Johnson (a pseudonym) v The King
[2022] SASCA 126
•1 December 2022
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
JOHNSON (A PSEUDONYM) v THE KING
[2022] SASCA 126
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Lovell and the Honourable Justice Bleby)
1 December 2022
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - INTERPRETATION OF SENTENCING PROVISIONS
Police located 21 cannabis plants and 12.997 kg of dried cannabis at the applicant’s residence. Two rooms had been modified for the purposes of growing hydroponic cannabis and two ‘grow tents’ were located containing cannabis seedlings.
The applicant pleaded guilty to trafficking in a large commercial quantity of cannabis, cultivating a large commercial quantity of cannabis, possessing prescribed equipment and interfering with an electrical supply. He was sentenced to four years, one month and 16 days’ imprisonment with a non-parole period of two years.
The applicant appeals against sentence on the grounds that the sentence imposed was manifestly excessive, that the sentencing Judge erred in declining to find the existence of exceptional circumstances and erred in failing to reduce the applicant’s sentence on account of his time served in custody.
Held, per the Court, granting leave to appeal on all grounds, dismissing the appeal and making an order pursuant to s 20 of the Act that the applicant’s sentence be amended to reflect time served in custody:
1.The sentence was within the range of sentences that may reasonably have been imposed.
2.The sentencing Judge did not err in finding that the applicant's circumstances were not exceptional for the purposes of s 96(6) of the Act.
3.The sentencing Judge’s failure to deduct seven days from the applicant’s head sentence and non-parole period on account of the applicant’s time served in custody is a technical error for the purposes of s 20 of the Act and may be remedied accordingly.
Controlled Substances Act 1984 (SA); Electricity Act 1996 (SA); Sentencing Act 2017 (SA) ss 20, 37 and 96, referred to.
House v The King (1936) 55 CLR 499; Kentwell v The King (2014) 252 CLR 601; Ndreka v The Queen [2021] SASCA 11; Pateras v The Queen [2021] SASCA 107; R v Hunt [2016] SASCFC 137; R v Jones [2022] SASCA 105; R v Kuci [2016] SASCFC 136; R v Perrey; R v Perrey [2022] SASCA 51; R v Singh [2018] SASCFC 89; R v Skinner [2016] SASCFC 106; R v Tsonis [2018] SASCFC 86; R v Yavuz [2018] SASCFC 24; R v Young [2016] SASCFC 102, considered.
JOHNSON (A PSEUDONYM) v THE KING
[2022] SASCA 126Court of Appeal – Criminal: Livesey P, Lovell and Bleby JJA
THE COURT: During a search of the applicant’s residence, police located 21 cannabis plants and approximately 12.997 kg of dried cannabis. The applicant entered pleas of guilty to trafficking in a large commercial quantity of cannabis, cultivating a large commercial quantity of cannabis, possessing prescribed equipment and interfering with an electrical supply.[1] The sentencing Judge imposed a sentence of imprisonment for four years, one month and 16 days and fixed a non-parole period of two years.
[1] Contrary to ss 32(1), 33B(2) and 33LA(a) of the Controlled Substances Act 1984 (SA) and s 84(1)(b) of the Electricity Act 1996 (SA) respectively.
The applicant appeals against sentence on the grounds that the sentence imposed was manifestly excessive, that the sentencing Judge erred in declining to find that exceptional circumstances existed to warrant a suspension of the sentence, and that the sentencing Judge erred in failing to take appropriate account of the applicant’s time served in custody.
We would dismiss the appeal for the reasons that follow.
Background
On 23 April 2020, police attended at the applicant’s residence with the intention of arresting him on matters unrelated to the subject offending. Police also had information relating to the applicant’s latent role in cultivating cannabis.
