R v Curley
[2002] WASCA 257
•5 SEPTEMBER 2002
R -v- CURLEY [2002] WASCA 257
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 257 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:80/2002 | 5 SEPTEMBER 2002 | |
| Coram: | MURRAY J WHEELER J BURCHETT AUJ | 5/09/02 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| A | |||
| PDF Version |
| Parties: | THE QUEEN STANLEY RONALD CURLEY |
Catchwords: | Criminal law and procedure Sentencing Backdating of sentences Proper interpretation of sentences imposed on two occasions, both backdated to a common date |
Legislation: | Sentencing Act 1995 (WA), s 87 |
Case References: | Forde v R [1999] WASCA 243 Ratcliff v R, unreported; SCt of WA; Library No 980651; 3 November 1998 Dinsdale v R (2000) 202 CLR 321 R v Atkin [2001] NSWCCA 54 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : R -v- CURLEY [2002] WASCA 257 CORAM : MURRAY J
- WHEELER J
BURCHETT AUJ
- Appellant
AND
STANLEY RONALD CURLEY
Respondent
Catchwords:
Criminal law and procedure - Sentencing - Backdating of sentences - Proper interpretation of sentences imposed on two occasions, both backdated to a common date
Legislation:
Sentencing Act 1995 (WA), s 87
Result:
Appeal dismissed
(Page 2)
Category: A
Representation:
Counsel:
Appellant : Mr K M Tavener
Respondent : Mr M R Hall
Solicitors:
Appellant : State Director of Public Prosecutions
Respondent : JD Hawkins & Associates
Case(s) referred to in judgment(s):
Forde v R [1999] WASCA 243
Ratcliff v R, unreported; SCt of WA; Library No 980651; 3 November 1998
Case(s) also cited:
Dinsdale v R (2000) 202 CLR 321
R v Atkin [2001] NSWCCA 54
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1 MURRAY J: This is an appeal by the Crown against two sentences, one of 15 months imprisonment and one of 18 months imprisonment, to be served concurrently. The sentences were imposed in the Children's Court in Perth on 17 April 2002 for offences of burglary and aggravated burglary respectively. When imposing sentence, her Honour, the President of the Court, who had had discussion with counsel in respect of the question of backdating the term, said that she calculated that the respondent had been in custody on remand for a particular period which could be said to commence on 30 November 2001.
2 In relation to the two offences for which sentence was imposed on 17 April 2002, her Honour made it clear that, conscious of what had occurred before, and I will come to that in a little more detail shortly, as her Honour put it in the context of the history:
"And so the bottom line for you is another 18 months served at the same time as your present term, but it is backdated until 30 November 2001, so you will probably have a bit tacked on to your present sentence, just a little bit."
3 The appeal against those sentences is brought upon a ground that the learned sentencing Judge erred in the application of s 87 of the Sentencing Act 1995 (WA) by backdating the respondent's sentence to 30 November 2001. The particulars given are:
"(a) In backdating the total sentence, the learned sentencing Judge was not entitled to take into account the period between 25 February 2002 to 17 April 2002 during which the respondent was in custody because he was serving a sentence of imprisonment.
(b) The learned sentencing Judge was not entitled to backdate the total sentence by taking into account the respondent's time spent in custody between 19 November 2001 and 25 February 2002 because the respondent had already been given credit for this period in sentences imposed on 25 February 2002 for other offences."
4 To understand the way the ground is put and those particulars it is necessary to understand something of the chronology of the case. The respondent committed a series of offences. Those offences were firstly, committed on 4 March 2001, an offence of burglary, one of the two for which sentence was passed on 17 April 2002. The second offence he
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- committed was on 18 August 2001. On the first occasion it was an aggravated form of burglary; on this occasion an offence of burglary without any circumstance of aggravation. That was the second of the two offences for which sentence was passed on 17 April 2002.
5 Then there were a series of other offences committed on 15 October, 18 October, 22 October, two offences on 23 October, two offences on 14 December and three offences on 17 December 2001. So the total offences committed were, six offences of burglary, an offence of being unlawfully on premises, an offence of damaging property, two offences of stealing a motor vehicle, an offence of giving a false name and address to a police officer and, finally, an offence of escaping legal custody.
6 By the time the respondent came before the Children's Court for sentence he was an adult. He had his 18th birthday on 13 January 2002 and by the time he was sentenced first on 25 February 2002 he had accumulated some 97 days in custody on remand. He had first been committed in custody on remand on 24 October 2001 and remained in custody until 27 November 2001, had then been again released on bail and finally apprehended on 12 December 2001. Thereafter he remained in custody until sentenced on 25 February 2002.
7 The sentencing Judge at that time calculated the period and imposed on 25 February, for all the offences that I have described, except the two burglaries first committed, sentences aggregating 18 months imprisonment. Her Honour backdated those sentences for a period of 97 days. All were to be served concurrently and parole eligibility was ordered. The calculation back for a period of 97 days produces a commencement date of 30 November 2001.
8 Having regard to what her Honour said on that occasion and on 17 April 2002, it is abundantly clear that her Honour had in mind that for the total offences committed during 2001, which I have described, the appropriate punishment was a period of 18 months imprisonment with parole eligibility.
