McIntosh v Police - [2013] SASC 65

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
MCINTOSH v POLICE
[2013] SASC 65
Judgment of The Honourable Justice Gray
3 May 2013
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - GROUNDS - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - SENTENCE: WHAT CONSTITUTES
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - APPROACH TO SENTENCING PROCESS - SENTENCING METHODS
The defendant and appellant was sentenced on 4 February 2013 in the Magistrates Court in respect of five offences - at the time of the present offending, the defendant was on parole in respect of an earlier sentence - the defendant spent time in custody prior to sentencing - the Magistrate when sentencing the defendant commenced with a notional sentence of 15 months imprisonment - then made a reduction of nine months and four days on account of time spent in custody, leading to a head sentence of five months and 21 days - to commence on the expiration of an unexpired period of parole of four months and seven days - the defendant faced a total period in custody of imprisonment of nine months and 28 days commencing on 4 February 2013 - the sentence was structured in such a manner that, in all, the defendant would spend more than 12 months in custody without the benefit of parole - whether this was an unduly harsh result - whether the Magistrate failed to have proper regard to section 75(3) of the Correctional Services Act 1982 (SA) - whether this Court should interfere and structure the sentence in such a manner that a non-parole period could be fixed.
Held: Appeal allowed - a sentence of 15 months imprisonment in respect of the present offending was well within the Magistrate's discretion - no adequate regard was given to the enhanced powers of the Court under section 75(3) of the Correctional Services Act - sentence of the Magistrate set aside - defendant resentenced under section 18A of the Criminal Law (Sentencing) Act 1988 (SA) to the one sentence of imprisonment of 14 months with a non-parole period of nine months - sentence backdated to commence on 12 November 2012.
Correctional Services Act 1982 (SA) s 75; Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
R v Lang & Ors [2006] 1 WLR 2509, considered.

MCINTOSH v POLICE
[2013] SASC 65
Magistrates Appeal: Criminal
GRAY J.

This is an appeal against sentence.
Background
The defendant and appellant, Joshua Peter McIntosh, was sentenced on 4 February 2013 in the Magistrates Court in respect of five offences. Three of those offences were in respect of theft involving motor vehicles occurring between 1 January and 23 February 2010. One offence, the crime of deception, also related to a motor vehicle and occurred during the same period. The remaining offence was a single count of breaching bail.
Two of the counts of theft related to an arrangement made between the owner of the vehicles and the defendant at a time when they were both in custody. The arrangement was that the defendant, on his release, would be allowed to reside at the other man’s property and he was also entrusted with the safe keeping of two motor vehicles. The defendant sold the vehicles. Initially he claimed that they had been stolen, but later confessed that he sold them. The Magistrate was unable to reach a conclusion as to the value of the vehicles.
The remaining offence of theft and the offence of deception related to another vehicle. The owner of the vehicle had been in a relationship with the defendant and had allowed him to use the motor vehicle. The defendant sold the vehicle and received an amount of $13,000.00. Apparently the vehicle was sold to a dealer and then on sold. It was said to have been the subject of recovery by the owner.
The Magistrate had regard to the defendant’s personal antecedents. At the time of sentencing, the defendant was 43 years of age and a qualified motor mechanic who had spent most of his working life in the motor vehicle industry.
The defendant has criminal antecedents, all involving dishonesty. On 10 August 2004, the defendant was convicted of two counts of passing valueless cheques. The offending occurred in September 2001. The Court imposed a sentence of 21 days imprisonment. The sentence was suspended on the defendant’s entry into a 12 month good behaviour bond. The antecedent report further discloses that the defendant was convicted in January 2006 of four dishonesty offences committed between June 2003 and March 2004. A total head sentence in respect of the offending of three years was imposed with a non-parole period of 18 months fixed. The sentence commenced on 20 January 2006. On 29 March 2006, the defendant was convicted of three counts of fraudulent conversion. The offending occurred in May or June 2003. The Court imposed the one penalty in respect of the offending, being a sentence of imprisonment of 12 months. The Court ordered that this sentence be served cumulatively on the three year term of imprisonment imposed on 20 January 2006. The non-parole period was reviewed and extended from 18 months to 22 months. The 22 months was ordered to commence on 20 January 2006.
