Knight v Foley
[2017] WASC 110
•18 APRIL 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: KNIGHT -v- FOLEY [2017] WASC 110
CORAM: MARTINO J
HEARD: 18 APRIL 2017
DELIVERED : 18 APRIL 2017
FILE NO/S: SJA 1004 of 2017
BETWEEN: DREW KNIGHT
Appellant
AND
MARC PETER FOLEY
DAVID JAMES McCALLUM
ROSS JAMES WILLIAMS
ROBERT LESLIE BUTTERFIELD
ANDREW THOROGOOD
Respondents
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE L J ATKINS
File No :PE 41111 of 2016, PE 41112 of 2016, PE 41115 of 2016, RO 3733 of 2016, RO 4306 of 2016, RO 4307 of 2016, RO 4308 of 2016, RO 4309 of 2016, RO 6883 of 2016, RO 6884 of 2016, RO 6885 of 2016, RO 7152 of 2016, RO 7154 of 2016, RO 8176 of 2016
Catchwords:
Criminal law - Appeal against sentence - Credit for time spent in custody
Legislation:
Sentencing Act 1995 (WA), s 87
Result:
Leave to appeal granted
Appeal allowed
The date of the sentence is deemed to have commenced being served changed from 12 August 2016 to 22 July 2016
Category: B
Representation:
Counsel:
Appellant: In person
Respondents : Mr B M Murray
Solicitors:
Appellant: In person
Respondents : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Abdullah v Sleiman [2011] WASC 262
Azizi v Clarson [2002] WASCA 123
Dragon v The State of Western Australia [2008] WASCA 252
MARTINO J: On 28 December 2016 the appellant, Mr Knight, was sentenced for 19 offences. For 14 of those offences he was sentenced to terms of imprisonment. The effective sentence was 17 months' imprisonment which was deemed to have commenced being served on 12 August 2016. Fines were imposed for the other offences.
Mr Knight seeks leave to appeal against the sentences of imprisonment. His only ground of appeal is that the sentence should have been backdated to an earlier date.
Mr Knight contends that he was remanded in custody on the charges on which he was sentenced from 25 May 2016 to 31 May 2016, from 21 June 2016 to 4 July 2016, from 23 July 2016 to 29 August 2016 and from 22 September 2016 to 28 December 2016.
On 4 July 2016 Mr Knight appeared in the Magistrates Court at Rockingham on six charges. He pleaded guilty to four charges of breaching a restraining order – RO 4306, 4307, 4308 and 4309 of 2016. He pleaded not guilty to two other charges – RO 3733 of 2016 was a charge of assault occasioning bodily harm and charge RO 3735 of 2016 was a charge of criminal damage.
For each of the offences of breaching a restraining order Mr Knight was sentenced to 7 months' imprisonment to be served concurrently. Those terms of imprisonment were ordered to be suspended for 12 months.
At the hearing on 4 July 2016 Mr Knight was represented by counsel who informed the learned Magistrate that Mr Knight had been in custody from 20 June 2016 to the date of the sentencing hearing, a period of exactly two weeks and submitted that the time spent in custody or fines would be sufficient punishment for the offences. In an exchange with counsel her Honour made clear that she regarded the sentences for the offences as needing to provide personal deterrence. Her Honour then said:
Of course I note that there are two weeks in custody…And I will take that into account in deciding on penalty (ts 6).
After hearing submissions her Honour sentenced Mr Knight. She explained in her sentencing remarks why she decided that terms of imprisonment were the only appropriate sentence and that having regard to matters personal to Mr Knight she would suspend the terms of imprisonment. In her sentencing remarks her Honour did not say that in arriving at the length of the terms of imprisonment she had regard to the time spent in custody.
At the sentencing hearing on 28 December 2016 Mr Knight was represented by the same counsel who appeared for him on 4 July 2016. Her Honour was sentencing Mr Knight for offences which breached the suspended terms of imprisonment that she had imposed on 4 July 2016. Mr Knight's counsel conceded that a term of imprisonment to be served was inevitable. He invited her Honour to backdate the sentence of imprisonment, other than for the breach of the suspended terms, to 12 August 2016. He informed her Honour that he had contacted the Sentence Information Unit of the Department of Corrective Services and he had been informed that Mr Knight was in custody between 23 July 2016 to 28 August 2016 and then from 20 September 2016 to the date of the sentencing hearing on 28 December 2016. The reference to 28 August 2016 appears to be an error. The correct date was 29 August 2016. In any event counsel informed her Honour that he had been informed by the sentencing information unit that the sentence could be backdated to 12 August 2016.
