Criminal law and procedure - Appeal against sentence - Whether statute was applied to take account of time spent in custody - Act applied in fact - Turns on own facts

Sentencing Act, s 87

King v the Queen (2001) WASCA 198

1 TEMPLEMAN J: This is an application for leave to appeal in circumstances where it appears, with respect to the learned sentencing judge, that his Honour misapplied or misconstrued s 87 of the Sentencing Act.

2 The position was that the applicant pleaded guilty to an offence of aggravated burglary. In relation to that offence, he had been in custody from 23 March 2004 and although he was granted bail he remained in custody because he was unable to obtain a surety.

3 The applicant pleaded guilty on 10 May 2004, and was sentenced on 10 June 2004, to two years' imprisonment with parole.

4 In considering the appropriate sentence the learned judge appreciated that the applicant had been in custody since 23 March and asked if he could backdate the sentence to that date. He was advised by counsel that that was open, because the only reason that the applicant had remained in custody was his inability to obtain a surety. His Honour then took the view that in those circumstances it was not open to backdate the sentence.

5 At this point I should refer to section 87, which is in the following terms:

"If, when an offender is being sentenced to imprisonment for an offence, (a) he or she has previously spent time in custody in respect of that offence and for no other reason; and (b) the sentencing court decides that that time should be taken into account, the court may take that time into account; (c) if it imposes a fixed term by reducing that term by an appropriate period; or (d) by ordering that the term it imposes is to be taken to have begun on a specified day, being the day when that custody began or on some later date that is not later than the date of the sentence."

6 Pausing there: the final paragraph to which I have referred, permits the court to backdate the sentence to the date on which the offender first was taken into custody. His Honour was of the view that the applicant had spent time in custody for some other reason than for the offence in question. That, with respect, is where his Honour fell into error.

7 His Honour was, however, concerned to ensure that the applicant did receive credit for the time spent in custody. His Honour said:

"In considering what is an appropriate sentence for this crime I note that you have been in custody since 23 March this year but I am informed that the reason why you have been in custody since that time is that whilst you were granted bail you could not find anyone to be your surety.

This means that between 23 March this year and 10 May this year, when you were convicted of this offence on your plea of guilty, you have been in custody for reasons such that it cannot be said that the only reason you have been in prison is because of this crime and upon a grant of bail being made an inability to obtain a surety does not mean that you have been in prison for reasons only associated with this crime."

8 Pausing there: that, as I have said, is where his Honour fell into error. His Honour continued:

"This means that I have to give you a credit for the period you have been in custody between 23 March 2004 and 10 May 2004 but I cannot backdate the sentence past 10 May. The way I have decided to do this is to look at what would have been an appropriate sentence for this crime, which I think before the amendments to the Sentencing Act last year would have been four and a half years imprisonment.

Ordinarily, pleas of guilty in the fast-track system attract penalties of anywhere between 25 and 30 per cent and sometimes as much as a third. It seems to me, to take account of the time that you have spent in custody, up to 10 May, and factors personal to you, I can give you the full one-third discount for your early plea of guilty on account of that. That is, the early plea and factors personal to you."

9 His Honour then referred to the amendments to the Sentencing Act and the effect of those amendments, before imposing a sentence of two years' imprisonment backdated to 10 May.

10 The applicant says that as a result of his Honour's error he has missed the chance of having his sentence backdated by six weeks. That is the period between 23 March and 10 May. However, although his Honour erroneously declined to accept that backdating was an option, what his Honour did in fact do, in my view, was to give effect to s 87(c) of the Sentencing Act. That is, by reducing the fixed term by an appropriate period.

11 I say that because, in my view, it is clear from his Honour's remarks, that he allowed a one-third discount off the sentence he would have imposed. Whereas, but for the time spent in custody, it seems very clear that his Honour would have allowed somewhere between 25 and 30 per cent discount. In other words, it seems to me that the applicant has probably done rather better, as a result of his Honour's error, than he would have done had the sentence simply been backdated.

12 The applicant says that in the circumstances, if the court is not prepared to backdate the sentence, it would be appropriate to remit the matter to the learned sentencing judge. I see no point in doing that when, as I say, it seems to me clear that his Honour has in fact applied s 87(c), which was an option always open to him.

13 For these reasons I would, myself, grant the applicant leave to appeal but dismiss the appeal.

14 WHEELER J: I am in agreement with the reasons of Templeman. I would add only this observation. There is an apparent difference of view in the only authority that I am aware of on the point, King v the Queen (2001) WASCA 198, as to the extent to which s 87 constitutes a code governing the allowances which may be made by way of backdating or otherwise of a fairly precise mathematical nature to take account of time spent in custody.

15 Whatever the position in relation to s 87 it is, I think, clear enough, as a matter of general sentencing principle, that time in custody overall, whether for the offence in question and no other reason or not, may well be relevant to the exercise of a sentencing discretion. It is not, for example, ever suggested, as I understand it, that s 87 does not permit taking into account the totality of other sentences being served or having been served when one comes to look at adjusting sentences for what is called the totality principle.

16 It may be that his Honour had in mind that sort of adjustment, a totality sort of adjustment, rather than a precise s 87 adjustment. That is not clear to me in what he did.

17 Whatever the basis for the allowance which his Honour made, however, I am satisfied that the allowance made by his Honour, in the present case, was no less favourable to the applicant than would have been the result if his Honour had followed the course of backdating, pursuant to s 87, which was, as Templeman J has observed, a course which was open to him. For that reason it seems to me it is appropriate to dismiss the application.

18 MILLER J: I agree with reasons delivered by Templeman J. I have nothing to add. I would grant leave but dismiss the appeal.