Owens v The King

[2024] SASCA 65

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

OWENS v THE KING

[2024] SASCA 65

Judgment of the Court of Appeal  (ex tempore)

(The Honourable Justice Lovell, the Honourable Justice Doyle and the Honourable Justice David)

21 May 2024

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TIME SPENT IN CUSTODY AND QUASI-CUSTODY

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-PAROLE PERIOD OR MINIMUM TERM

The appellant pleaded guilty to two counts of trafficking in a controlled drug and one count of breaching a firearms prohibition order.

The appellant was sentenced to six years, two months and four days imprisonment, which was reduced to five years, six months and 28 days to allow for the 220 days the appellant had spent in custody. A non-parole period of three years was fixed.

The appellant appeals against the sentence on the ground the sentencing Judge, when fixing the non-parole period, failed to take into account, or sufficiently take into account, the 220 days spent in custody.

Held, per the Court, granting permission to appeal and allowing the appeal:

1.The sentencing Judge erred in making no reference as to how the 220 days in custody were accounted for when fixing the non-parole period.

2.      The sentence imposed in the District Court is set aside.

3.The appellant is resentenced to five years, six months and 28 days imprisonment, with a fixed non-parole period of 2 years, 8 months and 24 days. The head sentence and non-parole period are backdated to 14 June 2023. 

Controlled Substances Act 1984 (SA) s 32(3); Firearms Act 2015 (SA) s 45(2), referred to.
R v Tsonis (2018) 131 SASR 416; Ribbon v The Queen [2022] SASCA 15, considered.

OWENS v THE KING
[2024] SASCA 65

Court of Appeal — Criminal: Lovell, Doyle and David JJA

1. THE COURT (ex tempore): The appellant pleaded guilty to two counts of trafficking in a controlled drug contrary to s 32(3) of the Controlled Substances Act 1994 (SA) and one count of breaching a firearms prohibition order contrary to s 45(2) of the Firearms Act 2015 (SA).

2. Prior to being sentenced, the appellant had spent 220 days in custody. The sentencing Judge fixed one penalty starting with a period of imprisonment of six years and six months then reduced by five per cent to allow for his pleas of guilty. That led to a sentence of six years, two months and four days which was then reduced by a further 220 days to allow for the time that the appellant had spent in custody. The final head sentence was five years, six months and 28 days and the sentencing Judge fixed a non-parole period of three years. 

3. The sentencing Judge fixed the non-parole period in relation to the head sentence for which the deduction of 220 days had already been made. However, the sentencing Judge made no reference to the 220 days the appellant spent in custody when fixing the non-parole period. That is, the sentencing Judge's reasons did not disclose whether the 220 days the appellant spent in custody were taken into account when the non-parole period was fixed.

4. The appellant's complaint on appeal is not the length of the head sentence but rather that the sentencing Judge, when fixing the non-parole period, failed to take into account, or take into account sufficiently, the 220 days spent in custody prior to sentence.

5. By adopting the approach of reducing the head sentence and then fixing a non-parole period by reference to the head sentence, the deduction for time served is diluted so far as the non-parole period is concerned. Only a proportion flows through to the non-parole period.

6. The preferable approach, referred to in earlier cases of this Court, is that a sentencing judge should fix both the head sentence and the non-parole period, and then both the head sentence and non-parole period should be reduced for the time served. This approach allows for an explicit reduction from both the head sentence and non-parole period for time served which better reflects the time an accused has actually spent in custody. It allows for transparency in the sentencing process so there can be no sense of grievance by a defendant that the time served has not properly been accounted for in the non-parole period.

7. However, it is not necessarily an error for a sentencing judge to reduce the head sentence for time served in custody and then fix the non-parole period by reference to the head sentence, provided the time served in custody is not overlooked when fixing the non-parole period.

8. In R v Tsonis the Court of Criminal Appeal held that where a sentencing judge does decide to give less than full credit, there must be good reason to do so.[1] In those circumstances it is incumbent upon the judge to disclose the amount of credit given for time served in custody and the reason or reasons for giving less than full credit.

   [1]     R v Tsonis (2018) 131 SASR 416.

9. The sentencing Judge here made no reference to how the 220 days were accounted for when fixing the non-parole period. The appellant submitted the sentencing Judge erred in not giving reasons for failing to deduct the 220 days from the non-parole period.

10. Unlike the sentencing Judge in Ribbon v The Queen where the Judge referred specifically to the fact that she took into account time in custody when fixing a non-parole period,[2] the sentencing Judge here simply fixed the non-parole period without explaining how she arrived at the final figure.

    [2]     Ribbon v The Queen [2022] SASCA 15.

11. The respondent accepted that the sentencing Judge failed to give reasons why the 220 days were not deducted from the non-parole period. However, the respondent submitted that we could infer from the low non-parole period actually fixed that proper allowance had been made. 

12. We reject that submission. That asks too much of this Court. While the non-parole period fixed was towards the lower end of the available range, there were factors personal to the appellant which allowed for the imposition of a low non-parole period. The low non-parole period fixed may or may not have been in part due to a proper allowance being made for the time spent in custody. We simply have no way of telling.

13. In our view error has been established. We would resentence the appellant. 

14. We would apply the same starting point as the sentencing Judge for all of the offending being six years and six months, less five per cent for his pleas of guilty leaving a sentence of six years, two months and four days. Like the sentencing Judge, we would fix a non-parole period of slightly less than 55 per cent of the head sentence and we would fix a non-parole period of three years and four months. 

15. We would deduct the 220 days from both the head sentence and the non-parole period leaving a final sentence of five years, six months and 28 days, and a non-parole period of two years, eight months and 24 days.

    Order

16. Permission to appeal granted and the sentence imposed in the District Court is set aside.

17. The appellant is resentenced to a period of imprisonment of five years, six months and 28 days with a fixed non-parole period of two years, eight months and 24 days. Both the head sentence and non-parole period are to commence from 14 June 2023.