R v Bol - [2017] SADC 72

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v BOL
[2017] SADC 72
Ruling of His Honour Judge Stretton
3 July 2017
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TIME SPENT IN CUSTODY
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - IRREGULARITIES
When originally sentenced the accused and prosecution had agreed that time spent in custody prior to sentence on an unrelated pending charge not be taken into account. Some months after the accused was sentenced, the unrelated matter was discontinued. The accused made application pursuant to section 9A of the Criminal Law (Sentencing) Act to revisit the sentence and sought credit for the time spent in custody on the unrelated matter, which credit would otherwise be lost. Section 9A allows for the ‘rectification of sentencing errors’ by the original sentencing court. The scope of section 9A and whether it can be utilised in such circumstances considered.
HELD:
1. Section 9A does not authorise the original sentencing court to embark on anything that can be characterised as a new sentencing process for the offending in question.
2. Where the court determines that granting the credit will amount to a mathematical process not requiring the court to revisit any general sentencing considerations concerning any other aspect of the sentence, then the error or deficiency may be revisited to grant the credit.
3. Where the omitted credit is such that any general sentencing considerations or discretions need be revisited, or where other aspects of the sentence need to be consequently reconsidered, and is therefore more than a simple mathematical process of re-crediting omitted periods, it will ordinarily constitute a new sentencing process.
4. If the application of the credit also requires the non-parole period to be addressed, where it is appropriate to do that by reference solely to the credit and not with reference to any more general and overarching considerations, that may legitimately occur by way of section 9A.
5. Where the application of the credit requires the non-parole period to be addressed but in doing so sentencing principle requires, in the circumstances of the case at bar, reference to any more general and overarching considerations, that will ordinarily amount to a new sentencing process not permitted by section 9A.
6. Hence, in any case where an application is made to the original sentencing judge to revisit a sentence and allow omitted credit, a court will ordinarily need to consider
a. Whether available credit has been omitted or overlooked,
b. Assess whether in addressing the omitted credit in the instance of the case at bar, the court will simply be embarking on a process of crediting an omitted period that legitimately would not involve revisiting general sentencing considerations, discretions or any other aspects of the sentence, and
c. Part of the exercise required may thus involve an assessment of the nature and extent of the omitted credit for example its proportionality to the existing sentence, the degree to which it is bound up with or discrete from other aspects of the sentence, and hence whether crediting the omitted period will necessitate substantively considering other aspects of the sentence such as a non-parole period in a general way, rather than an isolated-only-to-the-credit way.
7. In the matter at bar, in the totality of the circumstances, the extent of the credit in question together with issues relating to rehabilitation would require a reassessment of the overall non-parole period which would amount to a new sentencing process.
8. Section 9A does not permit such a process, and thence the only remedy lies on appeal.
Criminal Law (Sentencing) Act 1988 (SA) s 9A, s 30(1), s 30(2), referred to.
PNJ v The Queen [2009] HCA 6; In Question of Law Reserved on Sentence (No 1 of 1996) (1996) 67 SASR 90; R v Fraser [2007] SASC 257; R v Staltari [2007] SASCFC 337; Sullivan v Police [2010] SASC 216; R v Hussey [2013] SASCFC 41; Markarian v The Queen (2005) 228 CLR 357; Ditroia v Police [2014] SASC 27; R v Brooks and Childs (2006) 95 SASR 369; R v Sansone [2015] SASCFC 168; R v Kuci [2016] SASCFC 136; R v Hudson [2016] SASCFC 60; R v Collins [1997] SASCFC S6096; R v Malesovic [1999] SASC 321, considered.

R v BOL
[2017] SADC 72
The application

This is an application by the accused Mr Bol pursuant to section 9A of the Criminal Law (Sentencing) Act that this court revisit an otherwise completed sentencing process.
Mr Bol applies pursuant to this section for the court “to supply… a deficiency in the sentencing order, in particular, any account for the time in custody on … charges that were withdrawn.”[1]
[1] Email from counsel, 7 March 2017; and see paragraph 13 outline of submissions 17 May 2017.
The DPP oppose the application on the basis that it would require a substantive reconsideration of the sentence, which it submits is not authorised by section 9A.
History of the matter
On 25 September 2014 Mr Bol committed a number of serious offences, the sentence for which is the subject of today’s application. He was subsequently arrested and spent an initial short period in custody.
