Court of Appeal (Vic)|2011-04-13|Before: Mr J, Tate JA, Weinberg JA, Mandie JA

Karpinski v The Queen [2011] VSCA 94 (13 April 2011)

R v Karpinski (Unreported, County Court of Victoria, Judge Chettle, 12 May 2009)

1 I agree, for the reasons given by Tate JA that, as the law currently stands, the appellant is entitled to have both his total effective sentence and his non-parole period marginally reduced.

2 However, I should add that, in my view, the law regarding the credit to be given for pre-sentence detention in respect of unrelated offending is in an unsatisfactory state.

3 I have no difficulty with the notion of credit being given for 'dead time', as explained by this Court in R v Renzella.[1] That case concerned an appeal by the Director of Public Prosecutions against a sentence on a charge of conspiracy. The principal ground of appeal was that the trial judge had erred in reducing both the head sentence and the non-parole period (pursuant to s 18(1) of the Sentencing Act 1991) by the period which the accused had spent in detention in relation to an unrelated charge. The Court in Renzella recognised a general discretion, at common law, that would enable the time that the respondent had spent in custody awaiting trial on both the charge of conspiracy, and on the unrelated charge, to count as pre-sentence detention, in a broad way, in relation to the charge of conspiracy.

4 The circumstances of Renzella were somewhat special, in that the form of the legislation then under consideration virtually compelled the solution that was there adopted.

5 Since Renzella, there has been a steady growth in reliance upon so-called 'dead time' as a mitigating factor. In my view, however, Renzella 'dead time' is often now invoked in circumstances where its application is difficult to justify, either as a matter of logic, or in principle.

6 In Warwick v The Queen[2] the Court noted that the circumstances of that case,

and many others like it, were entirely different from those which obtained in Renzella. Now, in many cases, the period of detention which is sought to be brought to account concerns conduct that is not only unrelated to the matters for which the accused stands to be sentenced, but also involves time that has been wrongly served in the past, and sometimes even the distant past.

7 Any accused who has been wrongly imprisoned is, of course, the victim of a grave injustice. It does not follow, however, that it is society's duty to ameliorate that injustice by giving the accused credit for the time spent in custody when he is sentenced at a later time for entirely unrelated offending.

8 Despite my misgivings as to the current state of the law on this subject, I agree that the weight of authority requires that the appellant receive some credit for at least part of the time that he spent in custody on the charge of attempted murder. I agree with the order proposed by Tate JA.

10 The appellant, Christian Karpinski, pleaded guilty in the County Court to one count of theft of a car,[3] and one count of armed robbery,[4] both counts arising from conduct that occurred sometime between 26 and 27 June 2007. A plea in mitigation was heard before the sentencing judge on 21 April 2009, at the same time as he heard a plea with respect to a co-accused, James Milkins, who had been found guilty at trial of the same offences and a number of others.

11 The appellant was sentenced on 12 May 2009 to nine months' imprisonment on Count 1 (theft of a motor vehicle) and six years' imprisonment on Count 2 (armed robbery) and was ordered to serve three months of the sentence imposed on Count 1

cumulatively with the sentence imposed on Count 2, making the Total Effective Sentence a term of imprisonment of six years and three months with a non-parole period of four years and six months. The sentencing judge declared that 686 days of the sentence imposed had been served by way of pre-sentence detention (including the day of sentencing). He also disqualified the appellant from driving for a period of two years, such disqualification to commence on 12 October 2011. This would have the effect that the appellant is unlikely to be able to obtain a driving licence until approximately the date his head sentence expires.

12 The appellant had previously been charged with attempted murder, an unrelated matter, but on 19 June 2009 the Crown announced and entered a nolle prosequi in respect of that charge, before Curtain J in the Supreme Court.

13 On 14 October 2010, Nettle JA granted the application for leave to appeal against sentence, on one ground alone, namely:

In light of the discontinuation of the prosecution of the applicant on the charge of attempted murder he should be resentenced by this court taking into account the 'dead time' served by him in respect of that matter.

14 There were two other grounds on which leave was sought, manifest excess, and the claim that the period of time for which the appellant was disqualified from driving was, in all the circumstances, excessive. Both were rejected by Nettle JA. Neither ground was sought to be re-visited on the appeal. However, counsel for the appellant submitted that the question of the date of the commencement of the disqualification of the appellant's licence would likely become relevant if the appellant were to be re-sentenced.

15 The offences to which the appellant pleaded guilty involved he and his co-offender, Milkins, stealing a blue Mazda sedan, registration number RUI 186, and using it as the get-away vehicle for an armed robbery from the gaming room at the Blackburn Hotel. The appellant went to the Blackburn Hotel with a chipping hammer, with which he smashed locked safety glass automatic doors to gain entry to the room, while Milkins carried a .38 revolver from which he fired a shot into the doors causing them to shatter. They bailed up two female staff in the gaming room and stole $40,000 from the cash office, which they loaded into green environmental bags. They then fled the premises taking the money with them.

16 The sentencing judge took into account the appellant's deprived and disturbed background. From an early age the appellant had displayed psychiatric issues at school and at home. He lived with his family in Gippsland until the age of 11 and then moved back with them to live in Melbourne. His father threw him out of the house at least twice in his early teenage years. His parents separated when he was 14 and he effectively lived on the streets throughout his mid-adolescent years. He spent time at Turana, a Youth Training Centre. His schooling was disrupted; he attempted Year 11, later working as a kitchen hand. He was born on 12 June 1981, being 26 at the time of the offending and 27 at the time of sentence.

17 At the time of the appellant's arrest for the subject offending he was found to be in a drug-induced psychotic state. He appeared to be using large quantities of methylamphetamine on a daily basis, having had a history of poly-substance abuse. The sentencing judge took account of a psychiatric report relied on by the appellant in the plea from Dr Danny Sullivan, a consultant psychiatrist. He said:

Mr Karpinski has a background of marked behavioural disturbance and early educational failure, with recurrent criminal justice contact and anti-social peers. His offences have occurred in the apparent context of heavy substance abuse. However, there is no indication that he was experiencing mental disorder at the time of the offending. His course in prison has been rendered more onerous due to his mental disorder. However, Mr Karpinski has also elected not to take treatment and has improved over time despite this refusal. Residual symptoms are not currently of marked clinical significance.

