R v MCLAREN - [2009] SASC 225

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v MCLAREN
[2009] SASC 225
Judgment of The Court of Criminal Appeal
(The Honourable Justice Nyland, The Honourable Justice Gray and The Honourable Justice Kourakis)
6 August 2009
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - COMMENCEMENT
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - APPROACH TO SENTENCING PROCESS - GENERALLY
Application for permission to appeal from sentence imposed by District Court Judge of two years and three months with non-parole period of 12 months, commencing on 17 March 2009 - applicant pleaded guilty to attempted arson - whether head sentence manifestly excessive - whether Judge erred in failing to suspend sentence - whether Judge sufficiently considered circumstances in which the offence occurred - whether Judge erred in failing to give proper or adequate consideration to time applicant already spent in custody.
Held: By majority - application for permission to appeal granted - sentence imposed in District Court affirmed - sentence well within range of what was appropriate for this offending - order of Judge that sentence commence on 17 March 2009 set aside - order in lieu that sentence imposed commence on 17 November 2008 to account for four months spent in custody.
Criminal Law Consolidation Act 1935 (SA) s 20(4) and s 85(1); Criminal Law (Sentencing) Act 1988 (SA) s 30; Correctional Services Act 1982 (SA), referred to.
R v Pahuja (No 2) (1989) 59 SASR 551; Trotta v Police [2008] SASC 16; R v Lane (1990) 53 SASR 480; Sherlock v SA Police (Unreported, Supreme Court of South Australia, Perry J, 2 April 1996); Frank v Police (2000) 77 SASR 273; R v P,NJ (No 4) (2008) 183 A Crim R 461; R v Colson (1999) 73 SASR 407; PNJ v The Queen (2009) 83 ALJR 384, considered.

R v MCLAREN
[2009] SASC 225
Court of Criminal Appeal: Nyland, Gray and Kourakis JJ
NYLAND and GRAY JJ.

This is an application for permission to appeal from a sentence imposed by a District Court Judge on 17 March 2009. It was agreed that, if permission were to be granted, the appeal would be heard instanter.
The applicant was charged on Information with the offence of aggravated assault causing harm, contrary to section 20(4) of the Criminal Law Consolidation Act 1935 (SA). It was alleged that on 20 March 2007 the applicant assaulted a man, M. The applicant was charged on the same information with the offence of attempted arson, contrary to section 85(1) of the Criminal Law Consolidation Act. That offence was alleged to have occurred on 21 March 2007. The applicant pleaded not guilty to the assault charge but guilty to the charge of attempted arson.
At relevant times, the applicant and M were both residing at a hostel occupied by some 10 or 12 people. At the trial of the assault charge there was evidence given as to difficulties between the applicant and M, leading to the incident in which it was alleged that the applicant assaulted M. At trial the applicant raised a defence of self-defence. The jury returned a verdict of not guilty.
The applicant was sentenced to a term of imprisonment of two years and three months. A non-parole period of 12 months was fixed. Both the sentence and the non-parole period were directed to commence from 17 March 2009.
In evidence at the trial the applicant said that on 19 March 2007 he had been drugged and raped by M. These allegations were denied by M. On 20 March 2007 the applicant wrote “paedophile” and “Satanist” on M’s room door at the hostel. He also admitted puncturing two tyres on M’s car and spraying shaving cream on the mirror in the bathroom. M, acting on behalf of the owner of the hostel, subsequently informed the applicant that he was to be evicted. This apparently led to the fight between the two men on the morning of 20 March 2007.
Later on that day, the applicant secured containers of petrol and at about 3.00 am on 21 March 2007, returned and attempted to set fire to three different areas of the hostel. A four-litre canister with a homemade tissue wick was placed outside the door of M’s room. It was located with burnt paper on the top of the can. A plastic bottle containing a homemade tissue wick was thrown at M’s window. A small fire also started in the curtains of one room in the house. Fortunately the fire did not progress and no one was injured. There was little damage to the premises.
The applicant accepted responsibility for his actions. He was subsequently examined by a psychologist to whom he described M as a “demon”. The learned sentencing Judge was concerned about statements attributed to the applicant in the psychologist’s report, as well as statements in his record of interview with the police. The Judge ordered a psychiatric report. The applicant told Dr Czechowicz that between the time of the assault and the purchase of the flammable substances he was in a “haze”. Dr Czechowicz referred to the applicant’s asserted lack of memory and said that such amnesia and psychotic behaviour was possible when a person was intoxicated. He said drug induced psychosis was more likely. However, there was no proof that any drugs were present at the relevant time. Dr Czechowicz considered that the applicant’s mental state was not sufficient to support a mental impairment defence.
