Police v Elmes - [2016] SASC 188

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v ELMES
[2016] SASC 188
Judgment of The Honourable Justice Peek
14 December 2016
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TIME SPENT IN CUSTODY
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - POWERS OF COURT - FRESH EVIDENCE
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - MISCARRIAGE OF JUSTICE
Appeal against sentence.
On 20 July 2016, the appellant pleaded guilty to two counts of basic assault contrary to s 20(3) of the Criminal Law Consolidation Act 1935. The Magistrate sentenced her to seven months imprisonment and did not backdate it to account for time spent in custody.
Prior to being remanded in custody in relation to the subject offences on 8 October 2015, the appellant had been remanded in custody in relation to other offences on 28 August 2015. She remained in custody on those charges until a nolle prosequi was entered in relation to them on 7 December 2016, two days before this appeal was heard.
The appellant’s grounds of appeal contended that the sentence was manifestly excessive; and that the Magistrate erred in not backdating the present sentence.
Held (allowing the appeal):
1. The Magistrate acted within her discretion in imposing the seven month period of imprisonment, and it has not been established that the sentence was manifestly excessive.
2. The fresh evidence of the entry of the nolle prosequi in relation to the other charges should be admitted pursuant to s 42 of the Magistrates Court Act 1991 as it demonstrates a miscarriage of justice.
3. The sentence imposed by the Magistrate is varied such that it is to be taken to have commenced on 20 March 2016, backdated by four months.
Criminal Law Consolidation Act 1935 ss 10, 20, 30; Magistrates Court Act 1991 s 42, referred to.
The Queen v Morse (1979) 23 SASR 98; R v Arts & Briggs [1998] 2 VR 261; Bonney v SA Police (1996) 185 LSJS 185; Tong v Police [1998] SASC 6813; R v Colson (1999) 73 SASR 407; R v Hughey [2007] SASC 452; R v Al-Zuain (2009) 103 SASR 567, discussed.
House v The King (1936) 55 CLR 499; Markarian v The Queen (2005) 228 CLR 357; R v Heaney (Unreported, Supreme Court (Vic), Court of Appeal, 27 March 1996, Winneke P, Brooking JA and Hampel AJA); R v Renzella [1997] 2 VR 88; PNJ v The Queen (2009) 83 ALJR 34; R v Berry (2007) 17 VR 153; R v Sladic (2005) 92 SASR 36, considered.

POLICE v ELMES
[2016] SASC 188
Magistrates Appeal
PEEK J.

This is an appeal against a sentence of seven months imprisonment imposed by the Magistrate on 20 July 2016 in relation to two offences of assault (“the subject offences”). These offences were committed sequentially upon the two victims, a mother and her daughter, when the appellant attended at their home on 4 July 2014 (“the subject incident”). The Magistrate indicated a notional sentence of ten months imprisonment and reduced it by 30 per cent having regard to the appellant’s guilty plea (“the subject sentence”). The subject sentence was ordered to commence as from the date of sentencing, 20 July 2016. On that same day, the appellant was also sentenced to a further period of six weeks imprisonment for “unrelated theft offences”, to be served cumulatively upon the subject sentence and to commence immediately upon the expiration of the subject sentence.
Chronology of relevant events
On 4 July 2014, the appellant committed the subject offences, but was not at that time apprehended.
On 7 June 2015, the appellant committed the “unrelated theft offences” but was not at that time apprehended.
On 28 August 2015, the appellant was charged with several unrelated major indictable offences which were alleged to have been committed on 22 August 2015. She was remanded in custody and so remained until a nolle prosequi as to these charges was entered very recently, on 7 December 2016. The appellant was never granted bail in respect of these charges (which will be referred to as “the nolle prosequi charges”).
On 8 October 2015 (while still in custody on the nolle prosequi charges), the appellant was charged on Information with the subject offences, together with a further count of serious criminal trespass also relating to the subject incident of 4 July 2014.
