Marsh v Police - [2013] SASC 176

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
MARSH v POLICE
[2013] SASC 176
Judgment of The Honourable Justice Kelly
13 November 2013
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - COMMENCEMENT
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-PAROLE PERIOD OR MINIMUM TERM - SOUTH AUSTRALIA - GENERALLY
Appeal against sentence – appellant pleaded guilty to two counts of trafficking in cannabis – the offending occurred while the appellant was in prison – at that time the non-parole period on respect of earlier offending had expired – Magistrate imposed sentence of 13 months imprisonment to be served cumulative upon current sentence of seven years – Magistrate ordered that the current non-parole period of four years remain undisturbed.
Whether the Magistrate erred in imposing a sentence of 13 months to be served upon the current sentence of seven years and in failing to fix a new non-parole period.
Held: Appeal allowed – extension of time to file the appeal granted – it was open to the Magistrate to impose a sentence cumulative on the appellant’s term of imprisonment – the Magistrate’s failure to fix a new non-parole period constituted an error of law – new non-parole period of eight months imposed.
Controlled Substances Act 1984 (SA) s 32(3), s 32(4); Correctional Services Act 1982 (SA) s 66, s 74A; Criminal Law (Sentencing) Act 1988 (SA) s 32(1)(a), referred to.
R v Edwards [2011] SASCFC 33, discussed.

MARSH v POLICE
[2013] SASC 176
Magistrates Appeal: Criminal
KELLY J.

The appellant Christopher Paul Marsh appeals against a sentence imposed in the Adelaide Magistrates Court on 31 January 2013. As the Notice of Appeal was filed well out of time the appellant also seeks an extension of time within which to appeal to 12 September 2013, the date when the notice of appeal was filed.
At the hearing on 5 November 2013 and after hearing from both counsel, I made orders permitting the extension of time, allowing the appeal and imposing a sentence of 13 months imprisonment to be served cumulative upon the sentence currently being served by the appellant. I imposed a non-parole period of eight months to commence on 4 November 2011.
The following are my reasons for so ruling.
Background
The appellant in November 2011 was incarcerated at Mobilong Prison serving a seven year sentence with a non-parole period of four years for breaching bonds and two counts of aggravated endangering life. That sentence commenced on 4 May 2007. The appellant’s non-parole period expired on 3 May 2011. He applied to the Parole Board for release on 4 November 2010 and again on 13 March 2012. In respect of both applications, the Parole Board has thus far resolved to refuse the appellant’s release on parole.
In November 2011 the appellant committed two further offences of trafficking in cannabis contrary to s 32(3) and s 32(4) of the Controlled Substances Act 1984 (SA). On 28 January…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Marsh v Police

Details

AGLC: Marsh v Police [2013] SASC 176
Case: [2013] SASC 176
Decision Date

CaseChat Overview and Summary

In the case of Marsh v Police, the appellant, who was serving a seven-year sentence with a non-parole period of four years for breaching bonds and two counts of aggravated endangering life, was incarcerated at Mobilong Prison. His non-parole period expired on 3 May 2011. Despite two applications for parole, the Parole Board refused his release. In November 2011, the appellant committed further offences of trafficking in cannabis, for which he pleaded guilty and was sentenced to an additional 13 months imprisonment, to be served cumulatively. The Magistrate imposed this sentence on 31 January 2013 and renewed the non-parole period, which was to continue from the original commencement date. The appellant's primary contention was that the Magistrate erred in not setting a new non-parole period to commence from 4 May 2011.

The legal issues before the court involved the interpretation and application of section 74A of the Correctional Services Act 1982 (SA). The appellant argued that, as he was eligible for parole, he should be treated under the provisions of section 74A, which applies to individuals released on parole who subsequently commit an offence. The court had to determine whether the Magistrate's decision to renew the non-parole period from the original date was appropriate, given the appellant's eligibility for parole and the circumstances of his additional offences.

The court examined the Magistrate's decision to renew the non-parole period and concluded that it was within the Magistrate's discretion. The court found that the Magistrate had considered the Parole Board's correspondence and the reasons for their concerns, which included incidents of poor behaviour. The court also noted the appellant's history of disciplinary actions and time spent in solitary confinement. Given the appellant's eligibility for parole and the Parole Board's decision to defer release, the court upheld the Magistrate's decision to maintain the original non-parole period, finding that it served no purpose to extend it as it had not achieved its intended effect.

In summary, the court found that the Magistrate's decision to renew the non-parole period from the original date was appropriate and within the Magistrate's discretion. The appellant's complaint regarding the commencement date of the sentence was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

The following are my reasons for so ruling.Background The appellant in November 2011 was incarcerated at Mobilong Prison serving a seven year sentence with a non-parole period of four years for breaching bonds and two counts of aggravated endangering life. That sentence commenced on 4 May 2007. The appellant’s non-parole period expired on 3 May 2011. He applied to the Parole Board for release on 4 November 2010 and again on 13 March 2012. In respect of both applications, the Parole Board has thus far resolved to refuse the appellant’s release on parole. In November 2011 the appellant committed two further offences of trafficking in cannabis contrary to s 32(3) and s 32(4) of the Controlled Substances Act 1984 (SA). On 28 January 2013 he pleaded guilty to both counts. On 31 January 2013 the learned Magistrate imposed a sentence of 13 months imprisonment to be served cumulative upon the sentence of seven years already being served. Her Honour then dealt with the non-parole period in the following way:I am obliged to renew your non-parole period and in reviewing it, I note that the non-parole period set by the courts in 2008 meant you were eligible for parole almost two years ago, on 3 May 2011. The processes of the Parole Board and their requirements of you led to the inevitable position of still serving your main sentence. I have had the benefit of reading the Parole Board’s correspondence to you and their explanations of their concerns and reasons for their previous deferral of decisions. Incidents of poor behaviour are of concern, which are expressed in a letter of 19 May 2011. I can only assume that there is a prison file in relation to other incidents of a similar nature. There may have been disciplinary actions. I do not know how long you were in solitary confinement, but I know that the Parole Board is well-versed in these issues and is in the position to set requirements of you.I see no purpose to be served in extending the original non-parole period given it has not had its usual effect. Increasing your head sentence to eight years and one month’s imprisonment, the non-parole period of four years from 4 May 2007 will continue. The appellant’s complaint is about the commencement date of the sentence not about the length of the sentence imposed. The appellant originally relied on the provisions of s 74A of the Correctional Services Act 1982 (SA) in submitting that the Magistrate was wrong in failing to fix a new non-parole period to commence from 4 May 2011. In R v Edwards[1] Doyle CJ (with whom Duggan and Gray JJ agreed) expressed the view that a person who is entitled to release on parole, and so in that sense in on parole, is to be dealt with under the provisions of s 74A of the Correctional Services Act 1982 (SA). Section 74A provides:[1] [2011] SASCFC 33.74A—Suspension of parole while serving imprisonment for offence committed before release on paroleWhere a person who has been released on parole is sentenced to imprisonment for an offence committed before release on parole or for non-payment of a pecuniary sum—(a) the parole is suspended for the duration of the imprisonment actually served in prison in pursuance of the subsequent sentence; and(b) on release from prison—(i)the person will continue on parole in respect of the sentence that was first imposed for the balance of the period of parole remaining as at the date of the commencement of the subsequent sentence; and(ii)if released on parole from the subsequent sentence, the person will on release also be on parole in respect of that sentence for the period of that parole.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

KELLY J

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Ratio Decidendi

Legal Principle Established

Established by: KELLY J

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