R v Gill - [2019] SASCFC 22

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v GILL
[2019] SASCFC 22
Judgment of The Court of Criminal Appeal
(The Honourable Justice Kelly, The Honourable Justice Bampton and The Honourable Justice Hinton)
8 March 2019
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TIME SPENT IN CUSTODY
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS
CRIMINAL LAW - PROCEDURE - BAIL - BEFORE TRIAL
Application for permission to appeal against sentence – defendant sentenced for firearm offending – where sentencing Judge afforded no credit for time spent on home detention bail – where defendant was on parole during period of home detention bail – whether the Judge ought to have afforded credit for time spent on home detention bail.
Held, per Bampton J (Kelly J agreeing, Hinton J dissenting), refusing permission to appeal – it was appropriate for the Judge to decline to make an allowance for the time spent on home detention.
Firearms Act 1977 (SA) s 5, s 11; Correctional Services Act 1982 (SA) div 6A, sub-div 1, s 66, s 69, s 74A; Sentencing Act 2017 (SA) s 49; Bail Act 1985 (SA) s 10A, referred to.
R v Penny [2012] SASCFC 16, applied.
R v Tsonis (2018) 131 SASR 416, discussed.
R v Penny [2012] SASCFC 16; R v Franceschini (2015) 123 SASR 396; R v Filipoponi (2016) 126 SASR 464; Wong v The Queen (2001) 207 CLR 584, considered.

R v GILL
[2019] SASCFC 22
Court of Criminal Appeal: Kelly, Bampton and Hinton JJ

KELLY J: I would refuse permission to appeal for the reasons given by Bampton J.
BAMPTON J: Stuart Gill pleaded guilty to three counts of possessing a firearm without a licence, contrary to s 11(1) of the Firearms Act 1977 (SA) (“the Firearms Act”), on the morning of his trial in the District Court. Mr Gill was sentenced to an immediate custodial sentence of three years with a non‑parole period of two years.
Mr Gill seeks permission to appeal on the ground that the sentencing Judge erred in imposing a sentence that failed to give proper regard for time he spent on home detention bail. I would refuse permission to appeal for the reasons that follow.
Background
Circumstances of the firearm offending
On 24 September 2016, police attended and searched an address at Lonsdale pursuant to the Firearms Act. At the address was an industrial shed that had been set up as living quarters. When police arrived, Mr Gill was present with his partner and young daughter. Following a search of the premises, police located a Lithgow sawn-off bolt action rifle underneath a three-seater couch. This was the subject of count 1. A Model Guns Corporation imitation revolver was located in the drawer of a cabinet. This was the subject of count 2. Another Lithgow bolt action rifle was located under a single seat couch. This was the subject of count 3. Mr Gill was arrested, charged, taken into custody and refused bail.
The 2013 bond
As at the date of his arrest on 24 September 2016, Mr Gill was subject to a suspended sentence bond he had entered into before the District Court on 31 October 2013. Mr Gill had been sentenced to two years’ imprisonment with a non-parole period of 12 months for trafficking in a controlled drug. The sentence was suspended upon Mr Gill agreeing to enter into a three-year good behaviour bond (“the 2013 bond”).
Mr Gill had just over five weeks remaining on the bond when he was taken into custody on 24 September 2016 for the three firearm charges.
Committal for trial
On 4 April 2017, following a ruling in the Magistrates Court that there was a case to answer in respect of the firearm charges, Mr Gill was committed to trial in the District Court.
The 2017 sentence
On 25 May 2017, Mr Gill was sentenced to four months and six days’ imprisonment by the District Court for six counts of driving while disqualified. Mr Gill admitted this offending breached the 2013 bond. The suspension of the sentence underlying the 2013 bond was revoked and Mr Gill was ordered to serve the two‑year sentence of imprisonment. The sentence of four months and six days for driving while disqualified was ordered to be served cumulatively on the two‑year sentence. A non-parole period of one year was fixed. The sentence of two years, four months and six days was backdated to 26 September 2016 (“the 2017 sentence”).
Mr Gill’s arraignment and the application for home detention bail
Mr Gill pleaded not guilty to the three firearm charges at his arraignment in the District Court on 26 May 2017.
