King v POLICE
[2013] SASC 96
•26 June 2013
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
KING v POLICE
[2013] SASC 96
Judgment of The Honourable Justice Vanstone
26 June 2013
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES - SENTENCE DURING UNEXPIRED SENTENCE - OFFENCE COMMITTED WHILE ON PAROLE OR PROBATION
Several dishonesty offences committed while appellant on parole - magistrate incorrectly calculated period of unexpired parole - appeal allowed - appellant resentenced.
KING v POLICE
[2013] SASC 96Magistrates Appeal: Criminal
VANSTONE J: The appellant, Robert Alexander King, was sentenced by a magistrate for several offences committed while he was serving a period of parole. In sentencing the appellant the magistrate appears to have misapprehended the purport of part of a letter from the Parole Board and, as a result, to have incorrectly added a bit more than five months to the actual period of unexpired parole. The respondent concedes that this error occurred and that it is appropriate to correct it. On the assumption that I would re-sentence in relation to all the matters, the appellant has made detailed submissions going to his personal circumstances. I have determined that it is appropriate to review the sentences in their entirety.
Background
It is convenient to summarise the sequence of events by means of a chronology.
20/02/2009
The appellant becomes liable to serve a total sentence of 35 months, with a non-parole period of 12 months dating from 28/10/2008 for serious criminal trespass (two counts) and assault offences.
28/10/2009
The appellant is released on parole. Numerous breaches of parole and periods in custody follow.
1/01/2010
The appellant commits two offences of unlawful possession, the first of the offences now under appeal. The unexpired parole at this time is nine months and 15 days.
19/01/2011
The appellant commits an offence of breaching bail.
18/6/2011
The appellant commits offences of unlawfully on premises and damaging property.
15/2/2012
– 19/3 2012
The appellant commits theft (two counts) and deception (eight counts).
4/05/2012
The appellant is taken into custody and remains there.
27/02/2013
The appellant is sentenced in the Magistrates Court. The total period now to be served is said to be 36 months and 29 days with a non-parole period of 15 months to commence immediately.
The new sentences imposed by the magistrate comprised three months imprisonment for the unlawful possession offence, one months imprisonment for the breaching bail offence, six months imprisonment for the two offences of unlawful possession and damaging property and 12 months imprisonment for the theft and deception offences. The magistrate indicated that he deducted 10 months from the sentence which he would otherwise have imposed for the theft and deception offences having regard to the period in custody on remand. Those new sentences were to be served after the outstanding period of parole, which the magistrate wrongly computed as a total of 14 months and 29 days. In relation to the total period to be served a non-parole period of 15 months was fixed. The total period to be served was ordered to commence on the day of sentence.
The complaint on appeal related to the magistrate’s error in calculating the period of unexpired parole. However, after the Court indicated that the appellant should be sentenced afresh, Mr Barklay, who appeared for the appellant, sought time so that he could make some submissions directed to securing a sentence less than that imposed by the magistrate. When the matter resumed Mr Barklay put a number of submissions directed to the background of the appellant. He also argued that the individual sentences imposed for the breaching bail and unlawful possession and damaging property offences were somewhat higher than was called for, albeit not attended by error.
Analysis
It is not necessary at this point to set out in summary form the gravamen of Mr Barklay’s submissions. The appellant is nearly 25 years of age. Since the age of about 15 years, he has committed a number of offences of varying types and, more recently, has spent quite substantial periods in custody. It seems as if his life was proceeding in a promising manner until about his mid teenage years. The reasons behind his quite marked degeneration were, conceivably, his suffering from attention deficit disorder and an early determination to abandon the medication prescribed for him. It was put to me that the appellant had not been psychiatrically examined since his teenage years, but it was not, at this point, his wish to explore that avenue.
The submissions put to me suggested that at various times since his school days the appellant has demonstrated an ability to secure and keep employment and to work hard. It does not seem, however, as if he has been able to sustain those efforts. Regular drug use and an apparent gambling addiction have undermined his attempts to steer a better course.
Although in re-sentencing I am not bound by the sentences imposed by the magistrate, those sentences are, in my view, broadly appropriate. I propose to impose a slightly lesser sentence on the breach of bail offence in recognition of Mr Barklay’s submission to me that this was not so much an absconding as advising the authorities of an incorrect address. The result of the sentence I have arrived at is not much less than that imposed by the magistrate.
The sentence I impose is as follows. On the January 2010 offences of unlawful possession there will be a single sentence of three months imprisonment. On the breaching bail offence I impose a sentence of 15 days imprisonment. On the June 2011 offences of unlawfully on premises and damaging property there will be a single sentence of six months imprisonment. On the theft and deception charges I impose a single sentence of 20 months imprisonment. Those sentences are to be served consecutively and are to commence at the expiration of the unexpired balance of the appellant’s parole (as at 1 January 2010) being nine months and 15 days. That gives a total head sentence of 39 months. Against that total period to be served I set a non-parole period of 23 months. I order that the appellant be deemed to have commenced to serve the balance of the sentences for which he was on parole on 4 May 2012 and the non-parole period will also be taken to have commenced on that day.
The result of the orders that I have made is likely to be that the appellant will be released on 4 April 2014.
Although, at first blush, the sentence I have imposed for the theft and deception charges appears to be longer than that imposed by the magistrate, that is not the case. Rather, instead of deducting the period of time in custody from the notional sentence for the theft and deception charges, I have back-dated the entire sentence.
Conclusion
The appeal is allowed.
The sentences imposed by the magistrate are set aside.
The appellant is now sentenced as follows:
- for two counts of unlawful possession committed on 1 January 2010 a single sentence of three months imprisonment;
- for the breaching bail offence of 19 January 2011, 15 days imprisonment;
- for the offences of unlawfully on premises and damaging property of 18 June 2011, a sentence of six months imprisonment;
- for the theft and deception charges, a single sentence of 20 months imprisonment.
Those sentences are to be served consecutively and to commence after the appellant has served the unexpired part of his parole, being a period of nine months and 15 days. He will be deemed to have commenced to serve that period on 4 May 2012. I impose a non-parole period of 23 months which will also start from that date.
0
0
0