R v Witter

In *R v Witter*, the defendant appealed against a sentence of 10 months imprisonment imposed by the Supreme Court following his conviction for aggravated assault. The assault occurred when the defendant, in a relationship with the victim's mother, elbowed the nine-year-old victim after the child intervened when the defendant was aggressively restraining the child's mother. The offence was aggravated by the defendant's knowledge that the victim was under 12 years of age.

The legal issues before the appellate court were whether the sentence imposed was manifestly excessive and whether the sentencing judge erred by not giving the defendant sufficient credit for approximately seven months spent in custody on related breaching offences. The defendant contended that the sentence should have been suspended, either wholly or in part.

The appellate court allowed the appeal, finding that the sentencing judge had proceeded under a misapprehension of fact regarding the time spent in custody. The court held that the phrase "time spent in custody in respect of an offence" should be interpreted broadly, and that the time spent in custody, even if directly related to breaching offences, also related to the charges for which the defendant was being sentenced. Consequently, full credit for this period was to be given. The court also noted that no application had been made to the sentencing judge for a partial suspension of the sentence, and given the defendant's antecedents, the decision not to suspend was within the judge's discretion.

The defendant was resentenced to a term of imprisonment of four months, backdated to commence on 28 June 2011, reflecting credit for the time spent in custody and on home detention bail.