Hocking v Police - [2009] SASC 268

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
HOCKING v POLICE
[2009] SASC 268
Judgment of The Honourable Justice Sulan
2 September 2009
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES, SENTENCES ON ESCAPE AND COMMENCEMENT OF SENTENCE - SENTENCE DURING UNEXPIRED SENTENCE
Appeal and cross-appeal against sentence - appellant pleaded guilty to offences of interference with motor vehicle, theft, damage property and attempted serious criminal trespass - Magistrate imposed sentence of 15 months' imprisonment to be served cumulatively on sentence of District Court of two years and eight months' imprisonment with non-parole period of 21 months for offences of aggravated serious criminal trespass and theft - Magistrate extended non-parole period by 10 months, total non-parole period of 31 months - whether Magistrate erred in application of principle of totality - whether combined effect of total sentence and non-parole period excessive - whether non-parole period should be extended - whether Magistrate erred in failing to disqualify appellant's driver's licence for offence of interference with motor vehicle.
Held: appeal and cross-appeal allowed - sentence of Magistrate - appellant re-sentenced to a term of nine months' imprisonment - sentence to be served concurrently with District Court sentence appellant currently serving, with non-parole period of 21 months - appellant disqualified from holding or obtaining driver's licence for 12 months.
Criminal Law Consolidation Act 1935 (SA) s 85(3), s 86A(2), s 134(1), s 170(1); Criminal Law (Sentencing) Act 1988 (SA) s 18A, s 32(1), s 58(4), referred to.
Mill v The Queen (1988) 166 CLR 59; R v Hughey [2008] SASC 263; R v Cullen (2007) 249 LSJS 275; R v Shepperbottom (2001) 121 A Crim R 69; Heal v Police (1999) 75 SASR 331; Holland v SA Police (1994) 178 LSJS 320; Police v Smith [2004] SASC 38; Police v Morzanj [2005] SASC 263; Davis v Police [2004] SASC 318, considered.

HOCKING v POLICE
[2009] SASC 268
Magistrates Appeal

SULAN J: The appellant pleaded guilty before a Magistrate to the offences of interfering with a motor vehicle, theft and damaging property, all committed on 3 December 2007. He also pleaded guilty to attempted serious criminal trespass, committed on 11 February 2008.[1]
[1] Interfering with a motor vehicle, contrary to s 86A of the Criminal Law Consolidation Act 1935.
Theft, contrary to s 134(1) of the Criminal Law Consolidation Act 1935.
Damaging property, contrary to s 85(3) of the Criminal Law Consolidation Act 1935.
Attempted serious criminal trespass, contrary to s 170(1) of the Criminal Law Consolidation Act 1935.
On 13 May 2009, he was sentenced by a Magistrate, who imposed one penalty of 15 months’ imprisonment for all the offences. The Magistrate ordered that the sentence is to be served cumulatively upon a sentence of two years and eight months’ imprisonment imposed by the District Court on 8 December 2008 for offences of aggravated serious criminal trespass and theft, committed on 5 September 2007. The Magistrate extended the non-parole period from 21 months’ to 31 months’ imprisonment.
The appellant complains that the sentence is manifestly excessive. The respondent cross-appealed on the ground that the Magistrate failed to order a period of licence disqualification for the offence of interference with a motor vehicle. Section 86A(2) of the Criminal Law Consolidation Act 1935 (SA) provides that if a person is convicted of interfering with a motor vehicle then the court must order, in addition to any other penalty, that the person is to be disqualified from holding or obtaining a driver’s licence for a period of 12 months. The Magistrate failed to make such an order and, therefore, the cross-appeal must succeed. It follows that I am required to re-sentence the appellant.
The case raises an issue about the appropriate course which should be followed in circumstances where a defendant has been sentenced by a District Court Judge who has made observations about that defendant’s future prospects of rehabilitation, and subsequently a Magistrate sentences the defendant for offences committed some months before the defendant appeared before the District Court.
When the appellant was sentenced in the District Court, the Judge observed that, although he had a poor criminal record, she considered that a sentence which was not crushing was appropriate to give the appellant an opportunity to undertake a rehabilitation program, which had not been made available to him in the past.
The sentence imposed by the Magistrate substantially increased the length of the appellant’s sentence and non-parole period, with the result that the object that the District Court Judge sought to attain has been significantly eroded. For the reasons which follow, the appeal should be allowed so that the effect of the District Court Judge’s sentence can be maintained.
Background
The appellant has a long history of prior offending dating back to May 1990. Much of his offending is for offences of driving whilst disqualified, driving an unlicensed and uninsured vehicle, and other driving offences. He has been convicted of offences of dishonesty, including offences of larceny, false pretences and damaging property.
