R v Stares [2002] VSCA 70

Court of Appeal (Vic)|2002-05-22|Before: PHILLIPS, C.J., CHARLES and CHERNOV, JJ.A.

The applicant now seeks leave to appeal against the sentence imposed by Judge Neesham, challenging both the head sentence and the non-parole period fixed, on grounds which it is unnecessary to set out at length, but the nature of which will be apparent from what follows. The application for leave was long out of time, but on 11 February 2002 this Court granted the applicant an extension of time within which to lodge his application.

Mr Richter in this Court now submits that Judge Neesham did not take into account these 161 days of pre-sentence detention and that there is no indication in his Honour's sentencing remarks that he imposed a lower single non-parole period (or, for that matter, head sentence) than he would otherwise have done because of the time previously reckoned as served by Judge Holt. Accordingly, so it is submitted, if the policy adopted by the correctional authorities is given effect, the 161 days spent in custody and previously declared by Judge Holt then becomes "dead time" upon the fixing of a new single minimum. Furthermore nearly two months had passed between the date upon which the applicant was first sentenced by Judge Holt and the date upon which he was re-sentenced by Judge Neesham. Two separate periods of pre-sentence custody had been accepted as referable to two distinct periods of pre-sentence detention, a total of 328 days which, Mr Richter submitted, ought in one way or another to be brought into account in determining an appropriate parole eligibility date for the new head sentence.

Accordingly it was submitted that the effect of Judge Neesham's sentence was that what had been, at 30 January 1998, a sentence of five years with a minimum of three years and six months effectively became a sentence of six years and six months, with a total of nearly five years and eight months being spent imprisoned before the applicant would become eligible for parole. The argument ran that once the declaration of 167 days was taken into account the total time of incarceration which would have been served before parole eligibility would become five years and three months. Thus, while the head sentence, after concurrencies, had had 18 months added to it, the effective non-parole period had been increased by 21 months. It was submitted that this cannot be appropriate and that the Court should intervene by re-sentencing the applicant. The confusion and uncertainty affecting the prison authorities as to how to deal with crediting the applicant's pre-sentence detention days is made more acute by the fact that the evidence before the Court demonstrates that Central Prison Records had credited the applicant's head sentence with 328 days spent in custody (i.e. the total of the two periods allowed as pre-sentence detention both by Judge Holt and Judge Neesham) but only 167 days pre-sentence custody had been credited towards the applicant's non-parole period.

Accordingly Mr Richter submitted that Judge Neesham failed to take into account the earlier period of 161 days credited by Judge Holt, alternatively gave insufficient weight to Judge Holt's s.18 declaration in setting a new minimum sentence. He submitted that Judge Neesham should have referred to the days declared by Judge Holt, not as a declaration under s.18, a matter prohibited under s.18(2), but as part of the setting of a new non-parole period pursuant to s.14. It was submitted that the appropriate minimum sentence should have been fixed at four years and three months to give effect to the overall situation of the applicant.

The date from which a new non-parole period fixed under s.14(1) of the Sentencing Act 1991 has effect

Section 14 provides as follows -

"(1) If - (a) a court has sentenced an offender to be imprisoned in respect of an offence and has fixed a non-parole period in respect of the sentence; and (b) before the end of that non-parole period the offender is sentenced by a court to a further term of imprisonment in respect of which it proposes to fix a non-parole period - the court must fix a new single non-parole period in respect of all the sentences the offender is to serve or complete. (2) The new single non-parole period fixed at the time of the imposition of the further sentence - (a) supersedes any previous non-parole period that the offender is to serve or complete; and (b) must not be such as to render the offender eligible to be released on parole earlier than would have been the case if the further sentence had not been imposed."

