CAW (a child) v Jacob
[2011] WASC 238
•25 AUGUST 2011
CAW (a child) -v- JACOB [2011] WASC 238
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2011] WASC 238 | |
| Case No: | SJA:1075/2011 | 25 AUGUST 2011 | |
| Coram: | HALL J | 25/08/11 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed on grounds 3 and 7 Otherwise dismissed Sentence backdated to give credit for time in custody | ||
| B | |||
| PDF Version |
| Parties: | CAW (a child) CHRISTOPHER STUART JACOB RODERICK MURRAY CANDICE COLITZ SHANE PAUL BROWNLIE |
Catchwords: | Criminal law Appeal against sentence Young offender Whether sentence manifestly excessive Whether sentence offended first limb of totality principle Incorrect penalty Whether lack of procedural fairness High risk of reoffending Backdating |
Legislation: | Children's Court of Western Australia Act 1988 (WA), s 35 Criminal Code (WA), s 426(4) Sentencing Act 1995 (WA), s 87, s 128, s 130 Young Offenders Act 1994 (WA), s 7, s 39, s 46, s 50B |
Case References: | Wilson v The State of Western Australia [2010] WASCA 82 Woods v The Queen (1994) 14 WAR 341 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
CHRISTOPHER STUART JACOB
First Respondent
RODERICK MURRAY
Second Respondent
CANDICE COLITZ
Third Respondent
SHANE PAUL BROWNLIE
Fourth Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE V C EDWARDS
File No : BU 1434 of 2011, BU 1435 of 2011, BU 1568 of 2011, BU 2307 of 2011, BU 2308 of 2011, BU 2056 of 2011, BU 2057 of 2011, BU 2058 of 2011, BU 2059 of 2011, BU 1897 of 2011
(Page 2)
Catchwords:
Criminal law - Appeal against sentence - Young offender - Whether sentence manifestly excessive - Whether sentence offended first limb of totality principle - Incorrect penalty - Whether lack of procedural fairness - High risk of reoffending - Backdating
Legislation:
Children's Court of Western Australia Act 1988 (WA), s 35
Criminal Code (WA), s 426(4)
Sentencing Act 1995 (WA), s 87, s 128, s 130
Young Offenders Act 1994 (WA), s 7, s 39, s 46, s 50B
Result:
Appeal allowed on grounds 3 and 7
Otherwise dismissed
Sentence backdated to give credit for time in custody
Category: B
Representation:
Counsel:
Appellant : Mr D S Hunter
First Respondent : Mr M Seaman
Second Respondent : Mr M Seaman
Third Respondent : Mr M Seaman
Fourth Respondent : Mr M Seaman
Solicitors:
Appellant : Legal Aid (WA)
First Respondent : Director of Public Prosecutions (WA)
Second Respondent : Director of Public Prosecutions (WA)
Third Respondent : Director of Public Prosecutions (WA)
Fourth Respondent : Director of Public Prosecutions (WA)
(Page 3)
Case(s) referred to in judgment(s):
Wilson v The State of Western Australia [2010] WASCA 82
Woods v The Queen (1994) 14 WAR 341
(Page 4)
- HALL J:
(These reasons were delivered orally and have been edited from the transcript).
1 This is an appeal against sentence.
Procedural history
2 On 10 June 2011 the appellant was sentenced in respect of 16 offences in the Magistrates Court in Bunbury. The magistrate stated that the aggregate sentence was 15 months' imprisonment with eligibility for parole. The individual sentences are set out in the following table:
|
|
|
|
|
|
|
(CBU 642/10) |
|
|
|
|
|
(CBU 643/10) |
|
|
|
|
|
(CBU 641/10) |
|
|
|
|
|
(PBU 6119/10) |
|
|
|
|
|
(PBU 6117/10) |
|
|
|
|
|
(PBU 6118/10) |
|
|
|
|
|
(PBU 1434/11) |
|
|
|
|
|
(PBU 1435/11) |
|
|
|
|
(Page 5)
|
(PBU 1568/11) |
|
|
|
|
|
(PBU 2307/11) |
|
|
|
|
|
(PBU 2308/11) |
|
|
|
|
|
(PBU 2058/11) |
|
|
|
|
|
(PBU 2059/11) |
|
|
|
|
|
(PBU 1897/11) |
|
|
|
|
|
(PBU 2056/11) |
|
|
|
|
|
(PBU 2057/11) |
|
|
|
|
|
|
4 The offences comprise two groups: firstly, six offences committed between 14 March 2010 and 30 November 2010. This group was first dealt with on 21 January 2011 when the appellant was placed on two community-based orders. The second group comprises 10 offences committed between 8 October 2010 and 4 April 2011. A number of those offences were committed after the imposition of the community based orders and thus were in breach of those orders.