The Judge considered Dr Czechowicz’s report to be of limited assistance in determining the applicant’s state of mind at the relevant time. The Judge said however that it was plain that the applicant’s offending was, to a significant degree, planned.
It appeared that following these events the applicant was arrested and detained in custody for a period of approximately four months. A considerable portion of that time was spent at James Nash House where he was diagnosed as possibly suffering from a schizoaffective disorder and poly-substance abuse. The Judge referred to the applicant’s history of mental illness, together with problems in early life and a past history of psychiatric difficulties.
The Judge pointed out that although the property damage had eventually been slight the risk had been great, and that included the risk of injury or loss of life. He was satisfied that if the offence had been completed, the damage would have been at least in excess of $30,000.
In all the circumstances, the Judge determined that a sentence of imprisonment was warranted. He considered that punishment and general deterrence were important considerations in the sentencing process. He indicated that but for the plea of guilty he would have sentenced the applicant to imprisonment for a period of three years. He reduced the term from three to two years and three months to reflect the plea of guilty. He considered that in view of the applicant’s age, lack of prior offending, and steps taken towards rehabilitation, that it was appropriate to fix a non-parole period lower than otherwise would have been the case. The Judge fixed a non-parole period of one year. The Judge did not consider that there were good grounds to suspend that sentence.
The proposed grounds of appeal, as initially advanced, were that the head sentence was manifestly excessive and that the Judge erred in failing to suspend the sentence.
In our opinion, ground one can be dealt with quite briefly. The maximum penalty for this offence was imprisonment for 12 years. The circumstances, as outlined by the Judge, were serious. The sentence was well within the range of what was appropriate for this offending. The applicant did not press this ground at the hearing of the application.
The argument on appeal proceeded on the basis that the Judge had been too rigid in his approach by giving substantial weight to the principles of general deterrence and in so doing, failed sufficiently to analyse the unusual circumstances in which the offence occurred. These circumstances included the alleged sexual assault by M upon the applicant and the associated psychiatric issues, which had resolved in recent times. The Judge, however, conducted the trial with respect to the assault charge and was well aware of the background to the matter and the complaints made by the applicant about M’s conduct.
The premeditation and potential consequences of the applicant’s conduct made this a serious crime. The Judge had regard to the psychological and psychiatric reports and bore in mind the steps the applicant had taken to re-establish his life with further studies and other activities following his release from James Nash House. The Judge had regard to the applicant’s youth and lack of prior serious offending and took a merciful approach when he determined that this was an appropriate case to fix a low non-parole period. The sentence imposed was well within the sentencing discretion of the Judge.
There was no suggestion during submissions on appeal that there was any reason to question the adequacy of the customary range of penalties imposed for offences against offences of arson, that is offences against section 85(1) of the Criminal Law Consolidation Act. In these circumstances we do not consider it appropriate to conduct a review of the adequacy of that customary range. We add, as presently advised, we do not see any reason to question that range.
During the hearing of the application it became apparent that the Judge had not brought to account the earlier referred to period of approximately four months that the applicant spent in custody before being released on bail. As a consequence the applicant amended his grounds of appeal to assert that the Judge erred in failing to give proper or adequate consideration to the time that the applicant spent in custody with respect to this matter.
On the day of the offence the applicant attended a police station to report his conduct to the police. As earlier observed, he was arrested and taken into custody. He remained in custody for the ensuing four months. He was then released on bail and remained on bail until sentenced.
Section 30(2) of the Criminal Law (Sentencing) Act 1988 (SA) relevantly provides:
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.
Although a judge is not obliged by the above statutory provision to bring to account time in custody, it is the usual if not invariable practice to do so.[1]
[1]    Trotta v Police [2008] SASC 16.
It is accepted that it is preferable to backdate a sentence rather than make a reduction from the sentence for time spent in custody. The desirability of backdating sentences was discussed in Pahuja (No 2)[2] where White J observed:
[2]    R v Pahuja (No 2) (1989) 50 SASR 551 at 563.
