R v Deng - [2015] SASCFC 176

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v DENG
[2015] SASCFC 176
Judgment of The Court of Criminal Appeal
(The Honourable Justice Kelly, The Honourable Justice Blue and The Honourable Justice Nicholson)
27 November 2015
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - BURGLARY, HOUSEBREAKING AND LIKE OFFENCES - ENTERING AS TRESPASSER OR WITH INTENT OR BEING FOUND WITH INTENT
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - COMMENCEMENT
Appeal against sentence. After pleading guilty, the appellant was sentenced on 6 August 2015 for the offences of aggravated serious criminal trespass in a place of residence, theft and stating a false personal detail. The appellant was sentenced to 21 months for the offence of aggravated serious criminal trespass (reduced from three years as a result of his early guilty plea), six months imprisonment for the offence of theft and a conviction was recorded without penalty for the offence of stating a false personal detail. The Judge fixed a non-parole period of 10 months. The sentence was ordered to commence on 6 August 2015, with the Judge observing that the period of a little over five months spent in custody on remand had been taken into account when fixing the sentences.
The grounds of appeal are that the sentence imposed was manifestly excessive and that the Judge erred by failing to backdate the commencement of the sentence to 1 March 2015, being the date the appellant was arrested and taken into custody.
Held per Blue J and Nicholson J (Kelly J agreeing) allowing the appeal:
1. The Judge erred in the manner by which the sentences imposed were constructed and failed to properly account for the time in custody on remand.
Held per Nicholson J (Kelly J and Blue J agreeing):
2. The original sentence is set aside and the appellant is resentenced with a head sentence of two years and six months, with a non-parole period of 10 months. The sentence is backdated to commence on 1 March 2015.
Criminal Law Consolidation Act 1935 (SA) s 134, s 170; Criminal Law (Sentencing) Act 1988 (SA) s 10B, s 10C, s 18A, s 30; Summary Offences Act 1954 (SA) s 74A, referred to.
Frank v Police [2000] SASC 245, (2000) 77 SASR 273; R v Newman (2004) 145 A Crim R 361, discussed.
R v Franceschini [2015] SASCFC 116; Strugnell v Police [2007] SASC 33; R v McPhee [2014] SASCFC 107; R v Wakefield [2015] SASCFC 10; R v Dwyer [2015] SASCFC 12; R v Nguyen [2015] SASCFC 40; R v Dwyer [2015] SASCFC 12; R v Copeland (No 2) [2010] SASCFC 61, (2010) 108 SASR 389; R v Delfin (2001) 79 SASR 429; R v McHugh (1985) 1 NSWLR 588; R v McPhee [2014] SASCFC 107; R v Tilley [2010] SASCFC 73; R v Wakefield [2015] SASCFC 10; R v Nguyen [2015] SASCFC 40, considered.

R v DENG
[2015] SASCFC 176
Court of Criminal Appeal: Kelly, Blue and Nicholson JJ
KELLY J.

I would allow the appeal. I agree with the reasons of Nicholson J and the orders his Honour proposes.
BLUE J.
This is an appeal against sentence.
On 1 March 2015, the appellant, Yuot Bior Deng, opportunistically entered onto a house property at Brompton. The residents were asleep. He reached in through the open back door of the house and stole a packet of cigarettes, a laptop, iPod and mobile phone. The residents were disturbed by his entry, chased him and called the police.
On the same day, the police arrested the appellant. He made full admissions although he provided a false personal detail. He was charged with aggravated serious criminal trespass in a place of residence,[1] theft[2] and stating a false personal detail to a police officer.[3]
[1]    Criminal Law Consolidation Act 1935 (SA) s 170(1).
[2]    Criminal Law Consolidation Act 1935 (SA) s 134.
[3]    Summary Offences Act 1953 (SA) s 74A(3)(b)(i).
The appellant remained in custody until he was sentenced.
