Burdon v The King
[2023] SASCA 71
•29 June 2023
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
BURDON v THE KING
[2023] SASCA 71
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Bleby and the Honourable Justice David)
29 June 2023
CRIMINAL LAW - APPEAL AND NEW TRIAL
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - JUDGE ACTED ON WRONG PRINCIPLE
CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - POWERS OF COURT ON APPEAL - POWER TO MAKE ORDERS AS TO TIME COUNTED AS PART OF SENTENCE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TIME SPENT IN CUSTODY AND QUASI-CUSTODY
Appeal against sentence.
The applicant was sentenced for almost 50 offences that he committed between 2 May 2019 and 1 December 2020. The first of these offences was robbery, of which the applicant was convicted following a trial. The last was escape custody, to which he pleaded guilty. The balance consisted mostly of offences of drive or use a motor vehicle without consent, being unlawfully on premises, drive under disqualification or suspension, fail to comply with bail agreement, drive or use motor vehicle without authorisation, theft, aggravated/serious criminal trespass in a place of residence and aggravated assault. The applicant pleaded guilty to the majority of offences.
The sentencing judge assigned notional head sentences for each offence and applied the relevant discounts for guilty pleas, where these were applicable. Following certain corrections to the maximum penalties for some of the offences, the total of the notional sentence components was 42 years, five months and 25 days. The judge deducted, from this total, time spent in custody of one year, three months and 29 days, resulting in a notional term of 41 years, one month and 27 days. Then taking into account the overall criminality of the applicant’s actions, the fact that much of the offending constituted largely an ongoing course of conduct and the need for the ultimate sentence to remain appropriate yet not be crushing, the judge imposed a single sentence of 15 years and fixed a non-parole period of 12 years. He backdated the sentence to 2 December 2020, when the appellant was taken into custody for the final time.
The applicant appealed on the ground that the judge erred in deducting the time in custody from the notional sentence of 42 years, five months and 25 days, as opposed to from ultimate sentence of 15 years’ imprisonment. The respondent conceded that the sentencing judge erred in this regard.
Held (by the Court), granting permission to appeal, allowing the appeal and resentencing the applicant:
1.While the judge announced that full credit would be given for the period served in custody, it is not clear what effect that credit had on the single sentence ultimately imposed. To this extent, the sentence is opaque. The judge erred in giving credit for time spent in custody against the notional accumulated total, prior to reducing that notional total to the final, proportionate sentence.
2.Pursuant to s 26(1) of the Sentencing Act 2017 (SA), the Court would impose a single head sentence of 15 years’ imprisonment. The Court deducts from that a period of one year, three months and 29 days for time in custody and 31 days in respect of the 52-day period spent on home detention. This results in a head sentence of 13 years and seven months.
3.The Court fixes a non-parole period of 10 years, 10 months and 12 days. Both the head sentence and the non-parole period are backdated to commence on 2 December 2020.
Bail Act 1985 (SA) s 17(1); Criminal Law Consolidation Act 1935 (SA) ss 20(3)(c), 86A(1), 134(a), 137(a), 144(1), 170(1), 254(1), 254(2a); Motor Vehicles Act 1959 (SA) ss 74(1), 91(5); Road Traffic Act 1961 (SA) s 45(2); Road Traffic (Road Rules—Ancillary and Miscellaneous Provisions) Regulations 2014 (SA) r 67(c); Sentencing Act 2017 (SA) s 44(2), 54(1)(b); Summary Offences Act 1953 (SA) s 17(a), referred to.
Ribbon v The Queen [2022] SASCA 15; R v Deng [2015] SASCFC 176; R v Malesevic [1999] SASC 321; (1999) 204 LSJS 32; R v Place (2002) 81 SASR 395; R v Tsonis (2018) 131 SASR 416; Trotta v The Police [2008] SASC 16, considered.
BURDON v THE KING
[2023] SASCA 71Court of Appeal – Criminal: Livesey P, Bleby and David JJA
THE COURT: On this application for permission to appeal against sentence, the respondent has conceded that the sentencing judge made an error such that the applicant cannot be confident that he received credit for time spent in custody prior to sentencing. That concession was properly made. Application for permission to appeal should be granted, the appeal allowed, and the sentence quashed. It is then necessary to resentence the applicant.
Background
On 3 March 2022, the applicant was sentenced for almost 50 offences that he committed between 2 May 2019 and 1 December 2020. The first of these offences was robbery, of which the applicant was convicted following a trial. The last was escape custody, to which he pleaded guilty. The balance consisted mostly of offences of drive or use a motor vehicle without consent, being unlawfully on premises, drive under disqualification or suspension, fail to comply with bail agreement, drive or use motor vehicle without authorisation, theft, aggravated/serious criminal trespass in a place of residence and aggravated assault.
The applicant pleaded guilty to the majority of offences with which he was charged. The offences are set out below in table form, together with the approach taken to sentencing by the sentencing judge. The judge was faced with a particularly complex and difficult sentencing exercise.