I prefer to back-date such a sentence rather than artificially reduce the head sentence because it is preferable that his record should show the correct length of his head sentence (and non-parole period) and that he and others affected by the sentence should know the correct result. Artificial results are always placed on record where head sentences and non-parole periods are artificially reduced to take account of time spent in custody. The better practice, in my view, is to back-date the true sentences rather than artificially reduce sentences when giving credit for time spent in custody. Otherwise a false impression is created in the minds of the prisoner and the public about the length of the head sentence and figures get into the statistical record which distort the general standard of sentencing so-called tariffs.
In Lane[3] Jacobs J commented about the usual practice of the court:
…I agree that in conformity with the usual sentencing practice in this Court, it is generally desirable … to give explicit credit for the time spent in custody, prior to conviction and sentence, by ordering that a non-parole period should commence to run from the date of pre-sentence custody;
These remarks were adopted in Sherlock,[4] where Perry J observed:
It seems to me that the clear intent of the subsections when read together is that if the power to antedate the commencement of the head sentence is invoked, so that it commences from the day upon which the defendant was taken into custody, the commencing date of the non-parole period should be the same day. Certainly, that would appear to be more sensible from the point of view of administration of the sentence. In my opinion, that should be the course which should be followed in such cases. Support for that view appears from the judgment of the Court of Criminal Appeal in R v Lane.
In Frank,[5] Lander J applied Pahuja, and further addressed the relevance of provisions of the Correctional Services Act 1982 (SA):
There is another matter which has to be taken into account. Section 37A of the Correctional Services Act 1982 allows the Chief Executive Officer of the Department of Correctional Services in his or her absolute discretion to release a prisoner from prison to serve a period of home detention. The Chief Executive Officer is not entitled to release a person from prison on home detention unless, in the case of a prisoner serving a sentence in respect of which a non-parole period has been fixed, the prisoner has served at least one-half of that non-parole period.
If a person spends a significant period in prison prior to sentence, and no adjustment or no adequate adjustment is made to the non-parole period to reflect the time already spent in prison, that person also loses the prospect of being released on home detention for the period for which account has not been given in the non-parole period.
[3]    R v Lane (1990) 53 SASR 480 at 481.
[4]    Sherlock v SA Police (Unreported, Supreme Court of South Australia, Perry J, 2 April 1996).
[5]    Frank v Police (2000) 77 SASR 273 at [51] - [52].
The Director of Public Prosecutions accepted that the applicant had spent approximately four months in custody. However, attention was drawn to the following remarks of the Judge:
You told police that you did not regard yourself as being in a sane state of mind at the time. I have little doubt that the account you gave to them reflected your lack of balance and, indeed, following this incident, you spent close to four months in James Nash House. You were then diagnosed as possibly suffering from a schizoaffective disorder and poly-substance abuse.
The Director submitted that this observation demonstrated that the Judge was aware of the time in custody. It was said that it may be inferred that consideration had been given to the time in custody when determining penalty.
This submission should be rejected. It is apparent from the analysis of Judge’s sentencing remarks that the only reduction made from the notional head sentence was a reduction on account of the plea of guilty. Nowhere in the sentencing remarks does the Judge identify the period spent in custody. It does not appear that any consideration was given to the need for backdating the sentence or an appropriate reduction in sentence. In our view this application should be allowed but only for the purpose of making an allowance of four months for the time spent in custody.
As earlier mentioned, the applicant spent part of his time in custody in the Julia Farr Centre as a result of his mental instability. In our view, this does not detract in any way from the proposition that the time was spent in custody. It is not unusual for accused on remand to spend all or part of their time in custody at James Nash House.
The Court has the power under the Sentencing Act to backdate a sentence to a date that the Court considers appropriate. Section 30(1) provides:
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.
In P, NJ (No 4)[6] this Court considered the reach of section 30(1) and the earlier decision of Colson. [7] The Court affirmed Colson. [8] Duggan J observed:[9]
This court should not overrule a previous decision of the Court of Criminal Appeal which is directly applicable unless it is of the view that it was arrived at per incuriam or was plainly wrong. In my view, this cannot be said of the decision of this court in Colson’s case, although I share the hesitation of Doyle CJ in arriving at a firm conclusion on the construction of s 30. It follows that, subject to the other arguments presented on behalf of the appellant, we should proceed on the basis that the trial judge would have the power to backdate the sentence for the crime of murder if the appellant were to be convicted of that offence.
[6]    R v P,NJ (No 4) (2008) 183 A Crim R 461 at [32]. See also Gray J at [89]-[96] affirming R v Colson (1999) 73 SASR 407.
