Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Whether sentence reflected time spent in custody - Whether approximately 6 months spent in custody under sch 2 Bail Act 1982 (WA) should have been taken into account by sentencing judge - Turns on own facts

Bail Act 1982 (WA), sch 1 pt C cl 3A

Criminal Appeals Act 2004 (WA), s 31(3)(4)

Sentencing Act 1995 (WA), s 87

Mickelberg v The Queen (Unreported, WASCA, Library No 5509, 19 September 1984)

Narkle v Hamilton [2008] WASCA 31

Palmer v The Queen [1999] WASCA 253

2 PULLIN JA: I have had the opportunity of reading a draft of Miller JA's reasons for decision. I agree with his Honour that the appeal should be allowed for the reasons he gives.

3 I then turn to the subject of resentencing. I note that there is no express submission by the State that the wrong sentences were imposed by the sentencing judge, although it does submit that overall the appellant has been given credit for the time spent in custody. However, as Miller JA has pointed out, this is not so because the sentences in the Magistrates Court were unlikely to have attracted sentences of imprisonment.

4 For my part, I would resentence by imposing the same sentences and making the same orders which were made by the sentencing judge, save that I would reduce the sentence to allow full credit for the 179 days.

5 MILLER JA: The appellant was convicted after trial in the District Court at Geraldton on 31 July 2008 on six counts of possession of a prohibited drug with intent to sell or supply and one count of cultivation of a prohibited plant with intent to sell or supply. He had previously pleaded guilty to two counts of possession of a prohibited drug with intent to sell or supply.

6 The appellant was sentenced on 3 October 2008 to an aggregate term of 4 years' imprisonment with an order for eligibility for parole. The sentence imposed was backdated to 31 July 2008.

7 The appellant seeks leave to appeal from that sentence on a single ground:

1. The learned sentencing Judge paid insufficient or no weight to information given to the Court that the Appellant had spent approximately 6 months in custody following his arrest for offences allegedly committed while on bail for the offences for which he was sentenced.

8 The question of leave to appeal has been referred for determination at the time of the hearing of the appeal.

9 The appellant was first charged with drug offences on 29 June 2005. He was then released to bail. Thereafter, he was charged again with drug

offences on 9 March 2006 and on 19 July 2007. By reason of this fact, the appellant had difficulties in being admitted to bail on the subsequent charges. After being charged on 9 March 2006, he became a 'schedule 2 offender' which means that, pursuant to the provisions of sch 1 pt C cl 3A of the Bail Act 1982 (WA), he could not be released to bail unless he was able to show exceptional reasons why he should not be kept in custody. The description of the appellant as a 'schedule 2 offender' stems from the fact that sch 2 of the Bail Act 1982 contains a list of 'serious offences' for the purpose of cl 3A(1)(a)(i) and (b)(i) of the Bail Act 1982.

10 It is convenient to set out the provisions of cl 3A of pt C of sch 1 of the Bail Act 1982. So far as is relevant to the determination of this appeal, it is in the following terms:

3A. Bail where serious offence committed while accused on bail for another serious offence

(1) Notwithstanding clause 1, 2 or 4 or any other provision of this Act, where -

(i) awaiting an appearance in court before conviction for a serious offence; or

(ii) waiting to be sentenced or otherwise dealt with for a serious offence of which the accused has been convicted;

and

(b) the serious offence is alleged to have been committed while the accused was -

(i) on bail for; or

(ii) at liberty under an early release order made in respect of,

another serious offence,

the judicial officer or (if section 16A does not apply) the authorised officer in whom jurisdiction is vested shall refuse to grant bail for the serious offence referred to in paragraph (a) unless the judicial officer or authorised officer -

(c) is satisfied that there are exceptional reasons why the accused should not be kept in custody and, if clause 3B applies, is so satisfied only after complying with that clause; and

(d) is also satisfied that bail may properly be granted having regard to the provisions of clauses 1 and 3 or, in the case of a child accused, clauses 2 and 3.

