R v Witter - [2011] SASCFC 122

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v WITTER
[2011] SASCFC 122
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice David)
28 October 2011
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TIME SPENT IN CUSTODY
Defendant convicted of offence of aggravated assault following trial by Judge alone in the Supreme Court – where assault aggravated as the child victim was under the age of 12 years – Judge sentenced the defendant to 10 months imprisonment – Judge declined to exercise discretion to suspend – whether sentence imposed manifestly excessive – whether Judge in error in not giving the defendant sufficient credit for time spent in custody on related breaching offences.
Held: appeal allowed and defendant resentenced – Judge proceeded under a misapprehension of fact – the time spent in custody, although directly related to the breaching offences, also related to the charges the subject of the trial before the sentencing Judge – the words “time spent in custody in respect of an offence” should not be given a narrow construction – full credit for the time spent should be given – defendant resentenced to a term of imprisonment of four months, reduced from 12 months on account of time spent in custody and on home detention bail.
Criminal Law (Sentencing) Act 1988 (SA) s 30, s 38(2a); Criminal Law Consolidation Act 1935 (SA) s 340, s 353, referred to.
PNJ v The Queen (2009) 193 A Crim R 54, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"time spent in custody in respect of an offence"

R v WITTER
[2011] SASCFC 122
Court of Criminal Appeal: Gray, Sulan and David JJ
THE COURT:

This is an appeal against sentence.
Brett Michael Witter, the defendant and appellant, was charged with two counts of rape and a number of physical assaults against his then partner, G. He was also charged with aggravated assault against G’s child, aggravated as the defendant knew that the child was under the age of 12 at the time of the offence.[1] The child was aged eight years at the time of the offending. The aggravated assault was said to have occurred on 3 February 2010.
[1] Contrary to section 20(3) of the Criminal Law Consolidation Act 1935 (SA).
The trial before a Judge alone proceeded in the Supreme Court. On 28 June 2011, the Judge acquitted the defendant of all counts, but one. The defendant was convicted of the offence of aggravated assault. On 19 July 2011, the Judge sentenced the defendant to ten months imprisonment. The Judge declined to suspend the sentence.
Following the aggravated assault of the child on 3 February 2010, the defendant was remanded in custody on 5 February 2010. On 9 February 2010, while the defendant was in custody, a domestic violence restraining order was made. The defendant was released on home detention bail on 16 February 2010. On 11 May 2010, home detention bail was varied and the defendant was placed on supervised bail. The defendant came before the Magistrates Court facing charges of failing to comply with a domestic violence restraining order and for failure to comply with his bail agreement. Bail was revoked and he was remanded in custody from 28 July 2010 until he was released on home detention bail on 24 February 2011. On 22 March 2011, the charges that he had failed to comply with the domestic violence restraining order and that he had breached his bail agreement, were dismissed. As a consequence, the defendant had spent a few days less than seven months in custody. An issue on the appeal was what credit or allowance should be made for this time spent in custody when the defendant was being sentenced in respect of the aggravated assault offence.
On appeal the defendant submitted that the sentence imposed was manifestly excessive. It was contended that the sentence should have been suspended either wholly or, pursuant to section 38(2a) of the Criminal Law (Sentencing) Act 1988 (SA), in part. It was further complained that the Judge had erred in not giving the defendant credit for almost seven months spent in custody on the abovementioned related matters.
Background
The Judge, when sentencing, summarised the circumstances of the offending as follows:
…Over a period of some months you were in a relationship with the mother of the victim. On the occasion of the assault, 3 February 2010, you had spent most of the day with the victim’s mother and you had gone with her mother to the victim’s school and walked home with them. The assault happened later that evening.
The victim, now a child of nine years, observed you being aggressive towards her mother. You were leaning over her mother and holding her nose and throat with your hands, restricting her ability to breathe and using your body weight to pin her down. The victim screamed at you “Stop hurting my mummy”. She then tried to get you off her mother.