[7]    R v Colson (1999) 73 SASR 407.
[8]    R v P,NJ (No 4) (2008) 183 A Crim R 461 at [32]. See also Gray J at [89]-[96] affirming R v Colson (1999) 73 SASR 407.
[9]    R v P,NJ (No 4) (2008) 183 A Crim R 461 at [32].
The High Court in PNJ (No 4),[10] when refusing special leave following full argument, observed:
There is no reason to doubt the Full Court’s conclusion that the sentencing judge has power to fix the date on which both the head sentence of life imprisonment and the non-parole period should be taken to have begun in this way.
Principal emphasis was given by the majority in the Full Court to the operation of s 30(1). That provision had been held in R v Colson to provide what, in the present case, Duggan J described as “a general power to backdate a sentence or to order that a sentence commence at a future date”. And in Colson, Doyle CJ, speaking for the Full Court, had concluded that earlier decisions of the Full Court had treated s 30(1) or its legislative predecessor as conferring “a general power to direct that a sentence is to commence at an earlier date or time than the time at which it is imposed”.
In the particular circumstances of this case, however, it may be that the power to backdate any sentence passed on the applicant (and to backdate the commencement of a non-parole period) is to be found in s 30(2)(b) rather than the general powers conferred by s 30(1). The expression used in s 30(2), about which the relevant operation of para (b) would hinge, is “[i]f a defendant has spent time in custody in respect of an offence for which the defendant is subsequently sentenced to imprisonment”. No narrow construction should be given to the words “time in custody in respect of an offence”. The better view may be that they are words that in this case would encompass the time the applicant has spent in custody following his arrest for and awaiting trial for the wounding, and the time he has spent in custody serving the sentence imposed on him for the wounding.
…
It is not necessary to decide whether this construction of s 30(2) is right. If s 30(2) is not to be read in the way described, the Full Court was right to hold that s 30(1) would supply the power to backdate the sentence and the commencement of the non-parole period to the date the applicant was taken into custody. It is enough to make only two points. First, “[i]t is quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words”. Secondly, as noted earlier, the construction of s 30(1), adopted by the majority in the Full Court, applied that Court’s earlier decision in Colson and reflected well-established sentencing practice under the Sentencing Act not inconsistent with the practice adopted under earlier legislation. This understanding of the powers of courts sentencing under the applicable South Australian legislation having stood unchallenged for as long as it has, there should be no departure from, or qualification to, the underlying question of construction of the relevant statute unless it is shown to be wrong, and it is not. Section 18 of the Acts Interpretation Act 1915 (SA) abrogates any presumption that re-enactment of a statutory provision constitutes parliamentary approval of the particular construction given to those words. The abrogation of that presumption is not relevant in this case. What matters here is the absence of demonstrated error in the construction given to s 30(1).
[10] PNJ v The Queen [2009] HCA 6 at [15]-[17], [19].

In the particular circumstances of the present proceeding it is appropriate to backdate the sentence imposed by the sentencing Judge so that it is taken to have commenced on 17 November 2008.
The other alternative is to allow the appeal, set aside the sentence imposed and impose in lieu a sentence of imprisonment of one year and 11 months with a non-parole period of eight months. The sentence would commence on 17 March 2009. The difficulty with this approach is that such a sentence would not, without a full understanding of the circumstances behind this reduction, match the seriousness of the applicant’s conduct.
This application for permission to appeal is granted. The sentence imposed in the District Court is affirmed, but the appeal is allowed to the extent that the order of the Judge that the sentence commence on 17 March 2009 be set aside. This Court orders that the sentence imposed commence on 17 November 2008.
KOURAKIS J: I agree for the reasons given by the majority that the sentencing Judge failed to have regard to the time that the appellant spent in custody and that the applicant has therefore established an error of law. For that reason permission to appeal should be granted.
However, I have the misfortune to disagree with the ultimate disposition of the appeal for two reasons.
First, s 353(4)(a) of the Criminal Law Consolidation Act 1935 conditions the powers of this Court to interfere with the sentence appealed against on a finding that a different sentence should have been passed. In my respectful opinion, the offence of attempted arson to which the appellant pleaded guilty demanded a sentence of nothing less than the term of two years and three months, with a non-parole period of one year, imposed by the sentencing Judge. Because my view is a dissenting one I will only briefly state my reasons.