18 The sentencing judge also took account of the appellant's plea of guilty, the support he has from his mother, and from his grandmother (who gave evidence on the plea), and the attempts the appellant had made to rehabilitate himself while in prison (including the participation in a number of educational courses and programs designed to break the cycle of alcohol and drug dependence and offending). He considered, on the basis of Dr Sullivan's report, that prospects for future rehabilitation were 'guarded'.

19 The appellant admitted three prior court appearances, an appearance before the Magistrates' Court on 28 April 2000 on a charge of possessing heroin, for which he was released on a bond to complete a drug education program; an appearance before the Magistrates' Court on 25 July 2001 on charges of unlawful assault, theft, and being in possession of a regulated weapon, for which he received an aggregate term of imprisonment of one month, wholly suspended for twelve months; and an appearance before the County Court on 22 March 2004 on two counts of armed robbery and one count of handling stolen goods, for which he received an effective term of imprisonment of three years and eight months with a non-parole period of two years and two months.

20 The sentencing judge made no reference to the amount of time the appellant had spent in custody in relation to an unrelated charge of attempted murder. This issue was first raised on the plea by the appellant's counsel who referred to an observation made in Dr Sullivan's report:

It is alleged that Mr Karpinski was involved in armed robbery with co-offenders in 2007. This occurred while he was on bail for attempted murder. I understand that the latter charges have not come to trial.

21 The appellant's counsel, during the plea, attempted to explain the unrelated attempted murder charge:

APPELLANT'S COUNSEL: Your Honour, there's a reference in there [Dr Sullivan's report] to another proceeding, an attempted murder proceeding.

HIS HONOUR: An attempted murder. Is that still on foot?

APPELLANT'S COUNSEL: Apparently so, your Honour. My instructor who took over this file from another set of solicitors wasn't entirely sure of the current status of that but as I understand it there was a trial in which a jury was discharged.

MR MILKINS' COUNSEL: I'm in the same case.

APPELLANT'S COUNSEL: ... So there's another trial pending.

HIS HONOUR: Hanging around. He was on bail for that.

APPELLANT'S COUNSEL: He was.

22 Mention was made of the appellant's prior conviction for armed robbery in 2004.

APPELLANT'S COUNSEL: ... the commission date of those prior convictions was back in '02 and then he was remanded in custody in relation to those in '03, February '03. ...

He then goes to court, as your Honour knows, in March 04 and gets an effective sentence of three years eight months with a minimum of two years and two months. Pre-sentence detention was allowed for 428 days in relation to that and then parole was granted on 9 February 2005 in respect of that. On my reading of the prison indent, he was remanded on the pending attempted murder proceeding in June of 2006, 7 June '06.

HIS HONOUR: He must have got bail, did he?

APPELLANT'S COUNSEL: He did, on 6 February 2007.

HIS HONOUR: What date in '06 was he remanded?

APPELLANT'S COUNSEL: He was received into the system on 7 June '06 ... so he could have spent some time in the system.

HIS HONOUR: He might have but that will be all - bailed when?

APPELLANT'S COUNSEL: 6 February 2007, your Honour.

23 After referring to the fact that the subject offences occurred in June 2007, the exchange continued:

HIS HONOUR: He's got another trial in the Supreme Court on attempted murder some time.

APPELLANT'S COUNSEL: I don't know the full status of it. I'm told there are some noises about applications for nolle prosequis for some of them. ...

HIS HONOUR: From his point of view your first aggravating feature is that he's committed this offence that I've got to sentence him for whilst he's on bail.

APPELLANT'S COUNSEL: That's so, your Honour, yes.

HIS HONOUR: On the other hand there's totality issues but I can't really do much about that when the matter is unresolved. ... I don't know how I'd take into account all this pre-sentence time he's done on the attempted murder which will be - either come into effect later on or not -

APPELLANT'S COUNSEL: Or not or be wasting time effectively.

HIS HONOUR: I don't think I can do anything with it at the moment, can I? I can take into account that he has been in custody -

APPELLANT'S COUNSEL: Yes. I think in a broad sense.

HIS HONOUR: For seven months. ... That's really all it is, isn't it?

APPELLANT'S COUNSEL: Yes. In a broad sense you can look at what his recent histories have been, I suppose, in that way, your Honour, but I should say to your Honour that that whole head sentence that he got in March 04, that's finished, he owes nothing to the parole board.

HIS HONOUR: He finished his parole ... he got a very light minimum, didn't he? Two years and two months. ... In a sense he was just about done by the time he went in.

APPELLANT'S COUNSEL: That's so given his pre-sentence detention.

24 Counsel for Mr Milkins sought also to explain that a trial had taken place on the attempted murder charge which 'reached a stage when the jury were discharged without verdict as a result of some indiscretion of my then client, Peter Karpinski [the appellant's brother], that the trial went off and some further investigations were to be conducted by the police'.

25 Ultimately, the sentencing judge chose in his reasons neither to make any reference to time spent in custody on the attempted murder charge nor to the otherwise aggravating factor that the subject offences had occurred while the appellant was on bail for that charge. He appears to have taken the view, implicitly, that the period of detention that was referable to the charge of attempted murder ought to be credited at the time the appellant was sentenced on that charge, if convicted, and not when he was sentencing on the charges of theft of a motor vehicle and armed robbery.

26 Shortly after the appellant was sentenced, as foreshadowed by counsel, a nolle prosequi was entered on the charge of attempted murder on 19 June 2009. There would thus be no opportunity for the period spent in detention on remand on that charge to be taken into account as pre-sentence detention under s 18(1) of the Sentencing Act 1991.[5] The 'dead time' (roughly, the period of detention for which the appellant would not otherwise receive any discount in sentencing) now stands to be

taken into account, in a broad sense, under the discretion recognised in R v Renzella,[6] or not at all.