11 The first of the drug offences with which the appellant was charged were in consequence of the execution of a search warrant by police on 29 June 2005. Investigating police discovered quantities of cannabis, MDMA, cannabis plant material and money. As a result, the appellant was charged with a number of simple and indictable offences. The indictable offences made up the nine counts on the indictment which were the subject of the sentences imposed on 3 October 2008. The nine counts in the indictment were as follows:

(1) On 29 June 2005 at Geraldton Neville John Johnson had in his possession a prohibited drug, namely cannabis, with intent to sell or supply it to another.

(2) On the same date and at the same place Neville John Johnson had in his possession a prohibited drug, namely cannabis, with intent to sell or supply it to another.

(3) On the same date and at the same place Neville John Johnson had in his possession a prohibited drug, namely cannabis, with intent to sell or supply it to another.

(4) On the same date and at the same place Neville John Johnson cultivated a prohibited plant, namely cannabis, with intent to sell or supply cannabis to another.

(5) On the same date and at the same place Neville John Johnson had in his possession a prohibited drug, namely cannabis, with intent to sell or supply it to another.

(6) On the same date and at the same place Neville John Johnson had in his possession a prohibited drug, namely cannabis, with intent to sell or supply it to another.

(7) On the same date and at the same place Neville John Johnson had in his possession a prohibited drug, namely cannabis, with intent to sell or supply it to another.

(8) On the same date and at the same place Neville John Johnson had in his possession a prohibited drug, namely 3,4-methylenedioxy- n,alpha-dimethylphenylethylamine (MDMA), with intent to sell or supply it to another.

(9) On the same date and at the same place Neville John Johnson had in his possession a prohibited drug, namely cannabis, with intent to sell or supply it to another.

12 The appellant was admitted to bail on the charges preferred on 29 June 2005. The indictment had not then been prepared, but there were charges of both a simple and indictable nature.

13 On 9 March 2006, the appellant was charged with further drug offences. He was charged with possession of a prohibited drug (3.08 g of methylamphetamine) with intent to sell or supply, possession of a prohibited drug (four dexamphetamine tablets) with intent to sell or supply and possession of a prohibited drug (13.35 g of cannabis).

14 The 9 March 2006 charges were alleged to have been committed whilst the appellant was on bail for the 29 June 2005 offences. Two of the charges were 'serious offences' within the meaning of sch 1 pt C cl 3A(1)(a)(i) and (1)(b)(i) of the Bail Act 1982.

15 By reason of the provisions of cl 3A(1)(a), (b) and (c) of sch 1 pt C of the Bail Act 1982, the appellant could not be granted further bail unless exceptional reasons were shown why he should not be kept in custody. Even if he was able to show exceptional reasons, he would still have to show that bail should properly be granted having regard to the provisions of cl 1 and cl 3 of sch 1 pt C of the Bail Act 1982.

16 The appellant was unable to demonstrate exceptional reasons why he should be released to bail and he was remanded in custody in relation to the 9 March 2006 charges. He was, however, released to bail on 21 August 2006. He had then spent 165 days in custody.

17 The 9 March 2006 charges were set down for trial on 25 June 2007. On that day, the prosecution withdrew the allegations of intent to sell or supply in relation to the charges of possession with intent to sell or supply methylamphetamine and possession with intent to sell or supply dexamphetamine tablets. Pleas of guilty to simple possession were accepted. The appellant was fined in relation to each of those offences and the offence of possession of cannabis. There were also other charges which were dealt with.

18 On 19 July 2007, while still on bail for the 29 June 2005 charges, the appellant was charged again with drug offences. This time, he was charged with two counts of possession of a prohibited drug with intent to sell or supply and one count of possession of a prohibited drug (simple possession). The charges related to 8.52 g of cannabis, 0.39 g of amphetamine and 4.919 g of cannabis. By reason of the intent to sell or supply charges (serious offences) he again became a 'schedule 2 offender', but he must have been able to demonstrate exceptional reasons why he should be released to bail, because on 2 August 2007, in the Magistrates Court at Geraldton, he was released to bail. He had then spent 14 days in custody.

