Wronski v Raue [2012] ACTSC 87

2. Before considering whether there was an error of this kind, it is necessary to describe the offences involved and the sentencing proceedings concerned.

3. The sentences appealed against arose out of an incident in which Mr Wronski entered the home of his former partner, the complainant, through a window, without her consent, after engaging in conversation with her through the window. Once he was in the house there was a scuffle with the complainant, and when he left the house he took the complainant's camera with him.

4. That incident constituted a breach of a protection order that had been made in July 2010. As a result of that incident, Mr Wronski was sentenced on 25 November 2011 for one offence each of burglary, theft, common assault and breach of a protection order. The sentences were imprisonment for 4 months, 1 month and 1 month for the burglary, theft and assault respectively, all to be served concurrently, and for breach of the protection order, 6 months to be accumulated on top of that 4 months.

5. Several weeks earlier Mr Wronski had been sentenced for two previous offences involving the same complainant. Those offences had been committed only about a week before the four offences already described, on 27 September 2010. They involved a breach of the same protection order, constituted by going to the complainant's home, and an assault involving grabbing the complainant by her wrist. Mr Wronski was sentenced to 4 months imprisonment for the breach of the protection order and a 12-month good behaviour order for the assault.

6. At some point after the second incident, Mr Wronski was arrested and spent 76 days in custody. It is agreed between the parties that the 76 days was referable to both sets of offences. For reasons that are not entirely clear, the two sets of offences proceeded separately through the Magistrates Court and Mr Wronski was eventually, a year or so later, sentenced for the two groups of offences by different Magistrates, although less than a month apart. When Mr Wronski was sentenced for the first two offences, the 4 months imprisonment was backdated 76 days. The remainder of the 4 months imprisonment was suspended, subject also to a 12-month good behaviour order.

7. When Mr Wronski was sentenced for the second set of offences, the sentences that are currently under appeal, a different Magistrate declined to backdate the new sentence (being 10 months imprisonment, three months to be served in full-time custody, and the rest suspended) to recognise the 76 days in pre-sentence custody. Her Honour pointed out that Mr Wronski had already had the earlier sentences "discounted" by the 76 days and said:

it seems to me that in circumstances where the period of time already served has already been taken into account, it could not be the intention of the legislature that the discount operate twice.

Backdating of sentences - s 63, Crimes (Sentencing) Act

1. Her Honour's view of the relevant legislation, s 63 of the Crimes (Sentencing) Act 2005 (ACT), is the essential ground of this appeal. That section is as follows:

(1) The court may direct that a sentence of imprisonment is taken to have started on a day before the day the sentence is imposed.

(2) For subsection (1), the court must take into account any period during which the offender has already been held in custody in relation to the offence.

(b) a sentence of imprisonment of less than 1 day; or

(c) a sentence of imprisonment that is fully suspended; or

(d) the suspended part of a partly suspended sentence of imprisonment.

(4) If the offender is charged with a series of offences committed on different occasions and has been in custody continuously since arrest, the period of custody for subsection (2) must be worked out from the time of the offender's arrest.

(5) Subsection (4) applies even if the offender is not convicted or found guilty of -

(a) the offence for which the offender was first arrested; or

(b) any particular offence or offences in the series.

9. I note first my view, not disputed by either counsel, that s 63(1), through its use of the word "may", makes it clear that backdating is not required. Rather, I consider that it confers a discretion on a sentencing officer whether or not to backdate a sentence. A similar conclusion was reached by Refshauge J in Hawkins v Hawkins [2009] ACTSC 148 in which his Honour said, after an extensive review of the authorities:

1. Accordingly, it seems to me that while there is a discretion not to backdate a sentence such a discretion should be very sparingly used and only where it would offend justice and proper sentencing principles to do otherwise.

10. I note that Refshauge J's conclusion was, in effect, that there is a presumption to backdate unless "justice and proper sentencing principles" would be offended by such an approach. I am not convinced that such a presumption can be read into s 63(1) generally, given that s 63(1) is not, on its face, limited to cases where there is local pre-sentence custody. It seems to me that s 63(1) also permits backdating to take account of other matters such as residential rehabilitation (as to which there would certainly be no presumption in favour of backdating) and, presumably, to address the sort of problem that arose in the case of Mill v The Queen 166 CLR 59, to which I shall return (at [24] to [27] below), where the relevant prior custody was post-sentence custody that had been served in another jurisdiction in respect of different offences.

