Tong v Police
[1998] SASC 6813
•27 August 1998
TONG v POLICE
[1998] SASC 6813
Magistrates Appeal
Bleby J
This is an appeal against a number of sentences of imprisonment imposed on the appellant in the Magistrates Court of South Australia, which sentences, totalling three months and fourteen days, were directed to be served cumulatively from the date on which the sentence was passed, namely 23 June 1998. On 13 August I allowed the appeal and directed that the sentences should commence as from 24 April 1998. I indicated that I would publish reasons for that decision. These are those reasons.
There were four groups of offences for which the appellant was sentenced on 23 June. In chronological order, the first was an offence of receiving stolen property committed on 19 August 1996 (“the 1996 receiving offence”). For that offence the magistrate imposed a sentence of imprisonment of fourteen days. The second group of offences occurred on 16 November 1996 and comprised driving an unregistered vehicle, driving an uninsured vehicle, driving whilst not holding a current driver’s licence and driving a vehicle contrary to a defect notice (“the 1996 vehicles offences”). For those offences the magistrate imposed a fine of $400 which, together with the criminal injuries compensation levy, court costs and prosecution costs resulted in a total payment required of $622. The third group of offences occurred on 3 February 1998. They consisted of driving whilst disqualified from holding or obtaining a driver’s licence and failing to answer questions of police (“the February 1998 vehicle offences”). For these two offences the magistrate imposed a penalty of one month imprisonment. The fourth group of offences comprised driving a vehicle whilst disqualified from holding or obtaining a driver’s licence, driving an unregistered vehicle, driving an uninsured vehicle and failing to answer questions of police. These all occurred on 24 April 1998 (“the April 1998 vehicle offences”). For these offences the magistrate imposed a penalty of two months’ imprisonment. Each period of imprisonment was directed to be cumulative upon the other, making a total period of three months and fourteen days imprisonment. The magistrate directed that they be served from the date of sentence, namely 23 June 1998.
The appellant had been taken into custody on 24 April 1998, the date of the April 1998 vehicle offences. He had been in custody continuously until the date of his sentence, namely a period of two months. The sentencing magistrate was asked to backdate the sentence to that date. The magistrate declined to do so. He noted that a great many fines had been imposed on the appellant for numerous offences, and the magistrate had been told that warrants for imprisonment in default of payment of those fines had been executed. In the course of his sentencing remarks the magistrate said:
“It has been put to me I should back‑date that sentence from the date you came into custody. In normal circumstances where a person has been on remand awaiting sentence that would be the case, however in your case, during that two months, you have in fact been serving time for those outstanding fines, and while I do not intend to postpone the sentence to the end of the outstanding fine periods and have them commence immediately, I am not prepared to back‑date them which would be the effect of annulling them and you serving no time for the non‑payment of fines.”
The magistrate did not, in the course of his sentencing remarks, fix a date for the commencement of the sentence, but the endorsement on the respective summonses confirms the magistrate’s apparent intention, in that the sentence for the 1996 receiving offence was to commence “forthwith”, and the other sentences were each expressed to commence on the completion of the previous sentence.
The appeal does not challenge the length of the sentences imposed, standing alone. The appellant argues that the commencement of the sentences should have been backdated to 24 April, or alternatively that the two months spent in custody prior to sentence should have been taken into account in fixing the length of the sentences. It is also alleged that the magistrate erred in holding that to backdate the sentences would be to annul the reduction under s69 of the Criminal Law (Sentencing) Act 1988 of the fines owed by the appellant in respect of which warrants had been issued and executed under s61 of the Criminal Law (Sentencing) Act.
I received an affidavit on behalf of the appellant in which it is said that in submissions on sentence put to the magistrate it was suggested that the appellant had been in custody since 24 April 1998 as a result of the execution of the warrants issued under s61 of the Criminal Law (Sentencing) Act for the non‑payment of the fines. However, whilst additional material placed before me by consent shows that all outstanding warrants for unpaid fines were executed on 24 April 1998, and that the period in custody since then has had the effect of reducing the amount of the outstanding fines under s69(1) of the Criminal Law (Sentencing) Act, the fact of the matter is that the appellant was brought before the Holden Hill Magistrates Court on 24 April 1998 in respect of the 1996 receiving offence and in respect of the April 1998 vehicle offences. On that day he applied for bail but was refused. The relevant part of the endorsement on the summons reads:
“Bail App for - Opposed
Refused
1. Serious offences
2. Failing to comply previously
3. $9,000 worth of fines”
The appellant was remanded in custody on that date until 28 April. He continued to be remanded in custody on a number of dates between 28 April and the passing of sentence on 23 June. At various times during the course of that period the summonses concerning the 1996 vehicle offences and the February 1998 vehicle offences were also listed concurrently.
It appears that on each occasion the appellant was remanded in custody for the offences for which he was then being charged. It is significant that he was brought before the court and remanded in custody on 24 April and on subsequent dates. The remand in custody can only have related to the offences then before the court. If the appellant had merely been arrested on the warrants for the unpaid fines, there would have been no need for him to have been brought before the court at all for the purpose of being remanded in custody. He would have been in lawful custody anyway unless and until the fines were paid and the appellant released under s69(3) of the Criminal Law (Sentencing) Act or unless the fines were in the meantime remitted under s68 or allowed to be worked off by performing community service under s67 of the Act. In my opinion it is clear that the orders were made refusing bail and on each occasion remanding the appellant in custody in respect of the offences before the court, whatever other justification there may have been for detaining the appellant in custody pursuant to the warrants. If it were otherwise, there would have been no need for the orders remanding him in custody.