Mr Bol was then released on bail, however on 11 December 2015 he was arrested again and charged with unrelated offending and refused bail on those new charges.
Bail continued in this matter however, until it was revoked upon the jury returning guilty verdicts in the current matter on 11 May 2016.
In the course of submissions in mitigation of penalty made on 6 September 2016 the issue of Mr Bol’s time spent in custody solely for the unrelated matter was raised.
It was the joint agreed position between counsel that whilst the court should be aware in a general sense of the fact that Mr Bol had been in custody for the period 11 December 2015 to 11 May 2016, it was agreed between counsel that specific credit should not be allowed for it in relation to the current unrelated offending, and that credit for the unrelated matter should be left aside to be taken into account ‘should he need it upon conviction or plea of guilty on the other matters’.
See pages 3-6 of the transcript of submissions made on 6 September 2016.
That was an agreed position between counsel, reflecting in part defence counsel’s seeming preference that the credit be kept in reserve, as it were, for the other matter should he be convicted and sentenced for that matter. One can imagine there might be legitimate strategic reasons for that course to be undertaken, perhaps to allow counsel to argue in the other matter that an accused not be sentenced to further imprisonment in that other matter.
The court was told that that other matter was contested, so it was within everybody’s contemplation that the accused may ultimately not be convicted and sentenced for that other matter, and that accordingly that the credit in question may not ultimately be used.
In accordance with counsel’s preferences and the consequently agreed position as between counsel, credit was given for the time spent in custody in relation to the current matter but not the time in custody solely referable to the separate and unrelated matter.
Consequently on 9 September 2016 in this court Mr Bol was convicted and sentenced to a term of 3 years and 11 months imprisonment with a non-parole period of 18 months, backdated to commence on 11 May 2016.
The court refers to without repeating the matters set out in the court’s sentencing remarks delivered on 9 September 2016.
Subsequently the unrelated charges were withdrawn. The credit for time Mr Bol spent in custody solely relating to that matter was accordingly not utilised in that matter.
As a result, counsel for Mr Bol has applied to this court suggesting that this court should revisit the sentence imposed in this matter and grant him the credit he did not need to use in the unrelated matter.
Preliminary issue
In the course of arguing the matter counsel discussed whether there was power for the court to backdate the sentence imposed to the day Mr Bol was taken into custody on the unrelated matter, since it was a separate matter.
There is authority, based on a view that section 30(2) of the Criminal Law (Sentencing) Act in prescribing that where a person is taken into custody on a matter and ultimately sentenced for that matter the sentence may be backdated to the day after the person was taken into custody on that matter, to the effect that any such sentence could not be backdated to an earlier time to reflect custody on an unrelated matter.
However in PNJ v The Queen[2] the High Court made observations to the effect that the more general power pursuant to section 30(1) to prescribe the date at which a sentence is to commence or to be taken to have commenced is not to be given a restrictive meaning and should allow the backdating of sentences, for example in that case to reflect earlier custody on different charges.
[2] [2009] HCA 6.
The point is ultimately moot in this case, as if it were appropriate to allow credit it could also be as easily done by subtracting it from the sentence otherwise to have been imposed, or that was imposed or in any event giving effect to it by regarding it as materially relevant to Mr Bol’s antecedents.
The statutory test
In certain circumstances the court can revisit an otherwise completed sentencing process. In particular, section 9A of the Criminal Law (Sentencing) Act 1988, provides:
9A—Rectification of sentencing errors
(1)A court that imposes a sentence on a defendant, or a court of co-ordinate jurisdiction, may, on application by the Director of Public Prosecutions or the defendant, make such orders as the court is satisfied are required to rectify an error of a technical nature made by the sentencing court in imposing the sentence, or to supply a deficiency or remove an ambiguity in the sentencing order.
(2)The Director of Public Prosecutions and the defendant are both parties to an application under this section.
The issue is whether revisiting the otherwise completed sentencing process would entail the rectification of a technical error, entail supplying a deficiency in the sentencing order or involve the removal of an ambiguity in the sentencing order. If so, the court is entitled to revisit the sentencing process to either correct the technical error, supply the deficiency or remove the ambiguity.
The scope of section 9A of the Criminal Law (Sentencing) Act
There has been surprisingly little appellate consideration of section 9A, and no comprehensive analysis of what will or won’t constitute ‘technical’ errors, or the scope of the ‘deficiencies’ which may be addressed.
