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 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 parole
Where 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.
However on the hearing of this appeal, counsel for both the appellant and respondent conceded that the case of Edwards is factually distinguishable from the matter at bar. In Edwards the prisoner was serving a period of imprisonment of less than five years and was in fact entitled to automatic release on parole pursuant to s 66 of the Correctional Services Act 1982 (SA). The only reason he had not been released was because he had not been granted bail in respect of subsequent rape charges. The appellant in this case however has been serving a period of imprisonment of more than five years. Thus s 66 of the Correctional Services Act 1982 (SA) is not applicable to him. The expiry of the appellant’s non-parole period on 4 May 2011 only entitled the appellant to apply for release as opposed to automatic release. His applications thus far have been rejected by the Parole Board.
Section 74A applies to a person “who has been released on parole”. In my view Edwards has no application to the factual circumstances of this appellant. There is a further point of distinction of some relevance and that is that the appellant’s current offending did not occur until well after the expiry of the non-parole period on 4 May 2011. The offences to which the appellant pleaded guilty were committed in November 2011.
It was open to the Magistrate to impose a sentence which was cumulative on the appellant’s current term of imprisonment, however, her Honour does not appear to have actually fixed a non-parole period in accordance with the obligation which arose by virtue of the provisions of s 32(1)(a) of the Criminal Law (Sentencing) Act 1988 (SA):
32—Duty of court to fix or extend non-parole periods
(1) Subject to this section, where a court, on convicting a person of an offence, sentences the person to imprisonment, the court must—
(a)if the person is not subject to an existing non-parole period—fix a non-parole period; or
…
Although the Magistrate noted that she was obliged to review the appellant’s non-parole period, she appears to have ultimately ordered that the current non-parole period of four years remain undisturbed. The difficulty with that course of action was at the time when the appellant was sentenced by the Magistrate he was not in fact subject to any existing non-parole period because it had already expired. Even had that non-parole period not expired in May 2011, the Magistrate would have been obliged to review and extend it.
The Magistrate was obliged by virtue of the provision in s 32(1)(a) of the Criminal Law (Sentencing) Act 1988 (SA) to fix a new non-parole period referable to the two counts of trafficking in cannabis. The failure to do so amounts to an error at law.
Accordingly when the matter came on for hearing, by consent I made the following orders:
1That an extension of time until 12 September 2013 within which to file the Notice of Appeal is granted.
2The appeal is allowed.
3The head sentence of 13 months imprisonment imposed by the Magistrate to stand. I fix a new non-parole period of eight months to commence from 4 November 2011.