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[2023] ACTCA 48
Court of Appeal (ACT)
2023-12-19
Loukas-Karlsson, Baker and Bromwich JJ
Original judgment source is linked above.
Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Authorised report: 20 ACTLR 303
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL Case Title: McIver v The King Citation: [2023] ACTCA 48 Hearing Date: 17 May 2023 Decision Date: 19 December 2023 Before: Loukas-Karlsson, Baker and Bromwich JJ Decision: (1) The application for leave to adduce further evidence filed on 10 May 2023 is dismissed. (2) The appeal is dismissed. Catchwords: APPEAL – CRIMINAL LAW – Appeal against sentence – combination of Commonwealth and State offences – offences committed while detained in custody – appellant on remand but housed with convicted prisoners – whether primary judge erred in determining objective seriousness – importance of general deterrence – offending between detainees – whether the appellant’s human rights were breached – whether appellant’s custody was unlawful – consideration of “lawful custody” – s 19 of the Human Rights Act 2004 (ACT) – prima facie breach of s 19 – sentence not manifestly excessive – s 16E of the Crimes Act 1914 (Cth) – time spent in custody “in relation to” the offence – meaning of “in relation to” – whether sentence should be backdated to take into account time in custody for an unrelated offence for which the appellant had been later acquitted – Renzella discretion. Legislation Cited: Corrections Management Act 2007 (ACT) Crimes Act 1900 (ACT) ss 20, 32, 382 Crimes Act 1914 (Cth) s 16E Crimes (Sentence Administration) Act 2005 (ACT), ss 16, 18 Crimes (Sentencing) Act 2005 (ACT), ss 7, 62, 63, 64, 72 Criminal Code 1995 (Cth), s 474.17 Human Rights Act 2004 (ACT) ss 19, 28, 30 Supreme Court Act 1933 (ACT) ss 37E, 37N Cases Cited: Alimudin v McCarthy [2008] NTCA 7; 23 NTLR 102 Andrews v Thomson [2018] ACTCA 53; 275 A Crim R 386 Beniamini v Craig [2017] ACTSC 30 Betts v The Queen [2016] HCA 25; 258 CLR 420 Bright v The Queen [2018] ACTCA 39 Brown v The Australian Capital Territory [2020] ACTSC 70 Bugmy v The Queen [2013] HCA 37; 249 CLR 571 CMB v Attorney-General for NSW [2015] HCA 9; 256 CLR 346 Dib v Rex [2023] NSWCCA 243 Grey v The Queen [2022] ACTCA 2 Hampton v R [2014] NSWCCA 131; 243 A Crim R 193 Hanania v R [2012] NSWCCA 220 Hawkins v Hawkins [2009] ACTSC 148; 3 ACTLR 210 Horan v O’Brien [2021] ACTSC 323 House v The King [1936] HCA 40; 55 CLR 499 Hoyle v The Queen [2018] ACTCA 42; 339 FCR 11 Karpinski v the Queen [2011] VSCA 94; 32 VR 85 Knight v Governor, Port Phillip Prison [2014] VSC 10 Mill v the Queen [1998] HCA 70; 166 CLR 59 R v Bedford [2019] ACTSC 282 R v Collier [2022] ACTSC 18 R v Deputy Governor of Parkhurst Prison; ex parte Hague [1992] 1 AC 58 R v Islam [2015] ACTSC 99 R v Massey [2022] ACTSC 3 R v McIver [2022] ACTSC 206 R v McIver; R v Williams [2021] ACTSC 227 R v Niass (Unreported, New South Wales Court of Criminal Appeal, 16 November 1988) R v Potts [2018] ACTSC 299 R v Rappel [2019] ACTCA 11 R v Renzella [1997] 2 VR 88 R v Williams [2017] ACTSC 298 Refaieh v R [2018] NSWCCA 72; 272 A Crim R 245 Singh v Wilson [2019] ACTSC 199 SY v R [2020] NSWCCA 320 Tracey v The Queen [2020] ACTCA 51 Wronski v Raue [2012] ACTSC 87 Zreika v R [2012] NSWCCA 44; 2012 A Crim R 460 Parties: Anthony Daniel McIver (Appellant) Director of Public Prosecutions (Respondent) Attorney-General of the Australian Capital Territory (Intervenor) Representation: Counsel J Masters (Appellant) T Hickey (Respondent) H Younan SC (Intervenor) Solicitors Tu’ulakitau McGuire (Appellant) ACT Director of Public Prosecutions (Respondent) ACT Government Solicitor (Intervenor) File Number: ACTCA 46 of 2022 Decision Under Appeal: Court/Tribunal: Supreme Court of the ACT Before: Justice Mossop Date of Decision: 16 August 2022 Case Title: R v McIver Citation: [2022] ACTSC 206 ` THE COURT: Introduction
This is an appeal under s 37E of the Supreme Court Act 1933 (ACT) against sentences imposed by a judge of the Supreme Court (the primary judge) on 16 August 2022: R v McIver [2022] ACTSC 206 at [67].
The appellant was convicted and sentenced for the following offences: (i) Using a carriage service to menace, harass or offend contrary to s 474.17(1) of the Criminal Code 1995 (Cth) (CC2021/5963): Imprisonment for four months and 15 days, commencing on 17 May 2021 and ending on 1 October 2021. (ii) Recklessly inflicting grievous bodily harm contrary to s 20 of the Crimes Act 1900 (ACT) (CC2021/5612): Imprisonment for three years, commencing on 2 October 2021 and ending on 1 October 2024. (iii) Making a demand with a threat to endanger health, safety or physical wellbeing of a person contrary s 32(2) of the Crimes Act (CC2021/9425): Imprisonment for 12 months, commencing on 2 October 2024 and ending on 1 October 2025. (iv) Possessing a knife without reasonable excuse in a public place contrary to s 382 of the Crimes Act (CC2021/5292): Imprisonment for 21 days, commencing on 26 September 2025 and ending on 16 October 2025.
