R v Jennings - [1998] VSCA 69

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 23 of 1998

THE QUEEN
v
ANDREW PAUL JENNINGS

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JUDGES: BROOKING, TADGELL and PHILLIPS, JJ.A.
WHERE HELD: MELBOURNE
DATES OF HEARING: 14 May 1998, 4 June 1998
DATE OF JUDGMENT: 13 October 1998
CASE MAY BE CITED AS: R. v. Jennings
MEDIA NEUTRAL CITATION: [1998] V.S.C.A. 69

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CRIMINAL LAW - Sentence - Appeal against - Appellant in custody since original sentence - Crimes Act providing that time served pending appeal shall not count unless Court of Appeal orders that it shall - Whether provision still operative - "Pre-sentence detention" - Declaration by Court of Appeal concerning - Time in custody pending appeal.
CRIMINAL LAW - Sentence - Appeal against - Substitued sentence passed - Date as at which substituted sentence is imposed.
CRIMES ACT 1958, ss. 567A(4), 568(4), 579(3).
SENTENCING ACT 1991, ss.17, 18.

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APPEARANCES: Counsel Solicitors
For the Crown Mr. T. Gyorffy P.C.Wood, Solicitor for
Public Prosecutions
For the Applicant Mr. G. Mullaly Coulter Bourke

BROOKING, J.A.:

On 2 June 1998 we dealt with an application by Andrew Paul Jennings for leave to appeal against sentences passed upon him in the County Court on 30 January 1998. We formed the view that his proposed appeal could not succeed on the merits but that it should be allowed for the purpose of more clearly effectuating the sentencing judge's undoubted intention regarding the total effective sentence and for the purpose of making a declaration about pre-sentence detention which her Honour had not made because she had not been told of the relevant detention. We made orders designed to dispose of the matter by allowing the appeal for the limited purposes mentioned. Shortly afterwards it was represented to us that the declaration made by us was of too short a period in that, while crediting the applicant with the 79 days' detention mentioned in the reasons for judgment, it failed to credit him in addition with the period spent by him in custody between sentence and determination of appeal.
Accordingly the Court reconvened and heard further argument on 4 June 1998. In the course of this the Court raised for the first time the question of the effect of s.579(3) of the Crimes Act 1958, the provision whereby time served pending appeal is not to count unless the appellate court orders that it shall. We sought assistance on whether that provision should be regarded as still operative. We invited written submissions from the parties and adjourned the matter for further consideration, directing that in the meantime our order of 2 June be not authenticated.
Section 579 of the Crimes Act has been on the Statute Book a long time. Its ultimate ancestor is s.14 of the Criminal Appeal Act 1907, which established a Court of Criminal Appeal for England and Wales. That section does not differ markedly from s.579 of the present Victorian Crimes Act. Sub-section (1) of s.14 of the English Act provided that an appellant who…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Jennings

Details

AGLC: R v Jennings [1998] VSCA 69
Case: [1998] VSCA 69
Decision Date: 13 October 1998

CaseChat Overview and Summary

In the matter of R v Jennings, the Court of Appeal in Victoria was tasked with resolving a dispute over the calculation of pre-sentence detention for the appellant, Jennings. Jennings had been in custody since his original sentencing and had appealed against his sentence. The issue arose due to a discrepancy in how pre-sentence detention was calculated and recorded for Jennings as opposed to his co-offender, Morgan, who was granted a declaration of pre-sentence detention. The court had to determine whether certain statutory provisions remained operative and how they applied to Jennings' case.

The primary legal issues the court had to address were whether certain sections of the Crimes Act 1958 and the Sentencing Act 1991, specifically sections 567A(4), 568(4), 579(3), 17, and 18, still applied in the context of Jennings' appeal and whether Jennings was entitled to a declaration of pre-sentence detention similar to Morgan's. Additionally, the court needed to decide the appropriate date from which Jennings' substituted sentence should be imposed, considering the discrepancies in the original sentencing and the subsequent appeal.

The court found that while Jennings should not be disadvantaged by his appeal, the statutory provisions in question had become inconsistent and potentially outdated due to legislative changes. The court disagreed with the suggestion that there was an implied repeal of certain sections by newer legislation. Instead, the court recommended referring the entire section 579 of the Crimes Act 1958 to the Parliament for reconsideration. The court concluded that the obligation to declare pre-sentence detention had shifted from prison authorities to the courts, and the practice of making such declarations should be consistent with the statutory directives in the Sentencing Act 1991.

Ultimately, the court decided that Jennings should not be disadvantaged by his appeal, and the declaration of pre-sentence detention should reflect the current practices and statutory requirements. The court's decision aimed to ensure that Jennings' substituted sentence would run from the date of the Court of Appeal's order, and any declaration of pre-sentence detention should not result in double crediting of the days spent in custody post-sentencing.

