Michael Laurence Hayes and Paul Henderson v Steven Kenneth Brookes No. SCGRG 1806 of 1992 Judgment No. 3617 Number of Pages 3 Criminal Law and Procedure

[1992] SASC 3617

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA DUGGAN J

CWDS
Criminal law and procedure - probation and parole of offenders - Prosecution appeal against suspension of terms of imprisonment - whether magistrate empowered to suspend terms of imprisonment for of fences committed while respondent on parole - held, dismissing appeal that discretion existed to suspend sentences. Correctional Services Act, 1982s.75 and Criminal Law(Sentencing) Act, 1988ss.31 and 38., considered.

HRNG ADELAIDE, 8 September 1992 #DATE 17:9:1992
Counsel for appellants:     Mr A. Wainwright
Solicitors for appellants:    Director of Public Prosecutions
Counsel for respondent:     Mr T. Kavanagh
Solicitors for respondent:    Caldicott and Co.

ORDER
Appeal dismissed.

JUDGE1 DUGGAN J This is a prosecution appeal against the suspension of sentences of imprisonment imposed upon the respondent in the Adelaide Magistrates' Court. The appellant was charged with two counts of illegally using a motor vehicle on the 7th and 8th March, 1992 respectively. He pleaded guilty to the offences and was sentenced to imprisonment for eight months on each count, the sentences to be served concurrently. The sentences were suspended upon the respondent entering into a recognizance in the sum of $100.00 to be of good behaviour for three years. 2. The time these offences were committed the respondent was on parole in respect of a sentence of three years and six months imposed on 18th January, 1991. He had been released on parole on 19th December, 1991 and if an immediate custodial sentence had been imposed by the learned magistrate he would have been liable to serve the unexpired portion of that sentence calculated as at the date on which the first offence was committed, a period of two years, four months and nine days. (Correctional Services Act, 1982 s.75). 3. The only matter argued on appeal was whether the learned magistrate was empowered to suspend the terms of imprisonment imposed on the illegal use charges. Mr Wainwright, for the appellant, argued that the provisions relating to parole in the Correctional Services Act and the Criminal Law(Sentencing) Act, 1988 do not allow a court to suspend a term of imprisonment imposed in respect of an offence committed by a person who is on parole. 4. At the outset it would appear that this submission is inconsistent with the wording of s.75 of the Correctional Services Act. Automatic cancellation of parole pursuant to s.75 applies only if the sentence of imprisonment for the offence committed while on parole is not suspended. Insofar as it is relevant that section states:
    "75 (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." 5. It would seem that the specific mention of an unsuspended sentence in sub-paragraph (1)(a) is necessary in order to distinguish the circumstances from those cases in which a suspended sentence might be imposed. 6. In support of his argument Mr Wainwright relied upon s.31(2) of the Criminal Law (Sentencing) Act which provides as follows:
    "Where a sentence of imprisonment is imposed for an offence
    committed by the defendant -
    (a) during a period of release on parole; or
    (b) while serving a period of imprisonment
    pursuant to an order of the Parole Board for breach of parole
    conditions, the sentence will (except where one of the sentences
    to which the defendant is subject is life imprisonment) be
    cumulative upon the sentence, or sentences, in respect of which
    the defendant was on parole." 7. He pointed out that this sub-section could not apply to a sentence of imprisonment which was suspended. I agree with this submission, but Mr Wainwright went on to argue that it was to be inferred from this that all sentences imposed for offences committed whilst on parole could not be suspended. There is an obvious non sequitur in this reasoning. Section 31(2) is to be read in conjunction with s.75 of the Correctional Services Act. Section 31(2) applies only to an unsuspended custodial sentence. A sentence of this nature will lead to automatic cancellation of parole under s.75. For policy reasons it has been decided that neither the effect of the original sentence nor that of the subsequent custodial sentence should be negatived to any extent by an order that they be served concurrently. But that is not to say that the court cannot suspend the sentence for the subsequent offence in those circumstances where it is thought appropriate. 8. Finally Mr Wainwright drew attention to s.38(2) of the Criminal Law(Sentencing) Act which is to the following effect: "A sentence of imprisonment may not be suspended under this section where the sentence is to be served cumulatively upon another term of imprisonment, or concurrently with another term then being served, or about to be served, by the defendant." 9. In my view this sub-section has no application to the present case. The learned magistrate did not direct that the sentence for the illegal use charges was to be served cumulatively upon any other sentence. Furthermore, as automatic cancellation of parole pursuant to s.75 did not apply in this case, it could not be said that there was "another term then being served, or about to be served, by the respondent". 10. For these reasons I am of the view that it was within the discretion of the learned magistrate to suspend the sentences for illegal use of the motor vehicles and the appeal will be dismissed.