As can be seen from a brief review of the authorities, no broad analysis has been conducted, for not the least reason that its scope has rarely been contested on appeal, or appeals have been disposed simply on the basis that an error or omission has occurred at first instance, which can simply be addressed on the merits on appeal.
In Question of Law Reserved on Sentence (No 1 of 1996)[3] the Court of Criminal Appeal considered an appeal from a sentence ordered to commence on a fixed date which at the time of that sentence was the expiry of an existing sentence. Some years later, the appellant was granted remissions to the first sentence which resulted in a 22 day hiatus between the expiry of the first sentence and the commencement of the second sentence.
[3] (1996) 67 SASR 90.
The CCA held that the second sentence had been rendered invalid or ineffective by reason of the fact that a prospective gap between the two head sentences and the continuation of the non-parole had arisen. The court held that once it was known that that would occur, but not until then, the second sentence became ineffective and reflected an error by the sentencing court and a deficiency in the sentencing order. Doyle CJ said that:
The error and deficiency is the passing of a sentence so expressed that it has the potential to give rise to a hiatus such as has occurred. The error and deficiency is a latent one, in the sense that it will not necessarily become actual.
…. In my opinion the court has power to remedy the situation. Neither counsel who appeared before us argued to the contrary.
I consider that it can be said that the circumstances which have occurred have demonstrated “an error of a technical nature” by the sentencing court, even though at the time of imposing the sentence it could not be said that a hiatus between the two head sentences would arise. There is also a need to “supply a deficiency” in the sentencing order, in the sense that the sentencing order has made no provision for the situation which would arise if the first sentence were to expire before the specified commencement date.
………
It is not necessary in this case to explore the full scope of s 9A of the Act. I wish to make it clear that, in my opinion, s 9A is not a means of remedying any and every problem that may occur. In particular, it is not clear that it enables the passing of a completely new sentence, as distinct from the making of an order which affects the operation of a sentence already passed.
In R v Fraser[4] the section was used where the court was unaware of a breach of parole at the time of sentencing. In that matter, it was not apparently in dispute at the hearing that the court ought to revisit the manslaughter sentence imposed to recognise that a period of unexpired parole had to be served in addition to any sentence the court had imposed. So the application of section 9A was seemingly not contested. Accordingly Anderson J, revisited the sentence he had earlier imposed with the consent of both parties. The court then addressed the issue of the appropriate non-parole period imposed, and in doing so addressed the statutory test in the following terms:
[4] [2007] SASC 257.
There is some dispute over the appropriate length of the non-parole period. On 18 June 2007 I imposed a non-parole period of 3 years, with both the original sentence and the non-parole period being backdated to 20 April 2005. That was the date on which Mr Fraser was arrested and taken into custody. This meant that Mr Fraser had only a further 10 months to serve in custody from the date he was sentenced on 18 June 2007.
Mr Nitschke, counsel for the defendant, has submitted that while s 9A allows me to rectify the sentence by imposing the unexpired period of parole to be served from 18 June 2007, I must ensure that ultimately I impose a non-parole period that will result in Mr Fraser spending only 10 months in custody. Mr Nitschke submits that were I now to impose a greater non-parole period, this would in effect amount to re-sentencing, and that s 9A does not confer a power to re-sentence. He submits that s 9A merely allows me to rectify an error.
Cox J was faced with a similar situation in the matter of R v Porter (SCCRM-98-38). In that matter the defendant had been convicted of manslaughter and Cox J had not been made aware that the defendant had been on parole at the time of committing the crime. As in this case, counsel applied for the sentence to be rectified pursuant to s 9A to take into account the time remaining of the parole. In his ruling on the rectification of sentence, which he handed down on 3 February 1999, Cox J stated:
It remains, then, to impose an appropriate sentence for the manslaughter offence and to fix a non-parole period to embrace both that sentence, which must be cumulative on the activated sentences by virtue of the legislation… and, as I say, to fix a comprehensive non-parole period.
Cox J then increased the non-parole period. He makes it clear that this increase in the non-parole period relates to the portion of the sentence relating to the unexpired portion of parole and is not an increase in the non-parole relating to the sentence for manslaughter.