On 8 October 2015, the appellant first appeared in the Magistrates Court and was remanded in custody on the subject offences.
On 12 February 2016, the appellant was committed for trial in the District Court on the nolle prosequi charges.
On 3 March 2016, the appellant first appeared in court on the “unrelated theft offences”. The matter was adjourned.
On 3 March 2016, the further count of serious criminal trespass laid on 8 October 2015 in relation to the subject incident was downgraded to simple trespass.
On 20 July 2016, the appellant was sentenced in the Magistrates Court upon the subject offences. A sentence of seven months imprisonment was imposed to commence on that day. On that same day, the appellant was also sentenced to a further period of six weeks imprisonment for unrelated theft offences, to be served cumulatively upon the subject sentence and to commence immediately upon the expiration of the subject sentence.
On 5 September 2016, the appellant appealed out of time against the sentence imposed on the subject charges.
On 7 December 2016, the prosecution entered a nolle prosequi on the nolle prosequi charges.
On 9 December 2016, the appellant’s appeal was heard and judgment was reserved.
Ground 1 of appeal: A manifestly excessive sentence?
Ground 1 of appeal complains that the sentence is manifestly excessive.
The plea proceeded on the basis that the appellant had attended at the home of Ms Mannix, the mother, in order to speak to her son about returning a bicycle to her. She did not know either Ms Mannix or her daughter Ms Hosking. The appellant had an argument with Ms Mannix and assaulted her by kicking her to the side of her face, pushing her backwards, grabbing her hair and punching her. Ms Hosking then came to the aid of her mother and the appellant assaulted her by pushing her.
In The Queen v Morse,[1] King CJ indicated that the factors to be considered when addressing the question of manifest excess are:
(i)    the maximum sentence prescribed by law for the offence;
(ii)    the standards of sentence customarily observed for offences of the kind in question;
(iii)the seriousness of the offence committed when compared to other offences of its kind; and
(iv)     the personal circumstances of the offender.
[1] (1979) 23 SASR 98, 99.
As to factors (i) and (ii), there is a certain degree of overlap in the present case. The offence of assault contrary to s 20 of the Criminal Law Consolidation Act 1935 carries a maximum punishment of two years imprisonment. It is to be noted that there were two separate assaults on the mother and daughter. The appellant’s specific acts concerning the mother constituted quite a serious example of the offence of common assault. The assault of the daughter was relatively serious in that actual physical force was applied (as distinct from lesser degrees of assault involving no physical contact such as referred to in s 20(1)(c) or (d)).
In all of the circumstances, only a minor degree of notional concurrency of sentence was required. A total sentence of seven months (after reduction for the plea of guilty) in all of the circumstances is not discordant with the standards of sentence customarily observed for offences of the kind in question.
As to factor (iii), the seriousness of the offence(s) committed when compared to other offences of its kind is relatively high. As well as the matters noted above, it is to be added that the victims did not know the appellant, although the mother’s son apparently did. The mother and daughter had not provoked the attack in any way and were attacked while in the (hoped for) safety of their own home. Primary principles of sentencing include the need to protect the security of the lawful occupants of their home from intruders.[2]
[2] Criminal Law (Sentencing) Act 1988 s 10(2)(b).
As to factor (iv), the appellant had an extensive history of criminal offending. Her prior proven offences and convictions included matters of assault; theft offences involving violence; and trespass and residential trespass offending. There are also numerous other instances of various types of offending. The appellant had previously been given the benefit of a range of sentences including fines, licence disqualifications, and previous periods of imprisonment.
I note that on 20 December 2012 the appellant was sentenced in the District Court for offences including aggravated assault to a head sentence of 31 months imprisonment with a non-parole period of 12 months, both commencing on 12 September 2012. The precise dates of her release on parole, and completion of that parole, are not before me but on an assumption highly favourable to the appellant that she had completed her period of parole, such completion must have been only a short period before 4 July 2014 when she committed the present assaults.