These offences arose out of two separate occasions of offending. The offence of recklessly inflicting grievous bodily harm occurred on 28 February 2021, when the appellant was a remand prisoner in the Alexander Maconochie Centre (AMC). The victim of that offence was another prisoner being held in the AMC. The remaining offences occurred in the community on 17 May 2021, after the appellant had been released on bail.
As detailed further below, the primary judge declined to set a non-parole period for the offence of recklessly inflicting grievous bodily harm (offence (ii)) because the appellant was in custody at the time that this offence was committed: McIver at [62]. The primary judge declined to make a recognisance release order for the federal offence (offence (i)) because of the imposition of the other sentences, which were cumulated on the federal sentence: McIver at [64]. However, his Honour set a non-parole period for the Territory offences of making a demand with a threat to endanger health (offence (iii)) and possessing a knife without reasonable excuse (offence (iv)). That non-parole period commenced on 2 October 2024 and will end on 16 November 2024.
The appeal is focussed on the sentence imposed for offence (ii) (recklessly inflicting grievous bodily harm). The appellant relies on the following six grounds of appeal in relation to that sentence: Ground 1: The Court erred in finding that the offending fell into the mid-range of objective seriousness for this offence and should have found that it fell into the lower range of objective seriousness. Ground 2: The Court erred in its consideration of the need for general deterrence in the context of the case. Ground 3: The Court did not attach any or sufficient weight to the breach of the appellant’s human rights. Ground 4: The Court erred in its interpretation and application of ss 64 and 72 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). Ground 5: The sentence was manifestly excessive. Ground 6: The offender did not receive any credit for time spent in custody for an unrelated matter (SCC 280 of 2020).
The offences
Recklessly inflict grievous bodily harm
The appellant pleaded not guilty to the charge of recklessly inflicting grievous bodily harm contrary to s 20 of the Crimes Act (CC2021/5612). He was found guilty of that offence after a five-day trial. In brief, the primary judge found the facts as follows: see McIver at [3] – [12]
On 28 February 2021, the appellant and the victim were detainees in “Sentenced Unit 1” (the sentenced unit) at the AMC. The appellant and the victim were known to each other.
At approximately 5:00pm, the victim entered the appellant’s cell and launched an unprovoked attack on the appellant while he was making a coffee. The victim’s apparent motive was to seek retribution for an assault the victim believed the appellant had committed on a woman. The appellant was ultimately found not guilty of that offence.
Later that day, at about 5:18pm, the victim was in another cell on the second storey of the sentenced unit, with other detainees. The appellant exited a cell on the lower level of the unit and walked upstairs, entering the cell where the victim was. The appellant pulled his hand out of his right pocket, in which he was holding a bladed article.
Shortly after the appellant entered the cell, another detainee closed the door to the cell. Moments later the door opened. A fight ensued. The victim kicked out at the appellant. The appellant threw a towel over the victim’s head before striking out with his right arm towards the left side of the victim’s head. The appellant wrapped his left arm around the back of the victim’s neck as the appellant continued to try and strike the victim with his right hand. The appellant’s right hand was in close proximity to the victim’s head and face.
The altercation moved out of the cell doorway and into the hallway of the sentenced unit. Throughout this time the appellant had the weapon in his right hand. The appellant used the bladed article in a way that led him to recklessly cut the victim’s head.
Another detainee separated the appellant from the victim, by which point the victim had blood on the left side of his face. The victim turned around and was walking back towards the cell where the appellant launched the attack. The appellant ran towards the victim and again struck out with his right hand towards the victim’s head. Another wrestle ensued.
A corrections officer yelled at the victim and the appellant to stop and called a “Code Purple” (the code for prisoner disturbance). The appellant walked away from the victim with the bladed article still in his right hand. The appellant threw the bladed article into another cell as he walked past it. The victim had blood on his shirt and was bleeding at the back of his head and on his face.
The corrections officer, fellow detainees and nursing staff applied first aid to the victim before he was taken to the Canberra Hospital by ambulance. In a forensic medical report dated 9 March 2021, Dr Graeme Thomson described the victim’s injuries as including: (a) 1 cm wound to the right ear; (b) wound 7 cm in length to the left side of the head, closed with staples; (c) wound 1 cm in length to the left ear, closed with sutures (d) bruising and abrasions to the left side of the face; (e) abrasions to the left ear extending to the side of the neck; (f) wound of 1cm in length to the left thumb; and (g) 6 cm abrasion to the left side of the chest.
17 May 2021 offences
On 9 April 2021, the appellant was released on bail following the commission of the offence of reckless infliction of grievous bodily harm. The remaining three offences (using a carriage service to menace; making a demand with a threat to endanger health; and possessing a knife without reasonable excuse) arose from a collection of incidents that occurred on 17 May 2021: McIver at [13] – [21] The appellant pleaded guilty to each of these offences.
At midday on 17 May 2021, the appellant sent a number of text messages to KX (with whom he had previously been in an intimate relationship). Later that day, the appellant sent a text to KX which stated: “Shut up and tik tok you fucked with the devil so walk away or die up to you I’m coming tik tok”. This constituted the offence of using a carriage service in a way that is menacing (offence (i)).
At about 7:20pm on 17 May 2021, a man referred to as KQ exited his vehicle at a location in Gungahlin, when KQ was approached by the appellant. The appellant asked KQ to hand over a number of personal questions, which KQ ignored. The appellant continued to follow KQ as he attempted to visit an ATM. Feeling fearful of the appellant’s behaviour, the man walked towards a supermarket. While walking towards the supermarket, the appellant became increasingly aggressive, and demanded that he hand over money. KQ made several verbal requests for the appellant to go away and leave him alone.
The appellant continued to follow KQ, obstructing his path of travel and demanding $50. The appellant said words to the effect of: “If I hold a blade up to your throat you may have it”. This constituted the offence of making a demand with a threat to endanger the health, safety or physical wellbeing of a person (offence (iii)).
KQ walked into a restaurant to evade the appellant, where the appellant verbally abused him before leaving.
Later that day, police attended the location in Gungahlin where they observed the appellant near a concrete planter box. The appellant dropped a knife into the box. The appellant was arrested for being in possession of a knife in a public place. This constituted the offence of possessing a knife in a public place without reasonable excuse (offence iv).