On 30 March 2015, at the first hearing of the charges in the Magistrates Court, the appellant pleaded guilty and was committed for sentence by the District Court.
On 6 August 2015, the appellant was sentenced to imprisonment for 21 months, reduced from three years on account of his early guilty pleas, on the aggravated serious criminal trespass charge, imprisonment for six months to be served concurrently on the theft charge, and convicted without penalty on the state false detail charge. A non-parole period of 10 months was fixed. The sentences of imprisonment and non-parole period were to commence forthwith.
The appellant appeals by permission on the grounds that the sentences are manifestly excessive and the Judge erred by failing to backdate their commencement to 1 March 2015.
Further details of the relevant facts, the sentencing Judge’s remarks and issues on appeal are set out in the reasons for judgment of Nicholson J.
Interaction of discounts for guilty pleas and time served
When a defendant has spent time in custody on remand for the offences for which he or she is ultimately sentenced, section 30(2) of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act) provides that the sentencing judge may take that time into account and either make an appropriate reduction in the term of the sentence or direct that the sentence will be taken to have commenced on the day on which the defendant was taken into custody or some intermediate day. Section 30(6)(b) provides that, in default of the sentencing judge specifying the date of commencement of the sentence, the sentence will be taken to have commenced on the date on which the defendant was (last) taken into custody.
Although the use of the word “may” suggests that the sentencing judge has a discretion whether to grant any credit and if so how much, it is almost universal sentencing practice to give the defendant credit for the full time spent, more often than not calculated to the day, in one of the two ways authorised by the section.
While the sentencing court has a discretion whether to give credit by backdating or reduction, at least when the time spent in custody is continuous, the manifestly preferable course is to backdate the sentence and non-parole period.[4] This is reflected in its having become a much more common practice in recent years to backdate the sentence and non-parole period in these circumstances than to reduce their length.
[4] R v McHugh (1985) 1 NSWLR 588 at at 590-591 per Street CJ (with whom Hunt and Enderby JJ agreed); R v Newman [2004] NSWCCA 102, (2004) 145 A Crim R 361 at [27], [29], [30], [31], [32] per Howie J (with whom McColl JA agreed); R v Tilley [2010] SASCFC 73 at [24] per Duggan J (with whom Anderson and Peek JJ agreed).
Giving credit by backdating rather than reduction has two principal advantages.
1.It promotes accuracy and transparency of the record in that the substantive and nominal length of the sentence and non-parole period are the same. This in turn avoids false perceptions as to the true extent of the sentence and false appearances of disparity between nominal sentences when the substantive sentences are the same and vice versa.[5]
2.It promotes transparency of the sentencing remarks, making obvious both the fact and extent of credit being given and avoids subsequent arguments.[6]
[5] R v McHugh (1985) 1 NSWLR 588 at at 590-591 per Street CJ (with whom Hunt and Enderby JJ agreed); R v Newman (2004) 145 A Crim R 361 at [27], [30] per Howie J (with whom McColl JA agreed); R v Tilley [2010] SASCFC 73 at [24] per Duggan J (with whom Anderson and Peek JJ agreed).
[6] R v Newman (2004) 145 A Crim R 361 at [29] per Howie J (with whom McColl JA agreed).
The following remarks of Howie J (with whom McColl JA agreed) in R v Newman[7] are highly apposite in the present case:
The practice of backdating the sentence also makes it obvious to the offender that he, or she, has received a reduction in the sentence for the period already spent in custody. It ensures that there can be no argument, such as is now presently before this Court, as to whether the discount was in fact given even though the sentencing judge said that the time served in custody was taken into account in the sentence imposed…
…
I accept that the approach that was advocated in McHugh is a matter of practice and that a sentencing judge has a discretion as to how to take into account pre-sentence custody... But it should be emphasised once again that backdating is the preferable course and it should be adopted unless it is clearly inappropriate to do so…
The present case is a good example of why the practice laid down in McHugh should continue to be applied...[8]
[7] (2004) 145 A Crim R 361 at [29] per Howie J (with whom McColl JA agreed).