It is my view that a separate period of non-parole should be set for this unexpired period of parole. To take this approach in my view is not in any way re-sentencing Mr Fraser for the charge of manslaughter. On 18 June 2007 I handed down a sentence for manslaughter that required Mr Fraser to spend a further 10 months in custody for that offence. In rectifying Mr Fraser’s sentence, he will still be spending 10 months in custody for manslaughter, but he will also spend a further period in custody for his breach of parole.
I am not in any way re-evaluating the factors that I took into account in sentencing Mr Fraser for manslaughter. I do not view this as re-sentencing Mr Fraser. I regard it as an acceptable exercise of the powers conferred by s 9A. It seems to me that the section was enacted for this type of purpose. I consider that in the terms of s 9A what I am doing amounts to rectifying an error of a technical nature and also supplying a deficiency in the sentencing order.
Because of the view I have taken, it is not necessary to consider the decision in Question of Law Reserved on Sentence (No 1 of 1996) (1996) 67 SASR 90. In that case, Doyle CJ stated:
… it is not clear that [section 9A] enables the passing of a completely new sentence, as distinct from the making of an order which affects the operation of a sentence already passed.
As can be seen, Anderson J approached the matter on the basis that he was not interfering with either the original term of imprisonment or the non-parole period referable to that earlier term of imprisonment, but rather adding a new portion of non-parole period referable only to the unexpired parole that had been added to the overall term the appellant was to serve.
On the other hand, in R v Staltari[5] a judge sentenced an appellant without anyone being aware at the time that the appellant was liable to serve a period of unexpired parole that had been transferred from interstate to South Australia. The sentencing judge was asked to recall the matter and apply the unexpired period of parole. The judge rejected the application and the basis for its rejection was set out, with the implicit approval of the Court of Criminal Appeal, in the following terms:
It seems to me, having considered recently all of the relevant authorities with regard to the ambit of the powers given to the court under s9A of the Criminal Law (Sentencing) Act and related sections in the Summary Procedure Act 1921, and my attention having been brought this morning to the case of Question of Law Reserved on sentence (1996) 67 SASR 90, in particular to the Chief Justice’s comments at pp.93 and 94 of that case, I am forced to the view that I do not have the power under s9A of the Act to correct the error that has arisen in this case.
My reasons for saying that are that, having heard submissions from both counsel as to the procedure I need to undertake, it seems obvious to me that I will need to exercise afresh the sentencing discretion in relation to Mr Staltari at least in relation to whether the non-parole period ought to be extended.
There is another complication. Once the unexpired parole of one year six months and two days is added to the head sentence, it automatically follows that Mr Staltari will be liable to an increased head sentence. When I sentenced Mr Staltari in August last year, I took into account very many considerations which I thought were relevant at the time and devised a sentencing package in order to ensure that the ultimate sentence arrived at was not crushing for a man in his position. I took the view that, notwithstanding the sad and sorry history of his offending to that point, there was some chance that he may be able to take advantage of an extended period on parole and pull himself out of the cycle of offending and drug taking which he seemed to have fallen into at that time of his life.
For these reasons, some of the head sentences imposed and individual sentences were tailored to achieve the desired result.
In order to correct the error that has now arisen, I can see no other way around the problem, other than to go back to the beginning and resentence Mr Staltari, taking into account the new head sentence and any changed circumstances since August and the current date, that his counsel may wish to put to the court. For instance, it may be of relevance if I were to sentence afresh that Mr Staltari has used his time in prison usefully to attend courses and endeavour to rehabilitate himself. I just do not know about those matters. Although I am aware that this matter was delayed for a period of weeks - indeed, I think months, wasn’t it Ms Matson - to enable Mr Staltari to attend some course? So these things might be relevant on any resentencing exercise.
[5] [2007] SASCFC 337.
However, for all of the reasons I have given and particularly in light of the Chief Justice’s comment in Question of Law Reserved, I do not accept that I have the power under s9A of the Sentencing Act to rectify the error and the Director will have to take whatever action as he may be advised, if he wishes to correct it.

In Sullivan v Police[6] Kourakis J, as he then was, dealt with an appeal against sentence from a summary court wherein a magistrate had initially sentenced the appellant without being told there was a further period of unexpired parole that needed to be served. That matter had been called on before the magistrate and seemingly by consent, the magistrate had imposed the further period of unexpired parole, and revisited and extended the non-parole period.