On 17 August 2017, while he was serving the 2017 sentence and on remand in respect of the firearm charges, Mr Gill made application for home detention bail. As Mr Gill was charged with firearm offending, he was a prescribed applicant.[1] Mr Gill submitted that special circumstances existed such that he should be granted bail pending determination of the firearm charges. The District Court was informed that Mr Gill’s non-parole period in respect of the 2017 sentence was about to expire in September 2017. Mr Gill had, in the interim, sought to make application for early release on home detention through the Department for Correctional Services.[2] However, he had not been able to make the application because he was remanded in respect of the firearms charges
[1] Bail Act 1985 (SA) s 10A(2).
[2] Correctional Services Act 1982 (SA) Div 6A, subdiv 1.
Mr Gill submitted that the special circumstances warranting a grant of bail were the effluxion of time since 24 September 2016 (the date of the offending), the assistance he provided to his mother in the care of his significantly disabled younger brother, the fact that he had served a significant part of the 2017 sentence, and the fact that the case against him was one that required there to be a case to answer on the assistive evidentiary provisions of the Firearms Act in relation to someone being an occupier of the premises. A District Court Judge granted home detention bail on 17 August 2017, noting that Mr Gill could not be released until the expiration of his non-parole period in respect of the 2017 sentence. Mr Gill signed the home detention bail agreement at the Mount Gambier prison on 18 August 2017.
The order for release on parole
The non-parole period fixed by the 2017 sentence expired on 25 September 2017.
By reference to a Parole Board letter dated 24 January 2019 (“the Parole Board letter”), Mr Gill commenced serving parole for the 2017 sentence on 25 September 2017, to expire 31 January 2019. The Parole Board refers to this parole period as the “first parole”. I will do likewise.
Section 69(1) of the Correctional Services Act 1982 (SA) (“the Correctional Services Act”) provides that:
A prisoner (not being a prisoner serving a sentence of life imprisonment) who is released on parole will, unless the release is cancelled or suspended, the parole order is discharged or the sentence is extinguished, remain on parole until the expiry of the term, or terms, of imprisonment to which the prisoner was sentenced.
(Emphasis added)
Therefore, upon his release from custody on 26 September 2017 on home detention bail, Mr Gill was also serving the first parole.
The guilty plea and the sentence
Mr Gill then pleaded guilty to the firearm charges on the day his trial was due to commence, 15 May 2018. Each of the three firearms Mr Gill pleaded guilty to possessing was classified as a class H firearm.
The sentencing Judge stated in his remarks that, as the firearm offending had been committed whilst Mr Gill was subject to the 2013 bond, pursuant to s 49(1)(e) of the Sentencing Act 2017 (“the Sentencing Act”) his offending is serious firearm offending.[3] The Judge indicated at the commencement of his sentencing remarks that he would reduce the sentence he would otherwise have imposed by 10 percent on account of Mr Gill’s guilty plea.
[3] As such, upon conviction of a serious firearm offence, Mr Gill is, by force of s 50 of the Sentencing Act, taken to be a serious firearm offender. As a serious firearm offender, s 51 of the Sentencing Act prescribes that the sentence of imprisonment must be imposed and cannot be suspended unless Mr Gill’s personal circumstances were so exceptional as to outweigh the paramount considerations of protecting the safety of the community and personal and general deterrence, and it was, in all of the circumstances, appropriate to suspend the sentence. Mr Gill did not give any such evidence.
Time in custody and on home detention bail
Upon Mr Gill’s release from custody on 26 September 2017 he was subject to conditions of home detention until 26 July 2018 when he was sentenced for the firearm offending, a total of 303 days. The fact that he was serving the first parole at the same time that he was on home detention was not mentioned during submissions or in the sentencing remarks.
The Judge referred to Mr Gill’s time in custody and his time on home detention bail. His Honour made the following remark in relation to “any credit on home detention”:
The grant of home detention bail was deceptive on your part because it was partly on the basis that the charges here before me were contested but you knew you were guilty all the time because you eventually pleaded guilty before me.