As to his more recent offending on 13 June 2002, he was convicted of numerous dishonesty offences and was sentenced to 23 months’ imprisonment, with a non-parole period of nine months.
On 19 May 2006, he was convicted of one count of non-aggravated serious criminal trespass, seven counts of theft, one count of driving whilst disqualified and two counts of failing to comply with a bail agreement. He was sentenced to 24 months’ imprisonment, with a non-parole period of nine months’ imprisonment.
On 18 February 2007, he was released on parole for the offences for which he had been sentenced on 19 May 2006.
The appellant was arrested on 26 February 2008 for the offences which were dealt with by the District Court on 8 December 2008. The District Court Judge observed that the appellant had pleaded guilty to aggravated serious criminal trespass and theft of a Sony Play Station, which was taken from a house at Goodwood which was broken into on 5 September 2007. The appellant was looking for money or items which he could use to obtain drugs. The householder disturbed him and a co-offender whilst they were in the house.
The District Court Judge took into account that the appellant had grown up in a dysfunctional household, had little contact with his father and intermittent contact with his mother. The Judge observed that the appellant has a long history of offending. The appellant is in a relationship with a young woman and, together, they have four daughters who are now aged between five and a half years and 12 months. The appellant used heroin, which was the cause of much of his offending. The offences were committed within weeks of his release on parole. The District Court Judge took into account an unexpired period of parole of 11 months and 11 days that the appellant was required to serve, in addition to the sentence that she imposed.
The District Court Judge imposed one sentence of three years’ imprisonment, to be served cumulatively upon the unexpired period of parole of 11 months and 11 days. She then reduced the sentence by six months, having regard to the principle of totality. She said:
Giving consideration to the total sentence, in the light of your relatively young age, the fact that you have had little opportunity so far to participate in programs for rehabilitation, and your responsibilities as the father of young children, I reduce the total sentence by six months to take those factors into account and to ensure that the sentence is not a crushing one at this stage of your life, to one of 3 years, 5 months and 11 days.
She took into account that the appellant had spent nine months in custody. She imposed a head sentence of two years and eight months’ imprisonment, with a non-parole period of 21 months’ imprisonment.
The appeal
The sentence which is the subject of this appeal relates to offences committed prior to the appellant being sentenced in the District Court in December 2008. The appellant was charged with those offences on informations dated 5 May 2008 and 29 May 2008. He pleaded guilty to the offences, and was sentenced by the Magistrate on 13 May 2009.
As earlier observed, the Magistrate imposed one sentence of 15 months’ imprisonment, to be served cumulatively upon the sentence which had been imposed by the District Court Judge on 8 December 2008.
The circumstances of the offending are that on 4 November 2007, the appellant broke into a parked car by smashing the side window. He stole two military badges valued at about $158 which were inside the car. He was charged with interfering with a motor vehicle, property damage and theft. On 11 February 2008, the appellant jemmied open a window at residential premises at St Peters. He did not enter the premises. He was charged with non-aggravated serious criminal trespass.
When the offences were considered by the Magistrate, the police prosecutor indicated that the prosecution did not oppose the suspension of any term of imprisonment. It was not open to the Magistrate to suspend the sentence as, at the time, the appellant was serving the sentence that had been imposed by the District Court Judge.
The Magistrate referred to the appellant’s unfortunate background, and to a psychological report in which the psychologist observed:
Mr Hocking’s psychological profile indicated that he was a person who was inclined to take risks and engage in dysfunctional behaviour. Mr Hocking indicated that his life had changed significantly over the last seven years and in that time his relationship with his partner had blossomed and they now had four daughters that ranged in age from six months to five years. Mr Hocking indicated that he had intermittent employment which involved largely labouring and factory work but said that a back injury limited his options within that area of employment. Mr Hocking stated that in 2007 which he was without work he foolishly began using heroin and mixed with the wrong crowd. Mr Hocking indicated that as a consequence of his heroin use he engaged in criminal behaviour to pay for the drug habit. Mr Hocking reported that now he felt deeply disappointed in his behaviour because it has affected his family. He indicated that he has since successfully stopped using heroin by going ‘cold turkey’ and he did not wish to associated [sic] with those individuals who had encouraged him to use heroin.
The Magistrate took into account that much of the offending was as a result of the appellant’s addiction to drugs. She concluded that the sentence of 15 months should be cumulative upon the sentence imposed by the District Court Judge. She extended the non-parole period by ten months to 31 months.
