Wheldon v The Queen [2011] VSCA 83

1 I invite Justice Tate to deliver the first judgment.

2 On 13 September 2010, Stephen Wheldon pleaded guilty in the County Court to one count of recklessly causing serious injury. He was sentenced to a period of 36 months with a non-parole period of 20 months. With respect to his period of pre-sentence detention, the sentencing judge declared, pursuant to s 18(4) of the Sentencing Act 1991, that 334 days be reckoned as time already served in custody in relation to the sentence and her Honour ordered that the declaration be entered on the court record.

3 Her Honour indicated that the sentence she would have otherwise imposed, but for the plea of guilty, was a total effective sentence of 48 months' imprisonment with a non-parole period of 26 months.

4 The charge arose out of a violent incident that had occurred about 10 pm on Friday, 15 August 2008, at a boarding house in North Melbourne where both Mr Wheldon and the complainant lived. Mr Wheldon engaged in an unprovoked violent attack upon the complainant.

5 The two men had had brief conversations before the night of the offence but otherwise did not know each other. Mr Wheldon entered the complainant's room when the door was ajar and swung a shovel to the left side of the complainant's body. The complainant raised both hands to block the hit but the shovel hit the complainant's left forearm, slicing the skin. An altercation ensued during which time Mr Wheldon fled towards the front of the house and the complainant asked another resident of the boarding house to call an ambulance.

6 Upon examination at the Royal Melbourne Hospital, the complainant was found to have a laceration on the lateral aspect of the left arm below the elbow through the subcutaneous tissue to the muscle fascia and swelling and tenderness to the right hand.

7 The police arrived at the boarding house to find Mr Wheldon extremely intoxicated and verbally aggressive. He was taken to Prahran police station but was unfit to be interviewed on the night of his arrest. A Bail Justice attended at the police station at about 5.30 am and Mr Wheldon was remanded in custody until Monday, 18 August 2008. He remained in custody until 6 May 2009. At that point in time he had served 265 days in custody.

8 The trial was due to be listed in the County Court on 24 May 2010. Mr Wheldon absconded, was apprehended some weeks later and remained in custody from 15 June 2010. He served 91 days in detention between the day of his apprehension and the day on which he made his plea in the County Court, on 13 September 2010.

9 The combination of the 91 days pre-sentence detention following Mr Wheldon's apprehension, up until the day on which he entered his plea, together with the earlier period of 265 days, made up a figure of 356 days. However, her Honour was urged by counsel for the Crown to subtract a period of 30 days' detention which was attributable to a sentence imposed for unrelated offending, leaving 326 days.

10 Her Honour acceded to this request and did not take that 30 days further into account in the exercise of her sentencing discretion.

11 By the time the sentence was imposed on 22 September 2010, her Honour allowed for an additional eight days' detention, providing the basis for her Honour's declaration of 334 days.

12 On 10 February 2011, Nettle JA granted Mr Wheldon's application for leave to appeal against his sentence on one ground alone, namely:

In relation to the period of detention warranted doubly by the applicant's remand on the present charges and the sentence imposed by the County Court on 3.11.2008:

(a) the learned sentencing judge erred in failing to exercise her discretion as to whether that period ought be taken into account in a broad way; or, in the alternative,

(b) that the learned sentencing judge erred in failing to allow, in a broad way, for that period.

13 The sentencing judge had identified the question of doubly warranted detention as an issue during the hearing of the sentencing plea. She sought assistance from counsel on the issue. Both counsel for the Crown and counsel for Mr Wheldon assured her Honour that the issue of doubly warranted detention was not relevant to her task and that the 30 days of imprisonment that was attributable to unrelated offending was simply to be excluded from the total days of pre-sentence detention, leaving a period of 326 days.

PROSECUTOR: Your Honour, finally in relation to the custody status of the offender, he was initially taken into custody on 15 August 2008 and remained in custody until 6 May 2009. At that time, he served 265 days imprisonment and that is less.

HER HONOUR: How many days has he served.

PROSECUTOR: Sorry, I may just give your Honour the final, that's less a sentence served, pursuant to a County Court appeal, so it's 235 days in total, less the sentence served. This matter was listed for trial on 24 May 2010. The offender absconded, was apprehended two weeks later and has remained in custody since 15 June 2010 until today's date [13 September 2010]. That's a further 91 days which in total is 326 days pre-sentence detention.

