Wronski v Raue [2012] ACTSC 87

Wronski v Raue [2012] ACTSC 87 - ACTSC 2012 case summary — Zoe

[32]

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.
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).
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).
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.

[33]

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.
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.
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.
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.
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.
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:

[43]

This gives a total of 14 months imprisonment with five and a half months to serve.
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?
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.
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.
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.
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.

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Judgment (49 paragraphs)

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