Stehbens v The King

[2025] SASCA 16

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

STEHBENS v THE KING

[2025] SASCA 16

Judgment of the Court of Appeal  

(The Honourable Justice Lovell, the Honourable Justice Bleby and the Honourable Justice David)

20 February 2025

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE

CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TIME SPENT IN CUSTODY AND QUASI-CUSTODY

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-PAROLE PERIOD OR MINIMUM TERM

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE

Following a trial without a jury, the appellant was found guilty of two counts of aggravated robbery. Prior to being sentenced, the appellant spent various periods of time on remand, both in prison and on home detention bail.

A total head sentence of six years’ imprisonment was imposed in respect of both offences. This was reduced by 11 months and 20 days, for time served in custody, to five years and 11 days’ imprisonment. Following this deduction from the total head sentence, a non-parole period of two years, nine months and six days was fixed.

The appellant appeals on two grounds: namely, the sentencing Judge failed to properly account for time spent in custody when fixing the non-parole period; and failed to provide any explanation for not doing so.

HELD by the Court, granting permission to appeal, but dismissing the appeal:

In the absence of explicit reference by the sentencing Judge to any reduction of the non-parole period for time served, specific error has been established.  However, having regard to the circumstances of the offending and the personal circumstances of the appellant, as well as the time served in custody, this Court would not impose a lesser sentence.

As a matter of sentencing practice, when reducing a sentence for time served in custody, the preferable approach is to fix both the head sentence and the non-parole period, and then reduce both for time spent in custody.

Criminal Law Consolidation Act 1935 (SA) s 137(1); Sentencing Act 2017 (SA) s 44(2), referred to.

R v Tsonis (2018) 131 SASR 416; Ribbon v The Queen [2022] SASCA 15, discussed.

Owens v The King [2024] SASCA 65; Burdon v The King [2023] SASCA 71; Kentwell v The Queen (2014) 252 CLR 601, considered.

STEHBENS v THE KING
[2025] SASCA 16

Court of Appeal – Criminal:    Lovell, Bleby and David JJA

1. THE COURT:     This is an appeal against sentence. On 15 December 2023, following a trial without a jury, the appellant was found guilty of two counts of aggravated robbery contrary to s 137(1) of the Criminal Law Consolidation Act 1935 (SA). The maximum penalty for each offence is life imprisonment.

2. On 29 April 2024, the sentencing Judge imposed a sentence of five years’ imprisonment for each offence and ordered that four years of the sentence for the second offence be served concurrently with the sentence for the first offence. This resulted in a head sentence of six years’ imprisonment which was reduced by 11 months and 20 days for time served in custody. Accordingly, a head sentence of five years and 11 days’ imprisonment was imposed.

3. The sentencing Judge fixed a non-parole period of two years, nine months and six days.

4. The head sentence and non-parole period was backdated to commence on 21 February 2023. 

5. The appellant now appeals against his sentence on the basis that the sentencing Judge failed to take into account the time spent in custody when fixing the non-parole period and did not provide any explanation for not giving the appellant full credit for the time served.

6. The appellant sought an extension of time to bring the appeal.

   The circumstances of the offending

7. Briefly, both offences occurred on 1 November 2021 within about two hours of each other and involved two co-offenders. The first offence occurred at around 5:30pm. The co-offenders attended the Woolworths supermarket at Gilles Plains wearing motorcycle helmets. One of the co-offenders entered the ‘staff only’ area and told the service operator he had a taser. He then proceeded to take two boxes containing cartons of cigarettes and razors, and with his co-offender, left the store through an emergency fire door. The appellant was waiting in a vehicle a short distance away. He drove the co-offenders from the store with the boxes of stolen goods. He was, in effect, the ‘getaway driver’.

8. Later that evening at around 7:45pm, the two co-offenders entered the Woolworths supermarket at Para Hills. They were again both wearing motorcycle helmets. One of the co-offenders produced a taser and appeared to activate it in front of the service operator. He then took a single box of cigarette cartons before he and his co-offender left the premises. The appellant was again waiting in the same vehicle a short distance away.  He drove the co-offenders from the store with the stolen goods.

9. On the same evening, around 50 minutes later, police stopped and searched the vehicle and located two cardboard boxes labelled ‘Gilles Plains’ and ‘Para Hills’. Following the search, the appellant was arrested and charged with the relevant offences.

   The appellant’s personal circumstances

10. At the time of sentencing, the appellant was aged 40 years. He is the father of two children, a son aged around 12 years, and a daughter who died from cancer at the age of two years.

11. The appellant was born and raised in Adelaide, as the third of four boys. His parents separated when he was around nine years of age and he initially lived with his father. The appellant alleged that he was physically and emotionally abused by his father whilst in his care. He later moved in with his mother until the age of 18, when he found her deceased at home.

12. The appellant has suffered from poor mental health since he was a teenager. At about the age of 14, he was threatened by another student with a knife, and he began hearing voices in his head at night. He also began using methylamphetamine provided by his father, as a way of managing his mental health.