11. My own formulation of the effect of s 63(1) is:

(a) that it provides a genuine discretionary power to backdate for good reason;

(b) that if there is applicable pre-sentence custody as described in s 63(2), there should be appropriate backdating unless there is a good reason not to do so; and

(c) that, at least, explicit reasons should be given for backdating not reflecting pre-sentence custody, and for not backdating in respect of any relevant pre-sentence custody as described in s 63(3) to (5).

1. The immediate question, then, is whether the sentencing Magistrate was correct in finding that s 63 could not be intended to permit "double-dipping" in the crediting of pre-sentence custody when sentencing, and what the real implications of any such conclusion are.
2. Counsel for the appellant disclaimed any suggestion that a person who spends time in pre-sentence custody after being charged with multiple offences is entitled to have the time in custody, in effect, deducted separately from the sentence for each of those multiple offences. He also disclaimed a modified version of that proposition, being that a person who spends time in pre-sentence custody after being charged with multiple offences and is then sentenced for those offences in two or more separate sentencing proceedings is entitled to have the time in custody deducted separately from the head sentence imposed in each of the sentencing proceedings.
3. Initially, and somewhat to my surprise, counsel for the respondent did maintain this kind of approach, based on the proposition that "must take into account" in s 63(2) meant "must backdate accordingly" and that the reference in s 63(2) to "the" offence meant that backdating for pre-sentence custody had to be applied separately to each separate offence. She then qualified her submission by suggesting that the potential distortion of the sentencing process that would result from such an approach could be addressed through an application of the totality principle, supported by the techniques of concurrency and accumulation, to produce the appropriate end result.

15. After time for reflection, counsel for the respondent revised her position and submitted that "must take into account" requires the sentencing court to turn its mind to any period of pre-sentence custody served, without requiring the court necessarily to backdate any particular sentence by the specific period of pre-sentence custody.

16. This submission removes the need for me to go into details about the distortions that the respondent's initial approach would feed into the sentencing process and the real difficulties there would be in relying on the totality principle, concurrency and accumulation to overcome those distortions.

17. Instead, I merely note that s 63(2), in using the concept of taking into account (not, as used in the relevant Explanatory Statement, "accounting for"), confers adequate scope for a sentencing court to backdate to an extent that is in all the circumstances fair, without requiring backdating that is inappropriately generous or permitting backdating that is inappropriately unfair.

1. Section 63(3) does not seem to require any particular explanation in this context, but s 63(4) and (5) are usefully discussed. My own view is that these provisions are not intended to require any kind of "repeat" backdating. Rather, they are intended to head off any attempt to exclude consideration of any pre-sentence custody on the ground of discrepancy between the cause of an original arrest and the offences ultimately sentenced for. It is not, under those provisions, permissible to attribute different parts of the pre-sentence custody to different offences such that periods of presentence custody attributable to charges that do not proceed are not taken into account for backdating purposes. For instance, if a person spends six months in pre-sentence custody on six charges and is eventually sentenced on two of them, there should be no claim that only two months of the pre-sentence custody is available for backdating. If the person is eventually sentenced not for any of the six offences originally charged but for a different offence with which he or she is charged during the period of pre-sentence custody, there should be no suggestion that backdating must reflect only the period of custody after that later charge is laid.
2. Section 63, in my view, recognises the complexities of sentencing, especially those arising out of the totality principle, by providing first a discretion to backdate and then an obligation to take specified periods into account in any such backdating, not amounting to an obligation to backdate every sentence by the specified period described in s 63(4) and (5).
3. Nor does subs 63(2), in referring to "the" offence, require that each offence attracts a sentence with the total backdating explicitly attached. Rather, it requires that where a sentence is, in the court's discretion, to be backdated under s 63(1), the total time in custody for the offence concerned should be recognised, that total time in custody for the offence being defined in ss 63(3), (4) and (5).
4. A requirement to take matters into account is common in connection with the conferral of a discretion, but in its bald form cannot be read as requiring the person exercising the discretion to take the matter into account in any particular way. In particular, a requirement to take account of something should not be confused with a requirement to account for that thing.

