MALLETT v Police
[2007] SASC 102
•23 March 2007
SUPREME COURT OF SOUTH AUSTRALIA
(Applications Under Various Acts or Rules)
MALLETT v POLICE
[2007] SASC 102
Judgment of The Honourable Justice Kelly
23 March 2007
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SENTENCING - IMPRISONMENT
Appeal against re-sentencing of Appellant to 22 months and 9 days with a non-parole period of 17 months and 9 days. Original sentence imposed on 22 September 2006 - Magistrate subsequently re-listed matter and re-adjusted sentence by adding unexpired balance of parole to original head sentence and non-parole period.
Whether Magistrate empowered to recall the sentence. Whether Magistrate had regard to total period of imprisonment Appellant required to serve in fixing the non-parole period upon re-sentencing.
Appeal allowed. Appellant re-sentenced.
Correctional Services Act 1982 s75; Criminal Law (Sentencing) Act 1988 s9A; Summary Procedure Act s76A, s76B, referred to.
Tran v Police unreported judgment S6891 2 October 1998; Moore v Police [2006] SASC 324; Police v Alikaris [2000] SASC 163; Moore-McQuillan v WorkCover Corporation unreported judgment S6671 6 May 1998; Adams v Ditman [2001] SASC 115, considered.
MALLETT v POLICE
[2007] SASC 102
This is an Appeal against a sentence imposed by a Magistrate on 24 October 2006.
The Notice of Appeal was filed out of time and the appellant seeks an extension of time. The Notice of Appeal identified one ground of appeal namely that the non-parole period set by the Magistrate was manifestly excessive in all of the circumstances.
This Appeal arises as a result of an unfortunate error which was made, by the Parole Board in advising the Court, at the time of sentencing, the amount of unexpired balance of parole liable to be served by the appellant for the purposes of s75 of the Correctional Services Act. In order to understand how that error tainted the sentencing process it is necessary to look at the chronology of events.
The Chronology of Events.
On 22 September 2006 the Magistrate sentenced the appellant on the following matters.
1.An assault committed on 21 August 2005.
2.4 breaches of bail committed on 17 November, 19 November, 20 November, and 29 December 2005 respectively.
3.Breach of a suspended sentence bond entered into on 9 September 2005 in respect of an offence of driving whilst disqualified which offence was committed on 15 January 2005.
4.Breach of a suspended sentence bond entered into on 13 September 2005 in respect of an offence of damaging property which was committed on 18 February 2005.
In the case of both of the breaches of bonds the Magistrate revoked the suspension of the sentence and imposed a term of imprisonment for six months in each case. She ordered that both those terms be served concurrently.
She imposed a penalty of nine months imprisonment in respect of the breaches of bail and the assault, to be served cumulatively upon the period of six months imposed in respect of the breaches of bonds.
The resulting period of fifteen months imprisonment was reduced by two months to allow credit for the period spent in custody by the appellant prior to sentencing. In effect then, the total head sentence was thirteen months imprisonment.
The Magistrate then proceeded on the erroneous basis that the unexpired balance of the appellant’s parole for the purpose of s75 of the Correctional Services Act was two months and three days as advised by the Parole Board at that time. She imposed an effective total head sentence of fifteen months and three days. She fixed a non-parole period of ten months. Both the head sentence and the non-parole period dated from the date of sentence which was 22 September 2006.
Subsequent to sentencing by letter dated 13 October 2006 the Parole Board advised that the unexpired balance of the appellant’s parole was in fact nine months and nine days.
The matter was called on again in the Magistrates Court on 24 October 2006, apparently on the Magistrate’s own initiative. On that date the head sentence of the appellant was increased by seven months and six days making a total head sentence then of twenty-two months and nine days. The non-parole period was correspondingly increased by seven months and six days to seventeen months and six days. The endorsement on the Magistrates Court file on that date shows that the sentence was to commence from 22 September 2006, the date when the Magistrate originally sentenced the appellant.
It is relevant to note that the appellant does not and did not complain about the sentence imposed by the Magistrate on 22 September 2006. The only complaint of the appellant relates to the manner in which the non-parole period was increased as a result of the orders made by the Magistrate on 24 October 2006.
