R v Hughey - [2007] SASC 452

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v HUGHEY
[2007] SASC 452
Judgment of The Court of Criminal Appeal
(The Honourable Justice Debelle, The Honourable Justice Sulan and The Honourable Justice Vanstone)
20 December 2007
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER
Prosecution appeal against sentence – respondent detained in custody after charged with offences the subject of these proceedings – respondent also in custody on estreatment of breached bonds – respondent subsequently released but later arrested and remained in custody for unrelated offences – whether judge erred in reducing sentence for time spent in custody for breached bonds – whether judge erred in backdating sentence to date when respondent was arrested and taken into custody for unrelated offences – permission to appeal granted – appeal allowed – sentence set aside and respondent re-sentenced – commencement date varied.
Criminal Law (Sentencing) Act 1988 s 30(2), referred to.
Everett v The Queen (1994) 181 CLR 295; R v Arts and Briggs [1998] 2 VR 261; R v Osenkowski (1982) 30 SASR 212; R v Tait (1979) 46 FLR 386, applied.
R v Zoneff (No 3) (2000) 113 A Crim R 423, distinguished.
Bonney v SA Police (1996) 185 LSJS 185; Tong v Police (1998) 198 LSJS 398, considered.

R v HUGHEY
[2007] SASC 452
Court of Criminal Appeal: Debelle, Sulan and Vanstone JJ