Orders

Orders of the court

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Background

Background to the litigation

The handing down of reasons for judgment on this application has thrown up a problem which, as it happens, is of more concern to the Court than the parties. It is a problem concerning the calculation of pre-sentence detention which hitherto has not been perceived as causing difficulty. As will appear, whatever solution is adopted the only requirement so far as the applicant is concerned was that he should not be disadvantaged merely by reason of his having sought leave to appeal. On that there was no disagreement in any quarter, but that necessarily lost us the advantage of a full exposure of the problem by means of competing submissions. Any deficiency in that regard is now rectified by the very detailed and comprehensive judgment prepared by Brooking, J.A. which I have had the considerable advantage of reading in draft. Unfortunately, having considered that judgment with great care, I find myself not in agreement with his Honour as to the solution that ought to be adopted and I shall set out my reasons for suggesting that there is no need for a change in practice. In what follows, I refer, for the purposes of illustration, to some of the many cases unearthed by his Honour's elaborate research, but I freely acknowledge that there the industry is his, not mine. I was greatly assisted, too, by a helpful memorandum prepared by Mr. Gyorffy, dealing with the history of ss.17 and 18 of the Sentencing Act 1991 and of s.579(3) of the Crimes Act 1958. Background On 30 January 1998 the applicant Jennings was sentenced in the County Court on six counts of which he had been found guilty by a jury. He was sentenced to various terms of imprisonment which, after allowing for some concurrency, the trial judge declared resulted in a total effective sentence of seven years. A non-parole period was fixed of five years. No declaration was made of pre-sentence detention. The applicant applied for leave to appeal against sentence on the ground, inter alia, that there was no proper parity when the sentences meted out to him were compared with those given at the same time to his co-offender, Morgan, who had pleaded guilty to six counts which were nearly, but not quite, the same as those of which Jennings had been convicted. Morgan also sought leave to appeal against sentence and both applications were in substance dismissed, although in the case of Jennings the application was allowed only for the purpose of correcting errors made by the trial Judge in articulating the individual sentences in order that these did add up to the total effective sentence of seven years. All this is dealt with in the judgment handed down on 2 June 1998: R. v. Jennings and Morgan. But then a problem arose about the calculation of pre-sentence detention in the case of Jennings, a problem which was explained to us a day or so later when we reconvened for the purpose on 4 June. Jennings and Morgan were sentenced for offences committed by them while in company on the night of 5 and 6 January 1997 and they were both arrested in the early hours of 6 January. Thus by the time they were sentenced on 30 January 1998, both had spent some 390 days in custody. In relation to Morgan, a declaration was accordingly made under s.18(4) of the Sentencing Act 1991, that 390 days should be reckoned as a period of imprisonment already served under the sentences imposed on 30 January, but no such declaration was made in the case of Jennings. It appears that the trial judge regarded such a declaration as inappropriate because Jennings had offended while on parole for previous offences, parole which had been revoked in consequence of his re-offending.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

That being so, there seems to me no need to canvass the larger issue whether, by reason of inconsistency, s.579(3) was impliedly repealed pro tanto when s.202A was enacted. Certainly, without deciding it, I incline to the view expressed by Brooking, J.A. that, so far as it directed that time in custody during which a prisoner “is specially treated as an appellant under this section” should not be counted, s.579(3) can be taken to have been repealed by implication by s.202A of the Social Welfare Act which sought to include as part of the time served under a sentence - expressly, though more generally - time in custody while “awaiting the determination of an appeal”. Perhaps the inconsistency became less clear when those words were dropped in s.16 of the Penalties and Sentences Act 1985 and not included in the present s.18, but that probably does not matter once the repeal was worked: Interpretation of Legislation Act 1984 s.14. However, I would add that, so far as I can see, the reference in s.579(3) to time on bail pending appeal is equally inappropriate now because s.17(2) of the Sentencing Act 1991 deals with the situation covered by s.579(3), albeit much more generally and in this case making like provision. My only hesitation with regard to time on bail is that that overlapping (between what was originally the Gaols Act 1896 s.2 and the Criminal Appeal Act 1914 s.14(3)) has existed for many years without apparently causing concern. In all the circumstances I would refer the whole of s.579 to the Parliament for reconsideration. Conclusion In the course of the foregoing I have described the changes made on 22 April 1992 when the new Sentencing Act of 1991 came into operation and it became obligatory for the sentencing court to make a declaration of pre-sentence detention. No longer was it to be left to the prison authorities to make the appropriate calculation and then to make the requisite deduction from the time otherwise to be served under the sentence pronounced; that task was now transferred to the Courts and it is at least consistent with the statutory directive now in s.18(4) - and consistent too, I think, with s.17(1) - that it has latterly become the practice of this Court of Appeal, when sentencing to a term of imprisonment, to make a declaration of pre- sentence detention and to bring it up to the date of this Court’s own sentencing. If the making of such declarations is a departure from previous practice, so be it; such a declaration when made serves in effect to confirm that the re-sentencing order of this Court which it accompanies imposes a prison sentence which is to run from the date of this Court’s order. If that is not the intent, then a declaration of pre-sentence detention should be of custody up until but not beyond the date from which the re- sentencing is to be taken to run (in this instance, 30 January 1998). The declaration is, I apprehend, for the purpose of the prison authorities’ calculating a release date and the deduction by them of pre-sentence detention calculated to a date after 30 January from the time to be served under sentences running from 30 January can only result in the double crediting of the extra days after 30 January.

Ratio Decidendi

Legal Principle Established

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JUDGES:	BROOKING, TADGELL and PHILLIPS, JJ.A.
WHERE HELD:	MELBOURNE
DATES OF HEARING:	14 May 1998, 4 June 1998
DATE OF JUDGMENT:	13 October 1998
CASE MAY BE CITED AS:	R. v. Jennings
MEDIA NEUTRAL CITATION:	[1998] V.S.C.A. 69

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. T. Gyorffy	P.C.Wood, Solicitor for Public Prosecutions
For the Applicant	Mr. G. Mullaly	Coulter Bourke