Consideration
Introduction
The appellant relies on six grounds of appeal in relation to the charge of recklessly inflicting grievous bodily harm, as set out at paragraph [5] above. Ground 1 (which alleges error in the finding of objective seriousness); ground 2 (which alleges error in the consideration of general deterrence) and ground 3 (which alleges that error in the weight given to the breach of the appellant’s human rights) may properly be seen as particulars of the fifth ground of appeal (namely, that the sentence was manifestly excessive). However, as these grounds of appeal were separately pleaded, it is convenient to address each ground of appeal sequentially. First ground of appeal: Finding of objective seriousness
The primary judge found that the recklessly inflicting grievous bodily harm offence fell within the mid-range of objective seriousness of the offence: McIver at [23]. The appellant’s counsel submitted that the primary judge erred in so finding. He contended that the offence should properly be assessed as at “the lowest end of the spectrum”.
It may be doubted that a finding of objective seriousness by reference to a specified range is strictly required in this Territory: R v Massey [2022] ACTSC 3 at [47] – [65]; Beniamini v Craig [2017] ACTSC 30 at [117] – [119]. Nonetheless, irrespective of whether such an assessment is strictly required, in our view the primary judge did not err in the assessment that he undertook.
The primary judge made the following factual findings relevant to the objective seriousness of the offending: (a) There was “a degree of premeditation”: McIver at [23]. (b) The appellant’s motivation was “retribution for an earlier assault committed” by the victim on the appellant: McIver at [55]. (c) The appellant had engaged in an extended assault upon the victim and returned to further strike the victim after another detainee had separated the appellant and the victim: McIver at [9]. (d) The offence involved a bladed article: McIver at [23]. (e) The victim was required to be taken to hospital by an ambulance, and sustained injuries included a 1cm wound to his right ear, a 7cm wound to the left side of his head, which was closed with staples, a 1cm wound to the left ear which was closed with sutures, and a 6cm abrasion of the left side of the chest: McIver at [11]. As noted above, these injuries will result in permanent scarring and may result in permanent loss or alteration of normal sensations: McIver at [23].
Each of the above factual findings were well open to the primary judge.
In view of those findings, the primary judge did not err in concluding that the offending was in the “mid-range of objective seriousness” for offences of this nature. The offending was not at the lowest end of the spectrum, as submitted by counsel for the appellant.
Accordingly, this ground of appeal must be dismissed. Second ground of appeal: Findings with respect to general deterrence
Third ground of appeal: Breach of human rights
Insofar as the third ground of appeal asserts that the primary judge gave no weight to the prima facie breach of the appellant’s human rights, this contention must be rejected. The primary judge expressly took this matter into account at McIver at [52] – [54].
Insofar as this ground of appeal contends that the judge failed to give sufficient weight to the breach of the appellant’s human rights, this ground must also be dismissed. The failure of a judge to attribute sufficient weight to an issue at sentence is not a ground of appeal that falls within the errors set out in House v The King [1936] HCA 40; 55 CLR 499; Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at 587 [22], 597 [53]; CMB v Attorney-General for NSW [2015] HCA 9; 256 CLR 346 at 363 [48]; Hanania v R [2012] NSWCCA 220 at [33].
Fourth ground of appeal: Whether alleged breach of the Human Rights Act rendered the appellant’s custody unlawful
The appellant was on remand at the time that he committed the recklessly inflict grievous bodily harm offence. Although he was on remand, the appellant was housed with convicted prisoners. This was in apparent contravention of s 19(2) of the Human Rights Act, which states that: 19 Humane treatment when deprived of liberty … (2) An accused person must be segregated from convicted people, except in exceptional circumstances. Note An accused child must also be segregated from accused adults (see s 20(1))
The appellant contended before the primary judge, and on appeal, that because the conditions of his incarceration breached s 19(2) of the Human Rights Act, he was not in “lawful custody” at the time of the commission of the offence of recklessly inflict grievous bodily harm.
As a result, he contended, ss 64(2) and 72 of the Sentencing Act should not be applied in determining the sentence to be imposed. Section 64 of the Sentencing Act precludes the setting of a non-parole period where a sentence of imprisonment is imposed “for an offence committed while in lawful custody”. Section 72 provides that any sentence imposed for an offence that was committed whilst the offender was “in lawful custody”, must, in the absence of a direction of the Court, be served consecutively with the existing sentence of imprisonment.
In rejecting the appellant’s contentions at first instance, the primary judge accepted that the housing of the appellant with sentenced prisoners was such as to constitute a prima facie breach of s 19(2) of the Human Rights Act.
However, his Honour did not accept that a breach of s 19(2) had the result that the offence was not committed in “lawful custody” within the meaning of the Sentencing Act. The primary judge explained at [54]: [T]hat section should not be interpreted so that a breach of the law relating to the conditions of detention in a prison renders the custody unlawful. A person may be in “lawful custody” even if there is a breach of the law relating to the conditions of their detention: R v Deputy Governor of Parkhurst Prison; Ex parte Hague [1992] 1 AC 58; Re an application for bail by Chris Meritt [2009] ACTSC 56 at [42]; Monaghan v Australian Capital Territory (No 2) [2016] ACTSC 352; 315 FLR 305 at [232].
Having found that the offender was in lawful custody for the purposes of ss 64 and 72 of the Sentencing Act, the primary judge did not set a non-parole period for the offence of recklessly inflict grievous bodily harm. His Honour further declined to issue a direction under s 72(3), and accordingly imposed a sentence that was accumulated on the appellant’s existing sentence: see McIver at [62].