27 The relevant chronology would appear to be as follows:

22 March 2004 - appellant sentenced in County Court on two counts of armed robbery and one count of handling stolen goods for three years and eight months with a non-parole period of two years and two months with a pre-sentence detention declaration of 428 days.

9 February 2005 - appellant granted parole for offences of which he was convicted in March 2004.

7 June 2006 - appellant remanded on attempted murder charge.

6 February 2007 - appellant received bail with respect to attempted murder charge.

27 June 2007 - appellant charged with theft of a motor vehicle (Count 1) and armed robbery (Count 2); remanded in custody.

21 April 2009 - plea hearing on theft and armed robbery charges.

12 May 2009 - sentenced to nine months' imprisonment (Count 1) and six years' imprisonment (Count 2); three months of the sentence imposed on Count 1 to be served cumulatively upon the sentence imposed on Count 2; Total Effective Sentence of six years and three months with a non-parole period of four years and six months. Pre-sentence detention: 686 days.

19 June 2009 - Nolle prosequi entered on the attempted murder charge.

28 It is thus the period of eight months between 7 June 2006 and 6 February 2007 during which the appellant was detained in custody and which, following the nolle prosequi, stands to be considered as arguably 'dead time'. The notion of 'dead time' is not susceptible to any exact definition. The expression was used by Maxwell P and Weinberg JA in Warwick v The Queen:[7]

'dead time' - that is, the time spent in custody in respect of matters of which the appellant was later acquitted or in relation to which his sentence was reduced.

It is:

a period which, viewed with the benefit of hindsight at the date of sentencing, should not have been served. [8]

29 The expression 'dead time' is perhaps particularly justified when, as here, it relates to time spent in custody on remand for an offence where a nolle prosequi is entered, or a charge is withdrawn, and during which the appellant is neither serving another sentence, nor on remand for another offence for which he or she is ultimately tried. However, some caution was expressed in Warwick[9] about the application of the Renzella[10] discretion to 'dead time' and, more generally, about the application of the Renzella discretion far beyond its origins.

30 In R v Renzella,[11] Winneke P, Charles and Callaway JJA, in a joint judgment, followed the approach of Brooking JA[12] in R v Heaney[13] in recognising that at common law there was a discretion, when sentencing an offender, to take into account the offender's detention in custody in circumstances where that detention was 'warranted twice over',[14] by reference to the offence in relation to which the instant sentence was imposed, and by unrelated offending. The discretion permitted the sentencing judge to take pre-sentence detention into account 'in a broad way' by reducing the head sentence and non-parole period. This was so despite the fact that doubly warranted detention could not then be taken into account under s 18(1) of the Sentencing Act, which, at the time of Renzella and Heaney read as follows:[15]

If an offender is sentenced to a term of imprisonment in respect of an offence, any period of time during which he or she was held in custody in relation to proceedings for that offence or proceedings arising from those proceedings and for no other reason must, unless the sentencing court or the court fixing a non-parole period in respect of the sentence otherwise orders, be reckoned as a period of imprisonment already served under the sentence.

31 In Heaney the judge who sentenced an offender for trafficking declared the period of pre-sentence detention under s 18 to include only the days spent on remand for trafficking but not those on which the offender was also held in remand on a murder charge (93 days). The period when the offender was held pursuant to two remand warrants was not counted because the applicant's detention was justified twice.

32 In Renzella the Court said this of the judgment of Brooking JA in Heaney:[16]

[T]he judge was right in holding that from 15 September on, when she was committed for trial, the applicant was not held in custody "for no other reason" as required by s. 18(1). ... Her detention in custody was warranted twice over ... His Honour said that regard must nevertheless be had in resentencing to the period during which the applicant's detention in custody was doubly warranted. That could be done by this court's adopting the declaration concerning 93 days presentence detention that had already been made and by reducing by six months, to allow in a broad way for the period from September to March [the date of the resentencing by the Court of Appeal], the head sentence and the non-parole period upon which it would otherwise have determined.

Section 18 does not exclude the discretion that this court exercised in Heaney's case. It applies only where an offender is sentenced to a term of imprisonment and there is a period of time during which the offender was held in custody in relation to proceedings for that offence or proceedings arising from them and for no other reason. In other cases the section is silent and a court is not only empowered but obliged as a matter of justice to take presentence detention into account.

It follows that the law expounded by Brooking JA in Heaney's case is, unsurprisingly, correct in principle and consistent with s. 18. Where that section applies, presentence detention is to be reckoned as a period of imprisonment already served under the sentence, and a declaration made to that effect, unless the sentencing court or the court fixing a non-parole period in respect of the sentence otherwise orders. Presentence detention to which s. 18 does not apply is to be taken into account in the exercise of the court's discretion. It should ordinarily be taken into account at the first opportunity, as it was in Heaney's case, and not left to the court imposing a later sentence: cf. R v Birnie (unreported, Full Court, 17 November 1994).

35 The Renzella principle has been developed and applied by this Court many times since.[19] In R v Art and Briggs, Callaway JA, in considering a context where detention was doubly warranted, treated Heaney and Renzella as having clearly settled the proposition that:[20]

such pre-sentence detention is to be taken into account in the exercise of the court's discretion and should ordinarily be taken into account at the first opportunity, in case the prisoner is acquitted at a later trial or hearing or a nolle prosequi is entered.

36 The terms of s 18(1) have been amended numerous times since either Heaney or Renzella was decided.[21] In particular, the limitation on s 18(1) declarations has been removed that arose from the requirement that only that detention be taken into account that was imposed for the offence for which the offender was being sentenced 'and for no other reason'.[22] Nevertheless, it is clear from the current terms of s 18(1) that it only encompasses pre-sentence detention that is referable, at least, to the offences for which the offender is being sentenced. Relevantly, s 18(1) reads:

(a) in respect of an offence sentenced to a term of imprisonment ...

any period of time during which he or she was held in custody in relation to -

(c) proceedings for the offence referred to in paragraph (a) or proceedings arising from those proceedings; ...