It is this remark that Mr Gill argued demonstrates that the Judge erred in not exercising his discretion to make an allowance for the period he had spent on home detention bail. The Director conceded that whilst the Judge did not say he was not allowing any credit for home detention because he found that Mr Gill was deceptive in making the application for bail, that is in effect what the Judge did. The Director, however, contended that this was not an error that vitiates the sentence as it was open to the Judge to decline to allow credit irrespective of Mr Gill’s motivation.
In relation to time in spent custody, the Judge recorded in his remarks that he would take into account in sentencing the two days Mr Gill had spent in custody between his arrest on 24 September 2016 and 26 September 2016, the date from which the 2017 sentence took effect.
The Judge imposed a sentence of three years’ imprisonment in respect of count 1, one year’s imprisonment in respect of count 2, and one year’s imprisonment in respect of count 3, with all sentences to be served concurrently. Mr Gill accepts that the sentences were reached after the Judge afforded him a 10 percent discount for his guilty pleas. His Honour declined to order that the sentence be served on home detention, and set a non-parole period of two years.
The appeal
Mr Gill accepted that the Court exercises a broad discretion in determining whether to allow credit and the extent of any credit for time spent on home detention bail.
It is my view that the while the impugned remark regarding the grant of home detention bail should not have been made, it did not affect the sentence imposed. Mr Gill was entitled on his home detention bail application to make submissions regarding “the paucity of evidence the prosecution had to prove his guilt”.[4] His conduct in doing so and later pleading guilty does not amount to deceptive conduct.
[4] Judge’s comment during sentencing submissions.
The reason why the remark does not vitiate the sentence lies in the fact that Mr Gill was serving the first parole while on home detention bail. Pursuant to s 66 of the Correctional Services Act, the Parole Board was obliged to order that Mr Gill be released on the expiry of the non-parole period attached to the 2017 sentence. Had he not been granted bail on 17 August 2017, he would have remained in custody serving the 2017 sentence and on remand for the firearm charges.
The Parole Board letter
As Mr Gill was sentenced to an immediate term of imprisonment on 26 July 2018 for the firearm offending, his first parole was suspended for the duration of the imprisonment he will serve in relation to the 26 July 2018 sentence. The Parole Board explains in its letter:
As such, Mr Gill’s parole was suspended from 26 July 2018 to approximately 25 July 2020 pursuant to Section 74a of the Correctional Services Act, 1982 for the duration of imprisonment.
Section 74A of the Correctional Services Act provides:
74A—Suspension of parole while serving imprisonment for offence committed before release on parole
Where a person who has been released on parole is sentenced to imprisonment for an offence committed before release on parole or for non-payment of a pecuniary sum—
(a)the parole is suspended for the duration of the imprisonment actually served in prison in pursuance of the subsequent sentence; and
(b)on release from prison—
(i) the person will continue on parole in respect of the sentence that was first imposed for the balance of the period of parole remaining as at the date of the commencement of the subsequent sentence; and
(ii) if released on parole from the subsequent sentence, the person will on release also be on parole in respect of that sentence for the period of that parole.
Attached to the Parole Board’s letter is a copy of a Parole Board advice slip dated 31 October 2018 addressed to Mr Gill which records that:
2.Parole was suspended from 26/07/2018 to approximately 25/07/2020 pursuant to Section 74a of the Correctional Services Act, 1982 for the duration of the imprisonment, for an offence committed prior to release on parole. Sentenced 26/07/2018 to 3 years imprisonment with a non-parole period of 2 years to commence from 26/07/2018. 2 years remainder of parole to be served.
3.Eligible for release on second parole on 25/07/2020, which will expire 25/07/2021.
4.Parole expiry date on first parole is now approximately 31/01/2021.
This date will be verified once released on second parole.
5.Both Paroles will run at the same time.
DECISION:Noted Parole Suspended from 26/07/2018 to approximately 25/07/2020 pursuant to Section 74a of the Correctional Services Act, 1982. Original parole expiry is now 31/01/2021.
As the Parole Board documentation makes clear, in accordance with the Correctional Services Act, between 25 September 2017 and 26 July 2018 Mr Gill was serving the first parole.
