Ditroia v Police

[2014] SASC 27

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

DITROIA v POLICE

[2014] SASC 27

Judgment of The Honourable Justice Gray

4 March 2014

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Appeal against sentence. The appellant was sentenced on 13 December 2013 to seven months' imprisonment in relation to eight counts of theft and one month imprisonment in respect of three counts of breaching bail, to be served concurrently.  Sentence of imprisonment to commence on 14 August 2013, the date on which the defendant was taken into custody.  On 31 January 2014, the defendant informed his solicitor that there was a period from 23 January to 30 January 2013 during which the defendant was in custody that had not been brought to account when determining his sentence.

The appeal was listed for urgent hearing having regard to the defendant’s proposed release date of 14 March 2014.  Counsel for the police consented to the matter being disposed of immediately. 

Held:

(1)  Appeal allowed.

(2)  Defendant’s sentence of seven months’ imprisonment and the concurrent sentence of one month imprisonment to commence on 7 August 2013. 

(3)  Sentence imposed by the Magistrate otherwise confirmed. 

(4)  Defendant entitled to be released from prison on 7 March 2014.

Criminal Law (Sentencing) Act 1988 (SA) s 9A, referred to.
R v Hussey [2013] SASCFC 41; R v Staltari [2007] SASC 337; R v Brooks and Childs (2006) 95 SASR 369; R v Fraser [2007] SASC 257, considered.

DITROIA v POLICE
[2014] SASC 27

Magistrates Appeal: Criminal

GRAY J.

1. This is an appeal against sentence.

2. The defendant and appellant, Joseph Ditroia, pleaded guilty to eight counts of theft and three counts of breaching a term or condition of a bail agreement.  The offences occurred between 20 August 2012 and 13 August 2013.

3. On 13 December 2013, the defendant was sentenced to an immediate term of imprisonment of seven months in relation to the eight counts of theft.  He was sentenced to a further term of imprisonment of one month in respect of the breaches of bail and that sentence was to be served concurrently with the term of imprisonment of seven months.  The Magistrate directed that the sentence of imprisonment commence on 14 August 2013, the date on which the defendant was taken into custody.  As a consequence, the defendant is due for release on 14 March 2014.

4. On 31 January 2014, the defendant informed his solicitor that there was a period during which the defendant was in custody that had not been brought to account when determining his sentence.  The period concerned was one week from 23 January to 30 January 2013.  The solicitor then obtained the court records which appeared to confirm that on 24 January 2013, the defendant appeared ex custody in respect of two of the theft offences.  On that occasion, a home-detention report was ordered and the defendant was remanded in custody.  On 30 January 2013, he again appeared ex custody and it appears that on this occasion he was granted bail. 

5. The solicitor for the defendant made an informal application to the Magistrate to recall the matter in accordance with section 9A of the Criminal Law (Sentencing) Act 1988 (SA) and to amend the sentence. The Magistrate declined to amend the sentence. Section 9A provides:

   (1)A court that imposes, or purports to impose, a sentence on a defendant, or a court of co ordinate jurisdiction, may, on its own initiative or on application by the Director of Public Prosecutions or the defendant, make such orders as the court is satisfied are required to rectify an error of a technical nature made by the sentencing court in imposing, or purporting to impose, the sentence, or to supply a deficiency or remove an ambiguity in the sentencing order.

   (2)The Director of Public Prosecutions and the defendant are both parties to proceedings under this section.

6. It appears that the error that occurred resulted from the defendant failing to instruct his solicitor of the time spent in custody in January 2013. While the matter was raised with the Magistrate by letter, it does not appear that the police had been approached to indicate their attitude. Had the Magistrate been advised that a period in custody had not been brought to account and that the police were consenting to the sentence being amended, it might be expected that the Magistrate would have exercised his powers under section 9A of the Sentencing Act.[1]

   [1]    See R v Hussey [2013] SASCFC 41; R v Staltari [2007] SASC 337; R v Brooks and Childs (2006) 95 SASR 369; R v Fraser [2007] SASC 257.

7. This appeal was listed for urgent hearing having regard to the defendant’s proposed release date.  Counsel for the police consented to the matter being disposed of immediately.  It was common ground that the defendant had spent seven days in custody that needed to be brought into account.  In the circumstances, it is appropriate to allow the appeal and to order that the defendant’s sentence of seven months’ imprisonment for the offences of theft and the concurrent sentence of one month imprisonment for the offences of breach of bail commence on 7 August 2013.  Otherwise the sentence imposed by the Magistrate is confirmed.  Accordingly, the defendant will be entitled to be released from prison on 7 March 2014.