Director of Public Prosecutions (Acting) v Gardner

[2015] TASCCA 4

[2015] TASCCA 4

COURT:       SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

CITATION:              Director of Public Prosecutions (Acting) v Gardner [2015] TASCCA 4

PARTIES:  ACTING DIRECTOR OF PUBLIC PROSECUTIONS
  v
  GARDNER, Rhys Louis

FILE NO:  536/2014
DELIVERED ON:  3 March 2015
DELIVERED AT:  Hobart
HEARING DATE:  3 March 2015
JUDGMENT OF:  Blow CJ, Tennent and Wood JJ

CATCHWORDS:

Criminal Law – Sentencing – Sentencing orders – Commencement – Assaults on correctional officers by remand prisoner – Sentence backdated to take account of time in custody on other charges before assaults committed.

Sentencing Act 1997 (Tas), ss 15(4), 16(1).
Geale v Tasmania (2009) 18 Tas R 338, referred to.
Aust Dig Criminal Law [3341]

REPRESENTATION:

Counsel:
           Appellant:  M S Wilson
           Respondent:  G A Richardson
Solicitors:
           Appellant:  Acting Director of Public Prosecutions
           Respondent:  G A Richardson

Judgment Number:  [2015] TASCCA 4
Number of paragraphs:  11

Serial No 4/2015

File No 536/2014

ACTING DIRECTOR OF PUBLIC PROSECUTIONS
v RHYS LOUIS GARDNER

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

BLOW CJ
TENNENT J
WOOD J
3 March 2015

Order of the Court

Appeal dismissed.

Serial No 4/2015

File No 536/2014

ACTING DIRECTOR OF PUBLIC PROSECUTIONS
v RHYS LOUIS GARDNER

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

BLOW CJ
3 March 2015

1. The respondent, Rhys Gardner, was sentenced to 10 months' imprisonment by Porter J on three charges of assault.  The assaults were all committed on 23 April 2012, but his Honour backdated the respondent's sentence to 2 March 2011, more than a year before the crimes were committed. The appellant contends that his Honour erred in law by backdating the sentence to the extent that he did. It is not suggested that the sentence was inadequate, or that there was error in any other respect.

2. In more detail, the facts relating to the sentencing of the respondent are as follows:

   ·    On 18 February 2011 two men were attacked in a unit at Stainforth Court, near Cornelian Bay in Hobart.  One of them died.  The other suffered grievous bodily harm.

   ·    On 19 February 2011, in connection with that incident, the respondent was arrested on charges of murder and causing grievous bodily harm. He remained in custody until the beginning of his first trial on those charges.

   ·    On 23 April 2012, whilst in prison on remand in relation to those charges, the respondent committed the three assaults to which this appeal relates. The victims were all correctional officers.

   ·    In August and September 2012 he was tried on the 2011 charges.  He was bailed at the beginning of the trial. At the end of the trial he was found guilty on both charges, and went back into custody.

   ·    On 23 November 2012 he was convicted and sentenced to 21 years' imprisonment, with effect from 2 March 2011.  The sentence was not backdated to 19 February 2011, the day of his arrest, because allowance was made for the period when he had been on bail during his trial.

   ·    On 22 May 2014 the respondent pleaded guilty to the three assault charges. The proceedings were adjourned without the facts being stated at that stage.

   ·    On 3 June 2014 an appeal by the respondent against his convictions for murder and causing grievous bodily harm succeeded.  The Court of Criminal Appeal quashed the convictions and ordered a new trial. The respondent remained in custody.

   ·    On 13 June 2014 sentencing submissions in relation to the three assaults were made to the learned sentencing judge. The prosecutor submitted that the respondent's sentence for those assaults should not be backdated to a date earlier than the day they were committed.  The respondent's counsel argued that the sentence should be backdated to 2 March 2011.

   ·    On 26 June 2014 the learned sentencing judge accepted the submissions made by defence counsel, and imposed the sentence of 10 months' imprisonment, backdated to 2 March 2011.

   ·    The respondent was subsequently re-tried, first on the charge of causing grievous bodily harm, and then on the charge of murder.  He was found guilty on both charges. He has not yet been sentenced for those crimes.

