R v Jennings [1998] VSCA 69 - VSCA 1998 case summary — Zoe

VICVSCA

R v Jennings [1998] VSCA 69

[1998] VSCA 69

Court of Appeal (Vic)|1998-10-13|Before: BROOKING, TADGELL and PHILLIPS, JJ.A.

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At a glance

Source facts

Court

Court of Appeal (Vic)

Decision date

1998-10-13

Before

BROOKING, TADGELL and PHILLIPS, JJ.A.

Source

Original judgment source is linked above.

Judgment (41 paragraphs)

[1]

The applicant applied for leave to appeal against sentence on the ground, inter alia, that there was no proper parity when the sentences meted out to him were compared with those given at the same time to his co-offender, Morgan, who had pleaded guilty to six counts which were nearly, but not quite, the same as those of which Jennings had been convicted. Morgan also sought leave to appeal against sentence and both applications were in substance dismissed, although in the case of Jennings the application was allowed only for the purpose of correcting errors made by the trial Judge in articulating the individual sentences in order that these did add up to the total effective sentence of seven years.

[2]

All this is dealt with in the judgment handed down on 2 June 1998: R. v. Jennings and Morgan. But then a problem arose about the calculation of pre-sentence detention in the case of Jennings, a problem which was explained to us a day or so later when we reconvened for the purpose on 4 June. Jennings and Morgan were sentenced for offences committed by them while in company on the night of 5 and 6 January 1997 and they were both arrested in the early hours of 6 January. Thus by the time they were sentenced on 30 January 1998, both had spent some 390 days in custody. In relation to Morgan, a declaration was accordingly made under of the , that 390 days should be reckoned as a period of imprisonment already served under the sentences imposed on 30 January, but no such declaration was made in the case of Jennings. It appears that the trial judge regarded such a declaration as inappropriate because Jennings had offended while on parole for previous offences, parole which had been revoked in consequence of his re-offending.

[12]

If, as I suggest, s.584(4) does not restrict or confine the Court in that regard, in every case it must, I think, be a matter for the Court of Appeal so to frame its orders as to produce the desired result. In the ordinary course it should be apparent from the very terms of the sentence passed by the Court of Appeal the date from which it should be calculated to run. For example, if the Court of Appeal, on appeal by a prisoner who has been sentenced to seven years' imprisonment, quashes that sentence and substitutes therefor imprisonment of five years, that period of five years will be understood as replacing the seven years without any alteration of the date from which the sentence is to be calculated as running, unless of course there is reason to suppose otherwise from the terms of the order attending the imposition of the sentence. (As will be seen, these days there is no suspension, under s.579(3) of the Crimes Act, of time running under the sentence pending determination of the appeal.) It will be much the same if on appeal the Court of Appeal were to reduce (or indeed increase) an existing period of disqualification; time would be seen readily enough as running still from the time when that disqualification was first imposed (except perhaps if there had been a stay pending appeal: compare Frugtniet v. Secretary of the Department of Justice, Court of Appeal, 24 April 1996, unreported). In other cases it may be obvious from the terms of the sentencing disposition that the order of the Court of Appeal will not only take effect when made (albeit in substitution for the sentence under appeal); any calculation of time will also run from that date. So it will be (in the absence of something in the appellate order requiring a different result) if the Court of Appeal imposes a sentence of imprisonment when none was imposed below, or if it puts in place a community based order in place of a sentence of imprisonment, or if it attaches, for the first time, a period of disqualification which can have had no effect before the making of the order on appeal. If in such cases there is doubt, or room for doubt, the Court of Appeal will surely act to express its sentencing intention unequivocally - just as we are being invited to do on this occasion.