The appellant was unrepresented before me. He submits that, based upon legal advice, he did not have all of his outstanding matters dealt with by the District Court on 8 December 2008. It would have been desirable for the District Court Judge to have dealt with all matters, including those which are the subject of this appeal. The District Court Judge had regard to the appellant’s age, his responsibilities as a father of young children, and that he had been given little opportunity to participate in rehabilitation programs in the past. She reduced the sentence by six months to ensure that the overall sentence was not crushing.
The Magistrate did not refer to the District Court Judge’s remarks about the total length of sentence. She did not appear to have regard to whether the additional sentence that she was imposing, together with the extended non-parole period, would be crushing to this appellant. I consider that the Magistrate erred in not having regard to the total effect of the sentences that she and the District Court Judge had imposed. Further, a sentence of 15 months’ imprisonment for the offences committed in November 2007 and February 2008, which were part of a course of conduct to fund the appellant’s drug addiction, is manifestly excessive.
Re-sentencing the appellant
In sentencing the appellant, I consider that, pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (“the Sentencing Act”), one penalty should be imposed for all the offences. The offending occurred in December 2007 and February 2008 in a period when the appellant’s life was out of control and he was regularly offending to support his use of herion. I would impose one sentence of nine months’ imprisonment.
In considering whether to make the sentence cumulative or concurrent with the sentence imposed by the District Court Judge, I have had regard to the total effect that the sentences imposed by the District Court and the sentences for these offences will have upon the appellant. The principle of totality may be applied where separate sentences are being passed by different courts, and where a court is considering a subsequent sentence which may be required to be served at the conclusion of an existing sentence.[2]
[2] Mill v The Queen (1988) 166 CLR 59, 64; R v Hughey [2008] SASC 263 [12].
In R v Cullen,[3] the Court was dealing with similar circumstances to the present case. In that case, a Magistrate had imposed a sentence of imprisonment which the defendant was serving when sentenced by a District Court Judge. Bleby J, with whom Sulan and David JJ agreed, observed that in sentencing for two sets of offences which were part of a long course of similar conduct, and which had been driven by the appellant’s drug habit, the Judge was obliged to consider the total sentence imposed, and whether the combined effect of the sentences was crushing. The Court ordered that the District Court sentences be served concurrently with the sentence which had been imposed in the Magistrates Court.
[3] (2007) 249 LSJS 275.
I have had regard to the following matters. The offences were committed in December 2007 and February 2008 as part of a course of criminal conduct. The offences dealt with in the District Court were committed in September 2007, and could be characterised as part of the criminal conduct the appellant had engaged in over a number of months. The offences were committed to sustain a drug habit. The offending pre-dated the date upon which the appellant was sentenced in the District Court. The fact that the appellant had limited opportunity to engage in rehabilitation programs was an important consideration of the District Court Judge. It is equally important in determining this sentence. I agree with the District Court Judge that the overall sentence should not be crushing. It follows that if a lengthy sentence in addition to the District Court sentence is imposed, it would not give effect to the District Court Judge’s approach, which was to give the appellant an opportunity to rehabilitate himself.
The sentence of nine months’ imprisonment is to be served concurrently with the sentence imposed by the District Court Judge.
The non-parole period
Having ordered that the sentence be served concurrently, am I required to extend the non-parole period? The effect of the sentence I am imposing is not to extend the length of the head sentence imposed by the District Court Judge. Fairness dictates that I should not extend the length of the non-parole period.
Section 32(1) of the Sentencing Act provides:
32 – Duty of court to fix or extend non-parole periods
(1) Subject to this section, where a court, on convicting a person of an offence, sentences the person to imprisonment, the court must –
(a)if the person is not subject to an existing non-prole period – fix a non-parole period; or
(b)if the person is subject to an existing non-parole period – review the non-parole period and extend it by such period as the court thinks fit (but not so that the period of extension exceeds the period of imprisonment that the person becomes liable to serve by virtue of the sentence, or sentences, imposed by the court); or
(c)if the person is serving a minimum term imposed in respect of an offence against a law of the Commonwealth or is liable to serve such a term on the expiry of an existing non-parole period – fix a non-parole period in respect of the sentence, or sentences, to be served upon the expiry of that minimum term.
In R v Shepperbottom,[4] the defendant, who escaped from custody, was serving a sentence of three years and ten months’ imprisonment, with a non‑parole period of nine months’ imprisonment. He walked out of Cadell prison because he had a genuine concern for the welfare of his child, who was being looked after by the defendant’s de facto wife who was threatening to leave Australia. The sentencing Judge regarded the circumstances of the offending as exceptional. Taking into account the defendant’s guilty plea, the Judge sentenced the defendant to seven months’ imprisonment, to be served at the expiration of the sentence the defendant was then serving. The Judge did not extend the non-parole period.
