Criminal law: September 2022

R v Perrin [2022] NSWCCA 170

Local Court – sentencing – s 58 – ‘existing sentence’

In this decision the Court of Criminal Appeal (‘CCA’) has determined that, for the purposes of the 5-year Local Court jurisdictional sentencing limit in s 58 of the Crimes (Sentencing Procedure) Act 1999, the question of whether there is an ‘existing sentence’ is to be addressed as at the day on which sentence is being imposed (as distinct from the day when the new sentence is to commence).

While the offender was in custody serving about 14 months of fulltime custody, he was charged with a number of historical domestic violence offences occurring years earlier. The original sentences expired before he was finally sentenced for the domestic violence offences, but he remained in custody, no longer subject to a current sentence of imprisonment, now merely bail refused on the fresh domestic violence offences. For those domestic violence matters he eventually received a further Local Court sentence of 5 years, with a commencement date which was before the expiry of the original sentences. The result was that, taking into account all the time he was in custody for both the original matters and the domestic violence matters, he would have been sentenced to a total of about 5 years and 11 months. He appealed that outcome to the District Court, which partially allowed his appeal, imposing a total effective sentence of 5 years with a non-parole period of 3 years. However, the District Court judge was then asked by the DPP to submit questions of law to the CCA for determination. The questions submitted asked whether s 58 of the Crimes (Sentencing Procedure) Act constrains the length of a Local Court sentence (or the District Court when it is considering an appeal) if the offender is not serving any sentence at the time of sentencing; and does s 58 limit the length of a sentence if the offender is not currently serving a sentence, but the fresh sentence is being accumulated on another, expired, sentence?