(d) ...must be reckoned as a period of imprisonment or detention already served under the sentence ... unless the sentencing court or the court fixing a non-parole period in respect of the sentence ... otherwise orders. [23]

37 Conversely, in R v Broad[24] it was held that detention on remand for one offence would not fall to be declared under s 18(1) when sentenced for that offence if the detention was also referable to a second offence for which the offender was serving a sentence. As Brooking JA in R v Broad said,[25] 'ss 18(1) and 35(1)[26] are inapplicable to periods of detention during which the person being sentenced was serving a sentence'. [27]

38 It was remarked upon in Warwick v The Queen[28] that many of the authorities applying Renzella, which support the availability of a sentencing discount for a period served in detention unrelated to the offence for which an offender is being sentenced, arise in circumstances quite different from that in Renzella itself where the period of detention 'did relate to the offences for which the appellant was being sentenced'. [29] The problem in Renzella and in Heaney was that the detention related to those offences as well as to unrelated offending and, as mentioned above, the terms of s 18(1) at the time permitted a declaration of pre-sentence detention only where it was attributable to the offence for which the sentence was being imposed 'and for no other reason'. No doubt it was because the detention was attributable to two warrants in Heaney and Renzella that the language of 'double warranty' came to be used as shorthand for the discretion. However, the Renzella discretion has been applied in circumstances that are far removed from those in which custodial detention is 'warranted twice over',[30] to include circumstances where the charges for which an offender is detained are withdrawn or where he or she is acquitted of those charges. In those circumstances, the period of detention is time that, with hindsight, should not have been served and the language of 'double warranty' in those circumstances is inapt.

39 The application of the Renzella discretion to circumstances in which charges are withdrawn is illustrated by R v Stares.[31] There, the offender was sentenced to a total effective sentence of five years' imprisonment, with a non-parole period of three years and six months for offences of burglary, theft, attempted armed robbery, recklessly causing serious injury and trafficking in cannabis. The judge made a declaration under s 18(1) of the Sentencing Act that 161 days pre-sentence detention had already been served. The judge was not told that the offender had already served a separate period of 167 days pre-sentence detention for unrelated offending and that period was not taken into account. The detention for the unrelated offending came to an end when the charges were withdrawn two years before the offender was arrested on the subject offences. There was no overlap in the detention with respect to the charges for the unrelated offending and the detention referable to the charges for which he was being sentenced. This Court held that the detention for the unrelated offending ought to have been brought to the judge's attention and taken into account. Charles JA (with whom Philips CJ and Chernov JA agreed) said:[32]

Judge Holt ... made a declaration as to 161 days of pre-sentence detention for the period lasting from 23 August 1997, the date of the applicant's arrest, until 30 January 1998, the date of sentence. The applicant had however been in custody for an earlier period of 167 days ... in relation to ... charges which had been struck out on 4 September 1995, when the Crown declined to proceed on them. He was not entitled to have a formal declaration made under s 18(1) in relation to them, because this period ... was quite unrelated to the offences for which Judge Holt was then sentencing the applicant. But it was a period of pre-sentence detention which, consistently with the decision in Renzella, should have been taken into account at the first opportunity ... The earlier period of 167 days does not however appear to have been drawn to Judge Holt's attention, and counsel then appearing for the applicant certainly did not mention the decision in Renzella or invite his Honour to take this earlier period of custody into account in reduction of sentence. The earlier period is not mentioned in Judge Holt's sentencing reasons and it was accepted ... that, had it been taken into account, the appropriate course would have been for his Honour to reduce the head sentence and non-parole period then imposed, taking into account that the applicant had served nearly five and a half months in custody for which he was not entitled to have a declaration made under s 18(1). Accordingly unless some reason existed for the judge to take a lesser period into account in the sentencing discretion, his Honour, had these matters been drawn to his attention, might have been expected to impose a head sentence of four years and six months, and to fix a non-parole period of three years.

40 The 167 days were later taken into account under s 18 by another judge when sentencing the offender for further offending. This was done in error because, as noted above, it is clear from the terms of s 18 that only the period of detention referable to the offence for which an offender is being sentenced can be credited under s 18. Charles JA said:[33]

[T]he proper course to be taken at sentencing was not to make a s 18 declaration [in relation to the 167 days] but rather to impose a sentence reduced by taking this period ... into account by an appropriate reduction in both the head sentence and non-parole period fixed. All other things being equal this would have involved a reduction of some five or six months in the non-parole period and the head sentence.

41 In R v Chimirri,[34] Winneke P. Phillips and Eames JJA considered what discount in sentence was to be given arising from the detention of someone who had been arraigned on the charge of attempted murder and acquitted. The offender had been taken into custody on 3 August 1999 on a charge of kidnapping and released into the community on bail on 15 September 1999. On 24 May 2001, he was arrested and taken back into custody on a charge of attempted murder. No application was made for revocation of his bail on the kidnapping charge and he remained on bail for that charge. On 29 November 2001, he pleaded guilty to the charge of kidnapping, his bail on the kidnapping charge was revoked and he remained in custody until the plea was heard on 17 December 2001. On 20 December 2001, the judge sentenced Mr Chimirri to a period of four-and-a-half years with a minimum non-parole period of two years. A period of 44 days was declared under s 18 of the Sentencing Act being the period between the arrest on the kidnapping charge on 3 August 1999 and the date of being bailed on 15 September 1999.

42 About a year after being sentenced on the kidnapping charge, Mr Chimirri was arraigned on the charge of attempted murder and acquitted.