[4] (2001) 121 A Crim R 69.
The Director of Public Prosecutions appealed on the grounds that the sentence was manifestly inadequate. The Chief Justice considered the sentence was too low. He said that an appropriate starting point for the offence of escaping from lawful custody was between 18 months to two years’ imprisonment. He concluded that a sentence of less than 12 months could not be justified, even having regard to the extenuating circumstances of the case.
The Chief Justice extended the non-parole period. He referred to Heal v Police.[5] In that case, the defendant had received a sentence of 24 months’ imprisonment with a non-parole period of 21 months, suspended upon the defendant entering into a bond to be of good behaviour for three years. On appeal to a single Judge of the Supreme Court, the non-parole period was reduced to 15 months’ imprisonment. While still subject to the bond, the defendant re‑offended and the suspension of his original sentence was revoked, bringing into effect the sentence of 24 months’ imprisonment. In addition thereto, the Magistrate imposed two cumulative sentences of three months each for the offending that constituted the breach of the bond, which resulted in a total head sentence of 30 months’ imprisonment. The Magistrate fixed a non-parole period for all offences of eight months’ imprisonment, which reduced the original non-parole period by seven months.
[5] (1999) 75 SASR 331.
The prosecution submitted that the Magistrate had erred in reducing the non-parole period from 15 to eight months, and that the non‑parole period of 15 months should be reimposed.
Duggan J, with whom Millhouse J agreed, concluded that the Magistrate had fallen into error. Duggan J acknowledged that, pursuant to s 58(4) of the Sentencing Act,[6] the Magistrate had power, if there were special circumstances justifying a reduction in the term of the suspended sentence, to reduce that term, which may include reducing the non-parole period. However, the Magistrate did not follow that course. Duggan J observed that, after revoking the suspension of the earlier sentence and sentencing the appellant to further terms of imprisonment to be served cumulatively upon the sentence which was subject to the order of revocation, the Magistrate was required to review the non-parole period of 15 months and extend it by such period as the court thinks fit. He said that s 32(1)(b) of the Sentencing Act, requires the Court to extend the non-parole period.
[6] Criminal Law (Sentencing) Act 1988 (SA), s 58(4):
(4)Where a court revokes the suspension of a sentence of imprisonment, the court –
(a)may, if it considers that there are special circumstances justifying it in so doing, reduce the term of the suspended sentence;
(b)may direct that time spent by the probationer in custody pending determination of the proceedings for breach of condition be counted as part of the term of the suspended sentence;
(ba)may, in the case of a bond with a home detention condition, direct that the period of compliance by the probationer with that condition be counted as part of the term of the suspended sentence;
(c)may direct that the suspended sentence be cumulative upon any other sentence, or sentences, of imprisonment then being served, or to be served, by the probationer.

Lander J agreed with Duggan J. He determined that, in the circumstances, the Magistrate fell into error in setting a non-parole period of eight months. Lander J concluded that the Magistrate was obliged to set a non-parole period in excess of 15 months. Millhouse J agreed with both Duggan and Lander JJ.
In Holland v SA Police,[7] Perry J, when considering s 32(1) of the Sentencing Act, said:[8]
Where there is an existing non-parole period, the sentencing court has one option and one option only, that is, to review it and to extend it by such period as the court sees fit within the limits imposed by s.32(1)(d).
[7] (1994) 178 LSJS 310.
[8] Ibid, 312.
In Shepperbottom,[9] the Chief Justice said:
I consider that the Court is not bound by the views expressed in Heal and in Holland. In neither case was the precise issue now under consideration before the Court. Nevertheless, there is good reason to adhere to views expressed by other members of the Court, unless I am satisfied that those views are not correct.
The language used in s 32(1)(b) does suggest that the Court must extend an existing non-parole period. Had Parliament intended otherwise, it could have provided that the Court should review the non-parole period and extend it, if it sees fit, by such a period as the Court thinks fit. But I do not consider that the terms used exclude that meaning. A power to extend a non-parole period by such a period as the Court thinks fit could cover a situation in which the Court thinks that no period of extension is appropriate. As well, one might have expected Parliament to intend the Court to be able to do whatever the interests of justice and general sentencing principles might require in the particular case. If Parliament so intended it would empower the Court to decide, in a particular case, that the non-parole period should not be extended. I do not find it difficult to envisage cases in which that might be an appropriate decision. [highlighting is mine]
[9] (2001) 121 A Crim R 69, 71 [29] – [31].