[8] At [29], [32], [33].
Section 10C(2)(a) of the Sentencing Act provides:
(2) If a defendant has pleaded guilty to an offence or offences—
(a) not more than 4 weeks after the defendant first appears in a court in relation to the relevant offence or offences—the sentencing court may reduce the sentence that it would otherwise have imposed by up to 40%;
It is now clearly established that, when a defendant pleads guilty at the first appearance in court entitling the sentencing court to reduce the sentence that it would otherwise have imposed by up to 40%, ordinarily (in the absence of good reason to the contrary) the sentencing judge should allow the full reduction or very close to the full reduction available. [9]
[9] R v McPhee [2014] SASCFC 107 at [46] per Nicholson J (with whom Vanstone and Blue JJ agreed); R v Wakefield [2015] SASCFC 10, (2015) 121 SASR 569 at [53]-[56] per Blue J (with whom Kourakis CJ and Peek J agreed) R v Dwyer [2015] SASCFC 12, (2015) 121 SASR 587 at [34] per Stanley J (with whom Kourakis CJ and Gray J agreed); R v Nguyen [2015] SASCFC 40 at [16]-[18] per Nicholson J (with whom Sulan and Lovell JJ agreed).
In matters to which sections 10B and 10C apply and the defendant is eligible for consideration of credit for time served under section 30, in those cases in which backdating is an available option any credit for time served should be given by way of backdating rather than reduction. If for some reason backdating is not an available option and it is determined to reduce the period of imprisonment on account of both the guilty plea and the time served, it is essential that the sentencing judge identify the original starting point and the amount of the reductions on account of the guilty plea and time served. The reasons can be illustrated by an example.
Assume that A and B each plead guilty to identical offences at the first appearance in court on 1 January and are therefore each entitled to consideration of a reduction of up to 40%, and each spend 5 months in custody on remand until sentenced on 1 June. They are sentenced by two different judges. Each judge determines that an appropriate starting point for the sentence before taking into account the guilty plea or time spent in custody is imprisonment for 10 months.
Assume that the first judge decides to give A credit for time served by backdating. If the judge would otherwise have imposed a sentence of imprisonment for 10 months backdated to 1 January, the maximum discount available for the guilty plea would be four months. Assuming the maximum is allowed, the actual sentence imposed on A would be one of imprisonment for six months backdated to 1 January. The sentence would expire on 1 July.
Assume that the second judge decides to give B credit for time served by reducing his sentence of imprisonment by five months on account of time spent in custody. From a starting point of imprisonment for 10 months, the sentence becomes one of imprisonment for five months. Without reaching any conclusion on the issue of construction, it would then be arguable that the “sentence that [the sentencing court] would otherwise have imposed” within the meaning of section 10C(2)(a) is five months rather than 10 months. If so, the maximum discount available for the guilty plea would only be two months. Assuming that the maximum discount were allowed, the resultant sentence imposed on B would be three months commencing on 1 June. The sentence would expire on 1 September. This result is manifestly unfair to B compared to A.
Even if in B’s case the “sentence that [the sentencing court] would otherwise have imposed” within the meaning of section 10C(2)(a) on its true construction is 10 months, there is an obvious danger that the sentencing judge will calculate the discount for the guilty plea as being 40% of five months.
In those cases in which a defendant is entitled to consideration of credit for both a guilty plea and time served, it is important that the starting point and the manner of calculation of the credits be identified by the sentencing judge.
The sentencing discretion miscarried
It is clear from the sentencing remarks that the Judge intended to allow to the appellant the maximum discount available on account of the early guilty plea and a full reduction on account of the time spent in custody.
The former is apparent from the Judge’s statement immediately before identifying the sentence to be imposed:
… you pleaded guilty at the first appropriate opportunity and you are entitled to a 40% discount from your sentence on account of that.
