Ribbon v The Queen - [2022] SASCA 15

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 [2008] SASC 16, considered.

RIBBON v THE QUEEN
[2022] SASCA 15
Court of Appeal – Criminal: Livesey P, Doyle and David JJA
THE COURT:

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 maximum penalty for this offence is imprisonment for 25 years or a fine of 5,000 penalty units,[1] or both.
[1] Pursuant to s 4AA(1) of the Crimes Act 1914 (Cth) a ‘penalty unit’ means $170 for the period between 28 December 2012 to 30 July 2015. The total maximum pecuniary penalty for an offence against s 307.11 of the Criminal Code Act 1995 (Cth) at the time of offending was therefore $850,000.
Between 22 June 2014 and 18 August 2014, the appellant and another person, arranged for the importation of a commercial quantity of pseudoephedrine from Thailand. The pseudoephedrine was dissolved in liquid and packaged in containers of cleaning product. On 18 August 2014, a shipping container arrived in Port Botany, New South Wales, containing 10 five litre bottles of cleaning product. Together, the bottles contained 48,365 grams of liquid containing 13,445.4 grams of pure pseudoephedrine, with the potential to manufacture about 15 kilograms of methamphetamine. A commercial quantity of pseudoephedrine is 1.2 kilograms. In 2014, the value of 15 kilograms of methylamphetamine on the illicit drug market was approximately $15 million to $60 million depending upon its purity.
The appellant was sentenced to seven years and nine months imprisonment with a non-parole period of four years and six months. The sentencing Judge began with a notional starting point of 11 years imprisonment, which was then reduced by 13 months (or almost 10 per cent) 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 ‘to give account for the 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. The head sentence and non-parole period were backdated to commence on 27 August 2020, when the appellant was last taken into custody.
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. No complaint is made that the head sentence or non-parole period is manifestly excessive.
Time served in custody
The appellant was arrested for the importation offence on 20 October 2014 and was granted simple bail on 30 October 2014, thereby spending 10 days in custody.
On 13 April 2018, after a trial by jury, the appellant was found guilty of the importation offence and his bail was revoked and he was taken into custody. The appellant’s conviction was subsequently set aside on 25 October 2019. The appellant was remanded in custody until he was granted home detention bail on 25 March 2020. The appellant spent one year, 11 months and 12 days in custody. This was followed by five months and two days spent on home detention bail.
The appellant pleaded guilty to the importation offence on 27 August 2020, at which time his home detention bail was revoked.
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 prior to his sentence, which was backdated to commence on 27 August 2020.
Sentencing remarks
In her remarks, the sentencing Judge set out the circumstances of the offending. For the purpose of this appeal, it is not necessary to repeat the details of the offending, except to say that the appellant facilitated the importation of a substantial quantity of pseudoephedrine, which is often used in the manufacture of methamphetamine. The appellant’s role was to assist others to prepare and load the consignment containing the pseudoephedrine into shipping containers in Thailand for importation into Australia. The sentencing Judge found that the appellant was aware of the amount of pseudoephedrine involved and that he stood to gain financially for his role in the importation.
The sentencing Judge detailed the appellant’s personal circumstances, namely that he was 64 years old (at the time of sentence), had a good employment history, and continued to receive the ongoing support of his family. The appellant had no prior convictions.
As to the time served in custody, her Honour said:[2]
You spent one year, 11 months and 23 days in custody in all, and you spent five months and two days on home detention. Not only is that relevant to my consideration that I will take into account in calculating a sentence, but it also forms an important part of your personal circumstances that I take into account.
[2] There is an error in the sentencing Judge’s remarks. The appellant in fact served one year, 11 months and 22 days in custody. However, nothing turns on this issue, and in any event, the error is to the appellant’s advantage, albeit only by one day.
As set out earlier, the sentencing Judge started with a notional head sentence of 11 years imprisonment. Her Honour then reduced the sentence by 13 months (or almost 10 per cent) for the appellant’s plea of guilty, resulting in a head sentence of nine years and 11 months. Her Honour further reduced the sentence by two years and two months ‘to give account for the time spent in custody and on home detention’, resulting in a head sentence of seven years and nine months imprisonment.
As the appellant had previously spent one year, 11 months and 22 days in custody, the sentencing Judge appeared to allow for two months and eight days in relation to the five months and two days spent on home detention bail. There was no complaint on appeal as to the reduction for time spent on home detention bail.
