Monterola v Police

[2009] SASC 42

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

MONTEROLA v POLICE

[2009] SASC 42

Judgment of The Honourable Justice Nyland

26 February 2009

MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SENTENCING - IMPRISONMENT - SUSPENSION OF SENTENCE

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - FACTUAL BASIS FOR SENTENCE - SENTENCING GUIDELINES

MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SENTENCING - IMPRISONMENT - CUMULATIVE OR CONCURRENT SENTENCES

MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - CONVICTION ON PLEA OF GUILTY

Appeal against sentence – whether non-parole period manifestly excessive – whether Magistrate erred in not exercising discretion to suspend term of imprisonment – sentence imposed with respect to a number of offences of dishonesty committed over about a 10-year period – appellant completed Drug Court Program over about 12 months - consideration of relationship of non-parole period to head sentence.

Held: Magistrate gave insufficient weight to progress made by appellant towards rehabilitation – no good reason to suspend but appeal allowed to reduce non-parole period fixed by Magistrate.

Criminal Law Sentencing Act SA (1988) s 32(5), referred to.
Police v Maraldo [2005] SASC 479; R v Khim (2002) SASC 343; R v Creed (1985) 37 SASR 566; R v Power [2003] SASC 288, discussed.
Salvador Salgado-Silva (2001) NSWCCA 423; R v Manolakis [2008] SASC 129; R v Miller (2000) 76 SASR 151, considered.

MONTEROLA v POLICE
[2009] SASC 42

1. NYLAND J:          This appeal is against a sentence imposed in the Adelaide Magistrates Court on 24 September 2008.  On that occasion, following pleas of guilty, the appellant was sentenced to be imprisoned for three years and seven months with a non-parole period of two years.  The sentence and the non-parole period were directed to commence from the same date, ie 24 September 2008.  The appellant does not make any complaint with respect to the head sentence imposed by the learned Magistrate.  The issue which arises for determination on this appeal is whether the non-parole period was manifestly excessive in all the circumstances and whether the learned Magistrate erred in not exercising her discretion to suspend the term of imprisonment. 

2. The sentence of imprisonment was imposed with respect to a number of offences of dishonesty committed over about a 10-year period, details of which are set out in the affidavit of Yasmin Jade Alicia McMahon, sworn on 1 December 2008 (the McMahon affidavit).  The appellant also pleaded guilty to a number of driving offences, as well as breaching bail, but those matters were dealt with by fines and are not relevant to this appeal.  The appellant also has an extensive prior history for offences of dishonesty and driving offences commencing when he was a juvenile[1]. 

   [1]    See appellant’s antecedent report which is Exhibit YJAM 13 to the McMahon affidavit.

3. On various dates throughout 2006 and 2007, the appellant entered guilty pleas to the various charges, following which on 20 August 2007 the appellant was recommended for participation in the Drug Court Program.  He was accepted into that program on 27 August 2007.  He was then released on strict bail, including home detention conditions which required him to participate in the program from 27 August 2007 until 12 September 2008.  Ms McMahon, who represented the prosecution in the Magistrates Court proceedings, summarised the appellant’s participation in the program as follows[2]:

   Mr Monterola was accepted onto drug court program on 27 August 2007.  His time on the program has been cyclical, with periods of drug use, followed by periods where he managed to abstain from drug use, but then a return to drug use.  He has committed further offences on two occasions while being on the program.  Unfortunately the last set of offences were committed right at the end of his time on the program and were coupled with a return to drug use.  For this reason, while Mr Monterola has had some positive periods during the last year, the Crown submits that the Court cannot be satisfied that he has overcome his drug addiction and would abstain from offending in the future.

   [2]    Para 10e of the McMahon affidavit.

4. According to the Drug Court final report[3] the appellant completed his 12 months on the Drug Court Program and demonstrated drug abstinence except for three major lapses into use in January, March and June 2008.  The report says that these lapses arose out of relationship conflicts and poor coping skills on the part of the appellant and that he was applying himself to learn new coping and problem solving strategies.  The appellant was also charged with two separate driving offences in March and July 2008 while on the program.

