R v Summers
[2017] SASCFC 141
•27 October 2017
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v SUMMERS
[2017] SASCFC 141
Judgment of The Court of Criminal Appeal
(The Honourable Justice Peek, The Honourable Justice Nicholson and The Honourable Justice Bampton)
27 October 2017
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 PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES - CUMULATIVE SENTENCES
Application for permission to appeal against a decision by a District Court Judge to rectify the commencement date of a prison sentence pursuant to s 9A of the Criminal Law (Sentencing) Act 1988 (the Act).
On 30 December 2015, the applicant was arrested for the two subject offences and also for four separate theft offences. He was first sentenced by a Magistrate to ten months imprisonment for the four theft offences, backdated to the date of arrest. When the District Court Judge later sentenced for the subject offences, he forgot to implement the timetable that he had previously decided upon, namely to backdate to the expiration of the ten month sentence; instead he erroneously backdated to 30 December 2015, the date of arrest. Subsequently the Judge ordered that the sentence be rectified pursuant to s 9A of the Act so as to commence upon the expiration of the ten month sentence.
Held per Peek J (Nicholson and Bampton JJ agreeing) refusing permission to appeal:
(1) The sentence is not manifestly excessive. The Judge had appropriate regard to the seriousness of the offending and the applicant’s personal circumstances, including his previous record of continued imprisonment coupled with continued serious offending on release.
(2) Having regard to the clear separation between the theft offences and the subject offences, it was open to the Judge to order that the subject sentence was to commence upon the expiration of the ten month period of imprisonment imposed by the Magistrate.
(3) The use of s 9A of the Act in order to rectify the commencement date of the sentence was a course which was both available to the Judge and appropriate in the circumstances.
Criminal Law (Sentencing) Act 1988 ss 9A, 18A, 30; Criminal Law Consolidation Act 1935 ss 137, 169, referred to.
Police v Elmes [2016] SASC 188; Mill v The Queen (1988) 166 CLR 59; Question of Law Reserved on Sentence (No 1) (1996) 67 SASR 90; R v Rajkovic (2015) 123 SASR 51; R v Fraser [2007] SASC 257; Sullivan v Police [2010] SASC 216; R v Kuci [2016] SASCFC 136; R v Hussey [2013] SASCFC 41; R v Sansone [2015] SASCFC 168; R v Baldetti [2008] SASC 232; R v Hudson (2016) 125 SASR 171; R v Huble [2009] SASC 378; R v Cattell [2010] SASCFC 18, considered.
R v SUMMERS
[2017] SASCFC 141Court of Criminal Appeal: Peek, Nicholson and Bampton JJ
PEEK J. This is an application for permission to appeal against a decision by a District Court Judge to rectify the commencement date of a prison sentence pursuant to s 9A of the Criminal Law (Sentencing) Act 1988 (the Act); at the time of imposing the original sentence, the Judge had forgotten to implement the timetable for its commencement that he had previously decided to implement on sentencing. I consider that the Judge validly exercised the power under s 9A and permission to appeal should be refused. My reasons follow.
A basic chronology of events
A basic chronology of events is as follows.
On 13 September 2015 the applicant committed four offences of theft (the four theft offences) which were unrelated to the subject offences.
On 27 November 2015 the applicant committed the two subject offences which were charged on an Information as follows:
Adam Troy Summers is charged with the following offences:
First Offence
Statement of Offence
Serious Criminal Trespass in a Non-Residential Building. (Section 169(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Adam Troy Summers on the 27th day of November 2015 at Mount Gambier, entered or remained in the West End Deli as a trespasser, with the intention of committing an offence therein, namely theft.
Second Offence
Statement of Offence
Robbery. (Section 137(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Adam Troy Summers on the 27th day of November 2015 at Mount Gambier, used or threatened to use force against Raelene Smith in order to commit the theft of a handbag and its contents, $500 cash, a bank book, cigarettes and clothing, and the force was used, or the threat was made, at the time of, or immediately before, the theft.
On 30 December 2015, the applicant was arrested for both the four theft offences and the two subject offences and taken into custody.
On 26 July 2016 the applicant was sentenced by Magistrate Fahey in the Mount Gambier Magistrates Court to ten months imprisonment for the four theft offences, backdated to the date of his arrest on 30 December 2015. Since the period of imprisonment was less than 12 months, no non-parole period was set. Counsel then appearing for the applicant gave the Magistrate an undertaking that the District Court would be informed that the sentence had been backdated to 30 December 2015 such that the applicant had had full credit for the time spent in custody since his arrest on 30 December 2015.