The initial approach of the sentencing judge was as follows. First, he described all of the offending, assigned notional starting points for sentencing and applied the relevant discounts for guilty pleas, where these were applicable. He described the suite of offending in the following terms:
Most of [the] offences to which I have referred are a large number of offences of dishonesty occurring one after another on entirely separate occasions, attended by degrees of obvious planning and premeditation and mostly facilitated by you continuing to drive, illegally obtain and use vehicles whilst unauthorised to do so.
The judge explicitly grouped some of the offending together for the purpose of imposing concurrent sentences for offences within the groups. Otherwise, he accumulated the sentences he imposed, after applying the relevant discounts for guilty pleas. In this manner, he initially reached a notional total of 45 years, one month and 19 days imprisonment. He then said:
Whilst in many ways this accurately reflects the criminality of your offending and the pain, misery and loss you have callously inflicted on a large number of people, a significant degree of concurrency is appropriate in the case of the driving whilst unauthorised offences, as that was an ongoing course of conduct over the period of the commission of these offences. The same can be said of the illegal use of motor vehicle offences. However even allowing for concurrency in both of those instances and some in some other instances where it is appropriate, the resulting sentence would still, in the court’s view, be crushing and leave little scope for rehabilitation.
That is so even allowing you, which I do, a full credit of one year, three months and 29 days for your time spent in custody and indeed the sentence will be backdated to your ultimate arrest on 2 December 2020.
Accordingly, to reflect the overall criminality of your actions, to reflect a degree of concurrency of the notional components as appropriate, having regard to the fact that the overall sentence must remain appropriate yet not be ultimately crushing to you, bearing in mind everything put and tendered, and in this case the primary importance of both the protection of the public and deterrence and, as I repeat, after allowing for your time spent in custody, there will be a single sentence of 15 years imprisonment.
On 6 April, the matter was then called on again. Following a review of the various starting points, the parties had identified certain errors with respect to the maximum penalty for driving whilst unauthorised (which attracted a fine rather than imprisonment) and the available maximum reductions for certain of the guilty pleas. The parties agreed that once those corrections were made, the total of the notional sentence components was 42 years, five months and 25 days. The judge then said:
It is also appropriate to specifically articulate that from that would be deducted the agreed time in custody of one year, three months and 29 days resulting in a notional term of 41 years, one month and 27 days.
This left a total of 41 years, one month and 27 days. The judge applied his previous observations about the crushing nature of the total to the corrected total, while observing that s 254(2a) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’) required that the sentence for escape custody be cumulative on any other term of imprisonment. He then described the corrected sentence in the following terms:
Accordingly, for all offences except the escape custody and those offences for which the maximum penalty is a fine, namely the driving whilst unauthorised offences, there will be a single sentence of 11 years, nine months imprisonment backdated to commence on 2 December 2020. For the escape custody offence, after the discount articulated on the earlier occasion, there will be a term of three years and three months imprisonment which must be served cumulatively. Those total the previously articulated term of 15 years. For each of the drive whilst unauthorised offences there will be a conviction without penalty. The non-parole period remains 12 years backdated to commence on 2 December 2020.
The period of one year, three months and 29 days that the judge deducted from the initial total was referable to a period of one year and three months that the applicant spent in custody between 5 May 2019 and 5 August 2020, and a period of 29 days that he spent in custody between 2 November 2020 and 1 December 2020. Those periods were referable to the offending for which he was sentenced. The important observation for present purposes is that the judge deducted that total time from the notional total of the various sentences, rather than doing so once he had reached the final total of 15 years.
The applicant also spent 89 days on home detention bail. He breached that bail, but the prosecution accepted that he was entitled to a reduction for the time spent on home detention between 5 August 2020 and 26 September 2020, when he first breached bail. That was a period of 52 days. The judge does not appear to have given any credit for that period.
The judge backdated the final sentence to the date when the applicant was taken into custody for the last time, being 2 December 2020.
The following table sets out the offences for which the applicant was to be sentenced, the maximum penalties and a brief description of the offending. The victims are referred to by their initials for convenience.
Count/ Victim Offence Maximum Penalty[1] Brief Facts DCCRM-20-277 dated 8 May 2020 1 / AU Drive or use Motor Vehicle without Consent 2 years for first offence or not less than 3 months and not more than 4 years for subsequent offence[2] On 2 May 2019, the applicant took and used a stolen Ford Laser without consent. 2 Aggravated Drive without Due Care 1 year and licence disqualification of not less than 6 months[3] On 5 May 2019, at 2:30am, the applicant was using the Ford Laser when it collided with a parked grey Ford Fairmont sedan. 3 / MJR Robbery 15 years[4] On 5 May 2019, after exciting the Ford Laser, the applicant then flagged down a passing vehicle driven by MJR. MJR initially agreed to drive the applicant but became concerned that he was involved in some kind of illegality when a witness began recording what was occurring.
MJR stopped and refused to go any further, removing his keys from the ignition and exiting the vehicle. The applicant alighted the vehicle and advanced on him, demanding his keys. When he refused, the applicant attacked him, initially punching him three times to the head and making threats as if to draw a knife on him. The applicant punched him, bringing him to the ground. The applicant continued to threaten him, wrestling him whilst on the ground until he was able to force the keys from his hands, thus enabling the applicant to rob MJR of his car and depart.
