Ian Arthur Lane v SA Police No. SCGRG 93/584 Judgment No. 3949 Number of Pages 5 Criminal Law and Procedure

[1993] SASC 3949

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA PRIOR J

CWDS
Criminal law and procedure - particular offences - offences against property - Break and enter with intent - magistrate declined to set non-parole period - magistrate made error in sentencing remarks as to date of release on parole - error not critical - appeal dismissed.
Criminal Law (Sentencing) Act 1988s.32(5)(c). Fennell v De Kort (1992) 164 LSJS 296, applied. Flaherty v De Lurant (1986) 133 LSJS 200 at 204 and Brock v Attorney General (1984) 36 SASR 161 at 162, considered.

HRNG ADELAIDE, 6 May 1993 #DATE 6:5:1993
Counsel for appellant:     Mr G Katsaras
Solicitors for appellant:    Legal Services Commission
Counsel for respondent:     Ms I Baumanis
Solicitors for respondent: Crown Solicitor

ORDER
Appeal dismissed.

JUDGE1 PRIOR J On 24 March 1993, a magistrate sentenced the appellant to 12 months imprisonment for breaking and entering a dwelling house at Nailsworth on 8 February 1993. 2. On 28 May 1992, the appellant had received a sentence of three years imprisonment, with a non-parole period of six months, with respect to three offences. 3. The low non-parole period then fixed resulted in his being released on parole on 28 September 1992. 4. S.31(2) of the Criminal Law (Sentencing) Act (1988) required the magistrate to make the sentence of imprisonment he imposed cumulative upon the sentence in respect of which the appellant was then on parole. The appellant had to serve the unexpired portion of the three year sentence from the date of the commission of the February offence. 5. Submissions were made on behalf of the appellant on 17 March 1993. Those submissions were impressive, significant, and perhaps more persuasive than the magistrate's final conclusions might have suggested. In particular, counsel explained to the magistrate how the particular offence was committed. It was put to the magistrate that the appellant had been responding well to parole. 6. The offence on 8 February 1993 resulted from pressure with respect to particular matters identified by counsel. The appellant had been drinking from about half past eight in the morning, the offence occurring without any real premeditation. It was put to the magistrate that a pre-sentence report then before him painted a sad picture of someone who had come from a deprived background that had led to a troubled adulthood, pretty much marred by alcohol and drug abuse. 7. Counsel conceded that a term of imprisonment was appropriate and that there did not appear to be grounds upon which that sentence of imprisonment could be suspended. 8. Counsel did make submissions to the magistrate as to a non-parole period. He submitted that despite poor performance in the past, whilst the appellant had been on parole on this occasion he was initially responding very well from his release date in September 1992 up until the commission of the offence. He was reporting to a Parole Officer every week and staying off alcohol and drugs right up until the day of the offence. It was counsel's submission to the magistrate that pressure got to him, the appellant resorting to alcohol. The pre-sentence report mentioned that the appellant had previously responded well on other occasions to community based orders. 9. Counsel put to the magistrate that the magistrate should impose a non-parole period and that it should not be an overly long one. It was his submission that the appellant would benefit from being released on parole and the opportunity of parole would be used to address his alcohol and drug abuse and thus to re-integrate him into society. 10. The magistrate then asked the prosecutor if the exact details of the appellant's parole could be confirmed. The matter was remanded until 24 March for the prosecution to furnish those details. On 24 March the prosecutor provided parole details. They were that the appellant was sentenced on 28 May 1992. On that occasion he was imprisoned for 3 years with a non-parole period of 6 months for two counts of building break and felony and one count of break-in with intent, 12 months' imprisonment being imposed on each count, the sentences to be served cumulatively. 11. Before me counsel conceded that he had an opportunity to make any further submissions to the magistrate on 24 March. There is nothing in the material before me as to whether anything was then said. The magistrate was told that there were 2 years 3 months and 19 days of the 3 year period of imprisonment left to serve from the date of the commission of the offence of 8 February 1993. 12. In the sentencing remarks the magistrate made an error. He had been told twice, once on 17 and again on 24 March, that the appellant was released on parole on 28 September 1992. However, in his sentencing remarks the magistrate referred to `December' not `September' 1992. When proceeding to sentence, the magistrate referred to the circumstances of the particular offence and said that he took into account the fact that the appellant was frank and co-operative with police, his plea of guilty and all that had been put to him on his behalf by his counsel. 13. The magistrate then continued:-
    "There's no question of suspending the term of imprisonment. You
    have an appalling record, both in this State and in other
    states, mainly Victoria. You had been released on probation on
    28 December last year. You were in fact on probation. You had
    been good, otherwise you would have had to return to gaol. Now
    you have not been good. You have committed another serious
    offence and if I send you to gaol that would automatically
    revoke your parole and you will have to serve the balance of the
    unexpired sentence of imprisonment, which at the date of the
    offence was 2 years, 3 months and 19 days. You are convicted