Now, Your Honour, Mr Wheldon has been in custody for 326 days, and in my submission that is sufficient time for him to serve as by way of a partially suspended sentence. In my respectful submission, this matter should be dealt with by way of a sentence with the time served of the 326 days as the time not suspended with a further period held in suspension so that if he breaches that he will be brought back to court and appropriately dealt with.

16 Her Honour then asked whether Mr Wheldon had been able to access AA courses while on remand. This led to the following response from Mr Wheldon's counsel:

COUNSEL: Your Honour, he's been attending AA meetings every Monday and Saturday this last period that he's been in custody, so for some months twice a week.

HER HONOUR: So he's been back in custody 91 days?

COUNSEL: This last three months.

HER HONOUR: From 15 June.

COUNSEL: The last three months, the previous period was just on a weekly basis.

HER HONOUR: So he was accessing it on a previous occasion?

COUNSEL: Yes.

HER HONOUR: There was some mention made that he - Mr Wheldon had been serving time subject to ---

COUNSEL: What happened, your Honour ---

HER HONOUR: --- subject of an appeal.

COUNSEL: --- he's received a sentence in the Magistrates' Court of 90 days; appealed that, that was reduced to 30 days and that's been deducted from the time that he's spend in custody. So that he's actually spent 356 days in custody and you take 30 days off for that other sentence to get to the 326 that is pre-sentence detention for this offence.

HER HONOUR: When was that appeal determined?

COUNSEL: I can't assist Your Honour with that date.

HER HONOUR: So you don't need to worry about any time [being] double warranted, or anything like that?

COUNSEL: No, it's not - - -

HER HONOUR: It's just straightforward calculation of the days of pre-sentence detention.

COUNSEL: There's agreement that it [is] 326 days. I just don't know, your Honour, when that sentence was imposed in the County Court, but I don't know that it's particularly relevant for the purposes.

PROSECUTOR: It's 3 November 2008.

HER HONOUR: I'm sorry, Madam Prosecutor.

PROSECUTOR: It's 3 November, 2008, Your Honour, ... Melbourne Magistrates' Court, the court case number is 200806626, for charges of criminal damage, a shop steal and assault police. Three months aggregate conviction, total three months appeal result. Appeal allowed, sentence varied, total one month.

17 It was unfortunate, in my opinion, that her Honour did not receive the assistance she deserved in relation to the sentence of one month imposed on appeal, by the County Court, for the unrelated offending of criminal damage, shop steal, and assaulting police.

18 The sole ground of appeal in this Court in relation to which leave was granted raises the question of the discretion recognised in R v Renzella.[1] In Renzella, Winneke P, Charles and Callaway JJA, in a joint judgment, followed the approach of Brooking JA in Heaney's case[2] in recognising that at common law there was a discretion, when sentencing an offender, to take into account the offender's detention in custody in circumstances where the detention was 'warranted twice over',[3] by the offence in relation to which the instant sentence was imposed, and by unrelated offending.

19 The discretion permitted the sentencing judge to take that detention into account 'in a broad way' by reducing the head sentence and non-parole period. This was so despite the fact that this could not be taken into account under what was then s 18(1) of the Sentencing Act 1991, which read:[4]

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 and for no other reason 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 already served under the sentence.

20 In Heaney, the judge who sentenced an offender for trafficking, declared the period of pre-sentence detention to include only the days spent on remand for trafficking but not those on which the offender was also held in remand on a murder charge (93 days).

21 The period when the offender was held pursuant to two remand warrants was not counted because the applicant's detention was justified twice.

22 In Renzella the court said this of the judgment of Brooking JA in Heaney:[5]

[T]he judge was right in holding that from 15 September on, when she was committed for trial, the applicant was not held in custody "for no other reason" as required by s 18(1). ... Her detention in custody was warranted twice over. ... His Honour said that regard must nevertheless be had in resentencing to the period during which the applicant's detention in custody was doubly warranted. That could be done by this Court's adopting the declaration concerning 93 days presentence detention that had already been made and by reducing by six months to allow in a broad way for the period from September to March [the date of the resentencing by the Court of Appeal], the head sentence and the non-parole period upon which it would otherwise have determined.

