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…
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- R v Deng [2015] SASCFC 176
- Case
- [2015] SASCFC 176
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CaseChat Overview and Summary
The court was required to determine whether the sentence imposed was manifestly excessive and whether the sentencing judge had erred in their treatment of the period the appellant spent in custody on remand. Specifically, the court considered whether the judge had adequately accounted for the five months and five days the appellant had spent in custody prior to sentencing.
The court allowed the appeal on the second ground, with the prosecution conceding this point. The court held that while a sentencing judge has discretion regarding credit for time spent on remand, this discretion must be exercised transparently. The sentencing judge must indicate how such time has been taken into account, and if less than the full period is credited, reasons for the discrepancy should be provided. The court endorsed the principle that sentences should ordinarily be backdated to the date of custody unless there are complicating factors, and that the sentencing process must be clear so the offender understands how their sentence is constructed. Given the absence of complicating factors, the court found that the sentence should have been backdated.
The appeal was allowed, and the appellant was resentenced. The court ordered that the sentence be backdated to 1 March 2015, the date of the appellant's arrest and detention. The issue of manifest excess was not determined, as it was rendered unnecessary by the success of the second ground of appeal.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: KELLY J, NICHOLSON J
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).