R v Milne - [2011] SASCFC 150

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v MILNE
[2011] SASCFC 150
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Blue)
6 December 2011
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERALLY
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TIME SPENT IN CUSTODY
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - COMMENCEMENT
Appeal against sentence - defendant pleaded guilty to offences of aggravated causing harm, driving whilst disqualified, unlawfully on premises and illegal use - on 24 May 2011 District Court Judge sentenced the defendant pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA) to the one term of imprisonment of 19 months - where the defendant's offending breached two good behaviour bonds - the first bond was entered into on 4 March 2009 in relation to offending occurring between 2006 and 2008, had been extended by the Court on two occasions, and related to offences of illegal use of motor vehicles, driving dangerously to avoid police pursuit, driving whilst disqualified, break and enter and theft, and in respect of which sentencing Judge on 24 May 2011 imposed the one sentence of imprisonment of 38 months - the second bond, a suspended sentence bond entered into on 24 August 2010, suspended a 12 month term of imprisonment imposed for aggravated serious criminal trespass in a non-residential building - where the sentencing Judge on 24 May 2011 revoked the suspended 12 month sentence and considered that the sentences of 19 months, 38 months and 12 months should be served cumulatively, making the total period of imprisonment to be served five years and nine months - a non-parole period of two years and nine months was fixed - the Judge backdated the sentence to commence on 14 October 2010 when the defendant was taken into custody - where information on appeal disclosed that the defendant, by 4 March 2009, had spent 15 months in custody - complained on appeal that Judge proceeded under a misapprehension of fact, arising because he had not been informed of this period in custody - accepted on appeal by both parties that sentences imposed should be set aside and the defendant resentenced.
Held: (Gray and Sulan JJ) Appeal allowed - sentences of imprisonment of 19 months and 38 months, set aside - suspended sentence revoked and the time spent in custody treated as discharging the defendant’s obligation to serve this time in custody - defendant released on his entry into a supervised three-year good behaviour bond.
(Blue J) In re-sentencing, would impose a sentence in respect of the 2010 offences to nine months imprisonment, leave undisturbed the sentences of 38 months and 12 months, and fix a non-parole period of 25 months - would order that the sentences be backdated to have commenced on 14 July 2009.
Criminal Law Consolidation Act 1935 (SA) s 19(2), s 30(1), s 30(2)(a), s 30(2)(b) and s 86A; Motor Vehicles Act 1959 (SA) s 91; Summary Offences Act 1953 (SA) s 17(1); Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
P, NJ v The Queen (2009) 193 A Crim R 54; R v Colson (1999) 73 SASR 407; R v Garrett (1978) 18 SASR 308; R v Hartley [2008] SASC 228; R v Jamieson (1988) 50 SASR 130; R v McHugh (1985) 1 NSWLR 588; R v Newman (2004) 145 A Crim R 361; R v P, NJ (No 4) (2008) 254 LSJS 302; R v Tilley [2010] SASCFC 73, considered.

R v MILNE
[2011] SASCFC 150
Court of Criminal Appeal: Gray, Sulan and Blue JJ
GRAY AND SULAN JJ:

This is an appeal against sentence.
The defendant and appellant, Dwayne David Milne, pleaded guilty in the District Court to the offences of aggravated threatening harm,[1] driving whilst disqualified,[2] unlawfully on premises[3] and illegal use.[4] These offences were committed on 10 October 2010.
[1]    Criminal Law Consolidation Act 1935 (SA) s 19(2).
[2]    Motor Vehicles Act 1959 (SA) s 91.
[3]    Summary Offences Act 1953 (SA) s 17(1).
[4]    Criminal Law Consolidation Act 1935 (SA) s 86A.
The circumstances of the offending on 10 October 2010 were that the defendant had been with friends in a hotel. A problem arose when one of the group was refused a drink because of a dispute about age. The defendant and his friends were escorted from the hotel. As they left, abuse was directed towards the hotel staff. The defendant then went to a car, obtained a screwdriver and threatened a member of the hotel staff with the words “I’ll stab you, you cunt”. The staff member closed and locked the hotel door. The defendant continued to approach saying “come over here, I’ll fucking kill you”. Abuse of a similar kind continued for a short time. The defendant then drove to the house of an acquaintance and left the vehicle there without permission. It transpired that the vehicle was being illegally used by the defendant.