[6] [2010] SASC 216.
Kourakis J simply cited Anderson J in R v Fraser to conclude that the Magistrate was empowered by s 9A of the Criminal Law (Sentencing) Act 1988 to vary the sentence which she had earlier imposed because she was, in the words of the section, merely ‘rectifying an error of a technical nature and correcting a deficiency in her earlier sentencing order.’ Again, the issue of whether section 9A had that scope was seemingly not the subject of argument.
Implicit in the decision must be that, in revisiting and extending the non-parole period, Kourakis J must have regarded the magistrate as imposing the extra portion of non-parole period as being solely referable to the extra period of parole that was now to be served. Otherwise, the issue of the appropriate overall length of non-parole, a key element of any sentence of imprisonment of more than 12 months, was being substantively and thus impermissibly reconsidered.
In R v Hussey[7] the Court of Criminal appeal considered a situation where in imposing a suspended sentence the sentencing judge had backdated the suspended sentence to account for time in custody. The court held there is no power to backdate a suspended sentence in those circumstances because were the suspension to be revoked at a future time the prisoner would be forced to serve the full suspended term of imprisonment, including, therefore, time for which he or she had by virtue of the backdating already served, but was being required to serve again. The court held that:
This was an appropriate case for the utilisation of s 9A of the Criminal Law (Sentencing) Act 1998 (SA) (“the Sentencing Act”). In cases where an error of a technical nature is made by a sentencing court, s 9A provides that the sentencing court may make orders to rectify to the error.
[7] [2013] SASCFC 41.
In R v Rajkovic the Court of Criminal Appeal considered a case where the original sentencing judge had not realised that the appellant by virtue of having committed a firearms offence while on bail was a Serious Firearms Offender. He had therefore not appreciated that a single sentence per section 18A of the Criminal Law (Sentencing) Act could not be imposed, and that certain different statutory sentencing considerations applicable to Serious Firearms Offenders needed to be considered.
When this came to the sentencing judge’s attention he purported to utilise section 9A to recall the sentence, correct the error and impose a sentence in accordance with the relevant sentencing provisions. The issue of the application of section 9A was conceded on appeal and again not subject to contested argument.
The court held that the judge’s actions amounted to re-sentencing the appellant and hence went beyond the scope of section 9A, the majority observing that:
(i)On the first sentencing, the Judge went directly to one global penalty for all offences that carried a potential term of imprisonment apparently by way of the “instinctive synthesis” approach[8]
(ii)On the second sentencing, the Judge employed the same approach with the s 18A offences but sentenced separately for the cut down shotgun offence. In order to do so, his Honour had to consciously disentangle from the previous global sentence a portion which reflected an appropriate stand-alone penalty for the cut down shotgun offence.
(iii)On the first sentencing, the Judge allowed a discount of approximately 26 per cent for all pleas: some being entitled to up to 30 per cent discount and others being entitled to up to 40 per cent discount.
(iv)On the second sentencing, the Judge allowed for separate and different sentencing discounts (of 27 per cent and 21 per cent) which, taken together (and after allowing for some concurrency), allowed for a mathematical result that did not differ from the first sentence.
(v)On the second sentencing, with respect to the separate sentence imposed for the cut down shotgun, the Judge was obliged to have regard to considerations, at the least, additional to those usually taken into account when determining whether or not to suspend.
[8] The CCA cited McHugh J in Markarian v The Queen (2005) 228 CLR 357.
In Ditroia v Police[9] when sentencing an appellant to 7 months imprisonment the sentencing magistrate omitted to grant the appellant credit for an isolated week of custody he had served shortly after his arrest. Allowing the appeal for the purposes of granting the overlooked credit, Gray J opined that:
Had the Magistrate been advised that a period in custody had not been brought to account and that the police were consenting to the sentence being amended, it might be expected that the Magistrate would have exercised his powers under section 9A of the Sentencing Act.[10]
[9] [2014] SASC 27.
[10] Citing R v Hussey [2013] SASCFC 41; R v Staltari [2007] SASC 337; R v Brooks and Childs (2006) 95 SASR 369; R v Fraser [2007] SASC 257.
Implicit in this decision must be that Gray J considered that the omitted credit was so small, proportionate to the overall sentence, that it could be re-credited without needing to readdress any other or general sentencing consideration.