After imposing the head sentence of seven years and nine months imprisonment, the sentencing Judge turned to the imposition of the non-parole period. Her Honour said:
In setting your non-parole period, I take into account your age, your lack of prior convictions, the time you have previously spent in custody and your good prospects of rehabilitation. In addition to this, I take into account the circumstances of your offending. I consider that a non-parole period of four years and six months is appropriate.
(emphasis added)
A non-parole period of four years and six months was therefore fixed.
The head sentence and non-parole period were backdated to commence on 27 August 2020, the date the appellant was last taken into custody.
The appellant’s submissions
The appellant contends that in fixing the non-parole period, the sentencing Judge did not give full credit for the time served in custody prior to 27 August 2020. The appellant’s argument proceeds in this way:
1.   The sentencing Judge fixed a non-parole period of four years and six months (or 54 months) as a proportion of the head sentence imposed (after a reduction of two years and two months for time served in custody) of seven years and nine months imprisonment (or 93 months); in other words, the non-parole period represents about 58 per cent of the head sentence imposed.
2.   Applying the 58 per cent to the notional head sentence adopted by the sentencing Judge after a reduction for the appellant’s guilty plea but prior to the reduction for time spent in custody, namely nine years and 11 months imprisonment (or 119 months), the result is five years and nine months (or 69 months).
3.   If the sentencing Judge gave the appellant full credit for the time served in custody of two years and two months, that would result in a non-parole period of three years and seven months (or 43 months).
4.   It can thus be seen that, assuming the sentencing Judge intended to fix a non-parole period that was about 58 per cent of the head sentence, the appellant has not received full credit for his time served in custody and on home detention bail. By giving credit for this time served before fixing the non-parole period, the credit given has been reduced or diluted so that the appellant received credit for only 58 per cent of this time. This resulted in a non-parole period that is 11 months higher (54 months versus 43 months) than would otherwise have been fixed.
5.   Alternatively, even if the focus is confined to credit for time spent in custody (on the basis that the appellant ought to have been given day for day credit for this period of time), as opposed to time spent on home detention bail, then the credit for this period (one year, 11 months and 22 days) has been impermissibly diluted.
The appellant submits the Court should infer that the sentencing Judge did not give the appellant full credit for time served in custody when fixing the non‑parole period on the basis that her Honour intended for the non-parole period to be about 60 per cent of the head sentence.
The respondent’s submissions
The respondent contends that it is untenable to suggest that the sentencing Judge did not reduce the non-parole period for time served in custody given her Honour expressly stated that she had taken it into account. Rather, the respondent contends that the sentencing Judge considered it appropriate to impose a non-parole period which was a higher percentage of the head sentence and then deducted the time spent in custody from the higher non-parole period.
By way of illustration, the respondent notes that the time spent in custody by the appellant of one year, 11 months and 22 days, when added to the non-parole period imposed by the sentencing Judge, results in a non-parole period of six years, five months and 22 days, which represents about 65 per cent of the notional head sentence of nine years and 11 months.[3]
[3] Alternatively, if two years and two months were added to take account of the time spent on home detention bail, then the resulting non-parole period of six years and eight months would represent about 67 per cent of the notional head sentence of nine years and eleven months.
The respondent submits that the non-parole period is comfortably within the appropriate range of between one half and three-quarters of the head sentence;[4] and, indeed, that a non-parole period of about 65 per cent of the notional head sentence (before reduction for time served) would have been appropriate and expected.
[4] R v Palmer [2016] SASCFC 34 at [4] per Kourakis CJ; R v McIntyre (2020) 138 SASR 17 at [84] per Doyle J (with whom Stanley and Hughes JJ agreed).
General principles
When a court is sentencing an offender for the commission of a federal offence the law of the State where the offender is being sentenced applies to the commencement of the sentence and non-parole period.[5]
[5] Crimes Act 1914 (Cth) s 16E.
Section 44 of the Sentencing Act 2017 (SA) (the ‘Sentencing Act’) deals with the commencement of sentences. Relevantly, s 44(2) 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.
Where a defendant has spent time in custody for the offence for which they are sentenced, s 44(2) provides the sentencing judge with a discretion to give credit for time served by reducing the sentence by an appropriate period of time or backdating the sentence to the date the defendant was taken into custody or some other date which falls between the defendant being taken into custody and being sentenced.
There are advantages to a defendant in backdating the sentence and it has been considered the preferable course compared with reducing the sentence for time served.[6] As Blue J said in R v Deng:[7]
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.
