KERRY SIMON HOLLAND v. SA POLICE No. SCGRG 94/1444 Judgment No. 4821 Number of Pages - 4 Criminal Law and Procedure - Non-parole Period

[1994] SASC 4821

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA PERRY J

CWDS
Criminal law and procedure - non-parole period - Magistrate sentencing offender subject to an existing non-parole period relating to a sentence for previous of fences, imposed a further prison term to be served cumulatively on the existing term, and purported to fix no non-parole period with respect to the extended head sentence - held that the Magistrate had no jurisdiction other than to review the existing non-parole period and to extend it in accordance with s 32 of the Criminal Law (Sentencing) Act 1988 - the power to decline to fix a non-parole period under s 32 is not of application where there is an existing non-parole period - order of Magistrate quashed and existing non-parole period reviewed and extended. Criminal Law (Sentencing) Act 1988s32.

HRNG ADELAIDE, 27 October 1994 #DATE 27:10:1994

Counsel for appellant:     Mr N Vadasz

Solicitors for appellant:    Nicholas Vadasz

Counsel for respondent:     Mr J Pearce

Solicitors for respondent: DPP (SA)

ORDER
Appeal allowed.

JUDGE1 PERRY J The appellant Kerry Simon Holland appealed to this Court against certain sentences which had been imposed upon him on 11 August 1994 in the Magistrates Court sitting at Elizabeth following his plea of guilty to charges of assault, breaking and entering of dwelling houses and unlawful use of a motor vehicle.

2. The learned sentencing Magistrate sentenced the appellant to various cumulative terms of imprisonment aggregating 34 months, which he directed was to commence at the expiration of a sentence which the appellant was currently serving. That was a sentence which had been imposed upon him on 5 July 1994 on his plea of guilty to a number of counts of illegal interference. On those counts he was sentenced to 12 months imprisonment with a non-parole period of 8 months. That sentence was cumulative upon the unexpired portion of a sentence with respect to which he had previously been released on parole.

3. The various counts of illegal interference had been committed on 19 January 1994. There were as of that date 4 months and 27 days still to be served of the sentence upon which he had been released on parole. It follows that the effective head sentence which resulted from the sentence imposed on 5 July 1994 was a head sentence of 16 months and 27 days against which, as I have indicated, there was a non-parole period of 8 months. When on 11 August 1994 the sentence of 34 months imprisonment then imposed was ordered to commence at the expiration of the sentence which Mr Holland was then serving, this meant that the effective total head sentence became 50 months and 27 days, commencing from 5 July 1994.

4. Having regard to the provisions of s.32 of the Criminal Law (Sentencing)Act, it was incumbent upon the learned sentencing Magistrate to review the non-parole period and to extend it by such period as the court thought fit (see s.32(1)(b)), subject to the qualification that it not exceed the period of imprisonment to be served, which, as I have indicated in this case, was an overall head sentence of 50 months and 27 days dating from 5 July 1994.

5. In purported compliance with his obligation under section 32, the learned sentencing Magistrate said in the course of his sentencing remarks:
    "Reviewed current non-parole period. No non-parole period
    set, old non-parole period extinguished".

6. The learned sentencing Magistrate's endorsement on the back of one of the complaints and summonses is to the same effect. It reads:
    "Total sentence 34 months to commence at the expiration of
    sentence currently being served. Reviewed current NPP. No
    non-parole period set".

7. The appeal first came before me on 7 October 1994. At the outset of the hearing I pointed out that having regard to the terms of s.32 of the CriminalLaw (Sentencing) Act 1988, if there is an existing non-parole period, the duty of the Court was to review the non-parole period and extend it in accordance with the provisions of that section.

8. While it is true that there is an ability to decline to fix a non-parole period in the circumstances postulated by s.32(5)(c), it did not seem to me that there was power to quash an existing non-parole period and then to proceed to decline to fix any non-parole period.