19 On 4 August 2008, the two allegations of intent to sell or supply both drugs were withdrawn and the appellant pleaded guilty to simple possession in respect of all three charges. The appellant was sentenced in the Magistrates Court at Geraldton in relation to the 19 July 2007 offences. He was fined $300 in respect of the amended charge of possession of cannabis, $300 in respect of the amended charge of possession of amphetamine, and $250 in respect of the original charge of simple possession of cannabis.

20 The appellant was convicted of the 29 June 2005 offences on 31 July 2008. At his sentencing on 3 October 2008, the sentencing judge outlined the facts relating to each of the offences. His Honour said:

[T]oday I must sentence you for a total of nine offences: being one of cultivation of cannabis relating to 16 cannabis seedlings; seven counts of possession of cannabis with intent to sell or supply relating to 23 grams, 20.2 grams, 167.8 grams, 2675 grams of cannabis butter, 2682 grams of cannabis butter, 5.1 grams of cannabis and 22 grams of cannabis; and in addition to that, I have to sentence you for possession of ecstasy with intent to sell or supply relating to 126 ecstasy tablets or 30.8 grams which were hidden in a woodpile.

Now, as far as the cannabis offences are concerned, each of those, of course, is a cultivation or possession with intent to sell or supply which carries a maximum penalty of 10 years or a fine of $20,000 or both. As far as the ecstasy offence is concerned, it carries a maximum penalty of 25 years' imprisonment or a $100,000 fine, or both (ts 19).

21 The sentencing judge took account of the facts of each count and the personal circumstances of the appellant.

22 The sentences which were imposed can be tabulated in the following way:

Possession of 23g of cannabis with intent to sell or supply

Possession of 20.2g (query 22.2g) of cannabis with intent to sell or supply

Possession of 167.8g of cannabis with intent to sell or supply

Cultivation of 16 cannabis seedlings with intent to sell or supply

Possession of 2,675g of cannabis butter with intent to sell or supply

Possession of 2,682g of cannabis butter with intent to sell or supply

Possession of 5.1g of cannabis with intent to sell or supply

Possession of 30.8g of MDMA with intent to sell or supply

Possession of 22g of cannabis with intent to sell or supply

23 All sentences were ordered to be served concurrently, save for the sentence imposed on count 8 which was ordered to be served cumulatively on the sentence imposed on count 5. This made an aggregate term of 4 years' imprisonment. There was an order for eligibility for parole.

24 The sentencing judge considered the question of backdating the sentence. He ordered that the sentence should be backdated to 31 July 2008.

25 During the course of sentencing submissions, there was discussion about time spent in custody. Counsel for the appellant informed the sentencing judge of the history of the appellant's offending, but he was unable to specify with precision the time spent in custody after the first occasion on which the appellant was refused bail.

26 Counsel for the appellant submitted that time spent in custody by the appellant was one of the circumstances to be taken into account by the sentencing judge. He conceded that the sentences could not be backdated to take account of all the time spent in custody because the appellant had not spent time in custody solely for the 29 June 2005 offences: s 87 Sentencing Act 1995 (WA).

27 In backdating the sentences imposed on the appellant to 31 July 2008, the sentencing judge fixed the day upon which the appellant was taken into custody following his conviction at trial for the 29 June 2005 offences, as the appropriate date to which to backdate the sentence.

28 During the course of sentencing submissions, the following exchange with counsel for the appellant occurred:

BOWDEN DCJ: I mean it's relevant [time spent in custody] from the point of view that your client has a number of previous convictions which have been dealt with by way of monetary penalties and the like. As a result of those offences, he spent some time in custody.

ARNDT, MR: Yes.

BOWDEN DCJ: As a result of these offences, he's also going to spend time in custody. And if the proposition is being put to me that eventually a person does realise the seriousness of these offences because he's losing his liberty, and that's the effect of it, then of course I do accept that; that is, that he realises now that it's not just a question of rolling up to court getting fines, that these sort of offences do attract the loss of his liberty, and from that sense I can certainly understand how they can be taken into account.

ARNDT, MR: Well, your Honour, I don't know that your Honour has the power to take them into account any more than that.

BOWDEN DCJ: No. No, I think that's right. All right, thanks very much for that, Mr Arndt (ts 18 - 19).

