R v SLAVIN-MOLLOY - [2021] SASC 134

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
R v SLAVIN-MOLLOY
[2021] SASC 134
Judgment of the Honourable Justice Stanley
25 November 2021
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
This is an appeal against sentence. On 9 June 2021, before the Elizabeth Magistrates Court, the appellant pleaded guilty to an offence of assaulting another person thereby causing harm. He was sentenced on 13 August 2021 to 16 months imprisonment reduced from 24 months on account of his guilty plea. The magistrate made this sentence cumulative to a sentence handed down on 10 May 2021 for other unrelated offences. This gave a total head sentence of 26 months imprisonment. The magistrate further set a non-parole period of 16 months imprisonment backdated to 10 May 2021.
On 15 March 2021, when he first appeared before the Elizabeth Magistrates Court on the subject offence, the appellant had been in custody since 13 June 2020 in relation to other unrelated offences which remain contested in separate proceedings. This is a period of 276 days or nine months and six days in custody on remand. He has remained in custody since.
The appellant claims that the sentencing magistrate erred in failing to reduce his sentence for time spent in custody before the sentence was imposed. It was necessary to have regard and treat differently, two separate periods of custody being between 13 June 2020 and 15 March 2021 and between 15 March 2021 and 10 May 2021.
Held, per Stanley J:
1. There was no error in the sentencing process;
2. The appeal should be dismissed.
Sentencing Act 2017 (SA) 39(2)(b), 44(2); Criminal Law Consolidation Act 1935 (SA) 20(4), referred to.
R v Bol [2017] SASCFC 148, distinguished.
Wittwer v Police [2004] SASC 226; House v R (1936) 55 CLR 499; Dinsdale v R (2000) 202 CLR 321; Naera v Police (1995) 184 LSJS 328; Taylor v Hayes (1990) 53 SASR 252; Ware v Betts (1987) 134 LSJS 212; Wessling v Police (2004) 88 SASR 47; R v Hughey [2008] SASC 263; R v Sprecher [2015] SASCFC 76; R v Arts and Briggs [1998] 2 VR 261, considered.

R v SLAVIN-MOLLOY
[2021] SASC 134
Single Judge (Magistrates) Appeal
STANLEY J:

This is an appeal against sentence. It gives rise to a simple issue. That issue is whether the sentencing magistrate (magistrate) erred in failing to reduce the appellant’s sentence for time spent in custody before sentence was imposed. That in turn depends on whether a connection existed between two discrete periods the appellant spent in custody and the offending for which he was sentenced on 13 August 2021. Those two periods are 13 June 2020 to 15 March 2021 and 15 March 2021 to 10 May 2021.
Factual background
The factual background is complex but important to the disposition of the appeal. On 20 April 2020 the appellant assaulted the victim Keith Paul Kiwi Drake and thereby caused him harm. The victim was unknown to him, and the appellant was not immediately identified. This is the offence which resulted in the sentence the subject of this appeal.
On 13 June 2020, and prior to being arrested for the subject offending, the appellant was arrested and remanded in custody for unrelated alleged offences of unlawful detention, aggravated causing harm with intent, aggravated assault, aggravated threatening to cause harm and false imprisonment. The appellant was refused bail in relation to these allegations, which remain contested.
As a result of the subject offending on 20 April 2020, South Australian Police filed an information and summons in the Elizabeth Registry of the Magistrates Court of South Australia on 22 February 2021 charging the appellant with one count of assault causing harm contrary to s 20(4) of the Criminal Law Consolidation Act 1935 (SA).
The maximum penalty for this offence is imprisonment for three years.
The appellant appeared for the first time on this file before the Elizabeth Magistrates Court on 15 March 2021.
On 10 May 2021 the appellant was sentenced to a period of 10 months imprisonment on a third file for unrelated offences of four counts of driving under disqualification or suspension, one count of possessing a prescription drug, one count of carrying an offensive weapon and two counts of possessing a prohibited weapon and unlawful possession.
