R v Franceschini - [2015] SASCFC 116

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v FRANCESCHINI
[2015] SASCFC 116
Judgment of The Court of Criminal Appeal
(The Honourable Justice Nicholson, The Honourable Justice Bampton and The Honourable Justice Lovell)
17 August 2015
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TOTALITY - OTHER PARTICULAR CASES
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - COMMENCEMENT
Appeal against sentence. The appellant was sentenced on 23 April 2015 for two counts of theft, one count of arson and one count of unlawful possession. A total head sentence of six years with a non-parole period of three years and six months was imposed. The Judge backdated the sentence by six months to reflect time spent in custody and on home detention bail following the appellant’s arrest, in purported reliance on section 30(2) of the Criminal Law (Sentencing) Act 1988.
The grounds of appeal are that the total head sentence and non-parole period is manifestly excessive, that the judge failed to give adequate consideration to totality, and that the judge incorrectly applied section 30(2).
Held (Nicholson J, Bampton and Lovell JJ agreeing):
1. The sentence was not manifestly excessive.
2. The principle of totality had no application to this case.
3. There is no power, pursuant to section 30(2) of the Criminal Law (Sentencing) Act 1988, to backdate a sentence to take into account time spent on home detention bail.
4. It also would not have been within any discretion available under section 30(1) to backdate for this reason, in the circumstances of this case.
5. Appeal is allowed. The original sentence is set aside and the appellant is resentenced with a head sentence of five and a half years and a non-parole period of three years. The sentence is to commence on 23 April 2015.
Criminal Law (Sentencing) Act 1988 (SA) s10, s10C, s18A, s30; Criminal Law Consolidation Act 1935 (SA) s85, s134; Summary Offences Act 1953 (SA) s41; Youth Offenders Act 1993 (SA); Correctional Services Act 1982 (SA) s37A, s66, referred to.
R v Colson [1999] SASC 184, (1999) 73 SASR 407, applied.
R v Tilley [2010] SASCFC 73; R v Jamieson (1988) 50 SASR 130, discussed.
Markarian v The Queen [2005] HCA 25, (2005) 228 CLR 357; Attorney-General v Tichy (1982) 30 SASR 84; R v Dang [2015] SASCFC 89; R v Place [2002] SASC 101, (2002) 81 SASR 395; R v P, NJ (No 4) [2008] SASC 97, (2008) 183 A Crim R 461; R v Newman (2004) 145 A Crim R 361; R v Malesevic [1999] SASC 321, (1999) 204 LSJS 32; Kells v Police [2007] SASC 224; R v Penny [2012] SASCFC 16, considered.

R v FRANCESCHINI
[2015] SASCFC 116
Court of Criminal Appeal: Nicholson, Bampton and Lovell JJ
NICHOLSON J.
Introduction

On 23 April 2015, the appellant was sentenced by a Judge of the District Court for two counts of theft (one by way of receiving),[1] one count of arson[2] and one count of unlawful possession.[3] A total head sentence of six years with a non-parole period of three years and six months was imposed. The sentence was backdated, by six months,[4] to commence on 23 October 2014.
[1] Contrary to section 134 of the Criminal Law Consolidation Act 1935, the maximum penalty for which, in each case, is ten years imprisonment.
[2] Contrary to subsection 85(1) of the Criminal Law Consolidation Act 1935, the maximum penalty for which is imprisonment for life.
[3] Contrary to subsection 41(1) of the Summary Offences Act 1953, the maximum penalty for which is a fine of $10,000 or imprisonment for two years.
[4] Being credit allowed on account of one month spent in custody and 22 months spent on home detention bail while on remand for the offending.
The three grounds of appeal are in the following terms.
1.The total head sentence and non-parole period was manifestly excessive.
2.The learned sentencing Judge erred in that he failed to give any or any appropriate consideration to the principle of totality.
3.The learned sentencing Judge erred in that the commencement date for the sentence did not properly comply with the requirements of section 30(2)(b)(ii) of the Sentencing Act.[5]
[5] Criminal Law (Sentencing) Act 1988.
A Judge of this Court granted permission to appeal with respect to grounds one and two and referred ground three to the Court of Criminal Appeal to be heard at the same time as the appeal on grounds one and two. Ground three raises a question of law and does not require permission to appeal.
Background
On 6 March 2015, the appellant was found guilty by a jury of one count of theft and one count of arson in relation to a truck stolen from a truck depot on 11 March 2013. At the time of sentencing, two additional offences, which had been laid on Information in the Magistrates Court, were called up to be dealt with at the same time. The appellant pleaded guilty to these two offences; one count of theft, by way of receiving, and one count of unlawful possession. Discounts of 10 per cent and 40 per cent, respectively, were allowed, apparently in accordance with the statutory regime which now governs discounts for pleas of guilty.[6] The appellant does not complain in either of these respects.
[6] Section 10C of the Criminal Law (Sentencing) Act 1988.
Late at night on 11 March 2013, the appellant and his brother attended at a truck depot in the northern suburbs of Adelaide. They cut through a wire perimeter fence and broke into and started a truck. The truck was used to smash open the front depot gate. It was driven to a location where the appellant’s associates removed and retained its hydraulic tailgate, said to have been worth between $15,000 and $16,000. The truck was then driven a short distance to another location where the appellant and his brother set it alight and destroyed it. The truck was valued at between $90,000 and $100,000. The tailgate was located by police and later returned to its owner. Plainly, these offences of theft and arson had been premeditated and planned.