Pursuant to s 69 of the Correctional Services Act, he remained on the first parole until it was suspended in accordance with s 74A of the Correctional Services Act when he was sentenced for the firearm offending on 26 July 2018.
In R v Penny,[5] Gray J commented that it may be inappropriate to allow credit for home detention when a person is on parole at the same time he is on home detention:
The Judge as noted above did not give further credit for time on home detention. The Judge’s reason for not giving credit was described by counsel to be ambiguous. It would appear that an explanation may lie in the fact that defendant was on parole at the same time as he was on home detention. While on parole, the defendant was serving the sentence of imprisonment to which that parole attached. It may be thought to be inappropriate in those circumstances to allow credit for the home detention in respect of the present sentence.
(Emphasis added)
[5] [2012] SASCFC 16 at [23].
Conclusion
Having regard to s 69 and s 74A of the Correctional Services Act, as Mr Gill was serving the first parole at the same time as he was subject to the home detention bail agreement, it was appropriate for the Judge to decline to make an allowance for the time spent on home detention.
Accordingly, I would refuse permission to appeal.
HINTON J:
On 26 July 2018 the applicant, Stuart Gill, was sentenced to imprisonment for three years after pleading guilty the day after his trial was due to commence to three counts of possessing a class H firearm without a licence (the firearms offences).[6] A non-parole period of two years was fixed. Both the head sentence and non-parole period commenced on the day of sentence.
[6] Contrary to s 11(1) of the Firearms Act 1977 (SA).
The applicant seeks permission to appeal against his sentence on the ground that the sentencing Judge “failed to give proper credit for time [the applicant] spent … on home detention bail”.
The applicant was released on home detention bail on 26 September 2017. By the time he was sentenced he had been on home detention bail for 303 days. Prior to 26 September 2017 and since his arrest on 24 September 2016 the applicant was also in custody on other matters. In the course of being sentenced for those other matters he was given credit for the entirety of the time he had spent on remand in custody save for two days. As mentioned this application is, however, confined to the question of whether the Judge who sentenced the applicant for the firearms offences was right not to afford him any credit for the time he spent on home detention bail between 26 September 2017 and 26 July 2018.
In sentencing the applicant the sentencing Judge said:
You are a 31-year-old man, currently residing with your mother, stepfather and brother in the southern suburbs of Adelaide. You were granted home detention bail in August 2017 and have actually been on home detention bail since 24 September 2017 when you were released from custody on other matters.
The grant of home detention bail was deceptive on your part because it was partly on the basis that the charges here before me were contested but you knew you were guilty all the time because you eventually pleaded guilty before me.
The Judge made no further reference to the applicant having been on home detention bail.
The respondent accepts that the sentencing Judge did not discount the applicant’s sentence on account of the applicant having been on home detention bail at all.
The passage from the sentencing Judge’s remarks reproduced above is to be understood against the background of an interchange between the Judge and counsel for the applicant that occurred during the course of sentencing submissions. That interchange was as follows:
HIS HONOUR:    While I have interrupted, your client applied for bail in front of Judge McIntyre, didn’t he?
MR KORDICK:    Yes, home detention bail.
HIS HONOUR:    On the basis that he was not guilty of these offences and also the fact that he needed to I think assist in the rearing of a brother.
MR KORDICK:    Yes, he has a - yes.
HIS HONOUR:    So that was all rubbish, wasn’t it, because he was guilty because he has pleaded guilty?
MR KORDICK:    Well, yes.
HIS HONOUR:    So what I’m getting at, part of his justification, part of his special circumstances, so it was put, was the paucity of evidence the prosecution had to prove his guilt and he now turns around and pleads guilty.
MR KORDICK:    That, and a long discussion on the definition of possession.
HIS HONOUR:    It doesn’t matter what discussion then took place. Your client has since acknowledged possession by his plea of guilty.
MR KORDICK:    I can’t comment what happened, I wasn’t at the application, but I can’t take it any further. …
This Court was provided with the transcript of the bail application made before Judge McIntyre on 17 August 2017. The applicant was a prescribed applicant for the purposes of s 10A(1) of the Bail Act 1985 (SA) by virtue of his having been charged with a serious firearms offence.[7] As such, unless he established that special circumstances existed justifying his release on bail, he was to be remanded in custody.
