R v Nguyen

R v NGUYEN
[2002] SASC 341
Court of Criminal Appeal: Perry, Williams and Gray JJ

PERRY J. This is an appeal against the sentence imposed in the District Court following the appellant’s committal for sentence to that court on his plea of guilty to two counts of armed robbery and one count of illegal use of a motor vehicle.
After taking into account approximately seven months, during which the appellant had been in custody prior to sentencing, the learned sentencing judge imposed a head sentence of 8 years on those offences. In addition, the commission of the offences activated a suspended sentence of 9 months imprisonment which had been imposed in January 2001. So that the total head sentence became 8 years and 9 months, against which the learned sentencing judge set a non-parole period of 7 years.
The head sentence and the non-parole period were both directed to commence on the date upon which the appellant was sentenced, that is to say, from 15 March 2002.
There are three grounds of appeal:
“a.The non-parole period in all the circumstances was manifestly excessive.
b.The Learned Sentencing Judge failed to take any adequate account of the Appellant’s youth and rehabilitation as a factor in sentencing.
c.the Learned Sentencing Judge failed to take into account the Appellant’s contrite plea as a factor in setting the non-parole period.”
The circumstances of the offences were serious. At about 8.30 pm on the day in question the appellant, together with two other men, entered the premises of a Vietnamese restaurant at Mansfield Park. All three were wearing balaclavas. The appellant was armed with a knife. Some patrons were dining in the restaurant. The owner’s wife was standing behind the front counter, with her daughter and four-year-old grand-daughter. Also behind the counter was a waitress, and the owner.
One of the intruders, who was described by the owner as armed with a “dagger”, walked up to the owner, grabbed him by the collar of his jumper and pulled him over to the customer side of the counter.
It does not appear that the appellant was the man responsible for this assault, but the papers are not entirely clear on that point. At all events, another one of the men, speaking in Vietnamese, was heard to tell the appellant to “rip off” the waitress’s necklace. The appellant thereupon approached the waitress and held the blade of the knife which he was carrying against her stomach. He then took hold of the necklace, which was a neck chain holding a pendant, and pulled it so that it broke.
On seeing this, the owner’s wife, who was anxious to protect her grand-daughter, took hold of her own neck chain and broke it off and gave it to another of the intruders. The man who took that necklace also removed from the cash register a tray containing between $400 and $500. The two necklaces were worth over $2,000.
All three intruders then made off in a car which had been stolen earlier that evening, and which was the subject of the illegal use charge.
All three offenders were arrested soon after the offence. The necklaces were recovered, and some of the money. All three were jointly charged with the three offences.
The appellant pleaded guilty at an early stage in the Magistrates Court, following which he was committed for sentence in the District Court.
On the hearing of the appeal the court was informed that one other of the accused has subsequently pleaded guilty, and is awaiting sentence pending the outcome of this appeal. At the time the appeal was heard, the third man was awaiting trial.
At the time of the offence the appellant was aged 24 years. He was 25 when sentenced. He was born in Vietnam and migrated to Australia in 1990. The learned sentencing judge was told that the appellant had a good work record in unskilled jobs, but drifted into intermittent use of heroin and other drugs. It was suggested that on the day of the offence he had been using Serepax and Valium as he had been unable to obtain heroin.
The appellant has a history of offending since 1994. The record is relatively minor, although it includes convictions for unlawful possession and larceny. In 1999 there were two separate convictions for possession of heroin.
The convictions now in question are by far the most serious offences which he has committed.
On 23 January 2001 in the Magistrates Court sitting at Port Adelaide the appellant was sentenced to 9 months imprisonment for a number of offences, including illegal use of a motor vehicle, unlawful possession and carrying an offensive weapon. That sentence was suspended on a two-year good behaviour bond.
The fact that the appellant committed the present offences while serving that bond, is not only a circumstance of aggravation , but is relevant to his prospects of rehabilitation.
The learned sentencing judge correctly described the offences as “very serious”. He further observed:
“The use of knives and guns to rob and terrify innocent members of the public is something that is now disturbingly prevalent.
The fact that the cause of such behaviour may be an addiction to heroin is of very little consolation to your victims. General deterrence for offending as serious as this and as violent as this must take precedence. I bear in mind that although you have pleaded guilty to two counts of armed robbery, in a sense it was one planned robbery involving two victims, which technically makes it less serious than two discrete armed robberies.”
The learned sentencing judge noted that the appellant had been in custody since 9 August 2001, some sevens months before he was dealt with on the present charges.