On 21 August 2008, the defendant was convicted of the offence of deceive another to benefit self. The offending occurred on 10 April 2008. A sentence of three months imprisonment was imposed. The sentence was cumulative on the outstanding period of unexpired parole of one year, eight months and 30 days. As a consequence, the defendant faced a total head sentence of one year, 11 months and 30 days, commencing on 21 August 2008. A non-parole period of 15 months was fixed, commencing on that date.
When sentencing the defendant on 4 February 2013 for the present offending, the Magistrate imposed the one sentence of five months and 21 days imprisonment, commencing at the expiration of an unexpired period of parole of four months and seven days in respect of the sentence imposed on 21 August 2008. The period to be spent in custody was ordered to commence on 4 February 2013. The Magistrate imposed the sentence of imprisonment in respect of two of the offences of theft. The Magistrate noted that the sentence was fixed taking into account the remaining three offences.
The Magistrate commenced with a notional sentence of 18 months imprisonment. He reduced this period by three months on account of the pleas of guilty, leading to a notional sentence of 15 months imprisonment. The Magistrate then made a reduction of nine months and four days[1] on account of time spent in custody, leading to a total head sentence to be served of five months and 21 days. The Magistrate noted that this sentence was to commence on the expiration of the unexpired period of parole of four months and seven days. As a consequence, the defendant faced a total term of imprisonment of nine months and 28 days commencing on 4 February 2013.
[1] In calculating the period of nine months and four days, the Magistrate would appear to have made a mathematical error. The allowance for time in custody, in the calculation made, should have been seven months and 29 days.
The Appeal
On the hearing of the appeal, counsel for the defendant submitted that the Magistrate had structured the sentence imposed in such a manner that, in all, the defendant would spend a total period well in excess of 12 months in custody without the benefit of parole when regard is had to the unexpired period of parole and time spent in custody on remand. It was submitted that this was an unduly harsh result and that this Court should interfere to structure the sentence in such a manner that a non-parole period could be fixed. Counsel pointed out that earlier perceived problems in sentencing in circumstances where time had been spent in custody while there remained an unexpired period of parole to be served had been addressed by recent amendments to the Correctional Services Act 1982 (SA). Attention was drawn to section 75(3) of the Act. It was contended that the Magistrate failed to have proper regard to this amendment and, in particular, to the use of the powers provided by the amendment.
Counsel for the defendant conceded that a sentence of 15 months imprisonment was an appropriate sentence for the defendant’s present offending. I consider this to be an appropriate concession when regard is had to the defendant’s criminal antecedents.
Counsel for the police accepted that there had been inadequate consideration given to the amendment and that, in the circumstances, it was appropriate for the sentence imposed by the Magistrate to be set aside and the defendant resentenced.
Section 75 of the Correctional Services Act was amended in 2012 by the introduction of sub-paragraph (3). Section 75 provides:
(1)     Where—
(a)   a person is sentenced to imprisonment for an offence committed while on parole and the sentence is not suspended; or
(b)   the suspension of a sentence of imprisonment imposed for an offence committed by a person while on parole is revoked,
the person is liable to serve in prison the balance of the sentence, or sentences, of imprisonment in respect of which he or she was on parole, being the balance unexpired as at the day on which the offence was committed.
(1a)Subsection (1) applies notwithstanding that, at the time of conviction of the person or of the revocation of the suspended sentence, the parole may have expired or been discharged.
(2)Where a person referred to in subsection (1) is, at the time of conviction or revocation of the suspended sentence, still on parole, the parole is, by virtue of this subsection, cancelled.
(3)Any period for which the person is detained in custody or in prison after committing the offence is to be counted as or towards the period that the person is liable to serve in prison under this section (and any date on which the sentence is to be taken to have commenced will be fixed accordingly).
Section 75(3) enabled the Magistrate to count the period that the defendant spent in custody after committing the offence towards the period of unexpired parole. The Magistrate’s sentencing remarks make no reference to section 75(3) of the Correctional Services Act. Counsel for the police accepted that the Magistrate’s discretion miscarried as a consequence of the failure of the Magistrate to consider the exercise of his powers under section 75(3). In the circumstances, I am satisfied that no adequate regard was given to the enhanced powers of the Court pursuant to section 75(3).