29 The reference to previous convictions and to time spent in custody appears to relate to the proceedings in the Magistrates Court. The transcript of the proceedings in the Magistrates Court on 25 June 2007 reveals that the magistrate took into account time spent in custody. He said:

[I] can't ignore the fact that you spent a long while in custody for offences which, well, probably weren't worth the long while in custody. So I will give you a much lighter fine than I would have otherwise considered for 3.8 grams of methamphetamine, four tablets, because you are a bloke of 55 years of age. You have never been to gaol apart from then. It would have been horrible.

So I'm just going to fine you low. For the methamphetamine I will fine you 500 and I say that's low because of that (ts 6 - 7).

30 In the Magistrates Court on 4 October 2008, the magistrate said:

You have yet to face the serious charges in the District Court. I do remember you spent a lot of time in custody, waiting, waiting, waiting, until you got bail. These amounts are small, there's only five grams of cannabis in one, eight in another, and almost four points of cannabis - sorry, amphetamine. None of those would by themselves give you a term of imprisonment so I see no point in doing anything else than giving you a fine.

The fine will be lower than normal to reflect the time that you have spent in custody, which I know has been a while. So for that reason I will fine you lower than I normally would (ts 4 - 5).

31 Counsel for the appellant had pointed out to the magistrate that the appellant had spent 5 1/2 months in custody in relation to the earlier offences. However, the offences dealt with in the Magistrates Court were minor offences and it was highly unlikely that they could have attracted sentences of imprisonment. To the extent that the magistrate took time spent in custody into account, it could only have been to reduce the fines which might otherwise have been imposed.

32 Counsel for the respondent conceded at the hearing of the appeal that the sentencing judge had failed to take into account the time spent in custody by the appellant in consequence of the 9 March 2006 and 19 July 2007 charges. The relevant charges were originally charges of possession with intent to sell or supply, but they became charges of simple possession. The reason the appellant spent time in custody in relation to each of the charges (a total of 179 days) was because the appellant was initially charged with 'serious offences', being offences of possession with intent to sell or supply. As they became offences of simple possession, they were not 'serious offences', and ordinarily the appellant would have been released to bail in relation to each set of charges.

33 The sentencing judge appears to have accepted that time spent in custody in respect of the 9 March 2006 and 19 July 2007 charges could only be taken into account in the general sense that eventually the appellant was likely to be imprisoned, rather than fined.

34 During the course of his sentencing comments, the sentencing judge made no reference to time spent in custody and no specific allowance was made for the period of 179 days to which I have referred.

35 Although counsel for the respondent conceded that the sentencing judge was in error in failing to take into account the time which the appellant had spent in custody in relation to the 9 March 2006 and 19 July 2007 charges, he contended that, despite the error, the court should dismiss the appeal because no different sentence should have been imposed: Criminal Appeals Act 2004 (WA), s 31(3) and s 31(4).

36 The sentencing judge undoubtedly had the power to take into account time spent in custody. This was not because of the provisions of the Sentencing Act 1995 (s 87), but because of a general discretion. This was made clear in Narkle v Hamilton [2008] WASCA 31, where the court (Steytler P, McLure and Buss JJA) said, at [30]:

In our opinion, s 87 is not the source of the court's power (which it has long had) to take time spent in custody on remand into account when sentencing an offender. The section sets out the means by which the sentence can be reduced or back-dated where the court has, in the exercise of its non-statutory power, determined, as contemplated by par (b), to take it into account. That the section is not the source of the power to which we have referred is apparent from the provisions of (b) itself. Section 87 contains no express or implied limitation on the court's general power to take into account time spent in custody, including on remand, in the exercise of its sentencing discretion.

The court always has a discretion, when considering time spent in custody, whether it will make an allowance for that time and if so, how much of an allowance it will make. Even in a case in which the time was spent in custody in respect of the offence in question and for no other reason, the court does not have to give credit for the whole of the time spent in custody: King [57] (Wheeler J); R v Lambley (1989) 40 A Crim R 430, 440 (Kennedy J); Ratcliffe v The Queen (Unreported, WASCA, Library No 980651, 3 November 1998). The manner in which the discretion is exercised will depend upon the individual circumstances of each case. In a case such as the present, the time in custody may have relevance (as the primary judge recognised) to the question whether there is a need for personal deterrence and also to that of the prospect that the offender has been, or will be rehabilitated. However, it seems to us that it may also be relevant for other reasons. For example, it might raise the question whether or not there has already been some degree of retribution, even if the offence in question was not the sole reason the time was spent in custody [40].