Her Honour imposed the following sentences:
| Charge Number | Offence | Sentence | Cumulative or concurrent |
| PE 41111/2016 | Breach of a restraining order | 4 months' imprisonment | Head sentence |
| PE 41112/2016 | Breach of a restraining order | 4 months' imprisonment | Concurrent |
| PE 4113/2016 | Stealing | Global fine with PE 4114/2016, RO 3735/20116 and RO 7153/2016 of $3,000 and a compensation order of $2,300 | |
| PE 4114/2016 | Stealing | Global fine with PE 4113/2016, RO 3735/20116 and RO 7153/2016 of $3,000 and a compensation order of $400 | |
| PE 41115/2016 | Trespass | 2 months' imprisonment | Concurrent |
| RO 3733/16 | Assault occasioning bodily harm | 3 months' imprisonment | Concurrent |
| RO 3735/2016 | Criminal damage | Global fine with PE 4113/2016, PE 4114/2016 and RO 7153/2016 of $3,000 and a compensation order of $500 | |
| RO 4306/2016 | Breach of a restraining order | 7 months' imprisonment which had been suspended ordered to be served | Cumulative |
| RO 4307/2016 | Breach of a restraining order | 7 months' imprisonment which had been suspended ordered to be served | Concurrent |
| RO 4308/2016 | Breach of a restraining order | 7 months' imprisonment which had been suspended ordered to be served | Concurrent |
| RO 4309/2016 | Breach of a restraining order | 7 months' imprisonment which had been suspended ordered to be served | Concurrent |
| RO 6883/2016 | Breach of a restraining order | 5 months' imprisonment | Concurrent |
| RO 6884/2016 | Breach of a protective bail condition | 5 months' imprisonment | Concurrent |
| RO 6885/2016 | Breach of a restraining order | 5 months' imprisonment | Concurrent |
| RO 7152/2016 | Stealing a motor vehicle | 6 months' imprisonment | Cumulative |
| RO 7153/2016 | Stealing | Global fine with PE 4113/2016, PE 4114/2016 and RO 3735/20116 of $3,000 | |
| RO 7154/2016 | Driving without authority | 6 months' imprisonment and motor driver's licence disqualification for 9 months | Concurrent |
| RO 7155/2016 | Failing to stop after driving a motor vehicle involved in an accident causing property damage | Fine of $300 | |
| RO 8176/2016 | Trespass | 1 month's imprisonment | Concurrent |
Her Honour ordered that the total sentence of 1 year and 5 months' imprisonment be backdated to 12 August 2016, noting that a suspended imprisonment order cannot be backdated, and made Mr Knight eligible for parole.
As her Honour noted, the suspended terms of 7 months' imprisonment which she ordered to be served could not be backdated: Dragon v The State of Western Australia [2008] WASCA 252. However, the other terms of imprisonment could be backdated, pursuant to s 87 of the Sentencing Act 1995 (WA).
The office of the Director of Public Prosecutions has made enquiry of the Sentence Information Unit and confirmed that Mr Knight was in custody for the period of 25 May 2016 to 31 May 2016 on charge RO 3733 of 2016. He was not given credit for that time in custody because the learned sentencing Magistrate was not told of it. Although there was no error on the part of the learned Magistrate I am satisfied that there would be a miscarriage of justice if Mr Knight were not given credit for that time in custody because there is no reason why the discretion ought not be exercised to give credit for it.
The position is not so clear with respect to the time in custody from 21 June 2016 to 4 July 2016. The learned sentencing Magistrate was made aware of that time in custody when sentencing Mr Knight on 4 July 2016 and she said in an exchange with counsel that she would take that into account in deciding on penalty. However that exchange occurred when counsel for Mr Knight was making submissions as to the type of sentence that should be imposed. When sentencing Mr Knight to a suspended term of imprisonment it was open to her Honour to reduce the length of the sentence by reason of the time spent in custody pursuant to s 87 of the Sentencing Act 1995. In the sentencing remarks of 4 July 2016 her Honour did not state that she had reduced the sentence by reason of the time spent in custody.
A court has a discretion as to whether to give credit for time spent in custody but ordinarily that credit should be given unless there is some good reason not to do so: Azizi v Clarson [2002] WASCA 123; Abdullah v Sleiman [2011] WASC 262. Having given consideration to her Honour's sentencing remarks on 4 July 2016 I have reached the conclusion that because her Honour did not refer to the time spent in custody in those remarks her Honour did not give credit for that time in arriving at the period of seven months imprisonment which was suspended. It is my assessment that if her Honour had given credit for that time in custody in determining the sentence she would have said so. As her Honour did not say that she was giving credit for that time in custody I conclude that her Honour overlooked doing so.
As her Honour had not given credit for that time in custody when sentencing Mr Knight on 4 July 2016 it was open to give credit for that time in custody when sentencing Mr Knight on 28 December 2016, in particular when sentencing him on charge RO 3733/16. There was no reason not to do so. At the sentencing hearing on 28 December 2016 her Honour was not reminded of the period of 14 days in custody from 21 June 2016 to 4 July 2016 of which she had been informed on 4 July 2016. Her Honour did not refer to that period in her sentencing remarks on 28 December 2016. I conclude that her Honour did not take that time in custody into account on 28 December 2016. As Mr Knight has not been given credit for that period in custody I conclude that there would be a miscarriage of justice if Mr Knight were not given credit for it.
On my calculations Mr Knight should be given credit for an additional 21 days in custody. On my calculations that means that the sentence should be backdated to 22 July 2016.
I therefore grant leave to appeal, allow the appeal and change the date on which the sentence is deemed to have commenced being served from 12 August 2016 to 22 July 2016. In all other respects the sentences imposed remain the same.
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