4 Unlawfully on Premises 2 years where the unlawful purpose is punishable by a maximum term of 2 years or more[5] On 5 May 2019, at 4am, the applicant was detected knocking on a window at a house in Leah Street, Forestville, in an attempt to secure the vehicle on the property. He then climbed onto the roof of a property to evade the police. 5 Unlawfully on Premises 2 years where the unlawful purpose is punishable by a maximum term of 2 years or more DCRRM-21-866 dated 6 May 2019 1 Drive under Disqualification or Suspension 6 months for first offence or 2 years for subsequent offence[6] The applicant’s conduct on 5 May 2019, also comprised of driving under disqualification as the applicant was, at that time, disqualified from holding or obtaining a driver's licence. DCCRM-21-1609 dated 12 July 2021 1 Fail to Comply with Bail Agreement $10,000 or 2 years[7] On 5 August 2020, shortly after being released on home detention, the applicant commenced breaching that bail.
On 26 September 2020, he was not present as required at his bail address, nor was he present as required on 8 October 2020 when a check was conducted. On that day, a female at the premises advised the Intensive Compliance Officer that he had not been there since 28 September 2020.
2 Fail to Comply with Bail Agreement $10,000 or 2 years 3 Drive or use Motor Vehicle without Authorisation $1,250[8]
During the incident of aggravated serious criminal trespass and theft on M & AF on 6 October 2020 (see below), the applicant was driving unauthorised at the time. 4 Drive or use Motor Vehicle without Authorisation $1,250 On 14 October 2020, police observed the applicant stationary on Hounslow Avenue, Cowandilla and directed him to stop. He failed to do so. He accelerated away from police. 5 Drive or use Motor Vehicle without Authorisation $1,250 On 14 October 2020, when the applicant made off without payment (see below), the applicant was driving unauthorised at the time. 6 Drive or use Motor Vehicle
Without Authorisation$1,250 On 17 October 2020, when the applicant failed to stop and give particulars (see below), he was driving unauthorised at the time. 7 / ZE Theft 10 years[9] On 28 September 2020, the applicant broke into ZE’s home at Wattle Park, where numerous items of jewellery and other property were taken. Three of those items, a Louis Vuitton suitcase, a hard orange suitcase and Louis Vuitton handbag were found in the abandoned Toyota Corolla used by the applicant. Three passports, a bracelet, earrings, a necklace and other items of silver and gold jewellery stolen from ZE were later located at Mawson Lakes during the applicant’s arrest. 8 / JP Theft 10 years Sometime between 5 and 8 October 2020, the applicant broke into JP’s home, taking numerous items of jewellery and other property. Two jewellery boxes, a bank card, a black case with a UK pound pendant, a gold watch, a gold square-faced watch and numerous other items of jewellery were subsequently located either in the Toyota Corolla or in the applicant’s possession at Mawson Lakes. 9 / VB Theft 10 years On 9 October 2020, the applicant broke in VB’s house in Greenhill, from which numerous items were stolen. Two bank cards and a Microsoft tablet and charging cable were subsequently located in the abandoned Toyota Corolla at Royal Park. He was also found in possession of a set of her car keys during his arrest at Mawson Lakes. 10 / PE Theft 10 years Sometime between 11 and 12 October 2020, the applicant broke into PE’s home. Cards in PE’s name and a seed pearl necklace were located in the abandoned Toyota Corolla. Watches belonging to PE were located in the applicant’s possession at Mawson Lakes during his arrest. 11 / CO Theft 10 years On 9 October 2020, CO’s house at Greenhill was broken into and her Apple iPad was stolen. It was later located in the abandoned Toyota Corolla at Royal Park. 12 Drive or use Motor Vehicle without Authorisation $1,250 On 22 October, when the applicant was driving the Toyota HiLux (see below), he was not authorised to do so. 13 Drive or use Motor Vehicle without Authorisation $1,250 When unlawfully on a property at Hillside Road, Springfield on 27 October 2020 (see below), the applicant was driving a vehicle which he was not authorised to drive. 18 / LW Theft 10 years On 22 October 2020, the applicant broke into LW’s house in Fullham Gardens. She identified various items of jewellery, an Apple iPad with keyboard and an Apple Mac Book Pro located in the applicant’s possession at Mawson Lakes on 2 November 2020. 19 / RK Theft 10 years On 28 October 2020, the applicant broke into RK’s home. Her car was taken, together with numerous pieces of jewellery and other items. Police located her car keys, a Ralph Lauren backpack, her Apple iPad, a Mercedes bag and over 100 pieces of property belonging to her in the applicant’s possession when he was arrested at Mawson Lakes. 20 / AA Theft 10 years Also taken from RK’s house on 28 October 2020 was a significant amount of property owned by her daughter AA. The applicant was located with her gold bracelet, Apple iWatch, Apple Mac Book Pro, Apple iPhone, purse, passport and a number of items of her jewellery during his arrest. DCCRM-21-1739 dated 2 July 2021 1 / M & AF Aggravated Serious Criminal Trespass in a Place of Residence Life[10] On 6 October 2020, at 3:15pm, the applicant smashed his way into the house of M & A F. MF was in the shower but hearing noises, she walked into the hallway to find the applicant present. He decamped the house with about $350 worth of property and a passport, together with the keys to the house and the family's vehicle. 2 / M & AF Theft 10 years 3 / HTL Theft 10 years On 13 October 2020, the applicant stole a number plate off a grey Toyota Corolla sedan from HTL and put the numberplate from a rental vehicle onto his vehicle. 4 Make off without Payment 2 years[11] On 14 October 2020, the applicant filled the vehicle up with petrol to the value of $42.37 at the Caltex service station on North East Road, St Agnes. He made off without payment. 5 / AR Serious Criminal Trespass in a place of