In the matter of R v Sansone,[11] counsel had wrongly informed the sentencing judge as to the time spent in custody and subsequently requested that the matter be called back on for the sentence to be revisited pursuant to section 9A. The sentencing Judge declined to do so. The Court of Criminal Appeal made no adverse comment as to that approach, expressed no view as to whether it was a proper application of the scope of section 9A, and proceeded to dispose of the matter on the basis that the appellant had been sentenced on a “materially incorrect factual basis.”
[11] [2015] SASCFC 168.
In R v Kuci[12] the sentencing judge had intended to allow the appellant a 10% discount on his sentence on account of the timing of the plea, but made an arithmetical error in calculating the 10%. The Court of Criminal Appeal held that such an error was a technical error as contemplated by section 9A and should therefore have been corrected pursuant to section 9A, and simply corrected the arithmetical error themselves.
[12] [2016] SASCFC 136.
In R v Hudson[13] the Court of Criminal Appeal considered a case wherein the sentencing judge had forgotten to allow credit for a period the appellant had spent in custody upon the appellant’s initial arrest and prior to eventual release on bail. Both counsel had opposed the sentencing judge revisiting the matter pursuant to section 9A. The Court of Criminal Appeal expressed no view on whether section 9A would permit such an exercise, as for various reasons the Court of Criminal Appeal preferred to simply allow the appeal on the basis of the admitted error and re-sentence the appellant.
[13] [2016] SASCFC 60.
I draw from this brief review of the more recent cases, in particular those cases that involved the initial sentencing court omitting to grant credit that should have been granted, the following principles:
1.Section 9A does not authorise the original sentencing court to embark on anything that can be characterised as a new sentencing process for the offending in question.
2.However, where the court determines that granting the credit will amount to a mathematical process not requiring the court to revisit any general sentencing considerations concerning any other aspect of the sentence, then the error or deficiency may be revisited to grant the credit.
3.On the other hand, where the omitted credit is such that any general sentencing considerations or discretions need be revisited, or where other aspects of the sentence need to be consequently reconsidered, and is therefore more than a simple mathematical process of re-crediting omitted periods, it will ordinarily constitute a new sentencing exercise.
4.Where the application of the credit also requires the non-parole period to be addressed, where it is appropriate to do that by reference solely to the credit and not with reference to any more general and overarching considerations, there is authority for the proposition that may occur by way of section 9A.
5.Where the application of the credit requires the non-parole period to be addressed but in doing so sentencing principle requires, in the circumstances of the case at bar, reference to any more general and overarching considerations, then that will ordinarily amount to a new sentencing exercise.
6.Where addressing the omitted credit would amount to a new sentencing exercise, section 9A does not authorise the original sentencing judge to undertake such an exercise and a remedy will only available be available on appeal.
7.Hence, in any case where an application is made to the original sentencing judge to revisit a sentence and allow omitted credit, it seems to me that the judge would ordinarily need to consider
a.      Firstly, whether indeed credit has been wrongly omitted or overlooked;
b.      Then assess whether in addressing the omitted credit in the instance of the case at bar, the court will simply be embarking on a process of crediting an omitted period that legitimately would not involve revisiting general sentencing considerations, discretions or any other aspects of the sentence, and
c.      Part of the exercise required may thus involve an assessment of the nature and extent of the omitted credit in particular for example its proportionality to the existing sentence, the degree to which it is bound up with or discrete from other aspects of the sentence, and hence whether crediting the omitted period will necessitate substantively considering other aspects of the sentence such as a non-parole period in a general way, rather than an isolated-only-to-the-credit way.
May section 9A be utilised in the case at bar
The credit in question here is material, being five months of custody on the unrelated matter.
The sentence the court imposed in the case at bar was imposed in the knowledge of the time the accused had actually spent in custody for the unrelated matter, whilst not formally giving credit for it.[14]
[14] As referenced in the course of sentencing; “You initially spent 11 days in custody, then spent three months and eight days on home detention bail. You were then detained in relation to separate alleged offending and on the current matter, bail was revoked on 11 May this year. It is agreed that you receive credit for the 11 days initial custody and subsequent home detention, then the sentence be backdated to the day that your bail was revoked for the current matter; that is, 11 May 2016. The court will therefore allow you one month credit for your initial custody and home detention bail and then backdate any sentence imposed today to commence on 11 May 2016.”