Until February of this year there had been some difference of approach among judges as to whether a judge had a discretion as to the date from which a new non-parole period would run, or whether this was fixed by the section as either the date when the prisoner was first sentenced (since the new non-parole period superseded the previous date fixed) or the date of re-sentencing. In R. v. Rich[4] Brooking, J.A., after examining the cases in which the issue had been mentioned, stated his impression that sentencing judges at first instance had in general fixed a new single non-parole period intended to commence on the date of their sentence. His Honour concluded[5] that sentencing judges were not obliged to do so but were entitled to fix the new period either by reference to the date in respect of which the earlier non-parole period had been fixed, or by reference to the date on which the sentence was being passed, and running from that date. The difference, as his Honour pointed out, is one of form only, not of substance, and in practice the Court would merely fix a shorter new non-parole period if making the period run from the later date. His Honour continued[6] -

"Sentencers do, then, have a choice as regards the date from which they make a new single non-parole period run, a choice the exercise of which must result in the fixing of a different period according as one commencing date or the other is selected. Because the sentencer has a choice, it is essential that there be no doubt about which date has been adopted. Sentencing judges do, it seems, normally specify the date in fixing the period. If they do not do so, it is highly likely that the period fixed upon will show, in the light of the surrounding circumstances, which date was intended. But this will not necessarily be so, and in any event it is undesirable that a question of this kind should depend upon inference. I therefore think it desirable that there should be uniformity of practice and that what now appears to be general should become universal in the sense that all new single non-parole periods should be made to commence on the date on which they are fixed."

Before September 1997, s.18(1) of the Sentencing Act, which made provision for days spent in custody before trial to be reckoned and declared as a period of imprisonment already served under the sentence, restricted the Court's ability to declare any such period by providing that the offender must have been held in custody in relation to proceedings for that offence and for no other reason. Section 18 had on a number of occasions caused difficulties, leading judges faced with periods of pre-sentence detention which had been "doubly warranted" (i.e. the offender had been held in custody both in relation to the instant offence or offences and for some other reason) to refuse to make declarations of pre-sentence detention in relation to such periods, or otherwise to accommodate such periods by a reduction in the sentence. In R. v. Heaney[7], Brooking, J.A. said of a situation of detention doubly warranted that -

"Regard must be had in re-sentencing to the period during which the applicant's detention in custody was doubly warranted. This can be done by this Court's adopting the declaration concerning 93 days' pre-sentence detention already made and by this Court's reducing by six months, to allow in a broad way for the period from September to March, the head term and the non-parole period which it would otherwise determine upon."

In Renzella[8] the matter was taken further. The Court of Appeal was considering a Crown appeal against sentence on the ground that the judge erred in taking into account the prisoner's pre-trial custody to reduce both the head sentence and the minimum term, after ruling that s.18(1) of the Sentencing Act was inapplicable. The Court[9] held that s.18 in its then form did not exclude the discretion which the Court had exercised in Heaney's case saying[10] of s.18 that -

"It applies only where an offender is sentenced to a term of imprisonment and there is a period of time during which the offender was held in custody in relation to proceedings for that offence or proceedings arising from them and for no other reason. In other cases the section is silent and a court is not only empowered but obliged as a matter of justice to take pre-sentence detention into account. It is true that the legislative history reveals an intention that that should be done by declaration rather than by adjusting the sentence, and it might well be thought desirable to amend s.18 so that that may be done in all or a greater number of cases."

"It follows that the law expounded by Brooking, J.A. in Heaney's case is, unsurprisingly, correct in principle and consistent with s.18. Where that section applies, pre-sentence detention is to be reckoned as a period of imprisonment already served under the sentence, and a declaration made to that effect, unless the sentencing court or the court fixing a non-parole period in respect of the sentence otherwise ordered. Pre-sentence detention to which s.18 does not apply is to be taken into account in the exercise of the Court's discretion. It should ordinarily be taken into account at the first opportunity, as it was in Heaney's case, and not left to the court imposing a later sentence."

The invitation extended by the Court in Renzella was duly taken up by Parliament. The Sentencing and Other Acts (Amendment) Act 1997, the relevant part of which came into operation on 1 September 1997, by s.11(1) amended s.18(1) of the Sentencing Act by omitting the words "and for no other reason"; and by s.11(2)(b) introduced into the Sentencing Act s.18(2)(d), the effect of which is to provide that s.18(1) of the Sentencing Act does not apply -

"to a period of custody declared on a previous occasion under this section or s.35 as reckoned to be a period of imprisonment or detention already served under another sentence of imprisonment or detention imposed on the offender."