(Page 6)
5 The appellant had also breached the community-based orders in other respects. In February 2011 he failed to attend a community work order programme as directed. He continued to fail to meet this component of the community-based order thereafter. He attended the Justice Services office on one occasion when he was reprimanded for abusing staff. On 23 May 2011 he attended for urinalysis and tested positive for cannabis.
6 On 10 June 2011 the appellant appeared for sentencing in the Bunbury Magistrates Court. He pleaded guilty to the second group of offences. Convictions for those offences involved breaches of the community-based orders. Accordingly the appellant was liable to be dealt with under s 128 and s 130 of the Sentencing Act 1995 (WA).
7 The appellant's date of birth is 27 July 1992. Accordingly he is now 19 years of age. He was 18 years old when he appeared for sentencing on 10 June 2011. Most of the 16 offences were committed after he turned 18. Three were committed before that date. They are charges 641, 642 and 643. Those charges were part of the first group that was the subject of the community-based orders. Because he was a child when those three offences were committed his identity should not be published: s 35 Children's Court of Western Australia Act 1988 (WA).
8 Although the appellant was to be treated as a child in respect of those offences, a community-based order was open because he was over 18 at the time he was sentenced: s 50B of the Young Offenders Act 1994 (WA). The principles of sentencing applicable to young offenders under s 7 and s 46 of the Young Offenders Act applied to the appellant in respect of those three offences: s 50B(5) of the Young Offenders Act. However, in respect of the remaining 13 offences, the appellant was liable to be sentenced as an adult, though his youth was a relevant consideration, along with other factors.
Facts
9 The facts relating to the offences are as follows. In regard to charges 642, 643 and 641 of 2010, at about 6.55 pm on Sunday, 14 March 2010 the appellant attended a primary school in the company of three juvenile co-offenders with the intention of breaking in and stealing property. A window was forced open by one of the co-offenders and the appellant and his co-offenders then entered the premises. Two laptop computers valued at $4,000 were stolen, and the appellant then left the scene with the co-offenders in possession of the computers. The appellant went to his mother's home address where he took both laptop computers to the rear garden and destroyed them.
(Page 7)
10 In respect of charge number 6119 of 2010, at about 4.00 pm on Thursday, 18 November 2010 the appellant was standing in a car park located at the Back Beach on Ocean Drive in Bunbury. He had gone to the beach in company with a female friend and her small children. On arriving at the beach the friend wanted to leave, believing the surf was too rough for the children to swim in. The appellant jumped into the back seat of the friend's motor vehicle, angry about having to leave the beach. An argument ensued. The appellant punched and kicked the seat of the friend's car while she was sitting in it. Both of them then got out of the car and the appellant positioned himself for a fight. He started to punch the side doors and windows of the car. He punched one of the windows three times with his left fist, such that the window broke, and broken glass was showered over the friend. He then fled from the scene and was subsequently arrested by police. In explanation for the offence he said he wanted to break the window and get to his friend.
11 In regard to charge numbers 6117 of 2010 and 6118 of 2010, at 3.45 pm on Tuesday, 30 November 2010, the appellant was at a sportswear store in Bunbury. He selected three sandboards from the store and left without paying for them. He was then chased by shop staff and police who were driving by. He was later apprehended outside the Arts Centre in Bunbury. The property was recovered. The appellant was placed under arrest and charged with the offences. He was asked on three occasions to provide his name and he refused to do so.
12 In respect of charge number 1434 of 2011, on 8 October 2010 the appellant was stopped whilst walking along a street in Bunbury. He was searched and a TomTom GPS navigation unit was found on him. He was interviewed and was unable to give a reasonable account of how he came into possession of the item. He was then charged with possession of stolen property.
13 In respect of charge 1435 of 2011, on 28 February 2011 the appellant was involved in a verbal altercation with one of the occupants of a house in Withers. This led to the appellant smashing several windows at the front of the house when he punched them with his fists. Police were alerted and a forensic examination of the premises was conducted. Blood was taken from the scene and analysed and the appellant was identified by his DNA profile. He was subsequently arrested, interviewed and admitted to the offence.