Section 30 of the Criminal Law (Sentencing) Act relevantly reads:
“30. (1) Where a court imposes a sentence of imprisonment and does not suspend the sentence, the court must specify the date on which, or the time at which, the sentence is to commence or is to be taken to have commenced.
(2) Where a defendant has been in custody in respect of an offence for which the defendant is subsequently sentenced to imprisonment, the court may -
(a)............. make an appropriate reduction in the term of the sentence, having regard to the period for which the defendant has been in custody;
or
(b) direct that the sentence be taken to have commenced on the day on which the defendant was taken into custody.
.....”
But for the effect of the executed warrants, there can be no doubt that the magistrate should have and probably would have backdated the sentences to commence from 24 April. In my opinion he should have done so, notwithstanding the warrants.
It would have been open to the sentencing magistrate, on any of the remand dates, to have determined that the appellant be released on bail in respect of these offences if he thought it appropriate to do so. However, that would not have ensured his release from custody on the warrants, and it would have been quite clear then that the appellant was being detained solely under the warrants and not in respect of the offences with which he was then charged. However, the sentencing magistrate, in his wisdom, decided not to do that. That was no doubt to ensure that the payment of the outstanding fines or other steps which might be taken to reduce the period of imprisonment under the warrants would not enable the appellant to be released from custody. Having taken that course, in my opinion the magistrate was obliged by s30(2) of the Criminal Law (Sentencing) Act to consider the effect that the period of custody from 24 April to 23 June should have on the sentences to be fixed, and whether they should be backdated. He did not do so, and specifically declined to do so when requested by the appellant’s counsel. He fixed a series of cumulative sentences to commence from 23 June thereby failing to take into account the previous period in custody in respect of those offences.
The respondent submits that it was not necessary for the magistrate to take account of that period because he was in custody for another sentence or for another purpose. The respondent relies on a dictum of Perry J in Bonney v S.A. Police (1996) 185 LSJS 185. In that case the defendant was sentenced by a magistrate to 11 months’ imprisonment, after the magistrate had made allowance for one month already spent in custody at the date of sentence. In other words, he imposed a notional penalty of twelve months. But for one matter to which I am about to refer, that sentence was held not to be excessive. During the long period leading to that appellant’s conviction and sentence, the magistrate had allowed a period of one month pursuant to s30(2) of the Act. In fact, the appellant had been detained in custody for fifty-nine days on account of the charges in question and for a further forty-four days on both the charges in question and on unrelated charges. Perry J held that the magistrate had erred in not taking into account the fifty-nine days, and held that “some recognition” should be given to the forty-four days. In the end, he considered that a sentence of nine months was appropriate, thereby allowing approximately two months’ credit for the time spent in custody for that offence and one month in respect of the forty-four days for which he was remanded on that and the other offences. None of the periods in question in that case comprised a sentence of the court. All periods were spent on remand, and were therefore liable to cancellation. In the course of his reasons, however, Perry J said, at pp191-192:
“However, if, for example, he had been serving a term of imprisonment for forty-four days and that term coincided with or overlapped a period during which he was on remand for the offence in question, I do not think that it would be proper to give any credit for the time spent serving some other term. But where the period on remand is referrable to separate orders made in separate matters that the appellant be remanded in custody, I think that the words in s30(2)(a) ‘appropriate reduction’ mean that, without allowing the full period on remand as a credit in both matters, there is no reason why some recognition should not be given to that period.”
I respectfully agree with Perry J that where the period on remand overlaps with a period of sentence fixed by the court for some other offence, it should not be brought into account. That is because the dominating custodial factor is that for which the court has passed sentence. Nothing can prevent that sentence of imprisonment from continuing during a non‑parole period. An order for remand in custody or an order for bail pending the hearing becomes irrelevant for so long as that other sentence remains. It cannot be said, for the purposes of s30(2) of the Act, that the defendant is in custody in respect of an offence for which he is subsequently sentenced. In this case, however, any period of custody pursuant to the warrants for non‑payment of fines was not necessarily the dominating influence. It was capable of cancellation under certain conditions within the power of the appellant or someone acting on his behalf. The only factor which ensured that the appellant remained in custody were the several orders that he be remanded in custody. In those circumstances, it can be said that he was in custody in respect of the offences for which he was subsequently sentenced. Nothing could have changed that.
In Bonney’s Case the forty-four day period for which some recognition was given occurred as a result of concurrent orders for remand which were of equal standing. It was therefore appropriate that the court should allow some recognition for that period in the sentence which it fixed.
I therefore conclude that the sentencing magistrate erred in failing to consider the previous period in custody in fixing the term or commencement time of the sentence which he imposed. It was possible in this case for the sentence to be backdated rather than reduced, and in those circumstances it was desirable that that should be done so that the penalty recorded would more accurately reflect the court’s assessment of the appropriate penalty. See R v Pahuja (No 2) (1989) 50 SASR 551. In my opinion the cumulative sentences imposed by the magistrate should have been backdated to 24 April 1998, and the appeal was allowed to enable that to occur.
There is nothing in the Criminal Law (Sentencing) Act to prevent the sentences from being served concurrently with the default imprisonment under the warrants. It may be that accumulation of such periods is not possible under the present legislation. I do not need to decide that in this case.
On my calculation the combined sentences expired on 7 August 1998. However, that did not mean that the appellant should then necessarily be released, because the period to be served under the warrants had not then expired. It would appear that that period has been running since 24 April, concurrently with the sentence the subject of the appeal.
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