The learned sentencing judge indicated that “normally” he would impose a head sentence of 10 years for all three offences. However, in recognition of the early pleas of guilty, he reduced that to 8 years, to which was added the sentence of 9 months imprisonment which was activated by breach of the bond. A further 7 months must be allowed for, in that the total head sentence of 8 years and 9 months was expressed to run from the date upon which the sentence under appeal was imposed.
Even allowing for that, in my opinion, it cannot be said that the head sentence falls outside of the range of sentences which are appropriate to the offending. Recently, this Court reaffirmed that in cases such as this the appropriate sentencing standard for a single armed robbery was of the order of 6 to 8 years imprisonment: see R v Place.[1] In that case, in their joint judgment, with which Gray J concurred, Doyle CJ, Prior, Lander and Martin JJ observed:[2]
“100This Court has said on a number of occasions that armed robbery on premises such as bank, service stations, pharmacies, delicatessens and retail stores where weapons or objects that appear to be weapons are used to threaten the immediate victims are prevalent crims committed against vulnerable victims and are crims in respect of which general deterrence and the protection of the public are of particular importance. This Court has emphasised that such crimes of armed robbery are frequently committed by persons addicted to and affected by alcohol or other drugs who commit the crimes in order to obtain funds to meet their addiction. For these underlying reasons, this Court has said that, generally speaking, the standard of penalty appropriate for those types of armed robberies committed by those types of offenders is in the order of six to eight years imprisonment. .......
101The types of armed robberies to which the standard of six to eight years applies can be described in broad terms only. The range of both personal and objective circumstances associated with crimes of armed robbery is such that it is inappropriate to attempt to be any more precise. It is the circumstances of a particular offence and the offender that determine whether the standard is applicable. The importance of carefully assessing those circumstances should not be diminished by the use of labels or by attempting to create categories of offending.”
[1] (2002) 81 SASR 395.
[2] Ibid 429 para 100.
Although it was right for the learned sentencing judge to have regard to the fact that the two armed robberies in question were committed on one occasion at the same premises, they represented a terrifying ordeal for the victims. Bearing in mind the observations as to the sentencing standard for armed robbery which fell from this Court in Place, and bearing in mind that the appellant was also being sentenced for the separate offence of illegal use of a motor vehicle, a starting point somewhat higher than 10 years could have been justified.
I have been a little troubled by the fact that the learned sentencing judge expressed himself in terms suggesting that the deduction for the plea of guilty was against the head sentence of 10 years, rather than taking account of the fact that logically the deduction should have been applied against the effective sentence of 10 years and 7 months, having regard to the period already spent in custody. But that consideration does not lead me to the view that this Court should interfere.
It must be accepted that the fixation of the non-parole period of seven years against the total head sentence of 8 years and 9 months represents a somewhat high proportion of the head sentence. But as this Court pointed out in Creed,[3] there are no principles which dictate that a non-parole period must bear any predetermined relationship to the head sentence; each case must be dealt with on its own facts.
[3] (1985) 37 SASR 566 at 569.
While the appellant is relatively young and must still be regarded as having some prospect of rehabilitation, the fact remains that the offending was very serious. The appellant’s prior record and the fact that he was on a bond at the time the offences were committed were matters which the learned sentencing judge was entitled to take into account in setting the non-parole period.
I have reached the view that while the non-parole period of 7 years is high, it is not so high as to be manifestly excessive.
Since dictating the above reasons, I have had the benefit of perusing the draft reasons for judgment of Gray J.
I agree with him that, where possible,[4] it is far preferable for sentencing judges to backdate sentences to the date when the defendant was taken into custody. It would have been better if the learned sentencing judge in this case had followed that course.
[4] Such a course is not open where the period in custody is either not referable to the offending in question, or has been interrupted by a period when the defendant was at large.
However, given my view that the overall penalty imposed in this case was, if anything, modest, I would not be prepared to interfere with it.
I would dismiss the appeal.
WILLIAMS J. I agree that this appeal should be dismissed for the reasons given by Perry J.
GRAY J. This is an appeal against sentence.
Background
On 19 December 2001 Phong Thanh Nguyen (“the appellant”) pleaded guilty in the Magistrates Court to two counts of armed robbery and one count of illegal use of a motor vehicle.[5] The matters were committed to the District Court for sentence.