A few months earlier, in December 2012, a Toyota LandCruiser was stolen from outside its owner’s home in North Adelaide. The appellant received this vehicle and used it for his own purposes. On 8 March 2013, the appellant was photographed driving the vehicle by a fixed speed camera. It is not in contest that he had been driving the vehicle prior to that date. The LandCruiser was used by the appellant and his brother on the night of the truck theft as a second vehicle to provide transport to the truck depot and after the truck was destroyed. The LandCruiser also was later set alight and destroyed,[7] although the appellant has not been prosecuted in relation to that matter. It was the receiving by the appellant of the LandCruiser that gave rise to the second offence of theft.
[7] The burnt out LandCruiser was located by police in April 2013.
In April 2013, another Toyota LandCruiser was stolen from an address in another Adelaide suburb. The vehicle was located by the police in a garage and whilst in the process of being “rebirthed” in order to fit the description and registration details of a vehicle registered to the appellant’s brother. On 20 May 2013, police located items at the appellant’s home which had been in or on this LandCruiser at the time it was stolen, namely, roof racks, wheels and a bag of tools. In these circumstances, the appellant pleaded guilty to the offence of unlawful possession.
The sentence
The Judge exercised the discretion available under section 18A of the Criminal Law (Sentencing) Act to impose the one penalty for the offences of theft and arson for which the appellant was convicted by the jury. His Honour imposed a term of four and a half years imprisonment. For the second theft (receiving) offence, his Honour imposed a prison term of 16 months after allowing a 10 per cent reduction for the late plea of guilty. For the offence of unlawful possession his Honour imposed a sentence of two months imprisonment after allowing a 40 per cent reduction for what must have been a very early plea.
His Honour ordered that all three sentences be accumulated, essentially, on the basis that they represented separate incursions into criminal conduct. This gave rise to a total head sentence of six years imprisonment. The Judge set a non-parole period of three years and six months. His Honour then allowed six months credit to reflect one month in custody, following arrest on 20 May 2013, and 22 months on home detention bail, thereafter. There has been no challenge to the amount of credit so allowed. In order to give effect to that allowance, and notwithstanding that the sentence was imposed on 23 April 2015, by which time the appellant was on home detention bail, the Judge backdated both the head sentence and the non-parole period to commence 23 October 2014, a time when the appellant also had been on home detention bail.
The appellant’s personal circumstances
The appellant is 37 years of age. He has a 19 year old daughter who has one child and is pregnant with another. The appellant began smoking marijuana and drinking alcohol at the age of 15. His drug use escalated from about the age of 20 and he developed a habit for heroin and amphetamines. The appellant has decreased his drug use in later years and following some drug counselling and courses undertaken whilst in prison. He continues to be a recreational user of amphetamines. The appellant has a significant criminal record to which I will turn in a moment. I agree with the observation of the Judge that the appellant is approaching an age where he must make a serious decision to give up drugs and crime, otherwise his “future is bleak”.
As mentioned, the appellant has a significant criminal record. In 2003, he was sentenced to three years and nine months imprisonment for theft and break and enter offences. This offending included the stealing of nine motorcycles from a warehouse with a value of more than $50,000. As the Judge observed in his remarks, this also had been a carefully planned break and enter for the purpose of financial gain. In 2009, the appellant and another person broke into a farming property on the Yorke Peninsula and stole property. Again, this was a planned enterprise. For that and other offending the appellant was sentence to two years imprisonment.
The appellant has also received a short term of imprisonment for driving under disqualification in 2005 and has committed a number of other motor vehicle related, breach of bail, unlawful possession and false pretences offences. The appellant is plainly a very dishonest person who has no regard for the law or other people’s property rights. Given this criminal record and the nature and seriousness of the most recent offending, the scope for leniency when sentencing on this occasion was much reduced. The Judge was correct to take into consideration the appellant’s criminal history (and, in my view, was entitled to place significant weight upon it) for the reasons his Honour gave, that is:
not to increase [the appellant’s] sentence so as to lead to a disproportionate outcome, but as demonstrating that [the appellant has] continued to commit serious crimes of a similar kind resulting in a stronger need for [the appellant’s] deterrence and the protection of the community from [the appellant’s] criminal activities to be reflected in the sentence to be imposed.
Ground one – manifest excess
The question of whether or not a sentence is manifestly excessive is to be determined by asking whether, upon the facts, the sentence imposed was unreasonable or plainly unjust. In Markarian v The Queen,[8] a plurality in the High Court characterised the enquiry in this way.
As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender's appeal, as "manifest excess", or in a prosecution appeal, as "manifest inadequacy".
[8] [2005] HCA 25; (2005) 228 CLR 357 at [25] (Gleeson CJ, Gummow, Hayne and Callinan JJ).
The appellant has not pointed to any error of process or reasoning committed by the Judge. The only question before the Court is whether the head sentence and non-parole period, before allowing credit for time served, was unreasonable or plainly unjust.
The Judge correctly characterised the theft of the truck and the destruction of the truck by arson as serious crimes of their kind and obviously planned. The callous disregard for the rights and property of other people is amply demonstrated by the fact that the appellant was content to destroy property to the value of almost $100,000, even though he only needed to obtain a removable part valued at approximately $15,000. The maximum penalties for the theft and this offence of arson are ten years imprisonment and life imprisonment, respectively.
For reasons already explained, personal deterrence and the protection of the public from this accused are important considerations bearing on the appropriate penalty in this matter. Indeed, subsection 10(2)(d) of the Criminal Law (Sentencing) Act provides, in effect, that in determining the sentence for an offence involving arson, a court must give proper effect to the need to protect the community by ensuring that paramount consideration is given to the need for both general and personal deterrence.
