L v Goodwin

[2013] TASSC 29

[2013] TASSC 29

COURT:                  SUPREME COURT OF TASMANIA

CITATION:              L v Goodwin [2013] TASSC 29

PARTIES:  L, K J
  v
  GOODWIN, Kelly
  McCONNON, Alicia

FILE NO:  278/2013
DELIVERED ON:  27 June 2013
DELIVERED AT:  Hobart
HEARING DATE:  27 June 2013
JUDGMENT OF:  Blow CJ

CATCHWORDS:

Family Law and Child Welfare – Child welfare under State legislation – Crimes and offences by children – Other matters – Backdating of sentence of detention – Time spent in custody before determination of charges.

Youth Justice Act 1997 (Tas) , ss83(1), 89(1).
Aust Dig Family Law and Child Welfare [605]

REPRESENTATION:

Counsel:
           Applicant:  T Smith
           Respondent:  S Nicholson
Solicitors:
           Applicant:  Legal Aid Commission of Tasmania
           Respondent:  Director of Public Prosecutions

Judgment Number:  [2013] TASSC 29
Number of paragraphs:  15

Serial No 29/2013
File No 278/2013

K J L v KELLIE GOODWIN and ALICIA McCONNON

REASONS FOR JUDGMENT  BLOW CJ

(DELIVERED ORALLY)  27 June 2013

1. This is a motion for the review of a sentencing order made by a magistrate in the Youth Justice Division of the Magistrates Court.  The learned magistrate, Mr Daly, decided to sentence the applicant to three months' detention.  The applicant had spent some time in custody in relation to the charges upon which he was sentenced.  The learned magistrate initially, on 12 March 2013, sentenced the applicant to three months' detention and ordered that that period of detention was to commence on 27 February 2013.  The learned magistrate was under the impression that the applicant had spent 14 days in custody in relation to the charges.  He backdated his order accordingly.

1. He was wrong about the period that the applicant had spent in custody.  In fact, in relation to these charges, the applicant was remanded in custody on 28 December, bailed on 31 December, remanded in custody again on 10 January, and bailed again on 19 February.  In computing the number of days that the applicant spent in custody, the proper course is to count each day that he went in, and each day that he came out, as whole days.  One does not count the number of sleeps.  One counts the number of days when the applicant was in custody for part or all of the day.  Using that methodology, the applicant had spent 45 days in custody, not 14. 

1. It appears that somebody at the Ashley Youth Detention Centre calculated that the applicant had spent 42 days in custody, and sent word to the magistrate that he had made a mistake. The learned magistrate relisted the matter, and it came before him on 13 March, the day after he had initially imposed sentence. The learned magistrate had the power to vary a sentence that was based on an error of fact under s100A of the Youth Justice Act 1997 ("the Act"). He exercised that power. He said to the applicant:

"So what I'm going to do is to revoke the sentence that I made yesterday, give you the same amount of time but not backdate it to 27 February, not backdate it to that date.  That's only 14 days ago when, if it was to be backdated at all, it should have been 42 days.  I'm not going to backdate it.  I'm just going to let the authorities count those days."

1. The Act provides, in s83(1):

"(1)   A period of detention commences on the day the Court makes the detention order except where —  

(a)the Court makes an order under section 85(1); or

(b)the youth has been held in custody pending the determination of proceedings for an offence; or

(c)the order specifies otherwise."

1. The original order made by the learned magistrate was an order under s83(1)(c), specifying a commencement date other than the date of the order. However the effect of the order made by the learned magistrate on 13 March was that s83(1)(b) applied. The period of detention did not commence on the day the court made the detention order because the applicant had been held in custody pending the determination of proceedings for the offences.

1. Section 89(1) of the Act provides:

"(1)   If a detention order is made, any period during which the youth was held in custody in relation to proceedings for or arising from the offence is counted as service of detention under that order."

1. By virtue of the operation of ss83(1)(b) and 89(1), the appropriate course, once the learned magistrate made the new order on 13 March, was for departmental officers to calculate the period that the applicant had been held in custody pending the making of the sentencing order on 13 March, and to count the total time that he had spent in custody as service of detention under the three-month order imposed on 13 March. 

