R v Jones [1997] QCA 132

In the result, the learned sentencing judge considered that no declaration could be made under s. 161 of the Penalties & Sentences Act giving him any credit for the time spent in custody, and it was not taken into account.

The applicant went to trial on the present matters, but after a day spent on a voir dire followed by an adverse ruling, he pleaded guilty to the present counts.

Two main questions arise. Firstly, should he have been given some benefit for the time spent in custody? Secondly, overall are the sentences manifestly excessive?

As to the first point, he was originally granted bail in respect of the present and other offences. He was subsequently arrested for further offences which have yet to be dealt with. He was remanded in custody with respect to those further offences, no doubt because they were allegedly committed while he was already on bail in respect of the present and other offences. When the committal came on for hearing, bail was opposed by the Crown, and he was remanded in custody with respect to the present and other offences as well as the further offences. In these circumstances, his pre-trial custody is the result of several factors, including his commission of the present offences. The learned sentencing judge was correct in holding that his pre-sentence custody was not solely in relation to proceedings for these offences, and that he was not entitled to a declaration of time served under s. 161 of the Penalties & Sentences Act.

However the fact that the specific benefit contemplated by s. 161 of the Penalties & Sentences Act cannot be given to an offender is not the end of the matter. In R v Holton CA 382 of 1996, unreported, 10 December 1996, this Court recognised that varying benefits might be conferred upon offenders when there are concurrent causes for pre-sentence detention, not all of which are his own fault.

" Prior to the introduction of the Penalties & Sentences Act 1992 the courts in this state framed sentences to take into account pre-sentence custody. The various techniques by which this was done, and some of the difficulties involved are discussed in R v. Wishart and Jenkins [1993] QCA 563; [1994] 2 Qd.R. 421, 428. There was always a grey area when pre-sentence custody could be seen to be attributable to causes other than detention on the charges for which the offender was to be sentenced. For example if an offender was taken back into custody because he breached the conditions of bail, the period thereafter spent in custody would not normally be regarded as a period for which the offender was entitled to any credit. On the other hand, if an offender was held in custody on a variety of charges, and the offence for which he fell to be sentenced might fairly be regarded as a concurrent cause of his detention, a credit would be allowed, but of course only once.

Sections 158 and 161 of the Penalties & Sentences Act did not manage to reproduce the untrammelled discretion which had previously existed. The rigidity in s.161(1) of the requirement that the offender be held in custody in relation to the proceedings for the offence and for no other reason creates difficulties, as the present case illustrates. However the former jurisdiction and discretion is retained when the court "otherwise orders" under s.161(1)."

It might be added that the Court in any event retains an inherent discretion to frame a sentence that takes all relevant matters into account.

In the present case the eleven months' detention seems to have been attributable to a number of factors, one of which was the pendency of other charges against him, allegedly committed both before and after the present offences. If the applicant is eventually acquitted of the remaining offences, no further opportunity will arise for him to be given any credit for the substantial period that he has spent in custody. Further, even if he is convicted of them, or some of them, it is possible that he will again fail to satisfy the requirements of s. 161. In this rather unsatisfactory state of affairs, it would seem that the learned sentencing judge failed to consider the discretion he had to allow a partial benefit to the applicant with respect to the eleven months pre-sentence custody. Certainly there should not be a full allowance for it, but neither should it be overlooked. No occasion arises for the specific grant of any benefit under s. 161, or for "otherwise ordering" under s. 161(1), because no pre-sentence custody of the kind there described was served. The benefit to which the applicant is entitled is simply that some of the time already served should be taken to be attributable to his being held on the present offences. It cannot be entirely discounted on the footing that his incarceration was solely the result of his breach of the conditions of bail, or that his conduct was such that he should be required to serve another eleven months without discount. Duplication of benefit is avoidable if the sentencing court states, for the benefit of any later sentencing court, the notional benefit that is granted. In the present matter, it is indicated that a notional benefit of approximately half of the eleven months will be allowed to the applicant in the order which this Court makes.

His criminal history was said to have been largely contributed to by his unfortunate habit of gambling. It was also submitted that the last offences of dishonesty were in 1988. However that submission is somewhat undermined by the circumstance that he was in prison for a good proportion of the time since he was sentenced for those offences.

The learned sentencing judge, in his sentencing remarks, used phrases such as "persistent and determined offender", "lengthy record of antisocial behaviour", "a professional swindler and a trickster", "a cunning and plausible rogue" and expressed "no doubt that as soon as you are released from gaol you will immediately commence to prey upon your fellow man." He then proceeded to impose the maximum term of five years, allowing only a very small discount for the plea of guilty, noting that it came "very late".

Accepting all these derogatory epithets and factors, the fact remains that we are concerned with false pretences by means of passing cheques, where the total loss was in the vicinity of $25,000. The offences occurred in the course of an attempt to run a business which was said to be "not going too badly up until the end of 1994." A five-year sentence, with minimal parole benefit, seems too high in all the circumstances.

The two cases cited in argument, of Cooper CA 23 of 1993, unreported, 15 March 1993, and Sievers CA 10 of 1993, unreported, 26 February 1993, do not support the present sentences. The five-year sentence in Cooper was with respect to a considerably greater number of charges, degree of criminality, and value of property, committed over sixteen months. Sievers was sentenced to four years in respect of 18 counts (including 13 counts of misappropriation by means of a scheme which netted in excess of $34,000). Sievers also had an extensive criminal history for offences of dishonesty over a thirty-year period.

