R v Hudson - [2016] SASCFC 60

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v HUDSON
[2016] SASCFC 60
Judgment of The Court of Criminal Appeal
(The Honourable Justice Nicholson, The Honourable Justice Parker and The Honourable Justice Lovell)
19 May 2016
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - IMPORT-EXPORT OFFENCES
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TIME SPENT IN CUSTODY
Appeal against sentence. On 14 November 2013, the appellant was charged with the offence of importing a commercial quantity of a border control drug, namely heroin, contrary to section 307.1(1) of the Criminal Code 1995 (Cth). The appellant was in custody on remand for a period of eight months and three days before being released on home detention bail.
On 3 September 2014, following a trial by jury, the appellant was convicted of the offence, bail was revoked and she was taken into custody. On 20 October 2015, the appellant was sentenced to nine years imprisonment backdated to commence on 3 September 2015. The Judge further ordered that the appellant be released on her own recognizance after serving 50 months of the term of imprisonment. It was a condition of the recognizance release order that the appellant be of good behaviour for 24 months.
The appellant contends that the head sentence of nine years imprisonment is manifestly excessive, the recognizance release period of 50 months is manifestly excessive, and that the Judge failed to take into account, or articulate the consideration of, the eight months and three days spent in custody and a little over 13 months spent on home detention bail.
Held per Nicholson J (Parker and Lovell JJ agreeing) allowing the appeal:
1. The Judge erred by not taking into account the time spent in custody on remand between 14 November 2013 and 17 July 2014, being eight months and three days, when setting the head sentence and the recognizance release period.
2. The original sentence is set aside and the appellant is resentenced with a head sentence of eight years imprisonment backdated to commence 3 September 2015. The appellant is to be released after serving three and a half years provided that she enters into a security by way of her own recognizance. The length of the recognizance is to be 24 months, during which the appellant is to be of good behaviour, and the recognizance amount is $500.
Crimes Act 1914 (Cth) s 16A, s 19AB, s 19AC, s 19AHA; Criminal Code 1995 (Cth) s 307.1; Criminal Law (Sentencing) Act 1988 (SA) s 9A, s 10, referred to.
R v Franceschini [2015] SASCFC 116, (2015) 123 SASR 396; R v Rowe [2016] SASCFC 33, discussed.

R v HUDSON
[2016] SASCFC 60
Court of Criminal Appeal: Nicholson, Parker and Lovell JJ
NICHOLSON J.
Introduction

On 3 September 2015, Deliah Gidget Hudson (the appellant) was found guilty after a trial by jury of the offence of importing a commercial quantity of a border control drug contrary to section 307.1(1) of the Criminal Code 1995 (Cth). Bail was revoked and the appellant taken into custody on that day. The maximum penalty for this offence is life imprisonment. On 20 October 2015, the appellant was sentenced to nine years imprisonment backdated to commence 3 September 2015. The Judge further ordered that the appellant was to be released on her own recognizance after having served 50 months of the term of imprisonment. It was a condition of the recognizance release order that, following her release, the appellant was to be of good behaviour for 24 months.
The appellant sought permission to appeal on six amended grounds. At the permission hearing before a single Judge, permission was granted with respect to grounds 2 and 5 with all other grounds being referred to the Court of Criminal Appeal for the question of permission to be dealt with in conjunction with the hearing of the appeal on grounds 2 and 5. The six grounds of appeal are as follows.
1.The head sentence of 9 years is manifestly excessive.
2.The Judge erred in not taking into account time in custody between 14 November 2013 and 17 July 2014 when setting the head sentence.
3.The Judge erred in specifying how the period of home detention was taken into account when setting the head sentence.
4.The period of 50 months to be served before release on recognisance is manifestly excessive.
5.The Judge erred in not taking into account the time spent in custody between 14 November 2013 and 17 July 2014 when setting the period of 50 months to be served before release on recognisance.
6.The Judge erred by not specifying how the period of home detention was taken into account when setting the period of 50 months to be served before release on recognisance.