However, his Honour nonetheless took into account the prima facie breach of the appellant’s human rights in determining the sentence to be imposed for the grievous bodily harm offence as follows: …The victim of his offending, who had earlier assaulted him, was a sentenced prisoner. Section 19(2) of the Human Rights Act provides that the offender, being a remandee, “must be segregated from convicted people, except in exceptional circumstances”. No exceptional circumstances or inconsistent law was pointed to which might avoid a contravention of s 19(2) either by reason of the terms of that provision or by operation of s 28 of the Human Rights Act. There was a causal link between the offender’s offending and his incarceration with sentenced prisoners because it was a sentenced prisoner who attacked him and against whom he retaliated. I do not accept that the causal link was broken because the offender had refused at some point during his remand, to be housed in the “protection” area of the prison. He did so because of the stigma associated with it and the other prisoners who were housed there. The causal link was not broken because any need for him to be afforded protection arose, at least in part, because of the need to get away from the environment which mixed sentenced prisoners and remandees. McIver at [53], emphasis added.
Ground 5: Manifest excess
The principles applicable to a claim of manifest excess are summarised in Tracey v The Queen [2020] ACTCA 51 at [37] – [38] as follows: The principles in relation to assessing whether a sentence is manifestly excessive are well-established. Appellate intervention is not justified simply because an appellate court may have a different view as to the most appropriate sentence (Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at [15]; Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [28]) or where the sentence is markedly different from sentences that have been imposed in other cases (Wong v The Queen [2001] HCA 64; 207 CLR 584 at [58] (Wong); Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 at [58] (Hili)). Rather, the appellant must demonstrate that the sentence is such that it may be inferred that there was a misapplication of principle by the sentencing judge, although when and how the error occurred is not apparent from the judge’s reasons: Wong at [58]; Hili at [58]–[59], [75]–[76]. To determine whether a sentence is manifestly excessive, it is necessary to view it in the context of the maximum sentence prescribed for the offence, the standards of sentencing customarily observed with respect to the offence, the relative objective seriousness of the particular offence, and the personal circumstances of the offender.
Broadly, counsel for the appellant submitted that the overall sentence, the non-parole period and the individual sentence imposed for the offence of recklessly inflicting grievous bodily harm are manifestly excessive. The appellant’s counsel further contended that: (a) The starting point of three years for the offence of recklessly inflicting grievous bodily harm was excessive; (b) The head sentence of four years and five months was also excessive, as the primary judge made all sentences wholly consecutive, ignoring the principle of totality; (c) The primary judge did not attach any or sufficient weight to there being a breach of the appellant’s human rights; (d) The primary judge failed to consider alternative sentencing options, including suspending part of the sentence; and (e) The effective non-parole period of 80 percent of the head sentence was also excessive.
For the reasons outlined in respect of ground 1 above, the appellant’s offending in respect of the offence of reckless infliction of grievous bodily harm was serious. That offence attracted a maximum penalty of 13 years’ imprisonment. Even taking into account the prima facie breach of the appellant’s human rights, condign punishment was required. For the reasons outlined in respect of ground 2 above, general deterrence remained a significant consideration. A starting point of three years was not manifestly excessive. In circumstances where the appellant committed further offences shortly after being granted bail following the commission of this offence, protection of the public remained an important consideration. The imposition of a partially suspended sentence would have been inappropriate.
Ground 6 – backdating sentences of imprisonment Overview
By way of application in proceedings filed on 10 May 2023, the appellant seeks an order granting him leave to adduce additional evidence contained in the affidavit of his instructing solicitor, affirmed on 9 May 2023. The Court admitted this evidence on a provisional basis.
The affidavit records that the appellant was charged on 3 September 2020 (prior to the commission of the index offences) with being knowingly concerned in an aggravated burglary and being knowingly concerned with an assault occasioning actual bodily harm (the 2020 offences). The appellant was bail refused from 10 September 2020 and was held in remand from that date until he was granted bail on 1 April 2021. He was arrested again following the commission of the offence of using a carriage service to menace on 17 May 2021. The appellant was later acquitted of the 2020 offences on 1 September 2021: R v McIver; R v Williams [2021] ACTSC 227.
On an appeal, this Court may receive further evidence pursuant to s 37N(3) of the Supreme Court Act: Hoyle v The Queen [2018] ACTCA 42; 339 FCR 11 at [27]-[31] and Bright v The Queen [2018] ACTCA 39 at [8]-[13]. Even where evidence is not fresh (that is, where the evidence was available in the proceedings below and could have been obtained with the exercise of reasonable diligence), the Court will receive new evidence where it is necessary to do so in order to avoid a miscarriage of justice: Betts v The Queen [2016] HCA 25; 258 CLR 420 at 423 [2] and 425 [10].
In the proceedings at first instance, the primary judge backdated the first sentence imposed, that is the federal offence of using a carriage service, to 17 May 2021, which was the day on which the appellant committed, and was arrested for, that offence: McIver at [67]. The charges of recklessly inflicting grievous bodily harm, demand with a threat to endanger health and possessing a knife without reasonable excuse commenced on 2 October 2021, 2 October 2024 and 26 September 2025 respectively.
In imposing these sentences, the primary judge noted that the appellant had spent 456 days in custody “referable to” the offences for which he was being sentenced: R v McIver at [41] – [42]. The primary judge stated that this period in custody would be taken into account by backdating the sentence imposed.
The appellant now contends that the sentence imposed should have been backdated further, to 10 September 2020, which was when the appellant was first remanded in custody for the 2020 offences.
There are two reasons why the appellant’s contention should not be accepted.
First, in the proceedings at first instance, the appellant’s counsel (who also appeared on the appeal) expressly agreed that it was appropriate for the sentence to be backdated to 17 May 2021 (and no further). It is difficult for the appellant to establish that a primary judge has erred in circumstances where the judge sentenced consistently with the express submission of his counsel: Zreika v R [2012] NSWCCA 44; 2012 A Crim R 460 at [81].
Section 16E of the Crimes Act 1914 (Cth) and s 63 of the Sentencing Act
The first offence for which the appellant was sentenced was the federal offence of using a carriage service to menace; the other three sentences were Territory offences.
