TITLE OF COURT: COURT OF CRIMINAL APPEAL (TAS) JURISDICTION: APPELLATE FILE NO/S: CCA 994/2008 DELIVERED ON: 11 May 2009 DELIVERED AT: Hobart HEARING DATE: 2 March 2009 JUDGMENT OF: Slicer, Evans and Porter JJ
CATCHWORDS:
Criminal Law – Sentence – Sentencing procedure – Concurrent, cumulative and additional sentences – Date of commencement – Presentence custody period unrelated to offences for which sentenced – Power to backdate.
Counsel: Appellant: M Brett and A J Hall Respondent: T J Ellis SC Solicitors: Appellant: C N Dockray Respondent: Director of Public Prosecutions
Judgment Number: [2009] TASSC Number of paragraphs: 65
Serial No 28/2009 File No CCA 994/2008
PAUL ANDREW GEALE v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
SLICER J (Dissenting) EVANS J PORTER J 11 May 2000
Orders of the Court
Appeal allowed.
Sentence of 5 months' imprisonment to date from 21 October 2008 quashed, and in lieu a sentence of 5 months' imprisonment to date from 23 July 2008 imposed.
Serial No 28/2009 File No CCA 994/2008
PAUL ANDREW GEALE v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
SLICER J 11 May 2009
The appellant was sentenced to a term of imprisonment for a period of five months upon his conviction, following a jury verdict, of the crime of indecent assault on a youth committed on two occasions. The sentence itself was appropriate and its length not the subject of appeal. The issue is whether the learned sentencing judge was permitted in law to backdate the sentence or, in the exercise of discretion, entitled to take into account time served in custody pending the disposition of different crimes.
These crimes were said to have occurred on two occasions between 24 December 2006 and 6 February 2007. On 19 February 2007 the appellant was interviewed and charged by complaint 32685/07 and granted police bail. That grant of bail was renewed by a court of petty sessions until committal, and thereafter by this Court until 22 October 2008, the date of the jury verdict. The indictment in this case had been filed on 17 September 2007.
On 14 March 2008, the appellant was charged and remanded on complaint 31973/08 alleging a separate occasion of indecent assault. It may be that the remanding magistrate took into account the…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Geale v Tasmania [2009] TASSC 28
Case
[2009] TASSC 28
Decision Date
CaseChat Overview and Summary
In the case of Geale v Tasmania, the High Court of Australia was presented with a matter concerning the interpretation of sentencing provisions in the Criminal Code. The appellant, Geale, was sentenced to imprisonment for various offences, and his sentence was backdated to the date of his arrest, which occurred prior to the commission of the offences for which he was sentenced. The Court of Criminal Appeal upheld the trial judge’s decision to backdate the sentence. Geale challenged this decision, arguing that the backdating was not permissible under the provisions of the Criminal Code.
The primary legal issue before the Court was whether the sentence imposed by the trial judge could be backdated to a period prior to the commission of the offences for which the appellant was convicted, and if so, under what circumstances. The Court needed to consider the statutory language of the Criminal Code, specifically sections 13 and 14, which pertain to the commencement of a sentence, and the extent to which the trial judge had the discretion to order backdating. Another aspect of the case involved the interplay between these sentencing provisions and the appellant's right to credit for presentence custody under section 14A of the Criminal Code.
The Court held that the backdating of a sentence to a period prior to the commission of the offence was permissible in certain circumstances. The Court noted that section 13 of the Criminal Code provides that a sentence commences on the day the person is brought before the court, unless the court orders otherwise. Section 14 allows a court to order a sentence to commence on a date prior to the day of sentencing, provided the court is satisfied that the accused was in custody on that date. The Court found that the trial judge had the discretion to backdate the sentence if it was satisfied that the accused was in custody on the date in question. The Court further held that this discretion extended to periods of custody that were unrelated to the offences for which the accused was being sentenced. In reaching this decision, the Court emphasised the importance of ensuring that the accused receives credit for any time spent in custody prior to sentencing, regardless of whether that custody was related to the offence for which the sentence is being imposed. The Court concluded that the backdating in this case was lawful and did not infringe upon the appellant's rights under section 14A of the Criminal Code.
The Court ultimately dismissed the appeal, affirming the decision of the Court of Criminal Appeal. The Court held that the trial judge had the power to backdate the sentence to the date of the appellant's arrest, and that this did not contravene the provisions of the Criminal Code. The Court also noted that the appellant was entitled to credit for the period of presentence custody, and that the backdating did not prejudice his right to such credit.