14 In respect of charge number 1568 of 2011, on 3 March 2011 the appellant was stopped by police in east Bunbury. He was found to be in
(Page 8)
- possession of a plastic smoking implement which he handed over to police. He admitted ownership of the smoking implement and its use for smoking cannabis. He said he also intended to use it in the future.
15 In respect of charge numbers 2307 and 2308 of 2011, on 5 March 2011 the appellant in company with others entered a house in Withers at about 6.00 pm. The appellant and his co-offenders stole items from the house, including cash, alcohol and jewellery. The appellant was arrested on 15 April 2011 on suspicion and he made some admissions when interviewed by the police.
16 In respect of charge numbers 2058 and 2059 of 2011, on 17 March 2011 at about 12.00 pm, the appellant went to a house in Carey Park with the intention of committing a burglary. The house was unattended and the appellant managed to gain entry by removing a flywire screen and climbing through an unlocked window. Whilst in the house, he searched through drawers and cupboards before stealing $250 in cash. Police conducted a forensic examination of the house and fingerprints were located within the premises that were identified as being those of the appellant. On 30 March 2011, he was interviewed by police and made admissions in respect of the burglary and stealing.
17 In respect of charge number 1897, on 1 March 2011 the appellant was released on bail on charges of stealing and criminal damage. He was due to appear in the Bunbury Magistrates Court on 18 March 2011 but failed to do so. An arrest warrant was issued and on 24 March 2011 the appellant was arrested and conveyed to the Bunbury Court.
18 In respect of charge number 2056 of 2011, on 25 March 2011 the appellant appeared in the Bunbury Magistrates Court on a warrant. In order to obtain bail, he advised the Court that he had a residential address in Dalyellup. The appellant did not in fact live at that address and knew that he did not and had no intention of living there. He was subsequently released on bail with a condition that he reside at the stated address but subsequent inquiries by the police revealed that he had not lived at that address since appearing in court. On 4 April 2011 the appellant was arrested and brought to the Bunbury police station but declined an interview in respect of that matter.
19 Finally, in respect of charge number 2057 of 2011, whilst in the Bunbury police station on 4 April 2011, the appellant was searched and a small clipseal bag containing white crystals was found on him. The
(Page 9)
- contents of the bag were examined and found to be methylamphetamine, with a total weight of 0.35 grams.
Grounds of appeal
20 There are seven grounds of appeal:
1. The total effective sentence of 15 months imprisonment offended the totality principle and was manifestly excessive in regard to the offending conduct viewed as a whole, with insufficient regard given to the personal circumstances of the Appellant.
Particulars
(a) The Appellant's extreme youth.
(b) The Appellant not having a significant criminal record.
(c) The Appellant's dysfunctional and deprived childhood and entrenched history of substance abuse from 8 or 9 years of age.
(d) The 47 days the Appellant spent in custody prior to being sentenced.
(e) The difficulties the Appellant had experienced when a remand prisoner at Bunbury Regional Prison prior to being sentenced.
(f) The Appellant's desire to become drug-free and attend a residential rehabilitation program.
(g) The Appellant's entrenched drug and alcohol addiction being a [root] cause of his offending.
(h) Some of the offences on which the Appellant was imprisoned occurred when the Appellant was a juvenile.
2. The Learned Magistrate erred in imposing sentences of immediate imprisonment. The circumstances in which the offences were committed and the personal circumstances of the Appellant were not such that imprisonment was required.
Particulars
(a) The Appellant's extreme youth.
(b) The Appellant not having a significant criminal record.
- (c) The Appellant's dysfunctional and deprived childhood and entrenched history of substance abuse from 8 or 9 years of age.
(d) The 47 days the Appellant spent in custody prior to being sentenced.
(e) The difficulties the Appellant had experienced when a remand prisoner at Bunbury Regional Prison prior to being sentenced.
(f) The Appellant's desire to become drug-free and attend a residential rehabilitation program.
(g) The Appellant's entrenched drug and alcohol addiction being a [root] cause of his offending.
(h) Some of the offences on which the Appellant was imprisoned occurred when the Appellant was a juvenile.
- 3. The Learned Magistrate erred in imposing a sentence of 1 month imprisonment to be served cumulatively for the offence of stealing 3 Wild West Sandboards to the value of $909.79 on 30 November 2010. Pursuant to section 426(4) of the Criminal Code; on summary conviction for a stealing offence where the property in question does not exceed $1,000, the maximum prescribed penalty is a fine of $6,000 with there being no penalty of imprisonment.