13. He has been in receipt of a Disability Support Pension since the age of about 14 years and has not had any long-term employment.

14. In a psychiatric report dated 17 March 2022, Dr Raeside considered that the appellant has an underlying anti-social personality disorder and a substance use disorder. Dr Raeside described the appellant as having a history of trauma and instability, behavioural disruption at school and limited education, as well as ongoing poor frustration tolerance, difficulty with anger management, early onset of recurrent offending and a long history of methylamphetamine use.

15. The appellant has relevant antecedents. As an adult, he has prior convictions for the offences of aggravated assault by use of an offensive weapon, aggravated assault against child or spouse, theft and act likely to cause harm. His antecedents also reveal that he has demonstrated poor compliance with court orders by breaching bail on six occasions, breaching bonds on two occasions, driving under disqualification or suspension three times, breaching community service orders twice and breaching an intervention order on one occasion.

16. In relation to this offending, the appellant has spent various periods of time in custody and on home detention. The appellant was:

    ·remanded in custody for a period of 11 months and five days from 1 November 2021 to 6 October 2022;

    ·released on home detention bail for a period of one month, two weeks and three days from 6 October 2022 to 23 November 2022;

    ·remanded in custody for a period of 15 days between 23 November 2022 and 8 December 2022; and

    ·remanded in custody on 16 February 2023.

17. The appellant was sentenced to 13 days’ imprisonment on 22 February 2023 in respect of breaches of bail. That sentence was backdated to commence on 9 February 2023. Accordingly, the appellant has remained in custody on the aggravated robbery offences since 21 February 2023. He has also spent 11 months and 20 days in custody, referrable to these offences alone, prior to 21 February 2023.  

    The sentencing remarks

18. In proceeding to sentence, the sentencing Judge outlined the circumstances of the offending and the appellant’s personal circumstances in some detail, noting the appellant’s history of trauma, his considerable difficulties at school and his underlying anti-social personality disorder and substance use disorder.

19. His Honour referred to defence counsel’s submissions as to a lenient non‑parole period:

    Mr Stehbens, your counsel accepted that it is serious offending and did not make any submissions about suspension of the sentence or home detention. He submitted that I should consider a shorter than usual non-parole period due to your background and personal circumstances. He said that you were in contact with your partner and she is willing and wanting to support you. I am told you are motivated to rehabilitate yourself so that you can see your own child. I have taken all those matters into consideration.

20. The sentencing Judge then turned to impose sentence:

    Mr Stehbens, for count 1 aggravated robbery, I impose a sentence for five years imprisonment. For count 2, the second count of aggravated robbery, I impose a sentence of five years imprisonment. I order that four years of that sentence be served concurrently with a sentence imposed in relation to count 1. Resulting in a total sentence of six years for both counts.

    You were remanded in custody on 1 November 2022. Since then you have spent periods of time in custody and on home detention but you have remained in custody since 21 February 2023. I reduce your sentence by 11 months and 20 days for you [sic] time in custody because you did not observe the terms of that bail order. I would not give you any credit for time spent on home detention. That results in a total head sentence of five years and 11 days.

    In setting your non-parole period I have considered your personal circumstances and your prospects if rehabilitation. I fix a non-parole period of two years, nine months and six days backdated to 21 February 2023.

    The offending is far too serious to suspend. I do not consider it appropriate [for] you to serve your sentence on home detention.

    Appeal Grounds

21. On appeal, the appellant advances two grounds as follows:

    1.   The sentencing Judge when fixing the non-parole period, failed to properly take into account the time spent in custody when setting the non‑parole period.

    2.   The sentencing Judge, failed to deduct the period in custody from the non‑parole period in circumstances where the sentencing remarks fail to identify how, if at all, the time in custody was taken into account, in the setting of the non-parole period.

22. The effect of the appellant’s complaint, as articulated at the appeal hearing, is that the sentencing Judge erred by failing to reduce the appellant’s non-parole period for the time he spent in custody and failed to provide any explanation for not doing so. Instead, the appellant submits, his Honour reduced the head sentence by the relevant period of 11 months and 20 days to account for time spent in custody, and then fixed the non-parole period by reference to the head sentence without giving the appellant full credit for the time served.  

23. Under s 44(2) of the Sentencing Act2017 (SA), where 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 ‘make an appropriate reduction in the term of the sentence’ or ‘direct that the sentence will be taken to have commenced on the day on which the defendant was taken into custody’ or some other intermediate date. As was discussed in R v Tsonis[1] (in relation to s 30(2) the predecessor to s 44(2) drafted in the same terms), while the sentencing judge has a discretion whether to reduce the sentence for time spent in custody referable to the relevant offences, the sentencing practice is to give the defendant full credit for time served or to provide good reasons for the decision to depart from that practice.

    [1]     R v Tsonis (2018) 131 SASR 416.