The latter is apparent from the Judge’s statement immediately after imposing the sentence coupled with the general practice of sentencing judges of allowing credit for the full time spent in custody (subject only to rounding down on occasions to give a full number of months or weeks) and the Judge saying nothing to indicate that he was not following the general practice or giving any reason for not doing so. The Judge’s statement was:
I have taken into account, in fixing the sentences, the time you have already spent in custody in relation to this matter.
However, the sentence actually imposed did not on any view reflect the Judge’s intention. If the Judge adopted a starting point of imprisonment for three years and five months, the maximum discount available on account of the early guilty plea was 40% of 41 months being 16 months and two weeks. However, the judge allowed a discount of only 15 months.
A starting point of imprisonment for three years and five months is an improbable starting point. While a starting point of imprisonment for three years and six months is not improbable in itself, a reduction of five months and five days for time spent in custody would not lead to a sentence of imprisonment for three years because it is not the practice to make a reduction for more than the time spent in custody and it is doubtful that this would be authorised in any event by section 30 of the Sentencing Act.
These considerations suggest that the Judge did not adopt a specific starting point before taking into account time spent in custody but merely arrived at the period of imprisonment for three years after taking it into account in a generalised manner as part of a holistic instinctive synthesis. If so, the Judge erred. For the reasons given in the previous section, because of the interaction between sections 10C and 30 of the Sentencing Act, it was incumbent on the Judge to adopt a specific starting point before taking into account time spent in custody. In addition, on this hypothesis the Judge failed to allow the full 40% discount for the early guilty plea contrary to his expressed intention.
Fresh exercise of sentencing discretion
I agree with Nicholson J as to the fresh exercise of the sentencing discretion by this Court.
I agree with the orders proposed by Nicholson J.
NICHOLSON J.
Introduction
Yuot Bior Deng has appealed against a sentence of imprisonment for 21 months with a non-parole period of ten months imposed in the District Court on 6 August 2015.
On 1 March 2015, the appellant committed the offences of aggravated serious criminal trespass in a place of residence[10] the maximum penalty for which is life imprisonment, theft[11] the maximum penalty for which is imprisonment for ten years and providing a police officer with a false personal detail[12] the maximum penalty for which is a fine of $2,500 or imprisonment for three months. The serious criminal trespass offence was aggravated because at the time the appellant committed the offence the residents were present and the appellant knew of their presence. The property stolen was a laptop computer, an iPod, a mobile telephone and a packet of cigarettes.
[10] Contrary to section 170(1) of the Criminal Law Consolidation Act 1935.
[11] Contrary to section 134 of the Criminal Law Consolidation Act 1935.
[12] Contrary to section 74A(3)(b)(i) of the Summary Offences Act 1953.
The circumstances of the offending can briefly be described. The appellant was out for “a run” during the night in question. Whilst running through the streets he observed a packet of cigarettes on a table on the patio, and near the backdoor, of the victims’ house. He jumped the fence to steal the cigarettes. The backdoor was open and he could see the occupants asleep. The laptop and the other items stolen were on a table inside the door. It appears not to be disputed that he reached through the doorway with his arm and grabbed the items. As he did so a speaker to which the laptop had been wired fell to the floor. The occupants awoke and chased the appellant down the street. They followed him to a nearby school. The police apprehended and then arrested the appellant that same night. The stolen items were located in the school premises and returned to the owners undamaged.
The appellant has remained in custody since his arrest on 1 March 2015. He made full admissions to the police although he, at first, provided a false personal detail. The appellant pleaded guilty to all three offences, as charged, in the Magistrates Court and at the first available opportunity. As a result, he became entitled to a discount with respect to any sentence of imprisonment imposed of up to 40 per cent.[13]
[13] Section 10B of the Criminal Law (Sentencing) Act 1988.
