Duggan v Police - [2008] SASC 241

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
DUGGAN v POLICE
[2008] SASC 241
Judgment of The Honourable Justice David
29 August 2008
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - NON-PAROLE PERIOD OR MINIMUM TERM - SOUTH AUSTRALIA - DISCRETION OF COURT
Appellant committed offences while on parole - appellant arrested on warrant for breach of designated condition unrelated to offences - appellant began serving period of unexpired parole - appellant pleaded guilty to offences and was sentenced by magistrate to a term of three months imprisonment, cumulative upon period of unexpired parole - magistrate set a non-parole period of two years nine months and twenty one days - whether non-parole period manifestly excessive - whether magistrate sufficiently considered nature and circumstances of breach in setting non-parole period - whether magistrate had power to sentence appellant.
Held: Appeal dismissed - magistrate sufficiently considered circumstances of offence and offender - non-parole period set within range of discretion - prohibition in s 19(3) of the Criminal Law (Sentencing) Act 1988 (SA) inapplicable to unexpired parole directed to be served pursuant to s 32(2)(a) of the Act.
Correctional Services Act 1982 (SA) s 73; Criminal Law (Sentencing) Act 1988 (SA) s 3, s 19, s 31, s 32; Criminal Law Consolidation Act 1935 (SA) s 134(1); Liquor Licensing Act 1997 (SA) s 131(1); Summary Offences Act 1953 (SA) s 6(1), referred to.

DUGGAN v POLICE
[2008] SASC 241
Magistrates Appeal
DAVID J
Introduction

This is an appeal against sentence.
On 6 January 2008, the appellant committed theft, contrary to s 134(1) of the Criminal Law Consolidation Act 1935 (SA). The details were that he stole a wallet from a man asleep on a footpath in Bentham Street, Adelaide. On 17 January 2008, he committed the offences of hindering and resisting a member of the police force, contrary to s 6(1) of the Summary Offences Act 1953 (SA), and consuming liquor in a public place, contrary to s 131(1) of the Liquor Licensing Act 1997 (SA). The details were that the appellant had been consuming liquor with a group of people on Hindmarsh Square, when they were approached by a police officer. The appellant refused to comply with directions to decant his liquor and walked away. Upon arrest, the appellant tried to pull away and waved his arms around. All of these offences were committed whilst the appellant was on parole.
On 15 April 2008, the Parole Board cancelled the appellant’s parole after finding that he had breached the designated condition that they had set that he present himself for urine testing on 10 January 2008. Pursuant to s 73 of the Correctional Services Act 1982 (“the Correctional Services Act”), the Parole Board ordered that he serve the balance of his parole, from 26 January 2008, being the date of his arrest on a warrant issued by the Parole Board.
On 30 May 2008, having pleaded guilty to the offences with which he was charged, a magistrate sentenced the appellant to three months imprisonment, such term to commence at the expiration of his unexpired balance of parole. As at the date of the first offence, which also constituted a breach of parole pursuant to s 75 of the Correctional Services Act, the appellant’s unexpired balance of parole totalled two years nine months and twenty one days. The magistrate set a non‑parole period of two years.
Appeal
There is no argument that the term of imprisonment of three months had to be cumulative upon the period of unexpired parole. Section 31(2)(a) of the Criminal Law (Sentencing Act) 1988 (SA) (“the Sentencing Act”) makes that clear. However, the appellant now appeals against the severity of the sentence on the basis that the non‑parole period was too great and that different considerations come into play where the bulk of the head sentence to which the non‑parole period is attached involves an unexpired period of parole.
Mr Mead, counsel for the appellant, argues that in setting the non‑parole period, the magistrate concentrated solely upon the appellant’s offending and concerned herself with personal and general deterrence in relation to it. He argues that the magistrate should have considered the fact that the designated breach of parole, activating the bulk of the head sentence, was not itself an offence. He further argues that the magistrate should have considered the nature and circumstances of the designated breach of parole as relevant to the new non‑parole period.
Mr Mead further argues that the appellant was forthcoming, regarding his breach of parole and volunteered the fact of his offending and drug taking. He also emphasises that the appellant had, according to the psychological report tendered to the magistrate, above average cognitive function, this ability being matched by his desire to rehabilitate through further education. Mr Mead submits that these matters were not given enough attention by the magistrate in her sentencing remarks, nor were they reflected in the non‑parole period she set.
In my view, the argument is ill‑founded. The magistrate had to set a non‑parole period on the totality of the head sentence. Pursuant to s 32(2) of the Sentencing Act, she had no choice but to set a non‑parole period having regard to the total period of imprisonment, comprised of both the sentence and the period of unexpired parole. She also took into account matters personal to the appellant and the need for general and personal deterrence, and emphasised that she was not imposing a sentence because of his long history of offending. The breach which activated the serving of the unexpired parole period is not a matter of significance, for in this case, there was no application for the breach to be excused. It is to be noted, however, that the magistrate did consider the appellant’s drug use, and that the appellant breached a designated condition set by the Parole Board in order to address his drug use. The sentence imposed was well within her discretion.
Mr Mead also argues that the magistrate did not have the power to impose the sentence she did because of the limitations set out under s 19(3) of the Sentencing Act. Section 19(3) reads:
19‑Limitations on sentencing powers of Magistrates Court
…
(3)The Magistrates Court does not have the power to impose‑
(a) a sentence of imprisonment that exceeds 2 years; or
(b) a fine that exceeds $150,000.
…
Mr Mead argues that because the unexpired parole was more than two years, that amounted to “a sentence of imprisonment that exceeds two years”, and as such, the matter should be remanded for sentence to the District Court.
Section 3(1) of the Sentencing Act states:
sentence means‑
(a)     the imposition of a penalty; or
(b)     the decision of a court to offer a defendant an opportunity to enter into a bond; or
(c)     the fixing, extending or negating of a non‑parole period; or
(d)     the making of any other order or direction affecting penalty.
In my view, the magistrate has not imposed a sentence of imprisonment that exceeds two years by directing that the term of imprisonment commence from the date of the expiration of the unexpired period of parole. In doing that as part of the sentence, she has ordered what should automatically follow as a matter of law, pursuant to s 73 of the Correctional Services Act and s 31(2) of the Sentencing Act. She has merely imposed a penalty of three months, to commence at a particular date, which has already been set. I reject the argument.
Conclusion
For the above reasons, I dismiss the appeal.