R v Chimirri [2003] VSCA 45

2. This application comes before us in somewhat unusual circumstances. The applicant Chimirri was sentenced on 20 December 2001 on one count of kidnapping pursuant to s.63A of the Crimes Act, a crime which carries a maximum sentence of 25 years, and of which this particular crime was a serious example. The judge sentenced Chimirri to a period of four-and-a-half years and ordered that he serve a minimum period of two years. The applicant stood for sentence with two other offenders with whom he committed this crime in company, and the circumstances of it involved an assault upon a person with pistols, so that the person was subdued and bundled into a motor vehicle driven by another of the co-offenders and taken to a house with a view to holding him for ransom. Ultimately the ransom was paid and the victim was released.

5. The unusual circumstances in which this appeal arises are as follows. This offence occurred on 2 August 1999 and, on 3 August, Chimirri was arrested and placed in custody for the kidnapping. At that time he was on parole for an offence of manslaughter which had been committed in 1996 or thereabouts. Having been taken into custody for the kidnapping, he was bailed on 15 September 1999 and released into the community on that bail. On 24 May 2001 he was arrested again and taken back into custody on a charge of attempted murder. No application was made for revocation of his bail in respect of the kidnapping and he remained on bail for that crime. On 29 November 2001 he pleaded guilty to the kidnapping in the County Court, and on that day the bail on which he had previously been released for the kidnapping was revoked and he remained in custody then until 17 December 2001, when the plea was heard. It was on 20 December 2001 that the judge imposed the sentence for the kidnap to which we have previously referred. About a year later, the applicant was arraigned on the charge of attempted murder and was acquitted.

8. In the course of the plea hearing for the kidnap, the judge declared under s.18 of the Sentencing Act that the applicant was entitled to have taken into account a period of 44 days, that being the period between the arrest on 3 August 1999 and the date of being bailed on 15 September 1999. It is here conceded that the judge should also have taken into account for the purposes of that declaration the period that he had spent in custody between 29 November 2001, when he was first arraigned before the judge on the charge, and the date of sentence on 20 December 2001. At that time, it is 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. That means that the judge's sentencing discretion erred in respect of the time declared, because it should have been 66 days and not 44 days.

11. Nevertheless, it 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[1] and Stares[2]. It is conceded by the prosecutor that the judge ought to have taken that time into account for the purposes of exercising his discretion as to the appropriate sentence, the fact being 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, and it was for that reason that the Registrar extended the time for appeal against sentence at some stage during the course of this month.

14. 5 When we come to exercise the discretion that the judge should have exercised, the Court has taken the view that this offence was a very serious example of the offence of kidnap and, generally speaking, it can be said that the sentence imposed by his Honour was about as lenient a sentence as could possibly have been imposed for this crime. 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.

17. In all the circumstances we think that some account ought to be taken of 189 days, but not the whole of the 189 days, and in our view it would be appropriate, in all the circumstances of this case, to allow three months in respect of that time spent in custody.

20. Accordingly, we will allow the application and the appeal and in lieu of the sentence imposed by the learned judge below we will impose a sentence of four years and three months and fix a period which has to be served before parole of one year and nine months.

23. 8 Pursuant to s.18 of the Sentencing Act 1991 we declare that a period of 66 days, calculated to 20 December 2001, has been served and we direct that the declaration and its contents be noted in the records of the Court.

[1] R. v. Renzella [1997] 2 V.R. 88 at 96.

[2] R. v. Stares [2002] VSCA 70; (2002) 4 V.R. 314.