R v OAD

In this application for leave to appeal against sentence, the applicant complained that he was not given full credit for time spent in presentence custody for offences of which he was ultimately acquitted while he was also on remand for offences to which he pleaded guilty and was sentenced. In rejecting the applicant’s grounds for leave to appeal against his sentence, the Court of Appeal considered that the totality principle had no part to play in this context, nor was there error in the sentencing judge not giving full credit to the applicant for his presentence custody for the earlier offences. In relation to the latter ground, the Court held that although presentence custody for offences of which an offender is ultimately acquitted may be taken into account in the general exercise of the sentencing discretion, there is no general principle for which the applicant contended that an offender must be given a discount on the sentence equivalent to the period that they spent in presentence custody. Accordingly, the application for leave to appeal against sentence was refused.

Mullins P, Bond JA and Freeburn J

11 October 2024

Background

The applicant pleaded guilty to nine counts of rape in March 2023 (“current offences”). Previously, in 2019, the applicant was convicted of three counts of indecent dealing with a child under 16 years and two counts of rape against a different complainant (“earlier offences”). The applicant unsuccessfully appealed his convictions for the earlier offences to the Court of Appeal, but he was granted a retrial by the High Court. [1], [4].

In April 2022, the applicant was arrested and charged with the current offences and remanded in custody. In mid-2023, the applicant was acquitted of the earlier offences. The applicant was sentenced for the current offences in October 2023. By the time he was sentenced, he had served three years’ imprisonment for the earlier offences of which he was acquitted. [4].

The sentencing judge took the presentence custody into account pursuant to the totality principle and s 9(2)(r) Penalties and Sentences Act 1992 (“the Act”) as “any other relevant circumstance” but only took into account 18 months of the undeclarable time relating to the offences of which the applicant was acquitted. [16]–[18]. The applicant was sentenced to eight years’ imprisonment for the current offences on each count and his parole eligibility date was fixed after serving four and a half years’ imprisonment. The applicant applied for leave to appeal against his sentence on multiple grounds, relevantly (1) that the sentence offended against the totality principle and (2) that the sentencing judge erred by not taking into account the time the applicant spent in presentence custody for the earlier offences of which he was acquitted. [2].

Did the sentence offend against the totality principle?

The Court disposed of this ground briefly, considering that the totality principle in Mill v The Queen (1988) 166 CLR 59 is concerned with the aggregation of sentences imposed for offences to ensure that the aggregation of the sentences is relative to the totality of the criminality of the offending to which the sentences apply. It requires a sentencing judge to review the aggregate sentence and consider whether it is “just and appropriate”. The principle is not concerned with a period in custody on remand which is ultimately not attributable to the serving of a sentence for an offence (because it is “dead time” in the sense that the offender was acquitted of those other offences). The Court therefore considered that there is no scope for the application of the totality principle to the period which the applicant served on remand for the earlier offences of which he was acquitted. [20]–[21].

Was there error by not taking into account the time the applicant spent in presentence custody for the earlier offences?

The Court considered that Victorian and Queensland courts developed the same approach to dealing with presentence custody that could not be the subject of presentence custody declarations where the time spent on remand did not relate solely to the offence(s) for which the offender was being sentenced first in time. That approach was that it was open for sentencing courts to take presentence custody for “dead time” into account in the exercise of the sentencing discretion, and that it was a matter for the sentencing judge’s discretion to decide what weight should be given to that “dead time”. [26]–[29].

The Court also considered that the Act makes specific provision in s 159A for the circumstances in which a declaration for presentence custody can be made in respect of time that the offender was held in custody for an offence when the offender is sentenced to a term of imprisonment for that offence. Section 159A gives the sentencing court a discretion depending on the circumstances as to whether all or part of the period in presentence custody is taken to be imprisonment already served under the sentence. [36]–[37].

The Court’s view was that:

“The fact that there is an express provision in the Act [s 159A] dealing with presentence custody for an offence does not preclude a sentencing court from considering custody served by an offender that is ultimately not attributable to any sentence where it is appropriate to do so in the exercise of the sentencing discretion.”

The Court held that it will be appropriate to take account of presentence custody which is not attributable to any offence (such as where one has been acquitted of the charges for which they were held in presentence custody) as a relevant factor – when a subsequent sentence is imposed – where the serving of that presentence custody can be characterised as falling within one of the factors to which sentencing court must have regard in sentencing an offender pursuant to s 9(2) of the Act. [38].

In the present case, the sentencing judge considered that the severity of the imprisonment for the current offences must have been affected by the lengthy period which the applicant had spent in presentence custody for the earlier offences of which he was acquitted and as such, the sentencing judge considered that s 9(2)(r) authorised giving the applicant some credit for the three years in custody for the earlier offences of which he was acquitted. The Court considered that such presentence custody could also be considered a mitigating factor for an offender where there is some connection such as proximity to the custody served for the offences for which the offender is then being dealt with, like in the applicant’s case. [39].

In light of this, the Court held that because time served in custody for offences of which an offender is ultimately acquitted may be taken into account when the offender is next sentenced for different offences, then there is no principle that the offender must be given a discount on the sentence equivalent to that period in presentence custody if the fact of that presentence custody for earlier offending is relevant to the sentencing of the subsequent offending pursuant to s 9(2)(r) of the Act. The principle for which the applicant contended, that such presentence custody for earlier offending of which one is acquitted ought to be fully taken into account when determining the appropriate sentence for later offending (at [22]), was accordingly rejected by the Court. Rather, the Court held that such presentence custody is merely a factor to be weighed in the exercise of the sentencing discretion “and the extent to which some allowance is made for the custody which is not attributable to any sentence depends on its relationship by time or other circumstance to the offences for which the offender is subsequently sentenced.” [40].

Disposition

The two grounds above were accordingly rejected, and the Court otherwise rejected the applicant’s argument that the sentence was manifestly excessive. The application for leave to appeal against the sentence was refused. [49], [50].

A Lukacs