Rafferty v The Queen
[2002] WASCA 312
•22 NOVEMBER 2002
RAFFERTY -v- THE QUEEN [2002] WASCA 312
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 312 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:65/2002 | 9 SEPTEMBER 2002 | |
| Coram: | MURRAY J ANDERSON J BURCHETT AUJ | 22/11/02 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal granted Appeal allowed Sentences backdated to 8 February 2002 | ||
| B | |||
| PDF Version |
| Parties: | JOHN PAUL RAFFERTY THE QUEEN |
Catchwords: | Sentence Sentences imposed for a series of offences Whether error in mathematical approach to sentencing Cumulacy of sentences Totality principle Whether sufficient weight given to applicant's previous history and youth Discount for "fasttrack" pleas of guilty Backdating sentences for time spent in custody |
Legislation: | Bail Act 1982 (WA), s 51(1) Criminal Code, s 5, s 378, s 401(1)(b) Criminal Procedure Rules 2000, r 47 Justices Act 1902 (WA), s 24 Police Act 1892 (WA), s 54 Sentencing Act 1995 (WA), s 31, s 32, s 33, s 33(2), s 33(3), s 87 |
Case References: | Cameron v The Queen (2002) 76 ALJR 382 Jarvis v The Queen (1993) 20 WAR 201 Pearce v The Queen (1998) 194 CLR 610 R v White [2002] WASCA 112 Ratcliff v The Queen, unreported; CCA SCt of WA; Library No 980651; 3 November 1998 Ryan v The Queen (2001) 206 CLR 267 Chad Johnson v The Queen [2002] WASCA 102 Downey v The Queen [2002] WASCA 59 Lowndes v The Queen (1999) 195 CLR 665 Miles v The Queen (1997) 17 WAR 518 Mill v The Queen (1988) 166 CLR 59 Postiglione v The Queen (1997) 189 CLR 295 R v Brown (1982) 5 A Crim R 404 R v King [2000] WASCA 130 R v Yates [1985] VR 41 Taylor v The Queen, unreported; CCA SCt of WA; Library No 980152; 6 April 1998 Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153; 29 March 1999 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : RAFFERTY -v- THE QUEEN [2002] WASCA 312 CORAM : MURRAY J
- ANDERSON J
BURCHETT AUJ
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Sentence - Sentences imposed for a series of offences - Whether error in mathematical approach to sentencing - Cumulacy of sentences - Totality principle - Whether sufficient weight given to applicant's previous history and youth - Discount for "fasttrack" pleas of guilty - Backdating sentences for time spent in custody
Legislation:
Bail Act 1982 (WA), s 51(1)
Criminal Code, s 5, s 378, s 401(1)(b)
Criminal Procedure Rules 2000, r 47
Justices Act 1902 (WA), s 24
(Page 2)
Police Act 1892 (WA), s 54
Sentencing Act 1995 (WA), s 31, s 32, s 33, s 33(2), s 33(3), s 87
Result:
Leave to appeal granted
Appeal allowed
Sentences backdated to 8 February 2002
Category: B
Representation:
Counsel:
Applicant : Ms H E Prince
Respondent : Mr K P Bates
Solicitors:
Applicant : Christie Strbac
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Cameron v The Queen (2002) 76 ALJR 382
Jarvis v The Queen (1993) 20 WAR 201
Pearce v The Queen (1998) 194 CLR 610
R v White [2002] WASCA 112
Ratcliff v The Queen, unreported; CCA SCt of WA; Library No 980651; 3 November 1998
Ryan v The Queen (2001) 206 CLR 267
Case(s) also cited:
Chad Johnson v The Queen [2002] WASCA 102
Downey v The Queen [2002] WASCA 59
Lowndes v The Queen (1999) 195 CLR 665
(Page 3)
Miles v The Queen (1997) 17 WAR 518
Mill v The Queen (1988) 166 CLR 59
Postiglione v The Queen (1997) 189 CLR 295
R v Brown (1982) 5 A Crim R 404
R v King [2000] WASCA 130
R v Yates [1985] VR 41
Taylor v The Queen, unreported; CCA SCt of WA; Library No 980152; 6 April 1998
Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153; 29 March 1999
(Page 4)
1 MURRAY J: On 28 March 2002 sentences aggregating a term of 7 years imprisonment were imposed on the applicant in this Court. He applies for leave to appeal against the severity of those sentences on the grounds that the sentencing Judge erred:
"(i) in that a starting point of 10 years 6 months was manifestly excessive;
(ii) in applying a mathematical calculation by adding up all the individual sentences for each offence to arrive at a starting point rather than assessing the overall criminality of the prisoner's offending;
(iii) in imposing cumulative sentences on the original offences (indictment no. 141 of 1999 - armed robbery and attempted armed robbery) when the offences occurred in a context whereby they were properly characterised as 'one transaction';
(iv) in failing to apply the totality principle;
(v) in failing to give any or sufficient weight to the applicant's original compliance with the intensive supervision order (ISO) imposed by His Honour, Justice McKechnie on 29 October, 1999 in circumstances where the Crown had conceded on 5 June, 2001 that some credit ought be given for the fact that the Applicant had served 14 months of an eighteen month ISO without offending;