1. There is a complicating factor that I should address in relation to one aspect of this case. The applicant was held in custody not just on the charges that were the subject of the three-month detention order, but also on two other charges – counts 3 and 7 on complaint 125/2013. On count 3 the prosecutor offered no evidence on 12 March, and it was dismissed. The applicant was dealt with separately on count 7, and no penalty was imposed on that count. Section 89(2) empowers a magistrate to make a decision allocating some or all of a period spent in custody to a particular charge or charges. No such order was made in this case. In the circumstances s89(1) simply means what it says. A detention order was made. The applicant had spent periods in custody in relation to the proceedings for the offences in respect of which that detention order was made. The time that he spent in custody was required to be counted as service of detention under that order.

1. This morning Miss Smith, counsel for the applicant, has told me that the period that the applicant spent in custody was counted as service of detention under the learned magistrate's order. However she submitted that the learned magistrate erred in not backdating the sentence pursuant to s83(1)(c). She submitted that it should not be left to the staff at the Ashley Detention Centre to calculate the period that a youth has been held in custody on remand pending the determination of proceedings.

1. Counsel for the applicant drew my attention to an error in the applicant's record of prior convictions.  My papers contain a copy of his record that was printed on 6 June 2013, some months after the sentence was imposed.  It shows that on 13 March the applicant was sentenced to three months' detention.  It incorrectly shows that that three-month period commenced on 13 March 2013.  It did not.  The 46 days that the applicant had spent in custody prior to 13 March (ie the original 45 days and 12 March) were to be taken into account.  Counsel for the applicant pointed out that an error of this nature can create difficulties.  For example, if a youth re-offends and applies for bail, and there is a mistake of this nature in his or her record of prior convictions, it can be difficult to persuade a magistrate that the record is wrong, and that the applicant has completed serving a sentence of detention when the police record indicates otherwise.  That is a valid criticism but, in my view, it does not follow that learned magistrate made any error.

1. The structure of ss83 and 89 is such that a magistrate can proceed in two possible ways when a youth is to be sentenced to detention and has spent some time in custody in relation to the relevant charge or charges.  The magistrate can do what this magistrate did on 12 March and backdate the order to a date that is designed to take into account all of the time that the youth has spent in custody in relation to the relevant offence or offences.  If the magistrate chooses to do that, there are two risks.  One is that the magistrate will have inaccurate information as to the number of days spent in custody.  The other is that an arithmetical mistake might be made.

1. The alternative is for the magistrate to do what this magistrate did on 13 March – simply to impose a sentence of detention, leaving it to departmental staff to calculate the total period or periods in respect of which the offender was in custody, for the purposes of s89(1). Now Parliament clearly contemplated that that was how a magistrate could proceed. In my view the learned magistrate made no error in choosing to proceed in that way, and for that reason this motion to review must fail.

1. There is one comment that I would like to add. It may be that when a magistrate comes to sentence a youth to a period of detention, he or she will learn that that youth has spent time in custody in relation to the charge or charges for which he or she is being sentenced, and additional time in custody in relation to other charges that are still pending. In that situation, the appropriate course would be for the magistrate to backdate the sentence of detention pursuant to s83(1)(c), in accordance with Geale v Tasmania (2009) 18 Tas R 338, so as to take into account not only the time spent in custody in relation to the charge or charges for which the youth is being sentenced, but also the additional time spent in custody in relation to one or more other charges. However that was not the situation here.

1. It can be desirable for a magistrate who is confident about the accuracy of information supplied, and the accuracy of arithmetical calculation, to backdate a sentence pursuant to s83(1)(c), rather than leaving it to departmental officers to calculate the time spent in custody for the purposes of s89(1). That would certainly eliminate the risk of an error in the record-keeping of the police officers who record prior convictions. But it is not erroneous for a magistrate to take the other available course. And it is for that reason that this motion to review must fail.

1. The motion to review is dismissed.