A single starting point of four and a half years imprisonment for these two offences, whilst perhaps exacting, is not, in the circumstances, unreasonable or plainly unjust. Furthermore, I am satisfied that it paid sufficient regard to any perceived need for partial concurrency.
The starting points for the crime of receiving the stolen LandCruiser (approximately 18 months before the reduction for plea) and for the unlawful possession offence (approximately three and a half months before the reduction for plea), for a person with the appellant’s record, were moderate.
The Judge ordered all three components to be served cumulatively (albeit with a backdating of six months, dealt with below). His Honour gave, as his reason for this, that there was nothing to connect the offences with each other.[9] The respondent submitted that the three components of the overall offending represented three separate incursions into crime. The components lacked proximity as to times, places and victims. I agree with this submission. It was within the Judge’s discretion to order total accumulation.[10]
[9] I interpolate here that there may be scope for some partial concurrency with respect to the first two offences. However, they were dealt with pursuant to section 18A. As I have indicated, the single penalty imposed paid sufficient regard to any need for partial concurrency.
[10] See generally Attorney-General v Tichy (1982) 30 SASR 84 at 93 (Wells J).
The final sentence of six years with three and a half years non-parole was within the available range for all of the offending considered as a whole. The ground of manifest excess is not made out.
Ground 2 – totality
This is not a case that calls for the application of the doctrine of totality. I repeat what I said recently in R v Dang[11] with reference to the assistance provided by R v Place.[12]
[11] [2015] SASCFC 89 at [35].
[12] [2002] SASC 101; (2002) 81 SASR 395.
The doctrine of totality operates as a last check once a proper sentence, determined according to law, has been fixed upon. There will be occasions when a sentence, so determined, is nevertheless such as would be crushing, so as to call for the merciful intervention of the Court. The Court of Criminal Appeal in R v Place[13] made the following observations concerning the principle of totality and its application.
In R v Knight (1981) 26 SASR 573, this Court had occasion to consider the question of totality in circumstances where one of three sentences was ordered to be served cumulatively upon two concurrent sentences. As to the principle of totality, the court said (p 576):
“To use the language of Lord Parker L.C.J. in Reg. v Faulkner [(1972) 56 Cr. App. R. 594 at p.596], “at the end of the day, as one always must, one looks at the totality and asks whether it was too much.”
King CJ described the principle of totality in R v Rossi (1988) 142 LSJS 451 at 453:
“There is a principle of sentencing known as the principle of totality, which enables a court to mitigate what strict justice would otherwise indicate, where the total effect of the sentences merited by the individual crimes becomes so crushing as to call for the merciful intervention of the court by way of reducing the total effect … “
In an earlier judgment, King CJ spoke of the requirement that “at the end of day” a sentencing judge “stand back and look at the overall picture and decide whether the total of what would otherwise be the appropriate sentence is a fair and reasonable total sentence to impose” (R v Creed (1985) 37 SASR 566 at 568). The view that the question of totality is the final step in the sentencing process was confirmed by Doyle CJ and Olsson J in R v Major (1998) 70 SASR 488 at 490 and 497.
The totality principle was considered by the High Court in Mill v The Queen (1988) 166 CLR 59. In a joint judgment, the High Court cited with approval the remarks in Knight to which we have referred and also approved of the following description of the principle in Thomas, Principles of Sentencing, (2nd ed. 1979) at pp 56-57 (omitting references):
“The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is ‘just and appropriate’. The principle has been stated many times in various forms: ‘when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong [’]; ‘when … cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences’.”
The principle was again considered by the High Court in Postiglione v The Queen (1997) 189 CLR 295. McHugh J spoke of ensuring that the aggregation of sentences appropriate for each offence “is a just and appropriate measure of the total criminality involved” (p 308). Kirby J described the principles of “parity” and “totality” as “in the nature of checks” to be applied after reaching a conclusion as to the appropriate sentence having regard to the objective criminality and personal and other matters of mitigation. His Honour said it was “then” that the sentencing judge must consider whether the resulting sentence needs further adjustment by reason of parity or totality (pp 340-341).
[13] [2002] SASC 101; (2002) 81 SASR 395 at [85]-[89] (Doyle CJ, Prior, Lander and Martin JJ with whose reasons Gray J agreed).

The sentence (before backdating) imposed on the appellant of six years with three and a half years non-parole period, is not to be characterised as a crushing sentence, that, whilst appropriate in law, calls for a further reduction by way of merciful intervention. I would dismiss appeal ground two.
Ground 3 – whether backdating the sentence involved, in the circumstances, an error of law
After approximately one month in custody following his arrest, the appellant was released and thereafter spent 22 months on home detention bail. The appellant was on home detention bail at the time sentence was imposed. The Judge allowed six months credit to reflect the time spent in custody and on home detention bail. In order to give effect to that credit, the Judge ordered that the appellant’s sentence be taken to have commenced from 23 October 2014, that is, a date six months immediately prior to the date of sentencing.
The Judge was of the view that he was entitled to provide for the six months credit in either of two ways. His Honour could have simply reduced the head sentence and the non-parole period by six months and ordered both to commence on the day of sentence, that is, 23 April 2015. Alternatively, subsection 30(2) of the Criminal Law (Sentencing) Act permitted him to backdate the commencement date of the sentence by six months. His Honour preferred the latter alternative because this would result in the appellant’s criminal record accurately reflecting the actual sentence imposed of six years. Ground 3 raises the issue of whether or not subsection 30(2) permitted backdating in the circumstances of this matter.
Section 30 of the Criminal Law (Sentencing) Act provides as follows.
