R v Bol

[2017] SASCFC 148

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v BOL

[2017] SASCFC 148

Judgment of The Court of Criminal Appeal (ex tempore)

(The Honourable Chief Justice Kourakis, The Honourable Justice Peek and The Honourable Justice Doyle)

18 October 2017

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - FRESH EVIDENCE AND EVENTS OCCURRING AFTER SENTENCE

Application for permission to appeal against sentence imposed in the District Court for offences of aggravated serious criminal trespass, aggravated assault and theft.

The applicant forced entry into a friend’s house and then robbed him of various items using a knife (the subject offences). The applicant was arrested several months later and held in custody for 11 days before being released on bail. On 11 December 2015 he was arrested for unrelated offending and refused bail. Bail on the subject offences continued until he was found guilty on 11 May 2016. For the subject offences he was sentenced to three years and 11 months imprisonment with an 18 month non-parole period fixed to commence on 11 May 2016.

During sentencing submissions for the subject offending the parties agreed that the applicant’s detention in custody for the other charges should be taken into account generally but that no specific credit should be given. At that time, the applicant was contesting the unrelated charges. They were later withdrawn. The applicant then applied to the sentencing judge to correct the sentence accounting for the time spent in custody. That application was refused.

The applicant applies to this Court to receive fresh evidence of the withdrawal of the other charges.

Held per Kourakis CJ (Peek and Doyle JJ agreeing), granting permission to appeal and allowing the appeal:

1. There was a sufficient and close connection between the time spent in custody and the subject offences. The earlier bail remained in place only because there was no utility in revoking it because the applicant was in custody on the other charges.

2. The further evidence of the time spent in custody should be received.

3. The sentence imposed in the District Court is set aside and the applicant is resentenced so that the sentence imposed in the District Court and the non-parole period commence on 11 December 2015.

Criminal Law (Sentencing) Act 1988 s 9A, referred to.

R v BOL
[2017] SASCFC 148

Court of Criminal Appeal:  Kourakis CJ, Peek and Doyle JJ

1. KOURAKIS CJ (ex tempore):  This is an application for permission to appeal against the sentence imposed in the District Court on convictions for offences of aggravated serious criminal trespass, aggravated assault and theft.

2. The Judge imposed a sentence of three years and 11 months commencing on 11 May 2016, and fixed a non-parole period of 18 months commencing on the same date.  The applicant applied for permission to appeal on the ground that the sentence and non-parole period should be ordered to commence at an earlier date when the applicant was taken into custody for, as shall been seen, reasons connected to the offences for which he was sentenced.

3. The application for permission was refused by a Judge of this Court on 11 September 2017 but the applicant has renewed that application before the Full Court.

4. The subject offences were committed on 25 September 2014.  The victim of the offences was a 19-year-old man with learning difficulties who had befriended the applicant.  The offences involved the use of considerable force and the applicant produced a knife in the course of the offending.  He stole a PlayStation and associated games.

5. The applicant was arrested several months later and was held in custody for 11 days before he was released on bail.  On 11 December 2015 he was arrested on charges of unrelated offending and refused bail.  However his bail on the subject offences continued until it was revoked upon the jury returning guilty verdicts on 11 May 2016.

6. In sentencing submissions the applicant and the Director of Public Prosecutions agreed that the applicant’s detention in custody on the other charges should only be taken into account in a general sense but that no specific credit should be allowed in sentencing for the subject offences.  At the time of considering bail on the other offences, the applicant was contesting those charges.  The position the Director of Public Prosecutions and counsel for the appellant took appears to have been a pragmatic response to the uncertainty as to the disposition of the other charges and some doubt about whether the sentences could properly be backdated to when the applicant was taken into custody on the other charges because his bail on the subject offences had continued.  As it turns out the other charges were later withdrawn.

7. The applicant applied to the sentencing judge pursuant to s 9A of Criminal Law (Sentencing) Act 1988 (SA), for a rectification of the sentence to take into account the time spent in custody. That application was refused. The applicant then filed an application for permission to appeal in this court on 25 July 2017, asking that this Court receive as further evidence the withdrawal of the other charges. The applicant contends that in the light of that evidence, the sentence was affected by error or was manifestly excessive. The applicant contends that the sentences imposed should be ordered to commence when the applicant was taken into custody on the other charges.

8. The Director accepts that the further evidence should be received and that the sentence imposed in the District Court should be set aside for the limited purpose of ordering that the same head sentence and non-parole period commence on 11 December 2015. 

9. The Director’s concession is properly made.  There is a sufficient, indeed a close connection, between the time spent in custody and the subject offences.  From 11 December 2015 the applicant was for all practical purposes in custody on both the subject offences and the other charges.  There is no doubt that at that time there was a proper foundation for revoking his bail on the subject offences but it remained in place only because there was no utility in revoking it because the applicant was in custody on the other charges. 

10. In retrospect it can be seen that the agreed position, not to give specific credit for the time in custody, was misconceived.  The time spent in custody was, as I have said, closely connected to the subject offences the applicant should have claimed and have been credited for it on the subject offences.  If the applicant was later to be convicted of the other offences, sentencing could have proceeded in the ordinary way with the sentences imposed concurrently or cumulatively on the earlier sentences.

11. It should not be assumed in circumstances like this that evidence of the acquittal or withdrawal of other charges will be received as further evidence as a matter of course.  Care needs to be taken to ensure that sentencing proceeds in the proper order, in a way that I have just outlined.

12. I would receive the further evidence in this case because there was no apparent tactical benefit to the applicant in proceeding as he did.  It seems, as I mentioned earlier, to have been borne of doubt over whether full credit could be given for the time spent in custody.

13. Having received the further evidence, the sentence can now be seen to be manifestly excessive having regard to withdrawal of the other charges.  Accordingly, I would order that the sentence imposed in the District Court be varied so that they commence on 11 December 2015 and the non-parole period of 18 months commence on that same date.

14. PEEK J:     I agree with the orders proposed by the Chief Justice and his reasons.

15. DOYLE J:  I also agree with the orders proposed by the Chief Justice and the reasons he has given.