4. The Appellant was not given an opportunity to challenge, respond to, or explain what was detailed in a very negative verbal pre-sentence report presented to the court immediately prior to the Appellant being sentenced.
5. Neither the Appellant nor his legal representative had viewed the written psychological report presented to the court and read by the Sentencing Magistrate prior to the Appellant being sentenced.
6. The Learned Magistrate erred in sentencing the Appellant to sentences of imprisonment to be immediately served due to the Appellant being at a high risk of reoffending if placed on a suspended sentence, and because the author of the verbal pre-sentence report considered the Appellant unsuitable for community supervision.
7. The Learned Magistrate erred in not taking into account the total amount of time the Appellant spent in custody (47 days) before being sentenced. The Learned Magistrate only took into account 15 of the 47 days the Appellant spent in custody when sentencing the Appellant.
(Page 11)
21 On 1 August 2011 I granted leave in respect of grounds 1, 2, 3 and 7. The question of leave on the other grounds was referred to the hearing of the appeal.
Grounds 1 and 2 - Manifest Excess and Totality
22 Turning to grounds 1 and 2, the legal principles relevant to an appeal against sentence are well known and are set out in Wilson v The State of Western Australia [2010] WASCA 82 [2]. Essentially this Court cannot intervene merely because it would have exercised the sentencing discretion differently. It is only entitled to intervene if it is established that the sentencing judge has made a material error of fact or law, whether implied or express, resulting in a sentence that is unreasonable or unjust.
23 In regard to totality, the first limb of the totality principle is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety, and having regard to the circumstances of the case, including those referable to the offender personally: Woods v The Queen (1994) 14 WAR 341. It is on this limb that the appellant relies.
24 Except in respect of one sentence, which is covered by ground 3 and to which I will return shortly, it is not suggested that the individual sentences imposed for these offences were beyond the range customarily given for offences of this nature. The argument is that the total aggregate sentence is disproportionate to the overall criminality involved, particularly having regard to the appellant's personal circumstances.
25 The appellant submits that the following factors required that a lesser sentence be imposed: the appellant's youth; his not previously having been given an intensive supervision order, a suspended imprisonment order or a pre-sentence order; that his record of prior offending was not extensive; and in particular his past history, including homelessness, evidence of psychiatric illness, drug use and a traumatic childhood.
26 As against those factors, it must be said that the offending conduct here included a number of serious offences. There was a persistence in the conduct which displayed a marked disregard for authority and the law. The magistrate had psychological and psychiatric reports available to her. They confirmed that the appellant had attitudinal problems. He did not readily accept personal responsibility and showed little empathy for his victims. The psychiatric report noted a high risk of reoffending.
(Page 12)
27 As to options that would allow conditional release into the community, there was very good reason to conclude that such options were not appropriate here. Performance on the community based orders had been very poor and the appellant was not considered by Juvenile Justice as suitable for participation in further programmes.
28 It is true that a sentence of imprisonment is one of last resort. Such a sentence should not be imposed if some other option is appropriate: s 39 of the Sentencing Act.
29 Furthermore, there is a natural reticence on the part of the courts to imprison young offenders, particularly those who have never been imprisoned before, but there will be cases where that is the only appropriate option. The appellant submits that options such as a pre-sentence order, an intensive supervision order or a suspended imprisonment order were open here. Whether or not they were depends on the view taken of the facts and the appellant's personal circumstances.
30 The magistrate did not specifically canvass those other options but that does not mean that she did not consider them. She took a serious view of the appellant's offending and noted that his risk of reoffending was high. This latter conclusion was based on the psychiatric report. Those conclusions were open to the magistrate and may have justified the imposition of sentences of imprisonment.
31 The appellant submitted that the sentences failed to take the prospects of rehabilitation into account, particularly bearing in mind the appellant's youth. It was said that the appellant had expressed willingness to engage in rehabilitation programmes. Unfortunately, the information in that regard before the magistrate was far from favourable. That information was that he was not suitable at that time because he had failed to demonstrate a willingness to change his behaviour. In fact his conduct on the community-based orders and the psychiatric and psychological reports indicated an entrenched negative attitude to authority and to programmes designed to assist him. I am unable to conclude that the magistrate erred in coming to the conclusion that his attitude was an impediment to rehabilitation.
32 Taking into account the whole of the offending conduct as well as the factors personal to the appellant, the aggregate sentence imposed was not, in my view, disproportionate to the criminality involved. The sentence was one that was properly open to the magistrate. Accordingly grounds 1 and 2 cannot succeed.
