Anthony Christopher Harris v R No. SCCRM 93/383 Judgment No. 4285 Number of Pages 3 Criminal Law and Procedure

[1993] SASC 4285

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL LEGOE(1), MOHR(2) AND BOLLEN(3) JJ

CWDS
Criminal law and procedure - sentencing judge did not intend to impose head sentence of more than 10 years for a number of drug related offences - error in calculations meant that appellant received head sentence of 10 years and 11 months.

HRNG ADELAIDE, 15 November 1993 #DATE 15:11:1993
Counsel for appellant:     Mr B J Dixon
Solicitors for appellant:    Dixon Gallasch Pty Ltd
Counsel for respondent:     Mr B J Jennings QC
   with Mr J A Powell
Solicitors for respondent: Director of Public
   Prosecutions (SA)

ORDER
Appeal allowed to reduce the head sentence in accordance with the intentions of the sentencing judge - appeal against non-parole period dismissed.

JUDGE1 LEGOE J This is an appeal against sentence which was imposed in the District Court in respect of a number of offences to which the appellant had pleaded guilty in that court. The totality of the sentences, including the revoked suspended sentences, was fixed by the learned trial judge in his remarks as a head sentence of ten years, commencing on 11 November 1992. A non-parole period was fixed at eight years commencing on the same date. I note that the appellant had been remanded for a period of some twelve months in order to give him the opportunity to overcome his heroin addiction. On 23 December 1991, his Honour Judge Pirone in the District Court, suspended the sentence for another dishonesty offence on the basis that the appellant had, at that time, overcome the habit. As the learned sentencing judge said in his remarks in this case, this matter was adjourned for twelve months to see if he could keep out of trouble. 2. The offences for which the learned sentencing judge was sentencing him were some 26 summary offences which occurred between 24 July 1992, and 12 November 1992. The appellant clearly succumbed to the temptation of using heroin, and found that he could not stop. There were actually three applications to revoke suspended sentences. The first was a sentence of some 30 months imposed on 23 December 1991 by his Honour Judge Pirone for a receiving offence. The second was a sentence of six months in fact, as appears from the documents. The learned sentencing judge apparently made a slip in his remarks, and proceeded on the basis that this sentence was for a period of three months. The third was a sentence of nine months imposed upon the appellant in the Para District Court on 12 May 1992 for two offences of false pretences. 3. The breaches of those bonds were brought about by his convictions when he pleaded guilty on 5 April 1993 before the learned sentencing judge. I do not propose to list the number of offences in respect of which the learned sentencing judge fixed various sentences, but I refer to a report of the learned sentencing judge to this court in which he draws attention to the fact that, well after the report for sentence had been signed, the prosecuting authorities drew his attention to the fact that although his Honour had stated that the head sentence was ten years, the addition of the individual sentences for the various offences totalled ten years and eleven months. 4. His Honour acknowledges that such an error had occurred, and he proceeded in his report to state:
    "As it was not drawn to my attention until after I had
    destroyed my working papers I cannot say whether it was an
    arithmetical error or whether it was a misstatement of one or
    more of the sentences for the individual offences. I did not
    intend to impose a total sentence of more than ten years. If
    the individual sentences had exceeded ten years I would have
    exercised my discretion under the totality principle to reduce
    the head sentence to ten years". 5. Having (1) perused the learned sentencing judge's comments; (2) the letter that the appellant wrote to the learned sentencing judge in respect of the sentence; (3) the pre-sentence report dated 9 September 1991; (4) the list of previous convictions in which the various suspended sentences previously mentioned have been listed; (5) as well as other offences and convictions recorded against the appellant; and (6) taking into account generally the circumstances of the case, I am of the opinion that effect should somehow be given to the clear intention of the learned sentencing judge that the head sentence should not exceed ten years. 6. In order to avoid any administrative difficulties in respect of his head sentence periods, I would be prepared to allow the appeal only for the purpose of altering individual sentences arithmetically, so as to reduce the period of ten years and eleven months in total to a period of ten years. In my opinion this could be done by looking at p.10 of the appeal book where the sentences are listed. If, in my opinion, one was to take the sentences in file number 785 of 93 for illegal use on the 1 September 1992, and file number 790 of 1993 for another offence of illegal use on 11 November 1992, and another illegal use offence in file number 777 of 1993 for an offence on the 2 November 1992, and finally, for an illegal use offence in file number 778 ever 1993 on 30 October 1992, all of which the learned sentencing judge, in his sentencing remarks on p.186, near the top of the page ordered to be served concurrently, being a period of imprisonment for one year. I would be prepared to reduce those concurrent sentences to a period of six months each and leave the order that they be served concurrently. 7. In addition to reducing those four concurrent sentences, I would be prepared to reduce by five months the sentence for the offence which was committed on 16 September 1991, which is file number 354 of 1992, for housebreaking and larceny, and for which the learned sentencing judge imposed a sentence of two years five months, to two years. The overall reduction would then be 11 months in the total sentencing package. 8. I am only prepared to do this on the basis that the learned sentencing judge clearly intended to impose a sentence of 10 years in all, and no more. It is not on the basis that the individual sentences were, in themselves, manifestly excessive, which indeed, Mr Dixon candidly admitted in his submissions they were not. 9. So far as the appeal against the non-parole period is concerned, I am not persuaded that the period of eight years, in all the circumstances in this case, was manifestly excessive. I would not interfere with the non-parole period. In my opinion, the result is that the appeal should be allowed purely for the purpose of reducing those individual sentences which I have listed, making a total reduction of 11 months to the total head sentence, and otherwise I would order that the sentences be left intact, as ordered by the learned sentencing judge.

JUDGE2 MOHR J I agree.

JUDGE3 BOLLEN J Although I am of the opinion that the head sentence of 10 years was conservative, I agree.