Were v Police - [2011] SASC 134

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
WERE v POLICE
[2011] SASC 134
Judgment of The Honourable Justice Anderson
19 August 2011
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - COMMENCEMENT
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TIME SPENT IN CUSTODY
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - APPROACH TO SENTENCING PROCESS
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - POWERS AND PRACTICE OF COURT ON HEARING
Appeal against sentence - appellant pleaded guilty to contravening a domestic violence restraining order, breach of bail, property damage and assault - whether sentencing procedure adopted by the magistrate is sufficiently transparent - whether sentence should be backdated to the time when the appellant was taken into custody in order to enable the extent of the penalty to be clearly understood.
Held: Appeal allowed - not clear from the magistrate's reasons the starting point for the head sentence, the discount given for the plea of guilty and the extent to which the time spent in custody was taken into account - sentence should be backdated to the time when the appellant was taken into custody - matter to be remitted to the magistrate for re-sentencing.
Criminal Law (Sentencing) Act 1988 (SA) s 9A, referred to.
Trotta v Police [2008] SASC 16; R v Sansbury [2010] SASCFC 8; R v Pahuja (No 2) (1989) 50 SASR 551; Frank v Police (2000) 77 SASR 273; R v Becker [2005] SASC 186, applied.

WERE v POLICE
[2011] SASC 134
Magistrates Appeal: Criminal
ANDERSON J.
Introduction

The appellant appeals against the methodology adopted by the sentencing magistrate in imposing a sentence of imprisonment for the offences of breaching a domestic violence restraining order, breach of bail, property damage and assault.
All of the offences were committed on 31 December 2010. The appellant also admitted breaching a suspended sentence bond, the result of which breach was that he was required to serve one month’s imprisonment.
The sentencing remarks of the magistrate do not make clear, or sufficiently transparent, the methodology employed by the magistrate in imposing his sentence.
The sentencing remarks
Because they are brief I set out the sentencing remarks in full.
1You have pleaded guilty and it is to your credit that you have pleaded guilty to contravening a domestic violence restraining order, breach of bail, property damage and one count of basic assault. You have also acknowledged that your behaviour placed you in reach of a condition of a bond attached to a suspended sentence of one month’s imprisonment.
2You should not have gone to that place at all because a domestic violence order prohibited that. You went there. You were released on bail with a condition that you comply with the restrictions placed upon you by the domestic violence restraining order.
3If there had been any doubt in your mind about the domestic violence restraining order, whether it was still in existence, that doubt surely would have been removed when you accepted bail conditions that referred back to the domestic violence restraining order. By then, at the latest, you knew that the law said you were not to go back to those premises, but you did. Not only did you go back there, but you trashed the place and caused damage to a motor vehicle in which Janette had an interest.
4You have consistently shown an attitude of complete contempt for orders made by courts for the security and peace of mind of others and for their right to the protection of the law.
5I am sorry to hear of your disadvantaged and unhappy childhood. I am dismayed to hear of the suggestion that you have been the victim of sexual abuse and I understand that those experiences have left you in a state of despair and isolation.
6The courts and the community are not as unsympathetic as you might think. The courts in particular have developed, over the last ten or fifteen years, a number of diversionary programs to assist people who have suffered as you have, to find a fulfilling life within the community. To put it simply, for us to co-operate with you have to be ready to co-operate with us. I cannot see anything before me that suggests that you are.
7I order that the suspension of the sentence of one month imprisonment be removed and that sentence is to come into effect forthwith. I take into account you have already been in custody for four months. On the four counts to which you have, to your credit, pleaded guilty I impose a further penalty of eight months imprisonment cumulative upon the one month. There is no good reason to suspend that sentence.
The magistrate indicates that it is to the appellant’s credit that he pleaded guilty. His Honour also indicates that he took into account in sentencing the time the appellant had already spent in custody, namely, four months, but he does not say to what extent he took this into account. I was told in the appeal hearing that the actual time spent in custody was 4 months and 8 days and not the 4 months mentioned by the magistrate.
His Honour does not indicate what his starting point was in sentencing the appellant and does not indicate what deduction he allowed for the plea of guilty.
He then imposes a penalty of 8 months imprisonment cumulative upon the 1 month from the suspended sentence.
His Honour did not backdate the sentence and the appellant complains that in the circumstances the sentencing was artificial and the true extent of the penalty was not obvious.
Sentencing procedure
It must be pointed out that the decision whether or not to reduce a sentence for time spent in custody is discretionary: see Trotta v Police [2008] SASC 16. Normally, however, such a reduction should be made: see R v Sansbury [2010] SASCFC 8 per Doyle CJ at [19]. It is usual practice to allow a reduction in sentence equal to the length of time served: see Trotta.
In R v Pahuja (No 2) (1989) 50 SASR 551 the court held that it was preferable to backdate the sentence rather than to reduce it for the time already spent in custody to enable the extent of the penalty to be clearly understood.
Unless there are special circumstances a sentence should be backdated to the time when the accused was taken into custody: see Frank v Police (2000) 77 SASR 273.
The court has also indicated that the sentencing judge should indicate what discount has been allowed for a plea of guilty. The appellate court must be able to examine the reasoning of the sentencing judge or magistrate from the sentencing remarks so that it may properly perform its appellate duties: see R v Becker [2005] SASC 186.
Discussion
As can be seen from the reasons, it is very difficult to ascertain what exactly the magistrate has done.
On the hearing of the appeal Mr Talbot for the appellant argued that I should remit the matter to the learned magistrate for re-sentencing. He did not submit that the sentence was manifestly excessive. He submitted that his client was entitled to understand the nature and basis of the term of imprisonment imposed.
Ms Litster for the respondent conceded that the sentencing remarks lacked in transparency. She indicated that she had no opposition to the matter being referred back to the magistrate for more detailed sentencing remarks.
There was also an issue as to whether the magistrate should have held a hearing pursuant to s 9A of the Criminal Law (Sentencing) Act 1988 (SA) to rectify the sentencing errors. The magistrate took the view that it was not necessary to do so and that these matters could be raised on appeal. That is a matter for the magistrate’s discretion and I make no further comment on that. In the end result, it may have avoided the matter being sent back if the magistrate had dealt with the point at the time.
Conclusion
Accordingly the order of this Court is that the appeal be allowed for the purpose of making an order that the matter be remitted to the magistrate for re-sentencing.
The magistrate should indicate his process of reasoning as to:
(i)     the starting point for the head sentence;
(ii)    the discount allowed for the plea of guilty; and
(iii)   how much of the time in custody was taken into account.
He should also backdate the sentence.
I will deal with the matter further if required after the magistrate has produced his further sentencing remarks. Hopefully that will not be necessary.