R v Wilson

[2018] SASCFC 13

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v WILSON

[2018] SASCFC 13

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Parker and The Honourable Justice Hinton)

22 February 2018

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - SENTENCE: WHAT CONSTITUTES

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - PARTICULAR CASES

Appeal against sentence.

On 16 November 2016 the appellant was sentenced to three years, one month and two weeks imprisonment for a number of offences committed in 2014 and 2016. The Judge fixed a non-parole period of two years. He ordered that the sentence be suspended under s 33BB of the Criminal Law (Sentencing) Act 1988 and served on home detention on conditions including that the appellant not consume any drug not medically prescribed.

The appellant subsequently breached the conditions of the home detention order by taking methylamphetamine.

On 23 March 2017, the same sentencing Judge revoked the home detention order made on 16 November 2016 and ordered that the sentence of three years, one month and two weeks take effect.

On appeal, the appellant argued that the sentencing Judge did not afford the appellant credit for the time she spent in custody prior to being sentenced. The respondent conceded that the sentencing remarks do not indicate that any credit was afforded the appellant for time she had served in custody between 6 January 2016 and 16 November 2016. The respondent also conceded that no reason arose not to afford the appellant such credit. Because the order of 23 March 2017 carried into effect the sentence imposed on 16 November 2016, the order of 23 March 2017 was likewise infected by the error.

Held by the Court:

With respect to the sentence imposed on 16 November 2016:

1.      Appeal allowed.

2.      The sentence imposed on 16 November 2016 is varied by substituting for the period of imprisonment imposed and the non-parole period fixed a head sentence of two years and three months with a non-parole period of 16 months.

As to the order made on 23 March 2017:

1       Appeal allowed.

2       The order revoking the home detention order is varied for the purposes of ordering that the sentence of imprisonment to be carried into effect is a sentence of imprisonment for two years and three months with a non-parole period of 16 months and directing that the period of compliant home detention from 16 November 2016 to 11 January 2017 and the period from 31 January 2017 to 23 March 2017 are to be counted as part of the term of the sentence.

Criminal Law (Sentencing) Act 1988 (SA), referred to.
Frank v Police [2000] SASC 245; (2000) 77 SASR 273; R v Deng [2015] SASCFC 176, applied.

R v WILSON
[2018] SASCFC 13

Court of Criminal Appeal:   Kourakis CJ, Parker and Hinton JJ

THE COURT:

Introduction

1. On 6 January 2016 the appellant was taken into custody and charged with:

   1.Aggravated serious criminal trespass in a place of residence, contrary to s 170(1) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA);

   2.Three counts of theft, contrary to s 134 CLCA;

   3.Aggravated assault, contrary to s 20(3) CLCA;

   4.Driving a motor vehicle without the consent of the owner, contrary to s 86A CLCA;

   5.Being on premises for an unlawful purpose, contrary to s 17(1) of the Summary Offences Act 1953 (SA);

   6.Unlawful possession, contrary to s 41(1) of the Summary Offences Act 1953.

2. On 8 July 2016 the appellant pleaded guilty to each of the charges set out above (the 2016 offending). She was sentenced on 16 November 2016. On that date the sentencing Judge also had before him an application made by the Director of Public Prosecutions to enforce a bond entered into by the appellant under s 38 of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act). The bond was entered into on 15 December 2014 after the appellant pleaded guilty to the offences of uttering a forged prescription and unlawful possession committed on 30 May 2014 (the 2014 offending). The bond required that the appellant be of good behaviour for 18 months and, failing that, required that she present herself for sentence in relation to the 2014 offending should the bond be breached and enforced. Thus the sentencing Judge was required to sentence the appellant for the 2014 offending in addition to the 2016 offending.

3. For the 2016 offending the sentencing Judge imposed a single sentence of four years imprisonment. For the 2014 offending he imposed a single sentence of six months imprisonment cumulative upon the sentence imposed for the 2016 offending. The Judge reduced the total period of imprisonment by 30 per cent (16 months, one week and one day, rounded up to 16 months and two weeks) on account of the appellant’s pleas of guilty, arriving at a head sentence of 3 years, one month and two weeks imprisonment. The Judge fixed a non-parole period of two years.

4. The sentencing Judge declined to suspend the sentence he imposed under s 38 of the Sentencing Act, but ordered that it be suspended under s 33BB of that Act and served on home detention on conditions including that the appellant not consume any drug not medically prescribed.