[5] “On 9^th day of August 2001, at Mansfield Park in the said State, [Phong Thanh Nguyen] being armed with an offensive weapon or instrument, namely a firearm and a knife, robbed VQ of money to the amount of $500.00 and a necklace to the value of about $2000.
The offending arose out of the one incident on 9 August 2001. The appellant entered a restaurant at about 8:30 pm with two other men. All were wearing balaclavas. There were three knives involved and a “sawn off” shotgun containing live ammunition. The appellant pressed a knife against a waitress’s stomach and ripped her necklace from around her neck. Another employee was behind the counter. She was fearful for her four year old granddaughter and pulled off her necklace so that she would not suffer the same fate. The men demanded money and $500 was handed over.[6] A stolen car was used to travel to the restaurant. This offending breached a nine month suspended sentence bond imposed on 23 January 2001. The appellant acknowledged the breach of bond before the sentencing judge.
[6] Jewellery valued at around $2000 and $450 cash was recovered.
The appellant was aged 25 years. He was born in Vietnam but had been living in Australia with his family since 1990. His fiancée lived in Vietnam. He completed his secondary schooling in Australia and had been employed since he was 18 years. His command of English is poor. He worked as a farm hand and picked fruit. He also made furniture but became dissatisfied with working seven days a week for 12 hours a days on a low income. The appellant lost his job when his employer “went under”. He was owed money by his employer. The appellant had been an intermittent heroin user for some five years. On the day of the offending he had taken more Serepax and Valium than usual. He committed the robbery to obtain money for drugs.
On 15 March 2002 the appellant was sentenced. No victim impact statements were before the court.[7] The judge’s remarks included:
[7] This was said to be due to administration difficulties.
“You have been in custody since 9 August and you pleaded guilty in the Magistrates Court to these matters at a very early stage.
…
You have previous convictions for relatively minor matters and, of course, nothing is a serious as this in your previous record.
Having said that, it is obvious that this is a very serious offence and in many ways an outrageous offence. The use of knives and guns to rob and terrify innocent members of the public is something that is now disturbingly prevalent.
The fact that the cause of such behaviour may be an addiction to heroin is a very little consolation to your victims. General deterrence for offending as serious as this and as violent as this must take precedence. I bear in mind that although you have pleaded guilty to two counts of armed robbery, in a sense it was one planned robbery involving two victims, which technically makes it less serious than two discrete armed robberies.
Also, I take into account that you have pleaded guilty at a very early stage and, through your counsel, you have not tried to make spurious excuses for your behaviour, you have been very frank with the court and I give you benefit for that.
However, as you must understand, these offences call for a substantial term of imprisonment. I take into account in sentencing that you’ve been in custody since 9 August and I indicate I will give one sentence in relation to all three offences.
Normally, I would impose a head sentence of 10 years. However, because of your very early pleas of guilty, I reduce that to eight years. That head sentence will start at the expiration of nine months from today, in relation to your breach of bond.
I also, as a matter of completeness, disqualify your driving licence for a period of 12 months, because that is the mandatory sentence for illegal use. I set a non parole period of seven years, which will commence from today.”
Issues on Appeal
Counsel for the appellant complained that the non-parole period of seven years was manifestly excessive. It was said that the judge’s reasoning did not disclose the way he had fixed the non-parole period. The judge failed to have sufficient regard to the youth and other personal circumstances of the appellant. The judge failed to adequately take into account the appellant’s contrition, and pleas of guilty. The judge did not backdate the sentence to take into account the time that the appellant had been in custody from 9 August 2001 until 15 March 2002.
Counsel for the Crown said that no error in the judge’s approach had been identified. The sentence was within the range of sentences available. It was acknowledged that when the judge fixed the head sentence he did not refer to the time spent in custody. However it was said that he was not obliged to do so. It was said that his remarks demonstrated that he had in mind the fact of the revoked suspended sentence and that the appellant had been in custody since 9 August 2001. It was submitted that his remark “I would normally impose a sentence of 10 years” should be read against the background of his earlier observations that he was taking into account the time spent in custody and that he was aware that a sentence of nine months would be activated. It was accepted that it was not explicit. Counsel for the Crown’s submissions included:
“I accept that against the head sentence which his Honour arrived at, the non parole period represents a somewhat higher than normal proportion of the head sentence that would be served.
…
As I said it is not common for a non parole period to represent such a high proportion of the head sentence, but given that the head sentence for the starting point could have and arguably should have been higher this appellant cannot point to any prejudice, if you like, from the fact that his Honour has decided to structure a sentence in the way that the non parole period represents a much higher proportion of the head sentence.