Residence15 years[12] On 15 October 2020, AR was alerted by an alarm relayed to her by her security company and she returned home. The applicant stole some $58,266 worth of property from AR, including a significant quantity of jewellery, boxes, a scarf and watch. AR witnessed him drive away from the house at high speed. 6 / AR Theft 10 years 7 Fail to Stop and give Particulars at Crash $2,500[13] On 17 October 2020, the applicant crashed the Toyota Corolla he was driving and left the scene of the accident before police could arrive. He then attempted to pay the owner of that car not to report the matter to police. 8 / JY Theft 10 years On 14 October 2020, the applicant stole further numberplates from a green Toyota Camry parked in its owner's driveway at Emerson Grove, Tranmere. He attached the earlier stolen numberplates to the Camry. These numberplates were eventually located attached to a Toyota Camry abandoned at Royal. 10 / GP Theft 10 years On 22 October 2020, the applicant took GP’s grey Toyota HiLux from his property in rural Concordia. Shortly afterwards, using a bank card he had just stolen from the property, the applicant purchased $76 worth of fuel from the Caltex Bolivar service station. 11 / TH Serious Criminal Trespass in a Place of Residence 15 years On 22 October 2020, the applicant drove the Toyota HiLux to TH’s property and smashed his way into her house. She noticed a fire safe containing personal documents was missing, as were cufflinks and toiletries, together with items of jewellery and six passports. These were ultimately located in the applicant’s possession during his arrest. 12 / TH Theft 10 years 13 / TT Serious Criminal Trespass in a Place of Residence 15 years On 23 October 2020, the applicant drove the Toyota HiLux to TT’s property Wynn Vale, damaging the house as he broke in, and then ransacking the property. He took multiple items from her, including passports, various items of jewellery, a Marc Jacobs watch, an Apple iPhone and iPad, basketball championship rings, a Nike backpack and other property. Only some of that property was ultimately located at the Mawson Lakes address upon his arrest. 14 /TT Theft 10 years 15 / PJ Theft 10 years On 23 October 2020, the applicant stole numberplates from PJ at his Wynn Vale property, before abandoning the Toyota HiLux at the rear of a premises on Willochra Road, Salisbury Plain, with damage both to its windscreen and side mirrors. 17 / RL Aggravated Serious Criminal Trespass in a Place of Residence Life On 26 October 2020, RL was having a nap at about 3:15pm when he heard someone enter his house. He found the applicant holding a spanner in his hand, demanding money from him.
Note: further offending occurred (see below).
19 / FG Theft 10 years On 26 October 2020, the applicant stole a silver Ford Falcon station wagon owned by a FG from an Eastwood work site, using it for the next two days. He had stolen a number of items from that vehicle, including FG’s ID, house keys and a number of tools, which were subsequently located in his possession when arrested. 20 Unlawfully on Premises 2 years where the unlawful purpose is punishable by a maximum term of 2 years or more On 27 October 2020, the applicant entered a property at Hillside Road, Springfield, setting off an alarm. He left the premises, returning to his car. He left a fruit fly leaflet no doubt to try and infer that his conduct, captured on CCTV, was not for an unlawful purpose. The sentencing judge held that he was plainly there to rob from that property but was deterred by the alarm. 21 / RB Theft 10 years Between 23 and 28 October 2020, the applicant stole the numberplate of RB who had parked his Subaru Forester at Waite Campus in Urrbrae. 22 / SASA Theft 10 years Between 23 and 28 October 2020, the applicant stole the numberplates from a Chrysler belonging to the Scouts Association of South Australia parked at Glen Osmond Road, Frewville. 23 / OH Theft 10 years Between 23 and 28 October 2020, the applicant stole the numberplates from OH who had parked his Subaru Forester at Orsmond Terrace, Hindmarsh. DCCRM-21-1785 dated 8 October 2021 1 Drive or use Motor Vehicle without Consent 2 years for first offence or not less than 3 months and not more than 4 years for subsequent offence On 22 October 2020, the applicant took GP’s grey Toyota HiLux from his property in rural Concordia (see above). 2 Drive or use Motor Vehicle without Consent 2 years for first offence or not less than 3 months and not more than 4 years for subsequent offence Between 22 October 2020 and 3 November 2020, the applicant took and illegally used a Subaru Forester vehicle, the property of the Department of Primary Industries and Regions of South Australia. 3 Aggravated Assault 4 years[14] On 26 October 2020, after breaking into RL’s house (see above), the applicant demanded money. RL said there was no money, whereupon the applicant told him there was and that he had better give it to him or he would hit RL. RL continued to deny that there was money. The applicant subsequently assaulted him using the spanner as a weapon. The applicant hit him in the forearms, to the sides of his body and ribs until he fell to the ground.