On 26 October 2016 the applicant was arraigned before District Court Judge Tilmouth and pleaded guilty to both subject charges. The matter was adjourned to 5 December 2016.
On 30 October 2016 the applicant completed serving the sentence of ten months imposed by Magistrate Fahey for the four theft offences but remained in custody on the subject offences.
On 5 December 2016, during the course of sentencing submissions, the Judge was informed by prosecution counsel that the applicant had been serving the sentence imposed by Magistrate Fahey, backdated to the date of his arrest on 30 December 2015. The Judge was provided with Magistrate Fahey’s sentencing remarks. The matter was adjourned to 8 December 2016.
On 8 December 2016, during the course of further submissions, prosecution counsel informed the Judge of the applicant’s numerous relevant antecedents up to and including the four theft offences for which Magistrate Fahey had sentenced the applicant to ten months imprisonment. The prosecutor again mentioned that the Magistrate had backdated that sentence to the date of the applicant’s arrest on 30 December 2015, that he had finished serving that sentence on 30 October 2016, and that the sentence for the subject offences could be backdated to that expiration date.
Unfortunately, the matter was further adjourned twice and sentencing did not come on until three months later, 10 March 2017. On that date, the Judge, pursuant to s 18A of the Act, sentenced the applicant to one period of four years and ten months imprisonment (having reduced the starting point of six years by nearly 20 per cent for the guilty pleas) and fixed a non-parole period of three years, both to commence from 30 December 2015 ‘when he was arrested and taken into custody’.
It transpired that the Judge, at the time of imposing sentence, had forgotten that he had previously decided to backdate the sentence that he imposed to 30 October 2016, being the expiration of the ten months sentence for the four theft offences imposed by Magistrate Fahey, and to thus act on the information previously conveyed to him by prosecuting counsel during the course of submissions.
On 17 March 2017, the Director of Public Prosecutions wrote to the Court concerning the above facts and suggested that the error of not backdating to the expiration of that ten month sentence could be corrected by the application of s 9A of the Act which provides as follows:
9A—Rectification of sentencing errors
A court that imposes, or purports to impose, a sentence on a defendant, or a court of co‑ordinate jurisdiction, may, on its own initiative or on application by the Director of Public Prosecutions or the defendant, make such orders as the court is satisfied are required to rectify an error of a technical nature made by the sentencing court in imposing, or purporting to impose, the sentence, or to supply a deficiency or remove an ambiguity in the sentencing order.
On 11 May 2017, the matter was called on before the Judge who indicated that he had indeed made the error suggested by the Director of Public Prosecutions in the letter of 17 March 2017. Mr Vadasz requested further time to consider the position and the matter was adjourned to 1 June 2017.
On 1 June 2017, Mr Vadasz made submissions opposing the course of rectification pursuant to s 9A of the Sentencing Act. The Judge again stated that he had intended to backdate the sentence to the expiration of the ten month sentence for the unrelated four theft offences and had made a slip in forgetting to do so. The matter was further adjourned to 8 June 2017.
On 8 June 2017, further submissions were made by Mr Vadasz who continued to oppose rectification. The prosecutor maintained the original prosecution position that the sentence be rectified by ordering that it commence on 30 October 2016, being the expiration of the ten month sentence. The Judge proceeded to so order, pursuant to s 9A of the Act. The Judge later furnished settled reasons dated 15 June 2017 and therein stated:[1]
[1] R v Summers [2017] SADC 61.
The intention at the time of sentence was to give Mr Summers full credit for time spent in custody referable to the trespass and robbery offences. I was not minded to accept the suggestion of defence counsel to back-date to the date of arrest, as that distorted the actual length of sentence imposed by appearing to be 10 months longer than it actually was, as I considered that would ‘distort’ the sentence,[2] quite apart from the fact that it was fully served.
[2] T14.1-2 8 December 2016, T3.21-45 1 January 2017.
The scope of the statutory power of rectification
There can be no doubt that the court has the power conferred by s 30(2) of the Criminal Law (Sentencing) Act 1988 (SA) to take into account ‘time in custody in respect of an offence for which the defendant is subsequently sentenced’. The authorities were extensively reviewed recently by Peek J in Police v Elmes,[3] so there is no need to repeat them.
