R v Summers

[2017] SADC 61

DISTRICT COURT OF SOUTH AUSTRALIA

(Criminal)

R v SUMMERS

[2017] SADC 61

Reasons of His Honour Judge Tilmouth

15 June 2017

CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - IRREGULARITIES

Consideration of the scope to rectify sentences permitted by s 9A of the Criminal Law (Sentencing) Act.

Criminal Law (Sentencing) Act 1988 (SA) s 9A(1), s 30(2); Police v Elmes [2016] SASC 188; Mill v The Queen (1988) 166 CLR 59; Question of Law Reserved on Sentenc (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 Humble [2009] SASC 378; R v Cattell [2010] SASCFC 18, referred to.

R v SUMMERS
[2017] SADC 61

Application to rectify sentence

1. This is an application before the court by the Director of Public Prosecutions for the rectification of a prison sentence imposed on Mr Summers on 10 March 2017.  For the following reasons the application is granted.

   Underlying facts

2. Mr Summers was sentenced to one single sentence of four years and 10 months imprisonment with a non-parole period of 3 years, to commence from 30 December 2015 ‘when he was arrested and taken into custody’.  The single sentence was with respect to offences of serious criminal trespass in a non-residential building and robbery of the premises.  The Director promptly wrote to the court following sentence, pointing out that on 30 December 2015 Mr Summers was also arrested on four unrelated offences of theft.  For these he was sentenced in the Mount Gambier Magistrates Court on 26 July 2016, to 10 months imprisonment, backdated to 30 December 2015.

3. The Director argued during the submissions in mitigation that the appropriate date upon which to backdate the current sentence, was therefore 30 October 2016.  That is exactly 10 months following the date of arrest and when the Magistrates Court sentence expired.[1]  Far from dissenting from that position, Mr Vadasz counsel for Mr Summers submitted at first that the sentence ‘can still backdate to the time of his arrest and the sentence will become cumulative with the non-parole period’[2] and later that it ‘can start from the time he was taken into custody but cumulative upon the 10 months’.[3]  That option was simply not open, since at the time those submissions were made, the 10 month sentence had expired.  It follows Mr Summers was then in custody solely in respect of the trespass and robbery offences.  Regrettably between the submissions of December 2016 and the sentence of early March 2017, I overlooked the question of the 10 months spent in custody attributable to the Magistrates Court sentence.

   [1]    T9.1-.15 8 December 2016.

   [2]    T4.16-.18, 5 December 2016.

   [3]    T13.35-.38 8 December 2017.

4. The Director’s application was called on for mention on 11 May 2017 and again for submissions on 1 June 2017, when Mr Vadasz submitted a different proposition for the first time, namely that ‘there should be some reflection for totality’.[4]  Further consideration was adjourned to 8 June to allow him to make further submissions in support of this contention.  On this occasion he cited Mills v The Queen,[5] to the effect that the sentence imposed on Mr Summers should reflect what sentence was likely to be imposed on him had he been sentenced for all offences at the same time.  However this principle relates to sentences imposed ‘many years after ….[6]  That is not the position here by any means.

   [4]    T2.25-.26 1 June 2017.

   [5] (1988) 166 CLR 59, 65-66.

   [6] Ibid 66.

5. 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,[7] quite apart from the fact that it was fully served.

   [7]    T14.1-.2 8 December 2016, T3.21-.45 1 January 2017.

   The scope of the statutory power of rectification

6. 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,[8] so there is no need to repeat them.

   [8] [2016] SASC 188, [32], [46], [53], [55].

7. 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.[9]  That is not the situation here.  The totality principle as 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.

   [9] (1988) 166 CLR 59, 62-63.

8. The statutory power of rectification is conferred by s 9A(1) of the Criminal Law (Sentencing) Act:

   9A—Rectification of sentencing errors

   (1)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.

9. 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),[10] R v Rajkovic.[11]  The circumstances in which the section may be properly utilised, include:

   ·correcting errors due to misapprehensions as to the length of an unexpired term of a non-parole period: R v Fraser,[12] Sullivan v Police;[13]

   ·correcting calculation errors in the appropriate discount for early pleas of guilty: R v Kuci;[14]

   ·to take proper account of time spent in custody referrable to the sentence offence(s): R v Hussey,[15] R v Sansone,[16] R v Baldetti,[17] R v Hudson;[18]

   ·to correct errors in the Report of Prisoners Tried: R v Humble,[19] R v Cattell;[20]

   ·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).[21]

   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.

   [10] (1996) 67 SASR 90, 93.

   [11] (2015) 123 SASR 51, [11], [34].

   [12] [2007] SASC 257, [13]-[17].

   [13] [2010] SASC 216, [13], [16].

   [14] [2016] SASCFC 136, [6].

   [15] [2013] SASCFC 41, [8].

   [16] [2015] SASCFC 168, [8]-[9].

   [17] [2008] SASC 232, [10]-[11].

   [18] (2016) 125 SASR 171, [24]-[25].

   [19] [2009] SASC 378, [33]-[34], [45].

   [20] [2010] SASCFC 18, [5], [21]-[26].

   [21] (1996) 67 SASR 90, 93-94.

   Conclusion

10. 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.

11. 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.

12. 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.[22]

    [22]   MCMTG-15--1855, [5].