Foley v Police - [2008] SASC 338

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
FOLEY v POLICE
[2008] SASC 338
Judgment of The Honourable Justice Kourakis
2 December 2008
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN REFUSED
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - NON-PAROLE PERIOD OR MINIMUM TERM - SOUTH AUSTRALIA
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
Appeal against sentence - appellant pleaded guilty to two counts of driving while disqualified and one count of theft in the Magistrates Court - appellant was convicted and sentenced to six weeks imprisonment for each count of driving while disqualified and one week imprisonment for theft, with those sentences being cumulative - offences committed while appellant was on parole - appellant therefore required to serve his unexpired parole in prison - total custodial sentence of two years, 10 months and 13 days imprisonment - Magistrate fixed non-parole of 16 months - whether sentence manifestly excessive - whether Magistrate erred in ordering that sentences be served cumulatively - whether error of approach in determining non-parole period - whether non-parole period manifestly excessive.
Held: Sentence is not manifestly excessive - Magistrate did not err in ordering that sentences be served cumulatively - no error of principle in determining non-parole period - non-parole period not manifestly excessive - appeal dismissed.
Motor Vehicles Act 1959 (SA) s91; Criminal Law Consolidation Act 1935 (SA) s134; Correctional Services Act 1982 (SA) s75; Criminal Law (Sentencing) Act 1988 (SA) s31(2), s32, referred to.
R v Creed (1985) 37 SASR 566; R v Major (1998) 70 SASR 488; R v Power [2003] SASC 288; R v Matthews [2008] SASC 259; R v Wilson (1999) 203 LSJS 459, applied.
Police v Cadd (1997) 69 SASR 150, considered.

FOLEY v POLICE
[2008] SASC 338
Magistrates Appeal

KOURAKIS J The appellant appeals against the sentences imposed on him in the Magistrates Court on 11 September 2008. The offences for which the appellant was convicted and the sentences imposed are as follows:
·An offence against s 91 of the Motor Vehicles Act 1959 of driving while disqualified from holding or obtaining a licence, on Christmas Day 2007. The appellant was imprisoned for six weeks.
·An offence against s 91 of the Motor Vehicles Act 1959 of driving while disqualified committed on 2 January 2008. The appellant was sentenced to a further six weeks imprisonment, cumulative upon the earlier sentence.
·An offence of theft of two chocolate bars (s 134 of the Criminal Law Consolidation Act 1935) committed on 28 February 2008. The appellant was sentenced to a further period of imprisonment for one week, again cumulative on the earlier sentences.
The maximum penalty for the offences committed in December 2007 and January 2008 is two years imprisonment because the appellant had been convicted in 1999 of driving while disqualified from holding or obtaining a driver’s licence. The maximum penalty for the offence of theft is 10 years imprisonment.
The appellant was on parole when he committed the offences. On his conviction and imprisonment on the offence of driving while disqualified committed on Christmas Day, the appellant became liable to serve a period of two years, seven months and six days pursuant to s 75 of the Correctional Services Act 1982. Pursuant to s 31(2) of the Criminal Law (Sentencing) Act 1988 the sentences imposed by the Sentencing Magistrate had to be served after the appellant had served in prison that period of his unexpired parole. The Sentencing Magistrate fixed a non-parole period of 16 months for the total period of imprisonment of two years, 10 months and 13 days that the appellant was liable to serve by reason of the operation of the statutory provisions to which I have referred and the sentences he had imposed.
Antecedents
An appreciation of the appellant’s history of imprisonment and release on parole is important to the determination of this appeal. It reveals a repetitive pattern of sentences with relatively low non-parole periods fixed in the hope that the appellant would be rehabilitated. In every case those hopes were dashed soon after the appellant’s release on parole.
On 25 July 2002 the appellant was sentenced to 15 months imprisonment for seven offences of non-aggravated serious criminal trespass committed between 3 February and 6 February 2002. The offences were committed about two months after the appellant’s release on parole in November 2001. For that reason the sentence of 15 months was to commence after the appellant had served the balance of his unexpired parole of two years and 10 months. A non-parole period of 12 months was fixed for a total period of imprisonment of more than four years.
On 15 October 2003 the appellant was convicted on two counts of non-aggravated serious criminal trespass and one count of larceny, committed on 10 December 2001 and 8 January 2002. He was sentenced to a concurrent term of 15 months imprisonment to commence on 25 July 2002. The sentence was backdated so that it operated over the period of imprisonment referred to in the preceding paragraph and which the appellant had already served. For the same reason the appellant’s non-parole period, which had already expired in July 2003, was not altered. It will be noticed that the appellant had committed this offence within an even shorter time of his release on parole in November 2001 than the offences for which he had already been sentenced. The Magistrate who sentenced the appellant on 15 October 2003 adopted the merciful course of not interrupting the appellant’s rehabilitation by extending the non-parole period and returning him to prison. At the time that the Magistrate took that course in the hope of furthering the appellant’s rehabilitation the appellant had already re-offended.