The search of the residence revealed that two rooms had been modified for the purposes of growing hydroponic cannabis. Police located 12 cannabis plants in the modified grow rooms, each of ‘mature’ growth. In a grow tent in the loungeroom, three cannabis seedlings were located. A further six plants were located in a second grow tent in a shed on the property, still in the early stages of their ‘grow cycle’. These combined 21 plants were the subject of the cultivation charge (Count 2). The prosecution tendered evidence that grown hydroponically and in optimal conditions, a female cannabis plant reaching between one and 15 metres in height will yield between 600 and 900 grams of useable material.
Police located a total of 12.977 kg or 28 pounds of cannabis the subject of the trafficking charge (Count 1). The prosecution tendered evidence that one pound of cannabis was worth between $2,600 to $3,000 at the time of the offending. Ballast boxes, light shades and globes were also located the subject of the possessing prescribed equipment charge (Count 3), as was an electrical installation modified to bypass the retailer’s meter the subject of the interfering with an electrical supply charge (Count 4).
The extent of the applicant’s role in the operation was the subject of dispute before the sentencing Judge. Defence counsel submitted that he had moved into the property on 23 November 2019 to live “rent free” and be paid $300 to $400 per week in return for tending to the already existing crop. On the prosecution case, messages on the applicant’s mobile phone indicated that he had some greater involvement, including a role in selling the cannabis. One of the messages exchanged read: “Come and get cash tomorrow, bring tomorrow at mine, you get $14,400”. The applicant responded: “Bro, I don’t want to risk losing a customer” and later, “I’ll eventually get him paying 25-26”.
The sentencing Judge did not accept defence counsel’s submission regarding the limited role played by the applicant. The applicant did not give evidence to support the submission.
The applicant entered pleas of guilty in relation to all four counts on 2 March 2021, entitling him to a reduction of his sentence of 25 per cent for Counts 1 and 2, and 30 per cent for Counts 3 and 4.
Applicant’s background
Material before the sentencing Judge
At the time of sentence, the applicant was 36 years of age. He was born in New Zealand and immigrated to Australia with his parents and older brother when he was two years of age. He remains a New Zealand citizen. He has maintained steady employment and volunteers at a charity for disadvantaged youth. The applicant has a minor antecedent criminal history.
The applicant’s father was a member of a fundamentalist church, and the applicant grew up under a strict and regimented religious regime. The applicant’s mother was more lenient than his father and smoked cannabis regularly.
After leaving school, the applicant maintained a relatively stable level of employment despite abusing alcohol and having periods of addiction to methylamphetamine. The applicant agreed to engage in the offending because he could not meet the rental payments at that time after he separated from his partner. Although employed, he could not obtain enough work to pay the rent.
Dr Lim, a forensic psychologist, opined that the applicant, at the time of the offending, suffered from a severe alcohol and cannabis disorder, mild benzodiazepine disorder and an adjustment disorder with anxiety and depressed mood. Dr Lim considered that the applicant suffered the effects of growing up under the strict and regimented doctrines of his father’s church. He was emotionally immature with an unstable personal identity. His illicit drug use and gravitation towards a negative peer group, in combination with his poor problem-solving skills, financial stress and substance abuse contributed to his decision to engage in the offending. Since his arrest, the applicant had abstained from alcohol and drugs, connected to his Christian faith, stopped associating with negative peers, and had committed himself to a regular fitness regime. He has strong family and community support. Dr Lim considered that the applicant had positive prospects of rehabilitation and was a low risk of reoffending.
Although the sentencing Judge accepted that the applicant was not solely responsible for the establishment and continued operation of the “significant” and “thriving” commercial enterprise, she was satisfied that his involvement was “more significant” than what he had “admitted through [his] counsel in submissions or when speaking with Dr Lim”.
The sentencing Judge noted:
There can be no doubt that your offending is very serious. Not only were you involved in cultivation of a large quantity of cannabis, you were also involved in trafficking of over 12 kg of the drug that was located at the same premises. This amount of drug is worth a significant amount of money.
…
I am sentencing you on the basis that you were involved in living at the premises, tending the plants at the premises, providing security for the plants and involved in trafficking of a quantity of cannabis by storing and arranging for sales of at least part of the quantity that was located.
