The Queen v Lovegrove and The Queen v Clancy

• Jurisdiction: Northern Territory
• Court: Supreme Court
• Judge: Southwood J
• Judgment Date: 16 January 2018
• Neutral Citation: [2018] NTSC 2
• Docket Number: FILE NO: (21728714) & (21734145)
• Date: 16 January 2018

Between:

The Queen

and

Stephen Lovegrove

The Queen

and

Brendon George Clancy

[2018] NTSC 2

JUDGMENT OF:

Southwood J

FILE NO: (21728714) & (21734145)

SUPREME COURT OF THE NORTHERN TERRITORY

IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA AT DARWIN

CRIMINAL LAW — Sentencing — backdating of commencement of sentence — electronic monitoring — residential rehabilitation — Sentencing Act (NT) s 5(2)(k), s 63(5) — no backdating for electronic monitoring and residency at a residential rehabilitation facility — sentence to be reduced

Pappin v The Queen [2005] NTCCA 2 , applied

Akoka v The Queen [2017] VSCA 214 ; Alimudin v McCarthy; Nurdin v Bravos [2008] NTCA 7; (2008) 23 NTLR 102; Eatts v Dawson (1990) 21 FCR 166; Forrest v The Queen [2017] NTCCA 5; Griffiths v The Queen (1977) 137 CLR 293; Hughes v The Queen [2008] NSWCCA 48; Makarian v The Queen (2005) 228 CLR 357; Nottle v Trenerry (1993) 3 NTLR 68

Okwechime v Sindel (2009) 235 FLR 299 ; R v Cartwright (1989) 17 NSWLR 243; R v Douglas Unreported, New South Wales Court of Criminal Appeal, 4 March 1997; R v Eastway Unreported, New South Wales Court of Criminal Appeal, 19 May 1992; R v Elphick (No 2) [2012] ACTSC 87; R v Eyles (No 3) [2017] ACTSC 1; R v Heaney Unreported, Victorian Court of Appeal, 27 March 1996; R v Judge Frederico; Ex parte Attorney-General [1971] VR 425; R v McHugh (1985) 1 NSWLR 588; R v Renzella [1997] 2 VR 88; R v Wronski v Raue [2012] ACTSC 87, referred to

R v Currado Calesso SCC 21558128; R v Lowe SCC 21715822; R v Ralph Forbes SCC 21646710; R v Rhys Watts SCC 21632323; R v Stephen Edwards SCC 21634627, not followed

Bail Act (NT) s 27A(1)(iaa), s 27A(1)(iab), s 27A(1)(ia)

Criminal Code s 405(1), s 405(2)

Crimes (Sentencing) Act 2005 (ACT) s 33(1), s 40B, s 40B(2), s 63, 63(1), s 63(2), s 63(3)

Crimes (Sentencing Procedure) Act 1999 s 47, s 47(1), s 47(2), s 47(3)

Justice (Corrections) and Other Legislation Amendment Act 2011 s 26

Sentencing Act (NT) s 3, s 5, s 5(1), s 5(2), s 5(2)(k), 60A(1), s 62(1), s 63A(2), s 63(4), s 63(5)

Sentencing Act 1991 (Vic) s 18, s 18(1), s 18(4)

Statute Law Revision Act 2011

REPRESENTATION:

Counsel:

Prosecution: C Ingles

Defendant: R Goldflam

RULING

(Delivered 16 January 2018)

Introduction

1 Stephen Lovegrove has pleaded guilty to intentionally supplying a commercial quantity of cannabis reckless as to the substance being a dangerous drug. Brendon George Clancy has pleaded guilty to intentionally possessing a commercial quantity of Lysergide reckless as to the substance being a dangerous drug.

2 Their offences are unrelated. However, both offenders were granted bail on conditions that they be electronically monitored while residing in the community at a specified place. They were also required to complete the residential drug rehabilitation program offered by Drug and Alcohol Services Australia (DASA) in Alice Springs.

3 During the submissions on sentence for each offender, which were heard separately, there arose a common issue about whether any sentence of imprisonment that may be imposed on them could and should be backdated under s 63(5) of the Sentencing Act (NT) so as to reflect the time they had been in the community on bail under conditions that they be electronically monitored while residing at a specified place. The issue is an important issue.