On 9 June 2021 the appellant pleaded guilty to the subject offending. By virtue of his plea the appellant was entitled to a discount of up to 30 percent on his sentence.[1]
[1] Sentencing Act 2017 (SA) s 39(2)(b).
The appellant was ultimately sentenced on 13 August 2021.
The appellant was sentenced to imprisonment for 16 months. This was reduced from a starting point of 24 months on account of the appellant’s guilty plea.
The sentence was made cumulative on the sentence of imprisonment for 10 months that the appellant was already serving, having commenced on 10 May 2021.
This gave a total head sentence of 26 months imprisonment.
The magistrate set a non-parole period of 16 months imprisonment which was backdated to 10 May 2021.
The magistrate declined to give a further reduction for time spent in custody.
The appellant contends that the magistrate erred by not reducing the sentence of imprisonment for time spent in custody.
The imposition of a sentence is an exercise of judicial discretion. An appellate court will only interfere with that discretion if it can be demonstrated that the magistrate fell into error by acting upon an incorrect principle, taking into account irrelevant considerations, failing to have regard to relevant considerations, or the sentence is plainly unreasonable or unjust such that there was a failure to properly exercise the discretion.[2] An appeal from the Magistrates Court is not a hearing de novo and the appellate court cannot substitute its own view as to the appropriate penalty: an error must be demonstrated.[3]
[2] House v The King (1936) 55 CLR 499 at 505; Dinsdale v The Queen (2000) 202 CLR 321 at 324–325 [3]–[4]; Naera v Police (1995) 184 LSJS 328 at 329; Taylor v Hayes (1990) 53 SASR 252 at 291; Ware v Betts (1987) 134 LSJS 212 at 216; Wessling v Police (2004) 88 SASR 47 at 60.
[3] Wittwer v Police [2004] SASC 226 at [16] and [17].
The sole ground of appeal is that the magistrate erred in failing to reduce the sentence imposed as a result of time spent in custody.
For the purposes of this appeal there are two separate periods of time spent in custody which should be treated differently. These will be addressed in turn.
The first period in custody
The appellant was taken into custody on 13 June 2020 for the unrelated file[4] referred to above. At the time of being remanded in custody, the subject offending was not yet before the Magistrates Court.
[4] DCCRM-21-352.
The subject offending first came before the Magistrates Court on 15 March 2021. By this time the appellant had spent a period of 276 days, or nine months and six days, in custody on remand.
The second period in custody
The appellant was also in custody between 15 March 2021 and 10 May 2021. This is a period of 57 days, or one month and 27 days.
On 10 May 2021, the appellant was sentenced in relation to further unrelated offences. Given the appellant was effectively in custody during this period on multiple files, the period between 15 March 2021 and 10 May 2021 must be dealt with differently than the first period of custody described above.
Relevant legal principles
Section 44(2) of the Sentencing Act 2017 (SA) provides:
(2) 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.
The effect of s 44(2) is to prescribe the only circumstance in which time spent in custody prior to sentence can be taken into account. When utilising the discretion under s 44(2), a determination of whether a defendant has spent time in custody in respect of the offence for which sentence is to be passed is a question of fact.[5]
[5] R v Hughey [2007] SASC 452 at [6], Debelle and Vanstone JJ.
While there may be some unusual cases where the sentencing court will need to decide whether the necessary condition that enlivens s 44(2) has occurred, namely, whether a defendant has spent time in custody in relation to an offence for which the defendant is subsequently sentenced to imprisonment, this case is not such a case.
In R v Sprecher,[6] Kourakis CJ, with whom Gray and Stanley JJ agreed, said:
It is well accepted that a sentencing court may, and generally should, take into account periods of remand in custody related to the offending for which he or she is being sentenced. Moreover, the period spent on remand may be taken into account even if it is referrable to both the offence for which the defendant falls to be sentenced and other offending. However, there must be some connection between the period spent on remand and the offences and the sentence under consideration.[7]
[6] [2015] SASCFC 76.