Sentence
Pursuant to s 26 of the Sentencing Act 2017 (SA) (“the Act”), the sentencing Judge imposed one penalty in relation to Counts 1 and 2 and one penalty in relation to Counts 3 and 4. The sentencing Judge commenced with notional starting points of imprisonment for five years and six months for Counts 1 and 2 and imprisonment for eight months and 12 days for Counts 3 and 4.
The sentencing Judge applied a reduction on account of the applicant’s guilty pleas, resulting in a term of imprisonment of four years, one month and 16 days for Counts 1 and 2 and imprisonment for five months and 19 days for Counts 3 and 4. The sentence for Counts 3 and 4 was ordered to be served concurrently with the sentence for Counts 1 and 2.
Taking into account the applicant’s previous “minor offences” and his “significant efforts towards … rehabilitation”, the sentencing Judge fixed a non-parole period of two years.
Defence counsel submitted that, in combination, the applicant’s circumstances were “exceptional” for the purposes of s 96(6) of the Act. The sentencing Judge considered the applicant’s circumstances, including the mental health issues which commenced following his arrest, as well as his “positive path of rehabilitation”. She further noted that if the applicant was to serve a period of imprisonment exceeding 12 months, he would be at risk of deportation. Although she did not regard this as “a significant feature” she accepted “it is a feature of [his] personal circumstances that I take into account”.
Having considered the applicant’s circumstances, the sentencing Judge declined to make a finding that exceptional circumstances existed to enliven the discretion to suspend the sentence pursuant to s 96(6) of the Act. The sentencing Judge remarked:
I have considered all the circumstances in relation to your offending and your personal circumstances in determining whether, considered either alone or in combination, they are exceptional.
It is not an uncommon feature in these courts for people who are detected and charged with serious offending to feel remorseful for their offending and to embark on a course of rehabilitation. People do this in a number of ways. One of the ways that they seek to demonstrate their rehabilitation is by joining organisations, be they religious or community-based ones. Many people try to distance themselves from others with whom they were engaged in criminal conduct.
Whilst I do accept that you have made significant changes to your lifestyle and done so deliberately in the hope to rehabilitate your life and to lead a better life in the future, I do not consider that they are exceptional circumstances that warrant the suspension of this term of imprisonment.
The offences that were committed are very serious offences, committed in the hope of gaining financial reward and committed in circumstances very similar to many other offences of their type. The sentence that I have imposed will, therefore, need to be served in custody and commences today.
Grounds of Appeal
The applicant agitates the following grounds of appeal:
·The sentencing Judge erred in her approach to s 96(6) of the Act.
·The sentence is manifestly excessive.
The applicant is granted leave to rely on an additional ground of appeal:
·The sentencing Judge erred by failing to take into account the seven days that the applicant spent in custody between his arrest on 23 April 2020, and being granted police bail on 29 April 2020.
Was the sentence manifestly excessive?
As discussed earlier, the sentencing Judge, using s 26 of the Act and applying concurrency on some counts would have sentenced the applicant to imprisonment for five years and nine months for all of the offending. Allowing for appropriate discounts for the pleas of guilty, the sentence was reduced to imprisonment for four years, one month and 16 days. The applicant submitted that the sentence was manifestly excessive.
The applicant submitted that the level of commerciality, the extent of his addiction and the type of lifestyle that he was living called for a notional head sentence below imprisonment of four years, prior to the application of any statutory discounts for guilty pleas. The applicant submitted that he was, in effect, a first-time dealer whose offending arose out of his addiction. By the time of sentencing, he had ceased using cannabis and had taken significant steps in changing his circumstances and rehabilitation. The applicant submitted that it could not be inferred that he was involved in the cultivation and trafficking in order to live a “better lifestyle”. There was no evidence of unexplained wealth or evidence that he was living a lavish lifestyle.