As far as grounds 2 and 5 are concerned, the respondent conceded that the Judge overlooked making an allowance for the period of eight months and three days that had been spent in custody on remand awaiting trial. The respondent acknowledged that this was an error. However, the respondent’s primary submission was that, notwithstanding this error, the appeal should be dismissed because the sentence imposed was lenient and that, as a consequence, this Court, following any resentencing exercise, ought not interfere with the final sentence.
For the reasons that follow, I would allow the appeal on the basis of grounds 2 and 5 and I would resentence the appellant to a term of imprisonment for eight years with a new recognizance release period of three years and six months, both to commence 3 September 2015. As a consequence, the appellant will need to enter into a new recognizance release order.
Whilst not adverted to during the hearing of the appeal, ground 3 would appear to contain a typographical error. It should read similarly to ground 6, the composite assertion being that the Judge failed to specify in her reasons how the period of home detention was to be taken into account when setting both the head sentence and the recognizance release period.
In any event, given that I would allow the appeal on grounds 2 and 5, it is unnecessary to consider further or in any detail the other grounds of appeal for which permission has not yet been given. However, I do add that I am not satisfied that a starting point of nine years imprisonment with a starting point of 50 months for the recognizance release period is to be seen as manifestly excessive when regard is had to the nature of the offending in question and the personal circumstances of this offender (grounds 1 and 4).
Circumstances of the offending
Very little is understood about the circumstances in which and why the appellant came to offend in the manner that she did. The Judge, with the benefit of having heard the trial, summarised in her sentencing remarks the basal facts.
Deliah Gidget Hudson, you have been found guilty of importing a commercial quantity of a border controlled drug. The circumstances of your offending are that on 14 November 2013 you imported 1.729 kg of pure heroin into Australia in two packages concealed within your backpack on a flight from Singapore.
I understand that on 13 November 2013 you flew from Phnom Penh in Cambodia to Singapore and then on the same day flew to Adelaide. You carried only hand luggage, had no bookings arranged for accommodation in Adelaide and no flights booked for return to your home in New Zealand.
The maximum penalty for this offending is life imprisonment. Sentencing in matters such as this requires particular attention to deterring others from offending in this way. The Crown has accepted that your role in this matter was as a courier. That is not to say that your role was not important. The role of courier is an essential part of importation.
At the trial I heard evidence that the potential street value of the heroin that was seized could total just under $5 million. While I accept that that may not necessarily have been what was achieved, the heroin was undoubtedly of considerable value.
Although I know nothing about what you were to gain as a result of your offending or any background as to why you offended in this way, I accept the Crown’s submission that it is a matter of common sense to infer that you were offending in order to obtain some personal benefit.
Notwithstanding that the appellant committed just the single offence and acted in the role of courier, the offending was very serious. Nevertheless, the personal circumstances of the appellant are such as to suggest scope for leniency when setting a penalty within the range appropriate for this type of offending.
The appellant’s personal circumstances
The appellant is a resident of New Zealand. She was 49 years of age at the time she committed the offence (14 November 2013). She has a quite limited prior record of criminal offences committed in New Zealand, essentially irrelevant for present purposes, and no record of offending in this country. She has no prior offences or history known to the Court relating to drugs. The appellant has six siblings and has four, now adult, children. She has two grandchildren.
After leaving school at 15, the appellant commenced a lengthy and productive period of work. She is a very skilled seamstress. She has undertaken administrative and clerical type work. The appellant completed a two year course which permits her to work as a counsellor to women and children in need and has spent periods working as a counsellor, whilst also working as a seamstress. The appellant has also done a four year teaching degree and has tutored in New Zealand at an Institute of Fashion Technologies. She has spent time as a production manager for a company creating pool covers.
In addition to all of this, the appellant has cared for her grandchildren and worked as a student coordinator with the Maori Health Services. The appellant has also participated in online marketing work. She has a strong desire, largely as a result of her own life experiences, to help children and less fortunate people in third-world countries. As a consequence, she lived and worked in Cambodia for some time doing both paid and voluntary teaching work.
