Tong v Police

The case of Tong v Police involves an appeal by the appellant, Tong, against the sentences of imprisonment imposed on him by the Magistrates Court of South Australia. The sentences, which totaled three months and fourteen days, were to be served cumulatively from the date they were passed, 23 June 1998. Tong was already in custody from 24 April 1998, the date of the latest offences, and his appeal sought either a backdating of the sentences to 24 April or a reduction in the length of the sentences to account for the time already spent in custody. The appeal was allowed by Bleby J, who directed that the sentences should commence from 24 April 1998.

The key legal issues in the case revolved around the interpretation and application of section 30 of the Criminal Law (Sentencing) Act 1988, which mandates that a court must specify the commencement date of a sentence of imprisonment unless it is suspended. The appellant argued that the magistrate should have backdated the sentences to 24 April or reduced the sentences to account for the time spent in custody prior to sentencing. The respondent contended that the magistrate had the discretion to decide whether to consider the time spent in custody and had exercised that discretion not to do so.

The court found that the magistrate had erred in not considering the previous period in custody when fixing the sentence. The court reasoned that while the appellant was in custody pursuant to warrants for unpaid fines, the remand orders made by the magistrate for the offences in question meant that the appellant was in custody for those offences. The court held that the magistrate should have either backdated the sentences or reduced them to account for the time spent in custody, and that the sentences should have commenced from 24 April 1998. The court allowed the appeal to rectify this error.

The final orders of the court were that the sentences imposed on the appellant should commence from 24 April 1998. The court did not need to decide whether the sentences could be served concurrently with the default imprisonment under the warrants, as the combined sentences expired on 7 August 1998, but the appellant remained in custody under the warrants.