30—Commencement of sentences and non-parole periods
(1)Where a court imposes a sentence of imprisonment and does not suspend the sentence, the court must specify the date on which, or the time at which, the sentence is to commence or is to be taken to have commenced.
(2)If a defendant has spent time in custody in respect of an offence for which the defendant is subsequently sentenced to imprisonment, the court may, when sentencing the defendant, take into account the time already spent in custody and—
(a)     make an appropriate reduction in the term of the sentence; or
(b)     direct that the sentence will be taken to have commenced—
(i)on the day on which the defendant was taken into custody; or
(ii)on a date specified by the court that occurs after the day on which the defendant was taken into custody but before the day on which the defendant is sentenced.
(3)Where a court imposes a sentence of imprisonment on a defendant who is not present in court, the court must direct that the sentence is to commence—
(a)     on the day on which the defendant is taken into custody pursuant to the warrant of commitment issued in respect of the sentence; or
(b)     if the defendant is subject to some other sentence of imprisonment—on the completion of that other sentence of imprisonment or at some earlier time fixed by the court.
(4)Where a court fixes a non-parole period, the court must specify the date on which the non-parole period is to commence or is to be taken to have commenced.
(5)Where a court directs that a sentence of imprisonment is to be taken to have commenced on the day on which the defendant was taken into custody, any non-parole period fixed by the court in respect of that sentence will be taken to have commenced on that day.
(6)If, on imposing a sentence of imprisonment, the court fails to specify the date on which or the time at which the sentence is to commence or is to be taken to have commenced, the sentence—
(a)     will, in the case of a defendant not then in custody, commence on the day on which the defendant is subsequently taken into custody for the offence; or
(b)     will, in the case of a defendant already in custody for the offence, be taken to have commenced on the day on which the defendant was last so taken into custody; or
(c)     will, in the case of a defendant in custody for some other offence, commence on the day on which the sentence is imposed, unless the sentence is to be served cumulatively pursuant to this Act or any other Act.
The Judge relied upon the discretion available under subsection (2). Where a prisoner has spent time in custody in respect of an offence for which the prisoner is subsequently sentenced to imprisonment, the court is entitled[14] to give credit for that time spent in custody in one or other of the two ways indicated.
[14] Strictly, the matter is discretionary but almost invariably time spent in custody on remand awaiting sentencing is allowed almost, if not, to the day, although mathematical precision is not necessarily called for.
Sometimes, a defendant will have been in custody on remand for a period from either the date of arrest or some subsequent date until sentenced. In such a case, it makes perfect sense to backdate the sentence to the date when the defendant was taken into custody. There are perceived advantages with this approach as compared with simply reducing an otherwise appropriate head sentence and non-parole period by the amount of the time spent in custody. One such advantage, propounded by the Judge in this case, is that it enables the prisoner’s antecedent criminal record to more accurately record the sentence imposed. Where there has been, instead, a reduction, this record, upon which reliance is often placed for various purposes, will record a fiction. This can be substantial where a defendant has spent a lengthy period in custody on remand before sentence.
There are potential advantages, for a defendant, to backdating. For example, that proportion of the non-parole period that for certain types of prisoners will render them eligible for an administrative release on home detention, in accordance with section 37A of the Correctional Services Act 1982, will commence to run from an earlier time.[15]
[15] Under section 37A the time to be served before being eligible for such a discretionary early release will be a proportion of the non-parole period. As such, an amount of credit, but with the later starting point, will not achieve the same “benefit” to a prisoner, in this respect, as would an equal amount of backdating.
On the other hand, the giving of credit can be the more advantageous for some defendants when eligibility for parole comes to be considered. Under section 66 of the Correctional Services Act, some types of prisoners have an automatic right to parole at the expiration of a non-parole period of less than five years.[16] Where the non-parole period is five years or greater a prisoner must apply to the Parole Board for parole, the granting of which is discretionary. For prisoners who would otherwise qualify for automatic parole, it can be an advantage to have received credit where that would result in a non-parole period less than five years rather than having the commencement of a non-parole period of five years or more backdated.
[16] There are many exceptions including, for example, where sexual offences or offences of personal violence or (as in the present case) offences of arson are concerned.
The situation can arise where a person who spent some time in custody, on remand for the relevant offending, has been released on bail and is on bail at the time of the imposition of sentence. Again, sometimes a sentencing Judge will allow credit for the time spent in custody simply by way of reducing the length of the sentence otherwise to be imposed and ordering the sentence to begin on the day of sentencing. However, there is authority in this Court to the effect that even in this situation the sentence can be backdated.[17] This can result in the sentence being backdated by a period of time sufficient to capture the amount of time earlier spent in custody but, nevertheless, to a date when the defendant was not in custody but in the community on bail.
[17] R v Tilley [2010] SASCFC 73.
In R v Tilley,[18] the material facts are set out in the judgment of Duggan J (with whose reasons Anderson and Peek JJ agreed).[19]
The appellant was found guilty by a jury of the offence of aggravated threatening life. He was sentenced to imprisonment for three years with a non‑parole period of two years. The Court ordered that the head sentence and the non-parole period were to commence on 19 June 2008.
The appellant appealed against his conviction and, on 4 September 2009, the Court of Criminal Appeal allowed the appeal, set aside the conviction and ordered a new trial. The Court also granted the appellant bail and he was released from custody.
It is agreed that the appellant was in custody between 19 June 2008, the date of the jury verdict, and 4 September 2009.
On 12 July 2010, following negotiations between the prosecution and defence, the appellant pleaded guilty to the lesser offence of threatening life. On 20 October 2010 he was sentenced for this offence and taken into custody.
