DPP v Ibrahimoff [2001] VSCA 46

7. In order to bring everything together in a single judgment I shall begin by setting out again much of what appeared in the judgment I gave on 8 December 2000, when the Court determined what form of order it should make in allowing an appeal against sentence by Ismail Hasan Ibrahimoff.

10. Ibrahimoff had been sentenced in the County Court on 3 April 2000 to ten years' imprisonment with a non-parole period of eight years after pleading guilty to trafficking in heroin between 19 February 1999 and 24 March 1999. He was at the time of the passing of that sentence undergoing a sentence of two years' imprisonment with a non-parole period of eight months which resulted from the dismissal by the County Court on 20 March 2000 of an appeal taken by him against the sentence imposed by the Magistrates' Court on 29 July 1998. At the time of the passing of sentence by the Magistrates' Court there was no pre-sentence detention to be taken into account and, since bail pending appeal was granted, there was no pre-sentence detention to be taken into account at the time the County Court disposed of his appeal to it.

13. The County Court judge in respect of whose sentence the application to this Court was made was aware of the sentence of two years' imprisonment which Ibrahimoff was undergoing. In passing sentence on 3 April 2000 he sentenced Ibrahimoff to ten years' imprisonment with a non-parole period of eight years, declared that the sentence passed by him was cumulative upon the sentence which the prisoner was undergoing and made a declaration of 369 days' pre-sentence

detention; other orders not presently relevant were made. Ibrahimoff had been in custody ever since his arrest on 24 March 1999 in relation to the trafficking offence. By the time of the dismissal of the appeal to the County Court (20 March 2000) he had been in custody for 362 days. The judge from whose sentence Ibrahimoff wished to appeal to this Court determined that he should not declare as part of the pre-sentence detention the period of time served as a sentenced prisoner (which period commenced on 20 March 2000), but by an evident slip calculated that period only down to the date of the hearing by him of the plea (27 March 2000), not the date on which he passed sentence (3 April 2000). As a result he declared 369 days' pre-sentence detention, not the period of 362 days which it was evidently his intention to declare.

17. His Honour failed to fix a new, single non-parole period as required by s.14 of the Sentencing Act 1991. The Crown conceded that this was an erroneous failure and did not advance argument against the view that in any event the sentence was manifestly excessive.

20. The Court as presently constituted determined that Ibrahimoff had to be resentenced and that this sentence should be one of seven years' imprisonment, which should be cumulative as to five years nine months upon the sentence which he was undergoing, so as to give a total effective sentence of seven years nine months. We also determined that the appropriate new, single non-parole period was one of five years' six months and we proposed to direct that the new non-parole period be the period expiring on 3 October 2005, that being the date which was five years six months after the passing of the sentence under appeal. This proposal was formulated on the footing that the Court which fixes a new non-parole period under s.14 should fix one which will take effect from the date of the sentence which it passes[1] and that, since substituted sentences passed by the Court of Appeal, in the absence of an express or implied statutory provision to the contrary, operate from the date of the original sentence[2], we should fix a new, single non-parole period on the basis that it would have effect from the date of the sentence we were setting aside. Ibrahimoff's counsel then suggested to us that if, as proposed, we fixed a new, single non-parole period expressed as the period which expired on a specified date, calculated by reference to the date of the sentence set aside[3] and the length of the desired new non-parole period, this might have the effect of depriving the applicant of the benefit of "emergency management days". These are something dealt with by s.58E of the Corrections Act 1986 and reg.70 of the Correction Regulations 1998, the effect of which is that a sentence of imprisonment or a non-parole period may be reduced by the number of emergency management days granted by the Secretary to the Department of Justice. Counsel invited us to take judicial notice of the fact that industrial disputes and other emergencies in the prisons cause "lock downs" from time to time, where prisoners are confined to their cells for 24 hour periods and referred to a practice of ordinarily crediting prisoners with emergency management days in consequence of this. The Crown accepted that the form of order we proposed might be regarded as depriving the applicant of the benefit of emergency management days.

23. In these circumstances, we thought it preferable not to specify an expiry date for the new non-parole period but to specify a period - five years six months - and a commencing date - the date of the original sentence.