DEBELLE and VANSTONE JJ: The Director of Public Prosecutions applies for permission to appeal against a sentence imposed on the respondent in the District Court. The respondent pleaded guilty to two counts of aggravated serious criminal trespass in a non-residential building, one count of serious criminal trespass in a non-residential building and one count of possessing implements of house breaking, the offences occurring on two different occasions and at three locations. The sentencing judge imposed a single sentence of 3 years, 4 months and 16 days and fixed a non-parole period of 2 years and 1 month.
The application is made on two grounds. The first is that the judge erred in reducing the sentence for time spent in custody prior to release on bail. The second is that the judge erred in backdating the sentence to a date when the respondent was arrested for unrelated offences. In both respects, it is contended that the judge acted in a way not permitted by s 30(2) of the Criminal Law (Sentencing) Act 1988.
The respondent was arrested for three of the charges for which he was sentenced on 6 March 2006. He remained in custody until release on home detention bail on 15 August 2006. The period in custody was five months and ten days. However, for three months of that period the respondent was serving two concurrent sentences of imprisonment. In 2004 suspended sentences had been imposed in respect of offences of driving under disqualification. The respondent subsequently acted in breach of both bonds. Proceedings for estreatment of each bond resulted in each term being reduced to three months and an order that he serve those terms concurrently. That period of imprisonment was served between 16 May 2006 and 15 August 2006. On that latter date the respondent was granted home detention bail in respect of the first group of the current charges.
The respondent was later arrested on 1 September 2006 in respect of the remaining offence which was committed on 18 February 2006. On 15 September 2006 he was released again on home detention bail and remained on home detention bail until 1 February 2007 when he was arrested and charged with unrelated matters. The respondent will be tried for those charges in the District Court next year. The respondent remained in custody from 1 February 2007 until he was sentenced on 23 October 2007.
The sentencing judge allowed the respondent credit for his pleas of guilty, reducing the head sentence from five years to four years. The judge then deducted the full amount of the time spent in custody prior to 15 August 2006 and also gave credit for a period in custody referable only to the current offences and for the time on home detention bail. In addition, he backdated the sentence to 1 February 2007 being the date of the respondent’s arrest on unrelated charges. The applicant’s complaints are that the respondent was wrongly given credit for the period of three months from May to August 2006 when he was serving sentences for breaches of bond and that the sentence for the current offences should not have been backdated to 1 February 2007.
Section 30(2) of the Criminal Law (Sentencing) Act 1988 provides:
(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.
It will be noticed that the operation of s 30(2) is confined to time spent in custody in respect of the offending for which the defendant is being sentenced to imprisonment. It does not relate to time spent in custody on matters unrelated to those for which the defendant is being sentenced. The effect of the section is to prescribe the only circumstances in which time spent in custody prior to sentence can be taken into account. During argument, it was suggested that there might be exceptions to the operation of the section and that a judge might, as an exercise of discretion, give the defendant the benefit of time spent in custody even though it was not, strictly, time spent in custody in respect of the offence for which sentence was to be passed. In our view this is incorrect. When exercising the discretion under s 30(2), the court determines a question of fact, namely, whether the defendant has spent time in custody in respect of an offence for which the defendant is subsequently sentenced. Although there might be unusual cases where an exercise of judgment is involved in determining whether a defendant’s circumstances qualified him under the section so as to enliven the judge’s discretion (see, for example, Tong v Police (1998) 198 LSJS 398 and Bonney v SA Police (1996) 185 LSJS 185) the court nevertheless determines a question of fact.
In this regard the respondent relied on R v Zoneff(No 3) (2000) 113 A Crim R 423. In that case, the defendant was contemporaneously on remand for charges the subject of the later sentence and serving a sentence of imprisonment for other offences which was subsequently set aside. The sentencing judge held that, since Zoneff would inevitably have been granted bail during the period of the subsequently quashed sentence, he should be taken to have spent that time in custody in respect of the offence for which he was on remand. The circumstances in Zoneff were extremely unusual. It should not be taken as establishing the general proposition that, where a person is concurrently serving a sentence and is on remand for separate offences, the period in custody will amount to a credit against the future sentence. The general rule is that “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”: R v Arts and Briggs [1998] 2 VR 261, 264 per Callaway JA.
The judge, therefore, erred in deducting the period of three months which was referable to the sentence for breached bonds. This would appear to have resulted from oversight. The fact that the earlier period on remand was interrupted by the three month sentence was brought to the judge’s attention during submissions but it might have become lost in the complexity of the matter.
The judge further erred in ordering that the sentence commence on 1 February 2007. The time spent in custody from 1 February 2007 was referable to charges for unrelated matters which in no respect were before the judge. The judge should have ordered that the sentence commence on the day of the sentence, namely 23 October 2007.
The errors made by the sentencing judge do not arise from an exercise of discretion. Instead, they are errors arising from the application of s 30(2) of the Sentencing Act. One of the purposes of prosecution appeals is to ensure that, so far as the subject matter permits, there will be uniformity of sentencing: Everett v The Queen (1994) 181 CLR 295 at 304 per McHugh J. One means by which uniformity of sentencing can be achieved is for courts of criminal appeal to correct errors of principle or errors in the interpretation and application of sentencing legislation: R v Tait (1979) 46 FLR 386 at 388-389. That is entirely consistent with the first of the purposes of prosecution appeals identified by King CJ in Osenkowski v The Queen (1982) 30 SASR 212 at 213, namely, to establish and maintain adequate standards of punishment of crime. As the judge made errors in applying the Sentencing Act, the errors should be corrected. For that reason the Director’s application for permission to appeal should be granted.
This is a prosecution appeal where it is desirable to avoid putting in jeopardy for the second time the freedom beyond the sentence imposed: Everett v The Queen at 299. In these circumstances, the most appropriate course is to rectify the first error by adding the period of three months to the head sentence imposed, without making any adjustment to the non-parole period.
The position is different in relation to the error in respect of the commencement date. In all the circumstances and given the nature of the offending and the respondent’s poor record, the sentence imposed upon the respondent was merciful. We do not consider that correcting what was an error in applying statutory provisions will result in any injustice to the respondent. We would order that the sentence commence on the day of sentencing, namely, 23 October 2007.
We would make the following orders:
1.     Grant the appellant permission to appeal.
2.     Allow the appeal.
3.     Set aside the sentence.
4.In place of the sentence as ordered, sentence the respondent to a single sentence of 3 years 7 months and 16 days with a non-parole period of 2 years and 1 month with the sentence commencing on 23 October 2007.
SULAN J: I agree with the orders proposed by Debelle and Vanstone JJ.