It is not common but it is not such as to make an appealable point”
The judge was charged with a number of tasks. He had to sentence the appellant for two counts of armed robbery and one count of illegal use. He then had to decide whether to revoke the suspended sentence and finally address a non-parole period.
Approach to Sentencing
The approach of an appellate court when reviewing sentences has been the subject of comment by the High Court in Dinsdale v R [8]. Gleeson CJ and Hayne J said:
[8] (2000) 202 CLR 321 1538 at [3-4]
“The task of the Court of Criminal Appeal was to determine whether there was error made in sentencing the accused, error being understood, in this context, as it was explained in House v R:
‘It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.’
Those principles [referring to House v R] apply both to Crown appeals based upon alleged inadequacy and appeals by offenders based upon alleged excessiveness.”
Gaudron and Gummow JJ were of a similar opinion. Their Honours said at [22]:
“In the circumstances of the present case, the question for the Court of Criminal Appeal was whether the result reached by the trial judge had been
‘upon the facts ... unreasonable or plainly unjust [so that] the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.’”
Consideration of the Issues
The Head Sentence
The judge utilised section 18A of the Criminal Law (Sentencing) Act 1988 (SA) and imposed the one sentence for the three offences. He said that “normally” he would have imposed a head sentence of 10 years however he made a reduction of 20% for the pleas of guilty and fixed a head sentence of eight years imprisonment.
Given the gravity of the appellant’s crimes the provisional head sentence of 10 years was not suggested by counsel for the appellant to be manifestly excessive. No complaint was made about the adequacy of the 20% reduction for the appellant’s pleas of guilty and contrition[9]. The head sentence of eight years was accepted as appropriate providing that the time spent in custody was brought to account.
The Suspended Sentence
[9] It was submitted however that the judge did not adequately take the pleas into account when fixing the non parole period.

There was no challenge to the judge’s decision to revoke the suspended sentence for the appellant’s breach of bond. However it was said that the time in custody had to be brought to account in an appropriate manner.
Section 31(1) of the Sentencing Act addresses cumulative sentencing:
“Subject to subsection (2), the court by which a sentence of imprisonment is imposed may direct that the sentence be cumulative upon any other sentence, or sentences, of imprisonment or detention in a training centre then being served, or to be served, by the defendant.
The judge ordered that the sentence of eight years be cumulative upon the activated sentence. This was not challenged.
The Non-Parole Period
Parole is a system of early supervised release. The purpose of parole is to offer the prisoner hope of possible future release. It provides an inducement to reform. It also allows the prisoner to address the causes of the original offending with supervision and assistance. It aims to prevent crime by assisting the prisoner to make long term lifestyle changes. Parole offers long term community protection. It envisages that the benefits will continue for longer than the period which the offender would otherwise have been held in prison.
In Bugmy v The Queen[10] the High Court discussed the concept and purposes of parole. The importance of rehabilitation of prisoners in the interest of the community were emphasised. Mason CJ and McHugh J observed:
[10] (1989-1990) 169 CLR 525 at 531, 536
“Accordingly, although the fixing of a minimum term confers a benefit on the prisoner, it serves the interests of the community rather than those of the prisoner: Attorney-General v Morgan and Morgan[11]. In that case Jenkinson J, with whom Kaye J agreed, pointed out[12] that considerations relevant to the interests of the community which the imprisonment of offenders is designed to serve, as well as circumstances which mitigate punishment, will be taken into account in determining the head sentence and, again, in fixing the minimum term. At that stage the various interests of the community ‘will be balanced against the advantages to the community which release on parole is thought likely in the particular circumstances to confer, and against whatever degree of mitigation mercy to the offender may claim without injustice’.
Once this is accepted, it follows that the considerations which the sentencing judge must take into account when fixing a minimum term will be the same as those applicable to the setting of the head sentence. Obviously, the weight to be attached to these factors and the way in which they are relevant will differ due to the different purposes behind each function.
A prisoner's prospects of rehabilitation will be relevant to the fixing of a minimum term, both by way of mitigation and because the community benefits from the reformation of one of its members. Conversely, the community needs to be protected from a violent offender, especially one whose prospects for rehabilitation are bleak. Likewise, the nature of the crime will be relevant because a more serious offence will warrant a greater minimum term due to its deterrent effect upon others. But the nature of the offence does not assume the importance which it has when the head sentence is determined. There, the sentence must be proportionate to the gravity of the offence Veen v The Queen [No 2][13], whereas the minimum term represents a portion of the head sentence during which the offender will not be considered for parole. In one sense, that portion must itself bear a proportionate relation to the crime. Generally speaking, the perceived prospects of rehabilitation will make a significant difference. Among other things, those prospects will affect what is required by way of protection of the community. Release on parole is a concession made when the Parole Board decides that the benefits accruing by way of rehabilitation and the recognition of mitigating factors outweigh the danger to the community of relaxing the requirement of imprisonment.”