Counsel for the Crown submitted that the learned sentencing judge was entitled to treat the present case as in the worst category of such offences, but reprehensible as his conduct was, it is difficult to sustain that submission. Unfortunately it is a fairly ordinary sample of false pretences by use of cheques where the total loss to suppliers was $25,000. The aggravating factor obviously is his criminal record. While that is very relevant, it cannot be allowed to overwhelm the sentencing exercise and to increase the sentence to the extent it seems to have done.

In all the circumstances, including the entitlement to consideration for the plea of guilty, although a substantial sentence was warranted, it should have been less than the maximum and it should contain appropriate credit for the pre-sentence custody. We would allow the appeal and set aside the sentences below and replace them with sentences of four years concurrent, with a recommendation that he be considered for parole after one year and nine months.

Custody between date of sentence and determination of appeal

During the appeal the Court was asked to make a direction that would ensure that the period that has elapsed between the date of sentence and the appeal will be counted as time served under the sentence. The Court was informed that after imposition of the present sentences the applicant failed to make an election under s. 75(3)(a) of the Corrective Services Act. We have been told that as he still faces other charges he will receive no credit in respect of the period of about three months since the sentences were passed, that is to say that the period will not be counted as part of the present sentences.

Reference was made to s. 671G of the Code and to s. 75 of the Corrective Services Act and s. 154 of the Penalties & Sentences Act. The general sentencing requirement (formerly under s. 20 of the Code, and now under s. 154 of the Penalties & Sentences Act) is that on conviction on indictment a term of imprisonment starts on the day that the Court imposes the sentence. However s. 671G of the Code provides a different regime with respect to the period pending the determination of an appeal. It deals not only with persons who are granted bail pending appeal, but also with those who remain in custody. Section 671G(3) provides that, subject to any directions which the Court may give to the contrary on the appeal,

"the time during which an appellant, if in custody, is specially treated as an appellant under this section, shall not count as part of any term of imprisonment under the appellant's sentence."

Section 671G(3A) further provides that the sentence, whether passed by the Trial Court or the Court of Appeal, shall, subject to any directions which the Court may give under sub-s. (3), "begin to run . . . as from the day on which the appeal is determined . . ." The appellant is "specially treated as an appellant under this section" because s. 671G(1) requires him to be treated in the manner directed "under the laws relating to prisons" and s. 75(2) of the Corrective Services Act 1988 provides that an appellant detained in custody pending determination of an appeal is to be treated "as an unconvicted prisoner on remand and . . for the purpose of the Criminal Code s. 671G, be deemed to be specially treated as an appellant."

Such prisoners, however, are given the opportunity to have their pre-appeal custody counted as time served under the sentence. Section 75(3) of the Corrective Services Act provides that notwithstanding the provisions of s. 671G of the Code,

"an appellant who is detained in custody in a prison pending the determination of the appeal may by notice in writing require the Commission to treat the appellant as a prisoner serving a term of imprisonment."

Again, the jurisdiction of the Court of Appeal to make a direction to the contrary is recognised.

The possibility therefore exists that a prisoner who fails to elect, or who elects mistakenly or unwisely, will not get credit for the time spent awaiting appeal unless a special direction is made by the Court of Appeal. Such a situation came before the Court in R v. Harrington C.A. 163 of 1994 (Fitzgerald P, Pincus JA and White J, 23 August 1996). Harrington had not elected to be treated as a sentenced prisoner and his counsel during the appeal was not aware of any difficulty. The appeal was dismissed without any special direction being made. In the event, he spent a considerable time between original sentence and the abandonment of a subsequent appeal to the High Court, without any credit for time served. The Court entertained his subsequent application. It was informed that the only significant difference between being treated as an appellant and as a sentenced prisoner was that an appellant could make more telephone calls. It is possible that other administrative factors also operate indirectly, such as security status and location, but it was not suggested before us that there is any significant advantage overall in one status over the other.

The Court undoubtedly has a discretion to make the order requested, and in Harrington the Court acceded to the request.

No problems exist with respect to appellants who obtain bail. They have no justification for treating such a period as time served. However, prima facie, a prisoner detained in custody after a sentence has been imposed should be treated as serving that sentence. "Remand" time is treated as time fully served when Courts give credit for pre-sentence custody (Penalties & Sentences Act ss. 158 and 161). In the absence of exceptional factors (for example a finding that the appeal was vexatious and instituted to facilitate a transfer to a remand facility) a direction under s. 671G(3) would ordinarily be appropriate, and should direct that the time during which the applicant was in custody pending the appeal should count as part of the term of imprisonment under his sentence.

It may be assumed that most appellants have elected to have "prisoner" status during the appeal period, but there is no systematic way of this Court knowing whether a direction under s. 671G(3) is necessary. It is therefore desirable that counsel should direct the attention of the Court to such a question whenever it arises (compare R v. Brennan [1974] 1 NSWLR 618). It is appropriate that such a direction be given in the present matter.

Leave to appeal should be granted, and the appeal allowed. The sentences below should be set aside and replaced with concurrent sentences of four years' imprisonment with a recommendation that he be considered for parole after one year and nine months. A direction is made under s. 671G(3) of the Code that the time during which the appellant was in custody pending this appeal shall count as part of the term of imprisonment under the sentences.