Refaieh v R [2018] NSWCCA 72

Refaieh v R [2018] NSWCCA 72

The period from 21 October 2014 to 21 October 2015 was not pre-sentence custody "in relation to" the trafficking offence because the applicant remained on bail for that offence and was detained solely by reason of the unrelated murder charge. The sentencing judge understood and considered the discretion under s 47(2) and did not commit House v R error by declining to backdate the sentence for that period. However, the sentencing judge made a one-day arithmetic error in calculating the custody period from 21 October 2015 to 15 July 2016, so the sentence commencement and expiry dates were adjusted by one day.

Jurisdiction
Australia
Judgment Date
18 April 2018
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence in the Court of Criminal Appeal
Outcome
Leave to appeal granted; appeal allowed to the extent of one day; sentence adjusted by one day.
Legal Topics
['sentence Appeal' 'severity' 'commencement Date of Sentence' 'pre Sentence Custody' 'bail' 'backdating Sentence' 'crimes (sentencing Procedure) Act 1999 (nsw) S 47']
['criminal Law' 'sentencing'] ['sentence Appeal' 'severity' 'commencement Date of Sentence' 'pre Sentence Custody' 'bail' 'backdating Sentence' 'crimes (sentencing Procedure) Act 1999 (nsw) S 47']

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Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence in the Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether the sentencing judge erred by failing to find that the period from 21 October 2014 to 21 October 2015, when the applicant was on bail for the trafficking charge but remanded on an unrelated murder charge, was custody held "in relation to" the trafficking offence under s 47(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW).' "Whether the sentencing judge's discretion to fix the commencement date of the sentence under s 47(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) miscarried by not backdating the sentence further to account for that period." 'Whether an arithmetic error in calculating pre-sentence custody required adjustment of the commencement date by one day.']

Ratio Decidendi

The period from 21 October 2014 to 21 October 2015 was not pre-sentence custody "in relation to" the trafficking offence because the applicant remained on bail for that offence and was detained solely by reason of the unrelated murder charge. The sentencing judge understood and considered the discretion under s 47(2) and did not commit House v R error by declining to backdate the sentence for that period. However, the sentencing judge made a one-day arithmetic error in calculating the custody period from 21 October 2015 to 15 July 2016, so the sentence commencement and expiry dates were adjusted by one day.

Court Disposition

Leave to appeal granted; appeal allowed to the extent of one day; sentence adjusted by one day.

Orders

  • ['Leave to appeal is granted.' 'The appeal is allowed to the extent of one day.' 'The sentence imposed by Judge Toner SC on 15 July 2016 is adjusted so that the applicant is sentenced to a term of imprisonment with a non-parole period of four years commencing 19 August 2015 and expiring 18 August 2019 with a balance...