It would appear that the appellant has led a very productive life and has been a decent and hard-working citizen who has contributed much to the Maori and other communities. It is difficult to understand how a person with the appellant’s background and abilities has come to be involved in such serious and grossly anti-social offending.
It is true that the appellant defended the matter at trial and, in this respect, demonstrated a lack of insight and a lack of contrition. As a consequence, she was not entitled to the leniency, usually expressed by way of a deduction from the notional head sentence, that would have been allowed had she pleaded guilty and avoided the need for a trial. However, and as the Judge noted in her remarks, the appellant has, albeit belatedly, come to a position of remorse and insight. As the Judge observed:
You say that you are actually grateful for your eventual detection, for your own safety and for the safety of whomever the heroin was destined. You say your experiences in custody have given you insight into the devastating effects of drugs such as heroin. You say your eyes have been open to that world.
The Judge went on to conclude:
While I know nothing of what motivated you in this crime, it would seem from your work history and family support that it is unlikely you will offend in such a way again.
It was largely this, that is, the appellant’s good prospects for rehabilitation as understood by the Judge, together with the fact that the appellant had spent time on home detention bail that caused her Honour to exercise the discretion then available to her[1] to proceed by way of a recognizance release order rather than by way of setting a non-parole period.[2]
[1] Recent amendments to the Crimes Act 1914 (Cth) are to the effect that for offending of this nature committed after 27 November 2015 the sentencing court now has no discretion in this respect but must consider ordering only a non-parole period, see sections 19AB and 19AC.
[2] The “virtue” of a recognizance release order from the perspective of an offender is that release from prison is automatic once the recognizance release period expires, albeit provided that the offender continues to observe, upon release, the conditions of the recognizance release order. Where a non-parole period is set, ordinarily, the offender will need to apply for parole at the expiration of the non-parole period, the granting of which would not be certain.
The appellant was taken into custody on the day she was arrested (14 November 2013) but released on home detention bail on 17 July 2014. As a consequence, she spent eight months and three days in custody on remand for the offending. The appellant remained on home detention bail until her bail was revoked on 3 September 2015, a period of approximately 13 and a half months. Whilst on home detention bail, the appellant worked full-time for a cleaning company, after fully disclosing her circumstances. The appellant’s youngest daughter and her partner moved from New Zealand to South Australia in order to make a home available to the appellant within which she would be able to serve her home detention. The appellant fully complied with her home detention bail conditions.
Disposition of the appeal
As earlier indicated, the Judge, when imposing the head sentence of imprisonment for nine years, overlooked the fact that the appellant had spent approximately eight months and three days in custody on remand for the offending. Nor did her Honour make any allowance for the time spent on home detention bail, other than, as it would appear, to take it into account when deciding whether or not to proceed by way of a recognizance release order rather than setting a non-parole period.[3] Indeed, her Honour said this.
I note that in matters under the Crimes Act I cannot specifically take into account the time you have spent on home detention in terms of reducing any sentence.
In my view, her Honour erred in adopting this position, although in fairness to her Honour, this was the submission put to her by counsel who appeared for the respondent during the sentencing submissions.
[3] Whilst not expressly stated by her Honour, it can be inferred that the lengthy period successfully spent on home detention bail encouraged her Honour to think that the applicant was a suitable person to have a guaranteed release date without the need for a Parole Board to exercise a discretion.
Section 16A(2) of the Crimes Act 1914 (Cth) is to the effect that, when determining sentence for a federal offence, “the court must take into account such of the following matters as are relevant and known to the court”. Thereafter, in subparagraphs (a) to (p), various matters are listed. The specified matters represent an array of considerations similar to those set out in section 10 of the Criminal Law (Sentencing) Act 1988. Like section 10, there is no express mention of time spent on home detention bail. However, section 16A(2)(m) does identify as a matter the court must take into account:
the character, antecedents, age, means and physical or mental condition of the person.
The consideration in (m) embraces an offender’s personal circumstances. In particular, the notion of “antecedents” is broad enough to pick up any period spent on home detention bail.