When sentencing the appellant for the offence of threatening life, the sentencing Judge stated that the appropriate starting point was a sentence of imprisonment for two years. He reduced this to a sentence of 19 months with a non‑parole period of 14 months on account of the appellant’s plea of guilty to the charge.
[18] [2010] SASCFC 73.
[19] At [1]-[5].
The Judge ordered that the head sentence and non-parole period commence on 20 August 2009. The effect of the sentencing Judge’s decision in Tilley was that the sentence was backdated by an amount equivalent to the non-parole period set, albeit to a time when the defendant had not been in custody. As a consequence, the defendant was to be taken into custody but, immediately, be entitled to apply for parole. This is what the Judge wanted. The Judge took the view that the interests of justice would best be served by the defendant’s (almost) immediate release but on parole for the balance of the head sentence.
The Judge was concerned that had credit been allowed, the sentence would have been reduced to less than 12 months in which case the Judge would have been unable to fix a non-parole period.[20] And if the Judge had backdated the head sentence and the non-parole period by an amount equal to the total time already served, the defendant would have been entitled to release with virtually no period on parole.
[20] It is unclear whether the possibility of a partially suspended sentence in these circumstances (subsection 38(2)) was considered.
It will be helpful to set out subsection 30(2) again.
(2)If a defendant has spent time in custody in respect of an offence for which the defendant is subsequently sentenced to imprisonment, the court may, when sentencing the defendant, take into account the time already spent in custody and—
(a) make an appropriate reduction in the term of the sentence; or
(b) direct that the sentence will be taken to have commenced—
(i)on the day on which the defendant was taken into custody; or
(ii)on a date specified by the court that occurs after the day on which the defendant was taken into custody but before the day on which the defendant is sentenced.
In both R v P, NJ (No 4)[21] and in R v Tilley,[22] Duggan J reviewed the common law and the history of section 30 and its predecessors, including various earlier authorities in this State, with reference to the power to backdate a sentence of imprisonment. It is unnecessary to repeat that helpful excursus here. In Tilley, Duggan J concluded as follows.[23]
In my view, the observation by King CJ[24] that the period of the backdating could include a period of time when the defendant was not serving a sentence but was nevertheless a period equivalent to that which the defendant had actually spent in custody in relation to the offence would seem to apply also under s 30(2)(b) in its application to the present case. The appellant spent time in custody in respect of offending for which he was later sentenced. Section 30(2)(b) authorises this period to be taken into account by backdating despite the fact that the appellant was not in custody up to the time of sentencing. The backdating of the sentence by the sentencing Judge involved a period when the appellant was not in custody, but it was directly referable to a period which the appellant had spent in custody in relation to the same offending.
More often than not the power to backdate under s 30(2) will be used where a person has been in continuous custody from the date of arrest or the occurrence of some other event such as when bail is revoked following a plea of guilty or a finding of guilt by the Court. However, the wording of s 30(2) is wide enough to include the situation as occurred here where a person is in custody for the offence, and subsequently released on bail before being sentenced.
In many cases due allowance can be made for the time spent in custody by applying s 30(2)(a) and making a reduction to the sentence. However, there are other occasions when it will be more appropriate to backdate the sentence;[25] much depends upon the circumstances of the particular case.
. . . .
While the backdating of a sentence will not usually include time which is not spent in custody, it is my view that circumstances such as the present provide an exception to the general rule. The sentencing Judge was permitted under s 30(2)(b) to backdate the sentence in the manner in which he did so as to allow a period of time equivalent to time spent in custody to be included within the period of the backdating. No injustice resulted from the adoption of this course.
[21] [2008] SASC 97; (2008) 183 A Crim R 461.
[22] [2010] SASCFC 73.
[23] R v Tilley [2010] SASCFC 73 at [19]-[21] and [27] (emphasis supplied).
[24] Duggan J was referring here to the former Chief Justice’s observation in R v Jamieson (1988) 50 SASR 130 at 135: “I can envisage cases in which it might be proper to use it to ante-date the sentence to include a period during which the offender has not been in custody. Such circumstances might exist where the offender has been in custody for some period of time, say, three months following his arrest, but has then been released on bail. It might be proper in such circumstances to ante-date the sentence for a period of three months, being a period equivalent to that which he had actually spent in custody.”
[25] See R v Newman (2004) 145 A Crim R 361.
The unanimous decision in R v Tilley stands, inter alia, for the proposition that subsection 30(2) of the Criminal Law (Sentencing) Act does authorise, as an exceptional practice, the backdating of a sentence to take account of time spent in custody on remand for the offending in question where the sentence, as backdated, covers a period during which the prisoner was not, in fact, in custody. In Tilley this exceptional step was permitted given the particular circumstances of that case. I do not understand Tilley to permit backdating so as to cover a period in which the prisoner was not in custody, as a general rule.
To confine the authority of R v Tilley in this way is consistent with the factual basis of the decision, the reasoning of Duggan J, including his Honour’s application of the terms of subsection 30(2) to the factual basis, and the text of the subsection itself.
In any event, subsection 30(2) is confined to taking account of time spent in custody only, not time spent on home detention bail. According to the opening words of subsection 30(2), the discretion conferred is enlivened only “if a defendant has spent time in custody in respect of an offence for which the defendant is subsequently sentenced to imprisonment”. Only in these circumstances, may the Court “when sentencing the defendant, take into account the time already spent in custody...”. It is in this context, and for this purpose, that a court is specifically authorised to make “an appropriate reduction” or direct the sentence to have commenced at a date earlier than the day of sentencing.