5. On 11, 13 and 25 January 2017 the appellant breached the conditions of the home detention order by taking methylamphetamine. She was brought back before the sentencing Judge on 23 March 2017. The Judge revoked the home detention order made on 16 November 2016 and directed that the period of the appellant’s compliance with that order (16 November 2016 – 11 January 2017) and the period that she had been in custody (31 January 2017[1] – 23 March 2017) be credited toward the head sentence and non-parole period imposed on 16 November 2016. The sentence was to commence from 23 March 2017. The specific order made was as follows:

   … that the sentence of 37 months and two weeks be put into effect and that the period from 16 November 2016 to 11 January 2017 and the period from 25 January to now be counted as part of the terms of the sentence.

   [1]    The sentencing remarks of 23 March 2017 erroneously refer to Ms Wilson being taken into custody on 25 January 2017.

6. The appellant appealed to this Court against the order of 23 March 2017. The argument advanced in support of the appeal was that the sentencing Judge had failed to take into account time already served in imposing the sentence he did on 16 November 2016. Because the order of 23 March 2017 carried into effect the sentence imposed on 16 November 2016, so the argument proceeded, the order of 23 March 2017 was likewise infected by the error.

7. Section 352(1)(a)(iii) CLCA vests a right in a convicted person to appeal against the sentence passed on the conviction on any ground with the permission of this Court. Sentence is defined in s 348 CLCA as including:

   … any order of the court of trial or of the judge thereof made on, or in connection with, a conviction with reference to the convicted person, or any property, or with reference to any moneys to be paid by the person, and also includes an order under section 39 of the Criminal Law (Sentencing) Act 1988 discharging the convicted person, without imposing penalty, on the person entering into a bond.

8. On the hearing of the appeal the question arose as to whether an order made under s 33BD(1) of the Sentencing Act was a sentence within the meaning of s 348 CLCA and to which s 352(1)(a)(iii) CLCA applied, and whether that order could be varied on an appeal against the order imposing the sentence of home detention. 

9. At the suggestion of the Court the appellant filed an amended Notice of Appeal wherein she appealed against the sentence imposed on 16 November 2016 in addition to the order made on 23 March 2017. The respondent did not contend that the appeal was incompetent. We proceed on the basis that the order made on 23 March 2017 under s 33BD(1) of the Sentencing Act was an order of the judge of the court of trial made in connection with a conviction. An alternate source of power may be located in s 43 of the District Court Act 1991 (SA) assuming Part 11 of the CLCA not to apply. We invite Parliament to consider the matter with a view to any doubt as to the source of power to correct errors of this kind being removed.

   The Sentencing Judge failed to take time spent in custody into account

10. The respondent conceded that the sentencing Judge’s reasons refer to the fact that the appellant was taken into custody on 6 January 2016 and remained in custody, but nowhere indicate that any credit was afforded the appellant for the time she served between 6 January 2016 and 16 November 2016.

11. Section 30(2) of the Sentencing Act 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.

12. In R v Deng Blue J observed that s 30(2):[2]

    [2] [2015] SASCFC 176 at [10]-[14].

    … provides that the sentencing judge may take that time into account and either make an appropriate reduction in the term of the sentence or direct that the sentence will be taken to have commenced on the day on which the defendant was taken into custody or some intermediate day. Section 30(6)(b) provides that, in default of the sentencing judge specifying the date of commencement of the sentence, the sentence will be taken to have commenced on the date on which the defendant was (last) taken into custody.

    Although the use of the word “may” suggests that the sentencing judge has a discretion whether to grant any credit and if so how much, it is almost universal sentencing practice to give the defendant credit for the full time spent, more often than not calculated to the day, in one of the two ways authorised by the section.

    While the sentencing court has a discretion whether to give credit by backdating or reduction, at least when the time spent in custody is continuous, the manifestly preferable course is to backdate the sentence and non-parole period. This is reflected in its having become a much more common practice in recent years to backdate the sentence and non-parole period in these circumstances than to reduce their length.

    Giving credit by backdating rather than reduction has two principal advantages.

    1.It promotes accuracy and transparency of the record in that the substantive and nominal length of the sentence and non-parole period are the same. This in turn avoids false perceptions as to the true extent of the sentence and false appearances of disparity between nominal sentences when the substantive sentences are the same and vice versa.