43 On appeal, the Court held first that the s 18 declaration on the kidnapping charge was in error and that an additional 22 days should have been declared, being the period between 29 November 2001 and 20 December 2001.[35] That additional period could be taken into account under s 18 because the appellant's bail on the kidnapping charge was revoked on 29 November 2001 and he was thus 'held in custody in relation to' the offence of kidnapping from that date. Moreover, the earlier restrictive requirement under s 18 had been removed, and there was no part of that period during which the appellant was serving a sentence for another offence, consistent with Broad. Rather, from 29 November 2001 until 20 December 2001 he was on remand for two separate offences committed at different times. During this period 'it [was] conceded by the respondent, the time spent in gaol for those 22 days was being doubly warranted, the applicant's custody being both in respect of the kidnap charge and the attempted murder charge'. [36]

44 The Court then considered the submission made with respect to the Renzella discretion:[37]

[I]t is now said that the period between 24 May 2001, when he was charged with attempted murder and taken back into custody, and 29 November 2001, when he was arraigned and pleaded guilty to the kidnap, was also time which ought to have been taken into account as time spent in custody relevantly for the purposes of the sentence on the kidnap charge. It is conceded that that time was not time within the meaning of s 18 of the Sentencing Act which fell to be declared, but was time that ought to have been taken into account by his Honour pursuant to his discretion in accordance with authorities of this Court in Renzella and Stares. It is conceded by the prosecutor that the judge ought to have taken that time into account for the purpose of exercising his discretion as to the appropriate sentence, the fact being that that the applicant had spent some six months in gaol awaiting trial, both on the offence of kidnap and the offence of attempted murder. The prosecutor concedes that, because the judge ought to have taken that factor into account and did not take it into account, there was an error in that respect also in his sentencing discretion. That means that the sentence imposed by the judge is re-opened for the discretion of this Court.

45 The detention between 24 May 2001 and 29 November 2001 could not be taken into account under s 18 in sentencing for the kidnapping charge because during that time the appellant remained on bail for that charge; that time would not count as a period during which, under s 18, he was 'held in custody in relation to' the offence of kidnapping. Moreover, the acquittal on the attempted murder charge meant that there would be no opportunity for the detention between 24 May 2001 and 29 November 2001 to count as pre-sentence detention, under s 18, on that charge. That period of detention thus stood to be counted as time served, in a general sense, for the offence of kidnapping or not at all.

46 The Court noted the lenient sentence that had been given for the offence of kidnapping and said:[38]

Nevertheless, remand in custody in the circumstances that we have described counts as time served, in a general sense, awaiting trial on this charge, and it falls to us to consider, in fixing a sentence which we think is appropriate both to the circumstances of the crime itself and to the circumstances that we have been describing, and to fix a sentence which we think fits all the necessary components of this offence. Although, both in Renzella and Stares, the Court said that the matter to which we referred and to which those cases refer is not a mathematical exercise, it is nevertheless a matter that ought to be taken into account generally in determining what the appropriate sentence ought to be.

47 The Court ultimately allowed three months for the time spent in custody and imposed a sentence of four years and three months with a non-parole period of one year and nine months.

48 Chimirri was followed by Maxwell P in R v Wade[39] where an appeal was allowed because of a failure by the sentencing judge to take account of a period served by the offender while he was remanded in custody on an unrelated count which was still pending. The judge took account only of 59 days served between 3 September 2003 and 31 October 2003, the period between the appellant's arrest for trafficking a drug of dependence (methylamphetamine) and his release on bail. He did not take account of the period of detention up until the date of sentence for the trafficking offence which commenced on 17 December 2004 when he was arrested on another matter and remanded in custody. During that time, bail for the trafficking offence was not revoked. As Maxwell P said:[40]

In sentencing Mr Wade the sentencing Judge expressly took into account the 59 days served between 3 September and 31 October 2003 and ordered that the period be deemed pre-sentence detention under s 18 of the Sentencing Act 1991. A submission was made to his Honour that he should take into account the period served by Mr Wade while on remand on the unrelated charge, the period between 17 December 2004 and the date of his sentence on this charge, being 27 April 2005. The submission made on the appellant's behalf is that that period of pre-sentence detention, while not able to be considered under s.18 of the Sentencing Act (as it was not time in custody in relation to proceedings for this relevant offence) ought to have been considered in the exercise of the discretion as to the proper sentence, and that the learned Judge apparently failed to do so. ...

In my opinion, the appeal should be allowed and the appellant should be re-sentenced.

49 In Maxwell P's view, the fact that the period of detention referable to the unrelated offending arose by reason of pending charges which were still to be tried did not detract from the unambiguous nature of the obligation on a sentencing judge to take that period into account 'at the first opportunity'.[41] Indeed, this is supported by the observation in Renzella that '[p]re-sentence detention to which s 18 does not apply is ... not [to be] left to the court imposing a later sentence'. [42]

50 It might be argued that where charges are pending, a judge sentencing an offender for an earlier offence (as was the case when the sentencing judge was sentencing the appellant) should be mindful that the period of time in which the offender is held in custody in relation to the pending charges will ultimately be taken into account under s 18 when the offender is sentenced, if convicted, on those charges. This appears to reflect the thinking undertaken by the sentencing judge. Because s 18 might apply, at some point in the future, to that period of detention, it could be thought wrong to conclude that it is 'pre-sentence detention to which s 18 does not apply'. It would thus not qualify for consideration under the Renzella discretion.

51 Such a view gains support from the consideration that under s 18, 'any period' during which an offender is held in custody in relation to an offence is to 'reckoned as a period of imprisonment or detention already served under the sentence' for that offence; that is, an offender is entitled, under s 18(1), to receive credit for 100 per cent of that period. By contrast, under the Renzella discretion, only some of a period of detention may be credited in the discretion of the sentencing court; an offender does not have an entitlement to receive a discount of 100 per cent, or indeed any per cent, of the period in which he or she was detained on unrelated offending.

