Criminal law - Appeal against sentence - Sentencing judge failed to make any allowance for time spent in custody on a charge for which the appellant was acquitted - Power to backdate a term of suspended imprisonment activated under s 84F(1)(a) of the Sentencing Act 1995 (WA)

Sentencing Act 1995 (WA), s 32, s 84F, s 84F(1)(a), s 84F(1)(b), s 84F(3)

Dragon v The State of Western Australia [2008] WASCA 252

Narkle v Hamilton [2008] WASCA 31

1 JUDGMENT OF THE COURT: This is an application for an extension of time and to appeal against sentence. The application is consented to and the appeal is conceded. A minute of agreed orders has been filed. The parties' agreement does not bind this court. However, having considered all of the relevant materials, it is appropriate to make the consent orders for the following reasons.

2 On 23 October 2009, the appellant was sentenced to 16 months' imprisonment, suspended on conditions for 16 months, for an offence of possession of MDMA with intent to sell or supply it to another (the order). While on the order he was charged with possession of amphetamines. Between 7 January 2010 and 6 April 2010, he spent 90 days in custody with respect to this charge. Ultimately, the charge was dismissed. Then, between 30 July 2010 and 17 September 2010, he committed seven offences, all of which breached the order. On 17 September 2010, the appellant was remanded in custody so that he could be dealt with for the breach of the order, pursuant to s 84F of the Sentencing Act 1995 (WA) (the Act). Relevantly to this case, the section states:

84F**. How re-offender to be dealt with**

(1) If satisfied that a person has been convicted (in this State or elsewhere) of an offence the statutory penalty for which is or includes imprisonment and that the offence was committed during the suspension period of CSI, a court that must deal with the person under this section must deal with the person by one of the following methods -

(a) unless an order under this paragraph, paragraph (b) or section 84L(1)(a) or (b) has already been made, it may order the person to serve the term or terms of imprisonment that were suspended;

(b) unless an order under this paragraph, paragraph (a) or section 84L(1)(a) or (b) has already been made, it may order the person to serve part of the term or terms of imprisonment that were suspended (even if the period ordered to be served is 6 months or less);

...

(3) A court must make an order under subsection (1)(a) unless it decides that it would be unjust to do so in view of all the circumstances that have arisen, or have become known, since the CSI was imposed.

...

(5) If under subsection (1)(a) or (b) a court orders a person to serve a term, or part of a term, of imprisonment that was suspended -

(a) section 88 applies in respect of the term to be served; and

(b) the court may make a parole eligibility order under section 89,

as if the term to be served were a term of imprisonment being imposed by the court.

3 On 6 January 2011, the learned sentencing judge, pursuant to s 84F(1)(a) of the Act ordered that the appellant serve the 16 month term which had been suspended. He also dealt with the breaching offences on a notice pursuant to s 32 of the Sentencing Act. He imposed, in relation to four of those offences, a total term of 9 months' imprisonment to be served cumulatively upon the term he imposed pursuant to s 84F(1)(a) of the Act. The total effective term imposed by his Honour was 25 months' imprisonment with parole eligibility. His Honour ordered that the 16 month term commence on 17 September 2010, to take into account the time spent in custody from that date up to the date of sentencing, a period of 112 days.

4 With respect to his Honour, he erred in two respects. First, he should have, but failed to make any allowance for the 90 days which the appellant had spent in custody on the charge for which he was ultimately acquitted: Narkle v Hamilton [2008] WASCA 31. Second, there is no power in s 84F, or elsewhere in the Act, to backdate a term of imprisonment activated under s 84F(1)(a): Dragon v The State of Western Australia [2008] WASCA 252.

5 His Honour should have taken the two periods in custody, which total 202 days, into account as 'circumstances that have arisen' within s 84F(3) that justified the making of an order under s 84F(1)(b) of the Act. Had this approach been taken, his Honour would have ordered the appellant to serve 9 months and 8 days of the term that had been suspended to commence on the date he was sentenced.

1. The time within which to appeal be extended to 23 February 2011.
2. The appeal be allowed.
3. The sentences imposed by Eaton DCJ on 6 January 2011 be set aside and in lieu thereof the appellant be sentenced as follows:

1. On the charge of possession of a prohibited drug with intent to sell or supply on Indictment Number 1269 of 2009 to a term of imprisonment of 9 months and 8 days; 2. On charge number 10568 of 2010 to a term of 9 months imprisonment;

1. On charge number 10569 of 2010 to a term of 3 months imprisonment;

1. On charge number 10570 of 2010 to a term of 9 months imprisonment; 2. On charge number 10571 of 2010 to a term of 6 months imprisonment; 3. On charge number 11502 of 2010 to a fine of $250; 4. On charge number 11503 of 2010 to a fine of $200; 5. On charge number 11504 of 2010 to a fine of $200; 6. The sentences on charge numbers 10568, 10569, 10570 and 10571 of 2010 be ordered to be served concurrently with each other but cumulatively on the sentence imposed in respect of Indictment Number 1269 of 2009. 7. The sentence for Indictment Number 1269 of 2009 to commence on 6 January 2011. 8. The appellant be made eligible for parole.