The Judge’s approach to sentence
The Judge noted that the appellant was aged almost 22 years at the time of sentencing, that he had come from the Sudan as an unaccompanied refugee minor in 2005 and that whilst in the Sudan he had witnessed and been subjected to the most terrible experiences some of which his Honour recounted. The Judge summarised the appellant’s extremely difficult personal circumstances. The Judge noted that the appellant had a significant prior criminal record both as a minor and as an adult.
The Judge then sentenced the appellant in the following manner.
In relation to the charge of aggravated serious criminal trespass, I would have imposed a sentence of imprisonment of three years. I will reduce that by 40 per cent to a sentence of 21 months.
On the charge of dishonestly taking property, you will be imprisoned for six months[14] to be served concurrently.
In relation to the charge of state false personal detail, you will be convicted without penalty.
I fix a non-parole period of ten months, which is especially low, to permit you to avail yourself of the Integrated Housing Exits Program.
I have taken into account, in fixing the sentences, the time you have already spent in custody in relation to this matter.
His Honour ordered that the sentence was to commence forthwith, that is, the day of sentencing which was some five months and five days after the appellant was taken into custody on 1 March 2015.
[14] I note that no express indication is given as to whether this figure of six months also was arrived at after application of a 40 per cent discount. In the circumstances, a starting point of ten months, is suggested.

The Judge had earlier observed that the appellant had previously spent 14 months in custody on remand having been charged with an offence with respect to which the prosecution ultimately entered a nolle prosequi. This understandably had left the appellant with a sense of confusion and of grievance. The appellant committed the offences presently under consideration approximately three months after being released from prison in late 2014. The Judge, with respect, correctly observed that he was not as a matter of law able to give the appellant any direct credit for the 14 months spent in custody. However, his Honour indicated that he would take it into account as part of the appellant’s general background and as having shaped his perceptions including “a feeling of injustice of having spent time in custody for something [he had not] been found guilty of”.
The appellant raises two grounds of appeal. The first complaint is that the sentence imposed was manifestly excessive. The second complaint is that the Judge erred by failing to backdate the commencement of the sentence to 1 March 2015, being the date on which the appellant was arrested and detained in custody.
Consideration
Permission to appeal on both grounds was given by a single Judge of this Court. The prosecution conceded, at the hearing of the appeal, that it should be allowed on the basis of the second ground. I agree that the appeal should be allowed and the appellant resentenced.
The question whether the sentence is manifestly excessive is complicated by the problem surrounding the manner by which the Judge dealt with the five months and five days spent in custody by the appellant prior to being sentenced. However, given that the appeal should be allowed in any event, it is unnecessary to decide the issue of manifest excess.
By the second ground of appeal, the appellant complains that the Judge failed to backdate the sentence. However, in the written submissions this ground was presented and argued at a more general level, that is, that the Judge erred in the manner by which he dealt with the period of five months and five days that the appellant had spent on remand. His Honour said that he had “taken [this period] into account” but did not indicate how he had taken it into account.
A sentencing Judge has a discretion whether or not to allow credit where time is spent in custody on remand for the offences with respect to which an offender is sentenced. Such credit allowed can be dealt with by either reducing or backdating the head sentence and non-parole period otherwise to be ordered.[15] The amount of credit to be given is discretionary. Typically, such time spent in custody on remand is allowed almost, if not, to the day, although mathematical precision is not necessarily called for. If the amount of credit allowed is materially less than the time spent in custody, reasons for the discrepancy should be provided. I agree, with respect, with the following observations of Lander J in Frank v Police.[16] They are particularly apposite to the facts of this case.
The sentencing process must be transparent. It must be so because the prisoner is entitled to know, when the prisoner has been sentenced to a term of imprisonment, exactly how the sentence has been constructed. For example, the prisoner is entitled to know, if he or she has pleaded guilty, the credit which has been given in the sentencing process... .