The applicant then stole $1,500 in cash, an ANZ Bank card, a black leather wallet containing identification materials, car keys and stolen jewellery. Some of the items and $220 were located at Mawson Lakes upon his arrest.
4 Theft 10 years DCCRM-21-107 dated 3 December 2020 1 Escape Custody 7 years[15] Almost exactly four weeks after his arrest, on 1 December 2020, the applicant was in custody at the Adelaide Remand Centre. At about 8:30am, he was conveyed to the kitchen where he worked as a kitchenhand. It was observed that he brought an extra chef's shirt with him. At about 10am, he went to the toilet but did not return. After about 10 minutes, other prisoners seeking to use the toilet got no response when they knocked on the toilet door.
The applicant had stacked two milk crates on top of each other and broken his way through the ceiling. He then forced open metal air vents on the external wall of the Remand Centre to then use the extra chef's shirt as a makeshift rope to lower himself into the street and escape.
[1] Unless otherwise specified, these are terms of imprisonment.
[2] Criminal Law Consolidation Act 1935 (SA), s 86A(1).
[3] Road Traffic Act 1961 (SA), s 45(2).
[4] Criminal Law Consolidation Act 1935 (SA), s 137(a).
[5] Summary Offences Act 1953 (SA), s 17(a).
[6] Motor Vehicles Act 1959 (SA), s 91(5).
[7] Bail Act 1985 (SA), s 17(1).
[8] Motor Vehicles Act 1959 (SA), s 74(1).
[9] Criminal Law Consolidation Act 1935 (SA), s 134(a).
[10] Criminal Law Consolidation Act 1935 (SA), s 170(1)(b).
[11] Criminal Law Consolidation Act 1935 (SA), s 144(1).
[12] Criminal Law Consolidation Act 1935 (SA), s 170(1)(a).
[13] Road Traffic (Road Rules—Ancillary and Miscellaneous Provisions) Regulations 2014 (SA), r 67(c).
[14] Criminal Law Consolidation Act 1935 (SA), s 20(3)(c).
[15] Criminal Law Consolidation Act 1935 (SA), s 254(1).
The next table repeats the list of offences in the same order and sets out the sentence the judge fixed in respect of each, together with the processes of accumulation and deduction that resulted in the total sentence of 41 years, 1 month and 27 days. Where sentences were made concurrent, this is also shown. For convenience of reference, the gradually accumulating total is shown in parentheses as each sentence is added.
Count/ Victim Offence Maximum Penalty[16] Reduction for Plea Starting Point[17] Notional Sentence[18] DCCRM-20-277 dated 8 May 2020 1 / AU Drive or use Motor Vehicle without Consent 2 years for first offence or not less than 3 months and not more than 4 years for subsequent offence 20% 10 months 8 months 2 Aggravated Drive without Due Care 1 year and licence disqualification of not less than 6 months 20% 5 months 4 months
(1 year)
3 / MJR Robbery 15 years N/A N/A 6 years
(7 years)
4 Unlawfully on Premises 2 years where the unlawful purpose is punishable by a maximum term of 2 years or more 20% 5 months 4 months
(7 years and 4 months)
5 Unlawfully on Premises 2 years where the unlawful purpose is punishable by a maximum term of 2 years or more Total 7 years and 4 months DCRRM-21-866 dated 6 May 2019 1 Drive under Disqualification or Suspension 6 months for first offence or 2 years for subsequent offence 30% 5 months 3 months and 16 days
(7 years, 7 months and 16 days)
Total 7 years, 7 months and 16 days DCCRM-21-1609 dated 12 July 2021 1 Fail to Comply with Bail Agreement $10,000 or 2 years 30% 10 months 7 months
(8 years, 2 months and 16 days)
2 Fail to Comply with Bail Agreement $10,000 or 2 years 3 Drive or use Motor Vehicle without Authorisation $1,250
N/A N/A Conviction without penalty 4 Drive or use Motor Vehicle without Authorisation $1,250 N/A N/A Conviction without penalty 5 Drive or use Motor Vehicle without Authorisation $1,250 N/A N/A Conviction without penalty 6 Drive or use Motor Vehicle
Without Authorisation$1,250 N/A N/A Conviction without penalty 7 / ZE Theft 10 years 30% 2 years 1 year, 4 months and 25 days
(9 years, 7 months and 11 days)
8 / JP Theft 10 years 30% 2 years 1 year, 4 months and 25 days
(11 years and 6 days)
9 / VB Theft 10 years 30% 1 year and 6 months 1 year and 19 days
(12 years and 25 days)
10 / PE Theft 10 years 30% 2 years 1 year, 4 months and 25 days
(13 years, 5 months and 20 days)
11 / CO Theft 10 years 30% 1 year and 6 months 1 year and 19 days
(14 years, 6 months and 9 days)
12 Drive or use Motor Vehicle without Authorisation $1,250 N/A N/A Conviction without penalty 13 Drive or use Motor Vehicle without Authorisation $1,250 N/A N/A Conviction without penalty 18 / LW Theft 10 years 30% 1 year and 6 months 1 year and 19 days