(vi) failing to give any discount for a fast track plea of guilty on the breach offences Indictment 36 of 2002;
(vii) failing to give any or sufficient weight to the applicant's youth and antecedents;
(viii) failing to consider or give any or sufficient weight to the comments of His Honour, Justice McKechnie on 29 October, 1999 and his assessment that, but for factors establishing a non-custodial sentence was appropriate, a period of imprisonment totalling 5 years was appropriate for the offences;
(ix) failing to take into account the sentencing remarks of Her Honour, Justice Wheeler, on 29 June, 2001 that the
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- imposition of a further ISO was warranted and that account need be taken of the applicant's original compliance with the ISO and that on further breach of the ISO imposed by her a term of imprisonment of 'something less than 2 years' was appropriate;
- (x) failing to backdate the Applicant's sentence to take into account time spent in custody for the periods 5 June, 2001 to 29 June, 2001 and 5 March, 2002 to 28 March, 2002."
The Sentencing History
2 The applicant was originally presented in this Court upon an indictment charging two offences, one of attempted armed robbery and one of armed robbery, both committed on 16 May 1999.
3 The first offence concerned an incident at a McDonalds store. The applicant was armed with a knife. His attempt to rob the store was stoutly resisted by two young female staff members, one of whom pulled down the hood of the applicant's jacket, with the result that his face was recorded on the store's security camera. Confronted by the resistance of the staff, the applicant left.
4 He walked a little distance to a store known as "Cake-it-Away". Only one female staff member was present in the shop. Again using the knife, the applicant demanded money. The staff member opened the till and gave the applicant money. He ran several hundred metres from the shop, but then walked back to its vicinity where he was apprehended by police officers who had responded to a call for help from the staff of the first store he had entered.
5 There was an expedited committal for sentence and in this Court in October 1999 pleas of guilty were entered to both offences on what has come to be known as the "fast-track" system. McKechnie J sentenced the applicant on 29 October 1999 to an intensive supervision order for a period of 18 months in respect of both offences and the applicant was ordered to complete 120 hours of community work. Noting that the applicant appeared to be addicted to heroin and a number of other drugs, as well as alcohol, McKechnie J imposed a programme requirement directed to the receipt of appropriate treatment for the applicant's drug addiction.
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6 His Honour said that if he had been of the view that sentences of imprisonment were to be imposed, then, having regard to the early pleas of guilty, the applicant's comparative youth (he was then 21) and his relatively minor criminal history as an adult, his Honour would have imposed 2½ years imprisonment for the attempted armed robbery and 5 years imprisonment for the completed armed robbery. His Honour said that he would have ordered those sentences to be served concurrently and he would have ordered eligibility for parole.
7 It appears that, having been convicted of wilful damage in a Court of Petty Sessions on 16 November 1999 (presumably not an offence which breached the intensive supervision orders) and having been sentenced to 4 months imprisonment, suspended for 18 months, the applicant was brought before another Court of Petty Sessions on 19 January 2001 charged with disorderly conduct and resisting arrest, for each of which offences he was fined $200, as he was for the breach of the suspended sentence also dealt with on that date. The suspension was permitted to continue.
8 As I understand it, breach proceedings for the intensive supervision orders were subsequently based on the applicant's conviction in a Court of Petty Sessions of two offences of stealing - in one case a bottle of alcohol and in the other case tools of the value of $70 - both offences, as I understand it, committed on 5 April 2001, after some 15 and a half months of the original intensive supervision orders had expired and following completion of the hours of community work.
