NSW Supreme Court Explains Local Court’s 5 Year Limit on Consecutive Prison Sentences

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By Paul Gregoire and Ugur Nedim

On 22 September 2019, Cody Perrin was arrested on charges of assault and intentionally or recklessly damaging or destroying property in relation to a domestic situation where an apprehended domestic violence order (ADVO) was in place for the protection of his partner. On 14 January 2020, he was refused bail and subsequently sentenced to 12 months prison, with a non-parole set at 6 months.

The State Parole Authority then revoked an intensive correction order (ICO) that had been imposed a month prior to his arrest, which meant that Perrin was required to serve 14 months full time custody, commencing on 22 September 2019.

However, Mr Perrin was again arrested whilst in custody on 19 February 2020 on a swag of domestic violence charges relating to incidents between May 2015 and December 2017. When his earlier sentence expired on 21 November 2020, he was remanded in prison on this fresh set of charges.

Mr Perrin pleaded guilty to the new charges at Wollongong Local Court on 19 May 2021, and on 24 June, Magistrate Susan McGowan imposed an aggregate sentence of 5 years, which was backdated to 20 August 2020, with its end date 18 August 2025.

The new sentence raised concerns as the timeframe between when Perrin was first incarcerated, 19 February 2019, and the end of the new sentence amounted to 3 days shy of 5 years and 11 months.

This is significant as the Local Court can’t impose a sentence of more than 5 years in relation to multiple offences, and when it imposes a new sentence to be served consecutively with an existing one, the entire period cannot exceed the 5-year limit.

The District Court appeal

Mr Perrin appealed the severity of his sentence to NSW District Court on 6 August last year. Despite the number and nature of the offences, Judge Andrew Haesler upheld the appeal in part based on the fact that Perrin was entitled to a discount on his sentence due to his guilty pleas.

The decision was also based upon section 58 of the Crimes (Sentencing Procedure) Act 1999 (NSW), which provides that:

“(1) The Local Court may not impose a new sentence of imprisonment to be served consecutively (or partly concurrently and partly consecutively) with an existing sentence of imprisonment if the date on which the new sentence would end is more than 5 years after the date on which the existing sentence (or, if more than one, the first of them) began.”

Exceptions to this rule include where a person is convicted for an offence involving escaping from lawful custody or assaulting a correctional officer or juvenile justice officer.

An existing sentence is defined as “an unexpired sentence”, including “any expired sentence or unbroken sequence of expired sentences with which the unexpired sentence is being served consecutively (or partly concurrently and partly consecutively)”.

On 17 August 2021, Judge Haesler imposed a new sentence of 4 years and 2 months, with a non-parole period of 2 years and 9 months. This meant the total aggregate sentence was 5 years, with the commencement date being 22 September 2019. His Honour set non-parole at 3 years.

A question of law

The NSW Director of Public Prosecutions (DPP) then requested that Judge Haesler submit a question of law to the NSW Court of Criminal Appeal (NSWCCA), as per section 5B of the Criminal Appeal Act (NSW), which allows for a inquiry arising from an appeal to be put even after a case is finalised.

Two questions were asked of the court. The first was:

Does section 58 place a time constraint on the length of a sentence imposed by the Local Court or the District Court on appeal if the offender is not serving a prison sentence at the time of sentencing?

The second questions was:

Does section 58 constrain the length of a sentence imposed by the Local Court or the District Court on appeal, when it is made cumulative or partly cumulative with a sentence that has already been served?

Clarification at law

NSWCCA Justice Robertson Wright set out in his 15 August 2022 findings that in terms of the first question about limiting the length of a new Local Court sentence, the provisions within section 58 only apply when it is being handed down as the earlier sentence is ongoing or has not yet expired.

His Honour clarified that the commencement date of an existing sentence may be earlier than the date the unexpired sentence began, because the existing sentence may also include earlier expired sentences with which the currently unexpired sentence is being served consecutively.

In regard to the second question about an existing sentence, and whether section 58 requires it to be ongoing at the time the new sentence is backdated to or if it applies to the date the sentence is being handed down, Justice Wright found that the sentence must be unexpired at the time a new one is imposed.

On whether the section 58 constraint pertains to a new sentence imposed upon an offender not currently serving a sentence, but it is to be made cumulative or partly so with a sentence that they’ve already served, the answer was no.

This is because it’s specifically set out in the section that the limit applies only to an existing sentence that is yet to have expired.

“It follows that it would make no difference whether the new sentence was made wholly consecutive or partly concurrent or partly consecutive on a sentence that had expired prior to the time of sentencing,” his Honour explained.

Remitted to the lower court

Justice Robertson then turned his attention to whether Mr Perrin’s District Court sentence should be reduced. His Honour found that at the time both the Local Court and the District Court applied the new sentences, Mr Perrin was not serving an existing sentence but was on remand.

Section 58 was therefore not engaged, and there was no 5-year limit dating back to 22 September 2019. 

On that basis, his Honour found that “it should be concluded that the sentence imposed in the District Court was affected by error of law”.

That being so, his Honour remitted the case back to Wollongong District Court, so that the appeal of the original Local Court decision can be heard again later this month.

Presiding Justices Julie Ward and Ian Harrison agreed with their colleague’s orders.

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