- Hraichie v R  NSWCCA 155
- Ahmad v R  NSWCCA 144
Sentencing – offences whilst in custody – ‘convicted inmate’
When an offender commits an offence whilst already in custody, the law provides that in certain circumstances, the sentence for the fresh offence should be completely accumulated on the original sentence. In this decision, the Court of Criminal Appeal (‘CCA’) has held that if an offender is bail refused but otherwise entitled to parole, the provision requiring the sentences to be consecutive may not technically apply – but that technicality may not save you, because of the policy considerations underlying the section.
The applicant has an unenviable history of criminal conduct, including delivering a letter threatening to kill the Corrective Services Commissioner and doing acts in preparation for a terrorism offence. In August 2019, he was sentenced for a range of serious offences of violence he committed whilst already in custody: wounding with intent to murder and causing grievous bodily harm to another inmate (including carving the phrase ‘E4E’ into the victim’s forehead). On another occasion, also whilst still in custody, he further committed offences of aggravated detain for advantage and assault: this time he had attempted an ‘exorcism’ on another inmate. The sentence for the exorcism offences started the day after the earlier sentence expired. At the time he committed this attempted exorcism, he had completed the non-parole period for the other offence, but had stayed on remand, bail refused (i.e. if he weren’t bail refused, he would have been out on parole).
Section 56(1)(a) and s 56(2)(a) of the Crimes (Sentencing Procedure) Act 1999 provide that when sentencing a defendant who has committed an assault or offence against the person whilst in custody, if they are a ‘convicted inmate of a correctional centre’ and subject to another unexpired sentence, the new sentence must be wholly accumulated on the old sentence. That provision was applied by the District Court judge sentencing him for the exorcism offence. He received significant sentences and the applicant appealed a number of them, on grounds including that the judge sentencing him for the exorcism offence had applied s 56 incorrectly, because he was not technically a ‘convicted inmate’ for the purposes of the section.
The s 56 question was taken up by R A Hulme J (with whom Beech-Jones CJ and N Adams J agreed). The starting point is the definition of ‘convicted inmate’ in the Crimes (Sentencing Procedure) Act, which in turn refers the reader to the Crimes (Administration of Sentences) Act 1999 (at -). Relevantly, s 4(1)(a) of the Crimes (Administration of Sentences) Act defines ‘convicted inmate’ as a person committed to a correctional centre to serve a sentence or the remainder of a sentence by way of full-time detention, other than a person who is on release on parole. At the time of the exorcism offences, the applicant was entitled to parole, but for the fact that he was bail refused for other offences (at ). Accordingly, he was not a ‘convicted inmate of a correctional centre’, and s 56 did not apply (at ).
Nevertheless, for the purposes of sentencing, his Honour considered it important to set out the important policy underlying s 56 and the ‘potential application of that policy even in cases to which the section does not apply’. Quoting from one of the sentencing judgments involving this offender, those policy reasons were said to include the importance of maintaining prison discipline and protecting offenders from each other, a need to maintain public confidence in the administration of justice (by not allowing sentences committed whilst in custody to become wholly concurrent), and thus the deterrence of the commission of prison offences (at ).
The appeal on this and other grounds was allowed. However, as mentioned above, he had also been sentenced for yet more offending (involving planning a terrorist act), so the applicant will first become eligible for parole in 2046, with a balance of term expiring in 2051; given this string of offending one might infer that his chances of being granted parole are not terribly high (at least as things presently stand).
The practical takeaway is that, whilst practitioners should be careful to check when a parole revocation took effect … the key date is actually the date when the revocation order was made, not when it is ‘taken to have commenced’.
Sentencing – offences whilst on parole – parole previously revoked
When an offender is on parole, but parole is revoked and a warrant issued, an offence committed whilst the offender is still at large is not committed whilst on ‘conditional liberty’. In this decision, the CCA has pointed out that if the Parole Authority backdates the revocation, that doesn’t retrospectively change the offender’s status for the purpose of sentencing for the fresh offence.
The applicant was sentenced for stealing a motor vehicle, taking and driving a conveyance without the consent of the owner, and larceny. He was sentenced to two years with a non-parole period of 12 months. The sentencing judge took into account that the applicant was on conditional liberty at the time of the offending; he had been released to parole in January and committed the offences in February. However, in March (after he had been arrested) the Parole Authority revoked his parole and, crucially to this issue, ordered that the revocation should be treated as having been revoked back in January. In other words, they backdated the revocation to a time before the fresh offences occurred.
The applicant appealed on grounds including that the judge inappropriately took into account that he was on parole at the time of the offending, given that the Parole Authority’s order was backdated to January, before the offences were committed.
It isn’t explicitly stated, but the premise of the applicant’s argument on this point seems to rest on the decision in Morrison v Regina  NSWCCA 211 (‘Morrison’). That decision provides (at ) that an offender whose parole has been revoked is not a person who is to be regarded as being in the community under a form of conditional liberty (at the very least, where there is no evidence that the offender knows that parole has been revoked and a warrant issued).
Here, in Ahmad, the argument was that the Parole Authority’s order revoking parole retrospectively altered the applicant’s status, so that instead of being on conditional liberty, he was merely ‘unlawfully at large’ (which is not an explicit aggravating feature under the Crimes (Sentencing Procedure) Act) 1999.
The Court (Mitchelmore JA, with whom Meagher JA and Bellew J agreed) rejected this argument. The order for revocation of parole does not operate to alter, retrospectively, the status of an offender who is in the community on conditional liberty at a time before the revocation order is made. Rather, an order that the revocation take effect from an earlier date operates to extend the term of the offender’s sentence by the amount of time that the offender was unlawfully at large (at ). In Morrison, as far as the offender knew his parole term had expired. The term ‘at large’ in that decision was simply a reference to a person not being in custody, and nothing in that decision or the Crimes (Administration of Sentences) Act s 171(4) served to retrospectively alter this applicant’s status as being on conditional liberty (at ).
For those and other reasons, the appeal was refused.
The practical takeaway is that, whilst practitioners should be careful to check when a parole revocation took effect (because if it was revoked before the fresh offence it may technically mean that the offender is not on conditional liberty) the key date is actually the date when the revocation order was made, not when it is ‘taken to have commenced’.
Thomas Spohr is a solicitor, Legal Aid NSW and a member of the Law Society of NSW Criminal Law and Ethics Committees.