[3] [2016] SASC 188, [32], [46], [53], [55].
The effect of the totality principle is to require a sentencing court passing a number of sentences, to review the aggregate sentence and consider whether it is ‘just and appropriate’: Mill v The Queen.[4] That is not the situation here. The totality principle has nothing to do with this matter. To readjust the sentence on account of totality, even if the principle was applicable, is to impermissibly readjust a sentence and to go beyond mere rectification in order to reflect the original intention of the sentencing judge.
[4] (1988) 166 CLR 59, 62-63.
…
This provision does not permit a sentencing court to review a sentence, or to impose a sentence which is in substance, new or different: Question of Law Reserved on Sentence (No 1),[5] R v Rajkovic.[6] The circumstances in which the section may be properly utilised, include:
[5] (1996) 67 SASR 90, 93.
[6] (2015) 123 SASR 51, [11], [34].
-correcting errors due to misapprehensions as to the length of an unexpired term of a non-parole period: R v Fraser,[7] Sullivan v Police;[8]
[7] [2007] SASC 257, [13]-[17].
[8] [2010] SASC 216, [13], [16].
-correcting calculation errors in the appropriate discount for early pleas of guilty: R v Kuci;[9]
-to take proper account of time spent in custody referrable to the sentence offence(s): R v Hussey,[10] R v Sansone,[11] R v Baldetti,[12] R v Hudson;[13]
-to correct errors in the Report of Prisoners Tried: R v Humble,[14] R v Cattell;[15]
-to supply a deficiency in a sentence imposed on an understanding that a previous sentence would expire on a specified date, that turned out not to be the case: Question of Law Reserved on Sentence (No 1 of 1996).[16]
It might be anticipated that arithmetic errors made in the process of imposing a number of cumulative sentences, or when some sentences are partially concurrent with others, would equally fall within the purview of s 9A.
Conclusion
It is apparent that the power to rectify a sentence pursuant to s 9A of the Criminal Law (Sentencing) Act is available when there is a mistake as to the correct period of time spent in custody properly attributable to the offence(s) for which a defendant is sentenced. That is precisely the situation here. This is so whether the court takes too little or too much such time into account.
The sentence imposed on Mr Summers on 10 March 2017 is therefore rectified by ordering that it be backdated to 30 October 2016, in lieu of 30 December 2015.
It is in one sense understandable that Mr Summers should feel disappointed that he is now to serve 10 months longer. Then again, he could not have legitimately expected anything less, given that it is perfectly clear this period of time relates wholly to completely separate offences, and to an unrelated sentence. Indeed at the conclusion of his sentencing remarks the Magistrate in sentencing him on 27 July 2016 extracted an undertaking from Mr Summers’ solicitor that ‘when he next appears before the District Court, you will advise the Judge any credit he was entitled for time spent in custody has been taken into account in my sentence today’: Police v Summers.[17]
[9] [2016] SASCFC 136, [6].
[10] [2013] SASCFC 41, [8].
[11] [2015] SASCFC 168, [8]-[9].
[12] [2008] SASC 232, [10]-[11].
[13] (2016) 125 SASR 171, [24]-[25].
[14] [2009] SASC 378, [33]-[34], [45].
[15] [2010] SASCFC 18, [5], [21]-[26].
[16] (1996) 67 SASR 90, 93-94.
[17] MCMTG-15-1855, [5].
The application for permission to appeal to the single Judge
The applicant applied to the single Judge for permission to appeal on the following proposed grounds of appeal:
1. The sentence is, in all the circumstances, manifestly excessive.
2. The Learned Sentencing Judge erred in altering the sentence of the applicant at the request of the Director of Public Prosecutions, in circumstances where;
a. There was a dispute between the parties in the original sentencing submissions as to the appropriate starting date of the sentence.
b. The parties did not agree that the applicant’s sentence should be altered in the manner sought by the prosecutor.
c. The manner in which the Learned Sentencing Judge re-sentenced the applicant resulted in the applicant being required to serve a longer time in custody before the expiration of his non parole period than would have been the case had the applicant been sentenced in the manner originally submitted.
3. The Learned Sentencing Judge erred in not dating his sentence from the date upon which the applicant was taken into custody but cumulative upon the sentence imposed by a Magistrate during his period on remand.