The commencement of sentences against federal law is governed by s 16E of the Crimes Act 1914 (Cth) (the Commonwealth Crimes Act), which provides as follows: 16E Commencement of sentences (1) Subject to subsections (2) and (3), the law of a State or Territory relating to the commencement of sentences and of non-parole periods applies to a person who is sentenced in that State or Territory for a federal offence in the same way as it applies to a person who is sentenced in that State or Territory for a State or Territory offence. (2) Where the law of a State or Territory has the effect that a sentence imposed on a person for an offence against the law of that State or Territory or a non-parole period fixed in respect of that sentence: (a) may be reduced by the period that the person has been in custody for the offence; or (b) is to commence on the day on which the person was taken into custody for the offence; (c) the law applies in the same way to a federal sentence imposed on a person in that State or Territory or to a non-parole period fixed in respect of that sentence. (3) Where the law of a State or Territory does not have the effect mentioned in subsection (2), a court (including a federal court) in that State or Territory that imposes a federal sentence on a person or fixes a non-parole period in respect of such a sentence must take into account any period that the person has spent in custody in relation to the offence concerned.
As can be seen, s 16E directs the Court’s attention to Territory law concerning the commencement of sentences. The commencement of sentences for Territory offences is governed by s 63 of the Sentencing Act, which provides as follows: 63 Start of sentences—backdated sentences (1) The court may direct that a sentence of imprisonment is taken to have started on a day before the day the sentence is imposed. (2) For subsection (1), the court must take into account any period during which the offender has already been held in custody in relation to the offence. (3) However, subsection (2) does not apply to: (a) a period of custody of less than 1 day; or (b) a sentence of imprisonment of less than 1 day; or (c) a sentence of imprisonment that is fully suspended; or (d) the suspended part of a partly suspended sentence of imprisonment. (4) If the offender is charged with a series of offences committed on different occasions and has been in custody continuously since arrest, the period of custody for subsection (2) must be worked out from the time of the offender’s arrest. (5) Subsection (4) applies even if the offender is not convicted or found guilty of – (a) the offence for which the offender was first arrested; or (b) any particular offence or offences in the series.
As discussed further below, s 63 of the Sentencing Act is broader than s 16E of the Commonwealth Crimes Act, in that s 63(4) appears to expand the presentence custody that is required be taken into account to include any time served for unrelated offending (provided that the offender has been in custody “continuously since arrest”), whereas s 16E(2) and (3) are concerned only with presentence custody which is served by the offender “for the offence” (that is, the offence for which the offender is being sentenced).
An alternative power to take into account presentence custody?
In R v Renzella [1997] 2 VR 88, the Victorian Court of Appeal held that a Victorian provision, comparable to s 63, which required that time served in custody “in relation to proceedings for that offence… and for no other reason” be “reckoned as a period of imprisonment already served” was not an exclusive pronouncement of when presentence detention may be taken into account: Renzella at 89 and 98. The Court of Appeal held that the Court retained a discretion to take into account presentence detention in cases not covered by the statutory provision, including where an offender had been held in custody in relation to the proceedings for which the offender was being sentenced as well as for unrelated offending.
This aspect of the Court of Appeal’s reasoning in Renzella was obiter, because the Court allowed the appeal against conviction and ordered a retrial. Nonetheless, Renzella has been applied by Victorian courts in numerous decisions since it was decided. Further, although Renzella concerned an offender who had served presentence custody for the offence for which he was being sentenced as well as further offending (that was custody that is “doubly warranted”), the decision has since been applied by Victorian courts to reduce a sentence for custody served in respect of “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”: Karpinski v The Queen [2011] VSCA 94; 32 VR 85 at [2].
In Karpinski at [5], Weinberg JA expressed the view that taking into account of this form of “dead time” was “difficult to justify, either as a matter of logic, or in principle”. His Honour continued (at [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.
Nonetheless, his Honour concluded that, despite these misgivings, “the weight of authority” in Victoria required that the appellant receive some credit for at least part of the time that he spent in custody solely in relation to a charge of attempted murder for which he had later been acquitted: Karpinski at [8].
The New South Wales Court of Criminal Appeal has declined to follow this line of Victorian authority: see R v Niass (unreported, NSWCCA, 16 November 1988) and Hampton v R [2014] NSWCCA 131; 243 A Crim R 193; Refaieh v R [2018] NSWCCA 72; 272 A Crim R 245 at [74]; and Dib v Rex.
In New South Wales a “sharp” distinction is drawn between time on remand that is attributable, either solely or concurrently with some other basis of custody to refusal or revocation of bail for the charge upon which sentence will be passed and presentence custody that is solely attributable to unrelated offending: SY v R [2020] NSWCCA 320 at [48]. In New South Wales, it is well established that: … offenders will not be given quantified reductions in sentence to take account of periods spent in custody other than those referable to the offence or offences for which sentence is to be imposed and neither will sentences be backdated to achieve the same result: Dib v Rex [2023] NSWCCA 243 at [51].
Orders
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Amendments 23 February 2024 Replace the reference to Paragraph: [26] “paragraph [6]” with “paragraph [5]”. Remove “at [48], under s Paragraph: [71] 72(2) of the Sentencing Act” and insert “:see s 72(2) of the Sentencing Act” at the end of the same sentence.
McIver
The King [2023] ACTCA 48
Grounds 2 to 5 were each predicated on an alleged breach of the appellant’s human rights. The offence of recklessly inflict grievous bodily harm was committed by the appellant whilst he was being held on remand for unrelated offending (the victim of the reckless infliction of grievous bodily harm offence was another inmate). At the time this offence was committed, the appellant was a remand prisoner, but was detained with sentenced prisoners. The appellant submitted that these conditions breached s 19(2) of the Human Rights Act 2004 (ACT). The primary judge accepted that there was a prima facie breach of s 19(2), and took this breach into account in determining the sentence to be imposed with respect to the offence of reckless infliction of grievous bodily harm: McIver at [54].
In grounds 2, 3 and 5, the appellant contended that the primary judge had failed to give sufficient weight to the breach of his human rights, in particular in determining the weight to be given to general deterrence (ground 2) and in determining the overall sentence to be imposed (grounds 3 and 5).
Ground 4 concerns the application of ss 64 and 72 of the Sentencing Act, which preclude the setting of a non-parole period and contain a presumption against concurrent sentences for offences committed whilst in “lawful custody”. At first instance and on appeal, the appellant contended that because of the breach of s 19(2) of the Human Rights Act, he was not in “lawful custody” at the time that he committed the offence of recklessly inflict grievous bodily harm. The appellant submitted that the primary judge erred in rejecting this contention. As this ground of appeal raised a human rights matter, the Attorney-General of the Australian Capital Territory (ACT) intervened in respect of this issue.