(Page 13)
Ground 3 - Incorrect penalty
33 Turning to ground 3, charge 6117 was a charge of stealing property with a value of $909.79. The magistrate imposed a sentence of 1 month's imprisonment on this charge. Section 426(4) of the Criminal Code (WA) provides that the penalty for stealing when dealt with summarily and where the property is worth less than $1,000 is a fine of up to $6,000. No sentence of imprisonment is provided for.
34 Clearly, therefore, the magistrate was in error in imposing a sentence of 1 month's imprisonment on this charge, as the respondent properly concedes. Therefore this ground must be allowed.
35 The sentence of 1 month on this charge will be set aside and in lieu thereof a fine of $300 will be imposed. That fine is lower than might otherwise be thought appropriate. I intend to impose a low fine to take into account the other fines imposed on the appellant and the fact that he is presently in custody and has limited means to pay.
Grounds 4 and 5 - Procedural fairness
36 Turning to grounds 4 and 5, these grounds essentially assert that there was a lack of procedural fairness in the way in which the proceedings were conducted.
37 As regards the psychological report, it is said that this was not read by the lawyer who represented the appellant and who appeared before the magistrate on 10 June 2011. Certainly there is a reference by the lawyer to being aware of that report and to not having read it. The indications from the transcript are that that report was only provided to the court on the morning of 10 June 2011.
38 No application was made by the lawyer who appeared for the appellant in the Magistrates Court for an adjournment in order to read the report, notwithstanding that she was aware of it. Furthermore, it is apparent from the transcript that there was an adjournment for lunch at the end of the sentencing submissions. The transcript then records that the matter resumed after lunch and sentencing then occurred. It is clear from that that there was an opportunity over the lunch break to view the psychological report, had either the appellant or his lawyer wished to do so. If that was not availed of, it cannot possibly constitute a lack of procedural fairness.
39 In any event, it is not apparent that failure by the lawyer to read the report produced any unfairness. The conclusions of the psychological
(Page 14)
- report are similar to those of the psychiatric report, which the appellant's lawyer clearly had read. There was no suggestion that anything in either report was disputed.
40 The psychological report provides greater detail of the appellant's history, and I will return to that in a moment. In regards to conclusions, the psychologist's report states:
Throughout the interview, [CAW] made consistent comments concerning his desire to alter his lifestyle, through his attendance on a substance use rehabilitation program. However, it is noted that [CAW] has adopted what seems to be an entrenched substance use and criminal conduct lifestyle from which I believe it will be very difficult for him to abstain in the near future. His observed attitude and behaviour with prison officers at interview suggest that he continues to hold highly defiant, and at present, intractable beliefs and behaviours that are likely to represent significant obstacles to change.
41 The psychiatric report reaches a similar conclusion. That report states at page 8:
The severity of [CAW's] antisocial personality disorder and his substance use are factors which impact negatively on his risk of future offending. Furthermore his relationship instability and current problems gaining and maintaining employment, as well as his history of early maladjustment and prior failure of supervision impact further. His continuing illicit drug use and his stated intent not to engage with alcohol and drug counselling, his lack of insight and negative attitudes towards remedial programs make it difficult, if not impossible, to engage him in a therapeutic alliance. Should [CAW] be released into the community, he would continue to be exposed to destabilisers such as his circle of acquaintances, continuing illicit substance use and the relative lack of community support.
On the balance of probabilities therefore it appears that [CAW's] risk of further offending is high.
42 The appellant submits that the psychological report contains significant additional details of personal history. In particular it refers to the appellant's homelessness during the period in which the offences were committed, his childhood history, drug abuse and difficulties in the prison environment. However, all of that was before the magistrate and she stated that she had read the report of the psychologist.
43 It was suggested, however, that these aspects of the report could have been emphasised or expanded upon by the lawyer who represented the appellant, had she read it. In that regard, however, it must be borne in mind that the information upon which the psychologist relied was not
(Page 15)
- created by the psychologist. It came from the appellant who could easily have told his lawyer of it directly had he chosen to do so.
44 Turning to the pre-sentence report, there was a verbal pre sentence report given at the proceedings on 10 June 2011. The officer who gave that report stated:
[CAW] displayed little empathy for the victims of the current offences. He did not accept his remand in custody was anything other than perhaps the court's attempt to get at him and it was in fact the court's responsibility for him being imprisoned, rather than his own actions, and he went as far as to say that he, in fact, did not care at all for the victims of his offences (ts 8).
