SENTENCING – APPLICANT RETAINED IN CUSTODY FOR “OTHER OFFENCES” IN RESPECT OF WHICH HE WAS ULTIMATELY ACQUITTED – “PERIOD WASTED” NOT CAPABLE OF BEING DECLARED PURSUANT TO S18 SENTENCING ACT 1991 – CAN BE “GENERALLY” TAKEN INTO ACCOUNT AS PART OF THE WIDE SENTENCING DISCRETION.
1. “6. Mr Carter – who appeared for the applicant in this Court – contended that the judge’s sentence was adversely infected by two matters of significance which led to the imposition of a sentence which was claimed to be excessive. The first point arose from events which occurred after this robbery. Two days after the crime, the applicant was released on bail. Then it seems that on 28 June 2004 he was taken back into custody in respect of further alleged offences. He remained in custody for about another three months before he was sentenced for the armed robbery. Subsequently he was acquitted of the charges in respect of the events of 28 June 2004. It was submitted by Mr Carter that this Court should reduce the sentence imposed for the armed robbery on account of the fact that the prisoner had been in gaol for some three months awaiting trial for offences which the Crown in fact had failed to prove were committed. Unless the time spent was capable of being declared as pre-sentence detention in respect of the armed robbery offence, the time spent and wasted could only be taken into account generally by this Court in determining the outcome of this application. As Callaway JA said in Kotzmann  VSCA 27,  2 VR 123 at 137; (1999) 105 A Crim R 243:
“There can be no question of a person on remand who is subsequently acquitted acquiring a kind of bank balance on which to draw in relation to subsequent offences unconnected with the reason for custody. But sentencing involves a very wide discretion … ”
The same logic applies in this case. There can be no arithmetic deduction from the sentence of days spent in custody for the other offences; unless s18 of the Sentencing Act were to apply. But it cannot apply in this case, so we were informed, because the bail granted after the robbery was not revoked. That appears to have been no fault of the applicant. The prosecutor informed us that it is the Crown’s view that it would be appropriate that some adjustment to the sentence be made for the unwarranted time spent in custody.
7. The second ground asserts that the sentencing judge’s discretion has miscarried because she misconstrued the applicant’s prospects of rehabilitation by saying that the applicant had:
“last [seen] Dr Lloyd Jones three months ago and you appear not to have been following up on drug treatment as you have not attended his rooms for methadone since the end of June.”
This was the basis upon which her Honour was able to remark that the applicant’s rehabilitation “is by no means assured as yet”. This was, I am satisfied, an error which was made by the judge because, as I have indicated, the applicant was, at the time remarked upon by the judge, in custody for the subsequent offences. It is that error which would be capable of re-opening the sentencing discretion, and does so, but the question in my mind arises as to whether any different sentence should be passed. Having regard to the attitude expressed on behalf of the Director, I think it would be appropriate to make some adjustment to take account of the time spent in prison, which – as we now know – was unwarranted for reasons not the fault of the applicant. I would therefore allow the appeal, and in lieu of the sentence passed by the judge I would impose a sentence of two years and ten months and direct that he serve a period of 13 months before becoming eligible for parole. It should not be thought that the view which I have taken is otherwise than wholly referable to the peculiar facts of this case; nor should it be thought that any form of precedent is being set for the conclusion which I have reached, which has been wholly based on the peculiar circumstances of this application.” Per Winneke ACJ, R v Giakoumogianakis  VSCA 156 (9 June 2005).
2. “9. The plaintiff comes before me seeking the application of the law to his case. He also suggests that the Australian notion of a “fair go” should apply and that he should be permitted to pursue his Supreme Court proceeding for that reason and so as to enable him to produce fresh evidence to the court.
10. The law is more definite than that which can be gained by reference to such a vague concept as a “fair go”, although it is an inherent part of the administration of justice in this system that all parties be given both an opportunity to be heard and the right to prosecute and defend proceedings in the court.
11. The “fair go” applies both to plaintiffs and to defendants. Part of that is the basis for the rule that defendants should not be subjected, because it is not fair, to proceedings simultaneously in two jurisdictions or to proceedings which, having been determined in one jurisdiction, are then sought to be re-agitated in another.
12. A plaintiff as part of the notion of fairness is entitled to prosecute his or her proceeding once, but generally speaking only once.
13. The cause of action having been agitated in one court, and having been finalised there, the law generally is that subject to appeal that cause of action cannot be agitated in another court. Were it otherwise, defendants could properly say that they were not allowed a fair go; that they were not allowed to free themselves of the constant apprehension, if not actuality, of proceedings being brought against them time and again in relation to the same claim.
14. It is that principle which is, it seems to me, operative in this case. I have compared the claim made by the plaintiff in his statement of claim as issued with the writ on 27 September 2005 with the cause or causes of action which the plaintiff has brought against the defendants in the County Court. My comparison satisfies me that the plaintiff seeks in this court to agitate or re-agitate the same cause or causes of action as those brought by him in the County Court.
15. It remains for him to prosecute to the extent properly allowed by the County Court the proceeding against the second defendant. The proceeding against the first defendant has been determined in that court and it is not now open for the plaintiff, save for any rights of appeal which he may have (and I don’t suggest by that that I have any view one way or the other about such rights) to re-agitate the same cause of action or a very similar cause of action in this Court.
16. For these reasons it seems to me that the proceedings in this court in respect of both defendants are, in the words of Rule 23.01, proceedings which are not only an abuse of the process of the court, but also scandalous, frivolous and vexatious. In those circumstances it seems to me that I am bound to hold that the relief sought by the summonses issued respectively by the first and second defendants should be granted. It follows that the plaintiff’s summons for final judgment must be dismissed.” Per Harper J in O’Hara v McDermott & Anor  VSC 475, Vic Sup Ct, 30 November 2005.
3. “That alcohol and violence are often companions is well known. What is perhaps less well known and certainly less appreciated is that the drinking of spirits by young men of your age is a particularly dangerous way to become intoxicated. Whilst all intoxication is fraught with the risk of injury either to oneself or to others, intoxication by the drinking of spirits has particular risks. The whisky which you were drinking before you killed your best friend was about eight times stronger than full strength beer. Despite what the manufacturers of such drinks might say in their advertisements, the drinking of spirits by 18 year olds, whether mixed with fizzy additives or not, should not form part of appropriate recreational activities for people of either sex – if for quite different reasons.” Per Bongiorno J in R v Leatham  VSC 315, Vic Sup Ct, 28 August 2006.