Consideration
The Magistrate had regard to the personal circumstances of the appellant, including that she was homeless, had a drug problem, and had limited support. However, none of the appellant’s previous sentences had succeeded in deterring her from violent behaviour. The Magistrate correctly had regard to the appellant’s criminal history in coming to the view that leniency was not called for and that there was a need for personal deterrence in this case.
It is well established that an appellate court should not interfere with a discretionary finding of a Magistrate unless the appellant establishes that the Magistrate acted on some wrong sentencing principle, took into account an irrelevant matter, failed to have regard to a relevant matter, or that the sentence is so unreasonable that it cannot be regarded as a proper exercise of the sentencing discretion.[3] It is not enough that the appeal court, had it been in the position of the Magistrate, would have imposed a different sentence.
[3] House v The King (1936) 55 CLR 499, 505 (Dixon, Evatt and McTiernan JJ); Markarian v The Queen (2005) 228 CLR 357, 370.
I consider that it has not been established that the notional head sentence of ten months imprisonment for the subject offending was manifestly excessive. The penalty was within the range open to the learned Magistrate. Ground 1 of appeal is rejected.
Grounds 2 and 3 of appeal were formally withdrawn at the hearing of the appeal.
Ground 4 of appeal: Backdating of sentence
Ground 4 of appeal (as amended) appears as follows:
The learned sentencing Magistrate erred in commencing the sentence from the day of the sentence (sic sentencing) in circumstances where the appellant had been in custody on the matter at bar since 8 October 2015.
Section 30 of the Criminal Law (Sentencing) Act 1988 (“the Act”) provides as follows:
30—Commencement of sentences and non-parole periods
(1)     Where a court imposes a sentence of imprisonment and does not suspend the sentence under Part 5, the court must specify the date on which, or the time at which, the sentence is to commence or is to be taken to have commenced.
(2)     If a defendant has spent time in custody in respect of an offence for which the defendant is subsequently sentenced to imprisonment, the court may, when sentencing the defendant, take into account the time already spent in custody and—
(a)     make an appropriate reduction in the term of the sentence; or
(b)     direct that the sentence will be taken to have commenced—
(i)    on the day on which the defendant was taken into custody; or
(ii)on a date specified by the court that occurs after the day on which the defendant was taken into custody but before the day on which the defendant is sentenced.
There are a number of difficult issues that may arise from time to time in the context of this provision. However, they were not addressed by the parties and they need not be resolved by this judgment.
Prior to the entry of the nolle prosequi on 7 December 2016, the present case generally presented the relatively familiar factual situation of a prisoner who is in custody on unrelated charges A and B and pleads guilty to charge A while still awaiting trial on charge B (as to which he maintains his innocence). In such circumstances, often the question will arise at the plea hearing of charge A as to whether a sentence should be reduced or backdated having regard to time spent in custody up to that time. The essential problem is that if no credit is given at the time of sentencing for charge A, and sometime later the prisoner is acquitted of charge B, then he has lost the time spent in custody on both charges up to his commencement of serving the sentence on charge A.
This is a matter that has received a good deal of attention in Victoria where there is considerable authority for the proposition that credit should be given at the stage of sentencing for charge A to prevent the possible prejudicial outcome referred to above. I note that in R v Arts and Briggs[4] Callaway JA was of the opinion that the previous Victorian cases of Heaney[5] and Renzella[6] stand for the positive proposition that “such pre-sentence detention is to be taken into account in the exercise of the court’s discretion and should ordinarily be taken into account at the first opportunity, in case the prisoner is acquitted at a later trial or hearing or a nolle prosequi is entered.”
[4] [1998] 2 VR 261, 263.
[5] (Unreported, Supreme Court (Vic), Court of Appeal, 27 March 1996, Winneke P, Brooking JA and Hampel AJA).