The respondent submitted that the applicant’s conduct was very serious and included an offence of trafficking in a large commercial quantity of cannabis. The maximum penalty for trafficking in a large commercial quantity of cannabis is life imprisonment and/ or a fine of up to $1,000,000. The sentencing Judge, the respondent submitted, found that the applicant occupied more than a simple caretaking role. While the sentencing Judge was unable to be precise as to the applicant’s exact role, she found that the quantity of drug found was “worth a significant amount of money” and the applicant was “expecting to receive a greater share in relation to the profits” than he was prepared to admit. The respondent submitted that the range of imprisonment of four to seven years for trafficking in cannabis applies to the base offence of trafficking rather than the more serious offence of trafficking in a large commercial quantity of cannabis. The sentencing Judge, the respondent submitted, had clearly taken into account the personal circumstances of the applicant when imposing sentence. The respondent submitted that the sentence imposed was well within the range of permissible sentences.
The principles to be applied on appellate review of a sentencing decision are well settled. The principles enunciated in House v The King are applicable.[2] As the Court observed in Pateras v The Queen:[3]
[2] (1936) 55 CLR 499 at 504-505.
[3] [2021] SASCA 107 at [15]-[17].
A challenge to a sentencing judge’s discretionary decision can only succeed if the judge:
1. made an error of legal principle;
2. made a material error of fact;
3. took into account some irrelevant matter;
4. failed to take into account, or gave insufficient weight to [exceptional] some relevant matter; or
5. arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning.
Members of an appellate court cannot substitute on appeal a judgment which turns on their own exercise of discretion merely because they would themselves have exercised the original discretion, had it attached to them, in a different way. For an appealable error in the exercise of judicial discretion to be established, the appellate court must be satisfied that what was done by the primary judge in the judgment under appeal amounted to a failure to properly exercise the discretion actually entrusted to the sentencing court. To succeed on this ground, absent identifying a process error, the appellant must establish that the sentence imposed was unreasonable or unjust.
Judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies. The exercise of the discretion that the law reposes in a sentencing judge does not yield a single correct sentence. To observe that a sentence is “very heavy” when compared with other sentences is not, without more, to conclude that it exceeded the bounds of the sentencing judge’s discretion.
(citations omitted)
The applicant must establish that the sentencing Judge’s decision was unreasonable or unjust. As Doyle JA (Kelly P and Bleby JA agreeing) observed in Ndreka v The Queen:[4]
The appellate court will only interfere if the sentence is outside the range of sentences that might reasonably have been imposed. Whether this is so requires consideration of the range of matters relevant to the sentencing task, including the maximum penalty for the relevant offending, where the circumstances of the offending sit in the scale of seriousness of crimes of that type, and the personal circumstances of the offender. But ultimately there is a limit to the amount of analysis that may be brought to bear. Often the existence or otherwise of manifest excess will be a conclusion that does not admit of lengthy exposition.
(citations omitted)
[4] [2021] SASCA 11 at [28].
The offending was serious. Having regard to the anticipated yield and street value of the cannabis, the operation was commercial with substantial profit to be made. The applicant was participating in the profits although to an uncertain extent. He was, on the sentencing Judge’s findings, receiving more than free rent and cannabis to support his addiction.
The guidance provided by R v Young[5] supports the respondent’s submissions that the range of imprisonment of four to seven years applies to offenders charged with base trafficking offences that carry a maximum sentence of imprisonment for 10 years.[6] The applicant entered a plea of guilty to trafficking in a large commercial quantity of cannabis which carries a maximum term of life imprisonment. The sentencing Judge had appropriate regard to the applicant’s personal circumstances including his positive prospects of rehabilitation, the character evidence, his reconnection with his church as well as his employment and volunteer work. However, general deterrence, personal deterrence, and the protection of the community are important considerations when sentencing drug offenders.
[5] [2016] SASCFC 102.
[6] [2016] SASCFC 102.
In our view, the sentence was within the range of sentences that may reasonably have been imposed.
We reject this ground of appeal.
Did exceptional circumstances exist?