[7] R v Sprecher [2015] SASCFC 76 at [30] per Kourakis CJ.
Further in R v Sprecher, Kourakis CJ referred, with approval, to R v Arts and Briggs[8] where Callaway JA said:[9]
There are, of course, many cases where a person cannot be given credit for pre-sentence detention. He or she may be on remand for several months and then acquitted. The time spent on remand cannot be regarded as a bank balance on which to draw in relation to offences unconnected with the reason for custody, but that is not the case here.
[8] [1998] 2 VR 261.
[9] [1998] 2 VR 261 at 264.
This approach was endorsed by the Court of Criminal Appeal in R v Hughey.[10]
[10] [2007] SASC 452 at [7], Debelle and Vanstone JJ.
The first period in custody: consideration
In this case the period of 276 days spent in custody prior to 15 March 2021 is referrable only to file DCCRM-21-352 and not the subject offending. While the subject offence had been committed, an information was not laid until 22 February 2021. The appellant did not have his first appearance in relation to that offending until 15 March 2021. The appellant submits there was a connection between the time on remand from 13 June 2020 to 15 March 2021. The basis of this “connection” is that when the appellant was taken into custody on 13 June 2020 he was interviewed by police in relation to the subject offending and reported. I do not accept this submission. There is no “connection” between the period spent on remand and the offence under consideration. The appellant was not in custody in connection with the subject offending. He was remanded in custody for the other offending. His application for bail in relation to this offending was refused. That he was “reported” for the subject offence could not have resulted in him being held in remand. It therefore follows that there was no legal basis for the magistrate to take this period of remand into account to reduce the period of imprisonment for the subject offence.
The appellant’s counsel referred the magistrate to R v Bol.[11] However, Bol is clearly distinguishable. In Bol, the Court found a “close connection between the time spent in custody and the subject offences” because during the relevant period the defendant was “for all practical purposes in custody on both the subject offences and other charges”.[12]
[11] [2017] SASCFC 148.
[12] [2017] SASCFC 148 at [9] per Kourakis CJ.
In the present matter, between 13 June 2020 and 15 March 2021 the appellant was only in custody in relation to other charges and not the subject offence.
Notwithstanding this, the magistrate did not fail to consider this period of time in custody entirely in imposing sentence. The magistrate did turn his mind to the fact that the appellant had spent this time in custody. It is clear from the discussion between the appellant’s counsel and the magistrate at the conclusion of the sentencing remarks that the magistrate considered the extent of any connection between the time in custody and the subject offending, satisfied himself that there was no such connection, and concluded that a basis to enliven the discretion in s 44(2) was not established.
The second period in custody: consideration
The appellant further spent time in custody between 15 March 2021 and 10 May 2021, when he commenced serving his sentence. This is a further period of 57 days, or one month and 27 days.
This period of 57 days falls into a different category to the 276 days spent in custody prior to 15 March 2021 and should necessarily be dealt with differently.
At the time of the appellant’s first hearing on 15 March 2021 for the subject offending, no application for bail was made on the subject file. If any such application had been made it would most likely have been refused given the appellant’s custody status in relation to his other files.
In this respect, it is conceded by the respondent that it is arguable that there was a close connection between the time spent in custody between 15 March 2021 and 10 May 2021 and the subject offending.[13] The appellant was effectively in custody on both files, as well as the third file for which he was sentenced on 10 May 2021.
[13] R v Bol [2017] SASCFC 148.
However this period of time between 15 March 2021 and 10 May 2021 has already been taken into account and deducted from the sentence imposed by the magistrate who sentenced the appellant on 10 May 2021.[14]
[14] See paragraph 5.6 of the affidavit of Alexander William Rice dated 1 October 2021.
Conclusion
In the circumstances there has been no error in the sentencing process and the appeal should be dismissed.