[6] [1997] 2 VR 88.
Consideration
In the present case, I consider that it is unnecessary to consider such broad questions. That is because the factual position confronting the Court here is much more stark than the situation of a possibility of a future acquittal as postulated immediately above. By contrast, here what is involved is not just a possibility that the prisoner might be exonerated of charge B but rather the actual occurrence of an entry of a nolle prosequi on charge B prior to the hearing of an appeal against sentence imposed on charge A.
There are a number of South Australian cases decided on s 30 of the Act which indicate that, whatever might be the central or default position, there is power to make allowance for time spent on remand in exceptional factual situations such as the present case.
In Bonney v SA Police,[7] the Magistrate had allowed a period of one month pursuant to s 30(2) of the Act, but the appellant had been detained in custody for fifty nine days on account of the charges in question alone and for a further forty four days on both the charges in question and on unrelated charges. Perry J held that the Magistrate had erred in not taking into account the fifty nine days, and held that “some recognition” should be given to the forty four days. His Honour concluded that approximately two months’ credit for the time spent in custody for that offence and one month in respect of the forty four days for which he was remanded on that and the other offences was appropriate.
[7] (1996) 185 LSJS 185.
Perry J drew a clear distinction between a case where a prisoner is actually serving a sentence concurrently with a remand on other charges and the different situation that occurred in both the case of Bonney and the present case. Thus his Honour stated:[8]
However, if, for example, he had been serving a term of imprisonment for forty-four days and that term coincided with or overlapped a period during which he was on remand for the offence in question, I do not think that it would be proper to give any credit for the time spent serving some other term. But where the period on remand is referrable to separate orders made in separate matters that the appellant be remanded in custody, I think that the words in s 30 (2)(a) ‘appropriate reduction’ mean that, without allowing the full period on remand as a credit in both matters, there is no reason why some recognition should not be given to that period. (Emphasis added)
[8] (1996) 185 LSJS 185, 191-192.
In the later case of Tong v Police, Bleby J adopted the same approach as Perry J and said:[9]
[11] I respectfully agree with Perry J that where the period on remand overlaps with a period of sentence fixed by the court for some other offence, it should not be brought into account. That is because the dominating custodial factor is that for which the court has passed sentence. Nothing can prevent that sentence of imprisonment from continuing during a non-parole period. An order for remand in custody or an order for bail pending the hearing becomes irrelevant for so long as that other sentence remains. It cannot be said, for the purposes of s 30(2) of the Act, that the defendant is in custody in respect of an offence for which he is subsequently sentenced. In this case, however, any period of custody pursuant to the warrants for non-payment of fines was not necessarily the dominating influence. It was capable of cancellation under certain conditions within the power of the appellant or someone acting on his behalf. The only factor which ensured that the appellant remained in custody were the several orders that he be remanded in custody. In those circumstances, it can be said that he was in custody in respect of the offences for which he was subsequently sentenced. Nothing could have changed that.
[12] In Bonney’s Case the forty-four day period for which some recognition was given occurred as a result of concurrent orders for remand which were of equal standing. It was therefore appropriate that the court should allow some recognition for that period in the sentence which it fixed.
[9] [1998] SASC 6813.
Reference may also be made to the decision of the Full Court in R v Colson. Doyle CJ (with whom Prior and Mullighan JJ concurred) there observed:[10]
[17] In relation to s 30(1) of the Sentencing Act it is also pertinent to bear in mind that the Sentencing Act is intended to regulate generally the sentencing of offenders. It is reasonable to assume that it was intended to provide a sentencing court with flexible powers. It is also apparent that it was intended to impose upon a sentencing court an obligation to avoid uncertainty about the time of commencement of a sentence.
