Magistrates - Appeal from and control over magistrates - Tasmania - Motion to review - The hearing - Generally - Review of sentence - Account to be taken of a period held in custody on a related matter.

Sentencing Act 1997 (Tas), s16(1).

Judgment Number: [2005] TASSC 120

1 The applicant was sentenced in the court of petty sessions upon pleading guilty to:

* a charge of resisting a police officer in breach of the Police Offences Act 1935, s34B(1)(a)(i), in that on 18 June 2005 at Smithton he resisted three police officers in the execution of their duty, by charging at them and fleeing the scene.

* a charge of common assault in breach of the Police Offences Act, s35(1), in that on 30 August 2005 at Lileah he unlawfully assaulted Sasha Wilson by kicking her in the shins, by grabbing her by the hair and pulling it, and by wrestling her.

* three charges of breaching a bail requirement contrary to the Bail Act 1994, s9, in that he breached a condition of his bail that he not approach Sasha Wilson directly or indirectly: on 30 August 2005 by being at her residence; on 21 September 2005 by approaching her; and on 4 October 2005 by being at her residence.

2 The material put before the learned magistrate in the course of the sentencing hearing was to the effect that the applicant and Ms Wilson had been in a relationship for about four years. The relationship had not been without problems and on occasions had been marked by violence.

3 The charge of resisting a police officer arose from an incident that occurred on 18 June 2005 when police were called to a women's shelter where the applicant and Ms Wilson were arguing. The applicant was arrested. He resisted the three police officers in attendance by charging at them and fleeing the scene. As he departed he was sprayed with capsicum, this slowed him down and he was caught 150 metres up the road and taken into custody. He remained in custody until 13 July 2005 when he was released on bail, the terms of which included a condition that he not approach Sasha Wilson directly or indirectly.

4 The common assault charge arose from an incident which began in the early hours of the morning of 30 August 2005 when the applicant was asleep at Ms Wilson's residence. She woke him, they argued and the applicant kicked her in the shins. She responded by swinging a punch at him, but missed. The applicant packed his gear to leave. Ms Wilson followed the applicant outside where their argument was renewed, the applicant grabbed Ms Wilson's hair and pulled it and wrestled with her.

5 The three breach of bail charges arose because, notwithstanding the terms of the applicant's bail, he and Ms Wilson sought to renew their relationship and on the three occasions in question they met at Ms Wilson's instigation.

6 In the course of the sentencing hearing, which took place on 5 October 2005, counsel for the applicant asked the learned magistrate to note that in consequence of the incident on 18 June 2005, the applicant had been held in custody until 13 July 2005, that is, for 25 days. The only charge that had been proceeded with referable to that incident was the charge of resisting a police officer. The learned magistrate adjourned the sentencing of the applicant on all charges to 19 October 2005 and remanded the applicant in custody. When sentencing the applicant on 19 October 2005, after observing that the applicant had, over the years, shown himself to be contemptuous of the law, the learned magistrate said that he was, "of the view that a sentence of imprisonment is appropriate on most of these matters (but) there will in effect be three separate penalties". In expressing the view that a sentence of imprisonment was appropriate, the learned magistrate, in my view quite rightly, was making an observation in relation to the totality of the criminal conduct of the applicant that was before the Court. On the charge of resisting a police officer, the applicant was fined $200. On the charge of assaulting Ms Wilson, the applicant was sentenced to two months' imprisonment wholly suspended on various conditions and a probation order was imposed. On the three breach of bail charges, the applicant was sentenced to three months' imprisonment to date from 4 October 2005. In the course of his comments when sentencing the applicant, the learned magistrate made no reference to the period of 25 days for which the applicant had been held in custody.

7 The applicant has filed a notice to review, confined to the sentence of three months' imprisonment imposed for the three breach of bail charges. The ground of appeal is that in imposing that sentence the learned magistrate erred in failing to take into account the applicant's period in custody between 18 June 2005 and 13 July 2005. Counsel for the applicant submits that in sentencing the applicant on the three breach of bail charges, the learned magistrate was obliged, pursuant to the Sentencing Act 1997, s16(1), to take account of that period. That section provides:

"16 (1) A court that is sentencing an offender to a term of imprisonment for an offence -

(a) must take into account any period of time during which the offender was held in custody in relation to proceedings for, or arising from, that offence; and

(b) may order that the sentence of imprisonment is to commence on a day earlier than the day on which it is imposed."

8 The precondition for the application of s16(1) to the sentence imposed on the applicant for the three breach of bail offences was that he had been held in custody for the period in contention "in relation to proceedings for, or arising from, that offence", (the breach of bail offences). Clearly he was not. He was held in custody for charges arising from the incident on 18 June 2005. The breach of bail offences were not committed until after the period when the applicant was held in custody.

9 Whilst s16(1) did not by its terms apply to the sentence imposed for the breach of bail charges, in my respectful view, a consideration of fairness which that provision reflects was applicable. Relevantly, that consideration is that when a penalty of actual imprisonment is to be imposed on a person for an offence, account should be taken of any period during which that person was held in custody where there is a real connection between the circumstances of the period in custody and the offence for which the penalty of imprisonment is to be imposed. In this case there was such a real connection. Each of the offences for which the applicant was sentenced were linked to his relationship with Ms Wilson. The resisting a police officer offence was an aspect of the criminal conduct of the applicant, that prompted the learned magistrate's observation that a sentence of imprisonment was appropriate. He did not, however, impose a sentence of imprisonment in relation to the resisting a police officer offence. The breach of bail offences were the only charges in respect of which the learned magistrate imposed a sentence of actual imprisonment. In these circumstances, in my view, in imposing that sentence the learned magistrate erred in failing to take into account the period of 25 days during which the applicant had been held in custody. In my view, this was required by an overriding consideration of fairness, as to which see Carr v R A14/1993, Green CJ at 3.

10 The notice to review is allowed. The sentence imposed by the learned magistrate on the applicant for the three breach of bail charges is set aside insofar as it specifies that it will date from 4 October 2005 and in lieu that sentence will date from 9 September 2005.