(15 years, 6 months and 28 days)
19 / RK Theft 10 years 30% 1 year and 6 months 1 year and 19 days
(16 years, 7 months and 17 days)
20 / AA Theft 10 years 30% 1 year and 6 months 1 year and 19 days
(17 years, 8 months and 6 days)
Total 17 years, 8 months and 6 days DCCRM-21-1739 dated 2 July 2021 1 / M & AF Aggravated Serious Criminal Trespass in a Place of Residence Life 15% 3 years, 6 months 2 years, 11 months and 22 days
(20 years, 7 months and 28 days)
2 / M & AF Theft 10 years 3 / HTL Theft 10 years 15% 5 months 4 months and 8 days
(21 years and 6 days)
4 Make off without Payment 2 years 15% 5 months 4 months and 8 days
(21 years, 4 months and 14 days)
5 / AR Serious Criminal Trespass in a place of
Residence15 years 15% 4 years 3 years, 4 months and
25 days(24 years, 9 months and 9 days)
6 / AR Theft 10 years 7 Fail to Stop and give Particulars at Crash $2,500 N/A N/A Conviction without penalty 8 / JY Theft 10 years 15% 5 months 4 months and 8 days
(25 years, 1 month and 17 days)
10 / GP Theft 10 years 15% 5 months 4 months and 8 days
(25 years, 5 months and 25 days)
11 / TH Serious Criminal Trespass in a Place of Residence 15 years 15% 3 years 2 years, 6 months and 19 days
(28 years and 14 days)
12 / TH Theft 10 years 13 / TT Serious Criminal Trespass in a Place of Residence 15 years 15% 3 years 2 years, 6 months and 19 days
(30 years, 7 months and 3 days)
14 /TT Theft 10 years 15 / PJ Theft 10 years 15% 5 months 4 months and 8 days
(30 years, 11 months and 11 days)
17 / RL Aggravated Serious Criminal Trespass in a Place of Residence Life 15% 3 years and 6 months 2 years, 11 months and 22 days Concurrent with counts 3 and 4 on DCCRM-21-1785. Notional sentence of 4 years for all three offences.
(34 years, 11 months and 11 days)
19 / FG Theft 10 years 15% 1 year and 6 months 1 year, 3 months and 10 days
(36 years, 2 months and 21 days)
20 Unlawfully on Premises 2 years where the unlawful purpose is punishable by a maximum term of 2 years or more 15% 1 year 10 months and 7 days
(37 years and 28 days)
21 / RB Theft 10 years 15% 5 months 4 months and 8 days
(37 years, 5 months and 6 days)
22 / SASA Theft 10 years 15% 5 months 4 months and 8 days
(37 years, 9 months and 14 days)
23 / OH Theft 10 years 15% 5 months 4 months and 8 days
(38 years, 1 month and 22 days)
Total 38 years, 1 month and 22 days DCCRM-21-1785 dated 8 October 2021 1 Drive or use Motor Vehicle without Consent 2 years for first offence or not less than 3 months and not more than 4 years for subsequent offence 40% 1 year 7 months and 7 days
(38 years, 8 months and 29 days)
2 Drive or use Motor Vehicle without Consent 2 years for first offence or not less than 3 months and not more than 4 years for subsequent offence 40% 10 months 6 months
(39 years, 2 months and 29 days)
3 Aggravated Assault 4 years 40% 3 years 1 year, 9 months and 18 days 4 Theft 10 years Concurrent with Count 17 of DCCRM-21-1739. Notional sentence of 4 years for all three offences. Total 39 years, 2 months and 29 days DCCRM-21-107 dated 3 December 2020 1 Escape Custody 7 years 35% 5 years
(Served cumulative with all other offences)
3 years and 3 months
(42 years, 5 months and 29 days)
Total 42 years, 5 months and 29 days Credit for time served in custody 1 year, 3 months and 29 days[19] Resulting total 41 years, 1 month and 27 days Final sentence 15 years[20] Non parole period 12 years[21] [16] Unless otherwise specified, these are terms of imprisonment.
[17] Unless otherwise specified, these are terms of imprisonment.
[18] Unless otherwise specified, these are terms of imprisonment.
[19] The sentencing judge discounted this period from the total sentence, the complaint of which is subject of this appeal. The resulting notional head sentence was 41 years, one month and 27 days.
[20] For all offences except escaping custody and driving whilst unauthorised, a single sentence of 11 years and nine months’ imprisonment was imposed. This in addition to the offence of escaping custody resulted in a final sentence of 15 years’ imprisonment.
[21] Being four-fifths of the head sentence, as mandated by s 54(1)(b) of the Sentencing Act 2017 (SA).
The appeal
The applicant does not take issue with any of the starting points or the final head sentence of 15 years. His complaint is that, notwithstanding that the judge expressly deducted the time served in custody from the accumulated total of 42 years, five months and 29 days, he is left with a sense of grievance that this time served was not taken into account as part of his punishment.