(citations omitted)
[6]     R v Pahuja (No 2) (1989) 50 SASR 551 at 563 per White J; R v McHugh (1985) 1 NSWLR 588 at 590-1 per Street CJ; Frank v Police (2000) 77 SASR 273 at [49]-[50] per Lander J; R v Rowe [2016] SASCFC 33 at [25] per Nicholson J (with whom Lovell J and David AJ agreed); R v Hudson (2016) 125 SASR 171 at [26] per Nicholson J (with whom Parker and Lovell JJ agreed). See generally, R v Franceschini (2015) 123 SASR 396 at [23]-[61] per Nicholson J (with whom Bampton and Lovell JJ agreed).
[7] [2015] SASCFC 176 at [13].
However, it is not an error for a court to account for time served by reducing a sentence rather than backdating a sentence.[8] When the legislation specifically provides for an approach it cannot be said to be an error for a court to adopt that approach. Indeed, in some matters it may not be possible or practicable to backdate the sentence, such as where the defendant’s time in custody is not continuous and/or the defendant has spent a period of time on home detention bail.[9]
[8] Frank v Police (2000) 77 SASR 273 at [54] per Lander J.
[9] Frank v Police (2000) 77 SASR 273 at [54] per Lander J; R v Tsonis (2018) 131 SASR 416 at [71] per Lovell, Doyle and Hinton JJ.
When reducing a sentence for time served, a common approach is to fix both the head sentence and non-parole period and then reduce both for time served.[10] However, it is permissible for a sentencing judge to reduce the head sentence for time served in custody and then fix the non-parole period by reference to the head sentence, provided the time served in custody is not overlooked when fixing the non-parole period.[11]
[10] R v Tsonis (2018) 131 SASR 416 at [71] per Lovell, Doyle and Hinton JJ.
[11] R v Malesevic [1999] SASC 321 at [35]-[47]; (1999) 204 LSJS 32 at 5-8 per Doyle CJ (with whom Bleby and Wicks JJ agreed); R v Rowe [2016] SASCFC 33 at [25]-[28] per Nicholson J (with whom Lovell J and David AJ agreed); R v Hudson (2016) 125 SASR 171 at [26]-[27] per Nicholson J (with whom Parker and Lovell JJ agreed); R v Tsonis (2018) 131 SASR 416 at [71] per Lovell, Doyle and Hinton JJ.
In R v Tsonis, the Court of Criminal Appeal considered the operation of s 30(2) of the Criminal Law (Sentencing) Act 1988 (SA), the predecessor to s 44(2) of the Sentencing Act which is identical in its terms.[12] The Court said that whilst the section gives a sentencing judge a discretion as to the extent of any credit given for time served in custody, a practice has developed to give a defendant full credit for time served in custody.[13] The Court set out the policy reasons for this practice.[14] The Court referred to this practice as having been described in earlier authorities ‘as the usual practice, the typical practice, and an almost universal practice’.[15] Further, when credit is given for time served in custody, it is generally calculated to the day, although mathematical precision is not necessarily required.[16]
[12] R v Tsonis (2018) 131 SASR 416.
[13] R v Tsonis (2018) 131 SASR 416 at [69] per Lovell, Doyle and Hinton JJ.
[14] R v Tsonis (2018) 131 SASR 416 at [88] per Lovell, Doyle and Hinton JJ.
[15] R v Tsonis (2018) 131 SASR 416 at [69] per Lovell, Doyle and Hinton JJ citing Trotta v The Police [2008] SASC 16 per David J and R v Deng [2015] SASCFC 176 at [11] per Blue J, at [42] per Nicholson J (with whom Kelly J agreed).
[16] R v Tsonis (2018) 131 SASR 416 at [69] per Lovell, Doyle and Hinton JJ citing R v Malesevic [1999] SASC 321 at [35]-[47]; (1999) 204 LSJS 32 at 5-8 per Doyle CJ (with whom Bleby and Wicks JJ agreed) and R v Deng [2015] SASCFC 176 at [11] per Blue J, at [42] per Nicholson J (with whom Kelly J agreed).
The Court said that where a sentencing judge does decide to give less than full credit there must be good reason to do so.[17] In those circumstances it is incumbent upon the judge to disclose the amount of credit given for time served in custody and the reason or reasons for giving less than full credit.[18]
[17] R v Tsonis (2018) 131 SASR 416 at [75] per Lovell, Doyle and Hinton JJ.
[18] R v Tsonis (2018) 131 SASR 416 at [75] per Lovell, Doyle and Hinton JJ.