[16]

The foregoing depends very much upon the view, which I take, that s.18(1) is concerned only with what is commonly called "pre-sentence detention". I regard that as a convenient and accurate shorthand; for, as I read it, s.18(1) is dealing with time spent in custody before the commencement of the sentence and which (by virtue only of the statute) is to be "reckoned" as time already served under the sentence. Time in custody after commencement of sentence is surely time served under the sentence, but it is difficult to see how time in custody before the commencement of the sentence could be so reckoned, were it not for statute - and hence s.18(1). Time in custody before the imposition of sentence, if to commence before its imposition, might occasion less difficulty but I do not think that s.18 is directed to sentences which commence on a date before they are imposed (as may happen on appeal) if only because, in so far as it is concerned with courts, s.18 is surely concerned principally with the trial court (and only incidentally with an appellate court) and by virtue of s.17 a sentence of imprisonment imposed at first instance is to commence when imposed, not earlier. In my opinion, "pre-sentence" and "commencement of sentence" are the correlatives so that, apart from the effect of the statute itself, time in custody pre-sentence (before it has commenced) is not time in custody under the sentence (once it has commenced). Section 18 requires that pre-sentence detention, in certain circumstances, "must" unless otherwise ordered "be reckoned as a period of imprisonment already served under the sentence" and it is to that end that s.18(4) obliges the sentencing Court (and thus the Court of Appeal when acting in place of the sentencing Court) to make the relevant declaration. Sometimes, for one reason or another, s.18(1) does not apply to time spent in custody before sentence is passed and in such cases some other course must be followed if the prisoner is to have such time brought to account. For example in Petherick the term of imprisonment ordered by the Court of Appeal was shortened by arithmetical calculation; in other cases a reduction is made more generally: R. v. Heaney (Court of Appeal, 26 March 1996, unreported) at p.6 per Brooking, J.A., Brock, supra. But whatever the course followed, pre-sentence detention (or detention in custody before the commencement of sentence) should be understood in concept as standing in contrast to time served under the sentence (once the sentence has commenced); for, as I read it, that is the premise upon which s.18(1) proceeds.

[28]

When Mr. Galbally introduced his private member's bill in 1971, he was concerned that time spent in custody before conviction and, as well, time spent in custody after conviction and pending appeal should go to the credit of the prisoner. Although the mechanism adopted was different from that suggested by Mr. Galbally, the same concern was reflected in the speech of the Minister when the bill to introduce s.202A was read a second time in 1975. Yet on neither occasion, in 1971 or 1975, nor (which is perhaps more notable) in the 1974 report of the Statute Law Revision Committee which led to the introduction of the measure, is there any specific reference to the reason why time in custody between conviction and appeal was not already counted as time served under the sentence. It was surely not thought to be the product of s.579(3) of the Crimes Act 1958 (of which more anon) because no mention is made of that section in the Debates or in the Committee's Report and if s.579(3) had been the source of the problem in relation to time in custody after conviction and pending appeal, a short amendment to s.579(3) would have been the simple remedy. It seems then that Parliament, and indeed the Committee, must have been acting on the view that a sentence imposed on appeal, whether or not in substitution for a sentence imposed below, commenced to run from the time of its imposition on appeal, or perhaps from the first day of the sittings of the appellate court (reflecting the provision then made by s.122 of the Social Welfare Act 1970 ). Be that as it may, it can be said with some confidence that if first the Committee and then Parliament saw the need to make specific legislative provision for the case of time spent by the prisoner in custody between the passing of sentence by the trial court and the determination of an appeal by the appellate court, they were certainly not of opinion that a sentence imposed on appeal ran from the date on which the sentence under appeal was imposed below or had commenced to run. Had that been their opinion, there would have been no need to provide for time in custody pending appeal; for, being time spent in custody after sentence was first passed, that must have counted as time served under the sentence, whether it was the sentence imposed at trial and commencing on the first day of the sittings or the sentence imposed on appeal, if commencing as did the sentence imposed at first instance.

Parties

Applicant/Plaintiff:

# R

Respondent/Defendant:

Jennings \[1998\] VSCA 69

Legislation Cited (52)

Crimes Act 1898

Appeal Act 1914

Services Act 1970

Welfare Act 1970

Welfare Act 1973

Welfare Act 1986

Social Welfare Regulations 1962

Appeal Act 1912

Law Consolidation Act 1935

Welfare (Amendment) Act 1975

Sentences Act 1985

Welfare Act 1985

Legislation Act 1984

Welfare Act 1981

Justice Administration Act 1962

Sentences Act 1958

Other Acts (Amendment) Act 1997

Appeal Act 1968

Gaols Act 1887

(Commencement of Sentences) Act 1966

Welfare Act 1975

Welfare Services Act 1970

Welfare Act 1992

Welfare Act 1896

Appeal Act 1907

by 1975 s.182 had been renumbered as s.203). The Social Welfare Regulations 1962