Dawson Toohey and Gaudron JJ observed:
“... The practical effect of fixing a minimum term is that thereafter the Parole Board may, but of course need not, grant the prisoner parole ... That is not to say that the minimum term should be seen as the shortest time required for a paroling authority to form a proper view of the prisoner's prospects of rehabilitation. That approach was rejected in Power v The Queen[14]. Referring to Power, this Court said in Deakin v The Queen[15]:
‘The intention of the legislature in providing for the fixing of minimum terms is to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence.’
In Iddon & Crocker v The Queen[16], the Court of Criminal Appeal of Victoria said of the legislation with which this appeal is concerned: "The scheme of the legislation is plain enough. The intention of the legislature is that a minimum term is a benefit to the prisoner ... " That benefit lies in providing the prisoner a basis for hope of earlier release and in turn an incentive for rehabilitation: ...[17]”
[11] (1980) 7 A Crim R 146
[12] (1980) 7 A Crim R, at p 155
[13] (1988) 164 CLR 465 at p 477
[14] (1974) 131 CLR 623
[15] (1984) 58 ALJR 367; 54 ALR 765, at p 766
[16] (1987) 32 A Crim R 315, at pp 325-326
[17] (1987) 32 A Crim R at pp 327-328
In R v Shrestha[18] Deane Dawson and Toohey JJ observed:
“The fact that considerations of mitigation and rehabilitation will ordinarily found a decision that a prisoner be released on parole does not mean that they are the only considerations which are relevant to the question (for the sentencing judge) whether a convicted person should be eligible for release on parole at some future time or to the subsequent question (for the parole authority) whether the prisoner should be actually released. All of the considerations which are relevant to the sentencing process, including antecedents, criminality, punishment and deterrence, are relevant both at the stage when a sentencing judge is considering whether it is appropriate or inappropriate that the convicted person be eligible for parole at a future time and at the subsequent stage when the parole authority is considering whether the prisoner should actually be released on parole at or after that time.”
[18] (1991-1992) 173 CLR 48 at 68-69
In R v Miller[19] Doyle CJ referred to the High Court’s consideration of the purpose of a grant of parole in Power v The Queen[20]; Deakin v The Queen[21]; Bugmy v The Queen[22] and R v Shrestha[23] and observes:
“I must consider all factors relevant to the setting of a head sentence, but it is appropriate to give greater weight to rehabilitation of the prisoner when fixing a non-parole period, and to bear in mind the ability of the Parole Board to assess the prisoner’s suitability for parole when the time comes.”
[19] (2000) 76 SASR 151 at [42]
[20] (1974) 131 CLR 623
[21] (1984) 58 ALJR 367
[22] (1990) 169 CLR 525
[23] (1991) 173 CLR 48
In the present case the judge fixed a non-parole period of seven years. The judge’s remarks are silent as to the appellant’s prospects of rehabilitation. There is no indication that he has had regard to this factor or its importance when fixing the non-parole period. His remarks disclose no explanation as to why a non-parole period as long as seven years was fixed in this case.
The evidence suggests that the appellant has prospects of rehabilitation. He is relatively young and determined to address his drug addiction problems. He had a good work history and appears to have the support of his family. This is the first occasion on which he has spent time in custody. The papers indicate that he has prospects of rehabilitation and there is no reason to suspect the contrary. Against this it must be acknowledged that the appellant was not a first offender[24] and the offending occurred whilst he was under a suspended sentence bond. However the cause of the breach of bond was said to be his drug addiction. He was punished separately for this breach by the activated sentence. There is no evidence of what if any benefit the appellant received from the conditions of the bond and the extent of the supervision given by the community corrections officer to whom he was assigned.[25]
[24] The appellant’s criminal antecedents dated back to juvenile offending in 1994. They initially primarily consisted of motor vehicle offences and more recently drug offences involving possession. The appellant has no record for violent offences and had not previously been in custody. The judge described the offences as being “relatively minor matters”.