52 However, this view does not sit well with the observation by the Court in Renzella that the period spent in pre-sentence detention ought not to be left to the court imposing a later sentence and ought to be considered at the first opportunity. It is inconsistent with the result in Wade. As Maxwell P stated, in referring to the submissions made before the sentencing judge in Wade:[43]

[I]t is apparent from the transcript of the argument on the plea that the learned sentencing Judge had his attention drawn to that line of authority [Renzella and Stares]. His Honour was asked by counsel for Mr Wade to take into account the time spent in custody on remand in relation to the unrelated offence - unrelated in the sense that it was not a matter before that Judge. As I have pointed out, it has been clear since the decision in Renzella that this is a matter which, where it arises, the sentencing Judge is obliged to take into account.

53 Maxwell P concluded that time spent on remand in relation to charges pending for unrelated offending was a relevant consideration that should have been taken into account by the sentencing judge, but was not. This was a specific error that had the result that the sentencing discretion miscarried. This approach is also consistent with the proposition, mentioned above, for which Callaway JA in Arts and Briggs took Renzella and Heaney to be clear authority, namely, that pre-sentence detention to which s 18 does not apply 'should ordinarily be taken into account at the first opportunity, in case the prisoner is acquitted at a later trial or hearing or a nolle prosequi is entered'.[44]

54 Maxwell P also met the concern raised above, in relation to pending charges, of the entitlement an offender would otherwise have under s 18, if convicted, to a discount of 100 per cent. He said:[45]

In my opinion, persons standing for sentence are entitled to expect that, where a submission is made that an amount of pre-sentence detention should be taken into account, the sentencing Judge should clearly state that the matter has been considered, whether or not it affects the final result. If, as in Chimirri's Case, something less than the full amount of the relevant pre-sentence detention is taken into account in the sentencing, it is important that the sentencing Judge state to what extent it has been taken into account. The necessity for that specification is to inform the court which will be dealing with the unrelated offence on a later date (assuming the person to have been convicted of it). The later court needs to know that there is a part of that detention period which was not taken into account on the previous occasion, such that it remains to be taken into account in accordance with s.18.

55 As the obligation under s 18 is for a sentencing court to take into account any period during which an offender was held in custody in relation to proceedings for the offence for which he or she is being sentenced 'unless the sentencing court ... otherwise orders', the reasoning of Maxwell P would suggest that the later court (the sentencing court) will 'otherwise order' that all of the period for which the offender was held in detention for the offence for which a sentence is being imposed, save for the period already credited under the Renzella discretion, is declared as pre-sentence detention.[46] As this issue would only arise upon a later conviction for the offence for which charges are pending at the time the sentencing judge imposes sentence, it does not need to be resolved here.

56 Chimirri was also applied by Vincent JA in R v McMahon[47] who reaffirmed that the 'proper approach to be adopted with respect to pre-sentence detention not falling under s 18(1)'[48] is to recognise that:[49]

[T]he fact that an individual has been detained unconvicted, albeit for unrelated matters, for some time prior to the imposition of sentence is a relevant consideration in the determination of the appropriate disposition of the matter before the court.

57 In McMahon the offender had been detained for a total of 468 days between 25 March 2004 and his being sentenced on 23 May 2006 on one count of being a prohibited person in possession of an unregistered firearm and two counts of being in possession of a drug of dependence. Of that period, 271 days were referable either to charges on which he had been acquitted or charges which had been withdrawn on 'quite unrelated matters'.[50] Both the acquittal and the withdrawal had occurred prior to sentencing and the sentencing judge indicated that he had taken them into account to the extent of reducing the sentence on the firearm charge by six months.[51] Vincent JA said:[52]

The view was adopted in Renzella that pre-sentence detention to which s. 18 does not apply can, in some circumstances at least, as a matter of justice be taken into account in the exercise of the court's discretion.

Nevertheless, as Callaway, J.A., when considering the manner in which this discretionary exercise is to be performed, pointed out in R. v Kotzmann -

"There can be no question of a person on remand who is subsequently acquitted acquiring a kind of bank balance on which to draw in relation to subsequent offences unconnected with the reason for custody ...".

It is evident from the subsequent cases that have come before this Court, that the reduction in an otherwise appropriate sentence to take account of what is often referred to as "dead time" is not a mathematical exercise and in a number of them allowance has been made for less than the full period involved. It is also to be noted that in none of those to which our attention has been drawn has any reason been given for the decision to discount by less than the full period.

58 The observations made by Callaway JA in R v Kotzmann[53] drew upon comments he made in R v Arts and Briggs[54] to the effect that:[55]

There are, of course, many cases where a person cannot be given credit for pre-sentence detention. He or she may be on remand for several months and then acquitted. The time spent on remand cannot be regarded as a bank balance on which to draw in relation to offences unconnected with the reason for custody, but that is not the case. As Lord Bingham of Cornhill C.J. said on behalf of the Divisional Court in R v Governor of Brockhill Prison; Ex parte Evans [1997] Q.B. 443 at 462:

It has in our experience been the practice to assume that all periods of custody before sentence, other than custody wholly unrelated to the offences for which sentence is passed, will count against the period of the sentence to be served [emphasis added].

59 Arts and Briggs was a 'double warranty' case. Briggs had been charged with intentionally causing serious injury and released on bail. While at large he was charged with murder and detained in custody. He then remained in custody awaiting trial on the murder charge. His bail was not revoked and remained operative until the commencement of his first trial for the charge of intentionally causing serious injury on which the jury was discharged without verdict. From that point in time, until he was sentenced on a plea of guilty to that charge, his detention was doubly warranted. Although the offences were unrelated the periods of detention overlapped and this was seen as important.[56]

60 The line of authority following Renzella in Victoria does not appear to support the view expressed in Brockhill Prison that custody wholly unrelated to the offences for which sentence is passed will not count against the period of the sentence to be served. The authorities which focus upon the exercise of the Renzella discretion do not appear to treat as a relevant question the issue of whether the offences before the judge imposing the sentence are related to the offences for which a discount is sought. Although, as Maxwell P and Weinberg JA remarked in Warwick, the detention discounted in Renzella 'did relate to the offences for which the offender was being sentenced',[57] the line of authority applying Renzella has taken as its starting point that the offending, the detention for which a discount is sought, is unrelated to the offending for which the offender is being sentenced.[58] However, this is not to deny the force of the limitation recognised by Callaway JA on the exercise of the Renzella discretion, namely, that a period spent in detention on a charge for which an offender is ultimately acquitted, or in relation to which charges are withdrawn, cannot be regarded as credit in a bank to be called upon to reduce a sentence for unrelated offending. There is no entitlement to a discount.