As far as an “appropriate” reduction in the term is concerned (paragraph (a) of subsection 30(2)) the intention is that the reduction will, by and large, match the amount of time spent in custody in respect of the offence for which the defendant is to be sentenced. The word “appropriate” relates back to the necessary precondition that the defendant has spent time in custody in respect of the offence and that the court, when sentencing, is to take into account the time already spent in custody. The discretion to reduce the term of any sentence is confined to these circumstances.
The alternative approach provided for by paragraph (b) of subsection 30(2) does not make any direct reference, by way of the use of the term “appropriate” or otherwise, to the preconditions as set out in the opening words. However, paragraph (b) is to be read as being similarly confined in its operation. Paragraph (b) is an alternative to (a) but both seek to address the need, perceived by Parliament, to give credit in some way to a defendant who has already spent time in custody in respect of the offence for which he or she is to be sentenced to imprisonment. Ultimately, the discretion available to a court, under subsection 30(2) to do either of (a) or (b) is directed at (and limited by) the taking into account of the period of time already spent in custody.
His Honour did not have power, pursuant to subsection 30(2), to backdate the sentence to take account of the five months “credit” allowed for the 22 months spent on home detention bail.
At common law, a sentencing Judge in this State has a discretion to allow credit for time spent on home detention bail and to, in effect, fix a period by which the sentence otherwise to be ordered is to be reduced thereby. There is no obligation on a court to give any such credit.[26] Further, where some allowance is made, it inevitably will be significantly less than the total amount of time spent on home detention bail, but there is no accepted formula. It is akin to a personal circumstance to be taken into account and the particular facts of each case will inform whether or not credit is warranted and the extent of any such credit that is warranted. Having said this, I have seen on occasions an allowance of up to one third of time spent on home detention bail to which no objection has been taken. In this case, the Judge allowed approximately five months for the 22 months spent on home detention bail (about 23 per cent).
[26] R v Malesevic [1999] SASC 321, (1999) 204 LSJS 32; Kells v Police [2007] SASC 224; R v Penny [2012] SASCFC 16.
As I have indicated, the Judge was not empowered by subsection 30(2) to backdate the sentence by this additional amount of five months. However, the question does arise whether his Honour was obliged instead to simply allow credit and have the sentence commence on the day of sentencing or whether a discretion in more general terms, available under subsection 30(1), authorised the backdating. Subsection 30(1) bears repeating.
(1)Where a court imposes a sentence of imprisonment and does not suspend the sentence, the court must specify the date on which, or the time at which, the sentence is to commence or is to be taken to have commenced.
Full Court authority in this State is to the effect that subsection 30(1), in particular, the phrase “is to be taken to have commenced”, confers a discretionary power on a court to backdate the commencement date of a sentence. This is the effect of the decision of the Court of Criminal Appeal in R v Colson.[27] At the time of that decision, section 30 (including subsection 30(1)) was in the same terms as today with the exception of subsection 30(2) which was, then, in these terms.
(2)Where a defendant has been in custody in respect of an offence for which the defendant is subsequently sentenced to imprisonment, the court may –
(a) make an appropriate reduction in the term of the sentence, having regard to the period for which the defendant has been in custody; or
(b) direct that the sentence be taken to have commenced on the day on which the defendant was taken into custody.
[27] [1999] SASC 184 (Doyle CJ with whose reasons Prior and Mullighan JJ agreed).

Colson concerned the question of whether a sentencing Judge had power to order a sentence to commence on a date in the future. It was an unusual situation. The defendant had been serving a sentence of detention, passed in accordance with the provisions of the Young Offenders Act 1993, during which he committed the offence of escaping from custody. By the time of the escape, the defendant had turned 18 years of age and was no longer a youth. A sentence of imprisonment was imposed in the District Court. At the time, subsection 50(1) of the Correctional Services Act 1982 required any term of imprisonment for the offence of escaping custody to be cumulative on any other term of imprisonment that the prisoner was liable to serve. Whether or not, in this case, it was obligatory for the term of imprisonment imposed to be cumulative on the prisoner’s sentence of detention then being served is not a matter that needed to be resolved. The Judge clearly intended that there be accumulation.
However, the power to accumulate provided for by subsection 31(1) of the Criminal Law (Sentencing) Act was held by the court, in Colson, not to apply because subsection 31(1) only allowed for the new sentence to be made cumulative upon any other sentence “of imprisonment” then being served. The defendant was not serving a sentence of imprisonment but a sentence of detention. Accordingly, the court held that subsection 31(1) did not authorise the order made by the District Court Judge post-dating the commencement date of the sentence to the date of expiration of the sentence of detention then being served.[28]
[28] R v Colson [1999] SASC 184 at [8]-[14].
Doyle CJ went on to consider whether the order to post-date could be supported upon an application of subsection 30(1). The following propositions can be derived from his Honour’s consideration and analysis of subsection 30(1).
(i)The Criminal Law (Sentencing) Act is intended to regulate generally the sentencing of offenders and it is reasonable to assume that it was intended to provide a sentencing court with flexible powers.[29]
(ii)On its face (and bearing in mind the terms of earlier statutory provisions covering similar ground) subsection 30(1) “appears to confer a power to specify that a sentence of imprisonment will commence at a time later than the date on which it is imposed”.[30]
(iii)Parliament has provided a general discretion under subsection 30(1) as well as dealing, in later subsections, with the more commonly encountered situations that, otherwise, would fall within subsection 30(1). In so doing, Parliament has provided what a court must do in these specific circumstances and, to a degree, has limited the more general discretion otherwise available, under subsection 30(1).[31]
In Colson, Doyle CJ concluded as follows.[32]
The cases to which I have referred clearly enough treat s30(1), or its predecessor, as conferring a general power to direct that a sentence is to commence at an earlier date or time than the time at which it is imposed. Thomas, at least in the context of an order akin to an order for accumulation, treats the predecessor provision as empowering the fixing of a commencement time after the sentence is imposed.