Section 18 does not exclude the discretion that this court exercised in Heaney's case. 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 presentence detention into account.

It follows that the law expounded by Brooking JA in Heaney's case is, unsurprisingly, correct in principle and consistent with s 18. Where that section applies, presentence 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 orders. Presentence 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.

25 The Renzella principle has been developed and applied by this Court many times since.[8] The terms of s 18(1) have been amended numerous times[9] since either Heaney or Renzella were decided. In particular, the limitation on 18(1) declarations arising from the requirement that only that detention be taken into account that was imposed for the offence for which the offender was being sentenced 'and for no other reason' has been removed.[10]

26 However, the recognition give in Heaney and Renzella to the discretion at common law for a sentencing judge to take account of time spent in custody for unrelated offending has been approved and followed.

27 When Nettle JA granted leave to Mr Wheldon to appeal, he directed that the Crown have liberty to file a further brief written submission as to the effect of the judge's alleged error in failing to take a period of detention into account in accordance with Renzella. The Crown filed a submission on 15 February 2011 in which it conceded that the sentencing judge was in error in failing to take into account, in effect, the time Mr Wheldon spent in custody with respect to unrelated offending, that period being a period which does not fall within s 18 of the Sentencing Act and therefore qualifies as Renzella time.

28 In the Crown's written submission, the concession was made with respect to the '90 days in custody between 15 June 2010 and 13 September 2010' which it urged should qualify as Renzella time. This appeared to reflect a counting back of 90 days from the date of the plea hearing before her Honour.

29 At the hearing of the appeal, the Crown sought to vary its concession to a period of 30 days rather than 90 days. The explanation for the variation was that it had emerged, upon enquiry, that when Mr Wheldon was sentenced by the Magistrates' Court on 16 July 2008 he had immediately lodged an appeal and been granted bail pending his appeal to the County Court. This had the effect, of course, that he did not commence serving the sentence imposed by the Magistrates' Court on 16 July 2008. Furthermore, the Court was told on the hearing of the appeal this morning, that Mr Wheldon's bail was not revoked when he was taken into remand on 15 August 2008. Indeed, he never commenced serving his sentence for the unrelated offending until 3 November 2008 when the sentence of one month was imposed by the County Court, on appeal. He then served that sentence for the next month.

30 During this period Mr Wheldon was also on remand for the offending the subject of this appeal, the offence of recklessly causing serious injury. Both periods of detention cannot be taken into account under s 18 of the Sentencing Act, as the decision in R v Broad[11] makes clear. There the Court held that, subject to an irrelevant exception, 's 18(1) [is] inapplicable to periods of detention during which the person being sentenced was serving a sentence'.[12]

31 Nevertheless, the month in which Mr Wheldon was held in custody serving a sentence for the unrelated offending can be taken into account, as the Crown conceded, as Renzella time. It follows that the sentencing judge was in error.

32 The error committed by the sentencing judge was that her Honour failed to take into account a relevant consideration namely that she had a common law discretion which would enable her to have regard, in a broad way, to the month Mr Wheldon spent both on remand for the offence of recklessly causing serious injury and serving a sentence for the unrelated offending.

33 Although it was by reason of the lack of assistance provided by counsel that the sentencing judge was led to assume falsely that she had no relevant common law discretion, the error she committed nevertheless vitiated her sentencing discretion.

34 It might be noted that this is not a case where the sentencing judge took into account the common law discretion but exercised it so as to include only a portion of the time, or refused, in the individual circumstances of the case, to exercise it at all. This was not a case involving a challenge to the weight accorded by the sentencing judge to the time spent in custody with respect to the unrelated offending which may have been reasonably open to her. In this respect, Warwick v The Queen[13] is distinguishable. Nor is this a case where the time spent in detention for matters unrelated to the charge of recklessly causing serious injury was attributable to a charge on which Mr Wheldon was later acquitted.

35 The question arises: if the sentencing discretion is re-opened, what sentence should be imposed, taking account of the Renzella discretion?