The single Judge refused permission to appeal on all proposed grounds. In doing so, the Judge correctly observed that it was clear that:
… the sentencing Judge intended to treat the ten months as unrelated or not referable to the subject offending but had overlooked this when considering the issue of dates at the time of delivering sentence. In my view it was entirely appropriate to rectify this error under s 9A and to adjust the sentence in the manner the sentencing Judge did.
The applicant’s solicitor then filed the standard form requesting that the application for permission to appeal be referred to and determined by the Full Court.[18]
[18] See generally R v Simmons [2017] SASCFC 49, [36]-[38].
The hearing before this Court
On 19 October 2017, this Court heard at the same time the submissions concerning permission to appeal and the substantive submissions that were to be relied upon should the necessary preliminary applications be granted.
Proposed ground 1 of appeal – manifestly excessive
The facts of the subject charges were accurately summarised in the respondent’s outline of argument thus:
The victim in this matter Raelene SMITH owns the West End Deli on Commercial Street West in MOUNT GAMBIER and has done so for about the past nine years. She was 59 years old at the time of this offending.
At approximately 5.15 am on 27 November 2015 the victim arrived at the deli. She entered through the rear door, walked through the storage area and through to the front of the shop, turning the lights on as she went. When she turned around she saw the applicant running towards her from the kitchen area of the shop. The applicant was wearing a balaclava, gloves and black clothing with a yellow high visibility vest underneath his jacket.
The applicant ran up to the victim and punched her in the face with his right fist, 15 or 16 times. He then tied a tea towel around her neck. The victim’s glasses fell from her face and her false teeth fell out into her mouth and she began choking on them. The victim struggled with the applicant and fell to the ground. He pulled the tea towel tighter around her neck, choking her. The applicant then kicked her 5-6 times to the left side of her body.
The victim yelled at him to take the money and leave. She reached up with her left hand to try and poke his eyes and the applicant bit her left thumb. She pulled her thumb out of his mouth and at the same time managed to pull the balaclava off, however as her glasses had fallen off she couldn’t see his face clearly.
When the balaclava was pulled off the applicant got up and appeared to be looking around the counter area. He took the victim’s handbag and another bag that was sitting on a shelf under the counter. The handbag contained her wallet, mobile phone, medication, diaries and $1,300 cash. The other bag contained a bank deposit book, the deli’s $500 cash float, a new pair of work shoes with new orthotic inserts and a waterproof coat. The applicant then grabbed a few packets of cigarettes before running out of the shop. The victim got up and followed him but she could not see where he went, she then rang the police.
The victim was taken to hospital, she received:
·bruising to her head, neck, and left side of her body;
·her face was swollen;
·her right eye was bleeding;
·she had a bite on her left hand;
·she had a broken nose.
The applicant has a very bad record for offences of dishonesty over five pages of the antecedent report. It is accurately summarised in the respondent’s outline of argument thus:
The applicant was born 20/03/1978 and was therefore 37 years old at the time of the offending.
The applicant has an appalling history for trespass and property related offending. This history commenced as a juvenile in 1993 with two counts of larceny.
In 1994 his offending escalated and he was convicted for armed robbery, amongst other similar charges. He has offended consistently since that point.’
The applicant received his first custodial sentence of four months imprisonment as a juvenile for driving a motor vehicle without consent and larceny in 1994. He has been in and out of prison since that time. The longest sentence he has received was 5 years and 1 months imprisonment with a NPP of 15 months. This was for trespass and larceny offences in 2002.
He has been dealt with for 60 counts of larceny and theft as it then became. There are also a number of attempts.
He has been convicted for 19 counts of breaking and entering in its various forms.
There are another 7 counts of being unlawfully on premises.
In terms of violent offending:
-The armed robbery as a juvenile in 1994;
-In 2000 he was sentenced to a term of imprisonment for two assaults;
-In 2006 he was sentenced to imprisonment for an aggravated assault (the aggravating feature being the use of an offensive weapon).
In 2014 the applicant was sentenced to a term of imprisonment for numerous counts of theft, being unlawfully on premises, possessing an article to commit an offence and a breach of bail.
In July 2016 he was sentenced to 10 months imprisonment for four counts of theft.
There were few mitigating factors here. The motive for the commission of the offences was said to be an entrenched drug problem and that he was affected by methylamphetamine at the time of the offending. In a medical report dated 19 October 2015, Dr Begg diagnosed the applicant as suffering from a mixed personality disorder with both borderline and antisocial features; and as suffering from substance use disorder. In an older medical report dated 11 December 2012, Mr Balfour had opined that the applicant might be suffering from an intellectual disability of borderline severity but that such a diagnosis would need to be confirmed by other formal testing.
