Warwick v The Queen [2010] VSCA 166

1 This is an appeal against sentence, leave to appeal having been granted on 28 May 2010. The judgment of the Court is that the appeal should be dismissed.

2 In January 2009, the appellant, together with two co-accused, committed a string of thefts and burglaries which involved breaking into shopping centres in the early hours of the morning and either stealing safes or breaking them open. The appellant, like his co-accused, pleaded guilty to multiple offences. These offences, and the sentences imposed in respect of each, are set out in the following table:

Total effective sentence: 3 years; Non-parole period: 14 months

3 One co-accused, Stephens, was given a total effective sentence of four years and six months, with a non-parole period of two years. The other, Allouche, received a total effective sentence of four years and four months, with a two-year non-parole period.

4 It can be seen immediately that there was a significant difference in the sentences imposed on the co-offenders. This is significant because her Honour approached the sentencing task on the basis that their culpability was equal. The appellant, however, received a head sentence which was substantially lower than either of his co-accused. Moreover, he received a non-parole period which was just above one third of the head sentence, which is an exceptionally low proportion of a head sentence to be fixed as a non-parole period.

5 It was conceded by counsel for the appellant, properly in our view, that the sentence of three years, with a non-parole period of 14 months, was a lenient sentence, judged by reference to the serious offences which the appellant had committed and taking into account his prior criminal record. The response of the appellant, however, is that what ends up appearing to be lenient, having regard to the seriousness of the offending, is only arrived at because of the taking into account of time which the appellant had spent in detention awaiting trial on quite unrelated matters in respect of which he was eventually acquitted. That time comprised the following periods of detention:

On remand for matters on which appellant was acquitted

On remand for matters on which appellant was acquitted

Presentence detention on matters where sentence reduced by the Court of Appeal

Of this time, 123 days were served under the sentence imposed on matters for which the appellant was resentenced. This left a balance of 1107 days to be taken into account in the sentencing process. The appellant was also given credit for 323 days of presentence detention, pursuant to s 18 of the Sentencing Act 1991 (Vic) ('Sentencing Act').

6 The ground of appeal relied on by the appellant is as follows:

The sentence imposed on the appellant offends the principle of totality in that insufficient mitigating weight was given to the time spent in custody by the appellant in respect of other matters between 25 March 2004 and the date of sentence.

7 The sentencing judge expressly took into account in the exercise of her discretion both pre-sentence detention, properly so called, and the time which the appellant had served in respect of those matters of which he was later acquitted or resentenced. In her reasons for sentence, the sentencing judge commented:

I have read the decisions of the Supreme Court overturning and quashing your convictions in [three separate trials]. I am satisfied that you suffered a considerable injustice in that entire process. I have also read the decision of the Court of Appeal upholding your appeal against sentence. That decision was dated 22 June 2009. I propose to make a considerable discount in the sentence I will impose upon you and your sentence will accordingly be less than that imposed on your co-accused. In sentencing you I also take into account your plea of guilty which I likewise classify as an early plea, your relative youth and what I regard as your reasonable prospect of rehabilitation. Specifically, in relation to the pre-sentence detention I have significant regard to the 809 days served by you pursuant to the sentence imposed in [the further trial where your appeal against sentence was upheld]. I have also had significant regard to the time served in relation to [the first three trials, in which your convictions were quashed] for which you were ultimately acquitted. That time, a total of 298 days being the period from 25 March to 23 December 2004, that is 274 days or eight months and 29 days and from 22 January to 14 February 2005, being 24 days. This is in addition to the pre-sentence detention which will be ordered pursuant to s 18 of the Sentencing Act.[1]

8 The complaint embodied in the ground of appeal is in two parts:

• first, the appellant submits that the discount for what we will call the 'dead time' - that is, the time spent in custody in respect of matters of which the appellant was later acquitted or in relation to which his sentence was reduced - was inadequate;

• alternatively, it is said that there should have been an equal discount from the non-parole period as was made in respect of the head sentence.

What quantum of allowance should be made as a result of the 'dead time'?

9 The appellant relies on a line of authority in this Court which began with R v Renzella,[2] and which has been developed and elaborated by subsequent authorities.[3] The relevant principles are explained by Vincent JA in R v McMahon:[4]

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.

