R v Galgey - [2010] SASC 134

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v GALGEY
[2010] SASC 134
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice White and The Honourable Justice Kelly)
7 May 2010
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - OTHER MATTERS
Appeal against sentence - appellant sentenced for possessing methylamphetamine for sale - offence was in breach of a suspended sentence bond and occurred during a period of parole - judge took into account several periods spent in custody for matters which would not otherwise have been reflected in a sentence and gave full credit for time spent on home detention bail - whether judge erred in failing to take into account two further periods in custody in relation to matters unrelated to the instant offence.
Held: judge arguably intended to give credit for the first period under consideration, though not the second. However, there is no right to have time on remand for separate offences credited against a sentence - the deduction for the earlier periods was greater than it should have been - sentence imposed was lenient in the circumstances - appeal dismissed.
Observations as to desirability of backdating a sentence rather than deducting from sentence time spent on remand.
Criminal Law (Sentencing) Act 1988 (SA), s 30, referred to.
R v Arts and Briggs [1998] 2 VR 261; R v Pahuja (No 2) (1989) 50 SASR 551; R v Wilson [2010] SASC 89; R v Malesevic (1999) 204 LSJS 32; R v Colson (1999) 73 SASR 407; R v P, NJ (No 4) (2008) 183 A Crim R 461; R v Al-Zuain (2009) 103 SASR 567; R v Hughey (2007) 252 LSJS 316; PNJ v The Queen (2009) 83 ALJR 384, considered.

R v GALGEY
[2010] SASC 134
Court of Criminal Appeal: Vanstone, White and Kelly JJ