Your response to that was to elbow the child, causing her to recoil across the room. You then yelled at her to get to her room. She was crying. Her mother went to her and the two of them ran outside to the driveway. There they were seen by a neighbour. He described you surrounding the woman and her daughter. He thought you were looking fairly threatening and your tone was aggressive and sharp. He called out to the victim’s mother, offering to call the police, and that caused you to leave.
On the hearing of the appeal there was no challenge to the above summary of the offending.
The Judge noted that the offence was aggravated as the defendant knew that the child was under the age of 12 years. The Judge addressed the impact on the child as follows:
…The child was not injured as a result of the assault. She was certainly hurt and upset and her victim impact statement attests to her distress, anger and sadness over what occurred. She says she hopes to never see you again. Her mother says that the child has since suffered from nightmares, and fears that you will come back and get her. She has had to have counselling. Her mother keenly feels the fact that she has exposed her daughter to treatment such as this.
The Judge then turned to discuss the antecedents of the defendant. There was no dispute on the appeal as to the following summary:
You are 39 years of age and most recently have worked as a bobcat driver. At the time of this offending you were working in the finance business. You have a long list of prior convictions against your name for various offences. Many of them are driving unregistered, driving uninsured and driving unlicensed. There are also dishonesty offences and notably there are a number of offences related to possession of drugs. There are also taxation-related offences. You seem to have difficulty complying with the obligations which are imposed on us all by law and which promote an orderly society.
You have previously been given the benefit of three suspended sentences, the longest of which was two and a half years imprisonment in relation to amphetamine offences. The only conviction for an offence of violence goes back to 1998 when you were convicted for common assault on a person other than a family member, apparently a woman with whom you had a relationship, for which you were fined $500. All in all, your past record reflects poorly on you.
The Judge then considered the seriousness of the offending:
I see this as a serious offence of its type. It is not mitigated in any way. You cannot claim credit for previous good character or for a plea of guilty. In fact, your position at trial was that you inadvertently struck the child, not realising that she was present beside you as you struggled with her mother. I rejected that account. I also reject your counsel’s submission that everything ended when you realised what you had done and that you all went outside. That is contradicted by the evidence of the neighbour, which I related and which I found to be impressive. Nonetheless, I accept what your counsel says, that you are now remorseful for what occurred to the child and for persisting in such an unhealthy relationship in which the scene for this assault was created.
The Judge imposed a head sentence of ten months imprisonment after making a reduction on account of a period of home detention bail and for 11 days spent in custody with respect to the charges heard before the Supreme Court.
The Appeal
Misapprehension of Fact
Counsel for the defendant submitted that the Judge had proceeded under a misapprehension of fact. The Judge in her sentencing remarks observed:
I have been asked to take into account and set-off in some way the fact that you spent a period of just under seven months in custody on account of being charged with two counts of breaching the bail that you were given in relation to the charges you faced. Apparently those two charges were not ultimately tried, not because [G], the child’s mother, did not wish to proceed, but through some sort of error or mishandling in the office of the Director of Public Prosecutions. They were dismissed without being determined on the merits. Anyway, your counsel has asked that I apply that period to any sentence I might impose.
[Emphasis added.]
Counsel for the defendant submitted that there was no evidence or material to support the conclusion of the Judge that the charges did not proceed because of an error or mishandling by the office of the Director of Public Prosecutions. Further, counsel submitted that there had been no suggestion that G had in fact been willing to give evidence at the trial in the Magistrate’s Court of the offences of failure to comply with a domestic violence restraining order and breach of bail. Further, there it was said that there was no basis for the conclusion that the matter had not proceeded because G did not wish to proceed. It was submitted that the sentencing Judge’s conclusion that the matter had not been determined on the merits “infected” her approach to the topic of credit for time spent in custody.
Counsel pointed out that the submission put by the Director to the sentencing Judge was that: “[G] didn’t attend Court for that trial, but in saying that there was a miscommunication in terms of what was required of [G], is probably the best way to put it”. Counsel for the defendant had submitted to the sentencing Judge that he had been informed by the police prosecutor on the dates leading up to the trial in the Magistrate’s Court that the matter would not be proceeding. On the trial date the matter was called on, no evidence was called and all charges were dismissed.
