R v Tilley - [2010] SASCFC 73

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v TILLEY
[2010] SASCFC 73
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Anderson and The Honourable Justice Peek)
16 December 2010
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - COMMENCEMENT
Appeal against sentence – appellant convicted of aggravated threatening life and commenced serving sentence for that offence – appeal against conviction allowed and appellant released on bail pending re-trial – subsequently appellant pleaded guilty to lesser charge of threatening life – sentencing Judge imposed 19 months imprisonment with non-parole period of 14 months – appellant had spent in total 14 months 22 days in custody throughout proceedings but was on bail at time of sentencing for threatening life offence – sentence backdated by 14 months – period of 14 months backdated included time when appellant was not in custody – as a result of backdating appellant able to immediately apply for parole – whether backdating sentence inappropriate in the circumstances – whether sentence manifestly excessive – whether sentencing Judge erred in backdating the sentence by 14 months and not 14 months 22 days.
HELD: Appeal dismissed – s 30(2) of the Criminal Law (Sentencing) Act 1988 (SA) authorised the sentencing Judge to backdate the sentence despite the fact that the appellant was not in custody up to the date of sentencing – s 30(2) applies regardless of the fact that time spent in custody was in relation to a more serious offence – sentencing Judge was justified in deciding that a period of parole was appropriate and imposition of parole period could not be achieved without backdating the sentence – backdating the sentence to include time not in custody appropriate in the circumstances – sentence not manifestly excessive – sentencing Judge not bound to backdate the sentence to cover precise number of days spent in custody.
Criminal Law (Sentencing) Act 1988 (SA) s 30(1), s 30(2); Prison Act 1869 (SA) s 32; Prisons Act 1936 (SA) s 24(1); Correctional Services Act 1982 (SA) s 21, referred to.
R v P, NJ (No 4) (2008) 183 A Crim R 461; R v Garrett (1978) 18 SASR 308; R v Jamieson (1988) 50 SASR 130; R v Colson (1999) 73 SASR 407; PNJ v R (2008) 193 A Crim R 54; R v Newman (2004) 145 A Crim R 361, considered.

R v TILLEY
[2010] SASCFC 73
Court of Criminal Appeal: Duggan, Anderson and Peek JJ

DUGGAN J: The appellant was found guilty by a jury of the offence of aggravated threatening life. He was sentenced to imprisonment for three years with a non‑parole period of two years. The Court ordered that the head sentence and the non-parole period were to commence on 19 June 2008.
The appellant appealed against his conviction and, on 4 September 2009, the Court of Criminal Appeal allowed the appeal, set aside the conviction and ordered a new trial. The Court also granted the appellant bail and he was released from custody.
It is agreed that the appellant was in custody between 19 June 2008, the date of the jury verdict, and 4 September 2009.
On 12 July 2010, following negotiations between the prosecution and defence, the appellant pleaded guilty to the lesser offence of threatening life. On 20 October 2010 he was sentenced for this offence and taken into custody.
When sentencing the appellant for the offence of threatening life, the sentencing Judge stated that the appropriate starting point was a sentence of imprisonment for two years. He reduced this to a sentence of 19 months with a non‑parole period of 14 months on account of the appellant’s plea of guilty to the charge.
The sentencing Judge continued:
If I were to backdate that sentence and non-parole period to the time you went into custody, you would effectively serve no time on parole. In your particular circumstances that is not desirable. On the other hand, if I were to regard today as the starting point and then allow you credit for time in custody, the head sentence would be reduced to a point where I would be unable to fix a non-parole period.
In the end, it appears to me that the interests of justice would best be met by my undertaking the exceptional course of backdating the commencement of the head sentence and the non-parole period to a date which will ensure that you are immediately entitled to apply for parole, notwithstanding that for the greater part of that backdated period, you have not been in custody.
The effect of my sentence will be that you will have to go into custody now to await Parole Board determination. In that respect, I should say that in order to expedite the processing of that application, I have alerted the Board to the prospect of it and it is to be hoped it can be dealt with quickly.
The Judge then ordered that the head sentence and non-parole period commence on 20 August 2009.
Mr Mancini, for the appellant, did not argue that the sentencing Judge had no power to backdate the sentence in the manner in which he did. However, he submitted that backdating a sentence to include a period of time when a defendant was not in custody was an exceptional course and inappropriate in the present case.
The power to backdate a sentence of imprisonment is provided by s 30 of the Criminal Law (Sentencing) Act 1988 (SA) (“the Sentencing Act”) which relevantly states:
30—Commencement of sentences and non-parole periods
(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)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 history of this section and its predecessors was summarised in R v P, NJ (No 4).[1]A brief reference to that history is appropriate in order to address Mr Mancini’s argument.
[1] (2008) 183 A Crim R 461.