VANSTONE J: The appellant was convicted in the District Court by verdict of a jury for possessing methylamphetamine for sale, the offence taking place on 4 January 2007. The offending was in breach of a bond associated with a six month suspended sentence, for offences committed in 2004. The offence was also committed during a period on parole, the unexpired balance of which was then four months and 13 days. The judge ordered that the suspended sentence be carried into effect and served cumulatively upon the unexpired balance of parole. He imposed a sentence of three years and eight months for the drug offence, to follow the other periods, resulting in a total head sentence of four and a half years and 13 days. The judge set a non-parole period of two years. The sentence was ordered to run from the date of its imposition, being 18 December 2009.
The sole ground of appeal, as amended on the day of the appeal hearing, is that the judge erred by not taking into account two periods of time spent in custody prior to sentence. The periods were eight months and 14 days in total.
The judge gave full credit for two other periods which the appellant spent in custody between charge and sentence for the instant offence, as well as for two periods spent on home detention bail during the same time span. It appears from his remarks on sentence that the judge was prepared to give credit for both time in custody and on home detention bail, where those periods would not otherwise be taken into account on any charge. He said the appellant would receive credit for “time spent in custody and on home detention bail awaiting … sentence for the instant offence or in respect of proceedings relating to charges since discontinued or withdrawn.” The judge was told that three of these four periods would never be reflected in a sentence, because they were remands in respect of other charges which did not ultimately proceed.
Having accumulated the two periods of custody and two periods on home detention bail, the judge arrived at 33 weeks, or approximately eight months, to be taken into account. Those periods covered the time from 8 October 2007 to 30 May 2008. The only time the appellant was without bail in respect of the instant offence occurred during this period. Even after having been found guilty upon her trial, the appellant remained on bail for the instant offence. The periods relevant for the purposes of this appeal occurred subsequent to the four periods just mentioned.
The first relevant period is between 29 December 2008 and 21 April 2009, amounting to three months and 23 days. That followed the appellant’s arrest for trafficking in a drug, a charge which was later withdrawn. Then, on 28 July 2009 the appellant was taken into custody upon being charged with robbery. Bail was refused. She remained in custody on remand until the sentence for the instant offence on 18 December 2009. That period was four months and 21 days. It is the combination of these two periods which counsel for the appellant argues should have been taken into account in imposing sentence. It appears from the papers that the robbery offence is yet to be dealt with and that a trial upon it might take place later this year.
I make the following general observations. The two periods which are in contention upon this appeal fall into different categories. The first can be viewed as what is sometimes called “dead time”. In other words, because the charge to which it related has been discontinued, it is not apparent that it will be readily taken into account at any point. The appellant argues that it should be viewed as attributable to the instant offence, because she would likely have been given bail had she not already been awaiting trial on the instant offence. Upon the approach taken by the sentencing judge to “dead time”, it might have been expected that he would include this period with those for which credit was given.
The second period, commencing 28 July 2009 relating to the robbery charge, did not fall into the same category. As I mentioned, that charge is still on foot. It is clear that the judge did not intend to take it into account and I consider that decision was open to him.
However, there is another issue. Having decided that the appellant would be given credit for a period equal to eight months imprisonment, the judge in fact took into account a period of 16 months. His reason for doing so was that the “period of eight months … is equivalent to a sentence of imprisonment of 16 months if a non-parole period is calculated upon the basis of 50 per cent of time in custody.” In my view this approach amounts to creating a fiction which is undesirable. This approach might have its genesis in the period preceding the “truth in sentencing” regime, when remissions would be credited by the gaol authorities against the sentence. That led to a situation where merely deducting the time spent on remand from a sentence was not equivalent to backdating the sentence. (See, for example, R v Pahuja (No 2) (1989) 50 SASR 551 per White J at 563.) However, that situation is long gone. Something similar was done by the learned sentencing judge in the case of R v Wilson [2010] SASC 89 which was recently before this Court. In my reasons at [44] I deprecated that approach and in his reasons, the Chief Justice agreed with me. On any view, it is better to “backdate” the sentence where possible. Alternatively, the actual time in custody should be deducted from the head sentence. If the period in question is a long one, the sentencing judge may wish to deduct it from the non-parole period as well. (See R v Malesevic (1999) 204 LSJS 32.)
In terms of this appeal, the consequence of the judge’s approach is that the appellant has had the benefit of more credit for time in custody than she earned. Not only were the periods of home detention bail counted as equivalent to time in custody – which in my view is extremely generous, if not questionable – but also the fiction created by the judge has given her double credit for the final total.
There is no right to have time in custody for quite separate offences credited against time on remand for another charge. As Callaway JA said in R v Arts and Briggs [1998] 2 VR 261 at 264:
There are, of course, many cases where a person cannot be given credit for pre-sentence detention. He or she may be on remand for several months and then acquitted. The time spent on remand cannot be regarded as a bank balance on which to draw in relation to offences unconnected with the reason for custody, but that is not the case here. As Lord Bingham of Cornhill CJ said on behalf of the Divisional Court in R v Governor of Brockhill Prison; Ex parte Evans [1997] QB 443 at 462:
It has in our experience been the practice to assume that all periods of custody before sentence, other than custody wholly unrelated to the offences for which sentence is passed, will count against the period of the sentence to be served [emphasis added].
On the other hand, this Court has held that s 30 Criminal Law (Sentencing) Act 1988 entitles a judge, as a matter of discretion, to take into account periods in custody prior to sentence, even where the time is not referable to the precise offence for which sentence is imposed: R v Colson (1999) 73 SASR 407; R v P, NJ (No 4) (2008) 183 A Crim R 461; R v Al-Zuain (2009) 103 SASR 567; cf. R v Hughey (2007) 252 LSJS 316. The High Court has approved that interpretation, at least in circumstances where a charge for an offence is succeeded by another: PNJ v The Queen (2009) 83 ALJR 384 at [17]-[18];
I return to position of the appellant. It is arguable that the judge intended to reflect the first period of pre-sentence custody in the sentence. As I said, it fell into the category for which the judge said he would give credit. Additionally, it is clear that had the appellant indicated that she wished to surrender her bail in respect of the instant charge, she could truly have claimed an entitlement to have this period credited. Since it appears that the judge planned to exercise his discretion favourably to the appellant in respect of this period, the Court would usually intervene to give effect to his intention. That is not to say that the judge was strictly obliged to take this first period into account.
The same considerations do not apply to the second period. As I previously observed, the judge’s decision not to take this period into account was open to him. It can be taken into account if, and when, the appellant is sentenced for the robbery offence. The fact that the appellant could, again, have surrendered her bail on the instant charge and have been serving this period, as what is sometimes called “doubly warranted” time, does not mean that the judge was in error in regarding it as not referable to the instant offence. I would not be inclined to interfere with the sentence in respect of this second period.
The result in terms of the final sentence is that the appellant is left with a head sentence and non-parole period which are each, probably, three months and 23 days longer than the sentencing judge intended.
I am not inclined to allow this appeal to make any reduction. In my view the sentence imposed for the instant offence was lenient. The head sentence was artificially reduced by an additional eight months. The appellant was fortunate indeed in having periods on home detention bail equated with time on remand. The non-parole period was very lenient. It cannot be said that a lesser sentence should have been passed.
For these reasons, I would dismiss the appeal.
WHITE J: I agree with the order proposed by Vanstone J and with her reasons.
KELLY J I agree with the order proposed by Vanstone J and with her reasons.