R v McMahon [2006] VSCA 240

1 The appellant pleaded guilty in the County Court at Melbourne, on 16 May 2006, to one count of being a prohibited person in possession of an unregistered firearm (count 1) and two counts of being in possession of a drug of dependence (counts 2 and 3).

2 He was aged 23 years at the time of sentencing and admitted 56 convictions or findings of guilt arising from 11 court appearances in the Children's and Magistrates' Courts between 21 May 1996 and 23 April 2004. They related, for the greater part, to his engagement in various forms of dishonesty, including burglary, and the commission of drug and driving offences. However, I note that they include two appearances for the intentional destruction of property, the possession and use of a regulated weapon, assaulting a police officer, causing wilful damage, the possession of ammunition and escape from lawful custody.

3 After hearing a plea in mitigation of penalty, the learned sentencing judge, on 23 May 2006, imposed the following sentences:

On count 1 - 18 months' imprisonment;

On count 2 - A fine of $50.00; and

On count 3 - A fine of $50.00.

His Honour directed that the appellant serve a period of 12 months' imprisonment before becoming eligible for parole. He also declared that the appellant had served 204 days of pre-sentence detention pursuant to the provisions of s.18(4) of the Sentencing Act 1991 and indicated that he had taken into account the 271 days that the appellant had spent in custody in relation to other matters in determining the sentence on count 1, to the extent that that sentence had been reduced by a period of six months.

4 Having been granted leave to do so, on 28 July 2006, the appellant seeks to overturn the sentence imposed upon him on count 1 on the grounds that -

1. The learned sentencing judge erred by failing to properly take into account the "dead time" served by the appellant when fixing the head sentence and non-parole period.

3. The sentence imposed on count 1 was, in all the circumstances, manifestly excessive.

A further ground (ground 2), which related to the evidence of the appellant's mental condition and intellectual disability, has been approached on the basis that it constitutes a particular of the ground of manifest excess.

5 I now turn to the circumstances surrounding the commission of the appellant's offences.

6 At approximately 6.02 a.m., on 31 October 2005, the police executed a search warrant under the Drugs, Poisons and Controlled Substances Act 1981 at the appellant's residence in North Sunshine. They located vials of Decadurabolin and vials of Sustenan in the bottom drawer of the bedside table, next to the appellant's side of the bed, in the master bedroom. These substances are steroids and are drugs of dependence as defined in Schedule 11 of the Drugs, Poisons and Controlled Substances Act. They are, we understand, favoured by persons for bodybuilding.

7 In the bottom drawer of a three-drawer chest, inside a built-in cupboard in the bedroom, was found a purple coloured paper bag, containing a Smith and Wesson nine millimetre semi-automatic handgun. It was loaded with six rounds of ammunition in the magazine and one in the chamber.

8 The appellant was not licensed to possess the drugs of dependence and he was, by reason of his prior convictions, a prohibited person in respect of the firearm as defined by s.3 of the Firearms Act 1996. The handgun seized had never been registered in Victoria and was found to be in working order.

9 The appellant was arrested and conveyed to the armed offenders squad where he was interviewed. He made "no comment" responses to questions posed in the interview and no explanation has ever been proffered for the possession of the weapon. I understand, however, that it was accepted by the sentencing judge that the steroids found in the bedside table were intended for personal use.

The Grounds

10 By reason of the grounds upon which the appeal has been argued, it is necessary to refer to the circumstances of the appellant's pre-sentence detention.

11 The appellant was arrested and charged on 25 March 2004 in relation to unrelated matters. He was granted bail on those charges on 23 April 2004, having at that stage undergone 30 days in custody.

12 He was arrested again, on 28 April 2004, in relation to further and quite separate charges. On 14 May 2004, the bail order made on 23 April 2004 was revoked. The appellant had, by that time, undergone a further 17 days in custody in relation to the matters for which he was arrested on 28 April 2004.

13 He then remained in custody until 24 December 2004, when he was again released on bail.

14 However, on 31 October 2005, that is, ten months later, he was arrested in relation to the matters with which we are here concerned and was detained in custody for 197 days until sentence was imposed.

15 Thus the appellant had, between 25 March 2004 and his sentencing on 23 May 2006 for the present matters, been detained for a total of 468 days, of which 197 were referable to the current offences and the remainder to the other matters.

16 He had, prior to sentencing, been acquitted of the charges in respect of which he was arrested on 25 March 2004, and those connected to his arrest on 28 April 2004 had been withdrawn.

