SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
RIBBON v THE QUEEN
[2022] SASCA 15
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice David)
10 March 2022
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERALLY
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TIME SPENT IN CUSTODY AND QUASI-CUSTODY
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - IMPORT-EXPORT OFFENCES
The appellant pleaded guilty to the offence of aiding, abetting, counselling or procuring the commission of an offence, namely the importation of a commercial quantity of a border-controlled precursor, contrary to ss 307.11(1) and 11.2 of the Criminal Code Act 1995 (Cth).
The sentencing Judge began with a notional starting point of 11 years imprisonment, which was then reduced by 13 months for the appellant’s plea of guilty, resulting in a head sentence of nine years and 11 months. The sentencing Judge then further reduced the head sentence by two years and two months for time spent in custody and on home detention, resulting in a head sentence of seven years and nine months imprisonment. A non-parole period of four years and six months was fixed.
Prior to sentence, the appellant had served one year, 11 months and 22 days in custody, together with five months and two days spent on home detention bail.
The sole ground of appeal is that the sentencing Judge failed to give the appellant full credit for time spent in custody prior to sentence when fixing the non-parole period.
Held, per the Court, granting permission to appeal but dismissing the appeal:
1.The sentencing Judge made proper allowance for the time served in custody when fixing the non-parole period.
2.Whilst there was ultimately no error in the approach taken by the sentencing Judge in reducing the head sentence for time served and then fixing the non-parole period by reference to the head sentence, it is an approach which this Court discourages. The preferable approach is to fix both the head sentence and non-parole period and then reduce both for time spent in custody.
Crimes Act 1914 (Cth) ss 4AA, 16E; Criminal Code Act 1995 (Cth) ss 307.11, 11.2; Criminal Law (Sentencing) Act 1988 (SA) s 30; Sentencing Act 2017 (SA) s 44, referred to.
Frank v Police (2000) 77 SASR 273; Pight v The Queen (1995) 64 SASR 215; R v Deng [2015] SASCFC 176; R v Franceschini (2015) 123 SASR 396; R v Hudson (2016) 125 SASR 171; R v Malesevic [1999] SASC 321; (1999) 204 LSJS 32; R v McHugh (1985) 1 NSWLR 588; R v McIntyre (2020) 138 SASR 17; R v Pahuja (No 2) (1989) 50 SASR 551; R v Palmer [2016] SASCFC 34; R v Rowe [2016] SASCFC 33; R v Tsonis (2018) 131 SASR 416; The Queen v Creed (1985) 37 SASR 566; Trotta v The Police
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- AGLC
- Ribbon v The Queen [2022] SASCA 15
- Case
- [2022] SASCA 15
- Decision Date
CaseChat Overview and Summary
The legal issues before the Court were whether the sentencing judge erred in her approach to accounting for pre-sentence custody and quasi-custody when determining the head sentence and the non-parole period, and whether the non-parole period fixed was demonstrably just and transparent, reflecting the time already served. The Court was required to assess if the sentencing judge had given "proper allowance" for the time served, as submitted by the appellant.
The Court held that while the sentencing judge had ultimately made proper allowance for the time served in custody when fixing the non-parole period, the approach taken was not the preferable one. The sentencing judge had reduced the head sentence for time served and then fixed the non-parole period by reference to that reduced head sentence. The Court noted that this method, while not erroneous if the time served is adequately considered, can lead to opacity in the sentencing process. The preferred approach, which ensures transparency and avoids potential grievances, is to fix both the head sentence and the non-parole period and then reduce both for time spent in custody. The Court granted permission to appeal but dismissed the appeal, finding no error in the final outcome.
Orders
Orders of the court
Held, per the Court, granting permission to appeal but dismissing the appeal:
1. The sentencing Judge made proper allowance for the time served in custody when fixing the non-parole period.
2. Whilst there was ultimately no error in the approach taken by the sentencing Judge in reducing the head sentence for time served and then fixing the non-parole period by reference to the head sentence, it is an approach which this Court discourages. The preferable approach is to fix both the head sentence and non-parole period and then reduce both for time spent in custody.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
As Lander J observed in Frank v Police:[26] 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. (citation omitted)[26] (2001) 77 SASR 273 at [55].Consideration In the present case, the appellant had not served a continuous period in custody prior to having his bail revoked upon pleading guilty. He had also spent time on home detention bail for which the sentencing Judge wished to give him credit. It was therefore not open to the sentencing Judge to backdate the sentence.[27] [27] R v Franceschini (2015) 123 SASR 396 at [38] per Nicholson J (with whom Bampton and Lovell JJ agreed). The sentencing Judge reduced the head sentence for time served and fixed a non-parole period by reference to the head sentence. There is no error in this approach so long as the time served in custody is not overlooked when fixing the non-parole period; that is, so long as the sentencing Judge appreciates, and takes into account when fixing the non-parole period, the reduced or diluted credit for time served that would otherwise be inherent in this approach. We are satisfied that the sentencing Judge took into account the time served in custody when fixing the non-parole period. Her Honour expressly said that she did so. However, the question remains whether the sentencing Judge, in fixing the non-parole period, gave appropriate or proper allowance for the time served. The appellant submits that the sentencing Judge gave materially less than full credit for time served or merely took the time served in custody into account in a general way as a personal circumstance relevant to the fixing of the non-parole period. We are satisfied that the sentencing Judge did make proper allowance for the time served in custody in fixing the non-parole period for the following reasons. After reducing the head sentence for time served in custody, her Honour then referred to time spent in custody and other matters and, in the same paragraph, fixed the non-parole period. Further, as observed earlier, if one were to add back the time served, this would result in a non-parole period that would be about 65 per cent of the (unreduced) notional head sentence. This was not so large a proportion of the head sentence (or outside the permissible range) as to suggest that her Honour had not made proper allowance for the time served in custody in fixing the non-parole period. Whilst we consider there was ultimately no error in the approach taken by the sentencing Judge in reducing the sentence for time served or in the non-parole period fixed, it is not the preferable approach. In adopting this approach, the sentencing Judge did not directly refer to the exact period of time served in custody when fixing the non-parole period. Had the sentencing Judge adopted the alternative approach of reducing both the head sentence and the non-parole period for time served, her Honour would have specifically referred to the precise period of time served and the complaint made by the appellant could not have arisen. That would have ensured transparency in the sentencing process and removed any perception in the appellant’s mind that the time spent in custody was not properly reflected in the fixing of both the head sentence and non-parole period. It is important to reiterate that whilst there is no error in the approach taken by the sentencing Judge, it is not an advisable approach as it can lead to an opacity in the sentencing process and a sense of grievance on behalf of a defendant. It is an approach which this Court discourages.