Garlett v Ratcliffe
[2019] WASC 335
•12 SEPTEMBER 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: GARLETT -v- RATCLIFFE & ORS [2019] WASC 335
CORAM: HALL J
HEARD: 10 SEPTEMBER 2019
DELIVERED : 10 SEPTEMBER 2019
PUBLISHED : 12 SEPTEMBER 2019
FILE NO/S: SJA 1094 of 2019
BETWEEN: KEVIN JACOB GARLETT
Appellant
AND
PAUL RATCLIFFE
First Respondent
CLAYTON WILLIS
Second Respondent
KENNETH MASSAVELLI
Third Respondent
ALAN BURRESS
Fourth Respondent
BRYCE PARSONS
Fifth Respondent
FILE NO/S: SJA 1093 of 2019
BETWEEN: KEVIN JACOB GARLETT
Appellant
AND
PAUL RATCLIFFE
First Respondent
CLAYTON WILLIS
Second Respondent
KENNETH MASSAVELLI
Third Respondent
ALAN BURRESS
Fourth Respondent
ON APPEAL FROM:
For File No: SJA 1094 of 2019
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE SMITH
File Number : PE 28187 of 2017, JO 10007 of 2016, JO 7724 of 2017, PE 28188 of 2017, PE 32743 of 2018, RO 5756 of 2018
For File No: SJA 1093 of 2019
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE GLUESTEIN
File Number : PE 28187 of 2017, JO 10007 of 2016, JO 7724 of 2017, PE 28188 of 2017, PE 32743 of 2018
Catchwords:
Criminal law – Appeal against sentence – Failure to give credit for all of the time spent in custody – Magistrates not informed of the time spent in custody – Whether there was a miscarriage of justice
Legislation:
Sentencing Act 1995 (WA), s 87
Representation:
SJA 1094 of 2019
Counsel:
| Appellant | : | Mr A Robson |
| First Respondent | : | Ms E C Salsano |
| Second Respondent | : | Ms E C Salsano |
| Third Respondent | : | Ms E C Salsano |
| Fourth Respondent | : | Ms E C Salsano |
| Fifth Respondent | : | Ms E C Salsano |
Solicitors:
| Appellant | : | Legal Aid - Perth |
| First Respondent | : | State Solicitor's Office |
| Second Respondent | : | State Solicitor's Office |
| Third Respondent | : | State Solicitor's Office |
| Fourth Respondent | : | State Solicitor's Office |
| Fifth Respondent | : | State Solicitor's Office |
SJA 1093 of 2019
Counsel:
| Appellant | : | Mr A Robson |
| First Respondent | : | Ms E C Salsano |
| Second Respondent | : | Ms E C Salsano |
| Third Respondent | : | Ms E C Salsano |
| Fourth Respondent | : | Ms E C Salsano |
Solicitors:
| Appellant | : | Legal Aid - Perth |
| First Respondent | : | State Solicitor's Office |
| Second Respondent | : | State Solicitor's Office |
| Third Respondent | : | State Solicitor's Office |
| Fourth Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Dragon v The State of Western Australia [2008] WASCA 252
Law v Woolfe [2019] WASC 193
HALL J:
(These reasons were delivered extemporaneously on 10 September 2019 and have been edited from the transcript.)
These two appeals against sentence are related. They involve the failure to take into account time that the appellant spent in custody on remand. The magistrates were not made aware of the time in custody, so there is no suggestion of error. Rather the appellant says that he has suffered a miscarriage of justice by reason of the failure to give credit. There is no other challenge to the sentences imposed.
The respondent concedes that the appeals should be allowed and the appellant resentenced so as to take into account the 19 days referred to. For the reasons that follow, I accept that the concession is properly made.
The history of the matter can be briefly stated. On 27 June 2018, the appellant was dealt with for five charges to which he had pleaded guilty, being two charges of aggravated common assault, two breaches of protective bail and a breach of bail. He was sentenced to 6 months' imprisonment for each of the assaults and 2 months for each of the breaches of bail. The first two sentences were ordered to be cumulative and the others concurrent. The total effective sentence was one of 12 months' imprisonment, which was then suspended for a period of 12 months.
At the time the appellant was sentenced he was unrepresented and the magistrate was not informed that the appellant had spent a total of 15 days in prison in respect of the charges in two separate periods. The sentence did not therefore take that time into account. It could have been taken into account by reducing the sentences imposed. This only became really significant when the appellant subsequently breached the suspended sentence.
On 16 January 2019, the appellant was sentenced for a number of offences which breached the suspended sentence. For one of the new offences, driving whilst without a valid licence, he was sentenced to 3 months' imprisonment. The suspended sentence was also ordered to be served in full and cumulatively on the sentence of three months. This produced a total effective sentence of 15 months' imprisonment.
At the time the appellant was sentenced on 16 January 2019 he had spent two additional periods of time in custody in relation to the new offences. The magistrate was made aware of one of these periods and backdated the sentence accordingly. However, he was not made aware of a further period of four days that the appellant had spent in custody between 16 and 19 December 2018.
The end result was that the sentence of 15 months' imprisonment imposed on 16 January 2019 did not take into account a total of 19 days that the appellant had spent in custody.
The appellant filed two notices of appeal on 25 July 2019:
(1)SJA 1093 of 2019 which relates to the sentences imposed on 27 June 2018; and
(2)SJA 1094 of 2019 which relates to the sentences imposed on 16 January 2019.
Both appeals were brought out of time and extensions are required. The respondent accepts that, as both appeals have merit and the respondent has suffered no prejudice due to the delay, extensions should be granted. There is also an application to admit additional information, being an email from the Sentence Information Unit, confirming the time in custody, which is also not opposed.
A court has a discretion as to whether to take into account time spent in custody, however, generally full credit should be given. To do otherwise would usually be unfair and unjust. The means by which credit is given is set out in s 87 of the Sentencing Act 1995 (WA). The court can give credit by either reducing the term or backdating the sentence. The manner in which the discretion is exercised will depend on the particular circumstances of the case.[1]
[1] Law v Woolfe [2019] WASC 193 [38].
In the present case, there was a miscarriage of justice at the first sentencing because information relevant to the exercise of the discretion was not known to the magistrate. Had it been known, it is undoubted that the sentences imposed would have been reduced or varied to take into account the time spent in custody.
The problem could have been corrected at the second sentencing, not by backdating the activated suspended sentence, which cannot be done,[2] but by ordering that only part of the sentence be served, having regard to the circumstances which had become known since that sentence was imposed and that would make service of the whole sentence unjust. However, the error remained undetected.
[2] Dragon v The State of Western Australia [2008] WASCA 252 [51].
In fact, a further miscarriage of justice then occurred by reason of the failure to take into account all of the time spent in custody between the sentencing dates.
In all of the circumstances, the important thing to now do is to adjust the total sentence to give full credit for the 19 days previously spent in custody. That can be achieved by reducing the activated term of 12 months by 15 days and backdating the total effective sentence by a further four days.
The orders of the court are, therefore, as follows:
(1)extensions of time on both appeals are granted;
(2)leave to appeal on both appeals is granted;
(3)the application to adduce additional evidence is granted;
(4)both appeals are allowed; and
(5)the sentences imposed on 16 January 2019 are set aside and in lieu thereof, the appellant is sentenced to 3 months for the driving charge and 11 months and 15 days of the activated 12 month sentence, which is cumulative, producing a total effective sentence of 14 months and 15 days, backdated to 8 January 2019 and the appellant is declared to be eligible for parole.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KR
Associate to the Honourable Justice Hall12 SEPTEMBER 2019
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