being committed when the offender was on parole, so care must be taken not to double count this factor. The offending is of a different nature than the offences for which he was on parole but clearly the bulk of his offending is related to his drug use at the time.

16. In these circumstances I find that the sentence should be back dated to commence on 18 December 2018.

17. Accordingly, I impose a sentence consisting of a non-parole period of 2 years and 5 months commencing on 18 December 2018 and expiring on 17 May 2021 when the offender will be eligible for parole.

18. The total sentence is one of 3 years and 9 months commencing on 18 December 2018 and expiring on 17 September 2022.

19. I should point out that in her written submissions Ms Fernando argued for a further variation in the statutory ratio between the head sentence and the non-parole period.

20. As to this I am of the view that there was no error of law in the said ratio as originally determined and I do not intend to re-visit that aspect of my remarks.

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Decision last updated: 03 September 2020