…
[21] However, to my mind it is difficult to treat the subsequent subsections of s 30 as, in effect, exhaustively stating the scope of the apparently general power conferred by s30(1). If that is what they do, then s 30(1) is to be read as doing no more than imposing an obligation to specify a date or time, the relevant date or time being arrived at as a result of the operation of later subsections, and not by the exercise of a power conferred by s 30(1) to fix a date or time. On the other hand, it might be said that if s 30(1) confers a general power, why did Parliament make the particular provisions found in the following subsections? The answer to that question is that Parliament thought it appropriate to deal specifically with the more commonly encountered situations, and, to some extent, to limit the scope of the discretion conferred by s 30(1) by providing what a court must do in certain circumstances. As well, s 30(2)(a) confers a power that is not conferred by s 30(1). On the other hand, s 30(2)(b) appears to be no more than a particular example of what may be done pursuant to the power conferred by s 30(1). Section 30(3) appears to limit the scope of the discretion conferred by s 30(1), by requiring the court to make a particular direction when it imposes a sentence of imprisonment on a person who is not present in court.
[10] (1999) 73 SASR 407, 410-411.

In the outline of argument of the respondent, and on the hearing of the appeal, the only decision referred to by the respondent relevant to the matter presently under consideration was the subsequent decision of the Full Court in R v Hughey in 2007,[11] upon which the respondent wished to rely.
[11] [2007] SASC 452.
For present purposes, it is only necessary to note the following matters about the decision in Hughey. First, the facts there were quite different to those here. Second, the joint judgment of Debelle and Vanstone JJ referred to the decisions in Bonney and Tong without disapproval. Third, Hughey has been subjected to question in the more recent decision of the Full Court in R v Al-Zuain in 2009[12] following the decision of the High Court in PNJ v The Queen[13] in 2008. Neither of those two decisions was cited at the hearing of this appeal.
[12] (2009) 103 SASR 567.
[13] (2009) 83 ALJR 384 (French CJ, Gummow, Hayne, Crennan and Kiefel JJ).
The facts in R v Al-Zuain were briefly that the appellant was kept in custody between 9 February 2007 and 5 September 2008 by reference to two sets of charges. First, “the Magistrates Court charges” and second a more serious District Court charge. On 5 September 2008, the appellant was acquitted of the District Court charge after a trial before a jury. On that same day, he was granted bail in relation to the Magistrates Court charges. On 28 October 2008, the appellant pleaded guilty to each of the Magistrates Court charges.[14]
[14] This occurred in the District Court to which court they were transferred.
Doyle CJ concluded that “[a]s the history indicates, Mr Al-Zuain was in custody from 14 December 2006, initially in relation to the other charge on which he was ultimately acquitted. As from 9 February 2007, he was in custody, it seems, also in relation to the Magistrates Court charges. He remained in custody until his acquittal of the other charge [on 5 September 2008].”[15] His Honour observed as to that situation:[16]
As the time spent in custody by Mr Al-Zuain prior to sentence was referable to the Magistrates Court charges for which he received a sentence of imprisonment, even though it was also referable to the other charge on which he was acquitted, the power to take into account that period spent in custody arose under s 30(2).
[15] (2009) 103 SASR 567, [12].
[16] (2009) 103 SASR 567, [44].
This is, or is equivalent to, the situation of the present appellant.
His Honour proceeded to consider a number of interesting questions, including the position in Victoria and other states, the then recent decision of the High Court in PNJ v The Queen,[17] and the question of whether “the power conferred by s 30(2) of the Act is the sole source of a court’s power to take into account periods of time spent by an offender in custody prior to sentencing”.[18]
[17] (2009) 83 ALJR 384 (French CJ, Gummow, Hayne, Crennan and Kiefel JJ).
[18] (2009) 103 SASR 567, 575.
As to the previous decision of the Full Court in R v Hughey,[19] Doyle CJ noted that some of the issues had been “touched upon” in that case. His Honour correctly noted that: the Court in Hughey had not had the advantage of the subsequent decision of the High Court in PNJ v The Queen; that the Court in Hughey had apparently not been referred to any of the important interstate authorities referred to in Al-Zuain; that it was not necessary to decide the various questions referred to in Al-Zuain; and the Court was not asked to reconsider its decision in Hughey.