The Director conceded that the finding of the sentencing Judge that there had been some sort of error or mishandling in the office of the Director of Public Prosecutions was not supported by the evidence. The Director however submitted that the “erroneous finding [was] not such as to infect her discretion.”
We agree that the sentencing Judge did proceed under a misapprehension of fact. The Director was correct to make this concession. It follows that the Judge proceeded to exercise her sentencing discretion under this misapprehension. We do not accept the submission that the misapprehension was of no moment. Before coming to discuss the consequences of this misapprehension it is convenient to address another matter.
Time in Custody
As earlier mentioned, the defendant had spent a little less than seven months in custody from 28 July 2010 until 24 February 2011. He had been charged with breaching bail and breaching a domestic violence restraining order. As a consequence his bail was revoked by a Magistrate on 28 July 2010. As noted above, the charges on which the defendant had been initially granted bail did not ultimately proceed.
Section 30 of the Sentencing Act is headed “commencement of sentences and non-parole periods” and relevantly provides:
(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.
…
(4)Where a court fixes a non-parole period, the court must specify the date on which the non-parole period is to commence or is to be taken to have commenced.
(5)Where a court directs that a sentence of imprisonment is to be taken to have commenced on the day on which the defendant was taken into custody, any non-parole period fixed by the court in respect of that sentence will be taken to have commenced on that day.
In PNJ,[2] the High Court discussed section 30 of the Sentencing Act. In that decision, the defendant in 2003 had been convicted of the offence of wounding with intent to cause grievous bodily harm. He was sentenced to a term of imprisonment of seven years and a non-parole period of four years was fixed. The sentenced was ordered to commence on the day that he was first taken into custody. In 2004, the victim died as a result of the injuries sustained, and the defendant was then charged with murder. In refusing special leave to appeal, the Court considered section 30(2) of the Sentencing Act and in particular the phrase contained therein “time in custody in respect of an offence”. The Court concluded that that expression applied where the defendant’s conduct was not complete when he was taken into custody, even though the offence of murder was not complete until the victim died two years later:[3]
[Section 30(1) of the Sentencing Act] had been held in R v Colson to provide what, in the present case, Duggan J described as "a general power to backdate a sentence or to order that a sentence commence at a future date". And in Colson, Doyle CJ, speaking for the Full Court, had concluded that earlier decisions of the Full Court had treated s 30(1) or its legislative predecessor as conferring "a general power to direct that a sentence is to commence at an earlier date or time than the time at which it is imposed".
In the particular circumstances of this case, however, it may be that the power to backdate any sentence passed on the applicant (and to backdate the commencement of a non-parole period) is to be found in s 30(2)(b) rather than the general powers conferred by s 30(1). The expression used in s 30(2), about which the relevant operation of para (b) would hinge, is "[i]f a defendant has spent time in custody in respect of an offence for which the defendant is subsequently sentenced to imprisonment". No narrow construction should be given to the words "time in custody in respect of an offence". The better view may be that they are words that in this case would encompass the time the applicant has spent in custody following his arrest for and awaiting trial for the wounding, and the time he has spent in custody serving the sentence imposed on him for the wounding.
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.
It is not necessary to decide whether this construction of s 30(2) is right. If s 30(2) is not to be read in the way described, the Full Court was right to hold that s 30(1) would supply the power to backdate the sentence and the commencement of the non-parole period to the date the applicant was taken into custody. It is enough to make only two points. First, "[i]t is quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words". Second, as noted earlier, the construction of s 30(1), adopted by the majority in the Full Court, applied that Court's earlier decision in Colson and reflected well-established sentencing practice under the Sentencing Act not inconsistent with the practice adopted under earlier legislation. …
[Emphasis added. Footnotes omitted.]
[2] PNJ v The Queen (2009) 193 A Crim R 54.
[3] PNJ v The Queen (2009) 193 A Crim R 54, 59-60.