38 Had the sentencing judge properly exercised his discretion, some allowance would have been made for time spent by the appellant in custody in relation to the 9 March 2006 and 19 July 2007 charges. The relevant principle is that which the court expressed in Narkle v Hamilton, at [40], as follows:

It is difficult to see why there should, as a matter of fairness, be any distinction, when taking time spent in custody into account, between a case in which the time in remand was spent solely in respect of the offence in question and one in which it was spent in respect of that offence and other offences of which the offender was subsequently acquitted. We agree, in that respect, with what was said by Kennedy J in his dissenting judgment in Mickelberg [Mickelberg v The Queen (Unreported, WASCA, Library No 5509, 19 September 1984)]. It also seems to us that what was there said, in the context of time spent in custody in respect of a conviction that was later overturned on appeal, is equally applicable in a case of the present kind, where the time was spent in remand in respect of the subject offence and offences of which the appellant was later acquitted. What was said by the majority in Mickelberg seems not to have been followed in Palmer [Palmer v The Queen [1999] WASCA 253] and is also inconsistent with the approach adopted in the Victorian cases.

39 In the present case, the appellant was not acquitted of charges, but the relevant 9 March 2006 and 19 July 2007 charges were reduced from possession with intent to sell or supply to simple possession. The same reasoning applies as if he were, in effect, acquitted on the charges of possession with intent to sell or supply.

40 The aggregate sentence imposed upon the appellant was one of 4 years' imprisonment. It took no account of time spent in custody, but, in my opinion, it should have. The error made by the sentencing judge is one which had the consequence that a longer sentence was imposed than that which was appropriate. An error in the sentencing process has thus been demonstrated and the appellant needs to be resentenced.

41 The question is what allowance should have been made for the time spent in custody. In that respect, the individual circumstances of the case are important. The appellant has spent 179 days in custody in consequence of being charged with offences of possession with intent to sell or supply which were later reduced to charges of simple possession. Nevertheless, this is a case in which personal deterrence clearly looms large. His record of convictions reveals that he has a number of convictions, including a conviction on 8 April 2002 of possession of a quantity of cannabis with intent to sell or supply. This matter was dealt with in the District Court at Geraldton. The appellant was sentenced to 18 months' imprisonment, suspended for a period of 24 months. After the appellant was charged with the 29 June 2005 offences, he was convicted in the Geraldton Magistrates Court on 11 August 2005 of possession of a prohibited drug with intent to sell or supply and cultivation of a prohibited plant. He was then charged with the 9 March 2006 and 19 July 2007 offences. It is true that they resulted in charges of only simple possession, but the appellant is clearly a repeat drug offender.

42 In all the circumstances of the case, an allowance of 3 months would have been appropriate to take into account the 179 days spent in custody by the appellant. In my opinion, the aggregate term of imprisonment imposed by the sentencing judge should therefore have been a sentence of 3 years 9 months. I consider that the sentence imposed on count 8 (3 years 4 months' imprisonment) should be reduced to one of 3 years' imprisonment. That sentence should be made cumulative upon the sentences imposed on counts 1 and 6, namely, 1 month and 8 months. The aggregate term thus becomes 3 years 9 months' imprisonment. The order for eligibility for parole should remain.

43 I would grant leave to appeal against sentence, allow the appeal, quash the sentence imposed by the sentencing judge on count 8 on the indictment and impose a sentence of 3 years' imprisonment, to be served cumulatively with the sentences imposed on counts 1 and 6. All other sentences should be ordered to be served concurrently with the sentence imposed on count 8. The aggregate term of imprisonment is 3 years 9 months' imprisonment. There is an order for eligibility for parole. The sentence should be backdated to 31 July 2008.