Drummond v POLICE

[2006] SASC 269

Supreme Court of South Australia

(Magistrates Appeals: Criminal)

DRUMMOND v POLICE

[2006] SASC 269

Judgment of The Honourable Chief Justice Doyle (ex tempore)

24 August 2006

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERAL PRINCIPLES

Magistrate sentenced the appellant to a non-parole period in the context of a total sentence of less than one year - error made out - s 32(5)(a) of the Criminal Law (Sentencing) Act 1988 (SA) does not permit a court to fix a non-parole period in respect of a person liable to serve a total period of imprisonment of less than one year - appeal allowed - appellant re-sentenced.

Criminal Law (Sentencing) Act 1988 (SA) s 18A, s 32(5)(a), s 38(2a); Correctional Services Act 1983 (SA) s 75(1), referred to.

DRUMMOND v POLICE
[2006] SASC 269

Magistrates Appeal:  Criminal

1. DOYLE CJ:          This is an appeal against a sentence imposed by the Magistrates Court on 19 July 2006.   Mr Drummond pleaded guilty to a number of offences before the Magistrates Court.  The sentence of four months’ imprisonment was imposed in respect of offences committed on 16 December 2005.  In respect of certain other offences he was sentenced to imprisonment for three months, to be served concurrently with the sentence of four months.

2. By reason of those sentences, Mr Drummond became liable to serve the balance of a sentence of imprisonment in respect of which he was on parole as at the day of the offences, or the first offences, namely 16 December 2005.  That balance was 4 months 20 days.  This sentence was to commence on 19 July 2006, the day the Magistrate imposed the further sentences of imprisonment.

3. That meant that Mr Drummond was to serve a total sentence of 8 months 20 days commencing on 19 July 2006. The Magistrate fixed a non-parole period of six weeks. The Magistrate had no power to do that because s 32(5)(a) of the Criminal Law (Sentencing) Act 1988 (SA) does not permit a court to fix a non-parole period in respect of a person liable to serve a total period of imprisonment of less than one year.

4. It is clear that the Magistrate’s intention was that Mr Drummond should serve a short period of imprisonment, to be followed by a period of supervised release.  When the error was drawn to the Magistrate’s attention on 2 August 2006 he revoked the order fixing the non-parole period but took the view that he could do no more than that.  Mr Drummond now appeals.

5. It is common ground between the parties that the appeal must be allowed.  The sentence was fixed on a false premise.  Mr Nicholas, in a very helpful submission, has outlined clearly what happened, where the Magistrate erred and how the intention of the Magistrate can still be realised.  The respondent has no objection to a sentence being imposed that reflects the Magistrate’s intention.

6. Although on appeal I must sentence afresh, it is appropriate to take the same approach as did the Magistrate.  It is appropriate because both parties invite me to do so, because the error that was made has nothing to do with the substance of the sentence and because the approach that the Magistrate took seems to be an appropriate approach in all the circumstances and, moreover, because it was a merciful approach.

7. Accordingly, I make the following orders:

   1. That the appeal against sentence be allowed.

   2. That the sentence imposed by the Magistrates Court be set aside.

   3. That the following sentence and orders be substituted:

   3.1 That in respect of the first two offences of 16 December 2005 on the information MCMUB-05-2394, namely driving a motor vehicle without the consent of the owner and driving while disqualified from holding or obtaining a driver’s licence, a conviction be recorded and a single sentence of imprisonment for four months be imposed pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) and in respect of the third offence of failing to state name and address Mr Drummond be convicted without further penalty.

   3.2 That in respect of the offence of 31 January 2006 on the complaint AMC-06-11011, namely assault, and the offence on 31 January 2006 on the information MCMUB-06-212, namely damage property, and the offence on that same information of 31 December 2005, namely breach bail, Mr Drummond be sentenced to a single sentence of imprisonment for three months pursuant to s 18A of the Criminal Law (Sentencing) Act1988 (SA), to be served concurrently with the sentence of four months imprisonment.

   3.3 That the balance sentence of imprisonment of 4 months 20 days that Mr Drummond is liable to serve pursuant to s 75(1) of the Correctional Services Act 1982 (SA) be served or taken to be served commencing on 19 July 2006.

   3.4    That the concurrent sentences of four months’ imprisonment and three months’ imprisonment commence on the expiry of the sentence of 4 months 20 days imprisonment. 

   3.5 That pursuant to s 38(2a) of the Criminal Law (Sentencing) Act 1988 (SA) Mr Drummond serve a period of six weeks’ imprisonment, commencing on 19 July 2006.

   3.6    That the balance of the combined sentence of 8 months 20 days imprisonment be suspended on condition that Mr Drummond enter into a bond to take effect on his release from prison, the bond to be for a period of  seven months from the release from prison, conditions of the bond to be:

   1That Mr Drummond be under the supervision of a Community Corrections Officer.

   2.That Mr Drummond obey that officer’s lawful directions and, in particular, that the appellant reside at a specified place if so directed; refrain from associating with specified persons if so directed; submit to and comply with psychiatric assessment and treatment if so directed; comply with taking prescribed medicines, including antidepressant drugs; submit to and comply with psychological assessment and therapy if so directed; participate in a drug rehabilitation program if so directed; participate in an alcohol rehabilitation if so directed; and submit a sample of blood or urine for drug or alcohol screening or analysis if so directed. 

   3.8    That the bond be entered into before a justice of the peace at Mobilong Prison or such other place of imprisonment at which Mr Drummond may be held at the time of his release.