R v Hussey

[2013] SASCFC 41

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v HUSSEY

[2013] SASCFC 41

Judgment of The Court of Criminal Appeal

(The Honourable Justice Sulan, The Honourable Justice Peek and The Honourable Justice Nicholson)

23 May 2013

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - OTHER MATTERS

Appellant sentenced to one year and six months' imprisonment with a non-parole period of nine months - the sentence was backdated to account for time spent in custody - the sentencing Judge found that there was good reason to suspend the sentence and did so on the basis that the defendant enter into a bond in the sum of $500 to be of good behaviour for a period of two years - whether the Judge erred in backdating a suspended sentence.

Held: A suspended sentence cannot be backdated - upon revocation of the suspended sentence bond the appellant would have had to serve the entire period of imprisonment which did not take into account the period in which the appellant had spent in custody prior to sentencing - this was an appropriate case for the Judge to have utlised s 9A of the Criminal Law (Sentening) 1988 (SA) - sentence quashed and appellant resentenced.

Controlled Substances Act 1984 (SA) s 32(3); Criminal Law (Sentencing) Act 1988 (SA) s 9A, referred to.

R v HUSSEY
[2013] SASCFC 41

Court of Criminal Appeal:       Sulan, Peek and Nicholson JJ

1. SULAN J: This is an appeal against sentence. The defendant and appellant, Yvonne Jade Hussey, pleaded guilty to one count of trafficking in a controlled substance contrary to s 32(3) of the Controlled Substances Act 1984 (SA). On 19 April 2012, she was sentenced to one year and six months’ imprisonment with a non-parole period of nine months. The sentence was backdated to 12 November 2011 to account for time spent in custody. The sentencing Judge found that there was good reason to suspend the sentence and did so on the basis that the defendant enter into a bond in the sum of $500 to be of good behaviour for a period of two years.

2. The defendant appeals on the grounds that, by backdating the suspended sentence, the time that the defendant spent in custody has not been accounted for.

   Background

3. On 13 August 2010, the defendant was apprehended by police. A bum bag which contained a tub of paste, an amount of cash, a list of names and other drug paraphernalia was located nearby. The paste in the tub was found to weigh 4.96 grams and to contain 2.06 grams of methylamphetamine. The defendant admitted possession of the tub.

4. At the time that the defendant was sentenced, she had spent from 17 February 2011 until 4 April 2011 and from 12 November 2011 until 19 April 2012 in custody in relation to this offending. The sentencing Judge indicated that the defendant must be given credit for time spent in custody. In arriving at the sentence to be imposed, the Judge remarked:

   But for your plea of guilty I would have sentenced you to two years and three months imprisonment. I reduce that to one year and six months to reflect your guilty plea and the time spent in custody from 17 February 2011 to 4 April 2011. I fix a non-parole period of nine months. Both the sentence and the non-parole period will be backdated to 12 November 2011.

5. The Judge then considered that there was good reason to suspend the sentence and did so on the basis that the defendant enter into a bond in the sum of $500 to be of good behaviour for a period of two years along with a number of other conditions.

6. The Judge correctly accounted for the time the defendant spent in custody from 17 February 2011 to 4 April 2011 (and for her guilty plea) by reducing the head sentence from two years and three months imprisonment, to one year and six months imprisonment. However the period between 12 November 2011 and 19 April 2012 was not correctly accounted for.

   The error

7. A suspended sentence of imprisonment cannot be backdated. This is reflected in the suspended sentence bond that the defendant entered into on the date that she was sentenced. Had the sentence not been suspended and was backdated to 12 November 2011 to account for the five months and one week spent in custody, the period of the sentence that the defendant would have had to serve from the date of sentence would have been one year and three weeks imprisonment with a non-parole period of three months and three weeks. However, as stated in the suspended sentence bond, the sentence that was suspended was one year and six months’ imprisonment with a non-parole period of nine months. The effect is that, upon the revocation of the suspension, the defendant would have to serve the entire period of one year and six months’ imprisonment with a non-parole period of nine months. This would not account for the 5 months and one week that the defendant spent in custody from 12 November 2011 to 19 April 2012.

   Section 9A

8. This was an appropriate case for the utilisation of s 9A of the Criminal Law (Sentencing) Act 1998 (SA) (“the Sentencing Act”). In cases where an error of a technical nature is made by a sentencing court, s 9A provides that the sentencing court may make orders to rectify to the error.

   9A—Rectification of sentencing errors

   (1)A court that imposes a sentence on a defendant, or a court of co-ordinate jurisdiction, may, on application by the Director of Public Prosecutions or the defendant, make such orders as the court is satisfied are required to rectify an error of a technical nature made by the sentencing court in imposing the sentence, or to supply a deficiency or remove an ambiguity in the sentencing order.

   (2)The Director of Public Prosecutions and the defendant are both parties to an application under this section.

9. By letter dated 13 June 2012, counsel for the defendant wrote to the sentencing Court outlining the error and expressing the view that the sentence ought to be corrected under s 9A of the Sentencing Act. In my view, this was the correct approach to be taken. Unfortunately, it appears from the response that counsel received from the Judge’s associate that the Judge did not appreciate the error and declined to amend the sentence.  The consequence is that the matter had to be referred to this Court to correct the error.

   Conclusion

10. The sentence is quashed.  In lieu thereof, the defendant is sentenced to imprisonment for one year and three weeks, with a non-parole period of three months and three weeks, the sentence and non-parole period is suspended upon the defendant entering into a bond in the sum of $500. 

11. The conditions of the bond are as follows:

    1the defendant be of good behaviour, and comply with all of the conditions of this bond;

    2the defendant be under the supervision of a Community Corrections Officer for a period of 11 months and obey the lawful directions given to her by the Community Corrections Officer to whom she is assigned for the purposes of supervision;

    3the defendant report, within two working days of having signed the bond, at the offices of the Department of Correctional Services at 5 Alexander-Kelly Drive (Youth), Noarlunga Centre, South Australia 5168, [phone].  (Note:  The defendant need not report if, within that two-day period, she receives notice from the Department of Correctional Services that it is not necessary to do so);

    4the defendant attend and participate in such assessment, courses, treatment or counselling as directed by her Community Corrections Officer, in particular directed to her prior drug addiction;

    5the defendant consult her general practitioner as soon as possible after her release about the mental health treatment plan recommended by Dr Cayley;

    6the defendant sign authorities to enable her Correctional Services Officer to confirm her attendance at that general practitioner’s appointment and any subsequent medical psychological or psychiatric appointments made in accordance with any mental health treatment plan put in place by her general practitioner;

    7the defendant does not take any illicit drugs; 

    8the defendant undergoes urinalysis or such other drug testing as may be required by her Community Corrections Officer;

    9the defendant will not possess any firearm or ammunition (both within the meaning of the Firearms Act 1977) or any part of a firearm; and

    10the defendant will submit to any such tests (including testing without notice) for gunshot residue as may reasonably be required.

12. PEEK J.                 I agree with the orders proposed by Sulan J and with his reasons.

13. NICHOLSON J:  I agree that the appeal should be allowed and with the orders proposed by Sulan J for the reasons he has given.