At the time of the present offending, in January 2010, the defendant was on parole in respect of the sentence imposed on 21 August 2008. The unexpired period of parole at that time was seven months and 18 days. The defendant was taken into custody in respect of the present offending on 8 April 2010 and remained in custody until released on bail on 23 December 2010. Three months and 11 days of the above period was spent in custody following the cancellation of the defendant’s parole. The remaining unexpired period of parole was reduced as a consequence to a period of four months and seven days. However, it is to be noted that when the defendant was released on bail on 23 December 2010, he had spent a total of five months and four days in custody on remand. On 12 November 2012, the defendant was again remanded in custody in respect of the subject offending.
I consider it appropriate when resentencing the defendant to exercise my powers under the Correctional Services Act. In accordance with section 75(3), I have treated the time for which the defendant was detained in custody on remand as counting towards the unexpired period of parole. It follows that the unexpired period of parole was fully served by 26 November 2010. This left the defendant with 26 days spent in custody not otherwise accounted for.
I consider that I should exercise my discretion under section 18A of the Criminal Law (Sentencing) Act 1988 (SA) and impose the one sentence in respect of all of the present offending. I commence with a notional head sentence of 18 months. I reduce that by three months on account of the pleas of guilty to a sentence of fifteen months. As earlier noted, the defendant was remanded in custody pending sentence in respect of the present offending on 12 November 2012. The time spent in custody exceeds the total period of unexpired parole by a period of 26 days. Credit is to be given for this period of 26 days when finally fixing a head sentence for the present offending. As a consequence, the sentence for this offending should be reduced from 15 months to 14 months and four days. The sentence of 14 months and four days is to be backdated to 12 November 2012 as the defendant was taken into custody on that date on remand in respect of the present offending. I fix a non-parole period of nine months in respect of the term of imprisonment of 14 months and four days.
This appeal demonstrates the mathematical nightmare that faces the judiciary when sentencing an offender in circumstances where an unexpired period of parole remains to be served and time has been spent in custody on remand. The task of determining an appropriate sentence may also be further complicated by the statutory provisions addressing non-parole periods. Another minor issue should be mentioned. When months are referred to it is often unclear how the number of days in each month are to be calculated. There may be inaccuracies as a result. It is to be questioned whether striving for such accuracy is warranted.
Although in a different context, I consider that the remarks made by Rose LJ in Lang[2] express my sentiments with respect to the problems arising before the Magistrate and this Court in the present proceeding. Lang concerned a complex sentencing provision of United Kingdom legislation. The observations of his Lordship included the following:[3]
It would be inappropriate to conclude these proceedings without expressing our sympathy with all those sentencers whose decisions have been the subject of appeal to this Court. The fact that, in many cases, the sentencers were unsuccessful in finding their way through the provisions of this Act, which we have already described as labyrinthine, is a criticism not of them but of those who produced these astonishingly complex provisions. Whether now or in the fullness of time the public will benefit from sentencing provisions of such complexity is not for us to say. But it does seem to us that there is much to be said for a sentencing system which is intelligible to the general public as well as decipherable, with difficulty by the judiciary.
[2] R v Lang & Ors [2006] 1 WLR 2509.
[3] R v Lang & Ors [2006] 1 WLR 2509, [153].
Finally, I have tested the proposed sentence by a different mathematical model. In all, the defendant faced an unexpired period of parole of seven months and 18 days. In addition, he faced a head sentence of 15 months for the present offending. Thus, leaving to one side time spent in custody, the defendant faced a total period in custody of 22 months and 18 days. He had spent eight months and 14 days in custody, until 12 November 2012. This leaves a remaining head sentence to be served of 14 months and four days as at that date.
Conclusion
The appeal is allowed and the sentence imposed by the Magistrate is set aside. The defendant is sentenced to a term of imprisonment which I round down to 14 months. A non-parole period of nine months is fixed. The sentence is backdated to commence on 12 November 2012.