So also, if a prisoner has spent time on remand for the offences for which the prisoner is to be sentenced, the prisoner is entitled to know, if the sentence is not back-dated, whether the court has taken into account the whole or any part of the time spent in custody pending sentence.
In my opinion, provided there are no complicating factors of the kind to which I have referred, it would be preferable to back-date the sentence to the date when the prisoner went into custody.
If for some reason the court believes the better sentencing option would be to simply take into account the time spent in custody, in my opinion, the court ought to say why that is so and at the same time indicate whether the court has taken into account the whole of the time spent in custody or some part of it. If the court is not taking into account the whole of the time spent in custody, then the court should explain in the sentencing remarks the reasons why only part of the time spent in custody is to count in the sentencing process. Ordinarily, the whole of the time spent in custody would be taken into account in fixing the appropriate sentence... .
There was no reason in this case not to back-date this sentence. The appellant was taken into custody on the day of the offences. He remained in custody for the whole of the period until sentence. He was not in custody for any other offence. He was not in breach of any other court order, any bond or any parole. The sentence should have been back-dated to 28 June 1999.
[15] See section 30(2) of the Criminal Law (Sentencing) Act 1988 and the discussion in R v Franceschini [2015] SASCFC 116 at [23]-[30].
[16] Frank v Police [2000] SASC 245; (2000) 77 SASR 273 at [55]-[59] (citations omitted).
I am satisfied that the Judge intended to give full credit for the five months and five days spent on remand; there was no reason not to. However, it is not clear from the sentencing remarks that this in fact occurred or, if so, how it occurred. No reasons were given that would explain or justify the taking of this time into account in only a general way by way of acknowledging a personal consideration bearing on leniency.
Whilst not the only possibility, one possibility is that the five months or so was taken into account before the starting point of three years for the aggravated serious criminal trespass offence was adopted. If so, and notwithstanding that the Judge nominated three years as a starting point, the true starting point would be almost three and a half years. However, there were three components to the ultimate sentence and one cannot be certain that the sentence was constructed in this way.
Importantly, it was not possible for the appellant to understand how or to what extent the five months and five days in custody on remand was allowed for and whether or not the issue was properly dealt with. The period of time in question is not insignificant. Further, the scope for a genuine sense of grievance or injustice to be held by this appellant is particularly apparent because of his previous experience of spending 14 months on remand without credit.
A consequential problem is that it is not possible to know the percentage discount that has, in fact, been provided with respect to the guilty pleas.[17] To illustrate this, I will assume that the time in custody on remand was allowed for in connection with the sentence for the aggravated serious criminal trespass. To simplify the mathematics, I will adopt a period of five months, not five months and five days, to be accounted for.
[17] If, in fact and contrary to my understanding, no direct allowance was given but the time was allowed for only in a general way bearing on leniency, there would be no difficulty in ascertaining the discount allowed. It may be that such an approach, in lieu of the two discretionary alternatives in section 30(2) of the Sentencing Act (direct reduction and backdating) is available, see, for example, Strugnell v Police [2007] SASC 33. However, if so, the position may need to be reconsidered as it may offend the objectives and purpose underlying the new statutory regime for discounts following pleas of guilty provided for by sections 10B and 10C of the Sentencing Act as explained in R v McPhee [2014] SASCFC 107, R v Wakefield [2015] SASCFC 10, R v Dwyer [2015] SASCFC 12, R v Nguyen [2015] SASCFC 40.
On the face of the Judge’s remarks, the Judge reduced his starting point of three years by 40 per cent to 21 months. As it happens, a precise calculation of 40 per cent leads to a reduction from three years to 21.6 months. The Judge rounded this figure down, to the advantage of the appellant, to 21 months. This presents another more general concern to which I will return.