9 For stealing the bottle of alcohol the applicant was fined $100. The other stealing offence was remitted to this Court upon the applicant's plea of guilty, to ground the breach proceedings in respect of the offences of attempted robbery and robbery. Those proceedings came before Wheeler J in June 2001. Her Honour noted the remarks upon sentence originally made by McKechnie J and referred to pre-sentence and breach reports which were before the Court. The applicant was by then 23. Her Honour said that his heroin addiction seemed to be under control, but the addiction to alcohol was still a problem. Her Honour noted that since the applicant's appearance in the Court of Petty Sessions on 5 June 2001 he had been in custody. Her Honour clearly had regard to that, as well as to the completion of the substantial portion of the intensive supervision orders and the conditions imposed in respect of them, when she observed that if she was to pass a sentence of imprisonment in this case, it would be for a term of less than 2 years.
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10 However, in view of the progress made, Wheeler J did not take that course but imposed new intensive supervision orders in respect of the offences of attempted robbery and robbery. The term of the orders was a period of 12 months. Again a programme requirement was imposed for the purpose of ensuring that the applicant maintained any necessary treatment in relation to his heroin addiction and for him to deal with the alcohol addiction. Her Honour imposed a further 48 hours of community service. For the stealing offence before the Court her Honour imposed a concurrent 6 months intensive supervision order and that is of no continuing significance.
11 Yet again the applicant had been given the benefit of leniency and the encouragement of the Court to pursue, with appropriate guidance, a programme directed to achieving his rehabilitation, the trigger for which was, of course, offences by then committed over two years earlier. It appears, however, that the lesson was not learned and the applicant lacked the will to comply with the orders made.
12 On this occasion the applicant did not quite manage four months of the intensive supervision orders before, on 20 October 2001, he committed an offence of burglary during the hours of daylight at an ordinary dwelling house in Willetton. In the process he activated an alarm and damaged a window. He removed a video-recorder and its remote control. As he walked away from the house, he was stopped by a neighbour who, with others, detained him until the police arrived.
13 He must have been admitted to bail because on 25 October 2001 he was charged with disorderly conduct by urinating in a park in the middle of the afternoon in clear view of people at a child care centre and otherwise in the area. On that date he entered into a bail undertaking to appear in a Court of Petty Sessions on 30 October. He failed to appear and was charged with breach of bail. On 5 November he stole meat and cheese to the value of $13.71 from a Willetton supermarket. He was apprehended attempting to leave the store without paying for these items.
14 The complaints of those four offences were brought before this Court to be dealt with at the same time as the consequential breaches of the intensive supervision orders by the procedure provided for in the Sentencing Act 1995 (WA), s 32 and the Criminal Procedure Rules 2000, r 47. The applicant had already pleaded guilty to these offences in the Court of Petty Sessions when, before this Court, in March 2002, he admitted the breaches of the intensive supervision orders and consented to be sentenced for the pending charges.
(Page 8)
The Punishments Available
15 There was some reference in argument before this Court to the sentencing framework in which the offences the subject of the notice under s 32 of the Sentencing Act were to be dealt with. In my view, the effect of s 32 and s 33 of the Sentencing Act is that a superior court, sentencing for indictable offences referred to it on notice, has full power to sentence as a superior court exercising its ordinary jurisdiction, despite the absence of an indictment. By s 33(2) the court's sentencing power in relation to a pending charge, as defined by s 31, is equated with the jurisdiction of the court in respect of a charge of an offence otherwise before the court on indictment. By s 33(3), for the purpose of an appeal against sentence, the sentence imposed in respect of a pending charge is to be taken as being a sentence imposed following conviction on indictment.
16 Where such an indictable offence is capable of being dealt with summarily by virtue of s 5 of the Criminal Code, the superior court sentencing for a pending charge is not restricted to the "summary conviction penalty" provided in respect of the offence. Because the superior court is not a Court of Petty Sessions for which provision is made by the Justices Act 1902 (WA), s 24, the superior court will not be dealing with the offence upon the offender's summary conviction and its powers are not expressly confined to those of a court of summary jurisdiction by either s 32 or s 33 of the Sentencing Act. It follows that when this Court came to sentence the applicant for the offences of burglary and stealing to which I have referred, its power was to sentence to the punishments provided by the relevant sections of the Criminal Code, s 401(2)(b) - a maximum of 18 years imprisonment - and s 378 - a maximum of 7 years imprisonment, for the two offences respectively.