[19] (2009) 103 SASR 567, 581.
In Al-Zuain, Sulan J observed in relation to the decision in Hughey:[20]
Having regard to the High Court’s observations in PNJ,[21] the directions of Debelle and Vanstone JJ as to the construction of s 30(2) of the Sentencing Act must be open to reconsideration.
I observe that Debelle and Vanstone JJ in Hughey did not address the position at common law. If it were thought that the decision in Hughey prohibited a sentencing judge from giving a defendant credit for time spent in custody, other than time in respect of the offence for which the defendant is sentenced, I disagree. There is much to be said in support of the observations of Redlich J in Berry.[22] The interstate authorities to which the Chief Justice has referred, support the conclusion that the court has an inherent jurisdiction to discount a sentence by giving credit for time spent in custody for offences unrelated to those upon which the defendant is sentenced.
Where a person has spent time in custody for matters unrelated to the offence upon which that person is currently being sentenced, and that person has not already been credited for the time spent in custody, fairness demands that, when sentencing that person, the sentencing judge may have regard to the time or part of the time which the person has spent in custody. This accords with the observations of the Court of Appeal in Renzella, where the court observed that a sentencing court is not only empowered but is obliged, as a matter of justice, to take pre-sentence detention into account.[23]
[20] Sulan J had been the third member of the Court in Hughey, but had agreed only with the orders made by Debelle and Vanstone JJ, as distinct from their reasons.
[21] PNJ v The Queen (2009) 83 ALJR 384.
[22] R v Berry (2007) 17 VR 153, [115].
[23] R v Renzella [1997] 2 VR 88, 97.
In Al-Zuain,[24] Vanstone J observed in relation to the decision in Hughey that, “having regard to P, NJ, the correctness of R v Hughey [2007] SASC 452, insofar as it interpreted s 30(2) as prescribing ‘the only circumstances in which time spent in custody prior to sentence can be taken into account’, must be open to question.”
[24] (2009) 103 SASR 567, 584.
In the recent decision of this Court in R v Sprecher, Kourakis CJ (with whom Gray and Stanley JJ concurred) referred to the judgment of Doyle CJ in R v Al-Zuain with approval and stated:[25]
[30] It is well accepted that a sentencing court may, and generally should, take into account periods of remand in custody related to the offending for which he or she is being sentenced. Moreover, the period spent on remand may be taken into account even if it is referrable to both the offence for which the defendant falls to be sentenced and other offending.[26] However, there must be some connection between the period spent on remand and the offences and the sentence under consideration. … (Emphasis added)
The emboldened statement is directly applicable to the present case.
[25] [2015] SASCFC 76, [30].
[26] R v Al-Zuain (2009) 103 SASR 567, [44]-[67].
Kourakis CJ’s later reference in Sprecher to R v Hughey was confined to the statement: “this Court [in Hughey] endorsed the approach that time spent on remand is not to be regarded as a bank balance on which a defendant could draw”.[27] Needless to say, the present is certainly not the type of case to which those remarks are addressed.
[27] [2015] SASCFC 76, [31].
Finally, it is to be noted that, quite apart from the thorny thicket of s 30 of the Act, it is recognised that the South Australian courts have the power to consider time spent in custody on remand for an offence for which they were not convicted as a personal circumstance of the defendant when considering sentence. Thus in Al-Zuain, Sulan J observed:[28]
Section 10(1)(o) of the Sentencing Act permits the court to have regard to any other relevant matter in determining a sentence. The section provides, and justice requires, that credit for time spent in custody, whether for the offence charged or for any other reason, may be considered when deciding an appropriate term of imprisonment. It does not follow that in every case credit for time spent in custody must be given.