17 It is clear enough that only the period of detention between 31 October 2005, that is, the date on which he was taken into custody for the current offences, and the date on which sentence was imposed for them is encompassed by s.18(1) of the Sentencing Act 1991, which, omitting some words, relevantly reads:

"If an offender is sentenced to a term of imprisonment, ... in respect of an offence, any period of time during which he or she was held in custody in relation to proceedings for that offence or proceedings arising from those proceedings ... must, unless the sentencing court or the court fixing a non-parole period in respect of the sentence otherwise orders, be reckoned as a period of imprisonment or detention already served under the sentence."

18 However, as the Court accepted in R. v. Renzella[1], R. v. Stares[2], R. v. Chimirri[3], R. v. Giakoumogianakis[4], R. v. Evans[5] and R. v. Wade[6], it does not follow that, because a period of pre-sentence detention is not so encompassed, no regard is to be had to be it.

19 The view was adopted in Renzella that pre-sentence detention to which s.18 does not apply can, in some circumstances at least, as a matter of justice be taken into account in the exercise of the court's discretion.

20 Nevertheless, as Callaway, J.A., when considering the manner in which this discretionary exercise is to be performed, pointed out in R. v. Kotzmann[7] -

"There can be no question of a person on remand who is subsequently acquitted acquiring a kind of bank balance on which to draw in relation to subsequent offences unconnected with the reason for custody ... ."

21 It is evident from the subsequent cases that have come before this Court, that the reduction in an otherwise appropriate sentence to take account of what is often referred to as "dead time" is not a mathematical exercise and in a number of them allowance has been made for less than the full period involved. It is also to be noted that in none of those to which our attention has been drawn has any reason been given for the decision to discount by less than the full period.

22 The proper approach to be adopted with respect to pre-sentence detention not falling under s.18(1) was considered by Winneke, P., who expressed the view in Chimirri, with which the other members of the Court agreed, that -

" ... 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."[8]

In other words, the fact that an individual has been detained unconvicted, albeit for unrelated matters, for some time prior to the imposition of sentence is a relevant consideration in the determination of the appropriate disposition of the matter before the court. Obviously the overall period of incarceration that would result from the imposition of a further period of imprisonment must be taken into account for more than one sentencing purpose. However, there is no need to expatiate on this aspect, as I suggest the reasons are obvious.

23 There is nothing in his Honour's remarks that could give rise to any reasonable concern that he was not aware of, misunderstood or misapplied the applicable principles.

24 It must be borne in mind that the present appellant was taken into custody on three separate occasions for what we have been informed were quite unrelated matters. Following his release on bail on the second of those occasions he had been at liberty for a period of ten months before he was arrested for the current offences. The allowance of six months of the total of 271 days he had been detained on the two earlier occasions could, on one view of the situation, be regarded as at least extremely lenient, if not overly generous. I consider that it almost certainly reflects his Honour's acceptance of the presence of a number of features militating in favour of mitigation of penalty in the appellant's case, including his age, the fact that he had not previously been incarcerated in an adult prison and, of course, his low intellectual functioning.

25 However, counsel for the appellant submitted that the fact that the appellant had served a period of three months "dead time" assumed importance, in any event, when considering whether the sentence imposed could be perceived as manifestly excessive in the circumstances. In this context, counsel in his written submissions provided to the Court, drew attention to:

• The appellant's relatively early plea of guilty;

• The fact that the gun found in his possession had not been associated with any specific criminal purpose, nor had it been altered;

• The fact that the appellant was youthful and suffered relatively severe afflictions (he had very low IQ, significant cognitive impairment, depression and illiteracy);

• His history contained, it was pointed out, no previous offending related to firearms, and it was argued, somewhat optimistically I would suggest, that there was nothing in his background indicative of violence; and

• finally, the appellant's unfortunate family history.

26 It is apparent from the transcript of the plea and his Honour's sentencing remarks and, as I have indicated, the substantial allowance for his earlier periods of detention, that the sentencing judge was conscious of and took into account all of those considerations.

27 There is nothing in his remarks which suggests that he may have undervalued any of them, and the dispositions at which he arrived were clearly open in the proper exercise of sentencing discretion.

28 I would dismiss this appeal.

29 I agree with Vincent, J.A. that the appeal should be dismissed.

31 The order of the Court is that this appeal is dismissed.

[1] [1997] 2 VR 88.

[2] [2002] VSCA 70; (2002) 4 VR 314.

[3] [2003] VSCA 45.

[4] [2005] VSCA 71.

[5] [2005] VSCA 254.

[6] [2005] VSCA 276.

[7] [1999] VSCA 27; [1999] 2 VR 123 at 137.

[8] [2003] VSCA 45 at [5].