It was accepted that the maximum penalty for this offence was imprisonment for 12 years.[11] The objective seriousness of this offence cannot be overstated. The building which the appellant intended to damage by fire was a boarding house with 18 furnished rooms. On 20 March 2007 the appellant had an argument with the resident manager of that boarding house. At about 3:00am on Wednesday 21 March 2007, when the residents of the boarding house were likely to have been asleep, the appellant threw a bottle containing petrol and a burning wick at the window of the room occupied by the manager. The bottle bounced off an outside blind and onto the lawn where a small fire was started. The manager ran to the front door but noticed a can of petrol, with a burning paper or rag wick, on the side of the door. He closed the door and went back inside to call the emergency services. The next day yet another area of fire damage was noticed. A bottle had been thrown through the lounge room window of the boarding house and had burnt the curtains, through which it had passed, and the carpet on which it finally came to rest.
[11] The maximum of 12 years was said to apply because the damage would have exceeded $30,000 if the offence had been completed. The offence of attempted arson contrary to s 85(1) of the Criminal Law Consolidation Act 1935 (the Act) must be treated differently than an offence of attempt in the common law sense as provided for by s 270A. What is an attempt for the purposes of s 85(1) of the Act must be understood against the element of intention described by s 85(1)(a) of the Act. It follows that it is no objection to the charge of attempt under that section that some damage, which is only a small part of the intended damage, was actually caused. The approach I suggest would obviate sentencing anomalies between offences where significant damage was intended but which caused no damage at all and offences committed with the same intention but which cause only minor damage.
It is largely a matter of good fortune that all three attempts to burn the premises failed. If all three seats of fire, including the one at the very door from which residents may have attempted to escape, had taken hold, the consequences of the appellant’s conduct would have been catastrophic.
The nature and extent of the appellant’s mental impairment at the time of the offences is not clear. It is possible that he was suffering from a psychosis but any such psychosis is more likely to have been drug induced than psychogenic. I would infer from the number, nature and location of the fire sources and the motive for the offence, that the appellant had a good appreciation of the danger he was creating.
Sadly persons convicted of arson are frequently found to suffer from psychological or psychiatric conditions and for that reason it is difficult to give mental impairment as much weight in mitigation in the case of arson as one might in other offences. That is particularly so where the diagnosis is as ill defined as it is in this case and is likely to have been caused by the voluntary ingestion of illicit drugs.
In all of the circumstances a sentence of two years and seven months, if the time spent in custody is taken into account, is a relatively low sentence even having regard to the appellant’s plea of guilty. I acknowledge that sentences of about three years are commonly imposed for offending against s 85(1) of the Act.[12] In my view there is reason to question the adequacy of what appears to have become the customary standard having regard to the maximum penalties prescribed by Parliament. However leaving that question aside the striking and distinguishing feature of the appellant’s offending is the degree and gravity of the risk of personal injury it caused.
[12] Sentencing Remarks: R v John William Buhagiar 28 September 200; R v Alex Volkov 3 December 2007; R v Timothy Arnold Bruce Bishop 11 April 2008; R v Frank Robert Nicholson 9 May 2008; R v Sophay Anthony May 15 May 2008; R v Craig James Clark 28 May 2008. In R v Spinks [1996] SASC 5476 a sentence of four years and six months imposed on a guilty plea to arson was suspended on appeal. Following a marital breakdown Spinks had burnt his former matrimonial home causing $55,000 in damage.
The second reason I would dismiss the appeal is that the time spent in custody was largely a consequence of the appellant’s mental state, which was diagnosed at the time as a schizoaffective disorder with poly-substance abuse. The appellant was released from James Nash House when it was determined that he had improved sufficiently to return to the community. In those circumstances, even though I have agreed that it was an error to fail to take the time into account, I am not persuaded that it is appropriate to make an arithmetically precise allowance for that incarceration.
The appellant’s struggle to deal with his illness, whatever its cause, naturally excites sympathy. Moreover, his efforts to complete his tertiary education deserve much credit and support. However, as Dr Czechowicz observed, his “choice of weapons (accelerants) is serious and deadly”. Even if, as Dr Czechowicz suggests, the appellant was acting “in a dis-inhibited and violent fashion due to the effects of illicit drugs”, the appellant’s choice, albeit compromised, leaves no room for a sentence less than the one imposed.
Conclusion
I would give permission to appeal but would dismiss the appeal for the reasons I have given.