Furthermore, there is no express prohibition in the Crimes Act 1914 to the taking of time spent on home detention bail into account, just as there is no express prohibition in the Criminal Law (Sentencing) Act 1988. The opening words of section 16A(2) are important in this respect: “In addition to any other matters, the court must take into account...”. These opening words leave room for the operation of common law rules relating to sentencing that are not inconsistent with other provisions of the Crimes Act 1914. In addition, section 16A(2A) lists specific matters that are not to be taken into account further reinforcing the conclusion that section 16A(2) is not exhaustive of the matters that may be taken into account.
During the appeal hearing, counsel for the respondent,[4] and after taking instructions, advised the Court that as far as he was aware there were no specific authorities on the point and that the position of the respondent was that the opening words of section 16A(2) did permit time spent on home detention bail to be taken into account in much the same way as it may be taken into account in this State when sentencing for a State offence.
[4] Who was not counsel during the sentencing submissions.
During the appeal hearing, there was debate as to the proper approach when considering time spent on home detention bail in this State following the decision of this Court in R v Franceschini.[5] For present purposes it is convenient to repeat the following.[6]
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.[7] 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%).
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 s 30(1), authorised the backdating. Section 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.
[5] [2015] SASCFC 116; (2015) 123 SASR 396.
[6] At [42]-[43] per Nicholson J with whose reasons Bampton and Lovell JJ agreed.
[7] R v Malesevic (1999) 204 LSJS 32; Kells v Police [2007] SASC 224; R v Penny [2012] SASCFC 16.
The Court in Franceschini went on to hold, consistently with previous authority, that section 30(2) of the Criminal Law (Sentencing) Act 1988 does not permit a sentence to be backdated to allow credit for time spent on home detention bail. However, the Court in Franceschini also held, consistently with previous authority, that section 30(1) provides a wider discretion in this respect, although circumstances that would justify backdating a sentence to take account of time spent on home detention bail, so as to lead to a nominated commencement date being a date when the offender had not, in fact, been in prison, if ever to arise, would be very rare. The Court in Franceschini said nothing by way of departure from the existing approach and practices of courts in this State to the granting of credit for or the taking into account, as a personal circumstance, time spent on home detention bail.

Counsel for the respondent, during argument on appeal, conceded that allowance might be given for time on home detention bail with respect to federal offending in accordance with the rules and practices that apply in this State.
It would seem clear that the Judge did not pay any regard to time spent on home detention bail when setting the head sentence. It is clear that she did not allow any direct credit. Whilst it is possible that her Honour took it into account as a matter in support of leniency when setting the head sentence of nine years, it is not apparent from her sentencing remarks that she did so.
Turning to the time spent in custody, it should be noted, again in fairness to the Judge, that very soon after her Honour delivered sentence she realised that she had overlooked the time spent in custody. Her Honour called the matter on and sought submissions from the parties as to whether or not she would be entitled to correct her sentence in this respect, pursuant to section 9A of the Criminal Law (Sentencing) Act 1988. It is clear from the exchange that took place that her Honour had always intended to adjust the head sentence in this respect. However, whether or not her Honour also had intended to adjust the recognizance release period commensurately is not clear from the transcript.
Both parties made submissions aimed at discouraging her Honour from recalling the sentence. Both counsel took the view that it was a matter that should be corrected on appeal and one that did not fall within the discretion available under section 9A. Her Honour was persuaded not to recall and correct or amend the sentence.
I make the following observations. First, the issue of whether or not the Judge had power to recall and amend the sentence, in the circumstances, should have been considered in the light of the power conferred by section 19AHA of the Crimes Act 1914 (Cth), rather than section 9A of the State’s Criminal Law (Sentencing) Act 1988. Section 19AHA is a lengthier and more detailed provision than section 9A but is intended to do similar work. Second, we did not hear full argument on the scope of section 19AHA and on whether or not the Judge did have power to recall the sentence in the circumstances. As such, I express no view. The fact is she did not do so and the matter has to be dealt with on appeal.
The appeal should be allowed on the basis of appeal grounds 2 and 5 and I turn to the question of resentencing. In R v Rowe,[8] I made the following observations on the topic of the alternative approaches available when allowing for time in custody when setting a non-parole period. Those observations are apposite to the setting of a recognizance release period.