4 Drug offending is prevalent in the Territory and an increasing number of drug offenders are applying for ‘ Griffiths’ 1 type bail after they have been remanded in prison for 28 days, or thereabouts, and before they have pleaded guilty so they may undergo residential rehabilitation programs in the community. Bail is frequently granted by the Court subject to conditions that: (1) the accused is not to consume dangerous drugs and is to undergo testing for the consumption of dangerous drugs; (2) the accused is be electronically monitored; (3) the accused is to enter into and complete a residential rehabilitation course while in the community; and (4) the accused is to reside at a specified place after completing the residential rehabilitation

course. After completing the residential rehabilitation course in the community, drug offenders are then pleading guilty and asking that (1) any head sentence imposed by the Court be backdated to reflect, not only the time that they were remanded in prison, but the time they spent in the community at a specified place while being subject to electronic monitoring; and (2) that their sentence of imprisonment be suspended forthwith.

5 The Court has recently passed a number of sentences of imprisonment on offenders 2 where the head sentence imposed on them has been backdated to reflect part of the time the offenders have been in the community under electronic monitoring. The backdating has been calculated as a percentage of the time the offender would have otherwise spent in prison on remand. However, at no stage prior to these two sentencing proceedings has the Court given full consideration or heard full argument about whether the Court has power to backdate in such circumstances or the basis on which the length of any backdating should be calculated. Nor has the Court received any evidence about the extent and degree of regulation and supervision that the offender has been subject to in the community.

6 A consequence of this practice is that there is a risk that offenders, who have engaged in commercial drug trafficking, may receive disproportionally lenient sentences because there is a natural reluctance to re-incarcerate offenders who have completed a residential rehabilitation program.

7 As a result of the matters referred to above, I requested Community Corrections to provide detailed reports about the extent and degree of the regulation and supervision of the offenders while they have been on bail, and I heard full argument from the Crown and the defence about whether the Court has power to backdate a sentence to reflect, at least part of, the time the offender has been subject to electronic monitoring at a specified place in the community.

8 As was stated by the Victorian Court of Appeal in Akoka v The Queen3 the nature and severity of bail restrictions and in particular the residential treatment programs on offer do vary. Where reliance is placed on residency at such a residential facility, evidence should be required to establish that it is appropriate for the court to give credit for such residency. It will be relevant for the court to know whether the residency is entirely voluntary or whether there is an element of compulsion. Of course, voluntary residency will continue to be relevant to the instinctive synthesis in other ways.

Backdating of sentences — section 63(5) of the Sentencing Act (NT)

9 It is broadly accepted that s 63(5) of the Sentencing Act (NT) is the source of the Court's power to backdate sentences of imprisonment and the subsection covers the field. So much, is common ground between the parties.

10 Subsection 63(4) and (5) of the Sentencing Act (NT) state:

• (4) Except as expressly provided or expressly ordered, a sentence of imprisonment on conviction, takes effect from the day the court passes sentence on the offender and a sentence of imprisonment on summary conviction takes effect from the commencement of the offender's custody under the sentence.

• (5) Where an offender has been in custody on account of his or her arrest for an offence and the offender is convicted of that offence and sentenced to imprisonment it may be ordered that such imprisonment must be regarded as having commenced on the day on which the offender was arrested or on any other day between that day and the day on which the court passes sentence.

11 The ordinary meaning of ‘custody’ in this context is confinement of the person by the police, or in a prison, correctional centre or detention centre, 4 or at court. The orthodox view is also that such confinement is in the nature of civil detention aimed at ensuring an accused person's appearance before the Court at a future date.

12 The leading authority on backdating sentences of imprisonment in the Northern Territory remains Nottle v Trenerry. 5 That case considered the operation of s 405(1) and (2) of the Criminal Code (as that section then was). Subsection 405(2) was in very similar terms to s 63(5) of the Sentencing Act (NT). Subsections 405(1) and (2) stated:

1

Except as hereinafter expressly provided and when expressly ordered a sentence of imprisonment upon conviction on indictment takes effect from the day the court passes sentence upon the offender and a sentence of imprisonment upon 4 It includes detention under clause 8 of Schedule 1A of the Fisheries Management Act 1991 (Cth) and immigration detention under s 250(3)(a)(i) of the Migration Act 1958 (Cth): Alimudin v McCarthy; Nurdin v Bravos[2008] NTCA 7, (2008) 23 NTLR 102. The main issue in that case was not the meaning of “custody” but whether the appellants were “in custody on account of his … arrest for an offence”.5(1993) 3 NTLR 68.summary conviction takes effect from the commencement of the offender's custody under the sentence. 2. Where the offender has been in custody on account of his arrest for an offence and he is then convicted of that offence and sentenced to imprisonment it may be ordered that such imprisonment shall be regarded as having commenced on the day on which he was arrested or on any other day between that day and the day on which the court passes sentence.

13 In Nottle v Trenerry, Mildren J applied R v McHugh6 as to what was the correct practice in this regard. His Honour held the power to antedate a sentence conferred on the Court under s 405(2) is discretionary but it was well established that the failure to antedate a sentence is a sentencing error, unless...