Courts Can Only Backdate for Time Spent In Prison for the Sentenced Offence

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By Paul Gregoire and Ugur Nedim

On 3 March 2014, Nathan Rodgers arranged to supply one kilogram of cocaine to two men. Unbeknownst to Mr Rodgers, he was the subject of a covert police operation. One of the buyers was a civilian participant and the other was an undercover police officer.

The three men and two of Mr Rodgers’ co-offenders Fouad El-Hassan and Omar Zahed met at a McDonalds to discuss the drug transaction. Rodgers, El-Hassan, Zahed and the civilian participant then left the fast food restaurant to travel to a Wiley Park residence.

There they met with Ahmed Refaieh at the rear patio of the house. And one of the men lifted a cushion on an outdoor chair exposing a block of white powder. After declining to taste the powder, the civilian participant, along with the other men, drove back to the McDonalds.

In the toilet area of the restaurant, the undercover cop removed the white block from Mr Zahed’s backpack and placed $235,000 in it. The block was subsequently found to contain 1001 grams of cocaine with a purity of 76 percent.

On bail whilst in custody

On 21 October 2015, Mr Refaieh pleaded guilty to one count of supply of a large commercial quantity of a prohibited drug, contrary to section 25(2) of the Drug Misuse and Trafficking Act 1985. The maximum penalty for this offence is life imprisonment and/or a fine of $550,000.

A standard non-parole period (SNPP) of 15 years also applies to this offence. An SNPP is a reference point for the sentencing judge when determining the minimum time a person must spend behind bars before being eligible to apply for release on parole.

Mr Refaieh was arrested in relation to the trafficking charge on 29 April 2014 and after being granted bail, he was released on 1 July that same year. However, he returned to prison on 21 October 2014 after being arrested and charged with murder.

Between his second arrest and his entering of a guilty plea, Refaieh’s trafficking charge was mentioned in the Local Court on eight separate occasions. And each time it was, his bail status was “bail to continue”.

Therefore, over the period 21 October 2014 to 21 October 2015, the offender was officially in custody solely in relation to the charge of murder.

Backdating considerations

During sentencing proceedings in the NSW District Court, questions arose as to whether the time Mr Refaieh spent in custody on remand in relation to his murder charge could be taken into account when backdating the commencement of the sentence.

Section 24(a) of the Crimes (Sentencing Procedure) Act 1999 stipulates that a court must take into account any time an offender has spent in custody in relation to the offence when sentencing them.

Section 47(2) of the Sentencing Procedure Act provides a court with a discretionary power to backdate the commencement of a sentence. And section 47(3) requires that in exercising this discretion, it takes into account time spent in custody in relation to the offence under consideration.

The findings of the sentencing judge

After much deliberation on the matter, the late Judge Robert Turner found that as the initial period spent on bail – 29 April to 1 July 2014 – was in relation to the drug trafficking charge, it should lead to a backdating of the sentence.

And the time between Refaieh entering a plea of guilty and his sentencing – 1 October 2015 to 15 July 2016 – should also be factored into the backdating of his sentence. However, his Honour found that the year spent on remand due to the murder charge should have no bearing on it.

Judge Turner sentenced Mr Refaieh to 6 years behind bars with a non-parole period of 4 years. This sentence reflected a 25 percent discount for the utilitarian value of his guilty plea.

Not in relation to trafficking

On 26 February 2018, Mr Refaieh appealed his sentence for drug trafficking to the NSW Court of Criminal Appeal (NSWCCA). By the time of the appeal, the Director of Public Prosecutions had decided not to proceed with the offender’s murder charge.

Mr Refaieh appealed his sentence on two grounds. The first was that the sentencing judge failed to take into account the extra year spent in custody in relation to the offence as set out in the provisions of section 47(3) of the Sentencing Procedure Act.

NSWCCA Justice Natalie Adams was not satisfied that the year spent in custody prior to Mr Refaieh’s plea of guilty should be taken into account for the drug supply offence, as it was clear he was inside on remand for the murder charge.

It was also understood that as the offender was still officially on bail for the supply charge, if at any time over that year the murder charge had been dropped, he would have been released straightaway. So, her Honour found that this ground of appeal was not made out.

A question of discretion

The second ground was that having found the custody was not in relation to the trafficking offence, the sentencing judge had failed to turn his mind to whether he should exercise his discretion in backdating as set out under section 47(2) of the Sentencing Procedure Act.

Two complaints were made under this ground. The first was that the judge failed to consider whether he should backdate the sentence in relation to the extra year in custody. However, Justice Adams pointed out that Judge Toner had actually put a lot of consideration into this question.

The second complaint was that if the primary judge did put his mind to exercising his discretion, then he made an error in not taking into account the extra year. Justice Adams found this argument fell short, as the offender was merely claiming the judge should have exercised his discretion differently.

An arithmetic error

However, Justice Adams pointed out that the sentencing judge had indeed made an error when sentencing Mr Refaieh. Her Honour stated that when Judge Toner had taken into account the period spent on remand in relation to the trafficking charge, he had correctly calculated 63 days.

But, when considering the period between Refaieh pleading guilty and the date of his sentencing, the primary judge had taken into account 267 days, whereas the correct amount of days to have been considered was 268.

A minor reduction

Justice Adams said that due to the arithmetic error an adjustment had to be made to the initial sentence. And on 18 April 2018, her Honour ordered that the appeal be granted and it be allowed to the extent of one day.

The sentence handed down by Judge Toner was adjusted, so that it began one day earlier and expired a day earlier. And NSWCCA Justices Clifton Hoeben and Peter Johnson agreed with Justice Adams’ orders.

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