[7] Bail Act 1985 (SA), s 10A(2)(e).
Before Judge McIntyre counsel for the applicant relied upon a combination of factors as amounting to special circumstances. One factor was that the prosecution case was reliant upon the expanded definition of possession contained in s 5(14)(c) of the Firearms Act 1977 (SA). In this connection counsel referred to no case to answer submissions that were made in the Magistrates Court as part of the committal process which had succeeded in part in that no case to answer was found on a charge relating to the possession of ammunition. I understand the basis for that success lay in the fact that the prosecution case on all counts was said at that stage to be reliant on the expanded definition of possession. That definition applied to firearms but not ammunition, hence the outcome of the submission of no case to answer on the charge relating to ammunition. Before Judge McIntyre counsel submitted that at trial, relying upon s 5(14)(c), the prosecution would need to prove that the applicant was an occupier of the premises. He then addressed what he considered to be the paucity of evidence on that issue as at that time. Counsel advised Judge McIntyre that after a review of the prosecution case the Director had indicated an intention to proceed on the firearms offences and that he understood that further evidential material was being sought. I will return to this below.

The matter is complicated by the applicant’s parole status. On 25 May 2017 the applicant was sentenced to imprisonment for two years, four months and six days for other unrelated offending. That sentence and related non-parole period commenced on 26 September 2016. The effect of this was that even though the applicant was granted bail in August 2017, he was not released until the non‑parole period imposed on 25 May 2017 expired on 25 September 2017.
In this Court the thrust of the submissions made by counsel for the applicant was that the applicant’s attitude as at the time that he sought bail on the firearms offences did not disentitle him to some discount for the time he had spent on home detention bail in respect of those offences and that it was wrong not to afford the applicant some discount.
The respondent submitted that however one might characterise the applicant’s attitude at the time of the bail application, it is plain that the sentencing Judge considered he should receive no advantage on account of the time the applicant spent on home detention bail. Further, irrespective of whether the sentencing Judge was correct to deny the applicant any credit for the time he had spent on home detention bail on the basis of a conclusion that the applicant had been deceptive, it was nonetheless open to the Judge to act as he had done. Counsel explained:
The consequence of the appellant seeking and obtaining home detention bail at that time, and then choosing to enter guilty pleas on the day fixed for trial, was that, if guilty, the time at which he would have to commence serving a sentence of imprisonment in a prison was delayed. In those circumstances, if the Learned Sentencing Judge did allow credit for that time on home detention (in the form of a reduction of the time that the appellant would spent [sic] in prison), then the appellant would be advantage [sic] by a reduced period of time in which he would be in prison, as a result of his choosing to delay entering the guilty pleas.
There is no shortage of authority in this Court for the proposition that a sentencing judge possesses a discretion as to whether or not to afford an offender any reduction in sentence in view of that offender having served a period of time on home detention bail.[8] There is, however, little authority that assists a sentencer in determining when it is appropriate to reduce a sentence on account of time spent on home detention bail and to what extent beyond statements such as, the decision being discretionary, it must be exercised judicially and not arbitrarily or capriciously. In my view some assistance is to be found in the approach to time spent in custody. In this regard in R v Tsonis (Tsonis) this Court observed:[9]
When a defendant has spent time in custody on remand for the offences for which he is ultimately sentenced, s 30(2) of the Criminal Law (Sentencing) Act provides that the sentencing judge “may ... take into account” that time and either make “an appropriate reduction in the term of the sentence” (s 30(2)(a)) or direct that the sentence be taken to have commenced on the day the defendant was taken into custody or some intermediate date (s 30(2)(b)). Further, s 30(6) 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.
It is accepted that by reason of the use of the word “may” in s 30(2), the sentencing judge has a discretion as to the extent of any credit given for time served in custody. The reference to an “appropriate” reduction rather than a reduction that necessarily reflects precisely the time spent in custody is also consistent with the sentencing judge having some discretion as to the extent of the credit given.