On 24 May 2011, the defendant was sentenced in respect to the above offending pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA) to the one term of imprisonment of 19 months. The Judge made a reduction of five months on account of the defendant’s pleas of guilty.
The defendant’s offending on 10 October 2010 was conduct that breached two good behaviour bonds. The first bond entered into on 4 March 2009 had been extended by the Court on two occasions. The second bond was a suspended sentence bond entered into on 24 August 2010.
The offending of December 2006, January 2007 and February 2008 the subject of the bond of 4 March 2009, involved the illegal use of motor vehicles, driving dangerously to avoid police pursuit, driving whilst disqualified and the one offence with others of breaking into a computer store and stealing goods to the value of $750. The defendant admitted being present at the time of the break and enter and stealing. In the event of breach, the bond of 4 March 2009 required the defendant to attend Court to be resentenced for the above offending.
The defendant was sentenced in respect to the offences committed between 16 December 2006 and 23 February 2008 by the sentencing Judge on 24 May 2011. Pursuant to section 18A of the Sentencing Act, the one term of imprisonment of 38 months was imposed. In arriving at this sentence the Judge initially determined a notional sentence of 51 months but made a reduction of 13 months as he viewed a sentence of 51 months to be crushing.
On 16 August 2009 the defendant with others attempted to break into a wine store in suburban Adelaide. An attempt was made to kick down the door of the premises and, although the offenders failed to gain entry, the door was damaged. The defendant pleaded guilty to aggravated serious criminal trespass in a non‑residential building. On 24 August 2010 a Judge of the District Court imposed a 12 month term of imprisonment which was suspended upon the appellant entering into a good behaviour bond. The Judge had regard to matters personal to the defendant. On 24 May 2011 the sentencing Judge revoked the suspension and the defendant became liable to serve the sentence of 12 months imprisonment.
The Judge considered that the above sentences of 19 months, 38 months and 12 months should be served cumulatively and as a consequence the total term of imprisonment to be served by the defendant was five years and nine months. The Judge fixed a non-parole period of two years and nine months. The sentence was backdated to commence on 14 October 2010 when the defendant was taken into custody following the offending on 10 October 2010.
The information placed before this Court disclosed that the defendant had by 4 March 2009 spent 15 months in custody. This was not a continuous period as he was apparently released on bail from time to time but returned to custody because of breaches of bail.
The 15 months spent on remand was a period in custody without the benefit of parole. For an 18 year old, one would expect a merciful non-parole period to be fixed. This period on remand could be said to equate to a head sentence of imprisonment of at least three years with a 15 month non-parole period. Viewed in this way it would have been appropriate for the Magistrate on 4 March 2009 to have discharged the defendant without further penalty. This, however, did not occur.
These circumstances are disturbing. It is difficult to understand why a young man who had recently obtained his majority would spend such a lengthy period on remand during these formative years. When regard has been had to the defendant’s youth, his need for guidance and counselling and his intellectual handicaps, it would appear that something has gone astray. Ultimately, some years later the defendant has been sentenced to a further 38 months in custody in respect of this offending. In other words, offending committed when the defendant was 18 years of age or thereabouts has led to a lengthy term of imprisonment. In the ordinary course one would not have expected an immediate custodial term of imprisonment to be imposed. At most one might have expected a suspended sentence.
On appeal it was submitted that the Judge had proceeded to determine the sentences under a misapprehension of fact. As noted above, the defendant had spent 15 months in custody prior to his being released on the bond of 4 March 2009. The Judge’s misapprehension arose because he had not been informed about this period of detention. Both counsel agreed that the sentences imposed by the District Court Judge should be set aside and the defendant resentenced. It was accepted that the defendant should be given credit for the 15 months spent in custody with a resultant reduction in the total head sentence imposed and the non-parole period fixed.
Section 353(4) of the Criminal Law Consolidation Act 1935 (SA) directs that this Court should resentence the defendant to the sentence that this Court considers to be appropriate:
(4)     Subject to subsection (5), on an appeal against sentence, the Full Court must—
(a)     if it thinks that a different sentence should have been passed—
(i)quash the sentence passed at the trial and substitute such other sentence as the Court thinks ought to have been passed (whether more or less severe); or
(ii)quash the sentence passed at the trial and remit the matter to the court of trial for resentencing; or
(b)     in any other case—dismiss the appeal.