The Explanatory Memorandum for the amending Bill said of the proposed amendment to s.18(1) that the aim of the amendments was to enable s.18 declarations to be made in as many cases as possible, noting that -

"It is no longer necessary for the time held in custody to be exclusively referable to the offence for which the offender is being sentenced before a declaration pursuant to section 18(1) of the Act is made"

and gave the decision in Renzella as an example. The obvious intention behind the introduction of s.18(2)(d) was that since the ability to declare a period of custody had been widened by the amendment to s.18(1) it became necessary to ensure that prisoners were not on a second occasion given the benefit in sentencing of a period of custody which had already been taken into account.

The consequences of the fixing of a new single non-parole period under s.14 of the Sentencing Act

When a sentencing judge fixes a new single non-parole period under s.14(1), the judge is not permitted to make a declaration of pre-sentence detention under s.18(1) in relation to a period of custody declared on a previous occasion by virtue of s.18(2)(d). Accordingly, Judge Neesham correctly did not include or mention the period of 161 days declared by Judge Holt when making the s.18(1) declaration in respect of the other period of 167 days. The correctional authorities have, as I have said, since taken the view that the applicant was only entitled to have the period of 167 days taken into account in calculating his release date, notwithstanding that 328 days have been treated as served under the new head sentence fixed by Judge Neesham.

The fact that a judge who fixes a new single non-parole period under s.14(1) is obliged by s.18(2)(d) not to make a declaration of, and does not mention in sentencing, an earlier period declared on a previous occasion does not, in my view, have the consequence that the prisoner loses the entitlement to have the earlier period taken into account as part of the sentence he is serving. It surely cannot have been the intention of Parliament that a prisoner sentenced under s.14(1) should thus lose the recognition of an earlier period of detention, which could amount to months or even years. A result so obviously injust would have to be clearly spelt out in the legislation before it could have been assumed to be Parliament's intention. But it is in any event apparent in my view that Parliament intended that the judge fixing a new non-parole period under s.14 was to be obliged not to include in any s.18 declaration a period of custody declared on a previous occasion because that period, having been declared, had already been taken into account. In other words, the previous declaration remains effective, both as to the head sentence and the non-parole period, notwithstanding that the new non-parole period fixed supersedes[12] the previous non-parole period. After all, as Brooking, J.A. observed in Rich[13] the new single non-parole period is not a "sentence of imprisonment", notwithstanding that the order fixing it forms part of the sentence. Rather the sentence of imprisonment is the custodial sentence whereas a new non-parole period is merely the period fixed during which there shall be no eligibility for parole.

It follows, I think, that a declaration made on a previous occasion, which is not to be taken into account when a new non-parole period is fixed under s.14, continues nonetheless in effect; and when the correctional authorities are calculating the earliest release date for a prisoner the period declared under s.18 on a previous occasion should be added to the period declared at the time a new single non-parole period is fixed. This is, I think, not only the proper interpretation of the relevant sections of the Sentencing Act, but essential in the interests of justice for a fair sentencing regime. It also follows that a period of pre-sentence detention which a judge has taken into account in accordance with Renzella, by an appropriate reduction in sentence rather than by a s.18(1) declaration, would not, naturally, be added to the total of the periods of pre-sentence detention which are to be deducted from the non-parole period.

The consequence of the foregoing is that in the present case the correctional authorities should have aggregated the two periods declared by Judge Holt and Judge Neesham, so that the applicant should have been treated as having served 328 days of his new non-parole period fixed at 23 March 1998. I note that the applicant has claimed in correspondence to have been credited in May 1998 with a further 54 management days, but no separate argument was put to us in respect of this period and the basis for the claim was not explained to the Court. I have not considered it further in this judgment.