The complaint rested on two observations. First, the judge originally reached a total notional sentence of 45 years, one month and 19 days. When the matter was called on for corrections to be made, that total was reduced to 42 years, five months and 25 days. However, there was no change to the final, 15-year head sentence.
Secondly, the applicant submitted that there was an air of unreality attached to the deduction of one year, three months and 29 days from the notional starting point when the final figure was set at 15 years. The impression remaining was, in the applicant’s submission, that the time actually served had disappeared into the notional sentences, with no impact on the time actually to be served.
In R v Place,[22] the Court of Criminal Appeal held that a sentencing judge had erred by applying the principal of totality to a provisional sentence before taking into account circumstances of mitigation, including a plea of guilty.[23] In resentencing, the Court imposed notional sentences for the separate offences, reduced each on account of the relevant guilty pleas and accumulated the resulting sentences. It then reduced the consequent period for totality, following which it deducted an appropriate period on account of time spent in custody.[24]
[22] (2002) 81 SASR 395.
[23] R v Place (2002) 81 SASR 395 at [90].
[24] R v Place (2002) 81 SASR 395 at [113]-[114].
The applicant submitted that the sentencing judge should have taken a similar approach in this case, as it would have given him certainty that the credit was allowed against his actual sentence. Ordinarily, that certainty will be achieved by backdating the commencement of the sentence to the time when a defendant was taken into custody. The sentence was backdated in this case. However, the period of one year, three months and 29 days that the applicant served before he was taken into custody for the last time was also referable to the offending. His complaint was that while expressly referred to, the effect of this discount was lost in the steps taken before the final reduction. That is illustrated by the fact that the correction to the notional total resulted in no difference to the ultimate sentence.
In Ribbon v The Queen,[25] the applicant complained that the sentencing judge failed to give him full credit for time spent in custody prior to sentence when fixing the non-parole period. The judge had fixed the non-parole period after making the reduction to the head sentence for time spent in custody. The Court held that there was no error, but discouraged that approach:[26]
Whilst we consider there was ultimately no error in the approach taken by the sentencing Judge in reducing the sentence for time served or in the non-parole period fixed, it is not the preferable approach. In adopting this approach, the sentencing Judge did not directly 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 the non-parole period for time served, her Honour would have specifically referred to the precise period of time served and the complaint made by the appellant could not have arisen. That would have ensured transparency in the sentencing process and removed any perception in the appellant’s mind that the time spent in custody was not properly reflected in the fixing of both the head sentence and non-parole period. It is important to reiterate that whilst there is no error in the approach taken by the sentencing Judge, it is not an advisable approach as it can lead to an opacity in the sentencing process and a sense of grievance on behalf of a defendant. It is an approach which this Court discourages.
[25] [2022] SASCA 15.
[26] Ribbon v The Queen [2022] SASCA 15 at [40].
The Court in that case had regard to R v Malesevic,[27] where the Court had held that approach to be permissible, notwithstanding that a lesser credit may thereby be given against the non-parole period for time spent in custody and on home detention bail.[28]
[27] [1999] SASC 321; (1999) 204 LSJS 32.
[28] R v Malesevic [1999] SASC 321 at [37]-[39]; (1999) 204 LSJS 32 at 5-6.
In the present case, the concern is with a want of certainty that the time spent in custody has been applied against the head sentence itself. The Court in Ribbon also referred to the decision of the Court of Criminal Appeal in R v Tsonis.[29] Relevantly, it said:[30]
In R v Tsonis, the Court of Criminal Appeal considered the operation of s 30(2) of the Criminal Law (Sentencing) Act 1988 (SA), the predecessor to s 44(2) of the Sentencing Act which is identical in its terms.[31] The Court said that whilst the section gives a sentencing judge a discretion as to the extent of any credit given for time served in custody, a practice has developed to give a defendant full credit for time served in custody.[32] The Court set out the policy reasons for this practice.[33] The Court referred to this practice as having been described in earlier authorities ‘as the usual practice, the typical practice, and an almost universal practice’.[34] Further, when credit is given for time served in custody, it is generally calculated to the day, although mathematical precision is not necessarily required.[35]
The Court said that where a sentencing judge does decide to give less than full credit there must be good reason to do so.[36] In those circumstances it is incumbent upon the judge to disclose the amount of credit given for time served in custody and the reason or reasons for giving less than full credit.[37]
(Footnotes in original)
[29] (2018) 131 SASR 416.
[30] R v Ribbon [2022] SASCA 15 at [28]-[29].
[31] R v Tsonis (2018) 131 SASR 416.
[32] R v Tsonis (2018) 131 SASR 416 at [69] per Lovell, Doyle and Hinton JJ.
[33] R v Tsonis (2018) 131 SASR 416 at [88] per Lovell, Doyle and Hinton JJ.
[34] R v Tsonis (2018) 131 SASR 416 at [69] per Lovell, Doyle and Hinton JJ citing Trotta v The Police [2008] SASC 16 per David J and R v Deng [2015] SASCFC 176 at [11] per Blue J, at [42] per Nicholson J (with whom Kelly J agreed).