In my view, the sentence imposed was moderate in the circumstances. The wearing of the balaclava and gloves was redolent of premeditation and awareness of wrongdoing; and the degree of violence meted out to the 59 year old female shopkeeper was outrageous. The applicant’s previous record of continual imprisonment coupled with continued serious offending on release demonstrates that personal deterrence is here called for.
Further, it was well within the ambit of the discretion of the Judge to treat the four theft charges for which the applicant had been sentenced to ten months imprisonment as quite independent of the subject offences; having decided upon a single s 18A sentence for the two subject offences (with a degree of concurrency as between them), it was unexceptionable in the circumstances here to make that sentence (and non-parole period) commence upon the expiration of the ten month period of imprisonment imposed by the Magistrate,[19] and nor did this result in a manifestly excessive sentence.
[19] Given the fact that the ten month sentence was completed by 30 October 2016, well prior to the date of sentencing, there may be questions as to whether a different course could have been taken, even if the Judge had so wished; however, it is quite unnecessary to explore such matters further.
The single Judge summarily refused permission to appeal on this proposed ground and was right to do so; the reference to this Court of this proposed ground never had any prospect of success. I would refuse permission to appeal on proposed ground 1 of appeal.
Proposed grounds 2 and 3 of appeal
Counsel for the applicant made various submissions and suggestions as to how a head sentence and non-parole period might have been structured so that the effective non-parole period would have been shorter than it now is under the rectified sentence. These submissions are not altogether easy to understand, but there is an obvious answer to them, whatever may be their precise import.
The Judge has informed the applicant (and now this Court), in remarks during submissions, and then through his settled remarks dated 15 June 2015 that, as a result of having been informed that the applicant had completed his ten month sentence on 30 October 2016, his Honour had originally intended to backdate the present sentence to 30 October 2016. However, when his Honour came to impose sentence on 10 March 2017, after two adjournments of the proceedings, he simply forgot the course that he had previously decided upon as to commencement of sentence.[20]
[20] The transcript surrounding the various adjournments discloses that these adjournments were largely brought about by the continuous pressure of accommodating a large number of matters in the Judge’s list in circumstances of insufficient availability of courtrooms and AVL facilities.
Ultimately, two questions arise on the application to this Court. First, would it have been within the Judge’s discretion at the time of sentencing to adopt the structure of the present rectified head sentence and non-parole period and backdate them both to 30 October 2016 (as he originally intended)? The answer to this question is clearly in the affirmative. As noted above, the four theft charges for which the applicant had been sentenced to ten months imprisonment were quite independent of the subject offences and, in the circumstances here, it was unexceptionable to make the present sentence cumulative upon the ten months period of imprisonment imposed by the Magistrate. Whether other types of disposition were possible is none to the point; the disposition initially intended by the Judge was available to him.
The second question is whether the Judge was able to use the mechanism of s 9A of the Act in the present circumstances. Again, in my view, the answer is in the affirmative. Once it is accepted that the Judge, prior to delivering sentence on 10 March 2017, had had a settled intention to impose a sentence of four years and ten months imprisonment with a non-parole period of three years, and to backdate those periods to 30 October 2016, but slipped in forgetting to do so when imposing sentence, it is clear that the use of s 9A was available and appropriate in the circumstances.[21]
[21] The Judge has set out in his settled reasons a number of previous decisions concerning s 9A of the Sentencing Act (reproduced above at paragraph [16]) and I generally agree with those remarks. However, I would emphasise that the Judge’s five bullet dash categories all involve, and are limited to, the correction of patent errors as distinct from later reconsideration or second thoughts. The third of those bullet dash categories presently appears: “to take proper account of time spent in custody referrable to the sentence offence(s)”. I consider that it would be better expressed thus: “to correct errors made in calculating or determining: periods of custody, or dates of commencement or conclusion of sentences or non-parole periods, in the context of taking proper account of time spent in custody referrable to the subject offending”.
I would refuse permission to appeal on proposed grounds 2 and 3 of appeal.
Conclusion and disposition
I propose that the application for permission to appeal be dismissed.
NICHOLSON J. I agree that the application should be dismissed for the reasons given by Peek J.
BAMPTON J: I agree with the reasons of Peek J and the dismissal of the application.
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