Conclusions as to the sentence imposed on 30 January 1998

Judge Holt, as I have said, made a declaration as to 161 days of pre-sentence detention for the period lasting from 23 August 1997, the date of the applicant's arrest, until 30 January 1998, the date of sentence. The applicant had however been in custody for an earlier period of 167 days (both periods were at various times said to be excessive by the correctional authorities, but both were accepted by Ms Pullen in this Court as correctly calculated; since both had been the subject of declarations by judges under s.18, they should not have been regarded as open to challenge) in relation to his detention for the charges which had been struck out on 4 September 1995, when the Crown declined to proceed on them. He was not entitled to have a formal declaration made under s.18(1) in relation to them, because this period of custody was quite unrelated to the offences for which Judge Holt was then sentencing the applicant. But it was a period of pre-sentence detention which, consistently with the decision in Renzella, should have been taken into account at the first opportunity and not left to a court imposing a later sentence. The earlier period of 167 days does not however appear to have been drawn to Judge Holt's attention, and counsel then appearing for the applicant certainly did not mention the decision in Renzella or invite his Honour to take this earlier period of custody into account in reduction of sentence. The earlier period is not mentioned in Judge Holt's sentencing reasons and it was accepted by Ms Pullen that, had it been taken into account, the appropriate course would have been for his Honour to reduce the head sentence and non-parole period then imposed, taking into account that the applicant had served nearly 5½ months in custody for which he was not entitled to have a declaration made under s.18(1). Accordingly unless some reason existed for the judge to take a lesser period into account in the sentencing discretion, his Honour, had these matters been drawn to his attention, might have been expected to impose a head sentence of four years and six months, and to fix a non-parole period of three years.

Conclusions as to the sentence imposed on 23 March 1998

When Judge Neesham came to sentence the applicant, his Honour was placed in a very difficult situation. Attention was drawn to the earlier period of 167 days in custody, which had preceded Judge Holt's sentence but not then taken into account. His Honour was asked by both counsel to make a declaration in relation to this period but took the view that it was detention wholly unrelated to the offences for which the applicant was then being sentenced, and that s.18(1) did not apply (this conclusion was not challenged in this Court). After considering what had been said in Renzella, however, the judge decided that he was required to give the applicant credit for this period of 167 days and accordingly made a s.18(1) declaration in relation to it. In relation to the second period of pre-sentence custody, his Honour, as I have said, having ascertained that the applicant had been given full credit for the period of 161 days by Judge Holt, made no further mention of it. I should add that his Honour was not invited by the applicant's counsel to make any further declaration, or otherwise to give credit for this period.

When Judge Neesham came to impose sentence, his Honour said -

"The aggressive use of knives is becoming all too common. There is a real need to deter their use. The maximum sentence provided by Parliament for recklessly causing serious injury is ten years' imprisonment. I regard an appropriate sentence in your case as being three years. You were, on 30 January of 1998, sentenced to five years' imprisonment with a minimum of three-and-a-half years, in relation to other matters. I order that eighteen months of the sentence imposed by me become concurrent with that term, leaving you with a head term of six-and-a-half years. I fix a new non-parole period of four years and eight months. I declare that you have been imprisoned in relation to other matters that have not proceeded to trial for a period of 167 days. That term is to be credited towards your present sentence; so that you are deemed to have already served 162 days of it."

I assume that the use of the number "162" in the last line is merely a typographical mistake. But there were, in my view, with respect, a number of more important issues raised by the sentence imposed. His Honour had taken the view that three years was an appropriate sentence for the offence in question, and that 18 months should be served concurrently with the previous term. The judge therefore added 18 months to the head sentence, and 14 months to the previous non-parole period. Since, however, the original non-parole period had been imposed on, and dated from, 30 January 1998, if Judge Neesham's non-parole period took effect from 23 March 1998, then his Honour had in truth added nearly 16 months to the previous non-parole period. It was assumed by all parties that it was his Honour's intention that the new non-parole period should take effect from 23 March, an assumption which was confirmed some time later by a note from his Honour's associate to the manager, Central Prison Records, dated 24 November 1998. No explanation was, however, given in sentencing reasons for the decision to fix an addition to the non-parole period of nearly 16 months and, as Ms Pullen also fairly conceded, the fact that a non-parole period of this length had been fixed when the head sentence was being increased only by an additional two months would be sufficiently unusual to require explanation[14].

A more significant question however relates to the period of 167 days as to which his Honour made the s.18 declaration. No issue would have arisen as to this period had it been taken into account by Judge Holt. Judge Neesham had in an earlier passage in his sentencing reasons stated his view that this period of custody was not related to proceedings for the offence for which the applicant was then to be sentenced. If this remained his Honour's opinion, the proper course to be taken at sentencing was not to make a s.18 declaration but rather to impose a sentence reduced by taking this period of custody into account by an appropriate reduction in both the head sentence and non-parole period fixed. All other things being equal this would have involved a reduction of some five or six months in the non-parole period and the head sentence. Accordingly, on the basis that no s.18 declaration could be made, his Honour should then have added not 14 months to the previous non-parole period but a lesser period taking into account both the period of 167 days and the further period of nearly two months if the new non-parole period was to date from 23 March 1998. Then, when the time came to fix the new non-parole period the judge should, under the practice since settled in Rich, have made it clear from which date the new non-parole period was to run.

