R v DAB

The applicant sought leave to appeal his sentence following pleas of guilty to three counts of incest. The applicant argued (1) the sentencing judge erred by failing to declare his presentence custody as time served, and (2) the sentencing judge erred by failing to make a statement subject to s 159A(3B) Penalties and Sentences Act 1992 that such time was not declared. The Court of Appeal allowed the first ground of appeal and dismissed the second. The Court of Appeal found the sentencing judge had erred in finding he could not declare the presentence custody because he was imposing a cumulative sentence. Such a declaration remains discretionary unless the imposition of a cumulative sentence is mandatory. The Court of Appeal resentenced the applicant to a head sentence of seven years and, in its discretion, refused to declare the presentence custody as time served.

Mullins P, Dalton JA and North J

23 December 2022

Background

The applicant pleaded guilty to three counts of incest against his biological daughter, aged 14-years. [4], [10]. He was sentenced to two years and six months imprisonment on each count. [4]. Those sentences were to be served concurrently on each other. [4], [11]. However, the sentences were to be served cumulatively on sentences earlier imposed for other sexual offending (including rape) against the same complainant, that occurred during the same period but were not disclosed until later. [4], [11]. For those other offences, the appellant was sentenced to a head sentence of five years imprisonment, with 604 days presentence custody declared as time served and immediate parole eligibility. [11]. The total effective head sentence was therefore seven years and six months. [14].

The applicant sought to appeal the sentence on the following grounds: first, that the sentence was manifestly excessive because the sentencing judge failed to declare the 477 days presentence custody; and second, the sentencing judge erred by failing to make a statement about the presentence custody not to be declared subject to s 159A(3B) Penalties and Sentences Act 1992. [5].

Decision of the Court of Appeal

The Court of Appeal allowed the appeal on ground one, dismissing ground 2. [2], [6].

The sentencing judge erred in finding the 477 days in custody could not be declared time served due to the cumulative sentence he was imposing, citing Braeckmans [2022] QCA 25 (‘Braeckmans’). [15]. The court in Braeckmans found s 156A found requires the court to refuse to declare presentence custody as time served where this would render a cumulative sentence of imprisonment partly concurrent. [16]. However, s 156A did not apply as, although the offences were listed in sch 1, these had not been committed whilst on parole or any other circumstances listed in s 156A. [17].

The Court of Appeal rejected the submission that presentence custody cannot be declared as time served under s 159A wherever the sentences are cumulative, including under s 156. [18]. Importantly, s 156A imposes a mandatory cumulative sentence, such that a declaration under s 159A would effectively reduce its cumulative effect; whereas s 156 provides the Court with a discretion to impose a cumulative sentence. [18]. Thus, there are clear policy reasons for not making a declaration of presentence custody as time served where a mandatory cumulative sentence is imposed under s 156A, but not so where a sentence is imposed on a discretionary basis under s 156. [18].

In the present case, no mandatory cumulative sentence was applicable. [19]. Consequently, the sentencing judge’s error in failing to consider whether to declare the 477 days presentence custody as time served required the Court of Appeal to resentence the applicant. [19]. The Court noted the difficulty of speaking of a “normal range” of sentencing for incest cases, as the circumstances of such cases are diverse. [22].

The Court of Appeal varied the sentence imposed by substituting the term of 2 years and 6 months for “2 years” in respect of each count, reflecting the fact the applicant had served more than one-third of any total sentence of the offending by the date of the second sentence [2], [25]. The effective head sentence was seven years. [25].

The Court ultimately refused to declare the 643 days presentence custody as time served. [2]. The presentence custody also formed part of the sentences imposed in respect of the other incest offending and, in light of the seriousness of the offending, cumulative sentences which did not declare time served were appropriate. [23]-[26].

In respect of ground 2, the Court of Appeal considered that while the requirements of s 159A(3B) are mandatory, if a judge failed to state the dates and calculations of presentence custody but nevertheless stated the time declared to be served, the omission to comply with ss 159A(3B)(a) and (b) would not constitute an error compelling the Court to resentence. [7]. The Court of Appeal dismissed that ground. [6].

A Hughes of Counsel