26. The second question dealt with at that stage related to the number of days of pre-sentence detention which this Court should declare. We were of course concerned with detention both before and after the sentence we were setting aside: R. v. Jennings[4]; the amendment made to s.18(1) of the Sentencing Act by Act No. 10/1999, s.18, introducing the words "(including a period pending the determination of an appeal)". The case was unusual, in that, between 20 March 2000, when his appeal to the County Court was dismissed, and 3 April 2000, when the sentence the subject of the application for leave to appeal was imposed, the applicant was in fact undergoing sentence for the offence for which he was originally sentenced on 29 July 1998. We considered that the judge was right in seeking to exclude from his declaration the period from 20 March 2000, when the applicant had begun to serve another sentence, and 3 April 2000, when his own sentence was passed: R v. Broad[5]. We accordingly determined to make a declaration covering all detention between the arrest and the then present day (8 December 2000), except for the fortnight immediately preceding the sentence below. On 8 December 2000 the appeal was allowed, the sentence below was set aside and in lieu thereof Ibrahimoff was sentenced to be imprisoned for seven years. We directed that five years nine months of the sentence of seven years be served cumulatively upon the sentence which Ibrahimoff was presently undergoing, giving a total effective sentence of seven years nine months' imprisonment. We fixed a new, single non-parole period of five years six months, to have effect from the date of the sentence set aside, that is, 3 April 2000. We declared that 612 days was the period to be reckoned as already served under the sentence.

29. Against this background the matter came before the Court again on 5 April on an application by the Director of Public Prosecutions under s.18(7) of the Sentencing Act 1991 for the correction of the declaration made by the Court on 8 December 2000 concerning pre-sentence detention. This application was the result of doubts expressed by the Central Records Office of the Correctional Services Commissioner. Mr Ward, the manager of the Central Records Office, was good enough to attend and explain the difficulty he felt about the effect of what the Court had done. This did not relate in any way to the arithmetical calculation made by the Court or to its determination to exclude from its declaration of pre-sentence detention the period between 20 March and 3 April 2000, when Ibrahimoff was in custody as a sentenced prisoner. The Central Records Office had not been supplied with a copy of the reasons for decision given by this Court on 8 December. Mr Ward only received what he described to us as "a note on the file" and "the back sheet". I take these both to be references to a copy of the endorsement made by the associate in the usual way on the file in the application for leave to appeal against sentence, being an endorsement which sets out the order made on 8 December. (I take it that this was the document of which Mr Ward was speaking, rather than the calendar proffered to the associate for completion so that those having the custody of an applicant or appellant will have a record of the order.) From what he read in the indorsement Mr Ward gained the impression that the Court intended that Ibrahimoff should be credited with the 612 days' pre-sentence detention declared by treating that as having accrued by the date of the County Court sentence (3 April 2000). He presented to us calculations showing that on this basis, allowing for the twelve emergency management days to be credited, Ibrahimoff would become eligible for release on parole in January 2004 and would have served the total effective sentence by April 2006, whereas if regard was to be had to the period of pre-sentence detention actually accrued by 20 March 2000 (and still taking emergency management days into account) he would not become eligible for release on parole until September 2004 and would not have served his total effective sentence until December 2006. The difference between the two calculations, both as regards expiration of the non-parole period and service of the sentence, is of course accounted for by the period of about eight months' imprisonment served by Ibrahimoff between the date of the County Court sentence and the date on which that sentence was set aside by this Court and Ibrahimoff was resentenced.

