Hancock v Police No. Scgrg-98-788 Judgment No. S6775

[1998] SASC 6775

HANCOCK v POLICE

Magistrates Appeal
Debelle J

This is an appeal against sentence. The appellant also requires an extension of time within which to appeal. The appeal arises out of misunderstandings as to the question whether, at the time he was being sentenced, the appellant was subject to an existing non parole period. 

The circumstances of the offending are a little unusual.  The appellant pleaded guilty to the offence of breaking and entering a building and stealing goods therefrom, and giving a false name and address. 

The offence occurred whilst the appellant was on day release in the course of serving a period of imprisonment.   On 1 May, 1996 he had been sentenced to imprisonment for six years with a non parole period of two years and six months, both periods to commence on 18 September, 1995.  By reason of the exercise of the prerogative of mercy by the Governor on the recommendation of the Department of Correctional Services,  the non parole period expired on 1 March, 1998.  The appellant was therefore due for release.  The appellant remained in custody whilst the administrative procedures relating to his release were carried out. 

On 10 March, 1998 the Parole Board issued an order for the release of the appellant on 29 April 1998. That order was made pursuant to s67(5) of the Correctional Services Act, 1982.  However, the order was not signed by the secretary of the Parole Board until 17 March, 1998.  On 28 April 1998 the appellant signed his acceptance of the conditions of parole.  In the meantime the appellant had appeared before a magistrate and had pleaded guilty to the offences he had committed on 21 August, 1997 whilst on day release.  The appellant was remanded in custody to appear for sentencing in relation to that offence on 29 April, 1998.  Thus, although the appellant was due for release on parole, he remained in custody by virtue of the order of the magistrate. 

The appellant appeared for sentencing on the morning of 29 April, 1998. That was of course the day when he ought to have been released on parole. He had not been released because he was in custody by order of the magistrate. He was not subject to a non parole period. Thus, when sentencing the appellant, the magistrate ought to have proceeded on the footing that the appellant was no longer serving a period of imprisonment: s31 of the Criminal Law Sentencing Act, 1988. Due to a misunderstanding, the appellant was sentenced on the footing that he was serving a period of imprisonment. 

It is submitted on behalf of the appellant that the learned magistrate has erred in the computation of times and the approach which he has adopted to fixing sentence. The respondent agrees with that submission. 

The learned magistrate had ordered that the appellant be imprisoned for a period of 18 months, the sentence to commence at the expiration of the six year sentence ordered on 1 May 1996.  He increased the non parole period to three years and two months.  The effect of the increase of the non parole period was to order a non parole period of six months.  The magistrate fixed that period giving the appellant the benefit of the two months he had spent in custody since 1 March 1998. 

Upon discovery of the fact that the appellant had been sentenced on the wrong footing, an application was made to the learned magistrate pursuant to s76A of the Summary Procedures Act, 1921.  The application was dismissed. The appellant then instituted this appeal.  The appeal is out of time by some two weeks.  It is apparent that the appellant had promptly instituted steps to seek to correct the error and, upon those steps failing, he has immediately instituted this appeal.  The appellant, through his solicitors, has obviously acted expeditiously and in all the circumstances it is appropriate to extend the time within which to appeal.  I note also that the respondent very properly consents to the extension of time within which to appeal. 

All that is being challenged is the basis upon which the appellant was sentenced.  The appellant does not appeal against the head sentence of 18 months imprisonment.  It remains only for me to fix a new non parole period. 

It is submitted on behalf of the appellant that the non parole period should be six months.  That is, on the face of it, a non parole period which is generous to the appellant.   Generally speaking, non parole periods are fixed for a higher proportion of the head sentence. But in this case it is apparent that the magistrate had taken a reasonably lenient view of the matter and had ordered a relatively short non parole period. 

Examination of his reasons discloses that the effect would be given to those reasons if the non parole period is six months.  In all the circumstances, I think it is appropriate to adhere, as far as is possible, to the view which was taken by the learned magistrate.

I allow the appeal. I also set aside the orders made by the learned magistrate. The appellant will be sentenced to a period of 18 months imprisonment.  I fix a non parole period of six months.

The sentences will commence on the date on which the appellant was sentenced.  29 April, 1998. 

There will be an order that the respondent pay the appellant's costs, which I fix in the sum of $100.