Nevertheless, as Callaway, J.A., when considering the manner in which this discretionary exercise is to be performed, pointed out in R. v. Kotzmann [1999] VSCA 27; [1999] 2 VR 123 -

"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 ... ." (at 137)

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.

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 R v 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.""[5]

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.

10 What emerges very clearly from these cases is that it is a matter for the individual judge, in his or her discretion, to decide what weight should be given to the dead time, or - more accurately - what sentencing discount is appropriate, having regard to the quantum of dead time. Counsel for the appellant, in his written submission, properly concedes that the exercise is not a 'mathematical' one. Indeed, the cases provide a variety of examples of different proportions of the 'dead time' being brought to account.

11 In our view, once it is appreciated that the allowance to be made is a discretionary judgment, the appellant in a case such as this faces the same hurdle as any appellant making an attack on an exercise of the sentencing discretion. That is to say, this Court will not intervene unless the discretionary judgment was not reasonably open to the sentencing judge in the circumstances. This is simply a reflection of the basic concept that there is scope for individual judges to take different views of particular matters. So long as the decision arrived at falls within the range within which minds might reasonably differ, there is no room for this Court to intervene, whatever view the individual members of the appellate bench might have on the question.

12 We are quite satisfied that the approach which the sentencing judge took to the dead time was reasonably open to her. Her Honour dealt with the matter appropriately, and consistently with authority, as the paragraph extracted above makes clear. Her Honour was mindful of what she perceived to be an injustice to which the appellant had been exposed. In addition, it is clear from the sentence that she did what she indicated she would do; namely, she gave the appellant a substantial discount on the sentence which she would otherwise have imposed.

Equal reduction in head sentence and non-parole period

13 The question whether there must be a like reduction in the non-parole period to that made in the head sentence must be approached in exactly the same fashion, though there would seem to be no logical necessity for the one to mirror the other. Indeed, as is often said, the considerations applicable to the non-parole period may not coincide with those applicable to the head sentence.

14 Once the discount is given - as it was here - on the head sentence, the judge must then ask herself whether a non-parole period should be fixed referable to that head sentence and, if so, what it should properly be. The discount having been made, the judge must nevertheless ask herself, as this judge plainly did, 'what is the minimum term which justice requires that the person being sentenced should serve?' We can detect nothing in her Honour's approach to this case which would suggest that the fixing of a 14-month non-parole period involved any miscarriage of the discretion. As we have already pointed out, it was an exceptionally low proportion of the already lenient head sentence.

'Dead time' as a mitigating factor because of a causal link with the offending

15 There is one matter raised by counsel for the appellant to which we should refer specifically. Prior incarceration for other matters may be causally relevant to the offending for which the person falls to be sentenced and, in that sense, may be said to mitigate the offender's culpability for the later offending. That is a proper argument, quite separate from the Renzella[6] line of argument. Again, we see nothing in the way this case was conducted to suggest any error on her Honour's part in that respect.

16 No occasion arises, in view of the decision we have come to, to review the authorities which support the availability of the sentencing discount from which this appellant benefited. We would note, however, that the circumstances of the present case - and cases like it - are quite different from those which obtained in Renzella. The period of detention there in issue did relate to the offences for which the appellant was being sentenced. It was only because of a then-existing limitation in s 18(1) of the Sentencing Act 1991 (Vic)[7] ('Sentencing Act') that the period could not be counted as pre-sentence detention in the usual way. This Court sought to address that perceived injustice by treating the period as a matter to be taken into account in the fixing of the sentence for the offending. The Sentencing Act was, of course, subsequently amended to remove that limitation.

17 In the present case and others like it, the period of detention ('dead time', as we have called it) sought to be brought to account concerns other conduct, quite unrelated to the matters for which the person stands for sentence. It is a period which, viewed with the benefit of hindsight at the date of sentencing, should not have been served. In the present case, as we have explained, this was so because the charges to which the earlier detention related were subsequently dismissed.