The circumstances of the defendant’s offending have been set out earlier. The offending in respect of all matters displayed marked similarities. Generally the offending occurred in company and at times when the defendant was affected by alcohol. The defendant as a result of his intellectual handicaps, underlying antisocial personality and immaturity, appears to have been easily led and to have had difficulty in avoiding engaging in criminal conduct.
The defendant’s antecedents commenced as a young offender when aged 13 years. His offending continued with little interruption until his present offending. The majority of his offending related to matters of dishonesty, driving misconduct and repeated failures to comply with court orders and terms of bonds. It is relevant to emphasise that the defendant has a reduced inability to comply with directions and orders because of his intellectual disability. The criminal justice system, as it has been used in dealing with the defendant, has proved to be a blunt and ineffective instrument.
The defendant was born on 12 November 1988. He came from a dysfunctional home where he had suffered physical abuse from one of his mother’s long term partners. Psychiatric evidence before the sentencing Judge established that the defendant suffered from an intellectual disability in the mild to moderate range compounded by an underlying antisocial personality disorder. The view was expressed that he was barely fit to plead. A forensic psychologist considered that the defendant’s verbal and non-verbal skills to be in the range of those of a ten year old. It was said that as a consequence of the above matters the defendant could be expected to be unreliable and to be unable to adhere to rules or restrictions placed upon him in a “correctional context”. Unsurprisingly given the above, the defendant has had considerable contact with the criminal justice system.
The defendant needs support, counselling and guidance. He needs assistance to address his drug and alcohol problems. He should participate in vocational and educational programs. He should participate in anger management programs. It is clear that the defendant will be released from prison at some point and returned to the community. To our mind he needs close supervision and support on his release and in his rehabilitation.
The defendant has now spent a total of almost two years and four months in custody. He has done so without the benefit of parole. In the case of a young man this equates to a head sentence of something of the order of five years imprisonment. Having regard to the time spent in custody we would not sentence the defendant to any further term of imprisonment. We consider that the total time spent in custody is a sufficient custodial punishment for all the offending including the revoked suspended sentence of imprisonment. The only further sentence is the requirement that the defendant enter into a three-year supervised good behaviour bond. We repeat that the defendant needs guidance and supervision. This need should be reflected in the terms of the bond. It might be expected that he would receive at least the same level of guidance and supervision as if on parole.
Conclusion
We allow the appeal. We set aside the sentences of imprisonment of 19 months and 38 months. We revoke the suspended sentence and treat the time spent in custody as discharging the defendant’s obligation to serve this time in custody. We would not disturb the driver’s licence disqualification imposed by the sentencing Judge. We release the defendant on his entry into a supervised three-year good behaviour bond.
BLUE J: The relevant facts are set out in the judgment of Gray and Sulan JJ.
Sentencing circumstances
The sentencing Judge was required to sentence the appellant/defendant for:
(a)the 2006 to 2008 offences in respect of which the defendant entered into a bond in the Magistrates Court on 4 March 2009;
(b)the 2009 offence in respect of which the defendant had already been sentenced with a suspended sentence imposed on 24 August 2010; and
(c)the 2010 offences.
In these complex circumstances, s 32 of the Criminal Law (Sentencing) Act 1988 (SA) (“the Act”) effectively requires that a single non-parole period be imposed in respect of the total sentences imposed by the sentencing Judge in respect of all offences.
2006 to 2008 Offences: error by sentencing Judge
The sentencing Judge imposed a single sentence of 38 months imprisonment for these offences pursuant to s 18A of the Act. On appeal there is no challenge to the appropriateness of utilising s 18A in the manner in which the sentencing Judge did. The challenge is that the sentencing Judge gave inadequate weight to the defendant’s intellectual disability and that the sentence is manifestly excessive.