    2.It promotes transparency of the sentencing remarks, making obvious both the fact and extent of credit being given and avoids subsequent arguments.

    The following remarks of Howie J (with whom McColl JA agreed) in R v Newman are highly apposite in the present case:

    The practice of backdating the sentence also makes it obvious to the offender that he, or she, has received a reduction in the sentence for the period already spent in custody. It ensures that there can be no argument, such as is now presently before this Court, as to whether the discount was in fact given even though the sentencing judge said that the time served in custody was taken into account in the sentence imposed…

    …

    I accept that the approach that was advocated in McHugh is a matter of practice and that a sentencing judge has a discretion as to how to take into account pre-sentence custody... But it should be emphasised once again that backdating is the preferable course and it should be adopted unless it is clearly inappropriate to do so…

    The present case is a good example of why the practice laid down in McHugh should continue to be applied...

    [footnotes omitted]

13. We agree. We add that backdating properly reflects the true sentence imposed and, in particular, the denunciatory and deterrent intent. Further, by not disaggregating the time spent in custody from the sentence, the true sentence may be appreciated by the public and will be properly accounted for in statistical information.

14. In the present case, however, because the sentencing Judge suspended the sentence under Division 3A of the Sentencing Act and ordered that the sentence be served on home detention, the sentence of imprisonment imposed did not commence. Further, for the same reason, s 32(6) of the Sentencing Act was not engaged. In these circumstances, any allowance for time spent in custody had to be effected by the making of an appropriate reduction.

15. In Frank v Police Lander J said:[3] 

    The sentencing process must be transparent. It must be so because the prisoner is entitled to know, when the prisoner has been sentenced to a term of imprisonment, exactly how the sentence has been constructed. For example, the prisoner is entitled to know, if he or she has pleaded guilty, the credit which has been given in the sentencing process...

    So also, if a prisoner has spent time on remand for the offences for which the prisoner is to be sentenced, the prisoner is entitled to know, if the sentence is not back-dated, whether the court has taken into account the whole or any part of the time spent in custody pending sentence.

    In my opinion, provided there are no complicating factors of the kind to which I have referred, it would be preferable to back-date the sentence to the date when the prisoner went into custody.

    If for some reason the court believes the better sentencing option would be to simply take into account the time spent in custody, in my opinion, the court ought to say why that is so and at the same time indicate whether the court has taken into account the whole of the time spent in custody or some part of it. If the court is not taking into account the whole of the time spent in custody, then the court should explain in the sentencing remarks the reasons why only part of the time spent in custody is to count in the sentencing process. Ordinarily, the whole of the time spent in custody would be taken into account in fixing the appropriate sentence...

    There was no reason in this case not to back-date this sentence. The appellant was taken into custody on the day of the offences. He remained in custody for the whole of the period until sentence. He was not in custody for any other offence. He was not in breach of any other court order, any bond or any parole.  The sentence should have been back-dated to 28 June 1999.

    [citations omitted]

    [3]    Frank v Police [2000] SASC 245; (2000) 77 SASR 273 at [55]-[59].

16. We agree.

17. In the present case the respondent conceded that no reason arose not to afford the appellant credit for the time she spent in custody prior to being sentenced. Again, we agree. Accordingly, we allow the appeal against the sentence imposed on 16 November 2016. We also accept the submission that the error made in relation to the sentence imposed on 16 November 2016 infected the order made on 23 March 2017.

    Re-sentencing

18. The sentencing discretion having miscarried, we proceed to re-sentence. The appellant and respondent agreed that the appropriate course for the Court to take was to deduct from the sentence imposed the period of time spent in custody prior to sentencing. We accede to that course.

    Conclusion

19. For these reasons the Court orders:

    A.With respect to the sentence imposed on 16 November 2016:

    1       Appeal allowed.

    2       The sentence imposed on 16 November 2016 is varied by substituting for the period of imprisonment imposed and the non-parole period fixed a head sentence of two years and three months with a non-parole period of 16 months.

    B.As to the order made on 23 March 2017:

    1       Appeal allowed.

    2       The order revoking the home detention order is varied for the purposes of ordering that the sentence of imprisonment to be carried into effect is a sentence of imprisonment for two years and three months with a non-parole period of 16 months and directing that the period of compliant home detention from 16 November 2016 to 11 January 2017 and the period from 31 January 2017 to 23 March 2017 are to be counted as part of the term of the sentence.