On 9 September 2003 the appellant had committed the offences of attempted aggravated serious criminal trespass and illegal use of a motor vehicle. At that time he had been on parole for less than two months. On 22 September 2004 he was sentenced in the District Court to 14 months imprisonment. That sentence was to commence at the expiration of the unexpired balance of the appellant’s parole of two years, 11 months and 15 days which was to be served from 9 August 2004. A non-parole period of 13 months was fixed for a total period of imprisonment of more than four years.
The appellant was again released on parole in September 2005. On 27 October 2005 the appellant committed the offences of non-aggravated serious criminal trespass and dishonestly taking property. In March and again in April 2006 he committed offences of illegal use. Between January and March 2006 he committed 14 offences of breaching a bail agreement. On 5 September 2006 the appellant was sentenced for those offences and, together with the unexpired balance of his parole, he was liable to serve a period of three years, 10 months and 27 days. A non-parole period of 12 months was fixed.
The appellant was released on parole in September 2007. On the imposition of the sentence of imprisonment for the first of the driving while disqualified offences, which was committed on Christmas Day 2007, the appellant became liable to serve a period of two years, seven months and six days in addition to the period of imprisonment imposed for the breaching offences.
Accumulation of sentences appropriate
On the hearing of the appeal the appellant conceded that the individual sentences imposed for the offences of driving while disqualified were not manifestly excessive having regard to the higher maximum penalty to which the appellant was exposed. It was submitted only that the Sentencing Magistrate had erred in ordering that the sentences be served cumulatively. That submission cannot be accepted. There was a period of about a week between the commission of the two offences. They were committed for quite different reasons. On the second occasion the appellant chose to drive in contravention of the law, and the order of the Court, after he had been so clearly reminded of his obligations when he was detected and stopped by police on Christmas Day. Both offences were contumacious. The sentence of six weeks imposed for each offence would have been justified even if the appellant had not been subject to the higher maximum penalty of two years.[1] In my view the discretion of the Sentencing Magistrate to order that the sentences be served cumulatively has not been shown to have miscarried. The total period of 12 weeks imprisonment for both offences is not manifestly excessive or in any way disproportionate or oppressive.
[1] See Police v Cadd (1997) 69 SASR 150.
I also hold that the period of imprisonment imposed for the theft is not manifestly excessive. The appellant has a long history of dishonesty offences. That history includes the repeated commission of offences of simple theft. The appellant told a probation officer who interviewed him on 27 August 2008 that the offence was caused by a “brain freeze”. I observe that a “brain snap” was said in April of this year to be the explanation for the violent on-field behaviour of an AFL football player. The appellant’s counsel submitted that the expression was meant to convey that the appellant momentarily lost control. However, that statement cannot be taken literally. It was not contended that a temporary physiological or psychological condition was operating at the time which diminished the appellant’s responsibility for the offence. Insofar as the explanation is meant to imply that the event was out of character it must be rejected. This offence of theft cannot be characterised as a momentary and isolated lapse. On the contrary, it was a recurrence of the appellant’s demonstrated proclivity to taking things dishonestly.
Non-parole period not excessive
The primary complaint made by the appellant is that the non-parole period of 16 months fixed for the total period of imprisonment of two years, 10 months and 13 days was manifestly excessive.
The appellant contends that the following passage discloses an error of law in the way in which the Sentencing Magistrate fixed the non-parole period:
Ordinarily I would fix a non-parole period which represents two thirds of this term or roughly 22 months. Despite the fact you have a poor compliance with parole there are some redeeming features to your background. You obviously have characteristics which are redeeming as evidence [sic] by the testimonials. There is also some aspect of compliance during the periods on parole. Accordingly I accord you some reduction in the non-parole period and I fix a non-parole period of 16 months.[2]
[2] Sentencing Remarks of Mr S Smart SM, 11 September 2008 at [17].
The appellant contends that the Sentencing Magistrate erroneously constricted his wide discretion to fix a non-parole period pursuant to s 32 of the Criminal Law (Sentencing) Act 1988. The appellant also contends that the non-parole period is in any event manifestly excessive because it is disproportionate to the period of imprisonment imposed for the breaching offences.
I will deal with each of those submissions in turn. The material considerations affecting the fixing of a non-parole period are explained in the following passage from the judgment of King CJ in R v Creed:[3]
The non-parole period, no less than the head sentence, must reflect the basic consideration of justice that the punishment should fit the crime, having regard both to the offence and the offender, and it must reflect the community's sense of justice, what in some of the cases is called "the moral sense of the community". For that reason alone the non-parole period, no less than the head sentence, should be properly proportionate to the gravity of the crime.