The offences comprised:
(a)illegal use on 16 and 28 December 2006, in respect of which the sentencing Judge fixed a notional sentence of three and six months;
(b)serious criminal trespass and associated theft on 22 December 2006, in respect of which the sentencing Judge fixed a notional sentence of 15 months (including one count of illegal use);
(c)aggravated driving dangerously to escape police pursuit on 9 January 2007, in respect of which the sentencing Judge fixed a notional sentence of 18 months (including one count of illegal use and one count of driving whilst disqualified); and
(d)driving dangerously to escape police pursuit on 23 February 2008, in respect of which the sentencing Judge fixed a notional sentence of 9 months.
The sentencing Judge imposed a single sentence of 38 months for these offences after taking into account totality.
The sentencing Judge took into account the defendant’s multiple previous convictions (as a youth) for serious criminal trespass, theft, illegal use and damaging property, in respect of which he had been subjected to a number of bonds and also sentenced to four months detention suspended on entering into a bond. The sentencing Judge also referred to the fact that he had been placed on a bond to be of good behaviour in respect of these offences on 4 March 2009, had breached that bond on 16 August 2009, and the previous sentencing Judge in the District Court on 24 August 2010 had excused that non-compliance with the bond.
The defendant contends on appeal that the sentencing Judge did not give adequate weight to the defendant’s age and intellectual disability. In his sentencing remarks, the sentencing Judge referred explicitly to, and said that he took into account, the defendant’s age, the reports by Dr Raeside and Dr Caylee, the defendant’s dysfunctional home life and physical abuse while growing up and his intellectual disability, underlying antisocial personality disorder and level of verbal and non-verbal skills.
I consider that, taking into account the fact that the defendant had only just turned 18 shortly before the commission of the December 2006/January 2007 offences, coupled with his intellectual disability and nature, the individual notional sentences which the sentencing Judge fixed were manifestly excessive. Taking into account the nature of the offences, I consider that appropriate notional sentences (before taking into account the defendant’s guilty pleas) would have been as follows:
(a)illegal use on 16 and 28 December 2006: notional sentences of 1 month and 2 months totalling 3 months;
(b)serious criminal trespass, theft and illegal use on 22 December 2006: 9 months;
(c)driving dangerously to escape police pursuit, illegal use and driving whilst disqualified on 9 January 2006: 15 months;
(d)driving dangerously to escape police pursuit on 23 February 2006: 9 months.
This gives a total of 36 months and I would discount this by approximately 20% in recognition of the defendant’s guilty pleas to give 29 months utilising s 18A in the same manner as the sentencing Judge. I would not make a reduction on account of totality, and would fix a notional non-parole period of 15 months.
2006 to 2008 Offences: Fresh information
There was one circumstance not known to the sentencing Judge which ought to have been disclosed to him and by reason of which it is common ground that there needs to be an adjustment to the sentence which he imposed. That circumstance is that the defendant had spent a total of 15 months in custody on remand in five tranches between 2 January 2007 and 4 March 2009 in respect of these 2006 to 2008 offences.
It is common ground that the Court has power to take into account time previously spent in custody in respect of an offence either:
(a)by ante-dating the commencement of the sentence;[5] or
(b)by deducting the time in custody from the sentence.[6]
[5] Criminal Law (Sentencing) Act 1988 (SA) s 30(1) and (2)(b); R v Garrett (1978) 18 SASR 308 at 314-315 per Hogarth ACJ and White AJ; R v Jamieson (1988) 50 SASR 130 at 134 per King CJ (Jacobs J and Cox J agreeing); R v Colson [1999] SASC 184; (1999) 73 SASR 407 at [21] – [26] per Doyle CJ (Prior J and Mullighan J agreeing); P, NJ v The Queen (2009) 193 A Crim R 54; [2009] HCA 6 at [15] – [20] per French CJ, Gummow, Hayne, Crennan and Kiefel JJ.
[6] Criminal Law (Sentencing) Act 1988 (SA) s 30(2)(a).

Section 30(1) of the Act gives the Court a plenary power to ante-date or post-date the commencement of a sentence of imprisonment and effectively this gives a sentencing Judge a discretion to ante-date whenever the justice of the case calls for it, although this discretion must be exercised judicially.[7] The High Court in P, NJ v The Queen[8] held that s 30(1) can be utilised to ante-date a sentence to take into account time previously spent in custody notwithstanding that:
(a)the earlier periods in custody were for a different offence (eg, wounding with intent to cause grievous bodily harm in respect of a later sentence on conviction for murder as a result of the death arising from the wounding);
(b)s 30(2)(a) is not available to reduce the term of the sentence due to a statutory minimum period of imprisonment;
(c)s 30(2)(b) is not available (to the extent that it does not apply where the earlier period in custody was not in respect of the same offence).