The applicant submitted that the sentencing Judge erred in not finding that exceptional circumstances existed to enliven the discretion to suspend the term of imprisonment pursuant to s 96 of the Act.
The object of s 96(3) of the Act is to displace the “good reason” test conferred by s 96(1) of the Act. That an offender needs to establish exceptional circumstances under s 96(6) of the Act for the sentence to be suspended makes it plain that the norm in the case of such offenders is that they will serve the sentence. What amounts to exceptional circumstances in any given case is moulded and informed by the mischief the section seeks to remedy.[7]
[7] R v Jones [2022] SASCA 105 at [44].
When considering the question of what could amount to exceptional circumstances, Doyle J (Kelly J agreeing) in R v Skinner (“Skinner”) observed:[8]
While “exceptional circumstances” does connote circumstances outside of the range of circumstances ordinarily or normally encountered, the Court must be careful not to set the test so high that it becomes near impossible to satisfy. As Lord Bingham cautioned, in the passage extracted above, the circumstances need not be unprecedented or very rare.
The exceptional nature of the circumstances may emerge from consideration of a single circumstance or a combination of circumstances. It may emerge from consideration of the circumstances of the offending, the circumstances personal to the offender or some combination of both. It may emerge from qualitative considerations (in the sense of circumstances of a type that do not commonly arise) or quantitative considerations (in the sense of circumstances arising to an uncommon extent or degree).
Beyond these very general observations, it is neither possible nor desirable to be more prescriptive as to what will be required to establish “exceptional circumstances” sufficient to warrant suspension of a sentence of imprisonment under s 38(2ba). It will depend upon the facts of the particular case.
(citations omitted)
[8] R v Skinner [2016] SASCFC 106 at [95]–[97].
While Doyle J’s remarks have been approved in recent cases, it must be remembered that the test remains that exceptional circumstances must be established after taking into account all of the usual sentencing criteria.[9] As was recently observed in R v Jones, the use of labels such as “uncommon” can be particularly misleading.[10] The Court stated:[11]
It is not a matter of a sentencing court sifting through the personal circumstances of an offender to find something that perhaps can be described as uncommon to support a finding of exceptional circumstances. That is not to say that the personal circumstances of an offender can never tip the scales in favour of a finding that exceptional circumstances exist. It depends. But the purpose of the section and the general sentencing considerations including general deterrence, personal deterrence and the protection of the community always loom large. A finding of exceptional circumstances must be based on an assessment of all of the usual sentencing criteria.
[9] R v Yavuz [2018] SASCFC 24; R v Jones [2022] SASCA 105.
[10] [2022] SASCA 105.
[11] [2022] SASCA 105 at [45].
To put that another way, a finding that a factor is uncommon does not mean that the circumstances are exceptional. As the Court observed in R v Yavuz:[12]
An identification of the mischief the provision addresses and the objects of the legislature are therefore a critical first step in determining whether there are special or exceptional reasons not to make the specified order or impose the specified penalty. Unless the discretion is approached in that way, its exercise would degenerate into a search for bizarre or peculiar circumstances which, although undoubtedly exceptional, have no bearing on the legislative purpose.
…
This Court’s observations in R v Kong quoted above and those of Doyle CJ in R v Mangelsdorf, require that paramountcy be afforded to general deterrence in sentencing for drug trafficking. That accords with the legislature’s intention in requiring that exceptional circumstances be established before a sentence of imprisonment imposed in relation to a serious and organised crime offence may be suspended. Affording general deterrence paramountcy militates against the suspension of any sentence for drug trafficking.
(citations omitted)
[12] R v Yavuz [2018] SASCFC 24 at [116]–[118].
Exceptional circumstances are those circumstances which, when present, so markedly change the nature of the particular case that it is no longer within the mischief which the legislature intended to address with the specified order generally to be made. As Doyle J observed in Skinner, it is “not possible nor desirable” to be prescriptive about what may amount to exceptional circumstances.[13] It depends on the facts of the case.
[13] [2016] SASCFC 106 at [91].