1. The interpretation of s 63 that I have proposed goes part of the way to resolving the issue raised in this appeal. Her Honour, the sentencing Magistrate, was not required to backdate the new sentence at all (s 63(1)) but, if she had decided to backdate the sentence to take account of pre-sentence custody, the total backdating period for that purpose would have been determined under ss 63(3) to (5). The problem with her Honour's approach was not her decision about presentence custody, but her failure to apply the totality principle in her sentencing by considering not only the offences before her but the sentences that had already been imposed by another Magistrate for the earlier set of related offences.
2. That consideration, it seems to me, should have resulted in her fixing the later set of sentences to take account of the overall criminality of Mr Wronski's conduct and of the relevant impact, in relation to that criminality, of the earlier set of sentences.
3. I have already mentioned Mill, in which the High Court considered the case of a man who had committed three armed robberies over a period of six weeks in two states. He had been sentenced in Victoria to two eight-year terms accumulated as to two years, giving a total sentence of 10 years. Only after he had served eight years of that sentence and had been paroled was he taken to Queensland, where he was sentenced to another eight-year term but with a very low non-parole period of three years. The eight-year sentence was then appealed.
4. In that case the High Court at 66 looked at what a notional court sentencing the offender for all relevant offences at once would have done, and concluded at 67 that the third armed robbery would probably have received a similar sentence as the other two robberies (eight years with five or six years concurrent with the earlier sentences), effectively adding two or three years to the total sentence to give an aggregate head sentence of 12 or 13 years.
5. The trial judge in Mill had used the unusually low non-parole period to address the need for an appropriate total time in custody for Mr Mill, but the High Court said at 66 that it was not appropriate to reflect the fact that considerable time had already been served for related offences only through an adjustment of the non-parole period.
6. In Mill, in the absence of statutory provision such as is available in the ACT, there was no power in the second sentencing court to backdate the third sentence, and the High Court said at 67 that:

the only course open to the second sentencing court is to adopt a lower head sentence that reflects the long deferment that has taken place during which the offender has been in custody.

1. The issue facing the sentencing Magistrate in this case can be compared to the issue in Mill, in that her Honour was sentencing for offences that seemed to be very closely connected with other offences for which the offender had already been separately sentenced. Indeed, the two groups of offences in this case seem to be far more closely connected in one sense than the three armed robberies committed by Mr Mill over six weeks and two jurisdictions.
2. In this case, of course, the only custody that Mr Wronski had been in was the pre-sentence custody that is the subject of the appeal. However, the basic point seems to apply wherever there are multiple sentencing processes that, having regard to the nature and circumstances of the offending, could appropriately have been dealt with together. That basic point seems to be that a proper application of the totality principle requires the sentencing officer to consider not just the offences before him or her but the sentences already imposed for other relevant offences, at least those offences that could appropriately have been dealt with together with the immediate offences. It is in that process, that consideration of totality in relation to the various sentences including the earlier ones, that any issue of pre-sentence custody already taken into account once is properly considered.

1. The sentences for the two sets of offences were to the following effect, ignoring the pre-sentence custody for the moment:

(a) for the first breach of the protection order, four months imprisonment suspended after 76 days with a 12-month good behaviour order;

(b) for the first assault, a 12-month good behaviour order;

(c) for the burglary, four months imprisonment entirely cumulative on the sentence for the first breach of the protection order, with three months to be served;

(d) for the theft, one month concurrent with the burglary sentence;

(e) for the second assault, one month's imprisonment also concurrent with the burglary sentence; and

(f) for the second breach of the personal protection order, 6 months imprisonment cumulative on the burglary sentence.