24. In the present case, there was no dispute that the appellant was entitled to receive full credit for the time served in custody prior to his bail being revoked for the last time (namely, 11 months and 20 days), and that the sentence should be backdated to 21 February 2023. It was common ground that it was necessary, in the circumstances of this case, to both reduce the sentence for time served and backdate the sentence. This was so because the appellant had not remained in custody continuously since his arrest, had served some time on home detention (although he was ultimately not given any credit for that time) and some of the time he spent in custody was attributable to a sentence imposed for an unrelated offence.

25. When a sentencing judge reduces a sentence for time served in custody, the preferable approach is to fix both the head sentence and the non-parole period and then reduce both for time spent in custody. This approach explicitly acknowledges that both the head sentence and the non-parole period have been reduced for the precise length of time spent by a defendant in custody and provides transparency for all parties.

26. As this Court explained in Ribbon v The Queen (‘Ribbon’):[2]  

    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.

    [2]     Ribbon v The Queen [2022] SASCA 15 at [40] (Livesey P, Doyle and David JJA); see also Owens v The King [2024] SASCA 65 at [6] (Lovell, Doyle and David JJA), Burdon v The King [2023] SASCA 71 at [18]-[21] (Livesey P, Bleby and David JJA).

27. It is not necessarily an error 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 so long as the time served in custody is in fact taken into account when fixing the non-parole period.

28. Having regard to the whole of the sentencing remarks, we consider that there is some uncertainty as to whether the sentencing Judge reduced the non-parole period for all of the time spent in custody. We have reached that conclusion for the following reasons.

29. First, the sentencing Judge in his remarks made no explicit reference to having reduced the non-parole period for time served. While his Honour did refer to having considered the appellant’s ‘personal circumstances’ and ‘prospects of rehabilitation’ when fixing the non-parole period, he did not go on to indicate that the appellant’s personal circumstances included time served in custody or that he had reduced the non-parole period for all the time served, it being common ground between the parties that the appellant was entitled to full credit for time spent in custody.

30. In this regard, the present case can be distinguished from Ribbon, where the sentencing Judge made explicit reference to the fact that she had taken the time served into account when fixing the non-parole period, although she did not proceed to arithmetically deduct that period.

31. Secondly, contrary to the respondent’s submissions, the fact that the non‑parole period represents only 61 per cent of the head sentence (once time served is taken into account) is not necessarily indicative of the non-parole period having been reduced for all of the time served. It is to be accepted that the non‑parole period could be regarded as lenient given the appellant’s personal circumstances including his antecedents and previously poor compliance with court orders. Even so, in the absence of any explicit reference to a reduction to the non-parole period for time served, there remains an opacity to the sentencing remarks. It is simply not clear whether the non-parole period has been reduced on account of all the time spent in custody or by an undisclosed proportion of it.

32. In those circumstances, we consider that specific error has been established and the Court’s power to intervene and re-sentence is enlivened. However, having regard to all the materials before this Court as to the circumstances of the offending and the appellant’s personal circumstances, and after reducing both the head sentence and the non-parole period for the time spent in custody, we would not impose a lesser sentence.[3]

    [3]     Kentwell v The Queen (2014) 252 CLR 601.

33. To illustrate, we would have proceeded to sentence as follows. Like the sentencing Judge, we would impose a head sentence of five years’ imprisonment for each offence. Acknowledging that each offence was a separate incursion into crime, but bearing in mind the proximity in time between the two offences, we would order all but one year be served concurrently resulting in a head sentence of six years’ imprisonment. Taking into account the appellant’s personal circumstances including his compromised mental health, difficult upbringing and antecedents, and what we consider to be his limited prospects of rehabilitation given his numerous breaches of court orders and his relatively poor performance on home detention bail, we would fix a non-parole period of four years’ imprisonment. This is a higher proportion of the head sentence than the non-parole period imposed by the sentencing Judge. We would reduce the head sentence and non-parole period by 11 months, 20 days resulting in a head sentence of five years, 11 days with a non-parole period of three years, 11 days. We would backdate the sentence to commence on 21 February 2023.

34. It is evident from undertaking this sentencing exercise, that the sentence we would impose is in fact a higher sentence than that imposed by the sentencing Judge. Consequently, in the separate and independent exercise of our sentencing discretion, we do not consider that a lesser sentence is warranted, and for that reason we dismiss the appeal.

35. It is worth re-iterating once more that the better approach for sentencing judges, when taking into account time served, is to fix the appropriate head sentence and non-parole period and then reduce both for time spent in custody. This approach ensures transparency in the sentencing process and removes any perception in a defendant’s mind that time spent in custody has not been properly taken into account in fixing both the head sentence and non-parole period.  This is particularly so, in a case such as this, where the time served is not insignificant. Again, this Court discourages the approach adopted by the sentencing Judge in this case, which has been the subject of disapprobation in numerous recent authorities.  

    Proposed orders

1. We grant an extension of time to file the appeal notice; grant permission to appeal but dismiss the appeal.