Published by Geoff Harrison | 2 June 2024
An issue for judges when determining the start date of a sentence is when an offender has had their parole revoked due to re-offending, with the re-offending being the offence for which the judge is to pass sentence. The revocation of parole is obviously in relation to the offender's previous offence/sentence; hence, a judge, in their discretion, does not have to back-date the new sentence.
This issue was discussed in Edquist-Wheeler v R [2024] NSWCCA 49 by Sweeney J at [42]:
In Callaghan v R [2006] NSWCCA 58, Simpson J, as her Honour then was, said that a discretion exists for a judge to backdate a sentence where parole had been revoked by reason of the offence for which the person was then to be sentenced. Her Honour said, at [23]:
"It would, in my opinion, in some cases be unfair not to backdate to some point (not necessarily the date of revocation of parole) before the expiration of the earlier parole period. It is always open to an offender to seek and be granted parole even after a revocation; to sentence in such a way as to commence the subsequent sentence only on the date of expiration of the whole of the previously imposed head sentence is to assume that, absent t'he subsequent offences, the offender would not have been granted a second chance at parole."
Her Honour said that relevant factors are whether the reoffending occurred within a short time of release on parole and the balance of term to which the offender is exposed. Although the Court in White and Callaghan, and s 47 of the Crimes (Sentencing Procedure) Act, refer only to parole and not an ICO, fairness and justice required that his Honour take a similar approach to the revoked ICO, given that reinstatement of the revoked ICO was available pursuant to s 165 Crimes (Administration of Sentences) Act 1999 (NSW), to avoid the perception of the applicant being doubly punished by his ICO having been revoked because of the fresh offence and his sentence for the subsequent offence being accumulated to the extent that it was on the revoked ICO, having regard to the criminality of both offences. In the circumstances of this matter, his Honour erred in the exercise of his sentencing discretion, and this sub-ground of appeal must be upheld.
Other Sources:
Cases:
Extracted Legislation:
CRIMES (SENTENCING PROCEDURE) ACT 1999 - SECT 47
Commencement of sentence
(1) A sentence of imprisonment commences, subject to section 71 and to any direction under subsection (2), on the day on which the sentence is imposed.
(2) A court may direct that a sentence of imprisonment--
(a) is taken to have commenced on a day occurring before the day on which the sentence is imposed, or
(b) commences on a day occurring after the day on which the sentence is imposed, but only if the sentence is to be served consecutively (or partly concurrently and partly consecutively) with some other sentence of imprisonment.
(3) In deciding whether or not to make a direction under subsection (2) (a) with respect to a sentence of imprisonment, and 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 or, in the case of an aggregate sentence of imprisonment, any of the offences to which the sentence relates.
(4) The day specified in a direction under subsection (2) (b) must not be later than the day following the earliest day on which it appears (on the basis of the information currently available to the court) that the offender--
(a) will become entitled to be released from custody, or
(b) will become eligible to be released on parole,
having regard to any other sentence of imprisonment to which the offender is subject.
(5) A direction under subsection (2) (b) may not be made in relation to a sentence of imprisonment (or an aggregate sentence of imprisonment) imposed on an offender who is serving some other sentence of imprisonment by way of full-time detention if--
(a) a non-parole period has been set for that other sentence, and
(b) the non-parole period for that other sentence has expired, and
(c) the offender is still in custody under that other sentence.
(6) A sentence of imprisonment (or an aggregate sentence of imprisonment) starts at the beginning of the day on which it commences or is taken to have commenced and ends at the end of the day on which it expires.
CRIMES (ADMINISTRATION OF SENTENCES) ACT 1999 - SECT 165
Parole Authority may reinstate revoked intensive correction order
(1) If an offender's intensive correction order has been revoked under this Division or under section 179, the Parole Authority--
(a) on its own initiative or on the application of the offender, and
(b) subject to Part 5 of the Crimes (Sentencing Procedure) Act 1999 ,
may make an order reinstating the offender's intensive correction order in respect of the remaining balance of the offender's sentence.
(2) Such an application--
(a) may not be made until the offender has, since the intensive correction order was revoked, served at least 1 month of the offender's sentence by way of full-time detention, and
(b) must state what the offender has done, or is doing, to ensure that the offender will not fail to comply with the offender's obligations under the intensive correction order in the event that it is reinstated.
(3) Before making an order reinstating an offender's intensive correction order, the Parole Authority may refer the offender to the Commissioner for assessment as to the suitability of the offender for intensive correction in the community.
(4) Part 5 of the Crimes (Sentencing Procedure) Act 1999 applies to and in respect of the Parole Authority and the offender in relation to the making of an intensive correction order under this section in the same way as it applies to and in respect of a court and an offender in relation to the making of an intensive correction order under that Act.
(5) The Parole Authority may not make an order under subsection (1) if the offender is subject to a sentence of imprisonment by way of full-time detention that is yet to commence.
(6) The regulations may make provision for or with respect to--
(a) requiring a report to be made in relation to an assessment referred to in subsection (3), and
(b) the matters to be addressed in the report, and
(c) the preparation and furnishing of the report.
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