36 Counsel for Mr Wheldon urged this Court to treat the entire month as Renzella time on the ground that, had the sequence of events been different, and had Mr Wheldon been sentenced in the County Court by her Honour before being sentenced for the unrelated offending in the Magistrates' Court, he would almost inevitably have been given a sentence by the Magistrates' Court to be served concurrently with the sentence imposed by her Honour. He has thus been denied the opportunity for concurrency, a consideration recognised by Redlich JA in R v Berry; R v Wenitong.[14]

37 On the other hand, it is a relevant consideration in the exercise of the Renzella discretion, and should have been brought to the attention of her Honour, that the offence of recklessly causing serious injury took place when Mr Wheldon was on bail pending appeal against sentence for other offences.

38 However, it is also relevant that one month is a short period of time by comparison with the sentence imposed by her Honour. In the circumstances, it is my opinion that the Renzella discretion ought be exercised by this Court to effect a reduction of one month from both the head sentence and the non-parole period with

the result that Mr Wheldon is sentenced to 35 months' imprisonment with a non-parole period of 19 months.

39 While there 'would seem to be no logical necessity for the one [the non-parole period] to mirror the other [the head sentence]',[15] I consider in this case that the reduction should be the same in both cases and that Mr Wheldon should have the full benefit of the one month served referable to the unrelated criminality that was served while he was detained on remand for the offence of recklessly causing serious injury.

40 I do not accept the Crown's submission that notwithstanding the specific error that has been conceded, the sentence imposed (that is, the sentence imposed in the absence of an exercise of the Renzella discretion) remains within the range open to the sentencing judge and should not be disturbed.

41 Such a stance, in the circumstances of this case, fails to reflect adequately the observation of this Court in Renzella that 'a court is not only empowered but obliged as a matter of justice to take presentence detention into account'.[16]

42 In my opinion the period of time during which Mr Wheldon was detained in custody in respect of unrelated offending should be taken into account by effecting a reduction in the head sentence and the non-parole period that, in the circumstances of the case, wholly reflects that detention.

2. The sentence of imprisonment imposed below is quashed. In lieu thereof, the appellant is sentenced to 35 months' imprisonment with a non-parole period of 19 months' imprisonment.

3. It is declared that the period of 484 days is to be reckoned as already served under the sentence including this day and it is ordered that there be noted in the records of the Court the fact that that declaration was made and its details.

4. All other ancillary orders of her Honour Judge Nicholson made on 22 September 2010 are confirmed.

5. Pursuant to s 6AAA of the Sentencing Act 1991, the Court declares that but for the appellant's plea of guilty, the total effective sentence imposed would have been one of 47 months' imprisonment with a non-parole period of 25 months.

[1] [1997] 2 VR 88.

[2] (Unreported, Supreme Court of Victoria, 27 March 1996).

[3] R v Renzella [1997] 2 VR 88, 96.

[5] [1997] 2 VR 88, 96.

[6] [1997] 2 VR 88, 97 (emphasis added).

[7] [1997] 2 VR 88, 98.

[8] 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; Warwick v The Queen [2010] VSCA 166.

[9] Section 18(1) was amended by Nos 48/1997 s 11(1); 69/1997 s. 6(1)(a)(b), 10/99 s. 18(1); substituted by No. 82/2006 s. 3(1).

[10] The requirement was deleted by ss 11(1) and (4) of the Sentences and Other Acts (Amendment) Act 1997 (Act No 48/1997). In R v Broad [1999] VSCA 149; [1999] 3 VR 31, 34 Brooking JA (with whom Tadgell and Chernov JJA agreed) explained that the removal of that requirement was 'because of decisions of the Court of Appeal which showed that it had the result that that the subsections were inapplicable [and thus no Pre-Sentence Detention could be declared] where the person being sentenced had been in custody by virtue of two remand warrants both operating at the same time.'

[11] [1993] 3 VR 31, 35 [11] (Brooking JA, with whom Tadgell and Chernov JJA agreed).

[12] In Barrett v The Queen [2010] VSCA 133, the Court said (at [46]) that it would have arrived at a different conclusion in that case had it not been for R v Broad, but it noted that TY had not overruled R v Broad.

[13] [2010] VSCA 166.

[14] [2007] VSCA 202; (2007) 17 VR 153, 188 [117].

[15] Warwick v The Queen [2010] VSCA 166, [13].

[16] [1997] 2 VR 88, 97.