Clarke Lawrence Hall v SA Police No. 4264 Judgment No. SCGRG 93/1774 Number of Pages 3 Criminal Law and Procedure (1993) 61 Sasr 100

[1993] SASC 4264

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA NYLAND J

CWDS
Criminal law and procedure - jurisdiction, practice and procedure - judgment and punishment - Appellant pleaded guilty and convicted of seven offences including larceny, illegal use and housebreaking - all committed on same day and within a short period of appellant having been released on parole - offences meant appellant breached a suspended sentence bond for a charge of false pretences - total sentence 28 months imprisonment plus 7 months unexpired term to serve - Special Magistrate refused to fix a non-parole period - first substantial period of imprisonment appellant has received - should be given the benefit of the possibility of rehabilitation - appeal allowed - non-parole period of 20 months to commence from 24th August 1993. Flaherty v De Lurant (1986) 133 LSJS 200, applied.

HRNG ADELAIDE, 2 November 1993 #DATE 11:11:1993
Counsel for appellant:     Mr D Stokes
Solicitors for appellant:    David Stokes &; Associates
Counsel for respondent:     Mr S J Gupta
Solicitors for respondent: Crown Solicitor

ORDER
Appeal allowed.

JUDGE1 NYLAND J I give leave to the appellant to extend time for lodging of a notice of appeal. 2. The appellant on 24th August 1993 in the Para Districts Court of Summary Jurisdiction pleaded guilty to seven offences in addition to acknowledging a breach of a bond. Some of the sentences were directed to be served concurrently and some cumulatively. The total head sentence was twenty-eight months' imprisonment in addition to a seven month unexpired term to be served with respect to a previous sentence as a result of breach of parole. The learned Special Magistrate declined to fix a non-parole period. The appellant abandoned his appeal against the head sentence and urged only one ground of appeal, namely that the learned Special Magistrate had erred in declining to fix a non-parole period. 3. The matters before the Para Districts Court involved complaints of two offences of driving an unlicensed motor vehicle, an offence of illegal use and three offences of larceny, all committed on 28th January 1993. In addition there was an offence of housebreaking entering and larceny, an offence of wilful damage and an offence of being in possession of housebreaking implements by night, all committed on 29th January 1993. By the commission of these crimes the appellant breached a bond entered into on 11th December 1991 with respect to a charge of false pretences. The learned Special Magistrate declined to fix a non-parole period having regard to the number of offences committed within a very short period of having been released on parole and coupled with the appellant's criminal record which is relatively extensive. 4. Counsel for the appellant submitted, however, that the pre-sentence report indicated that the appellant had acknowledged his problems and realised the need for rehabilitation and that he would benefit from a programme which would encourage such rehabilitation. In Flaherty v De Lurant (1986) 133 LSJS 200 von Doussa J agreed with the comments of Bollen J in Flentjar v Tuckey &; Ors (Judgment No 8892 delivered 7 March 1986) wherein he said:
    " '...I do not know that persisting offending and breach
    of parole necessarily amount singly or in combination to "special
    reasons" within section 65. Perhaps they do but I do not think
    it right merely to concentrate on persistency of offending and
    breach of parole or bond and say that special reason for not
    fixing a non-parole period exists. All the circumstances of
    offending, of the offender, anything relevant to the offender's
    future and the good of the community as a whole must all be
    considered. Certainly persistency and dishonesty for many years
    and breach of terms of parole or a bond must be relevant in
    considering whether there are special reasons within section 65.
    But at least generally speaking I think more is needed. Perhaps
    it would be more accurate to say that one needs to consider the
    persistence of dishonesty and breach of parole or bond in the
    correct light and not as truculent facts needing no illumination.
    What caused the offending and breach? What may happen about that
    cause in the future? These must be relevant matters.' And a little later he said:
    '...I think that one can say that the scheme of the
    legislation is that Parliament generally speaking intends
    people, even some persistent offenders, to have parole.'" On
    the date of sentence the appellant was aged 31 years. He had a
    long history of drug abuse. The pre-sentence report stated that
    he was "in need of guidance as he attempts drug rehabilitation
    and psychological intervention. He appears to be at a point now
    where he is willing to put work into his own emotional healing,
    and to break his dependency upon chemicals". 5. Although the appellant has an extensive record of offending this was the first substantial period of imprisonment that he had received. I consider that despite his prior record the appellant should have been given the benefit of the possibility of rehabilitation. 6. In my view the appeal should be allowed. I fix a non-parole period of twenty months to commence from 24th August 1993.