Originally, at common law, sentences commenced on the day on which they were passed. Eventually, the practice developed of directing that sentences commence on the first day of the assizes or quarter sessions at which the prisoner was sentenced.
This English practice was adopted in South Australia with the enactment of s 32 of the Prison Act 1869 (SA) which provided that sentences imposed at the Criminal Sittings of the Supreme Court were to commence on the first day of the sittings.
Subsequently, a more extensive provision was included in the Prisons Act 1936 (SA). Section 24(1) of that Act provided as follows:
All sentences of offenders, convicted at any criminal sittings of the Supreme Court or a circuit court shall date from the first day of holding the sittings unless the court orders that the sentence of imprisonment shall date from any other day, in which case the sentence shall date from that day.
In R v Garrett,[2] the Court of Criminal Appeal held that s 24 was wide enough to permit a court to direct that a sentence commence before the first day of the relevant sittings. Hogarth ACJ and White AJ said:[3]
We think that the only proper interpretation of this section is to let it speak for itself. Parliament has enacted that the Court may order that a sentence of imprisonment shall date from any other day, and has provided that when the Court does this, the sentence shall date from that day. We see no ambiguity in this provision, and no reason to construe it as denying a power to ante-date the sentence beyond the first day of the relevant Criminal Sittings.
In the English and Victorian cases to which we have referred, mention was made of extraordinary results which might follow from a sentence being ante-dated to a day so as to run during a period before an accused person was taken into custody. No doubt the section is in terms broad enough to give a court a discretion to make such an order. But, when giving such a discretion to a court, Parliament must surely have assumed that the court would exercise the discretion responsibly and not make illogical or unreasonable orders of the type envisaged in those cases. We do not find it necessary to go into this aspect at any great length.
(Emphasis in original)
[2] (1978) 18 SASR 308.
[3] (1978) 18 SASR 308 at 314-315.
Section 24 of the Prisons Act 1936 was superseded by s 21 of the Correctional Services Act 1982 (SA) which provided:
(1)A sentence of imprisonment imposed upon a person convicted of an offence by the Supreme Court or a District Court shall be deemed to have commenced on the first day of the criminal sittings in which he was so convicted, unless the Court imposing the sentence directs that the sentence shall be deemed to have commenced, or shall commence, on a day that is earlier or later than that day.
The Court of Criminal Appeal considered the effect of s 21 in R v Jamieson.[4] King CJ (Jacobs and Cox JJ concurring) referred to the interpretation of s 24 in R v Garrett. He said:[5]
In R v Garrett (1978) 18 SASR 308 it was held on the legislation as it then stood, and I think that there is no material distinction between that legislation and the present provision, that there was power to order the commencement of a sentence prior to the date of the commencement of the sittings at which the sentence was passed. Moreover Hogarth J and White J took the view that the legislation is broad enough to give a court a discretion to make an order ante-dating the sentence so as to cover a period during which the offender is not in custody.
It seems to me, however, that the circumstances in which it would be proper to make the latter order must be very rare. The purpose of the section, I think, is plainly to enable the Court to make an order directing the commencement of the sentence on a date which will result in incorporation into the sentence periods spent in custody prior to the actual passing of the sentence.
I can envisage cases in which it might be proper to use it to ante-date the sentence to include a period during which the offender has not been in custody. Such circumstances might exist where the offender has been in custody for some period of time, say, three months following his arrest, but has then been released on bail. It might be proper in such circumstances to ante-date the sentence for a period of three months, being a period equivalent to that which he had actually spent in custody. In R v Smith and Shoesmith (1983) 32 SASR 219, Mitchell J envisaged the use of the power to ante-date a sentence as a device to give effect to the principle of totality where the total effect of a number of sentences might otherwise be oppressive. But apart from circumstances such as those, I find it difficult to envisage any circumstances in which it could be proper to ante-date the sentence to include in the term of imprisonment, any period, at least prior to the commencement of the sittings at which the sentence is passed, during which the offender has not actually been in custody. To do so would be to create a fiction that the offender is actually serving a sentence of imprisonment when he is not in custody at all, and I do not think that that is the purpose for which the power has been conferred upon the Court.
Cox J added:[6]
I respectfully agree with the statement of principle that the power to back-date which is given by that section should not be used to cover, as a general rule, a period in respect of which the person being sentenced has not spent time in prison. However, I do not see that as making it improper for the sentencing judge, say, to allow the normal operation of subs (1) of s 21 to have effect so as to make a sentence date from the first day of the criminal sittings, and the non-parole period with it, notwithstanding the fact that the prisoner might have been on bail at that time, and, indeed, until the date of sentence.
[4] (1988) 50 SASR 130.
[5] (1988) 50 SASR 130 at 134.
[6] (1988) 50 SASR 130 at 135.