That said, the practice which has developed is to give the defendant full credit for the time spent in custody. This practice has variously been described as the usual practice, the typical practice, and an almost universal practice. Further, when full credit is given, it is generally calculated to the day, although it is accepted that mathematical precision is not necessarily required.
[footnotes omitted]
[8] See, for example, R v Penny [2012] SASCFC 16 at [24]-[27] (Gray J, Anderson and Stanley JJ agreeing).
[9] (2018) 131 SASR 416 at [67]-[69].
In light of the “usual practice of giving full credit” the Court considered that ordinarily “there must be some good reason — that is, some reason or circumstance that reflects sound sentencing principles — before it is appropriate to give less than full credit” for time spent in custody pending sentence.[10]
[10] R v Tsonis (2018) 131 SASR 416 at [75] (footnote omitted).
In Tsonis the respondent submitted that the refusal to afford credit to an offender for time spent in custody amounted to a refusal to extend a measure of leniency where the sentencer might otherwise have done so. That submission was rejected by the Court:[11]
While accepting the validity of this distinction in certain contexts, we do not consider it appropriate to rely upon it when determining the significance of something as real and fundamental as time served in custody. Certainly the distinction that the law sometimes draws between punishing and withholding leniency would be lost on the person who has served time in custody. The significance of the deprivation of liberty and hardship associated with every day spent in custody should never be overlooked. And in the face of a usual, if not almost universal, practice of giving full credit for time served in custody, we consider it would be artificial to regard the withholding of full credit as a mere withholding of leniency as opposed to an outcome tantamount to punishment.
[11] R v Tsonis (2018) 131 SASR 416 at [85].
In my view one of the main reasons for affording credit in respect of time spent in custody is revealed in this passage — the deprivation of liberty consequent upon the offender being remanded in custody is “tantamount to punishment” for the offence with which the offender is charged and for which he or she is ultimately sentenced. Accepting this, the focus is upon the impact that the denial of liberty has upon the offender and its contribution to sentencing. That is to say, the effect of the deprivation of the offender’s liberty upon the offender will be relevant to the sentencer’s assessment of the need to further deter the offender specifically and to the offender’s prospects of rehabilitation. Further, whilst it may be arguable at a high level of abstraction that the deprivation of the offender’s liberty consequent upon his or her being remanded in custody before trial or before pleading guilty is not punitive, from the offender’s point of view the reality is that in connection with his or her offending he or she has lost their liberty. It is “tantamount to punishment” for the offending. As such the exaction or impost upon liberty that the process has effected is relevant to the sentencer’s assessment of the extent to which the sentence to be imposed must further punish. Lastly, taking into account time spent in custody does not undermine the general deterrent purpose of the sentence imposed. The ordinary person will not separate pre- and post-sentence detention for different treatment. The ordinary person will consider the total period of liberty lost as the punitive consequence of the offending. If this analysis is right, it is hardly surprising that in relation to time spent in custody the usual practice is that full credit be given. It also explains why in accounting for time spent in custody the preferable course is to backdate the ultimate sentence imposed so that the true sentence imposed is readily identifiable by all concerned.
In my view a similar approach is to be taken to time spent on home detention bail. Hence in Tsonis the Court remarked:[12]
In the context of determining the extent of any credit to be given for time spent on home detention bail (as opposed to time spent in custody), the courts do exercise a very broad discretion having regard, inter alia, to the nature and extent of the conditions imposed upon the defendant, the imposition they represent for the defendant, and the defendant’s compliance with them. In some cases the sentencing judge may quite appropriately give no credit at all for the time spent on home detention bail, although depending upon the length of time involved and other matters, such as those mentioned above, that will not always be appropriate. And further, where credit is given, there is no formula for determining the extent of the credit to be given. While full credit (in the sense of day for day credit) will rarely if ever be appropriate, the permissible range will generally be quite broad.
[footnotes omitted]
[12] (2018) 131 SASR 416 at [86].
The factors to which the Court referred as relevant to the exercise of the discretion as to whether and to what extent to afford an offender credit for time spent on home detention bail focus upon the punitive experience that bail on home detention entailed in the individual case and its relevance or contribution to the purposes of the sentence to be imposed.