[7] R v Garrett (1978) 18 SASR 308 at 314-315 per Hogarth ACJ and White AJ; R v Jamieson (1988) 50 SASR 130 at 134 per King CJ (Jacobs J and Cox J agreeing);P, NJ v The Queen (2009) 193 A Crim R 54 at [15] – [20] per French CJ, Gummow, Hayne, Crennan and Kiefel JJ.
[8] (2009) 193 A Crim R 54 at [15] – [20] per French CJ, Gummow, Hayne, Crennan and Kiefel JJ.
Whichever method is adopted, the substantive effect should be the same and, in particular, the defendant should become eligible for parole at the same time and should complete the entire sentence (including parole) at the same time. Both parties conceded that either option was available and in the discretion of the Court. In this case, the defendant favoured ante-dating and the Director of Public Prosecutions favoured deduction, but opposite positions were adopted in Tilley.[9]
[9] R v Tilley [2010] SASCFC 73.
By way of illustration, based upon my reasons below, the alternative forms of the total sentences imposed in respect of all 2006 to 2010 offences would be:
(a)50 months imprisonment with a non-parole period of 25 months back‑dated to 14 July 2009; or
(b)35 months imprisonment with a 10 month non-parole period back‑dated to 14 October 2010.
The advantages of ante-dating over deduction include:[10]
(a)both the apparent head sentence and non-parole period in form reflect the substance of the head sentence and non-parole period appropriate to the offence and the offender; whereas deduction results in an artificial appearance that both the apparent head sentence and non‑parole period are less than that determined as a matter of substance by the sentencing Court; and
(b)the apparent ratio between the non-parole period and the head sentence reflects the actual ratio considered appropriate by the sentencing Court whereas deduction results in the artificial appearance of a low ratio.
[10] See R v Newman (2004) 145 A Crim R 361; [2004] NSWCCA 102; and R v Tilley [2010] SASCFC 73 which refers to additional advantages.
On the other hand, deduction has the advantage over ante-dating in that it avoids the artificial appearance that the defendant was in custody over a period during which he or she was not in fact in custody (although he or she had been in custody for an equivalent earlier period).
In R v Garrett,[11] the defendant had spent time in custody after being convicted at his first trial but after a successful appeal it appears that he was released on bail pending a second trial. After his conviction at the second trial, the sentencing Judge stated a case to this Court asking whether he could ante‑date any term of imprisonment. The Court answered “yes”. Hogarth ACJ and White AJ said:
In the English and Victorian cases to which we have referred, mention was made of extraordinary results which might follow from a sentence being ante-dated to a day so as to run during a period before an accused person was taken into custody. No doubt the section is in terms broad enough to give a court a discretion to make such an order. But, when giving such a discretion to a court, Parliament must surely have assumed that the Court would exercise the discretion reasonably and not make illogical or unreasonable orders of the type envisaged in those cases.[12]
[Emphasis added].
[11] (1978) 18 SASR 308.
[12] (1978) 18 SASR 308 at 315.
In R v Jamieson,[13] the sentencing Judge ante-dated the sentence to the date on which the defendant had been charged, eight months prior to the date of sentencing, notwithstanding that the defendant had been on bail throughout that period and never in custody. This was the very hypothetical situation to which the Court had referred in Garrett as being within power but an unreasonable exercise of discretion. The Full Court in Jamieson held that this was an unreasonable exercise of the discretion. King CJ (Jacobs J and Cox J agreeing) said:
The effect of the Judge’s order, therefore, was to incorporate into the term of imprisonment and the non-parole period a period of some eight months during which the respondent was not in custody at all…
In R v Garrett…Hogarth J and White J took the view that the legislation is broad enough to give a court a discretion to make an order ante-dating the sentence so as to cover a period during which the offender is not in custody.
It seems to me, however, that the circumstances in which it would be proper to make the latter order must be very rare. The purpose of the section, I think, is plainly to enable the court to make an order directing the commencement of the sentence on a date which will result in incorporation into the sentence periods spent in custody prior to the actual passing of the sentence.