61 Furthermore, the Renzella discretion has been exercised where there is no overlap between the periods of detention, as in Stares.

62 In Warwick, Maxwell P and Weinberg JA were led to observe: [59]

[T]here may be a question for investigation as to the basis on which detention [on charges which were subsequently dismissed] is thought to be relevant when the person comes to be sentenced for quite unrelated matters. In so saying, we recognise that there is obvious injustice where a person has served a term of imprisonment which he or she should not have served. In other jurisdictions, that injustice is addressed by formal procedures for compensation for such periods. No such system exists in this State.

The question which may require investigation is whether a form of judicial compensation, by way of sentence discounts in relation to other matters, is the appropriate way to deal with this species of injustice. As we have said, the law in Victoria as it stands is that it is properly dealt with in that way. As Weinberg JA pointed out, however, the logic of this approach would seem to be that 'unjust' imprisonment should always stand to a person's credit, however long after the event it is sought to be called in aid. As we say, that is a question for another day.

63 One approach to the giving of judicial compensation by way of sentence discounts where it is clear to a court that an offender has served a period of imprisonment which he or she should not have served has been to treat the issue as one relating to the assessment of the overall period of incarceration that the offender will experience. As Vincent JA said in McMahon, after acknowledging that the fact that an offender has been detained unconvicted, albeit for unrelated offences, was a relevant consideration to be taken into account by the sentencing judge:[60]

Obviously the overall period of incarceration that would result from the imposition of a further period of imprisonment must be taken into account for more than one sentencing purpose.

64 Where an offender invites a sentencing judge to consider exercising the Renzella discretion to take account of a period of detention for unrelated offending, it may thus be relevant to consider what effect the imposition of a further period of imprisonment will have on the overall period of incarceration, within the context of the sentencing principle of totality and the determination of a sentence that 'is appropriate for the overall criminality of the convicted person'.[61] This approach would clearly be inapplicable where the pre-sentence detention being taken into account relates (as here) to pending charges. In these circumstances, in my opinion, the question posed by Maxwell P and Weinberg JA has particular force and remains a question for another day.

65 It is clear from the authorities considered above that the period of detention of eight months in which the appellant was held in custody, unconvicted, on the charge of attempted murder, between 7 June 2006 and 6 February 2007, was a relevant consideration to be taken into account in the determination of the appropriate sentencing disposition for the offending on the counts of theft of a motor vehicle and armed robbery. Given the entering of the nolle prosequi on the charge to which the eight month period on remand related, that was 'a period which, viewed with the benefit of hindsight at the date of sentencing, should not have been served'.[62]

66 However, at the time that the sentencing judge sentenced the appellant, the charge of attempted murder remained live. Although there had been one mistrial, there had as yet been no nolle prosequi entered and a new trial may still have taken place. It would appear that the sentencing judge, by making no allowance in his reasons either for the detention on the attempted murder charge, or for the aggravating factor that the charges on which he was sentencing the appellant occurred while he was on bail for attempted murder, perhaps considered that the charge of attempted murder should be dealt with in a separate process, together with the detention referable to that charge for which allowance could be made, in that process, under s 18.

67 In those circumstances, the appellant argued that the eight months in which he was held in custody on the attempted murder charge should be taken into account as 'dead time' for which there should be some mitigation. He invited this Court to re-sentence him, not on the basis that the sentencing judge had fallen into error, but rather on the ground that that the sentencing discretion should be re-opened by reason of the 'fresh evidence' now before this Court, namely, that after he had been sentenced the Crown entered a nolle prosequi on the charge of attempted murder.

68 The appellant submitted that the circumstances were analogous to those in which an offender is re-sentenced when evidence comes to light that a period of breached parole in relation to an earlier sentence has been ordered to be served after the imposition of a sentence on a subsequent charge. Where parole is cancelled and an offender has a consequent liability to serve the outstanding portion of an earlier sentence, the cancellation of the parole and the consequent liability constitute 'fresh evidence' in accordance with the principles in R v Nguyen,[63] most particularly, that the evidence relates to events which have occurred since the sentence was imposed. In those circumstances, upon the admission of the fresh evidence, there is no need to find a specific error which vitiates the sentencing discretion (or to determine if the sentence was manifestly excessive); it is sufficient to determine whether, on all of the material including the fresh evidence, any different sentence should be substituted to avoid a miscarriage of justice: R v Alashkar.[64]

69 While the appellant did not allege specific error, the Crown did. At the hearing of the appeal it was conceded by the Crown that the sentencing judge had erred by failing to take into account as a relevant consideration the period of eight months the appellant spent in detention on the charge of attempted murder. Although the sentencing judge was not to know that a nolle prosequi was to be entered after the time he imposed his sentence, it was submitted that this was irrelevant. Rather, it was argued, on the strength of Renzella, that, for the purpose of taking into account pre-sentence detention to which s 18 does not apply, there must be a single 'anchor point'. That anchor point here was the date on which the appellant was sentenced. At that point in time the sentencing judge should have taken into account as a relevant consideration any unallocated pre-sentence detention (that is, detention to which s 18 would not apply), including detention with respect to the unrelated offending for which the charges were still pending.

70 In those circumstances, it was submitted, considerations of totality could not be relevant because the sentencing judge would not be in a position to make an assessment of overall criminality given that the appellant was still to be tried on the attempted murder charge. It was rather simply a matter of ensuring that, at the first opportunity, all unallocated pre-sentence detention is taken into account in the exercise of the sentencing discretion.