32. I am not concerned, just as Mr Ward made it clear, in explaining his position to the Court, that he was not concerned, with minor errors, although I do not think that there is any difference between members of the Court on the one hand and Mr Ward on the other with regard to the calculation of pre-sentence detention in this case. He is correct when he says that Ibrahimoff is not to be credited with 612 days (or any substantially identical period) of pre-sentence detention as having accrued by the date of the County Court sentence. But it was never the intention of this Court that such a credit should be given, nor do I think that the order of the Court of 8 December 2000 will, by reason of any of its provisions, have that effect. Mr Croucher, in his helpful submission on behalf of Ibrahimoff, said that, while he would be happy to see his client receive the benefit of an extra eight months off his non-parole period and sentence, the substituted sentence pronounced by the Court did not require what both he and Mr Ward described as "double counting" in the sense that the period between 3 April 2000 and 8 December 2000 was to be brought to account, not only as time served under the sentence, but also as additional pre-sentence detention accrued by the former date. The 612 days' pre-sentence detention declared by the Court had reference, in the usual way, to the whole period of pre-sentence detention (other than the period from 20 March to 3 April) between the arrest on 24 March 1999 and the order of this Court on 8 December 2000. Pre-sentence detention, as it is commonly called, includes detention pending the determination of an appeal, as was laid down in Jennings and has now been recognised by the amendment made to s.18(1) of the Sentencing Act. Since Jennings, it has been clear that pre-sentence detention should be calculated on appeal down to the date of determination of the appeal and this has, as I have said, since been confirmed by statute. At the same time, Jennings establishes that, unless there is some applicable express or implied statutory provision to the contrary, a substituted sentence passed by the Court of Appeal operates from the date of the original sentence. There is thus what might be thought to be an anomaly: in allowing an appeal, the Court passes a substituted sentence which operates from the date of the original sentence but goes on to bring what is commonly called pre-sentence detention up to date. It is required to make a declaration about pre-sentence detention and, quite apart from Jennings, the words inserted since that decision into s.18(1) require it to include any period of detention pending the determination of the appeal. But, in making its order when it allows an appeal, and in making an up-to-date declaration of pre-sentence detention, the Court always acts upon the basis that the correctional authorities will understand that all it is doing, in bringing pre-sentence detention up to date, is recording the period of detention between the sentence set aside and the date of the order of the Court of Appeal. Sometimes it is necessary to do more than make an arithmetical calculation, since the Court may have to be informed of the date on which an applicant or appellant was released on bail pending appeal, so as to reduce the period to be declared. In addition, on occasions when the Court makes its up-to-date declaration of pre-sentence detention it takes as its starting point (by which I mean the period of detention up to the time of the sentence set aside) a different figure to that used by the judge, it having become common ground that the judge was misinformed or for some other reason made a mistake.

35. Now that Mr Ward has informed us that the reasons of the Court in disposing of applications and appeals do not automatically go to his office, I can understand the difficulties which may be encountered in understanding how this Court has arrived at the period declared. For, as I have said, that period may be affected by release on bail pending appeal or by the correction of an error made by the judge or by both. I think it desirable that Mr Ward's office receive a copy of the reasons for decision on all sentence appeals except those which result in a simple dismissal.

38. Perhaps I could usefully summarise the views I have expressed:

* Jennings establishes that substituted sentences passed by this Court operate from the date of the original sentence. * This rule is liable to be displaced by an express or implied statutory provision to the contrary. (Jennings gives the example of a community-based order made on appeal.) * Where the Court of Appeal resentences by imposing a term of imprisonment or a period of detention falling within s.18(1), it is required by s.18(4) to declare pre-sentence detention, and, since Jennings and especially since the amendment made to s.18(1), any such declaration must include custody pending the determination of the appeal. * * But this does not mean that pre-sentence detention declared by the Court of Appeal in respect of the period between the date of the sentence set aside and the date of its own order is to be treated as pre-sentence detention that had accrued by the time of the original sentence. All that the Court is doing, to the extent that its declaration deals with custody after the date of the sentence set aside, is recording the period which, on the information available to it, has actually been served between the sentence set aside and the date of its own order. * A practice should be instituted whereby a copy of the Court's reasons for decision on all sentence appeals is sent to the Central Records Office of the Correctional Services Commissioner. The only exception should be appeals which are simply dismissed.

42. In the circumstances no order is necessary on the present application and I would only record our indebtedness to Mr Ward and Mr Croucher.

47. I have had the advantage of reading in draft the reasons prepared by Brooking, J.A. for disposing of this application. I agree in them.

[1] R. v. Denysenko [1999] VSCA 106.

[2] R. v. Jennings [1998] VSCA 69; [1999] 1 V.R. 352.

[4] [1998] VSCA 69; [1999] 1 V.R. 352.

[5] [1999] VSCA 149; [1999] 3 V.R. 31.