In every case, but particularly in the case of serious crimes such as the present, it is necessary that the non-parole period, no less than the head sentence, operate as a deterrent to others who may be minded to commit similar crimes.[4]
[3] (1985) 37 SASR 566.
[4] R v Creed (1985) 37 SASR 566 at 568.
King CJ went on to warn against the unthinking application of a “norm” or standard proportion of the head sentence in these terms:
Counsel for the respondent mentioned, in the course of his submissions, what I gathered from him was regarded as something of a norm, namely that the non-parole period should represent two-thirds, in an ordinary case, of the head sentence. The members of this bench know of no such practice and speaking for myself, and I think the other two members of this Court, I would wish to say that the Court does not regard a non-parole period of two-thirds, nor indeed any other proportion, of the head sentence as being the norm. Every case has to be considered upon its own facts and a non-parole period has to be fixed in every case which reflects the considerations which are peculiar to that case. In some cases, the punitive, deterrent and preventive aspects will play an important part, in others the prospects of rehabilitation by means of parole will play a much greater part. Nothing in the nature of a norm can be acceptable.[5]
[5] R v Creed (1985) 37 SASR 566 at 569.
In my respectful opinion that passage does not mean that many or even most non-parole periods will not fall within a limited range. The very factors referred to by King CJ in the first of the passages from Creed to which I have referred will have the result that non-parole periods will often fall within a limited range. Indeed in R v Major[6] Doyle CJ said:
In the present case, it is appropriate to fix a lower than usual proportion of the head sentence as the non-parole period. But the period fixed must still reflect the gravity of the crime.
I am prepared to agree to a non-parole period of 10 years, as proposed by Olsson J. Nevertheless, I regard that as being at the lower end of the range that is required to reflect the gravity of the crimes in the present case. Such a low non-parole period for such serious offending is appropriate only because of the unusually powerful mitigating circumstances of this case.[7] (emphasis added)
[6] (1998) 70 SASR 488.
[7] R v Major (1998) 70 SASR 488 at 492.
The following passage from the decision of Sulan J in R v Power[8] explains why a non-parole period above or below the “usual proportion” may be fixed in some cases:
There are circumstances where a court may see little prospect that a person will respond to parole in a positive and useful way. In those circumstances, the court may well set a non-parole period which is a high percentage of the head sentence. On the other hand, there are circumstances in which the court may set a lesser non-parole period, particularly in the case of a lengthy sentence, so that an assessment can be made by the Parole Board after a reasonable period to determine whether the prisoner has progressed sufficiently on the path to rehabilitation to be entitled to be released. Nevertheless, the non-parole period must also reflect the requirement of punishment and general and personal deterrence.[9]
[8] [2003] SASC 288.
[9] R v Power [2003] SASC 288 at [29].
In R v Matthews,[10] Kelly J, speaking for the Court of Criminal Appeal, commented on sentencing remarks that had referred to a lower than “usual non-parole period” in these terms:
A sentencing judge has a wide discretion when fixing an appropriate non-parole period in any given case. For this reason it is not necessary to identify what might be described as a “usual non-parole period”. There are many and varied circumstances which might appropriately be taken into account when fixing a non-parole period. Therefore standing alone I would not be prepared to conclude that a non-parole period representing two thirds of the head sentence was necessarily in itself, manifestly excessive. However, in the penultimate paragraph of the sentencing judge’s remarks he said:
‘Your counsel sought the suspension of any term of imprisonment. This offence is too grave and prevalent. There is, in your case, no good reason to suspend the above term. Rather, I have reflected those matters of mitigation found in your personal antecedents in the lower than usual non-parole period and, to some extent, the head sentence. …’
I consider that in those remarks the judge was stating his intention to deal with the appellant somewhat more leniently that he otherwise would have. That conclusion is consistent with his acceptance of the mitigating matters personal to the appellant which he had previously accepted. It is also consistent with the relatively moderate head sentence which his Honour imposed.[11]
[10] [2008] SASC 259.
[11] R v Matthew [2008] SASC 259 at [12], [13].
In Matthews the Sentencing Judge had fixed a non-parole period which was two thirds of the head sentence. The Court of Criminal Appeal interfered with that non-parole period because it held that there must have been a “slip”, or unnoticed error, in calculating it because the Sentencing Judge had indicated an intention to fix a “lower than usual” non-parole period. It follows that the Court of Criminal Appeal saw no error in proceeding to fix a non-parole period from a recognition that the circumstances called for a non-parole period that was lower than usual.