[28] (2009) 103 SASR 567, 581.
And in Al-Zuain, Vanstone J observed:[29]
Like the Chief Justice, I consider that s 30(2) Criminal Law (Sentencing) Act 1988 (the Act) clearly empowered the judge to reduce the sentence he imposed, in a direct way, on account of the period in custody. Therefore the questions of whether either s 30(1) or (2) allow a judge to give credit for, or “backdate” a sentence, to take account of unrelated time in custody, or further, whether the judge has a common law entitlement to do so, are not essential to the disposition of this appeal.
[29] (2009) 103 SASR 567, 582. I do not read the remarks of Doyle CJ as being confined to that basis.
There are other authorities to the same effect.
Receipt of fresh evidence pursuant to s 42 of the Magistrates Court Act 1991
In R v Sladic, Gray, Sulan and Layton JJ stated:[30]
Fresh evidence may be admitted on an appeal when it sheds new light on the material before the sentencing judge, or when there was a relevant fact or relevant facts in existence at the time of sentencing which had not been brought to the attention of the sentencing judge and a satisfactory explanation has been proffered for the failure to have informed the sentencing judge of the facts.
[30] (2005) 92 SASR 36, 45 [44].
I consider that fresh evidence of the entry of the nolle prosequi on 8 December 2016 should be admitted pursuant to s 42 Magistrates Court Act 1991.[31] It sheds new light on an important topic that was being considered by the Magistrate, namely the extent to which there should be a backdating of sentence having regard to the fact that the appellant had been held in custody for a considerable period by reference to the “nolle prosequi charges” which had been set for trial in the District Court in February 2017.
[31] Obviously, the requirements that the evidence is fresh evidence is satisfied here in that the decision of the prosecution to enter the nolle prosequi was only taken after the date of sentencing.
The Magistrate took the view that the subject charges should not be backdated having regard inter alia to the then intention of the prosecution to proceed to trial in February 2017 with the “nolle prosequi charges”, a case to answer having been found at the committal proceedings. However, if the present Magistrate had been aware that the prosecution would in fact enter a nolle prosequi, it is almost certain that her Honour would have given credit, or back dated the sentence, to some extent. Accordingly, a miscarriage of justice is demonstrated by reference to the fresh evidence and there must be a re-sentencing.
Disposition of the appeal
The position that has arisen is as follows. The present appeal is one of a number of Magistrates appeals scheduled to be heard in the December 2016 session and was listed for hearing on Friday 9 December 2016 to meet the convenience of Mr Vadasz. The nolle prosequi was entered in the District Court on 7 December 2016, with the first notice of that event being given to this Court on 8 December 2016.
From 20 July 2016 when the appellant was sentenced to seven months imprisonment until the present date of 14 December 2016, she has served almost five months of that sentence. I consider that if at the time of sentencing the Magistrate had known that the nolle prosequi would be entered, her Honour would have substantially backdated the commencement of the subject sentence.
I consider it appropriate to backdate the commencement of the subject sentence by four months to commence on 20 March 2016. The effect of such backdating is that the subject sentence would have been served by on or about 20 October 2016 and the cumulative sentence of six weeks imprisonment that commenced at the expiration of the subject sentence would have been served by on or about 1 December 2016.
I find no good reason to suspend that sentence.
The appellant is declared to have now completed her sentence of imprisonment and is hereby discharged from custody.
Orders
1An extension of time within which to appeal is granted until 5 September 2016.
2The appeal is allowed.
3The order of the Magistrate imposing a sentence of seven months imprisonment is varied by ordering that such sentence is to be taken to have commenced on 20 March 2016.
4The appellant is declared to have completed her sentence of seven months imprisonment having commenced serving it on 20 March 2016, and also the cumulative sentence of six weeks imprisonment having commenced serving it from the expiration of the sentence of seven months imprisonment.
5The appellant is hereby discharged from custody.