Taking into account the general terms in which s30(1) is expressed, and its history, and not without some hesitation, I conclude that it is intended to confer a general power to specify a date or time for the commencement of a sentence, earlier or later than the time at which the sentence was imposed.
One of the reasons for my hesitation is the fact that, as I said earlier, it is pretty well unheard of for a court to order that a sentence of imprisonment is to commence at a later time than the time at which it is imposed, except in the circumstances dealt with by subss(3) and (6). But the same comment applies to fixing an earlier date or time for commencement of a sentence, other than in the circumstances contemplated by subss(2) and (6). As King CJ said in Jamieson, it would only be in very rare circumstances that it would be appropriate for a court to exercise the power to fix an earlier commencement date or time so as to include a period during which the offender has not actually been in custody: 50 SASR 130 at 134. Likewise, it would only be in exceptional circumstances that it would be appropriate for the court to fix a later commencement time, other than in the circumstances contemplated by s30(3) and (6).
[29] Colson at [17].
[30] Colson at [19].
[31] Colson at [21], [23]-[25].
[32] Colson at [23]-[25] (emphasis supplied).
Colson concerned the power to post-date although Doyle CJ confirmed, in obiter dicta, that subsection 30(1) also conferred a discretionary power to backdate. For present purposes, I will accept that as so. However, there is a reasonable argument to the effect that subsection 30(1) is merely regulatory in that it directs a sentencing court to nominate a commencing date but with the later subsections circumscribing the selection of the nominated date.
The issue of backdating had arisen, albeit in the context of earlier legislation in different terms, in R v Jamieson[33] referred to in Colson. Jamieson concerned a Crown appeal against sentence on the basis that it was manifestly inadequate. The appeal was allowed, not on the basis of the head sentence and non-parole period ultimately ordered, although both were seen to be lenient, but on the basis that the Judge erred in ordering that the sentence be backdated some eight months prior to the date of sentencing. However, the reason the Judge was found to have erred in this respect was not because he had no power to backdate the sentence but because it was inappropriate to exercise that power in the circumstances. The Judge had backdated the sentence to 22 April 1987 but between that date and the date on which sentence was passed, 22 December 1987, the respondent had been at liberty on bail.
[33] (1988) 50 SASR 130 (King CJ, with whose reasons Jacobs and Cox JJ agreed).
The effect of the sentencing Judge’s order was to create a situation in which the respondent would serve only a proportion of the already lenient non-parole period actually fixed because a period of some eight months during which the respondent was not in custody at all had been incorporated into the head sentence and non-parole period.
The relevant provision, at that time, was section 21 of the Correctional Services Act which provided as follows.
A sentence of imprisonment imposed upon a person convicted of an offence by the Supreme Court or a District Court shall be deemed to have commenced on the first day of the criminal sittings in which he was so convicted, unless the Court imposing the sentence directs that the sentence should be deemed to have commenced, or shall commence, on a day that is earlier or later than that day.
In Jamieson, King CJ (with whose reasons Jacobs and Cox JJ agreed) said this.[34]
In R v Garrett (1978) 18 SASR 308 it was held on the legislation as it then stood, and I think that there is no material distinction between that legislation and the present provision, that there was power to order the commencement of a sentence prior to the date of the commencement of the sittings at which the sentence was passed. Moreover Hogarth J and White J took the view that the legislation is broad enough to give a court a discretion to make an order ante-dating the sentence so as to cover a period during which the offender is not in custody.
It seems to me, however, that the circumstances in which it would be proper to make the latter order must be very rare. The purpose of the section, I think, is plainly to enable the Court to make an order directing the commencement of the sentence on a date which will result in incorporation into the sentence periods spent in custody prior to the actual passing of the sentence.
I can envisage cases in which it might be proper to use it to ante-date the sentence to include a period during which the offender has not been in custody. Such circumstances might exist where the offender has been in custody for some period of time, say, three months following his arrest, but has then been released on bail. It might be proper in such circumstances to ante-date the sentence for a period of three months, being a period equivalent to that which he had actually spent in custody. In R v Smith and Shoesmith (1983) 32 SASR 219, Mitchell J envisaged the use of the power to ante-date a sentence as a device to give effect to the principle of totality where the total effect of a number of sentences might otherwise be oppressive. But apart from circumstances such as those, I find it difficult to envisage any circumstances in which it could be proper to ante-date the sentence to include in the term of imprisonment, any period, at least prior to the commencement of the sittings at which the sentence is passed, during which the offender has not actually been in custody. To do so would be to create a fiction that the offender is actually serving a sentence of imprisonment when he is not in custody at all, and I do not think that that is the purpose for which the power has been conferred upon the Court.
Cox J added the following observation.[35]
I respectfully agree with the statement of principle that the power to back-date which is given by that section should not be used to cover, as a general rule, a period in respect of which the person being sentenced has not spent time in prison. However, I do not see that as making it improper for the sentencing judge, say, to allow the normal operation of subs(1) of s 21 to have effect so as to make a sentence date from the first day of the criminal sittings, and the non-parole period with it, notwithstanding the fact that the prisoner might have been on bail at that time, and, indeed, until the date of sentence.
[34] Jamieson at 134.
[35] Jamieson at 135.