[25] The terms of the appellant’s suspended sentence bond included:
The period of possible parole provided little incentive to the appellant to behave well whilst in custody or to work hard at reform. It provided him with little hope that on his release he could be given supervision and assistance to overcome his drug addiction problems. It did not address the long term positive benefits to the community which could have flowed from his rehabilitation. The non-parole period of seven years was excessive.
The judge’s failure to consider and give greater weight to rehabilitation when addressing the non-parole period was in error. It is necessary to fix a new non-parole period. As earlier observed the appellant is still young and has prospects of rehabilitation.
A non-parole period of six years should be fixed having regard to the eight year head sentence and the nine month activated sentence.
Time in Custody
Section 30 of the Sentencing Act provides:
“(1)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.
(2)Where a defendant has been in custody in respect of an offence for which the defendant is subsequently sentenced to imprisonment, the court may—
(a) make an appropriate reduction in the term of the sentence, having regard to the period for which the defendant has been in custody; or
(b) direct that the sentence be taken to have commenced on the day on which the defendant was taken into custody.
(4)Where a court fixes a non-parole period, the court must specify the date on which the non-parole period is to commence or is to be taken to have commenced.
(5)Where a court directs that a sentence of imprisonment is to be taken to have commenced on the day on which the defendant was taken into custody, any non-parole period fixed by the court in respect of that sentence will be taken to have commenced on that day.
(6)If, on imposing a sentence of imprisonment, the court fails to specify the date on which or the time at which the sentence is to commence or is to be taken to have commenced, the sentence—
(a)will, in the case of a defendant not then in custody, commence on the day on which the defendant is subsequently taken into custody for the offence; or
(b)will, in the case of a defendant already in custody for the offence, be taken to have commenced on the day on which the defendant was last so taken into custody; or
(c)will, in the case of a defendant in custody for some other offence, commence on the day on which the sentence is imposed, unless the sentence is to be served cumulatively pursuant to this Act or any other Act.”
The desirability of backdating sentences was discussed in R v Pahuja (No 2)[26] where White J observed:
“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.”
[26] (1988-1989) 50 SASR 551 at 563
In R v Lane[27] 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 v SA Police[28] 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.”
[27] (1989-1990) 53 SASR 480 at 481
[28] Unreported S 5549 2 April 1996
In Frank v Police[29] Lander J applied Pahuja and further observed:
“It was submitted that if a person has spent time in custody prior to sentence that the court should back date the sentence to the date when the person went into custody in respect of those offences. I agree that that is the preferable course: R v Pahuja (No 2) (1989) 50 SASR 551 at 563; R v McHugh (1985) 1 NSWLR 588 at 590.
... Passing a sentence in that way allows the prisoner and all other interested persons to know the real sentence which has been imposed. It allows the prisoner to know that the time spent in custody has in fact counted. It guards against requiring a party to spend too long in prison before parole becomes available. If a court simply has regard to time spent in custody there is a real risk, when considering the non-parole period which must be set, that the court may overlook that the person to be sentenced has actually served the whole of the time for which account has been given.
There is another matter which has to be taken into account. S37A 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.”
[29] (2000) 77 SASR 273 at [49-52]
Section 32 of the Sentencing Act provides that a sentencing judge must also have regard to the time spent in custody when fixing a non-parole period. Section 32 relevantly provides:
“(1)Subject to this section, where a court, on convicting a person for an offence, sentences the person to imprisonment, the court must –
(a)   if the person is not subject to an existing non-parole period – fix a non– parole period; or
…
(7) In fixing or extending a non-parole period, the court –
(a)    must, if the person in respect of whom the non-parole period is to be fixed is in prison serving a sentence of imprisonment, take into account the period already served;
…
(10) For the purposes of this section –
(a)   a court that orders that a suspended sentence of imprisonment be carried into effect will be taken to have sentenced the person to whom the order relates to imprisonment; …”
Section 58 (4) of the Sentencing Act addresses the manner in which time in custody may be brought to account when revoking a suspended sentence:
“Where a court revokes the suspension of a sentence of imprisonment, the court—
…
(b)may direct that time spent by the probationer in custody pending determination of the proceedings for breach of condition be counted as part of the term of the suspended sentence;
(c)may direct that the suspended sentence be cumulative upon any other sentence, or sentences, of imprisonment then being served, or to be served, by the probationer.”
In Venning v Police[30] Perry J considered the application of section 58(4) and observed:
“The attention of the learned sentencing magistrate was expressly drawn to his ability to exercise [his powers under section 58(4)]. He did not give any reasons for declining to do so, but simply proceeded to impose the sentence to which I have referred.