The Appeal.
At the hearing two issues emerged. The first, whether the Magistrate had the power to recall the sentence imposed by her on 22 September 2006 and in effect, to impose another sentence on 24 October 2006. The second, assuming the Magistrate did have the power to make those orders, was whether she erred in simply adding the additional unexpired balance of parole of seven months and six days to both the head sentence and the non-parole period.
Did the Magistrate have the power to recall the sentence on 24 October 2006?
The appellant argued that by 24 October 2006 the Magistrate was functus officio. Once she had made the orders of 22 September 2006 (about which the appellant had no complaint) and had endorsed the Court file with the Minute of Conviction she was, it was submitted, functus officio and could not therefore, without proper authority, amend the orders that she had made.
It was not disputed that the Magistrate could have, at least in theory, exercised the powers given by s9A of the Criminal Law (Sentencing) Act, however, there was no application made by either the prosecution or the appellant for her to have utilised that section. In the absence of any application by either the prosecution or the appellant the Magistrate did not have power to proceed in that way.
It was suggested that the Magistrate could also have exercised the powers given by virtue of the provisions of s76A and/or s76B of the Summary Procedure Act. Those sections provide:-
76A – Power to set aside conviction or order
(1) The court may, on its own initiative or on the application of any party, set aside a conviction or order.
(2) An application to set aside a conviction or order under this section must be made within 14 days after the applicant receives notice of the conviction or order.
(3) The Court may set aside a conviction or order under this section if satisfied –
(a) that the parties consent to have it set aside; or
(b) that the conviction or order was made in error; or
(c) that it is in the interests of justice to set aside the conviction or order.
(4) Where the Court sets aside a conviction or order under this section it may, without further formality –
(a) proceed to re-hear the proceedings in which the conviction or order was made; or
(b) adjourn the proceedings for subsequent re-hearing.
76B – Correction of conviction or order
The Court may, on its own initiative or on the application of any party, correct an error in a conviction or order.
Unfortunately, there is no record of any remarks made by the Magistrate on the date when she recalled the matter, which would shed any light on the basis upon which she purported to act. It appears from the affidavits filed by Ms Ferris, counsel for the appellant at that time and Mr Dollard, the prosecutor, that no submissions were directed to the Magistrate about the jurisdictional issue.
There is an interesting question which does not appear to have yet been the subject of any definitive determination by the Full Court, as to the content and scope of both s76A and s76B of the Summary Procedure Act.
There appears to be a divergence of judicial opinion in this Court as to whether s76B can be used to correct orders made by Magistrates who have not been informed of the fact that an offence has been committed whilst the defendant was on parole or have been informed incorrectly of the unexpired parole to be served. Tran v Police[1], Moore v Police[2] and Police v Alikaris[3].
[1] cf Tran v Police unreported judgment S6891 2 October 1998 per Perry J
[2] Moore v Police [2006] SASC 324 per Sulan J
[3] Police v Alikaris [2000] SASC 163 per Debelle J
It is clear that s76A is a wider power, however there are conditions which must be satisfied before s76A can be utilised. There also appears to be some divergence of judicial opinion as to whether the condition in subsection (2) of s76A applies to a Magistrate acting on his or her own initiative under subsection (1) of s76A, or whether the Magistrate may recall a matter at any stage after conviction assuming at least one of the conditions contained in subsection (3) is satisfied. Moore-McQuillan v WorkCover Corporation[4], Adams v Ditman[5], Police v Alikaris[6].
[4] Moore-McQuillan v WorkCover Corporation unreported judgment S6671 6 May 1998 per Lander J
[5] Adams v Ditman [2001] SASC 115 per Doyle CJ at p2-3
[6] Police v Alikaris [2000] SASC 163 per Debelle J
Assuming for the moment that the Magistrate did have the power to recall and correct the sentence under the provisions of s76A of the Summary Procedure Act, the next question is whether the Magistrate erred in simply adding the additional period of seven months and six days to both the head sentence and the non-parole period.
When re-sentencing the Magistrate was obliged when fixing the non-parole period to have regard to the total head sentence that the appellant was now likely to serve including the unexpired balance of the parole period of nine months and nine days.