Jamieson dealt with section 21 of the Correctional Services Act which is in terms different to subsection 30(1) and, as such, Jamieson does not directly assist with the proper construction of subsection 30(1). Even so, it is to be noted that the power to backdate or postdate is more explicitly stated in section 21 as compared with subsection 30(1). In any event, as indicated earlier, I accept for the present, on the basis of the reasoning in both Colson and Jamieson, that there is a general power conferred by subsection 30(1) to backdate or postdate the commencement date of a sentence and that this discretion can extend to situations not covered by the remaining subsections of section 30. However, I agree with the reasoning and approach of the Courts of Criminal Appeal in both Jamieson and Colson with respect to the proper exercise of any such discretion. In particular, I agree with King CJ in Jamieson, and Doyle CJ in Colson to the effect that it will be only in very rare circumstances that it would be appropriate to fix an earlier commencement date so as to include a period during which the offender has not actually been in custody. As King CJ observed:
To do so would be to create a fiction that the offender is actually serving a sentence of imprisonment when he is not in custody at all and I do not think that is the purpose for which the power has been conferred upon the court.
The Judge in the present case, exercised the power to backdate on the basis that any credit to be allowed for time spent on home detention bail should be treated in the same way as time spent in custody. As a matter of principle, should it make any difference if the six months backdating is made up of time in custody and credit for time on home detention bail? In essence, the Crown supported this more expansive operation of subsection 30(1).
The primary concern raised in justification for such an approach is that simply to allow credit would give rise to a situation whereby formal records of the appellant’s sentence will understate the actual term of imprisonment ordered before the discount. In other words, by allowing credit rather than backdating, a different fiction is created; a fiction that this appellant was sentenced to a term six months less than was actually ordered.
As a practical matter, where situations of home detention bail are concerned the amounts of the credit to be allowed are likely to be relatively small. In this case, it was five months for a period of 22 months on home detention bail. Such a lengthy period on home detention bail typically (although not always) would suggest serious offending to be visited with a lengthy prison sentence. As such, the so called fiction associated with allowing credit will not, usually, be particularly concerning. Furthermore, such a fiction occurs in other circumstances and can involve more substantial “hidden” components of the sentence. For example, a prisoner’s antecedent criminal record does not ordinarily include a statement of any discount given for any plea of guilty which, under the present statutory environment,[36] can be anything up to 40 per cent.
[36] Sections 10B and 10C of the Criminal Law (Sentencing) Act 1988.
In my view, the fiction involved in backdating a sentence to a time when a person was not in custody and thereby creating a record falsely purporting to assert that the person was in custody, is the more potentially pernicious.
The “fiction” generated by the allowing of credit is not really a fiction at all. The record correctly discloses the sentence as passed. The final sentence is that figure arrived at after any discount for plea, after any allowance for time spent in either custody or on home detention bail and after issues of concurrency and totality have been allowed for. The final sentence is accurately recorded. What is not recorded, is the fact that a prisoner may have spent some additional time in custody or on home detention bail. It is not the purpose of an antecedent criminal record to show precisely the amount of time spent in custody; its purpose is to record the sentence as passed. How the sentence has been constructed can be determined from other documents including, for example, relevant sentencing remarks. A person’s antecedent criminal record will rarely assist with identifying time actually spent in custody. For example, there is no way of knowing, from that record alone, if and when parole might have been granted, or whether, and if so when, administrative release, pursuant to section 37A of the Correctional Services Act, might have been allowed. On the other hand, backdating to a time when the prisoner was not in custody presents a positive statement to the world that is simply incorrect.
The reason given by the Judge for the approach adopted was that, in his Honour’s view, it meant that “the record will truly reflect [the] prison sentences [imposed] and not one mathematically reduced to take into account [the discretionary credit given for time served on home detention bail]”. In my view, this is not sufficient to mark this case out as one of those “rare” cases, as envisaged in Colson and Jamieson, in which it might be appropriate to backdate to a time when the appellant was not in custody. I do not say that it would never be open to exercise any general discretion available under subsection 30(1) so as to backdate by way of allowing for discretionary credit given for time spent on home detention bail. However, there would need to be sound reasons based on the circumstances of the particular case, over and above a mere concern with the form of the record, to warrant it. I have difficulty, at present, envisaging such circumstances but am not prepared to exclude the possibility that such might arise.
Without attempting to describe the outer limits of any more general discretion said to exist pursuant to subsection 30(1) but bearing in mind the statements of principle in both Jamieson and Colson, the Judge erred in backdating by the full six months.
I appreciate that the “vice” I have resisted endorsing in the circumstances of this case can be permitted under subsection 30(2) with respect to time in custody.[37] However, I do not accept that section 30 when read as a whole was intended to permit the same approach, other than, perhaps, in an exceptional case, with respect to discretionary credit given for time spent on home detention bail.
[37] R v Tilley [2010] SASCFC 73.
I would allow the appeal, set the sentence aside and resentence the appellant. In doing so, I see no reason to depart from the sentence as imposed by the Judge other than as to the commencement date. On this basis, I am satisfied that a different sentence should have been passed.[38] I too would start with a head sentence of six years and a non-parole period of three years and six months, constructed on the same basis as did the Judge. However, I would reduce both by six months to five and a half years and three years respectively, by way of giving credit for the time spent in custody and on home detention bail prior to being sentenced. I would order the sentence to commence on the day of sentencing by the Judge, that is, 23 April 2015.
[38] Criminal Law Consolidation Act 1935, s353(4)(a).
BAMPTON J: I would allow the appeal. I agree with reasons of Nicholson J and the orders he proposes.
LOVELL J: I would allow the appeal. I agree with reasons of Nicholson J and the orders he proposes.