9. I pointed out to counsel that as I saw the matter at that stage, the order of the learned Special Magistrate was a nullity to the extent that it purported to extinguish the existing non-parole period, and that if the matter rested there, the existing non-parole period of 8 months probably applied to the whole of the sentence, extended as it was by the 34 months ordered to be served on the present charges.

10. When I pointed those matters out, Mr Vadasz, counsel for the appellant Mr Holland, intimated that he withdrew the appeal. I refused leave for him to do so at that stage, but remanded the appellant in custody to today to give to the police the opportunity of lodging a cross-appeal raising the question of the validity of the refusal of the learned Magistrate to extend the non-parole period.

11. Subsequently, two steps of significance occurred.

12. By notice headed "Notice of Abandonment" dated 26 October 1994, the appellant Holland gave notice that he abandoned his appeal. The other step taken is that when the matter was called on again before me today Mr Pearce, counsel for the police, sought leave to file a Notice of Appeal out of time, being a notice in which it is sought to challenge the failure of the learned Special Magistrate to extend the existing non-parole period.

13. I heard counsel as to both of those matters, that is to say, the Notice of Abandonment and the application by the police to file an appeal out of time.

14. The Notice of Abandonment, although not expressed to be a Notice of Discontinuance within the words of R 95.07 of the Supreme Court Rules, is clearly a notice which should be accepted as such. It follows that as of 26 October 1994 Mr Holland's appeal was at an end.

15. As to the application to file a late appeal by the police, I ruled that leave should be granted for that appeal to be instituted, and I made orders that the time within which it might be brought be extended to today and dispensing with service.

16. I then heard both counsel as to the police appeal. Neither counsel invited me to reassess the head sentence which was imposed by the learned sentencing Magistrate. Indeed, in my opinion, no grounds have been made out upon which it could possibly be suggested that the head sentence was manifestly excessive.

17. Mr Holland is a man of 32 years of age who has accumulated a shocking record of prior offences dating from the age of 15 years. A report of Mr Fugler, psychiatrist, dated 9 August 1994 refers to the fact that Mr Holland has spent most of his adult life in custody and should be regarded, to use his expression, as institutionalised. The offending in question which resulted in the imposition of the accumulated penalties totalling 34 months were offences of the same ilk as those which characterise the long record of prior offending, and it is clear that Mr Holland is quite unable to mend his ways.

18. The sentences imposed were well within the exercise of the learned Magistrate's sentencing discretion and there is no warrant to interfere with the head sentence. It follows, as was agreed by counsel, that Mr Holland will serve a head sentence of 50 months and 27 days commencing from 5 July 1994.

19. For the reasons which I have given, in my opinion, it was not open to the learned sentencing Magistrate to take the course which he purported to take with respect to the fixation, or more accurately, the non-fixation of a non-parole period. Despite argument suggesting that there is some ambiguity in what the learned Magistrate was about, it is patently clear that his intention was to extinguish the existing non-parole period of 8 months and to fix no other non-parole period. Unless a non-parole period was fixed on subsequent application, there would be no non-parole period applicable to the head sentence.

20. In my opinion, such a course is clearly not authorised by s.32 of the Criminal Law (Sentencing) Act. The ability to refrain from setting a non-parole period pursuant to s.32(5) does not arise where there is an existing non-parole period. 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).

21. It follows that I must quash the purported order of the learned sentencing Magistrate made on 11 August 1994 insofar as it dealt with the question of the non-parole period.

22. The further question arises as to what appropriate extension should be made to the non-parole period of 8 months in the light of the further penalty of 34 months imprisonment imposed by the learned sentencing Magistrate. In my opinion, there should be an extension of 28 months which would bring up a total non-parole period of 36 months or three years. That is to say, the present head sentence of 50 months and 27 days running from 5 July 1994 will carry an extended non-parole period of 3 years commencing from the same date.

23. I allow the appeal of the police for the purposes of making an order reviewing and extending the non-parole period in the manner in which I have indicated. The head sentence imposed by the learned sentencing Magistrate will remain.

24. There will be no order as to the costs of the police appeal. There will be no order as to the cost of the discontinued appeal.