For the reasons outlined below, the appellant has not established that he was not in lawful custody at the time of the commission of the offence of recklessly inflict grievous bodily harm. It follows that the fourth ground of appeal must be dismissed. The appellant has also failed to demonstrate any error for the remaining grounds of appeal. Accordingly, the appeal should be dismissed.
Dr Thomson stated these injuries will leave permanent scarring and may result in permanent loss or alteration of normal sensations, including numbness or exaggerated pain responses.
The primary judge referred to various decisions of this Court which emphasise the importance of general deterrence in respect of violence inflicted by one prisoner against another: McIver at [43] – [49], citing R v Islam [2015] ACTSC 99 at [8]; R v Potts [2018] ACTSC 299 at [18]; R v Bedford [2019] ACTSC 282 at [14]; R v Rappel [2019] ACTCA 11; Horan v O’Brien [2021] ACTSC 323 at [16] – [19]; and R v Collier [2022] ACTSC 18 at [11].
His Honour then made the following findings with respect to the need for general deterrence in the present case (McIver at [50] – [51]): These statements about the importance of general deterrence in the sentencing of offenders and the consequent need for stern punishment of crimes of violence committed against other prisoners are reflected in the legislative provisions which alter the generally applicable rules in relation to non-parole periods and concurrency: Crimes (Sentencing) Act 2005 (ACT), ss 64, 72. Plainly enough stern punishment of violent offending by prisoners is only one of a variety of means by which appropriate prison discipline is enforced. The requirement for such stern punishment is to be understood in light of the obligations upon the executive to ensure humane treatment of prisoners: Human Rights Act s 19(1)-(3). The greater the humanity of treatment afforded to detainees, the more justifiable are stern punishments when there is violence inflicted on other prisoners.
The appellant contended that the primary judge erred in taking the need for general deterrence into account in the particular circumstances of the present case. Specifically, as outlined further below in respect of the fourth ground of appeal, the appellant contended that there had been a breach of s 19(2) of the Human Rights Act because he was, as a prisoner on remand, detained with sentenced prisoners.
Counsel for the appellant submitted that: If the Human Rights Act had been complied with, this offence would never have happened. Whilst it does not excuse the conduct of the appellant, it puts it in a context that is different to the usual cases that come before the court.
The primary judge was correct to conclude that general deterrence was required in all of the circumstances: McIver at [43] – [55]. To have found otherwise would amount to condoning retaliatory violence within prisons.
Further, read in context, it is clear that the primary judge took into account the apparent breach of the appellant’s human rights in determining the weight to be given to general deterrence. As outlined above, the primary judge drew a connection between the justification of “stern punishments” for violence inflicted by inmates and the humanity of treatment afforded to detainees: McIver at [51]. His Honour also found that there was a “causal link” between the offender’s offending and his incarceration with sentenced prisoners, and accordingly took into account the “prima facie” breach of the appellant’s human rights when considering the sentence to be imposed: McIver at [53].
The appellant has not demonstrated that there was any error in the consideration by the primary judge of the issue of general deterrence.
The appellant’s counsel contended that the primary judge erred in finding that the appellant was in lawful custody at the time of the offending.
In so contending, the appellant’s counsel sought to distinguish R v Deputy Governor of Parkhurst Prison; ex parte Hague [1992] 1 AC 58. He contended that the decision in Hague was that an otherwise lawful imprisonment is not rendered unlawful only by reason of the conditions of detention: Hague at 166G. He submitted that the present case may be distinguished, because the appellant’s custody was rendered unlawful by s 19(2) of the Human Rights Act. In this respect, the appellant’s counsel noted that the decision in Hague predated the introduction of the Human Rights Act 1998 (UK). The appellant’s counsel ultimately submitted that a person can be held in “unlawful custody”, even though the person is lawfully detained in accordance with the Corrections Management Act 2007 (ACT).
In response, counsel for the respondent noted that, in the proceedings at first instance, the appellant had failed to provide notice to the Attorney-General and the Human Rights Commission that he was raising the application of s 19 of the Human Rights Act in the sentence proceedings. As noted above, such notice was provided on this appeal, and the Court was provided with written and oral submissions on behalf of the Attorney General, intervening.
Counsel for the respondent also observed the appellant gave evidence in the proceedings below that, prior to being moved to the “Protection Unit”, he was being threatened by detainees in the remand unit. The respondent’s counsel submitted that, in view of this evidence, “there may have been reasonable grounds for suspecting, at the time, that the appellant’s accommodation was necessary to ensure his safety”. The requirement in s 19(2) of the Human Rights Act for remand prisoners to be segregated from convicted people does not apply where there are “exceptional circumstances”. However, the respondent did not file a Notice of Contention nor was the primary judge’s finding that there was a prima facie breach of the Human Rights Act otherwise the subject of formal challenge. In these circumstances, we will proceed on the basis that the primary judge did not err in finding that there was a prima facie breach of the Human Rights Act.
Finally, counsel for the respondent submitted that, even if the conditions in which the appellant were incarcerated were not compliant with the Human Rights Act, such a breach would not render his custody “unlawful” for the purposes of s 64 of the Sentencing Act. The respondent’s counsel submitted that it is well established that a breach of the conditions of custody does not render a person’s detention unlawful: see Knight v Governor, Port Phillip Prison [2014] VSC 10 and the authorities cited therein.