1. This gives a total of 14 months imprisonment with five and a half months to serve.
2. I do not see that the question is whether the 76 days which was credited against the first breach of protection order sentence should also have been credited against the burglary sentence so as, in effect, to reduce the total time to be served to 3 months. In my view the question is (noting that the two sets of offences involved the same complainant and breaches of the same protection order arising out of the same dysfunctional relationship and that they were committed eight days apart, and having regard to the totality principle, time served and all other relevant matters): was the second set of sentences appropriate having regard to the first set of sentences?
3. Apart from the question of backdating, there is a further question about the second group of sentences, being whether the six months for the second breach of the personal protection order should have been entirely accumulated on the four-month term that incorporated the sentences for the burglary, theft and assault.
4. It is clear that her Honour considered that both breaches of the protection order should be taken seriously and that the second breach of the protection order should be treated more seriously than the first. However, I am not convinced that it was appropriate to accumulate the whole of that second six-month sentence on the four-month sentence for the three other offences which were, in effect, the content of the breach of the protection order. In other cases some degree of accumulation might have been appropriate, but in this case I consider that full concurrency is adequate for the four sentences arising out of the single incident.
5. Her Honour did not explain why the total criminality of the second breach of the personal protection order involving the burglary, theft and assault required a total sentence of 10 months imprisonment, bearing in mind that a sentence of imprisonment should only be imposed if it would be appropriate for the offender to serve the whole of that sentence in full-time custody, and that a sentence should not be set inappropriately high because the intention is to suspend some or all of it. Thus it is not apparent to me that totality has been properly considered even in relation to that second set of sentences.
6. Having found that her Honour erred in her failure to give proper consideration to totality, I must consider whether, despite that error, the sentences were nevertheless appropriate or whether I should re-exercise the sentencing discretion. Of course, I have no power to re-sentence for the first set of offences, but in considering what other sentence would be warranted on the second set of offences I must, as indicated, take full account of those earlier sentences.

1. First, I would be inclined to re-sentence Mr Wronski for the current offences to the same sentences imposed by the sentencing Magistrate that is, 6 months for the breach of the protection order, 4 months for the burglary, 1 month for the theft and 1 month for the assault, but would provide for all those sentences to be served concurrently.
2. Next, I consider that this sentence should have been partly concurrent with the sentence for the first protection order breach, specifically as to 2 months, leaving 4 months of that new sentence to be served. Twenty-two days of that new sentence was already served before Mr Wronski was granted appeal bail. To take account of those two considerations, the new sentence must therefore be backdated by a total of 2 months and 22 days, being to 24 February this year, so that it would expire on 23 August this year. The theft and assault sentences, on that basis, would already have been served, and I would propose to suspend the remaining two sentences and require good behaviour undertakings to be entered into.
3. Mr Wronski, please stand.
4. I note the convictions recorded by the sentencing Magistrate for a breach of the protection order and for burglary, theft and assault, and now sentence you to imprisonment for those offences as follows:

(a) six months imprisonment for the breach of the protection order;

1. All those sentences are to be served concurrently, so that is 6 months in total. The sentence will be backdated to 24 February 2012 to take account of the earlier sentences imposed in relation to the earlier associated offences and to take account of the 22 days that you served in custody on the Magistrates Court sentences. The two outstanding sentences, being for the burglary and the breach of the protection order, will be suspended from today.
2. I now order you to sign an undertaking to comply with your good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for 12 months, with a single security in the amount of $500. The good behaviour orders are subject to the conditions that you accept the supervision of ACT Corrective Services and obey all reasonable directions of the Director-General or her delegate, and that you undertake such counselling, courses, programs or treatments as directed by your supervising officer.
3. You will be given a written copy of the good behaviour orders and they will be explained to you by court officials, but you might also want to ask Mr Hopkins about them before you leave here. In short, those orders mean that for the next 12 months you need to keep out of trouble, keep in contact with Corrective Services, and participate in whatever activities your supervisor directs. If you commit another offence during that 12-month period you may find yourself back here to be re-sentenced for these offences, as well as losing your $500 and being dealt with for the new offence.
4. As you will have worked out, you still have a bit over 3 months of this prison sentence left. If it seems that you have not learned from these experiences, you could well find yourself back in custody to finish that sentence. You may sit down.

I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.

Solicitor for the Applicant: Darryl Perkins Solicitor

Solicitor for the Respondent: ACT Director of Public Prosecutions