3. The power to backdate a sentence of imprisonment is conferred by s 16(1) of the Sentencing Act 1997. That subsection reads as follows:

   "(1)   A court that is sentencing an offender to a term of imprisonment for an offence —  

   (a)must take into account any period of time during which the offender was held in custody in relation to proceedings for, or arising from, that offence; and

   (b)may order that the sentence of imprisonment is to commence on a day earlier than the day on which it is imposed."

4. In Geale v Tasmania (2009) 18 Tas R 338, the Court of Criminal Appeal considered whether that subsection conferred a power to backdate a sentence of imprisonment so as to take into account time spent in custody on charges unrelated to the charge or charges for which the sentence was imposed. The principal judgment was delivered by Evans J, with whom Porter J agreed. Slicer J dissented. The conclusions reached by the majority were summarised by Evans J as follows at [63]:

   "In summary, I conclude that as to an offender's pre-sentence time in custody:

   ·as required by s16(1)(a), a court must take into account time in custody in relation to proceedings for, or arising from, the offence for which the sentence is imposed;

   ·that as to time that is not covered by s16(1)(a), it is generally desirable to take it into account at the first opportunity; and

   ·the court always has a discretion as to whether it will make an allowance for time in custody and, if so, how much of an allowance it will make."

5. Since the three assaults were all assaults on correctional officers, each constituted a "prison offence" for the purposes of the Sentencing Act. When it applies, s 15(3) of that Act requires a sentence for a prison offence to be served cumulatively upon other sentences, rather than concurrently with them.  That subsection reads as follows:

   "(3)   An offender who is sentenced to a term of imprisonment for a prison offence must serve the sentence cumulatively on any uncompleted sentence of imprisonment that the offender is then serving or liable to serve unless the court imposing the sentence directs otherwise because of exceptional circumstances."

6. This subsection did not apply to the respondent's sentence for the three assaults because he was not then serving or liable to serve any other sentence.  At the time that sentence was imposed, he was on remand awaiting re-trial on the charges of murder and causing grievous bodily harm.

7. The situation in which the learned sentencing judge found himself on 26 June 2014 was as follows:

   ·    If he backdated the sentence for the assault charges to 2 March 2011, and the respondent was subsequently acquitted on his other charges, his record would still show that he was sentenced to 10 months' imprisonment for the three assaults.

   ·    If he backdated the sentence to 2 March 2011 and the respondent was subsequently convicted of murder and/or causing grievous bodily harm, the sentencing task in relation to those charges would be simpler than it would otherwise have been. 

   ·    If he backdated the sentence on the assault charges to 23 April 2012, the date of the assaults, and the respondent was subsequently acquitted on the other charges, the respondent's record would show very clearly that he committed three assaults and received a 10-month sentence for them.

   ·    If he backdated the sentence on the assault charges to 23 April 2012, and the respondent was subsequently convicted of murder and/or causing grievous bodily harm, then the sentencing task for the judge dealing with those charges would be made awkward because periods before and after the 10-month sentence would have to be taken into account.

8. In my view it was not unreasonable or inappropriate for the learned sentencing judge to backdate the sentence on the assault charges to 2 March 2011.  Taking that course had the advantage that, in the event of the respondent being convicted of murder and/or causing grievous bodily harm, the sentencing task for the next judge would be simpler than it would otherwise have been. It would enable the next judge to backdate the sentence to the expiration of the 10-month sentence, rather than taking account of periods in custody before and after that sentence.  There were no circumstances that made it inappropriate to take into account the respondent's pre-sentence time in custody on the other charges.  Now that the respondent is to be sentenced on those other charges, no purpose would be served by this Court making an order whose only effect would be to change the date from which the sentence on the assault charges is to be treated as having commenced. 

9. For these reasons, I would dismiss this appeal.

   File No 536/2014

ACTING DIRECTOR OF PUBLIC PROSECUTIONS
v RHYS LOUIS GARDNER

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

TENNENT J
3 March 2015

1. I agree with the reasons of his Honour the Chief Justice.  I would also dismiss the appeal.

   File No 536/2014

ACTING DIRECTOR OF PUBLIC PROSECUTIONS
v RHYS LOUIS GARDNER

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

WOOD J
3 March 2015

1. I agree with the reasons of his Honour the Chief Justice and I would also dismiss the appeal.