R v Wilson

In this application for leave to appeal against sentence, his Honour Justice Fraser (with whom Morrison JA and North J agreed) confirmed that s 159A Penalties and Sentences Act 1992 (as amended) empowers a sentencing court to make a declaration in relation to time the offender was on remand for the subject offence whilst serving a previous sentence of imprisonment, and distilled the circumstances in which the totality principle applies.

Fraser and Morrison JJA and North J

18 February 2022

On 8 December 2020, the applicant was sentenced upon pleas of guilty to 12 drug offences and one Weapons Act 1990 offence, all committed on 9 June 2019 (whilst the applicant was on parole). [1], [8]. For each of the two most serious offences (of unlawful possession of methylamphetamine, in excess of two grams), the applicant was sentenced to five and a half years’ imprisonment. For the rest of the offending, he received lesser concurrent terms of imprisonment. [1].

A chronology of his pre-sentence custody follows: [9]:

(a) After the applicant was arrested and charged in relation to the subject offences on 9 June 2019, he served one day on remand in relation only to the proceedings for those offences before his parole under the previous sentence was suspended on 10 June 2019.

(b) The applicant was held in custody both in relation to the proceedings for the subject offences and under the previous sentence for 288 days from 10 June 2019 until the full-time date of the previous sentence on 23 March 2020.

(c) The applicant was held in custody only in relation to the proceedings for the subject offences for 49 days from 24 March 2020 to 11 May 2020.

(d) The applicant was held in custody only in relation to the proceedings for the subject offence for one day from 7 December 2020 (the first day of the sentence hearing) until the sentence was imposed on 8 December 2020.

The sentencing judge declared as time served under the sentence a period of 51 days. That is, the total of (a), (c) and (d) above. The sentencing judge proceeded upon the premise that those 51 days were the only pre-sentence custody that could be declared – and not the 288 days at (c). [19].

Ground of appeal

The applicant applied for leave to appeal against his sentence on two grounds. This note only deals with Ground 2 that the sentencing judge failed to adequately deal with the applicant’s pre-sentence custody for two reasons:

(a) that the sentence did not proceed in accordance with s 159A Penalties and Sentences Act 1992 (“PSA”); and

(b) the sentencing judge failed appropriately to apply the principle of totality in relation to overlapping sentences. [3].

Ground 2(a) – When time can be declared under s 159A(1) Penalties and Sentences Act 1992

Justice Fraser (with whom Morrison JA and North J agreed) accepted that the premise upon which the sentencing judge operated – namely, that only 51 days could be declared – was legally incorrect. [19].

This was because, the amendment to s 159A(1) PSA, adding the words “and for no other reason”, clearly empowers a sentencing court to make a “declaration in relation to time the offender was on remand both for the subject offence and on remand for an offence which was not dealt with at the sentencing hearing” (emphasis added). [18].

His Honour endorsed the decision of Bowskill J (as her Honour then was) in R v Whitely [2021] QSC 154 at [17], that s 159A PSA also empowers a sentencing court to make a declaration in relation to time the offender was on remand for the subject offence whilst serving a previous sentence of imprisonment. [18].

Contrary to the Crown’s submissions that the sentencing judge’s lack of awareness of the effect of s 159A did not result in any error in the exercise of the sentencing discretion, the Court of Appeal held that the error was one of principle, and that it fell to it to re-sentence afresh (unless, as in the circumstances of this case, it concludes that the same or a more severe sentence is the appropriate sentence). [22].

Ground 2(b) – Applying the principle of totality in relation to overlapping sentences

In the present case, the applicant had been serving a previous sentence for unrelated offending at the time of sentence but had been held on remand as well for the multiple new offences for which the sentence was being imposed.

His Honour set out the relevant circumstances in which the totality principle applies at [26]. His Honour explained that the totality principle applied in relation to the aggregation of the sentences for the subject offences in this case. [27]. It did not apply in relation to any aggregation of any such notional sentence and the previous [unrelated] sentence. [28].

The Court observed, however, that the previous sentence and the related circumstances, including the periods the applicant served in custody and on parole under that sentence, remained material considerations insofar as they related to a purpose for which a sentence may be imposed. In the circumstances of this case, some moderation of the sentence could be justified. [28].

Disposition

The Court considered that in the exercise of its discretion it would have imposed a more severe sentence than that appealed against. In those circumstances, the appropriate order was to dismiss the application for leave to appeal. [33], [34].

Z Brereton of Counsel