71 I agree. The Crown's submissions are clearly supported by Renzella, Stares, Chimirri, McMahon, Warwick and, most particularly, Wade and the unambiguous nature of the obligation on a sentencing judge reaffirmed there to take into account all pre-sentence detention to which s 18 does not apply. There is no need to draw an analogy here with circumstances of cancelled parole nor to rely upon principles governing the admission of fresh evidence.

72 I would allow the appeal and set aside the orders of the sentencing judge.

73 The appellant acknowledged, quite properly, that the more recent practice of the Court has been not to reduce the head sentence or non-parole period by the entire period of pre-sentence detention to which s 18 does not apply. Only some mitigation was sought.

74 The sentencing discretion thus being re-opened, I would reduce the total effective sentence and the non-parole period by a period of four months. While this does not significantly affect the sentence to be served, it is not a question of 'tinkering' with the sentence, grounded as it is in the principles that guide the exercise of the Renzella discretion. I would fix a head sentence of imprisonment of five years and eleven months with a non-parole period of four years and two months. The Court was informed that, up to the date of the hearing of the appeal, pre-sentence detention to which s 18 applied was 1381 days.

75 Pursuant to s 89 of the Sentencing Act I would order that any driver's licence the appellant holds be cancelled and the appellant be disqualified from obtaining such licence for a period of two years, such disqualification to commence on 12 June 2011.

[1] [1997] 2 VR 88 ('Renzella').

[3] Contrary to s 74 of the Crimes Act 1958.

[4] Contrary to s 75A(1) of the Crimes Act.

[5] This is subject to the contingency that the prosecution may revive its case, as this is not precluded by the entering of a nolle prosequi.

[10] R v Renzella [1997] 2 VR 88.

[12] In whose judgment Winneke P and Hampel AJA concurred.

[13] (Unreported, Supreme Court of Victoria, Court of Criminal Appeal, Winneke P, Brooking JA and Hampel AJA, 27 March 1996).

[14] R v Renzella [1997] 2 VR 88, 96.

[17] [1997] 2 VR 88, 97 (emphasis added).

[18] [1997] 2 VR 88, 98 (emphasis added).

[19] See, eg, R v Stares [2002] VSCA 70; (2002) 4 VR 314; R v Chimirri [2003] VSCA 45; R v Wade [2005] VSCA 276; R v Solovastru and Evans [2005] VSCA 254; R v Giakoumogianakis [2005] VSCA 156; R v McMahon [2006] VSCA 240; R v Rosenow [2007] VSCA 265; Warwick v The Queen [2010] VSCA 166.

[20] [1998] 2 VR 261, 263 (emphasis added).

[21] Section 18(1) was amended by Nos 48/1997 s 11(1); 69/1997 s. 6(1)(a)(b), 10/1999 s 18(1); substituted by No 82/2006 s 3(1).

[22] The requirement was deleted by sub-s 11(1) and (4) of the Sentences and Other Acts (Amendment) Act 1997 (Act No 48/1997). In R v Broad [1999] VSCA 149; [1999] 3 VR 31, 34 Brooking JA (with whom Tadgell and Chernov JJA agreed) explained that the removal of that requirement was 'because of decisions of the Court of Appeal which showed that it had the result that that the subsections were inapplicable [and thus no pre-sentence detention could be declared] where the person being sentenced had been in custody by virtue of two remand warrants both operating at the same time'.

[23] Emphasis added. See R v McMahon [2006] VSCA 240, [17].

[25] [1999] VSCA 149; [1999] 3 VR 31, 35 [11]. (This was subject to an exception where an offender is being re-sentenced by the Court of Appeal).

[26] Section 35(1) is comparable to s 18(1) with respect to young offenders.

[27] This was so despite the words 'and for no other reason' no longer being included in s 18(1) by the time R v Broad was decided. The reasoning was based on public policy considerations that, otherwise, for example, an offender who is serving a sentence and escapes and commits a crime while at large could, when recaptured, retried and later sentenced, be entitled to rely on the time spent in detention between recapture and the passing of sentence as 'credit', by way of pre-sentence detention under s 18(1), when sentenced for the offence committed while at large. As Brooking JA said, at 33 [8]: 'Such a result is manifestly unreasonable and contrary to the public interest'.

[30] R v Renzella [1997] 2 VR 88, 96.

[39] [2005] VSCA 276 (with whom Charles and Nettle JJA agreed).

[41] R v Renzella [1997] 2 VR 88, 98.

[43] [2005] VSCA 276, [13] (emphasis added).

[44] [1998] 2 VR 261, 263 (emphasis added).

[45] [2005] VSCA 276, [14] (emphasis added).

[46] In this way, the period of time credited under the Renzella discretion would be treated as comparable to the period under s 18(2)(d) of the Sentencing Act, a period 'previously declared' to which the obligation under s 18(1) does not apply.

[47] [2006] VSCA 240 (with whom Neave JA and King AJA agreed).

[51] The appeal was dismissed on the ground that the reduction that had been given by the sentencing judge was substantial and that the sentencing judge had taken into account all of the relevant considerations.

[52] Ibid [19]-[21] (footnotes omitted).

[57] [2010] VSCA 166, [16] (original emphasis).

[58] R v Chimirri [2003] VSCA 45; R v Stares [2002] VSCA 70; (2002) 4 VR 314; R v Wade [2005] VSCA 276, R v McMahon [2006] VSCA 240; Warwick v The Queen [2010] VSCA 166.

[59] Warwick v The Queen [2010] VSCA 166, [18]-[19].

[61] DPP v Alsop [2010] VSCA 325, [30] (Redlich JA). See also Mill v The Queen (1988) 166 CLR 59, 62-63; R v Beck [2005] VSCA 11, [17]-[18], [22].

[62] Warwick v The Queen [2010] VSCA 166, [17].

Other Acts (Amendment) Act 1997

Karpinski v The Queen [2011] VSCA 94

At a glance

Court

Decision date

Before

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Judgment (159 paragraphs)

Karpinski v The Queen [2011] VSCA 94 (13 April 2011)

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Legislation Cited (1)

Cases Cited (3)