In any event, it would appear that the Judge purported to apply a 40 per cent discount to a three year starting point for the aggravated serious criminal trespass. If so, it is difficult to conclude that the five months was taken into account. If, for example, the Judge, in fact, started at three years and five months and reduced that starting point to three years before applying the 40 per cent discount to arrive at a final head sentence of 21 months, the net effect would be to allow a discount on the actual starting point of three years and five months, of 48.8 percent. However, if the true starting point was three years but reduced by the five months before allowing the discount, the final head sentence of 21 months would represent a discount of only 32 per cent on an actual starting point of two years and seven months.
A purpose of sentencing remarks is to provide an explanation to an offender as to how the sentence imposed has been arrived at and to demonstrate that the correct principles have been applied. It is an error to fail to provide adequate reasons in these respects.[18]
[18] See, for example, R v Copeland (No 2) [2010] SASCFC 61; (2010) 108 SASR 389 at [29] and the remarks of Lander J in Frank v Police [2000] SASC 245; (2000) 77 SASR 273 at [55]-[59].
The Judge, erred in the manner by which the sentences imposed were constructed. I accept that the Judge intended to provide a discount of 40 per cent and in this case there was no good reason not to. However, it is not possible to know the extent of the discount in fact allowed. Further, it is not possible to ascertain with confidence the starting points for each of the sentences and, in particular, that given for the aggravated serious criminal trespass.
I return to the issue of “rounding” which, because of the form of the legislation which now mandates the approach to be taken when allowing a discount for an early guilty plea,[19] is an issue of more general significance.
[19] Sections 10B and 10C of the Criminal Law (Sentencing) Act 1988.
Often the strict application of one of the statutory maximum discounts to a starting point chosen for a proposed head sentence will lead to a sentence involving weeks or even, and more typically, days. Such a sentence is sometimes imposed but it can suggest a level of precision that may not be warranted. Sentencing is not a mathematically precise exercise.
For practical reasons, a certain amount of rounding can be appropriate. It may be, following say a limited rounding up, that an offender will receive a shade under the maximum percentage discount up to which the offender was entitled and in circumstances where there is no good reason demonstrated to award less than the maximum. Such a limited rounding up might nevertheless be tolerated and not necessarily indicative of error. However, in this case it would seem that by allowing a 40 per cent discount to the expressed starting point of three years for the aggravated serious criminal trespass offence, the Judge rounded the resulting 21.6 months down to 21 months. This results in a discount of 41.66 per cent. Although it is unnecessary to decide the matter on this appeal, whilst there is a capacity to round up, and notwithstanding that this would achieve a shade under the maximum discount otherwise available, it is not permissible to round down (and in favour of the offender) where that would lead to a discount, albeit only fractionally, greater than the maximum permitted under the legislation.
Resentencing
Having reviewed the materials provided to the Judge for the purpose of sentencing and the parties’ respective submissions, I would impose a sentence more lenient than the one the Judge ultimately arrived at. I also would order that the sentence be backdated to commence 1 March 2015, being the date the appellant entered custody.
I would exercise the discretion available under section 18A of the Criminal Law (Sentencing) Act 1988 to impose the one penalty for all three offences. For practical purposes, the appellant engaged in a single course of conduct. Whilst I have had regard to the guidance offered by the Court of Criminal Appeal in R v Delfin[20] when sentencing for the offence of serious criminal trespass in a place of residence together with a consequential theft, the circumstances of the offending, as earlier described, are such as to place the trespass offence towards the very low end of the scale for this type of offending. I recognise that the appellant does have significant criminal antecedents and is not by any means to be regarded as a first offender. However, the appellant’s tragic and ongoing very difficult personal circumstances and his relatively young age together suggest that there is still scope for some leniency.
[20] (2001) 79 SASR 429.
I would start with a term of two years and six months. Upon application of the 40 per cent discount, this figure is reduced to 18 months. I would impose the same non-parole period of ten months as did the Judge. I would direct that the head sentence of 18 months and the non-parole period of ten months both be backdated to commence 1 March 2015.
I would allow the appeal. I would set aside the District Court sentence and resentence the appellant as indicated.