Garlett v. Ratcliffe & Ors. - (10 Sep 2019)

A Court has discretion to take into account time spent in custody and can give credit by either reducing term or backdating sentence

Criminal

Present two appeals against sentence are related and involved the failure to take into account time that, the Appellant spent in custody on remand. The magistrates were not made aware of the time in custody, so there is no suggestion of error. Rather the Appellant says that, he has suffered a miscarriage of justice by reason of the failure to give credit. There is no other challenge to the sentences imposed. The Respondent concedes that the appeals should be allowed and the Appellant resentenced so as to take into account the 19 days referred to.

A Court has a discretion as to whether to take into account time spent in custody, however, generally full credit should be given. To do otherwise would usually be unfair and unjust. The means by which credit is given is set out in Section 87 of the Sentencing Act 1995 (WA). The Court can give credit by either reducing the term or backdating the sentence. The manner in which the discretion is exercised will depend on the particular circumstances of the case.

In the present case, there was a miscarriage of justice at the first sentencing because information relevant to the exercise of the discretion was not known to the magistrate. Had it been known, it is undoubted that, the sentences imposed would have been reduced or varied to take into account the time spent in custody. The problem could have been corrected at the second sentencing, not by backdating the activated suspended sentence, which cannot be done, but by ordering that only part of the sentence be served, having regard to the circumstances which had become known since sentence was imposed and that would make service of the whole sentence unjust. However, the error remained undetected.

In fact, a further miscarriage of justice then occurred by reason of the failure to take into account all of the time spent in custody between the sentencing dates. In all of the circumstances, the important thing to now do is to adjust the total sentence to give full credit for the 19 days previously spent in custody. That can be achieved by reducing the activated term of 12 months by 15 days and backdating the total effective sentence by a further four days.

Extensions of time on both appeals are granted. Leave to appeal on both appeals is granted. The application to adduce additional evidence is granted. Both appeals are allowed. The sentences imposed on 16 January 2019 are set aside and in lieu thereof, the appellant is sentenced to 3 months for the driving charge and 11 months and 15 days of the activated 12 month sentence, which is cumulative, producing a total effective sentence of 14 months and 15 days, backdated to 8 January 2019 and the Appellant is declared to be eligible for parole.

Tags : SENTENCE IMPOSITION REDUCTION