The offender was sentenced following a plea of guilty to 1 count of aiding, abetting, counselling or procuring the commission of an offence, namely the importation of a commercial quantity of a border-controlled precursor, contrary to ss 307.11(1) and 11.2 of the Commonwealth Criminal Code. Offending related to 13,445.4g of pure pseudoephedrine, with the potential to manufacture about 15kg of methamphetamine. Original sentence imposed 7 years and 9 months imprisonment with a non-parole period of 4 years and 6 months. Offender appealed on the ground that the sentencing judge failed to give full credit for time spent in custody prior to sentence when fixing the non-parole period.
Non-Parole Period: In situations where it is not possible to backdate a sentence and a sentencing judge reduces the sentence for time served, it is generally preferrable to fix a head sentence and non-parole period then reduce both for time spent in custody. Offender had not served a continuous period in custody and spent time on home detention bail, so it was not open to the sentencing judge to backdate the sentence. Sentencing judge reduced the head sentence for time served and fixed a non-parole period by reference to the head sentence. There is no error in this approach so long as the time served in custody is not overlooked when fixing the non-parole period. The sentencing judge did make proper allowance for the time serve in custody in fixing the non-parole period. While there was ultimately no error made by the sentencing judge, it is not an advisable approach to take as it can lead to an opacity in the sentencing process and sense of grievance by an offender. The sentencing judge did not refer to the exact period of time served in custody when fixing the non-parole period. Had the sentencing judge adopted the alternative approach of reducing both the head sentence and non-parole period for time served, they would have specifically referred to the precise period of time served, and the complaint made by the offender could not have arisen. That would have ensured transparency in the sentencing process and removed any perception by the offender that the time spent in custody was not properly reflected in the fixing of both the head sentence and non-parole period.
Leave to appeal granted. Appeal dismissed.
Non-Parole Period: In situations where it is not possible to backdate a sentence and a sentencing judge reduces the sentence for time served, it is generally preferrable to fix a head sentence and non-parole period then reduce both for time spent in custody. Offender had not served a continuous period in custody and spent time on home detention bail, so it was not open to the sentencing judge to backdate the sentence. Sentencing judge reduced the head sentence for time served and fixed a non-parole period by reference to the head sentence. There is no error in this approach so long as the time served in custody is not overlooked when fixing the non-parole period. The sentencing judge did make proper allowance for the time serve in custody in fixing the non-parole period. While there was ultimately no error made by the sentencing judge, it is not an advisable approach to take as it can lead to an opacity in the sentencing process and sense of grievance by an offender. The sentencing judge did not refer to the exact period of time served in custody when fixing the non-parole period. Had the sentencing judge adopted the alternative approach of reducing both the head sentence and non-parole period for time served, they would have specifically referred to the precise period of time served, and the complaint made by the offender could not have arisen. That would have ensured transparency in the sentencing process and removed any perception by the offender that the time spent in custody was not properly reflected in the fixing of both the head sentence and non-parole period.
Leave to appeal granted. Appeal dismissed.