18 It does seem to us, as we raised in the course of argument, that there may be a question for investigation as to the basis on which detention of that kind is thought to be relevant when the person comes to be sentenced for quite unrelated matters. In so saying, we recognise that there is obvious injustice where a person has served a term of imprisonment which he or she should not have served. In other jurisdictions, that injustice is addressed by formal procedures for compensation for such periods. No such system exists in this State.

19 The question which may require investigation is whether a form of judicial compensation, by way of sentence discounts in relation to other matters, is the appropriate way to deal with this species of injustice. As we have said, the law in Victoria as it stands is that it is properly dealt with in that way. As Weinberg JA pointed out, however, the logic of this approach would seem to be that 'unjust' imprisonment should always stand to a person's credit, however long after the event it is sought to be called in aid. As we say, that is a question for another day.

Approach to a grant of parole where appeal on foot

20 Finally, we wish to say something about a most unfortunate circumstance of which we have been informed, as follows. The non-parole period fixed by the sentencing judge in this matter expired some time ago, it appears as early as March this year. At that point, the application for leave to appeal had been filed. The application was not able to be heard in March, counsel for the appellant tells us, because the plea transcript had not been made available by then. That is not uncommon, unfortunately, because of the volume of sentencing appeals and the burden which the Victorian Government Reporting Service carries in dealing with demands for transcript, from trial courts as well as from this Court.

21 On 18 March 2010, the Adult Parole Board of Victoria advised the appellant that the Board had

ordered that it will only consider your suitability for release on parole once the appeal has been heard and finalised. This order reflects the Board's common practice in these circumstances...

As soon as the appeal is finalised, a Result and Recommendation Report will be prepared by a Community Corrections Officer. The report will provide the Board with the result of the appeal hearing and the author will make recommendations about your suitability for parole.

22 We were informed by senior counsel for the Crown that this practice of the Board reflects the Board's concern that a person appealing against sentence might have his or her sentence increased on the appeal. Given that possibility, so it is said, it would be premature for the Board to consider eligibility for parole until the appeal was finalised.

23 We think it important to make clear that, if that is correct, then the Board's practice is based on a false premise. It is, of course, true that this Court has the power, if the sentencing discretion is reopened, to increase a sentence. But it is the invariable practice of the Court - and now a requirement of legislation[8] - that, if on considering the matter the Court forms the view that an increase would need to be considered were the appeal to be successful, those representing the appellant must be informed of that possibility. It is the invariable experience of the Court, for reasons which are self-evident, that upon that notice being given (of the possibility of an increase in sentence) an application for leave to abandon the sentence appeal is made and, invariably, granted. There is, therefore, no realistic possibility in any sentence appeal that a sentence will be increased.

24 What has occurred in the present case seems to us to be highly regrettable, all the more so because of the injustice which the appellant has already suffered. Given the appeal procedures to which we have referred, there was no possible outcome on this appeal which could have affected his eligibility for parole as at the date of expiry of the non-parole period. At best for the appellant, his non-parole period would have been shortened. At worst for him, as has occurred, his appeal would fail and the non-parole period set by the judge would stand. It seems unaccountable, in our respectful view, that he should have had his eligibility for parole deferred in these circumstances.

25 Of course, it is entirely a matter for the Board whether the appellant would have been, or will now be, granted parole, but it seems most regrettable that he should have had to remain in custody, without consideration of parole, pending an appeal in the course of which his position could only have improved.

[1] R v Warwick (Unreported, County Court of Victoria, Judge Gaynor, 4 December 2009), [39] (emphasis added).

[2] R v. Renzella [1997] 2 VR 88 ('Renzella').

[3] See, eg, R v Stares [2002] VSCA 70; (2002) 4 VR 314; R v Chimirri [2003] VSCA 45; R v Wade [2005] VSCA 276; R v Evans [2005] VSCA 254; R v Giakoumogianakis [2005] VSCA 156; R v McMahon [2006] VSCA 240; R v Rosenow [2007] VSCA 265.

[4] [2006] VSCA 240, [19]-[22].

[5] [2003] VSCA 45, [5].

[6] [1997] 2 VR 88.

[7] Requiring that the person must have been detained because of the instant charges and 'for no other reason'.

[8] Criminal Procedure Act 2009 (Vic) s 281(3).