As the Chief Justice observed, there may be an appropriate case in which the Court will decline to extend the non-parole period. He affirmed his view at [34] of the judgment, when he prefaced his conclusion by stating “Assuming that the Court is obliged to extend the non-parole period …”. The Chief Justice foreshadowed a situation where the Court may not be obliged to extend the non-parole period.
Duggan J made the following observation:[10]
When a person is sentenced to a period of imprisonment to be served cumulatively upon an existing sentence, a non-parole period is not imposed in respect of the individual sentences. At the end of the day only one non-parole period can be imposed. Accordingly, in the present case it was not a matter of deciding whether to impose a non-parole period in respect of the additional sentence of imprisonment for seven months. As I have pointed out, the existing non-parole period, until altered, was the non-parole period for whatever head sentence the appellant was currently serving.
Section 32(1)(b) was included in the legislation to address the situation where, as here, the prisoner is subject to an existing non-period. There is no power given to the court to cancel an existing non-parole period and commence afresh. The legislation has chosen to deal with cases in which a person is sentenced to a term of imprisonment in addition to an existing term and an existing non-parole period by requiring the court to extend the existing non-parole period. In such cases, it cannot be said in any relevant sense that the court can decline to fix a non-parole period. A non-parole period is already in existence and the Act requires that it be extended.
[10] Ibid, 76 [49] – [50].
Williams J agreed with both the Chief Justice and Duggan J.
It is to be noted that Duggan J considered that, where a person is sentenced to a term of imprisonment in addition to an existing term, then the Court is required to extend the non-parole period. However, Duggan J did not deal with the situation in which the head sentence is not increased, and in which the subsequent sentence is to be served concurrently with the existing sentence.
I consider that Parliament did not intend to mandate that in every case in which a sentence is imposed upon a person who is already serving a sentence of imprisonment for another offence and subject to an existing non-parole period, that the Court must extend the non‑parole period. There are cases, such as the present case, where the interests of justice require that the Court not extend the non-parole period when imposing a sentence of imprisonment upon a person who is serving a sentence of imprisonment and subject to an existing non-parole period.
The Court has a wide discretion when considering non-parole periods. If circumstances arise in which the Court does not increase the overall head sentence when imposing a sentence for other offences, then it would defeat the purpose of the order if the Court was then required to extend the non-parole period.
Shepperbottom has been considered by Besanko J in Police v Smith,[11] and by Vanstone J in Police v Morzanj.[12] In both those cases, the head sentence was increased by ordering that a subsequent sentence be served cumulatively upon a sentence that was then being served. In both cases, the Judges held that s 32(1)(b) requires the non-parole period to be extended. They regarded Shepperbottom as authority that the non-parole period must be extended. The Chief Justice in Shepperbottom has left that question open. Duggan J decided that if the head sentence is increased, the non-parole period must be extended. As I have observed, Duggan J did not consider the situation where the subsequent sentence is ordered to be served concurrently with the existing sentence, with the effect that the head sentence is not increased.
[11] [2004] SASC 38.
[12] [2005] SASC 263.
In Davis v Police,[13] Anderson J, in considering whether to extend a non-parole period in the case of a person serving a life sentence who had received a further sentence of 12 months’ imprisonment for assaulting a prison officer whilst in custody, took the view that he was bound by Heal and Shepperbottom to extend the non-parole period. Anderson J did not consider whether Shepperbottom and Heal applied in circumstances in which the head sentence was not increased.
[13] [2004] SASC 318.
The present circumstances have not previously been the subject of judicial consideration. As I have concluded that there are good reasons to make the sentence concurrent, with the result that the head sentence is not increased, it is contrary to the interests of justice to extend the non-parole period.
It could be argued that I could extend the non-parole period by a short period such as one day, but to adopt that course would be to create an artificial result. In my opinion, the better view is to have regard to the interests of justice, the purpose and intent of Parliament that the non-parole period is to be reviewed and extended by such period as the Court thinks fit. It does not follow that it must be extended in every case. If the interests of justice so require, the Court has a discretion not to increase the non-parole period.
In this case, it is not appropriate to increase the non-parole period. I therefore decline to do so.
Conclusion
The appeal and cross-appeal are allowed. The sentence of 15 months’ imprisonment imposed by the Magistrate on 13 May 2009 is set aside and, in substitution thereof, I impose one sentence for all the offences committed on 3 November 2007 and 11 February 2008 of nine months’ imprisonment, to be served concurrently with the sentence of two years and eight months that the appellant is currently serving. The non-parole period is 21 months. The sentence and non-parole period are to commence on 8 December 2008.
In addition to the sentence of imprisonment, the appellant is disqualified from holding or obtaining a driver’s licence for 12 months.