When R v Colson[7] was decided, the relevant provisions were in s 30 of the Sentencing Act. Section 30(1) was in its present form. Section 30(2) provided as follows:
(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.
[7] (1999) 73 SASR 407.
Doyle CJ (Prior and Mullighan JJ concurring) concluded that s 30(1) was intended to confer a general power to specify a date or time for the commencement of a sentence earlier or later than the time at which the sentence was imposed.[8] The Chief Justice agreed with King CJ’s comment in R v Jamieson that it would be appropriate only in very rare circumstances to backdate a sentence so as to include a period during which the offender has not actually been in custody. However, he considered that s 30(2)(b) identified a set of circumstances in which this course might be followed. Those circumstances were the same as those referred to by King CJ, namely, a situation where backdating which included a period when the defendant was not in custody was justified on account of an equivalent time spent in custody in relation to the same offence. In Doyle CJ’s view, s 30(2)(b) appears to be no more than a particular example of what may be done pursuant to s 30(1).[9]
[8] (1999) 73 SASR 407 at [24].
[9] (1999) 73 SASR 407 at [21].
Section 30(2) was subsequently amended to permit the Court to direct that the backdated sentence commence on the date the appellant was taken into custody in relation to the offence or on a date after that day but before the date of sentencing.
In my view, the observation by King CJ that the period of the backdating could include a period of time when the defendant was not serving a sentence but was nevertheless a period equivalent to that which the defendant had actually spent in custody in relation to the offence would seem to apply also under s 30(2)(b) in its application to the present case. The appellant spent time in custody in respect of offending for which he was later sentenced. Section 30(2)(b) authorises this period to be taken into account by backdating despite the fact that the appellant was not in custody up to the time of sentencing.The backdating of the sentence by the sentencing Judge involved a period when the appellant was not in custody, but it was directly referable to a period which the appellant had spent in custody in relation to the same offending.
More often than not the power to backdate under s 30(2) will be used where a person has been in continuous custody from the date of arrest or the occurrence of some other event such as when bail is revoked following a plea of guilty or a finding of guilt by the Court. However, the wording of s 30(2) is wide enough to include the situation as occurred here where a person is in custody for the offence, and subsequently released on bail before being sentenced.
In many cases due allowance can be made for the time spent in custody by applying s 30(2)(a) and making a reduction to the sentence. However, there are other occasions when it will be more appropriate to backdate the sentence;[10] much depends upon the circumstances of the particular case.
[10] See R v Newman (2004) 145 A Crim R 361.
In my view, s 30(2) applies despite the fact that the time spent in custody was in relation to a more serious offence. The focus is on the conduct and not the particular offence. If it were otherwise, the section could not be utilised in a case where the defendant had been in custody on a charge of murder but was found guilty of, or pleaded guilty to, manslaughter. As the High Court said of s 30(2) in PNJ v R:[11]
No narrow construction should be given to the words “time in custody in respect of an offence”.
…
If a person is charged with an offence, taken into custody, and later convicted of that offence, there is no doubt that s 30(2) would apply. But if, as is often the case, the charge that is laid at the time of an offender’s arrest is not the charge of which the offender is later convicted, it does not follow that the time served cannot be described as “time in custody in respect of an offence” of which the offender is later convicted. The question is whether the time in custody is “in respect of” (which is to say, is referable to) the offence in question. And where, as here, the applicant’s conduct was complete when he was taken into custody but the offence of murder was not complete until the victim died, the expression “time in custody in respect of an offence” may be given the application that has been described.
(Emphasis in original)
[11] (2008) 193 A Crim R 54 at [17]-[18].
Apart from the wide wording of sub-sections 30(1) and (2), there are practical reasons why the legislation should be interpreted to permit the course taken by the trial Judge in the present case. There is no reason why a short period on bail between time spent in custody and the passing of the sentence should be treated any differently from the situation where the sentencing takes place while the person is in custody up to the date of sentencing. It appears that King CJ was of this view in R v Jamieson when he gave the example of a defendant who had been released on bail prior to sentencing.
As to the choice between deducting the time spent in custody from the sentence and backdating the sentence, the latter provides a more accurate indication on the face of the sentence as to the nature of the penalty imposed. This is relevant for present and future purposes. In R v Newman,[12] Howie J (McColl J concurring) made this point when he said:[13]
In my view, although there is an element of fiction involved in backdating a sentence to a period when the offender was not in custody, there is much to be said in its favour. Firstly, it preserves the denunciatory and deterrent value of the sentence to be pronounced. If a sentence is decreased by a substantial period already served in custody, it can have the appearance of being inadequate both to public perception and when it appears in the statistical information that is now so often relied upon by sentencing courts. This was one of the reasons expressed in McHugh[[14]] for the adoption of the practice and it remains a highly important consideration.