17 On the other hand, disorderly conduct is a simple offence defined by the Police Act 1892 (WA), s 54 for which the maximum penalty provided is a fine of $500 or imprisonment for 6 months or both. The offence of breach of bail is again a simple offence defined by the Bail Act 1982 (WA), s 51(1) - in the circumstances of this case - which is punishable by a fine of $10,000 or imprisonment for 3 years or both.
18 I should say, I think, that, lest it be thought that there is no advantage in such circumstances affecting the maximum penalty available in relation to indictable offences, in using the notice procedure to have pending charges dealt with at the same time as other matters before the court, the incentive is that the sentencing court will recognise the offender's co-operation in the processes of justice involved in the procedure. All
(Page 9)
- outstanding offences are by this procedure able to be dealt with by the one sentencing court at the one time. Operating in mitigation of punishment will be the fact that pleas of guilty will have been entered in a timely way to all offences and the offender will have indicated to the court a keenness to have all outstanding matters dealt with and the slate wiped clean, so to speak. Further, appropriate decisions about accumulation of sentence and a proper application of the totality principle will be assisted by the process. There is every indication that the sentencing Judge in this case approached the matter in that way.
The Proceedings in this Case
19 The sentences the subject of this application were passed on 28 March 2002. The sentencing Judge recited the facts and the historical circumstances accurately and in rather more detail than I have set them out above. His Honour referred to a pre-sentence report dated 21 February 2002. The reporting community corrections officer had spoken of difficulty making contact with the applicant for interview so that a report might be made. The report referred to the history of offending during the currency of the original intensive supervision orders and those imposed by Wheeler J. Reference was made to the applicant's poor compliance with all orders, the difficulty of supervision which had been encountered, his failure to attend numerous appointments and the difficulty of obtaining the applicant's co-operation in counselling and treatment for his drug and alcohol addiction.
20 On 24 September 2001 the applicant's mother had advised the community corrections officer of her concern at the applicant's escalating alcohol use and his hospitalisation as a result of alcohol poisoning. This was just prior to the commission of the offences the subject of the s 32 notice. Following the commission of those offences, attempts continued to be made to engage the applicant in treatment for his alcoholism, including the provision of detoxification. However, the applicant had not reported in person for supervision since 8 October 2001 and he had last made contact by telephone on 10 December 2001.
21 The sentencing Judge referred to all of these developments, which really revealed the applicant's incapacity at any time during the currency of the intensive supervision orders made in respect of the offences in question to take advantage of them and to act upon the instructions, advice and guidance of his community corrections officers and those who have otherwise been involved in the attempts to control his substance abuse
(Page 10)
- problems. The sentencing Judge substantially quoted the conclusion of the pre-sentence report which was expressed in the following terms:
"Rafferty has a significant problem with alcohol abuse and his above performance demonstrates that there has been difficulty in engaging him with counselling and a range of services. His offending history has entirely been drug and alcohol related, which also supports that his substance use is highly problematic. He has continued to show little insight into the consequences of his offending behaviour and his longstanding history of drug and alcohol misuse. He has been given numerous opportunities during his most recent term of supervision, but he has failed to comply with these."
23 It will be noted that the individual sentences for the offences of attempted armed robbery and armed robbery were, in total, of about the order of the sentences which McKechnie J had indicated so long ago that his Honour would have imposed if persuaded that he should not make the intensive supervision orders he did. However, the sentences imposed would necessarily result in much greater punishment than that foreshadowed by Wheeler J when her Honour made the more recent intensive supervision orders. It is clear from the remarks of the sentencing Judge that his Honour was well aware of what had been said by both of the Judges who dealt with the case before him.
24 His Honour concluded his remarks on sentence by saying:
"If I were to impose cumulative sentences in respect of each of the offences, this would mean imprisonment for some 10 years and 6 months. In my view, at your stage in life this would be a crushing sentence. In my view, an appropriate total sentence in this case would be imprisonment for 7 years, which would be achieved by making the sentences for the attempted armed
(Page 11)
- robbery and the armed robbery cumulative on one another and directing that all other sentences be served concurrently with each other and the sentences for the attempted armed robbery and armed robbery."
25 His Honour did not backdate the sentences to any degree and the aggregate term of 7 years imprisonment therefore commenced to be served on 28 March 2002.