The Attorney-General also submitted that the primary judge was correct to conclude that a breach of s 19(2) of the Human Rights Act did not cause the appellant’s custody to be unlawful for the purposes of ss 64 and 72 of the Sentencing Act. In particular, the Attorney-General contended that the appellant’s custody was authorised by ss 16 and 18 of the Crimes (Sentence Administration) Act 2005 (ACT) (Sentence Administration Act), which relevantly: (a) “[Authorise] the Director-General to have custody of the remandee under [a remand] order” (s 16(a) of the Sentence Administration Act); (b) “[Require]” the director-general to “take the remandee into custody and to keep the remandee under full-time detention under the [remand] order” (s 16(b) of the Sentence Administration Act); (c) Require the Director-General to “keep the remandee in custody under full-time detention under this Act and the Corrections Management Act 2007 under the order for remand” (s 18(1) of the Sentence Administration Act); and (d) Require the director general to “ensure the remandee is held in custody in the place that the Director-General decides is the most appropriate”, having regard to the matters stated in s 18(3) (s 18(2) of the Sentence Administration Act).
Ms Younan SC, who appeared for the Attorney-General, submitted that there was no basis to conclude that the authority of the director-general to take and keep a remandee in custody under these provisions was conditioned by, or subject to, compliance with s 19(2) of the Human Rights Act.
In our view, this ground of appeal should be dismissed for the reasons outlined by counsel for the respondent and the Attorney-General intervening.
Central to the appellant’s contention under this ground is the proposition that a person may “lawfully be in a correctional centre but still not be held in lawful custody within the correctional centre”.
In other words, the appellant did not challenge the primary judge’s conclusion that conditions of custody cannot render unlawful custody that is otherwise lawful; nor did he contend that a breach of the Human Rights Act entitled him to release; nor did he contend that ss 64 and 72 of the Sentencing Act were incompatible with the Human Rights Act. Rather, the appellant’s submission appeared to be limited to the narrower proposition that the words “lawful custody” in ss 64 and 72 of the Sentencing Act do not extend to a situation where a person is detained in breach of s 19(2) of the Human Rights Act.
The appellant’s contention requires consideration of the proper interpretation of ss 64 and 72 of the Sentencing Act.
Section 30 of the Human Rights Act requires that “so far as it is possible to do so consistently with its purpose, a Territory law must be interpreted in a way that is compatible with human rights”. However, … it is important to observe that s 30, by its very wording, contains a caveat, expressed in the words “So far as it is possible to do so consistently with its purpose, a Territory law…”. Accordingly, the [Human Rights Act] does not change an interpretation but rather assists with interpretation of a section provided that this assistance can be given in a way that is not inconsistent with the section’s purpose. Andrews v Thomson [2018] ACTCA 53; 275 A Crim R 386 at [45].
Read in the context of the legislation as a whole, it is clear the phrase “lawful custody” in ss 64 and 72 of the Sentencing Act is intended to mean custody that is authorised by law: see similarly Brown v Australian Capital Territory [2020] ACTSC 70; 350 FLR 417.
The phrase “lawful custody” is used in various provisions of the Sentencing Act. These provisions should be interpreted consistently. As Senior Counsel for the Attorney General noted, s 62 of the Sentencing Act provides that where an offender is not in custody, a sentence of imprisonment “starts… on the day the offender becomes subject to lawful custody”. It could not be suggested that an offender should not have the benefit of time served under this provision, simply because there was a breach of the Human Rights Act during the offender’s detention.
As Senior Counsel for the Attorney-General further submitted, the legislative policy behind ss 64 and 72 of the Sentencing Act is concerned with general deterrence and the need for stern punishment for violent crimes committed against other prisoners. This policy applies with equal force even where there has been an apparent breach of s 19(2) of the Human Rights Act, while still permitting that circumstance to be taken into account on sentence as a relevant subjective circumstance.
In summary, we consider that the words “lawful custody” in ss 64 and 72 of the Sentencing Act should be read in accordance with their ordinary meaning: that is, detention which is authorised by law. As the appellant’s detention was authorised by ss 16 and 18 of the Sentence Administration Act, it follows that he was in “lawful custody” within the meaning of ss 64 and 72 of the Sentencing Act.
It follows that the primary judge did not err in finding that ss 64 and 72 applied to the appellant, notwithstanding the apparent breach of s 19(2) of the Human Rights Act. However, as the primary judge also correctly held, any non-compliance with the Human Rights Act, including a breach of s 19(2), is a matter which should be considered by the sentencing court in determining the appropriate sentence to be imposed. As noted above, the primary judge expressly took into account the prima facie breach of the Human Rights Act when sentencing the appellant.
It follows that this ground of appeal must be dismissed.
The appellant’s remaining complaint in respect of this ground of appeal concerns issues of totality (that is, particulars (b) and (e) above).
Importantly, as outlined in respect of ground 4 above, in circumstances where the primary judge did not make a direction under s 72(3), any sentence of imprisonment imposed for the offence committed in prison had to be served consecutively: see s 72(2) of the Sentencing Act. The primary judge properly declined to make a direction under s 72(3) of the Sentencing Act, referring to considerations of totality and correctly noting that cumulation is the default position under s 72(2): McIver at [63].
The appellant has not established that there is any error in the primary judge’s exercise of discretion. Accordingly, this ground of appeal must be dismissed.
More importantly however, for the reasons outlined below we are of the view that, a different outcome would not have been reached if the new evidence had been produced on the original sentence: Grey v The Queen [2022] ACTCA 2 at [207]. That is, even if the new evidence were admitted, the sentence should not be backdated in the way contended for by the appellant.
Given the different scope of the two provisions, if s 63 of the Sentencing Act requires a court to backdate a sentence to encompass presentence custody that is not in any way referable to “the offence” for which the offender is being sentenced, there may be a question as to whether s 63 of the Sentencing Act can be applied by s 16E of the Commonwealth Crimes Act to the sentencing of federal offences. It is unnecessary to decide that issue in the present appeal, as we are of the view that s 63 has no application to the appellant in the circumstances of the present case.
Section 63(2) of the Sentencing Act requires that the court take into account time spent in custody “in relation to the offence”. The words “in relation to” are broad in meaning: Hawkins v Hawkins [2009] ACTSC 148; 3 ACTLR 210 at [81]; Alimudin v McCarthy [2008] NTCA 7; 23 NTLR 102 at [24]. It is not necessary for the presentence custody to be exclusively referrable to the crime for which the offender is being sentenced: Hawkins at [80]. Rather, presentence custody may be taken into account where an offender is on remand for the instant offence as well as in respect of unrelated offending (that is, where the custody is “doubly warranted”: Dib v Rex [2023] NSWCCA 243 at [65] – [66]). Nor is it necessary for there to be an “exact identity” between the offence charged and the offence for which the sentence is ultimately passed: Alimudin at [28]. Rather, it will be sufficient if there is “conformity between the conduct that led to the arrest and the conduct for which the person was ultimately sentenced to imprisonment”: Alimudin at [28].