I see no reason why the ex tempore remarks of the Sentencing Magistrate should be read more strictly than the references to the “usual non-parole period” by the Justices of this Court sitting on the Court of Criminal Appeal. The reference is a recognition of the range in which the proportion will often fall. The remarks of the Sentencing Magistrate should not be understood to mean that he bound himself to a norm that should only be departed from when, and to the extent that, there was good reason to do so. It would be an erroneous restriction of the statutory discretion to graft on to it a presumption that the non-parole period will be a fixed proportion of the head sentence unless there was good reason to do otherwise. But that is not what the Sentencing Magistrate did here. The remarks were directed to the appellant so that he might understand that his efforts in the months preceding his sentence had not gone unrewarded. It would be unfortunate indeed if sentencing magistrates were dissuaded from engaging in this way with the persons they sentence for fear that their remarks will be subjected to hypercritical analysis.
I turn now to the submission that the non-parole period was manifestly excessive. In my view it is necessary when fixing a non-parole period for a period of imprisonment that comprises both a period of unexpired parole and sentences of imprisonment imposed for breaching offences that the Court have regard to the gravity of both the breaching offences and the offence on which the offender had been paroled.
In R v Wilson[12] Justice Bleby said:
I do not suggest that the previous record is all together irrelevant in such an exercise. What will be relevant in determining whether a non-parole period should be fixed, and in fixing the period in these circumstances, are the nature and circumstances of the breach or breaches of parole, an assessment of the subject’s likely future response to supervision and whether he is a good candidate for parole, bearing in mind, particularly, the need to protect members of the community from violent episodes. This seems to have been behind the reasoning of King CJ in R v James (1990) 158 LSJS 7, at 9.[13]
[12] (1999) 203 LSJS 459.
[13] R v Wilson (1999) 203 LSJS 459 at 462 per Bleby J.

In Wilson the offender breached parole by breaching a designated condition. It is perhaps understandable that in those circumstances particular attention may need to be given to the seriousness of the breach. However, the Parliament has expressly provided that a parolee is liable to serve the balance of his or her unexpired parole on imprisonment for a breaching offence or on the breach of a designated condition. If the non-parole period were fixed on the basis that it should approach, or not be disproportionate to, the imprisonment imposed for the breaching offence or the gravity of the breach of the designated condition, that parliamentary intention would be subverted. That approach would for all practical purposes subject the parolee to a liability to be imprisoned for the “breaches” and not for the period of his or her unexpired parole.
In my view the relevant considerations in fixing a non-parole period for a term of imprisonment which includes a period of unexpired parole are:
·The prospects of rehabilitation on parole.
·The gravity of the offences on which the offender was imprisoned and then paroled.
·The gravity of either of the breaching offences on which the offender was imprisoned or the breach of the designated condition.
·The need to deter the offender and others from commission of offences of the type with respect to which he was on parole and offences of the type that breached that parole, or the need to deter the offender and others from breaching a designated condition.
·The need to deter the offender and others from breaching parole.
Plainly enough the relative weight given to these considerations will vary from case to case. Moreover, the considerations are related. For example, the gravity of the offence may inform both the need for deterrence and the prospect of rehabilitation. There are at least two factors affecting the fixing of the non-parole period where parole has been breached that suggest that it will be a higher proportion of the head sentence in those cases than in others. First, the breach itself will usually demonstrate that the prospects of rehabilitation are low. Secondly, the sentencing court must have regard to the need to deter parolees from breaching their parole.
On the other hand, in fixing the proportion of the overall sentence that must be served in prison, it must be remembered that the unexpired parole which the parolee must serve on breach is not the original head sentence. The parolee will already have served a significant part of the head sentence in prison before his release on parole.
In this case it can be accepted that the appellant’s offending is less serious than the offences which have breached his parole in the past. However, in light of the history of repeated parole breaches that I have set out I am not confident that the appellant will make good use of any future parole. In making that assessment I take into account the fact that the appellant appears to have worked hard and has not offended since February this year.
More importantly, even if I were to take a more optimistic view of the appellant’s future prospects, the other considerations to which I have referred strongly militate against a non-parole period that is a low proportion of the head sentence.
The order of the Sentencing Magistrate allows for a period of almost 19 months on parole after serving 16 months in prison. The order leaves much scope for parole. Moreover, the scope for parole is relatively large even if the non-parole period of 16 months is notionally added to the period of 12 months that the appellant has already served of the total head sentence of three years, 10 months and 27 days imposed on 5 September 2006. Such an addition would result in a total notional non-parole period of two years and four months. That notional total non-parole period must then be balanced against the total notional head sentence. In this case, that is arrived at by adding the original head sentence of three years, 10 months and 27 days to the sentence imposed for the breaching offences of 13 weeks. This gives a total notional head sentence of just over four years. The non-parole period calculated on this basis is approximately 50 per cent of the total notional head sentence.
If any criticism could be made of the non-parole period imposed by the Sentencing Magistrate it is that it does not adequately reflect the need for deterrence demonstrated by the offending and parole history to which I have referred.
For those reasons I hold that the non-parole period is not manifestly excessive.
Conclusion
I dismiss the appeal.