The Grounds of Appeal Discussed
26 As to the grounds of appeal, I may say immediately that grounds 8 and 9, if they might be regarded as properly framed grounds of appeal, are not made out. As I have said, the sentencing Judge clearly reviewed and gave consideration to the comments of both McKechnie and Wheeler JJ. McKechnie J spoke of the sentences of imprisonment his Honour might otherwise have imposed for the express purpose of endeavouring to impress upon the then 21-year-old applicant the severity of the punishment which might be imposed upon him if, as turned out to be the case, he failed to take advantage of the leniency he was being shown. Those remarks were not made with any intention to bind a subsequent sentencing Judge either as to the length of the individual terms or as to whether they were to be served cumulatively or concurrently.
27 When the matter came before Wheeler J, her Honour indicated that she would have taken a more lenient view of the sentences to be imposed had she not made new intensive supervision orders. She did so upon a particular view of the weight to be given to the partial compliance of the applicant with the intensive supervision orders imposed by McKechnie J. Her Honour expressly did not seek to bind any subsequent sentencing Judge.
28 The sentencing Judge on 28 March 2002 was required to react to a different and subsequent history to that before his brother and sister Judges. It was, in truth, a history of abject and repeated failure to take advantage of the leniency offered. In my opinion, there is no mitigation of any substantial kind in the history and the Judge did not err in reacting to past events as his Honour did when he came to sentence the, by now, 24-year-old applicant on 28 March 2002.
29 Having regard to those matters, in my opinion, ground 5 cannot be made out. Whilst it may be accepted that it was appropriate for Wheeler J to afford the applicant further leniency in the light of the history of his
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- partial satisfaction for a substantial period of the terms of the intensive supervision orders made by McKechnie J, the picture presented to the sentencing Judge on 28 March 2002 was, as I have indicated, quite different. Any credit for his performance when he appeared before Wheeler J had quite evaporated by the time he appeared before the sentencing Judge on this occasion. I think it cannot be said, as asserted by ground 7, that his Honour failed to give any or sufficient weight to the applicant's youth, such as it was, and his antecedents, generally unfavourable as they were.
30 Grounds 1 and 2 may be disposed of shortly. Having regard to the passage in his Honour's sentencing remarks which I have quoted above, it is abundantly clear that his Honour did not commit any error of principle by employing a two-tiered or other mathematical sentencing process. On the contrary, it is clear that his Honour applied the process urged as correct by the High Court in Pearce v The Queen (1998) 194 CLR 610 at 624, per McHugh, Hayne and Callinan JJ (a judgment cited by his Honour in his sentencing remarks) where their Honours said:
"45. To an offender, the only relevant question may be 'how long', and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality.
46. Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision. It is, then, all the more important that proper principle be applied throughout the process.
47. Questions of cumulation and concurrence may well be affected by particular statutory rules. If, in fixing the appropriate sentence for each offence, proper principle is not applied, orders made for cumulation or concurrence will be made on an imperfect foundation.
48. Further, the need to ensure proper sentencing on each count is reinforced when it is recalled that a failure to do so may give rise to artificial claims of disparity between
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- co-offenders or otherwise distort general sentencing practices in relation to particular offences."
31 Having fixed the terms proportionate, in his Honour's view, to the criminality of the individual offences, his Honour then turned his attention to accumulation. Ground 3 complains about the accumulation of the sentences for the offences of attempted armed robbery and armed robbery. They are described as one transaction. This is a reference to the principles governing the decision about accumulation of sentences. The principles have been recently very usefully discussed by McKechnie J, with whom Wallwork and Murray JJ agreed, in R v White [2002] WASCA 112; 9 May 2002.
32 It is important to note that the grounds make no complaint about the length of the individual sentences. As to their accumulation, I am unable to accept the proposition that the offences of attempted armed robbery and armed robbery committed on 16 May 1999 were properly characterised as one transaction. They were not a single invasion of the same legally protected interest. They were, in fact, two distinctly separate offences. The armed robbery was committed at a different store following the failure of the attempted armed robbery committed at the McDonalds store. That was their only connection. The two offences were committed on the same day and in the same way. The victims were closely connected in place, but there was no connection between the commission of the offences. Prima facie, subject to the proper application of the totality principle, these offences warranted separate, cumulative punishment, as indeed did the other four offences before the Court.