9 It matters not for present purposes why all the sentences were not imposed on 25 February 2002, but the fact that they were not creates a difficulty to which I shall come shortly. However, it was the case, as I have said, that on 17 April 2002 the respondent was again before the court to be sentenced for the two offences of burglary not thus far dealt with and her Honour made it perfectly clear that she did not wish to impose any punishment in respect of those offences additional to the punishment
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- imposed on 25 February. So again her Honour ordered concurrent service of the terms of 15 months and 18 months imprisonment that she imposed and her Honour backdated those sentences also to 30 November 2001.
10 The question of backdating is dealt with in the Sentencing Act 1995 s 87. As this Court made clear in Ratcliff v R, unreported; SCt of WA; Library No 980651; 3 November 1998, that section provides the court with a discretion to take into account time spent in custody in respect of an offence for which the offender is before the court, "and for no other reason". If the Court sentencing the offender decides that the time should be taken into account, it may do so, the section provides, if it imposes a fixed term, by reducing that term by an appropriate period, or alternatively by ordering that the term it imposes is to be taken to have begun on a specified day, being the day when that custody began, or on some later date that is not later than the date of the sentence.
11 So there is a flexibility there in the way that the time spent in custody can be taken into account, if, as in this case, her Honour thought it was proper to do so. It is of course the case that because the section only allows time spent in custody in respect of the offence before the court "and for no other reason" to be considered, time spent in custody serving a sentence in respect of another matter may not be taken into account. This Court confirmed that view of the provision in the case Forde v R [1999] WASCA 243.
12 So the difficulty that was created for her Honour in this case was that from 25 February until 17 April 2002 the respondent had been a sentenced prisoner in respect of those offences for which he was sentenced on 25 February. It would, as it turns out, have been more convenient for her Honour to have deferred all the sentencing if she was not able to totally dispose of the sentencing process on 25 February 2002. That would have enabled her Honour to come to the matter and take the course of backdating which was ultimately essayed, on 17 April 2002, but to do so in respect of all the offences for which the respondent had been sentenced.
13 If I may first turn to the particular (b) of the ground, it seems to me that that is not a ground which could be made out in terms of the law as it is provided by s 87. I am of the view that s 87 will apply perfectly well when an offender is being sentenced to imprisonment for a series of offences, in respect of time spent in custody in respect of those offences. The caveat, "and for no other reason", in my opinion applies to time spent
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in custody serving other sentences of imprisonment rather than on remand.
14 The matter referred to in particular (a) of the ground, however, as it seems to me, expresses a proposition which as a matter of law is absolutely right. The period spent in custody between 25 February and 17 April 2002 was spent, not only in relation to the remands applicable to the two offences for which sentence was passed on 17 April 2002, but also for the reason that the sentences imposed on 25 February 2002 were being served.
15 However, it seems to me that that does not lead to the conclusion that this appeal should be allowed. In my opinion the way in which her Honour expressed herself results in a conclusion of law in these terms: on 17 April 2002 her Honour imposed two concurrent terms of imprisonment of 18 months and 15 months respectively, but in each case reduced by the period from 25 February 2002 to 17 April 2002 and further reduced by the fact that her Honour could properly make allowance for time previously spent in custody on remand which gave a commencement date of 30 November 2001.
16 I have not done the mathematics but the effect that her Honour produced could in the rather unusual circumstances, in my opinion, lawfully be supported by the application of s 87. What her Honour was effectively doing, it seems to me, was imposing fixed terms reduced by a period expressed in the way that she did. On 17 April 2002, her Honour imposed sentences the length of which was 18 months and 15 months, less the period from 25 February 2002 to 17 April 2002, to be served concurrently from 30 November 2001.
17 The Crown has brought the appeal seeking a resolution of the confusion inherent in the process which her Honour adopted and the terms in which her Honour announced the sentences, rather than to seek any increase in the term imposed overall. In my opinion, having regard to all the circumstances and for those reasons, the appeal should be dismissed.
18 WHEELER J: I am in agreement with the conclusions expressed by Murray J and for the reasons which his Honour has given. In particular it seems to me that s 87 of the Sentencing Act is not intended to be read when one looks at the expression "when an offender is being sentenced to imprisonment for an offence". By having regard narrowly to the moment, the instant of sentencing. It seems to me it is appropriate in the circumstances of this case to regard each of the occasions on which the
(Page 7)
respondent presented himself for sentence as being part of one sentencing exercise.
19 BURCHETT AUJ: I also agree. In my opinion the right way to interpret what happened here is to see it, as Mr Hall submitted, as one sentencing exercise spread over two court appearances. It would have been preferable to have stood the sentencing on the earlier appearance over to the time of the later and to have sentenced for all matters at the one time, properly utilising the totality principle, but that was not done. In the circumstances, however, the consequence was not of a kind to fall within the comparatively rare range of cases in which Crown appeals should be allowed. The resulting effective sentence was just what would have been imposed had the court adhered to the alternative procedure I have mentioned.
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