When giving a defendant credit for time served by adopting the approach of reducing the head sentence and then fixing a non-parole period by reference to the head sentence, the time spent in custody is directly deducted from the head sentence but not from the non-parole period. When adopting this approach, the deduction for time served is diluted so far as the non-parole period is concerned. Only a proportion flows through to the non-parole period. For example, in the case of a 75 per cent non-parole period, only 75 per cent of it flows through; and in the case of a 50 per cent non-parole period, only 50 per cent of it flows through.
In R v Malesevic (‘Malesevic’),[19] Doyle CJ (with whom Bleby and Wicks JJ agreed) accepted that this approach is permissible. However, his Honour emphasised that because it would otherwise result in lesser credit being given for time served, this was a matter that must be borne in mind when setting the non‑parole period.[20] Relying upon an observation by King CJ in The Queen v Creed,[21] Doyle CJ noted that this approach may warrant a ‘somewhat different’ (that is, lower) non-parole period as a proportion of the head sentence.[22]
[19] [1999] SASC 321; (1999) 204 LSJS 32.
[20] R v Malesevic [1999] SASC 321 at [37]-[38]; (1999) LSJS 36 at 5-6.
[21] (1985) 37 SASR 566 at 568.
[22] R v Malesevic [1999] SASC 321 at [38]; (1999) 204 LSJS 36 at 6.
As Doyle CJ said:[23]
I agree that the approach taken by the District Court judge means that a lesser credit may have been given against the non-parole period for time in custody and on home detention bail, than would have been given on the approach that counsel submits should be taken.
However, I do not agree that a sentencing judge is obliged to take the approach advocated by counsel for the appellant. The fixing of a non-parole period is a distinct step in the sentencing process. It requires the consideration of a number of factors that are equally relevant to the fixing of the head sentence, but as is well known it allows for greater scope to be given to factors personal to the offender: see, for example, The Queen v Creed (1985) 37 SASR 566 and Pight v The Queen (1995) 64 SASR 215. If the Court is giving credit for time spent in custody, as it usually would, it is appropriate for the Court to bear in mind that the extent of the credit given will depend upon whether the period for which credit is given is deducted from the head sentence and the non-parole period, or only from the head sentence and before a non-parole period is calculated. However, in my opinion it cannot be said that the approach advocated by counsel for the appellant is necessarily the correct one and must be adopted. For example, I note that in R v Creed at 568 King CJ referred to the fact that the proportion of the non-parole period to the head sentence was somewhat different if one took into account the period that the offender had spent in custody in that case.
The final issue for the sentencing judge in the sentencing process is the fixation of an appropriate non-parole period, taking into account all of the circumstances relevant to that process, and also bearing in mind any time already spent in custody. As long as the judge makes proper allowance for time spent in custody, complaint cannot validly be made on the basis that the judge failed to take one approach rather than the other to the fixation of the non-parole period. The important thing is that the non-parole period reflect the gravity of the crime, as well as the other matters that should be taken into account: see R v Creed (above). It is permissible, and usually simpler and more convenient, to fix the non-parole period in relation to the final head sentence arrived at, rather than to fix a notional non-parole in relation to a notional head sentence, and then to make deductions from each of them.
[23] R v Malesevic [1999] SASC 321 at [37]-[39]; (1999) 204 LSJS 36 at 5-6.
In Malesevic, Doyle CJ held that the sentencing Judge, in fixing the non-parole period, did not adequately consider the question of whether some allowance should be made for time served in custody. Accordingly, Doyle CJ held that the non-parole was too high a proportion of the head sentence, bearing in mind the time served in custody.[24]
[24] [1999] SASC 321 at [47]; (1999) 204 LSJS 36 at 8.
Courts have in recent times emphasised that in situations where it is not possible to backdate a sentence and the sentencing Judge reduces the sentence for time served, it is generally preferrable to fix a head sentence and non-parole period and then reduce both for time spent in custody.[25] This approach allows for an explicit reduction from both the head sentence and non-parole period for time served by an exact period, which better reflects that a person has actually spent that time in custody. It also allows for transparency in the sentencing process so there can be no sense of grievance by a defendant that the time served has not properly been accounted for in the non-parole period.
[25] R v Hudson (2016) 125 SASR 171 at [26] per Nicholson J (with whom Parker and Lovell JJ agreed); R v Tsonis (2018) 131 SASR 416 at [71] per Lovell, Doyle and Hinton JJ.
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.
We grant permission to appeal but dismiss the appeal.