[35] R v Tsonis (2018) 131 SASR 416 at [69] per Lovell, Doyle and Hinton JJ citing R v Malesevic [1999] SASC 321 at [35]-[47]; (1999) 204 LSJS 32 at 5-8 per Doyle CJ (with whom Bleby and Wicks JJ agreed) and R v Deng [2015] SASCFC 176 at [11] per Blue J, at [42] per Nicholson J (with whom Kelly J agreed).
[36] R v Tsonis (2018) 131 SASR 416 at [75] per Lovell, Doyle and Hinton JJ.
[37] R v Tsonis (2018) 131 SASR 416 at [75] per Lovell, Doyle and Hinton JJ.
There remains a discretion under s 44(2) of the Sentencing Act in respect of the deduction to be given for time spent in custody referable to the offending, albeit that there must be good reason to depart from giving full credit. In the present case, while the judge announced that full credit would be given for the period served in custody, it is not clear what effect that credit had on the sentence ultimately imposed. To this extent, the sentence is opaque. The applicant cannot know what effect, if any, the announced reduction had on the time he is to spend in custody.
As senior counsel for the applicant submitted, this difficulty can be simply illustrated. The final head sentence of 15 years was backdated to 2 December 2020, when the applicant was last taken into custody. To serve a 15-year head sentence from that date means that in effect, he is required to serve a total period of 16 years, three months and 29 days, once the earlier periods in custody, referable to the offending, are also taken into account. That was not the head sentence announced by the sentencing judge. Further, the non-parole period of 12 years, necessarily four-fifths of 15 years, operates in effect as a non-parole period of 13 years, three months and 29 days. That is a little in excess of four fifths of the effective head sentence of 16 years, three months and 29 days.
We accept that the judge erred in giving credit for time spent in custody against the notional accumulated total, prior to reducing that total to the final, proportionate sentence. We propose to grant permission to appeal, allow the appeal, quash the sentence and resentence the applicant.
Resentencing
There was no argument against the appropriateness of a head sentence of 15 years. The applicant has a long and dispiriting antecedent history. This includes relevant convictions as a youth and as an adult. He had a highly disrupted childhood. He was exposed to domestic violence and alcoholism. He was made subject to a welfare order at the age of 11 and was required to live in an accommodation house in Darwin. He was sexually abused there and introduced to amphetamine.
The applicant began using cannabis from the age of 13 and methamphetamine from the age of 15. He has a long-term addiction to methamphetamine, which drove both his previous offending and the offending currently under consideration. From the age of 13, he has been in a cycle of offending and incarceration. He has frequently been held in high security conditions, including solitary confinement. He is polite in prison and compliant with prison rules and regimes. He has not been involved in any incidents in custody. The last of the offences under consideration was, however, escape custody. When he was arrested following his escape from the Adelaide Remand Centre, he sustained significant injuries. He was initially placed in the Infirmary at Yatala and then G Division.
The applicant has two children, aged 11 and two. He has the support of the children’s mother, who visits him in custody on a regular basis.
The applicant tendered a letter of apology. He has, however, tendered similar letters of apology in the past, yet continued to offend.
We propose to resentence the applicant to one penalty for all the offences, pursuant to s 26(1) of the Sentencing Act. Having regard to the Court’s obligation under s 26(2a) of that Act, we indicate that we would have imposed each of the notional head sentences that the sentencing judge imposed, as set out above, taking into account the various reductions for the guilty pleas where applicable. We also indicate that we would have ordered that those sentences the judge ordered should be served concurrently or partially concurrently, should be served concurrently or partially concurrently.
Much of this offending constituted an ongoing course of conduct, albeit one that was defined by repeated, separate criminal incursions. There is also a need to avoid a disproportionate sentence with no scope for rehabilitation. We also indicate that it would have been appropriate to then provide for further concurrency and partial concurrency as between the offences, although not in respect of the offence of escape lawful custody, given s 254(2a) of the CLCA.
As we are proceeding under s 26(1) of the Sentencing Act, however, it is not necessary to identify the extent of further concurrency and partial concurrency that we would apply as between the various sentences. Rather, having identified the sentence we would impose in respect of each offence, and having regard to the matters discussed above, we would impose, pursuant to s 26(1), a single head sentence of 15 years’ imprisonment. We reach that head sentence without any deduction for time already served in custody referable to this suite of offending.
We then deduct from that head sentence a period of one year, three months and 29 days. This results in a head sentence of 13 years, eight months and one day. We deduct a further 31 days in respect of the 52-day period spent on home detention between 5 August 2020 and 26 September 2020.
That results in a head sentence of 13 years and seven months. It is necessary to fix a non-parole period of at least four-fifths of the head sentence, as the applicant is a serious repeat offender. We fix a non-parole period of 10 years, 10 months and 12 days. Stepping back and considering this sentence against the whole of the offending and the applicant’s history and personal circumstances, we are satisfied that this is an appropriate sentence.
Both the head sentence and the non-parole period are backdated to commence on 2 December 2020.
The orders of the Court are:
1.The District Court sentence is set aside.
2.The appellant is resentenced to imprisonment for 13 years and seven months.
3.A non-parole period of 10 years, 10 months and 12 days is fixed.
The sentence will operate from 2 December 2020.
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