Once the head sentence had been increased as a result of the addition of that unexpired balance of parole the Magistrate was then obliged to consider the non-parole period afresh in the light of the revised head sentence. Counsel for the respondent conceded that a mechanical increase without an appropriate exercise of discretion would be an error. His submissions on this topic were directed to trying to persuade me that the Magistrate could well have intentionally concluded that the appellant should serve a much higher non-parole period as a result of the addition of the unexpired balance of parole.
When the final sentence arrived at is compared with the original sentence imposed by the Magistrate it can be seen that the proportion of the non-parole period to the head sentence increased quite markedly as a result of the addition of the seven months and six days to both the head sentence and the non-parole period. If, as the counsel for the respondent effectively contended, the Magistrate had changed her mind and decided that it was now appropriate that the appellant serve a non-parole period effectively much closer to the period of the head sentence allowing only a relatively brief period on parole, then I would have expected the Magistrate to have said so and to have said why. In the absence of any explanation for proceeding in the way she did I have reached the conclusion that the increase in the non-parole period was simply mechanical and does amount to an error.
In the light of my finding that there has been an error at that stage it is not necessary to decide the interesting question of whether or not the Magistrate had the power to proceed as she did under the provisions of s76A and/or s76B of the Summary Procedure Act. In all of the circumstances I consider that the non-parole period of seventeen months and six days is manifestly excessive.
The Appeal should be allowed. The sentence imposed by the Magistrate must be set aside and I intend to re-sentence the appellant today.
It is relevant to note at this stage that but for the incorrect advice from the Parole Board in the first instance there would have been no complaint from the appellant about the sentence imposed by the Magistrate on 22 September 2006. Counsel for the appellant during the hearing of this Appeal conceded that the Magistrate had given careful and thorough attention to all relevant matters in imposing the original sentence of fifteen months and three days with a non-parole period of ten months. I agree with that submission.
All of the relevant information has been provided to me including `the Magistrates Court file which was before the sentencing Magistrate. Having considered the matter afresh, I would have imposed a head sentence of twenty-two months and nine days. In the light of the fact that the appellant has been in custody since the date when he was originally sentenced, being 22 September 2006, I am minded to impose a head sentence of fifteen months three weeks and two days.
It remains now for me to fix a new non-parole period. In all of the circumstances I would fix a non-parole period of eight months.
The order will be
Appeal allowed
1.The sentence of the Magistrate is set aside.
2.The appellant is re-sentenced as follows:-
(1) For the offence on 15/1/05 of driving with a prescribed concentration of alcohol in your blood you are convicted and fined $1,200.
Your licence is disqualified for a period of 3 years to run concurrently with any period of licence disqualification to which you are currently subjected.
(2) For the offence of disorderly behaviour on 30/5/06, you are convicted without further penalty.
(3) For the breach of the bond entered into on 13/7/05. I revoke the suspended sentence of 6 months. You are now liable to serve that 6 month term of imprisonment.
(4) For the breach of the bond entered into on 9/9/05, I revoke the suspended sentence of 6 months and you are now liable to serve that 6 months. I direct that both those terms of imprisonment of 6 months be served concurrently.
(5) For the assault upon Ms Jupp on 21/8/05 and the four breaches of bail committed on 17/11/05, 19/11/05, 20/11/05 and 29/12/05 you are convicted and I impose one penalty under the provision of s18A of the Criminal Law (Sentencing) Act of 9 months imprisonment. This term of imprisonment is to be served cumulatively on the period of 6 months for the two breached bonds. The total head sentence is again reduced to 13 months to take into account the period of time spent in custody prior to 22 September 2006.
(6) In addition to those terms of imprisonment, there is the balance of unexpired parole of 9 months and 9 days. By virtue of s75 of the Correctional Services Act, this must be served first.
That makes an effective head sentence of 22 months and 9 days. The effective non-parole period is to be 14 months and 2 weeks.
Because I must impose a sentence from today’s date both the head sentence and the non-parole period are reduced to take into account the fact that you have served a total of 26 weeks (6 months and 2 weeks) in custody.
I impose a head sentence of 15 months 3 weeks and 2 days.
I fix the non-parole period at 8 months.
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