He did, however, during the course of his sentencing remarks, indicate specifically that he had taken into account that the appellant had been in custody for ‘some months”, namely “since 29 March 2001’.
It is common ground on the appeal that if in fact the learned sentencing magistrate had exercised his power to backdate the sentence pursuant to s58(4)(b), this would advance the appellant's eligibility for release on home detention should he be deemed an eligible prisoner pursuant to s37A of the Correctional Services Act 1982. On the hearing of the appeal Ms O'Connor contended that the learned sentencing magistrate's failure, in effect, to maximise the appellant's opportunity to qualify for early release on home detention was appealable error.
The power which may be exercised under s58(4)(b) may be compared with the analogous power conferred on the court by s30(2) of the Criminal Law (Sentencing) Act
…
Returning to s58(4)(b) of the Criminal Law (Sentencing) Act, it seems to me by an analogous process of reasoning to that which appears in the authorities relating to the exercise of the discretion under s30(2) of the Act, that the preferable course in circumstances such as those which apply to this case, is for the sentencing court to direct that the time spent in custody be counted as part of the term of the suspended sentence. In the exercise of the various discretions which may be called into play in the process of sentencing, a court should normally adopt the option which maximises the prospects of the prisoner's rehabilitation, however poorly that prospect may appear from the material before the court.”
[30] [2001] SASC 406 at [19-27]
Although earlier in his remarks the judge said that he took into account that the appellant had been in custody since 9 August 2001 it appears that he did not bring that seven months to account when fixing the ultimate sentence. No reduction for the seven months is discernable from the judge’s reasons. The association of the word “normally” with the reference to 10 years suggests that no regard was had to time in custody when fixing the 10 year provisional head sentence. It would not be “normal” to fix a head sentence of 10 years seven months and six days.
The reduction from the provisional 10 years to eight years is commensurate solely with the discount for the guilty plea. If the judge brought the time the appellant spent in custody to account in reducing the provisional head sentence from 10 years to eight years then it follows that he only allowed a reduction of little more than 10% for the appellant’s guilty pleas. A reduction of this order would be manifestly inadequate given that the appellant pleaded guilty at the earliest opportunity.[31] The judge did not bring to account the seven months spent in custody by the appellant when determining the head sentence and in fixing the non-parole period. Error has been demonstrated.
[31] Counsel for the Crown’s submissions to the judge included:

The judge in the present case court could have ordered that the sentence of eight years be cumulative upon the revoked suspended sentence pursuant to section 31 of the Sentencing Act. The judge could then have brought to account the time in custody by applying section 58(4)(b) or by backdating the sentence and the non-parole period to 9 August 2001. Decisions of this court would suggest that this is the preferable course. In R v Dyke[32] King CJ observed:
“I think, however, that in making those sentences concurrent with the activated sentence for the earlier offence, the magistrate has clearly erred. As a general principle, sentences for subsequent offences which give rise to the activation of an earlier suspended sentence should be made cumulative upon the activated sentence.”
In R v Healey[33] the Court of Criminal Appeal observed:
“Usually it would be appropriate to make the sentences for the offences which activate the revocation of the previously suspended sentence cumulative upon the sentence of imprisonment for which the suspension has been revoked. There was no reason in this case to approach the matter otherwise.”
[32] Unreported S 6290 1 August 1997
[33] [1988] SASC 6867, CCA at [24]
An alternative approach for the judge was to act pursuant to section 58(4)(c) and direct that the revoked suspended sentence be cumulative upon the sentence of eight years to be served by the appellant. The judge could then have backdated the commencement of the cumulative term of eight years and nine months to 9 August 2001 the date on which the appellant was taken into custody.
Another alternative that could have been followed was to direct pursuant to section 58(4)(b) that the time spent by the appellant in custody pending determination of the proceedings for breach of condition be counted as part of the term of the revoked suspended sentence. The judge could then have ordered that the revoked suspended sentence be cumulative upon the sentence of eight years to be served by the appellant.
The appropriate course to have been followed in the present case was to bring to account the time spent in custody by backdating the sentence to be imposed. As the court observed in Dyke and Healey it is desirable that the suspended sentence should not be absorbed into the subsequent offending. The sentencing judge was taken to have sentenced the appellant to imprisonment when activating the suspended sentence[34]. Section 30 of the Sentencing Act permitted the sentence to be backdated. That course was not followed. The sentence should have been backdated.