I can envisage cases in which it might be proper to use it to ante-date the sentence to include a period during which the offender has not been in custody. Such circumstances might exist where the offender has been in custody for some period of time, say, three months following his arrest, but has then been released on bail. It might be proper in such circumstances to ante-date the sentence for a period of three months, being a period equivalent to that which he had actually spent in custody.[14]
[Emphasis added].
[13] R v Jamieson (1988) 50 SASR 130.
[14] (1988) 50 SASR 130 at 134.
In R v McHugh,[15] Street CJ (Hunt J and Enderby J agreeing) said:
It is desirable sentencing practice that, where there has been a period of pre-sentence custody exclusively referable to the offences for which sentence is being passed, the commencement of the sentence (and the non-parole or non-probation period) should be back-dated for an equivalent period. This is to be preferred to a process of assessing the proper sentence (and non-parole or non-probation period) and allowing, as it were, a discount in consequence of the pre-sentence custody. The desirable practice will promote the accuracy of the record, preventing there being a hidden factor affecting the length of the custody involved in consequence of the sentencing order. In addition, this practice will remove inequalities and unfairnesses as between prisoners arising from delays prior to sentencing…[16]
[Emphasis added].
[15] (1985) 1 NSWLR 588.
[16] (1985) 1 NSWLR 588 at 590-591.
In R v Newman,[17] the facts were similar to the present case. Howie J (McColl JA agreeing) said:
In my view, although there is an element of fiction involved in backdating a sentence to a period when the offender was not in custody, there is much to be said in its favour. Firstly, it preserves the denunciatory and deterrent value of the sentence to be pronounced. If a sentence is decreased by a substantial period already served in custody, it can have the appearance of being inadequate both to public perception and when it appears in the statistical information that is now so often relied upon by sentencing courts. This was one of the reasons expressed in McHugh for the adoption of the practice and it remains a highly important consideration…
The practice of backdating the sentence also makes it obvious to the offender that he, or she, has received a reduction in the sentence for the period already spent in custody. It ensures that there can be no argument, such as is now presently before this Court, as to whether the discount was in fact given even though the sentencing judge said that the time served in custody was taken into account in the sentence imposed…
The practice also avoids questions of disparity erroneously arising because a sentence, with which comparison is being made, has been markedly reduced by pre-sentence custody…
I accept that the approach that was advocated in McHugh is a matter of practice and that a sentencing judge has a discretion as to how to take into account pre-sentence custody... But it should be emphasised once again that backdating is the preferable course and it should be adopted unless it is clearly inappropriate to do so…
The present case is a good example of why the practice laid down in McHugh should continue to be applied and, in my opinion, the fact that a sentence would have to be backdated to a period when the offender was not in custody in order to comply with the practice is not a good reason for failing to follow it.[18]
[Emphasis added].
[17] (2004) 145 ACrim R 361; [2004] NSWCCA 102.
[18] (2004) 145 A Crim R 361 at [27], [29], [30], [32].
In R v Hartley,[19] the sentencing Judge gave credit by way of deduction for time spent in custody during earlier discontinuous periods as well as the final continuous period to the date of sentence. Vanstone J (Duggan J and David J agreeing) cited the decisions in Jamieson and Colson as establishing that it would only be in a very rare circumstance that it would be appropriate for the ante‑dating power to be utilised where there were discontinuous periods in custody. However, those authorities had been referring to the extreme situation in which the defendant was not in custody at all.
[19] [2008] SASC 228.
In R v Colson[20] and R v P, NJ (No 4)[21] this Court and in P, N J v The Queen[22] the High Court gave s 30(1) of the Act a similar construction involving plenary power to that adopted in Garrett and affirmed in Jamieson in respect of the predecessor legislation.
[20] (1999) 73 SASR 407 at [24] per Doyle CJ (Prior J and Mullighan J agreeing); [1999] SASC 184.
[21] [2008] SASC 97; (2008) 254 LSJS 302 at [14] – [32] per Duggan J (White J at [118] agreeing on this issue) [96] per Gray J.