The applicant submitted that the sentencing Judge erred in finding that exceptional circumstances were not made out. In particular, the applicant submitted that the sentencing Judge misapplied the statutory test by finding that good prospects of rehabilitation can never meet the statutory test of exceptional circumstances, either when considered alone or by contributing to other factors.
The applicant submitted that the sentencing Judge, having found that he had good prospects of rehabilitation, then stated that “it is not an uncommon feature in these courts for people … to embark on a course of rehabilitation”. The applicant submitted that this demonstrated that the sentencing Judge effectively found that rehabilitation could never amount to ‘exceptional circumstances’. The applicant submitted that this amounted to a process error. To support that submission, the applicant referred to authorities where sentencing courts had found that rehabilitation, in the particular circumstances, was uncommon and amounted to exceptional circumstances.
We reject the applicant’s submissions.
Firstly, the sentencing Judge did not misunderstand the test under s 96(6) of the Act. To the contrary, the sentencing Judge applied the test as set out in the Act, and as explained in R vYavuz[14] and R vJones.[15] Having considered all of the positive factors in favour of the applicant, the sentencing Judge surveyed all the appropriate sentencing considerations and concluded that the applicant had not established exceptional circumstances. The sentencing Judge’s approach was orthodox.
[14] [2018] SASCFC 24.
[15] [2022] SASCA 105.
Secondly, the applicant’s submissions demonstrate the danger in using a label such as uncommon. In the context of rehabilitation, a judge’s experience as to whether a particular circumstance is uncommon can reasonably differ from another judge. Rehabilitation is, of itself, a concept of variable content. A decision as to whether circumstances can be considered exceptional is one which will not have a unique answer. As Doyle J observed in Skinner, everything depends on the facts of the case.[16] The test is not satisfied simply by identifying a particular circumstance as uncommon. It must be remembered that to order that a sentence of imprisonment be suspended, what must be found is that the circumstances are exceptional. That concept is moulded and informed by the mischief the section seeks to remedy.
[16] [2016] SASCFC 106.
The sentencing Judge applied the test set out in s 96(6) of the Act correctly. The sentencing Judge had regard to all of the applicant’s personal circumstances including his rehabilitation but found that, considering all sentencing criteria, the applicant had not established exceptional circumstances. That conclusion was clearly open to the sentencing Judge.
We would dismiss this ground of appeal.
Credit for time served in custody
It was common ground that, when sentencing the applicant, the sentencing Judge did not take into account the applicant’s entitlement to seven days credit for time spent in custody after his initial arrest. Counsel, during the course of sentencing submissions, did not draw the sentencing Judge’s attention to this issue. The respondent conceded that seven days should be deducted from the applicant’s head sentence and non-parole period. The respondent submitted that this Court could utilise s 20 of the Act and correct the sentence. It was not necessary for this Court to set aside the entire sentence and embark on resentencing the applicant.
The applicant submitted that the sentencing Judge had made a process error and therefore this Court should set aside the sentence and resentence the applicant. This would include consideration of whether exceptional circumstances were established enlivening the discretion to suspend. The applicant submitted that this Court, when resentencing, could have regard to the personal circumstance that the applicant had now spent some considerable time in custody.
We reject the applicant’s submissions.
Section 20 of the Act relevantly states:
20—Rectification of sentencing errors
(1) A court that imposes, or purports to impose, a sentence on a defendant, or a court of coordinate jurisdiction, may, on its own initiative or on application by the DPP 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 DPP and the defendant are both parties to proceedings under this section.
The interpretation of the predecessor to s 20 of the Act, s 9A of the Criminal Law (Sentencing) Act 1988 (SA), was considered by Kourakis CJ (Blue and Lovell JJ agreeing) in R v Kuci:[17]
In the course of the appeal a question arose as to whether the Judge’s arithmetic errors vitiated the sentences, thereby allowing this Court to impose the sentence it saw fit without any need to show that the sentencing discretion had otherwise miscarried. In the ordinary course, errors of this kind should be dealt with in the sentencing court pursuant to s 9A of the Criminal Law (Sentencing) Act 1988(SA) (CLSA).