    for 12 calendar months in respect of the current matter. In
    fixing that period I have taken into account that you have been
    in custody since the date of the offence. Total head sentence
    from this date is 3 years 3 months and 19 days. I decline to
    fix a non-parole period. Your conduct indicates that you do not
    appeal to the law abiding principles. When released you have in
    the past defaulted significantly and in the circumstances I
    decline to fix a non-parole period. As far as I'm concerned you
    have to serve a total period of 3 years 3 months and 19 days.
    Further parole simply could not be justified in all the
    circumstances." 14. It has been conceded in the course of hearing this appeal that whilst the magistrate has expressed that view about the totality of the period that must be served, it is open to the appellant to have a non-parole period fixed by a later application. Counsel submits that those difficulties may be the greater because of what the magistrate has decided and that this Court should intervene now. 15. It is put that the magistrate has failed to pay due regard to the circumstances of this particular offence and what had happened with the appellant before this offence occurred over the period of time when the appellant was on parole and being successful in staying out of trouble and pursuing some rehabilitation. 16. I am not persuaded that the magistrate's reference to 'December' is a critical error, given that he has got the 2 year 3 months and 19 day period correct, and given that both counsel for the appellant and the prosecutor advised the magistrate of the date, 28 September 1992 on each of the occasions in March when the matter was before him. The previous convictions of the appellant date back to 1961 when he was a juvenile. Offences since 1971, when he was 21 include 15 appearances in magistrate's courts for property related offences for all of which, but two, the appellant was sentenced to imprisonment. He breached community service orders on two occasions by further offences and a non-compliance and has also breached parole on three occasions. 17. There have been sentences of imprisonment for offences including robbery, larceny, burglary and theft over the period from 1972 to 1991. Appearances in courts in this State have been confined to magistrates courts on some four occasions in 1992 and 1993 with respect to offences including breaking into buildings, larceny and assault. 18. The pre-sentence report given to the magistrate was not up to date. It did however give a helpful summary of the appellant's previous history, together with background information details with respect to education, employment, health and substance abuse. 19. The complaint before me is that the magistrate erred in not imposing a non-parole period. It is said that in the circumstances it was appropriate to do so. It is said that the magistrate erred in that he acted upon an error of fact, namely he thought the appellant was released on parole on 20 December 1992 whereas in fact he was in fact released on parole on 28 September 1992. 20. That error is not a proper basis upon which this Court should find error sufficient to justify the exercise of the sentencing discretion afresh. If I am wrong about that, I should say that notwithstanding all that's been put to me today and notwithstanding what's been put to the magistrate, I doubt that I would have done anything different from what the magistrate ultimately did. It is put that the magistrate was also in error in not giving due weight to the fact that the appellant had been responding well to parole. 21. There is no doubt that that submission was put forcefully, clearly and competently by the appellant's counsel. I cannot accept that the magistrate overlooked that submission. I am not persuaded that he failed to give due weight to that when considering the exercise of the discretion which was his in all the circumstances of this case. 22. Section 32(5)(c) of the Criminal Law (Sentencing) Act provides:
    "(c) A court may, by order, decline to fix a non-parole period
    in respect of a person sentenced of imprisonment if the court is
    of the opinion that it would be inappropriate to fix such a
    period because of -
    (i) the gravity of the offence or the circumstances surrounding
    the offence;
    (ii) the criminal record of the person;
    (iii) the behaviour of the person during any previous period of
    release on parole;
(iv) or any other circumstance." 23. Part of the magistrate's remarks identify subpara.(iii) of para.(c) as being invoked by him. 24. It is submitted in determining whether it is inappropriate to fix a non-parole period because of the behaviour of the person during any previous period of release on parole, that behaviour must be considered in the context of how the person has responded most recently to parole and how the breach came about. I am sure that that is a proper approach. I am not persuaded that a magistrate failed to do that. Reliance was placed upon the observations of Von Dousa J in Flaherty v. De Lurant (1986) 133 LSJS 200 at 204 where his Honour adopted remarks of Bollen J in a previous case and then referred to observations of the Chief Justice in Brock v. Attorney General
(1984) 36 SASR 161 at 162. 25. The statute being considered in Flaherty's case was of course the predecessor to s.32. The language at s.32 is different, although factors, the likes of which were the subject of remarks by Bollen J in Flentjars case are obviously appropriate for consideration under the present legislation. See too Legoe J in Fennell v. De Kort (1992) 164 LSJS 296. Notwithstanding all that has been put to me today, I am not persuaded that the magistrate failed to consider or have due regard to the circumstances of the offence and those factors emphasised in the judgment cited. The discretion has not been shown to have miscarried. 26. The appeal is dismissed.