[22] (2009) 193 A Crim R 54 at [15] – [20] per French CJ, Gummow, Hayne, Crennan and Kiefel JJ.
The most recent decision of this Court is R v Tilley.[23]The defendant had been in custody between 19 June 2008 and 4 September 2009, when he was released on bail after this Court had set aside his conviction and was ultimately sentenced on 20 October 2010. The sentencing Judge ante-dated the sentence. Duggan J (Anderson J and Peek J agreeing) said:
…there are practical reasons why the legislation should be interpreted to permit the course taken by the trial Judge in the present case. There is no reason why a short period on bail between time spent in custody and the passing of the sentence should be treated any differently from the situation where the sentencing takes place when the person is in custody up to the date of sentencing. It appears that King CJ was of this view in R v Jamieson when he gave the example of a defendant who had been released on bail prior to sentencing.
As to the choice between deducting the time spent in custody from the sentence and backdating the sentence, the latter provides a more accurate indication on the face of the sentence as to the nature of the penalty imposed. This is relevant for present and future purposes.
[He then cited with approval part of the passage from Newman quoted above].[24]
[23] [2010] SASCFC 73.
[24] [2010] SASFC 73 at [23] – [24].
As Tilley is the most recent decision of this Court, and accords with the earlier decisions in Garrett and Jamieson, and for the reasons given in Tilley itself, in my view the preferable course in this case is to adopt ante-dating as opposed to deduction. Further, ante-dating would ensure that the Parole Board, when it comes to consider parole, is aware of the time period for which the defendant has been in custody in respect of these offences. This case itself graphically demonstrates that periods in custody can be overlooked or misunderstood.
On this basis, both the head sentence and the non-parole period should be ante-dated to 14 July 2009.
2009 Offence
There is no challenge on appeal to the decision of the sentencing Judge to revoke the 12 month suspended sentence and not to reduce its duration.
2010 Offences
The defendant contends on appeal that the sentence of 19 months imprisonment for the 2010 offences is manifestly excessive.
The most serious offence was aggravated causing harm. It is highly pertinent that, while the defendant held a screwdriver in his hand and threatened the hotel staff, he remained more or less in the vicinity of the driver’s side of the car and did not approach the near vicinity of the hotel staff close to the door of the hotel. The defendant also pleaded guilty to illegal use of the vehicle, driving whilst disqualified and being unlawfully on residential premises on the same night.
Given the circumstances of the offending, I consider that the starting point of a sentence of 24 months imprisonment (before discount for the guilty plea) was manifestly excessive. An appropriate sentence for the offences would have involved a starting point of 12 months imprisonment, less a 20% discount for the guilty plea giving a resultant sentence of 9 months imprisonment. I would vary the sentence imposed by the sentencing Judge to that extent.
Overall non-parole period and totality
In respect of the total of the head sentences of 69 months, the sentencing Judge imposed a non-parole period of approximately 50%, namely 33 months. I would reduce the total of the head sentences to 50 months and reduce the final non-parole period to 25 months.
The defendant contends on appeal that the sentencing Judge erred by failing to consider the principle of totality in respect of the total of the sentences which he imposed and only considered totality at the intermediate stage of fixing the sentence pursuant to s 18A of the Act in respect of the 2006 to 2008 offences.
This submission overlooks the fact that the sentencing Judge expressly adverted to the principle of totality after he had derived a total sentence of 69 months and concluded that totality principles did not require a reduction of the three component sentences to reflect an overall appropriate total of the sentences imposed. However, in respect of the total of the head sentences which I consider was appropriate, namely of a total of 50 months imprisonment (with a non-parole period of 25 months), I consider that the principle of totality does not require any reduction in the component sentences.
The result of my judgment would be that the defendant is now eligible for parole. I agree with Gray and Sulan JJ on the vital importance of the defendant receiving prompt, close and intensive supervision from the supervising authority.
Conclusion
I would allow the appeal. I would reduce the sentence imposed in respect of the 2006-2008 offences to 29 months imprisonment, the sentence imposed in respect of the 2010 offences to 9 months imprisonment, leave undisturbed the sentence of 12 months in respect of the 2009 offence, fix a non-parole period of 25 months, order that the sentences be deemed to have commenced on 14 July 2009 and leave undisturbed the disqualifications from driving a motor vehicle.