It is common ground that the appellant had served and was entitled to be credited with 31 months and that the Judge properly allowed for this with respect to the head sentence. Where time in custody on remand is to be allowed, a sentencing judge usually will have a choice whether to deduct the time from a notional head sentence or whether to make no deduction but to backdate the sentence appropriately.[9] Where possible and permissible it is usually more appropriate to backdate rather than to deduct.[10]
Had the Judge not made any deduction but backdated both the head sentence and a non-parole period that had been fixed in that context, the concern raised by the appellant would not have arisen and there would be no doubting that the appellant would have received the full benefit of the 31 months in custody with respect to both the head sentence and any non-parole period.
The appellant maintains that the result, more favourable to the appellant, achieved by backdating the non-parole period, would have been replicated by the fixing of a notional head sentence, the fixing of a notional non-parole period with reference to that notional head sentence and then deducting 31 months from both the notional head sentence and the notional non-parole period. This would result in a final head sentence and non-parole period to be imposed from the date of sentencing. The appellant complains that the Judge erred in only employing the first part of this process. By deducting 31 months from the notional head sentence only, the appellant did not get the full benefit of the 31 months with respect to non-parole period. Mathematically this may be so. However, the Judge did not err in this respect.
The alternative approach propounded by the appellant might be seen as more beneficial to the appellant but that does not mean it is necessarily unfair or erroneous not to adopt that approach. The position contended for by the appellant is not supported by authority. In R v Malesevic[11] Doyle CJ (with whose reasons Bleby and Wicks JJ agreed) explained the two possible approaches and why it is not necessarily erroneous to choose one rather than the other.
[8] [2016] SASCFC 33 at [25]-[28] (Nicholson J, with whose reasons Lovell J and David AJ agreed).
[9] Section 30(2) of the Criminal Law (Sentencing) Act 1988 (SA).
[10] See, generally, R v Franceschini (2015) 123 SASR 396; [2015] SASCFC 116 at [23]-[61].
[11] [1999] SASC 321 at [34]-[45].
My preference, where backdating is not to be employed and provided it is practical to do so, is: to identify a notional head sentence and a notional non-parole or recognizance release period with reference to that notional head sentence; and then to deduct from the notional head sentence, by way of a credit, time spent in custody on remand and, where applicable, any further time to be allowed on account of any time spent on home detention bail, with a corresponding adjustment to the notional non-parole period.
The Court has had the assistance, as did the sentencing Judge, of a chart prepared by the respondent that summarises sentences imposed interstate for offences involving the importation of heroin in a quantity and with a value broadly similar to that applicable in this case. Of course, each case is different and there are many variables such that a direct comparison exercise is not helpful. Nevertheless, and subject to this qualification, such a chart is useful because it is important, where State courts are sentencing for federal offences, to endeavour to maintain a measure of consistency across the jurisdictions.
I am satisfied that a starting point of nine years is well within the sentencing range available when sentencing for the present offence when regard is had to the circumstances and seriousness of the offending and the circumstances of the offender. Like the Judge, I would start with a notional head sentence of nine years imprisonment. Given the appellant’s personal circumstances and good prospects for rehabilitation, a starting period for a recognizance release order of 50 per cent of the notional head sentence, that is, four and a half years imprisonment to be served, is justified.
From both these figures I would allow, by way of credit, for time spent in custody on remand (eight months and three days) and, with respect to the time spent on home detention bail (a little over 13 months), a total of 12 months. Accordingly, I would sentence the appellant to eight years imprisonment. I would order that she be released after serving three and a half years provided that she enters into a new security by way of her own recognizance with the same conditions as set by the Judge, that is, a recognizance amount of $500 and a length of recognizance of 24 months, during which the appellant is to be of good behaviour. I would backdate the head sentence of eight years and the recognizance release period of three and a half years to commence on the date the appellant was last taken into custody, 3 September 2015.
PARKER J.
I agree with the reasons of Nicholson J and the orders he proposes.
LOVELL J.
I would allow the appeal. I agree with the reasons of Nicholson J.