In McDonald, [sic] [[15]] a case in which a judge deferred passing sentence in light of the fact that the offender had spent 17 months in pre-sentence custody, this Court stated:
The first submission made on behalf of the Crown is that, even if (which is not conceded) Abadee J were right to conclude that the time already spent in custody by the respondent was adequate in the circumstances, this was not a case in which the matter should have been dealt with by a deferred sentence upon the respondent entering into a recognizance. The Crown argues that, if Abadee J had been minded to produce the practical result that the respondent, subject to appropriate assessment by the relevant authorities, spent little or no further time in custody, he could have achieved that result by back-dating a sentence of imprisonment to commence on 3 November 1993, and providing for a minimum term to end at about the time of sentencing, together with an additional term. That a sentencing judge has power to back-date a sentence, even in circumstances where the offender has been at large during the intervening period, is not in doubt. That not infrequently happens in this court, and, when it does, the court makes it clear that it is aware, in imposing its sentence, that the prisoner has been at large during part of the period the subject of the sentence.
We agree with the Crown’s submission. There is a significant difference between serving a part of a sentence in the community, on parole, and being at liberty on a recognizance. In the former case, the offender is serving the sentence, although in the community. Breach of parole has certain immediate consequences. More important, the community sees that the offender is subjected to a sentence.
In that case, the Court backdated the sentence to the date upon which the respondent first went into custody, notwithstanding that he had been at liberty pending the determination of the Crown appeal; a period of over nine months.
This is not to say that a reduction in a sentence will rarely be appropriate. As stated previously, much will depend upon the circumstances of the particular case.
[12] (2004) 145 A Crim R 361.
[13] (2004) 145 A Crim R 361 at [27].
[14] R v McHugh (1985) 1 NSWLR 588.
[15] R vMacDonald (Unreported, Court of Criminal Appeal, NSW, No 60700 of 1995, Gleeson CJ, Kirby P and Hunt CJ at CL, 12 December 1995).

There is the further consideration in the present case which influenced the sentencing Judge. After having regard to the circumstances of the offence and the appellant’s background, he formed the view that a period on parole was appropriate. In my view, he was justified in reaching this conclusion. However, the appellant could not have been placed on parole if any of the sentencing options proposed by Mr Mancini had been adopted.
It is true that the sentence imposed by the sentencing Judge would require the appellant to return to custody pending the determination of an application for release on parole. However, the sentencing Judge expressed the hope in his sentencing remarks that this process could be dealt with quickly. The Parole Board has reported to this Court that there are means of expediting the consideration of any application which might be made.
While the backdating of a sentence will not usually include time which is not spent in custody, it is my view that circumstances such as the present provide an exception to the general rule. The sentencing Judge was permitted under s 30(2)(b) to backdate the sentence in the manner in which he did so as to allow a period of time equivalent to time spent in custody to be included within the period of the backdating. No injustice resulted from the adoption of this course.
In my view, this ground of appeal must fail.
It was further argued that the sentence was manifestly excessive in any event.
The incident with which the appellant was charged occurred following a minor vehicle accident between the appellant’s car and that of the victim. After the accident occurred, the appellant stepped out of his vehicle and walked back to the victim in an aggressive manner. He kicked the side of the victim’s vehicle, yelled at him and then held up a set of car keys and drew them across his (the appellant’s) throat in a slashing motion saying, “If you call or go to the cops I will fucking kill you”.
It would appear that, apart from anger, the appellant’s conduct was motivated by the fact that he was driving whilst disqualified. The sentencing Judge noted that the appellant put the victim in fear of his life and the effect on the victim was ongoing. The appellant has multiple convictions for a variety of offences. They include offences of violence. The sentencing Judge took into account the appellant’s plea of guilty to the lesser charge. The maximum penalty for the offence is imprisonment for ten years.
The sentencing Judge properly concluded that personal deterrence was an important element in sentencing of the appellant.
In my view, the sentence was not manifestly excessive.
The final matter raised on behalf of the appellant concerns the period served before the conviction was overturned. The appellant was in custody for 14 months and 17 days. The trial Judge was told that the period was 14 months and 22 days and he referred to this in his sentencing remarks. However, the sentence was backdated for 14 months to coincide with the non‑parole period of 14 months set by the sentencing Judge.
It was his Honour’s intention to ensure that the appellant would be eligible to apply for parole immediately upon being sentenced.
Although it is usual to allow for the full period of time served in such circumstances, the Judge is not bound to do so. In any event, bearing in mind that the entire non-parole period was deemed to have been served, it is difficult to conclude that any practical detriment was suffered by the appellant in the circumstances.
I would dismiss the appeal.
ANDERSON J: I would also dismiss the appeal. I agree with the reasons of Duggan J.
PEEK J: I agree with the order proposed by Duggan J and with his reasons.