If arithmetical ‘slips’ of the kind made by the Judge resulted in fresh exercises of the sentencing discretion on appeal, there would be undesirable uncertainty in the administration of the criminal law. I would correct the arithmetic errors pursuant to s 9A of the CLSA exercising the jurisdiction of this Court conferred by the Judicial Administration (Auxiliary Appointments and Powers) Act 1988(SA) and by s 9A of the CLSA. Pursuant to these powers I would substitute for the head sentence imposed by the Judge a sentence of three years, seven months and two weeks. I would reduce the non-parole period proportionately to 19 months.
[17] [2016] SASCFC 136 at [6]–[7].
In R v Singh, Blue J observed: [18]
Subsection 9A(1) confers on a sentencing court a power amongst other things to “rectify an error of a technical nature”. The concept of rectification is well known in the general law being a remedy available in equity to correct an instrument (such as a formal contract) to accord with the true intention of the party or parties executing it, such true intention being manifested by the anterior conduct of the relevant party or parties (such as an anterior less formal agreement). The concept of rectification in subsection 9A(1) is similar. The power conferred by that subsection is only available when the true intention of the sentencing judge is ascertained (either by the sentencing judge or when the sentencing judge’s intention can be confidently ascertained by this Court exercising power under the Auxiliary Act) and when the nature of the identified error is technical.
[18] [2018] SASCFC 89 at [8].
This approach was followed in R v Hunt[19] and again recently in R v Perrey; R v Perrey.[20]
[19] [2016] SASCFC 137.
[20] [2022] SASCA 51 at [21]–[25] (per Livesey P and Lovell JA).
The court, when considering the application of s 20 of the Act, should determine whether the error is of a technical nature and also whether the true intention of the sentencing Judge can be ascertained. Here there could be no doubt that the error was of a technical nature.
The applicant submitted however that because the sentencing Judge did not refer to time in custody at all, it was not an “arithmetical error” and the Judge’s true intention cannot be ascertained. We reject the applicant’s submission. We agree that the error perhaps cannot be described as “arithmetical” but that does not mean it is not a technical error. In our view the error here can be described as technical.
Further, in our view, the true intention of the sentencing Judge can be confidently ascertained.
Allowance for time in custody often arises in sentencing matters. The Court in R v Tsonis[21] held that in light of the usual practice of giving full credit for time spent in custody, there must be good reason reflecting sound sentencing principles before it is appropriate to give less than full credit.[22] Further, where in the exercise of the court’s discretion it is decided to give less than full credit, it is incumbent upon the sentencing judge to disclose both the extent of the credit given for the time spent in custody (and hence the extent of the shortfall) and the reason or reasons for giving less than full credit.
[21] [2018] SASCFC 86.
[22] [2018] SASCFC 86 at [75].
The sentencing Judge considered and applied the available sentencing reductions for guilty pleas. The seven days that the applicant spent in custody were not brought to the sentencing Judge’s attention. Although a deduction for having spent time in custody is an exercise of the sentencing discretion, given the well-established practice of allowing full credit for time in custody there is nothing to suggest that the sentencing Judge would not have followed this approach. In our view, the technical error can be remedied using s 20 of the Act rather than through this Court embarking upon a resentence.
However, even if there was any doubt about that, the approach described in Kentwell v The Queen[23] should be applied: on resentence, the same sentence should be imposed with an allowance of seven days.
[23] (2014) 252 CLR 601.
We would allow the appeal on this ground and rectify the sentence pursuant to s 20 of the Act. Both the head sentence and non-parole period are to be reduced by seven days.
Orders
We would rectify the applicant’s sentence pursuant to s 20 of the Act by reducing the head sentence and non-parole period by seven days. We would otherwise dismiss the appeal. The applicant’s sentence is corrected to imprisonment for four years, one month and nine days with a non-parole period of one year, 11 months and 24 days.
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