In Tsonis the Court also observed:[13]
But in our view there is no close analogy between the exercise of the discretion to give credit for time spent on home detention bail, and the exercise of the discretion to give credit (or give less than full credit) for time spent in custody. In the case of the latter, there is no occasion for weighing the extent of the imposition of custody upon the particular defendant, or the extent of their compliance with the requirements of custody. Time in custody is time in custody. To allow less than full credit for time spent in custody would often give rise to an understandable sense of grievance or injustice on the part of the defendant. The reality, and fundamental nature, of considerations such as these have no doubt contributed to the practice that has developed of giving full credit for time spent in custody.
[13] (2018) 131 SASR 416 at [87].
It is the difference in the nature of the punitive experience and the contribution it makes to the purposes of the sentence that denies any close analogy. Hence in R v Franceschini Nicholson J said:[14]
… 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.
[14] (2015) 123 SASR 396 at [42].
Nicholson J added that time spent on home detention bail “is akin to a personal circumstance to be taken into account” by which I understand him to refer to the contribution that such circumstance makes to the purposes of the sentence in the manner that I have attempted to explain above.[15]
[15] R v Franceschini (2015) 123 SASR 396 at [42].
It follows that in determining whether to make any deduction in sentence to account for time spent on home detention bail the sentencer will need to consider the significance of the punitive experience to the purposes of the sentence to be imposed. In undertaking that task the observations of Kourakis CJ in R v Filipponi, albeit made in a context of a sentence of imprisonment suspended and ordered to be served on home detention, are of assistance:[16]
… some home detention orders will allow a great deal of social mobility and interaction with the community. That is particularly so if the defendant is in employment. I take remunerated employment to include self-employment. Much employment is now not confined to a particular workplace. It is not uncommon for employees to travel to public places or to private homes to perform their work. The condition allowing a person to leave his or her home for a purpose approved by a home detention officer also allows much scope for community interaction. The effect of such wide conditions is to substantially ameliorate the burden of home detention. The major part of the day for most working people is taken up by obligations such as work, child-minding and household chores. If permission to leave the home for those purposes is allowed a home detention order may not pose much restriction on movement. That is even more the case if permission is granted to leave the home for important family and social occasions or for the purposes of education. It must also be remembered that people can be received and entertained in the home. …
[16] (2016) 126 SASR 464 at [31].
The Chief Justice went on to acknowledge that the “deprivation of the freedom to come and go at will, to enjoy the outdoors, other public places and to visit others privately is a substantial burden”.[17]
[17] R v Filipponi (2016) 126 SASR 464 at [31].
The question becomes, having regard to the punitive experience imposed by the conditions of home detention bail (which includes consideration of the period during which the offender’s liberty was curtailed) in addition to all other relevant circumstances, what is required to protect, punish, deter and rehabilitate? Framed in this way, it may be difficult to separate out time spent on home detention bail for any particular quantitative reduction.[18] Further, so framed it matters not that the applicant delayed the commencement of his custodial sentence by applying successfully for home detention bail.
[18] See Wong v The Queen (2001) 207 CLR 584 at [76] (Gaudron, Gummow and Hayne JJ).
Where a specified reduction is made it will likely reflect the contribution that the loss of liberty on home detention bail makes to the punitive component of a sentence, but the effect of home detention bail upon the offender is not limited to that component. I accept that there is an element of artificiality in separating out the impact that home detention bail has on one of the purposes of sentencing for specific treatment. That explains why often this Court speaks of a judge as possessing a broad discretion in this area. It is, however, more an argument against making a specific reduction rather than one contesting the relevance of time spent on home detention bail to the exercise of the sentencing discretion.
