McIver v The King

The appeal concerned the sentence imposed on the appellant, McIver, by the primary judge for a combination of Commonwealth and State offences. The offences were committed while the appellant was detained in custody, specifically on remand but housed with convicted prisoners. The appeal raised questions about the objective seriousness of the offending, the importance of general deterrence, and whether the appellant's human rights were breached, particularly in relation to his custody arrangements.

The central legal issues before the Court of Appeal were whether the primary judge erred in determining the objective seriousness of the offences, and whether the appellant's custody was unlawful, constituting a breach of his human rights under section 19 of the *Human Rights Act 2004* (ACT). Further, the Court had to consider the meaning of "in relation to" in section 16E of the *Crimes Act 1914* (Cth) concerning time spent in custody, and whether the sentence should be backdated to account for time spent in custody for an unrelated offence for which the appellant was later acquitted, invoking the *Renzella* discretion.

The Court found that the primary judge did not err in determining the objective seriousness of the offences, noting that offending between detainees is a serious matter warranting general deterrence. Regarding the human rights issue, the Court acknowledged a *prima facie* breach of section 19 of the *Human Rights Act 2004* (ACT) due to the appellant's custody arrangements, but concluded that this did not render the custody unlawful in a manner that would invalidate the sentence. The Court also interpreted section 16E of the *Crimes Act 1914* (Cth) broadly, finding that time spent in custody could be "in relation to" an offence even if the appellant was later acquitted of a different, unrelated offence for which that time was initially served. The Court ultimately determined that the sentence was not manifestly excessive and declined to exercise the *Renzella* discretion to backdate the sentence.

Consequently, the Court dismissed the application for leave to adduce further evidence and dismissed the appeal.