45 There were then some details given as to his performance on the community-based orders, which I have referred to earlier. The officer then stated:
[CAW] stated on a number of occasions that he was quite willing and prepared to assault this other prisoner -
- referring to a prisoner in the Bunbury Prison -
and that he was going to do that by stabbing. ... He also stated a number of times during the discussion that he was quite willing to resort to violence to get what he wanted.
The officer then concluded by saying:
Issues to be addressed: certainly aggression, substance abuse, lack of insight or empathy and failure to comply prior to these current offences. As a result he is not considered suitable for a community based disposition at this stage for a number of reasons but significantly for potential serious risk to the community due to aggressive behaviour and stated aggressive intent (ts 9).
47 It is fair to say that the verbal pre-sentence report was highly unfavourable to the appellant. There was no notice in advance, given the verbal nature of this report, that it would be of that nature; but that report was given in open court. There was an opportunity to object to it and no objection was taken by the lawyer who appeared for the appellant. It was clearly open to the lawyer, or indeed to the appellant, to challenge that report, either at that time or after the luncheon adjournment. That
(Page 16)
- opportunity was in fact given by the magistrate in asking the lawyer whether she had anything to say immediately following the giving of that report. The opportunity was not availed of.
48 It was suggested in submissions that the lawyer did not have the opportunity to take instructions. Even if that be true at the point in time immediately following the verbal report, there would have been ample opportunity to take instructions over the lunch break. There was no suggestion when the proceedings resumed that there was any dispute with the contents of the verbal pre-sentence report.
49 In my view, these grounds have no merit and leave in respect of them must be refused.
Ground 6 - High risk of reoffending?
50 Turning to ground 6, there was a proper basis for the magistrate to conclude that the appellant was at a high risk of reoffending. The psychiatric report provided ample basis for that conclusion. There was also a basis for concluding that the appellant was unsuitable for community supervision.
51 The appellant's counsel suggested in the appeal hearing that the information of a negative nature was offset by the appellant's expressions of willingness to engage with rehabilitation given to the psychologist. I referred earlier to the relevant section of the psychologist's report. However, the reports uniformly painted a negative picture in this regard.
52 Whatever the appellant might say, it would seem that no-one had confidence that he would engage with programs at that stage. For the magistrate to have concluded otherwise in these circumstances would have been not merely naive; it would have been perverse.
53 This ground is without merit and leave in respect of it must be refused.
Ground 7 - Backdating
54 Turning to ground 7, at the conclusion of the sentencing by the magistrate on 10 June 2011, the magistrate backdated the sentence by 15 days. It would appear that that happened because counsel who appeared for the appellant asked the magistrate to take into account 15 days that the appellant had spent in custody. The appellant himself spoke up at that stage and suggested that he had spent a longer period in
(Page 17)
- custody. The magistrate said that she had been told it was 15 days by his counsel and that is what she would take into account.
55 Information has now been provided by the appellant, which is not contested by the respondent, that the appellant had in fact spent a total of 47 days in custody in respect of one or other of these offences. That appears to have been spent in three distinct periods, the last of which was 15 days. It is likely that that 15 days is what counsel before the magistrate was referring to.
56 Clearly a magistrate in these circumstances has a discretion as to whether to take into account time spent in custody and whether to backdate a sentence. That discretion derives from s 87 of the Sentencing Act.
57 In the circumstances here, there is no reason to think that the magistrate would not have exercised her discretion to give full credit for the 47 days had she been informed that that was the total time that the appellant had spent in custody and indeed there is no reason to think that she would not have backdated the sentence accordingly.
58 For these reasons ground 7, in my view, should be allowed and the sentence imposed by the magistrate amended by backdating the commencement date by 47 days; that is, to commence on 24 April 2011.
Conclusion
59 The following orders are made:
1. in respect of grounds 1 and 2, they are dismissed;
2. in respect of grounds 4, 5 and 6, leave to appeal is refused;
3. in respect of ground 3, that ground is allowed and the sentence of 1 month's imprisonment on charge 6117 is set aside and a fine of $300 is substituted; and
4. in respect of ground 7, that ground is allowed and the total effective sentence is backdated to commence on 24 April 2011.
60 The allowing of ground 3 does not change the aggregate sentence as the total of the remaining sentences of imprisonment is still 15 months (as a consequence of the error in adding the sentences referred to at the start of these reasons).
2
4