The sentencing Judge discussed her power to bring to account time spent in custody between 28 July 2010 and 24 February 2011:
The principle is that there is no entitlement to have taken into account time in custody on remand for offences other than the one for which you are to be sentenced. It has been said that time spent on remand cannot be regarded as a bank balance on which to draw in relation to offences which are unconnected with the reason for custody. Your counsel has urged me to find a connection between the charges of breaching bail and this assault but, strictly, there is none. From soon after your arrest on the group of charges for which you were tried you were given bail. But for being charged with the breach of bail offences, you would have remained on bail. In these circumstances, even though I probably could, as a matter of discretion, I am not inclined to give you direct credit for that period of almost seven months that you spent in custody. However, I have taken it into account in a general way, taking the view that it will have advanced your rehabilitation, and I have given you a lesser sentence than I otherwise would have.
[Emphasis added.]
In the present proceeding, counsel for the defendant accepted that time spent in custody between July 2010 and February 2011 was directly related to the alleged breach of bail and restraining order offending. However, it was submitted that the time in custody also related to the charges the subject of the trial before the sentencing Judge. It was pointed out that at the same time as bail was revoked in the Magistrates Court there was also an application to revoke bail with respect to the major indictable offences. This application for revocation did not proceed as the defendant remained in custody on the matters to be heard in the Magistrates Court. It should be noted that the proceedings in the Magistrates Court related to a domestic violence order concerning G, and apparently arose out of the incident that led to the alleged offending the subject of the trial and in particular to the offence of aggravated assault of which the defendant was convicted. The defendant, through his counsel, gave an undertaking that he would not apply for bail without notifying the Director, thereby ensuring that the defendant would not be released from custody before the revocation application was considered.

In our view, the powers of the Court set out in section 30(2) of the Sentencing Act were enlivened. As the High Court observed in PNJ, the words in section 30(2) “time in custody in respect of an offence” should not be given a narrow construction. We consider that they are words that in this case would encompass the time the defendant has spent in custody following the revoking of his bail in respect of the allegations of breaching a domestic violence restraining order and breaching bail.
We see no reason why full credit for the period from 28 July 2010 to 24 February 2011 should not be given. It is apparent from the Judge’s sentencing remarks that some allowance was made in a general way as advancing the defendant’s rehabilitation. It is clear, however, in our view, that a reduction of a period of substantially less than seven months was made.
The sentencing discretion miscarried. The Judge proceeded under a misapprehension of fact. It is therefore necessary for this Court to reconsider the appropriate sentence to be imposed.[4]
[4] Section 353 of the Criminal Law Consolidation Act 1935 (SA) relevantly provides:
(4)Subject to subsection (5), on an appeal against sentence, the Full Court must—
(a) if it thinks that a different sentence should have been passed—
(i) quash the sentence passed at the trial and substitute such other sentence as the Court thinks ought to have been passed (whether more or less severe); or
(ii) quash the sentence passed at the trial and remit the matter to the court of trial for resentencing; or
(b) in any other case—dismiss the appeal.
Having regard to the foregoing and in particular the circumstances of the offending and the antecedents of the defendant, we consider that the head sentence of 12 months imprisonment, before adjustments, is the appropriate sentence. We would make an adjustment of eight months on account of three matters: the time spent in custody between 28 July 2010 and 24 February 2011; the further 11 days spent in custody with respect to the charges heard in the Supreme Court; and, an allowance for the period of home detention bail. As a consequence, the defendant should be sentenced to a term of imprisonment of four months for the offence of aggravated assault. The sentence is to date from 28 June 2011.
Finally, we see no error in the Judge’s consideration of the question of suspension. Having regard to the appellant’s antecedents, the Judge’s decision not to suspend was well within her discretion. Further, it is relevant to note that there was no application made before the sentencing Judge for an order to be made pursuant to section 38(2a) of the Sentencing Act to partially suspend the sentence.
Conclusion
This appeal is allowed. The sentence imposed by the sentencing Judge is set aside. The defendant is resentenced to a term imprisonment of four months. The sentence is backdated to commence on 28 June 2011.