However, the power to backdate a sentence under s 63 is not unconstrained. Under subsection (2), the court must take into account any period during which the offender has been held in custody “in relation to” the offence for which the offender is being sentenced. In his oral submissions on the appeal, the appellant’s counsel correctly acknowledged that the additional period of presentence custody which the appellant now seeks to be taken into account was not “in relation to” the offences for which he was sentenced. During the period now sought to be taken into account, the appellant was on remand only for the 2020 offences. The offences for which the appellant was being sentenced had not yet been committed.
For this reason, the appellant’s counsel relied on s 63(4) and 63(5) of the Sentencing Act, which provide that where an offender is charged with a series of offences committed on different occasions, “the period of custody for subsection (2) must be worked out from the time of the offender’s arrest”, regardless of whether the offender is found guilty of, or acquitted of, the other offending.
Section 63(4) represents a significant expansion of s 63(2), in that it requires custody that is not referable to the offending for which the offender is being sentenced to be “taken into account” when a sentence is backdated, provided that the period of custody for the unrelated offending is continuous with the period of custody for which the offender is being sentenced.
Of course, where a period of presentence custody has already been taken into account by another court when sentencing the offender for the unrelating offending, s 63(4) does not require that the sentence be backdated to the earlier period. As Mossop J observed in R v Williams [2017] ACTSC 298 at [42], s 63(4) “does not compel what might be described as double dipping”; see similarly Wronski v Raue [2012] ACTSC 87 at [15] – [19].
Nevertheless, at the time of sentence, the appellant had not been in custody continuously since arrest. As outlined above, he was granted bail and was released on 9 April 2021: McIver at [40]. He remained on bail until the commission of the threat offences on 17 May 2021, at which time he was arrested and returned to custody. From 17 May 2021, the appellant was bail refused also for the grievous bodily harm offence.
As the appellant had not been in continuous custody since his arrest for the 2020 offences, the appellant cannot invoke s 63(4) of the Sentencing Act in support of his contention that the time which he spent on remand for those offences be taken into account as “time served”.
Accordingly, s 63 does not require that the period of time that the appellant was remanded in custody for the 2020 offences be taken into account, either when backdating the sentence to be imposed, or otherwise.
Central to the approach in New South Wales (and the reservations expressed by Weinberg JA in Karpinski) are the public policy concerns that weigh against consideration of unrelated offending for which an offender is ultimately acquitted as “credit in the bank”, which may then be deducted from the sentence imposed in respect of any future offending: see again Niass; Hampton; Refaieh at [74]; and Dib.
The decisions in Niass, Hampton and Dib do not appear to have been judicially considered in the Australian Capital Territory.
In Singh v Wilson [2019] ACTSC 199 at [11], Mossop J accepted that the “rationale for the conclusion in Renzella is equally applicable in the Territory”. However, it is clear from the context of the decision that the “conclusion” that Mossop J was speaking about was the determination that a court retains a discretion to take into account presentence detention, and not the broader proposition developed in later Victorian decisions that an offender may have his or her sentence backdated to take into account time that has been “wrongly served” in the past for unrelated offending.
It may be accepted that s 63 of the Sentencing Act is not an exclusive statement of the circumstances in which presentence custody may be taken into account by a sentencing court. Many of the purposes of sentencing may be impacted where an offender has served a period of imprisonment prior to the offence for which they are being sentenced: s 7 of the Sentencing Act. It is well open to a sentencing court to take these matters into account: see similarly Hampton at [31]. In addition, in considering the application of principles of totality, a court may take into account prior custody in respect of unrelated offending: Mill v The Queen [1988] HCA 70; 166 CLR 59. Generally speaking, where presentence custody is relevant for these purposes, it will be taken into account by the sentencing court as a part of the determination of the appropriate sentence to be imposed, rather than as a backdating or other similar accounting of “days served”.
However, although presentence custody for unrelated offending may be taken into account when considering the offender’s subjective case and issues of totality, we do not consider that time spent by an offender in custody for wholly unrelated offending should be taken into account in and of itself as “time served”. The criticisms of such an approach in New South Wales authority considered above, and by Weinberg JA in Karpinski are well-founded.
In summary, we conclude that, where s 63 of the Sentencing Act does not apply: (i) Time spent in custody solely for unrelated offending is not, in and of itself, to be regarded as “time served” or “credit” that should reduce a sentence by backdating the sentence to be imposed, or otherwise “accounting” for the time spent in custody. (ii) However, time spent in custody for unrelated offending may be relevant to other aspects of the sentencing exercise. In particular, such custody may be relevant to an assessment of the offender’s subjective case, to the application of principles of totality, or may otherwise be relevant to an assessment of the weight to be given to the different purposes of sentencing.
In the present case, the primary judge backdated the sentence to take into account all of the time that the appellant had spent in custody in relation to the offences for which he was sentenced. His Honour did not backdate the sentence to take into account the time spent in custody for the earlier offence. This approach was consistent with the submissions of the parties in the proceedings before him. It was also correct as a matter of law.
Although the primary judge did not take the time that the appellant had spent in custody for unrelated offending into account by way of backdating under s 63 of the Sentencing Act, the primary judge correctly took the earlier custody into account when assessing the appellant’s subjective case. In particular, the primary judge acknowledged that the appellant in this case was in custody for an unrelated matter when the offence was committed, and took into account the fact that there was a causal link between the appellant’s offending and his incarceration with sentenced prisoners: McIver at [3] – [12] and [53] – [54].
The new evidence does not demonstrate that there was any error in the approach of the primary judge. The application for leave to adduce new evidence should be refused and this ground of appeal should therefore be dismissed.