33 Ground 4 complains of a failure by the sentencing Judge to apply the totality principle, to which, in the passage quoted above, having fixed the individual sentences, the sentencing Judge then turned. With respect, his Honour's sentencing remarks show an appropriate understanding of the proper application of the totality principle, as it has come to be called, applied when the sentencing Judge gives final consideration to the effect of the sentencing exercise to ensure that in aggregate the sentences imposed are properly proportionate to the overall criminality of the case, having regard to all the circumstances concerned with the offences committed and the circumstances personal to the offender: Jarvis v The Queen (1993) 20 WAR 201.
34 I will reserve for the moment my final conclusion about the total aggregate term of 7 years. I should first examine ground 6 which alleges a further error of principle in what is asserted to be the failure to give any
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- discount for fast-track pleas of guilty on the breach offences the subject of the s 32 notice, the sentences for all of which were ordered to be served concurrently with each other and with the other terms imposed. It cannot be supposed that the sentencing Judge was unaware that those matters necessarily came before his Honour on pleas of guilty made at early opportunities before the Court of Petty Sessions.
35 The proceedings, when the matters first came before his Honour on 5 March 2002, commenced by putting to the applicant his convictions of those offences in the Perth Court of Petty Sessions on 6 December 2001. The breach of bail was specifically put to the applicant and admitted by him. In his sentencing remarks his Honour recited a history of some delay in completion of the s 32 notice in terms which revealed an understanding that such delay as there had been was not to be attributed to the applicant. His Honour reminded himself of all these relevant matters in passing sentence and I think it cannot be said that his Honour overlooked the relevant circumstances or failed to give them such weight as they might command, having regard to the sort of considerations discussed by the High Court in Cameron v The Queen (2002) 76 ALJR 382, either in the length of the individual sentences imposed or the degree to which they were accumulated.
36 In respect of the matters discussed thus far, it seems to me that in this case it is appropriate to recall the function which this Court performs in adjudicating upon an application for leave to appeal against sentence grounded, as in this case, by reference to allegations of particular errors of principle. In Ryan v The Queen (2001) 206 CLR 267, at 307 [136], Hayne J said:
"It is because sentencing, being discretionary, admits of no single 'correct' answer, that the task of intermediate appellate courts, on an appeal against sentence, is to examine whether the appellant makes good the allegation that the sentencer made an error of principle, not whether they agree with the sentence imposed. In a case of the present kind where, so far as is now relevant, the appellant alleged specific error, rather than error inferred from manifest excess of sentence, the question is not whether the particular factor to which attention is directed might have been taken into account by the sentencer differently. It is whether the sentencer was bound to take that matter into account differently."
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37 Subject to what I have to say about ground 10, it seems to me that no error of principle has been demonstrated; nor, indeed, if it is necessary to consider the matter, having regard to the way in which the grounds of application have been formulated, can it be said that the individual sentences are manifestly excessive or that the exercise of sentencing discretion miscarried because in their totality as a term of imprisonment of 7 years the result was manifestly excessive.
38 As to ground 10, and the question of backdating the applicant's sentences to take account of time spent in custody for the periods 5 June to 29 June 2001 and 5 March to 28 March 2002, there is no doubt that the sentencing Judge was aware that the applicant was in custody during these periods on remand in relation to all or some of the offences for which he came to be sentenced and, therefore, in circumstances which activated s 87 of the Sentencing Act. It is, of course, right to say that s 87 gives a sentencing Judge a discretion to give credit in the sentencing process for time spent in custody on remand: Ratcliff v The Queen, unreported; CCA SCt of WA; Library No 980651; 3 November 1998.
39 But there is nothing to show that the sentencing Judge exercised his discretion not to give such a credit for any reason and it seems to me that the matter was simply overlooked and not brought to his Honour's attention by counsel prosecuting or defending. For the respondent it is not suggested that there was any reason not to provide the credit and, in my opinion, it should have been done. On my calculation, the two periods in question total 48 days. The appropriate way to provide the credit would have been to backdate the sentence by that period of time. In other words, the commencement date of 8 February 2002 should have been fixed.
40 I would grant the application for leave to appeal and allow the appeal only to the extent necessary to add such an order to the sentences imposed. I would otherwise refuse leave.
41 ANDERSON J: I have read the judgment of Murray J and agree with it. There is nothing I can usefully add. I agree with the orders proposed.
42 BURCHETT AUJ: I also agree with the judgment of Murray J, and that the orders proposed by him should be made.
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