In fairness to the judge, it should again be emphasised that no objection was taken by the applicant's counsel to the sentence imposed on 23 March 1998, and no request was made to his Honour to make allowance in the sentence for the period of nearly two months which had elapsed since Judge Holt's sentence, nor to specify the date from which the new non-parole period was to run.

1. The sentence imposed on 30 January 1998 properly included a s.18 declaration in respect of the period of 161 days pre-sentence detention. To be consistent with Renzella, the sentence should also have taken into account the earlier period of 167 days served in custody in 1995, not by a declaration, but by an appropriate reduction in sentence which would, all other matters being equal, have involved a reduction in the head sentence and non-parole period fixed of, say, six months.

2. (a) Since this course was not followed on 30 January, the sentence imposed on 23 March 1998, on the assumption that the judge remained of the view that the period of custody was not related to proceedings for the offence for which the applicant was then to be sentenced, should also have taken into account the earlier period of 167 days custody in like fashion to that set out in (1) above.

(b) In fixing a new single non-parole period, the judge on 23 March 1998 should have specified when the new period was to commence. If it was his Honour's intention that it commence on 23 March, rather than 30 January, then his Honour should have taken into account in sentencing that a further period of nearly two months had already been served, by an appropriate reduction in the non-parole period.

3. For the purposes of this appeal I assume that had all these matters been taken into account, Judge Holt would have sentenced the applicant to a head sentence of 4½ years and a non-parole period of three years, in addition making a declaration under s.18(1) for the period of 161 days. When Judge Neesham came to sentence the applicant, no declaration of pre-sentence detention would have been necessary. On the assumption that 18 months of the new sentence were to be concurrent with the old, the new head sentence would have become six years. If his Honour intended that 14 months be added to the non-parole period (now assumed to be three years) the new single non-parole period would become four years, if expressed to date from 23 March 1998. The applicant would retain his entitlement to the 161 days declared by Judge Holt, which would have resulted in his earliest release date being placed in October 2001.

The unfortunate consequence is that the applicant should have been eligible for parole nearly seven months ago. And it should also be remembered that this is substantially the position the applicant and his lawyers have been putting to Central Prison Records on numerous occasions over a lengthy period, by now of some years.

The Court therefore concluded that the applicant's appeal against Judge Neesham's sentence should be allowed, by setting aside the head sentence and new non-parole period fixed on 23 March 1998, and in lieu thereof imposing a new head sentence of six years' imprisonment, and a new non-parole period of four years fixed. In the interests of certainty I add that the head sentence commenced on 30 January 1998, whereas the new non-parole period fixed dates from 23 March 1998,

and that the applicant remains entitled to the period of 161 days pre-sentence detention in respect of which Judge Holt made the declaration on 30 January 1998.

I have had the considerable advantage of reading the draft judgment of Charles, J.A. in this matter. For the reasons there given, I agree that the appeal should be disposed of as his Honour proposed.

[3] See, e.g., the memorandum from the Office of the Correctional Services Commissioner dated 20 November 1998, Exhibit SL2 to the affidavit of Spencer James Lambert sworn 6 May 2002.

[4] [2002] VSCA 17. Winneke, P. and I concurred.

[7] Unreported, Court of Appeal, 27 March 1996 at p.6.

[9] Winneke, A.C.J., Charles and Callaway, JJ.A.

[14] Cf. Krasnov & Shlakht (1995) 82 A.Crim.R. 92 at 99.

CRIMINAL LAW - Sentencing - Applicant first sentenced on 30 January 1998 - Sentenced again on 23 March 1998 - New single non-parole period fixed - Practice in fixing new single non-parole period - Date of commencement - Presentence detention - Effect of fixing new non-parole period upon periods of presentence detention previously declared - R. v. Rich [2002] VSCA 17 - Sentencing Act 1991 ss.14, 18.

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