Where the court is asked to have regard to a period of unrelated custody and allow formal credit for it, the authorities recognise that full credit is not automatic and consideration must hence be given to the degree of credit to be given and there are discretionary considerations.[15] That itself involves an evaluation of the respective offending and the accused.
[15] R v Collins [1997] SASCFC S6096, R v Malesovic [1999] SASC 321
Also, an element of the sentencing that took place was a consideration of the appropriate length of the non-parole period that should be served, having regard to the full range of considerations relevant to such issue.
One such issue was the state of Mr Bol’s situation at the time of sentence, with regard to his rehabilitation and consequently the appropriate further time he should spend in custody relative to parole.
I cannot say that had the court formally given credit for the time spent in custody on the unrelated matter, so as to backdate the commencement of the sentence a further 5 months or some proportion of that, that the non-parole period would necessarily have been exactly the same, and if it were varied whether the resulting non-parole period ought to have the same proportionate relativity to the head sentence as currently exists.
Were the court to grant that credit, in all the circumstances of this particular case, the non-parole period would need reconsideration, and would have to consider issues akin to those facing the sentencing judge in the matter of R v Staltari which would mean that the court would, in revisiting and considering that issue, at least to a that extent, be embarking on a new sentencing process.
Hence, in the circumstances of this case, in my view I have no power to revisit the sentencing process to address the issue of credit for his unrelated offending.
A further consideration – counsel’s election not to pursue credit during the original sentencing process
Further, whilst I have only heard some and not full argument on it, and accordingly do not hold it against Mr Bol’s application, there may well be policy reasons why it is inappropriate to allow Mr Bol to return to the completed sentencing process long after its finalisation, to reclaim credit he elected to preserve for the contingency of another charge, after the other charge has resolved without the need to utilise the preserved credit.
There are obvious reasons why this practice is undesirable.
For completeness however, I should indicate that at in the course of the current application the court gave defence counsel the opportunity to say, if they wished to do so, why at the earlier hearing they had agreed that the appropriate course was to not take into account credit for the unrelated matter and he replied:
MR GAITE:       ….     It was just the bail was revoked on 11 May, on the day of the verdict, and that seemed to be an appropriate date to commence the sentence having regard to the fact that the other proceedings hadn’t been determined and that the Crown would have had a pretty good argument that the appropriate commencement date was the date that the bail had been revoked rather than taking into account the time on the other matter. That matter hadn’t been determined.
It would have been a different situation if the matter had already been determined. It would have been a different approach taken. It was squarely raised that there was this period of time in custody and whether or not it could be taken into account and then your honour indicated well it might be taken into account later on and we left it at that.
HIS HONOUR:                I have read the transcript and I certainly didn’t form any view about it. I raised it and counsel seemed to agree and I was happy to abide by counsel’s agreed position, as certainly that was a position that could lawfully be taken. No-one asked me to go any further than that and in the transcript it records the discussion being to the effect that, well, that credit is now there, if necessary, to be used in the other matter.
MR GAITE:  Yes.
HIS HONOUR:                I would be happy to reconsider the sentence if I had the power to do it.
A little later defence counsel returned to the topic, and whilst I will not set it all out, one factor that seemed to have played a part in the decision to agree not to claim the unrelated credit for this matter, was that defence counsel thought the prosecution might oppose that, and if they did would have a good argument that it not be utilised in the current matter. Defence counsel ultimately answering the direct question as to why he agreed, in the following terms;
MR GAITE: Because it seemed to be the position of the law given that the other matter had not yet been determined, an argument that the commencement date should be the date when bail was revoked, that is why.
In light of the view I have taken that section 9A does not authorise me to revisit the sentence, it is unnecessary to decide this supplementary issue. I have set it out to assist should it become relevant at a later time.
Conclusion
In all the circumstances of this matter, during the initial sentencing process counsel agreed that Mr Bol not be formally credited with time he spent in custody on an unrelated matter.
In the circumstances of this case, to revisit the sentence and credit Mr Bol with that time at this stage would in the particular circumstances of this case require a reconsideration of the overall sentence more generally, particularly the non-parole period, such that is would amount to a re-sentencing process. Section 9A of the Criminal Law (Sentencing) Act does not authorise a sentencing court to undertake that process.
The application pursuant to section 9A is dismissed.