Tsonis is important to the resolution of this appeal in one further respect. In Tsonis one reason raised as to why the sentencing Judge did not afford the appellant full credit for time spent in custody was the appellant’s non-attendance at court and absconding from police. The Court said:[19]
Here, it cannot be said that any part of the approximately seven months spent in custody was referable only to some other offending. Rather, the reason given for declining to give full credit was, in effect, the appellant’s interference with the progress of these proceedings through his non-attendances in court and evasion of police. But even if it be accepted that the appellant’s disobedient conduct more generally was the reason he was taken into custody, the time then spent in custody remained time spent in respect of the subject offending. The disobedient conduct was thus not a barrier to the giving of credit, or indeed full credit, for the time spent in custody.
The issue that remains is the relevance, if any, of the appellant’s disobedient conduct. We accept that this conduct may properly have informed the sentencing discretion more generally (for example, by negatively impacting upon the assessment of the appellant’s prospects of rehabilitation). There would be an analogy in this respect with the relevance of poor compliance by a defendant with the requirements of his bail while awaiting sentence. However, we are not satisfied that this conduct was relevant to whether or not full credit should be given.
Indeed, it seems to us that there is a difficulty associated with relying upon this conduct to give less than full credit for the time spent in custody. In particular, the refusal to give full credit for the time spent in custody on account of this conduct would in our view be tantamount to imposing an additional punishment upon the appellant for his disobedience. Consistently with the principle in R v De Simoni, the appellant ought not have been punished, when being sentenced for the subject offending, for any disobedience in his approach to the Court and the authorities. Certainly he should not be punished for those matters which are the subject of ongoing dispute; although the sentencing judge did expressly purport to put those aspects of the chronology to one side. But in our view he should also not have been punished for his admitted disobedience in the absence of separate charges and convictions for that conduct (for example, for breach of bail, obstructing the police or contempt of court).
[footnote omitted]
[19] R v Tsonis (2018) 131 SASR 416 at [81]-[83].
In my view the same may be said of the allegation of deception in this case. Further, I am not persuaded that there was necessarily any deception perpetrated. An accused is entitled to put the prosecution to proof. The no case to answer submission made in the Magistrates Court and the submissions made before Judge McIntyre are consistent with the applicant doing so. Just because he changed his mind and pleaded guilty does not mean that he acted deceptively.
In the present case the home detention bail agreement allowed the applicant to leave home for the purposes of undertaking employment deemed suitable by his Community Corrections Officer and for any other particular purpose in relation to which he first obtained permission. We were told that the applicant was unemployed throughout the period of his release on home detention bail. We do not know to what extent he was otherwise permitted to leave his parents’ home where he was resident.
At this juncture it is necessary to return to the fact that the applicant was also on parole. If an offender is on parole and on home detention bail at the same time, as in this case, then the consequent constraint on his or her liberty is referrable to past offending, in the case of parole conditions, and offending for which he or she is yet to be sentenced, in the case of home detention bail conditions. Whilst the offender’s response to parole conditions will form part of his or her overall personal circumstances to be taken into account in sentencing, any related loss of liberty cannot be treated in the same way as time spent on home detention bail vis-à-vis the punitive or retributive purpose of the sentence for the offending in relation to which the offender was on bail. Here perhaps matters become metaphysical because of the difficulty in attributing to home detention bail independent of parole consequences relevant to sentence. In these circumstances it may not be possible to tease out a meaningful difference, in which case an offender’s response to home detention bail and parole will be thrown into the melting pot with all other relevant factors to be taken into account in arriving at the appropriate sentence.
In the present case the applicant’s parole conditions did not include home detention with electronic monitoring. They did, however, include a curfew. The remaining conditions of both bail and parole were relatively inconsequential in terms of their direct effect on liberty. As to the impact of the rehabilitative provisions of parole, there is no evidence that they were implemented, or, if they were, their effect.
Having regard to the observations of the Chief Justice in R v Filipponi, to which reference has been made above, there has been a punitive exaction attributable to the applicant’s home detention bail conditions over and above that attributable to his parole conditions. I do not think it can be said that over a period of 303 days that exaction is not significant. I do not consider that the exaction could have no or little consequential bearing on the purposes of sentencing in the applicant’s case.
In my view, respectfully, the sentencing Judge erred in his refusal to take into account the time that the applicant spent on home detention bail. As I am in the minority it is unnecessary to proceed to re-sentence.

I would grant permission to appeal and allow the appeal.