[34] section 32(10)
Conclusion
The appeal should be allowed. The head sentence of eight years should commence on the expiration of the activated sentence. A non-parole period of six years should be fixed with respect to the total sentence of eight years and nine months. The sentence and the non-parole period should commence on 9 August 2001.
JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN JUDGMENT
1. (2002) 81 SASR 395.
2.    Ibid 429 para 100.
3. (1985) 37 SASR 566 at 569.
4.    Such a course is not open where the period in custody is either not referable to the offending in question, or has been interrupted by a period when the defendant was at large.
5.    “On 9^th day of August 2001, at Mansfield Park in the said State, [Phong Thanh Nguyen] being armed with an offensive weapon or instrument, namely a firearm and a knife, robbed VQ of money to the amount of $500.00 and a necklace to the value of about $2000.
Section 158(a) of the Criminal Law Consolidation Act, 1935
On 9^th day of August 2001, at Mansfield Park in the said State, [Phong Thanh Nguyen] being armed with an offensive weapon or instrument, namely a firearm and a knife, robbed LTH of a necklace of value.
Section 158(a) of the Criminal Law Consolidation Act, 1935
On the 9^th day of August 2001, at Mansfield Park in the said State, [Phong Thanh Nguyen] used a motor vehicle without first obtaining the consent of MJO the owner thereof.
Section 86a of the Criminal Law Consolidation Act, 1935 “
6.   Jewellery valued at around $2000 and $450 cash was recovered.
7.   This was said to be due to administration difficulties.
8. (2000) 202 CLR 321 1538 at [3-4]
9.   It was submitted however that the judge did not adequately take the pleas into account when fixing the non parole period.
10. (1989-1990) 169 CLR 525 at 531, 536
11. (1980) 7 A Crim R 146
12. (1980) 7 A Crim R, at p 155
13. (1988) 164 CLR 465 at p 477
14. (1974) 131 CLR 623
15. (1984) 58 ALJR 367; 54 ALR 765, at p 766
16. (1987) 32 A Crim R 315, at pp 325-326
17.   (1987) 32 A Crim R at pp 327-328
18. (1991-1992) 173 CLR 48 at 68-69
19. (2000) 76 SASR 151 at [42]
20. (1974) 131 CLR 623
21. (1984) 58 ALJR 367
22. (1990) 169 CLR 525
23. (1991) 173 CLR 48
24. The appellant’s criminal antecedents dated back to juvenile offending in 1994. They initially primarily consisted of motor vehicle offences and more recently drug offences involving possession. The appellant has no record for violent offences and had not previously been in custody. The judge described the offences as being “relatively minor matters”.
25.   The terms of the appellant’s suspended sentence bond included:
“undertake such course or courses as directed by your probation officer in relation to drugs or alcohol. In [addition] undertake such course or courses as directed in relation to literacy.”
26. (1988-1989) 50 SASR 551 at 563
27. (1989-1990) 53 SASR 480 at 481
28.   Unreported S 5549 2 April 1996
29. (2000) 77 SASR 273 at [49-52]
30. [2001] SASC 406 at [19-27]
31.   Counsel for the Crown’s submissions to the judge included:
“He is most certainly entitled to full credit and the credit issue here is quite important. He has pleaded at the very earliest opportunity and in fact surrendered money to the police when he was arrested. So the candour is quite significant.”
32.   Unreported S 6290 1 August 1997
33. [1988] SASC 6867, CCA at [24]
34. Section 32(10)

Section 158(a) of the Criminal Law Consolidation Act, 1935

On 9^th day of August 2001, at Mansfield Park in the said State, [Phong Thanh Nguyen] being armed with an offensive weapon or instrument, namely a firearm and a knife, robbed LTH of a necklace of value.
Section 158(a) of the Criminal Law Consolidation Act, 1935

On the 9^th day of August 2001, at Mansfield Park in the said State, [Phong Thanh Nguyen] used a motor vehicle without first obtaining the consent of MJO the owner thereof.
Section 86a of the Criminal Law Consolidation Act, 1935 “

“undertake such course or courses as directed by your probation officer in relation to drugs or alcohol. In [addition] undertake such course or courses as directed in relation to literacy.”

“He is most certainly entitled to full credit and the credit issue here is quite important. He has pleaded at the very earliest opportunity and in fact surrendered money to the police when he was arrested. So the candour is quite significant.”

[2002] SASC 341

24 October 2002