   [3]    Exhibit YJAM 15 to the McMahon affidavit.

5. The Drug Court Assessment Report[4] sets out the personal history of the appellant, much of which was referred to by the Magistrate in her sentencing remarks.  The appellant is now aged about 45 years and is the eldest of three children.  He has five children aged between about eight and 28 years.  The appellant has been on a Disability Support Pension since about 2003.  He commenced the use of methamphetamines at about the age of 27 years and continued that pattern of use up until age 35.  He resumed at about the age of 38 following the breakdown of his second marriage.  He commenced using morphine when he was aged about 42.  He has a number of mental health issues, including depression and anxiety following marriage breakdowns.  He has attempted suicide on a number of occasions.  When speaking to the author of the report, the appellant articulated a clear nexus between his drug use and offending behaviour. 

   [4]    Exhibit YJAM 1 to the McMahon affidavit.

6. The learned Magistrate had regard to all these matters, including the participation of the appellant in the Drug Court Program.  In sentencing the appellant, she recognised that he had made some progress towards rehabilitation, but, despite the appellant’s graduation from the program, considered periods of imprisonment had to be imposed for the more serious matters.  She went on to say in her reasons:

   I will however take into account the efforts which you have made on the Drug Court Program and the fact that you have not committed similar offences during the time you have been on the program.

   The offences of being on non-residential premises and stealing property individually would normally result in a period of imprisonment of at least 12 months.  If I was to impose such periods these offences alone would result in a period of imprisonment for about six years.  In addition the charges of assisting an offender call for a period of imprisonment of about nine months.

7. She then dealt with those matters for which a period of imprisonment was not appropriate for which she imposed fines, and went on to say:

   For the remaining offences I consider a period of imprisonment of five years is appropriate, taking into account the number of offences committed and the period over which they were committed.  However, I take into account that you have pleaded guilty to the charges and therefore reduce the period of imprisonment to four years.  I further take into account that you were in custody for five months on these charges and therefore reduce the period of imprisonment to three years and seven months.

   You have been on home detention bail for 27 months, two weeks and three days, though you have committed a number of breaches of your home detention bail during this time.  I have already noted you have graduated through the Drug Court Program. 

   I do not however consider it would be appropriate to further reduce the period of imprisonment I have already imposed.  To do so I believe would impose a sentence which would be overly lenient.

   Accordingly, you will be sentenced to a period of imprisonment of three years and seven months.

8. She then turned to the non-parole period and said:

   In setting a non-parole period I take into account your progress through the Drug Court Program and in particular the fact that you have not committed dishonesty offences whilst on the program, and have managed to remain abstinent of drugs for some lengthy periods of time.

   Taking this into account I am prepared to set a non-parole period which is far more lenient than that which I would normally impose.  I set a non-parole period of two years to date from today.

   Appellant’s argument

9. On the hearing of the appeal, Ms Demertzis on behalf of the appellant, submitted that the non-parole period was manifestly excessive.  The sentencing Magistrate had recognised the achievements that had been made by the appellant and in order to recognise his prospects for rehabilitation had indicated she would set a non-parole period that was lower than might otherwise have been the case.  On that basis, Ms Demertzis submitted that a period of less than one half of the head sentence might well have been expected, whereas that fixed by the learned Magistrate (as calculated by counsel for the respondent on the appeal) was in fact 56 per cent of the head sentence.  Ms Demertzis further argued that the learned Magistrate had taken inadequate account of the relevant circumstances, namely the appellant’s prospects of rehabilitation, as demonstrated by completion of the 12-month drug program.  She submitted that the likelihood of re-offending, given the appellant’s age at the time of the offences and the absence of any allegations of like offending since being on the program also supported weight being given to the rehabilitative aspect of sentencing. 

   Respondent’s argument

10. Ms Smith however submitted that there was no established formula to be followed in fixing a non-parole period. While acknowledging that the “rule of thumb” for a non-parole period was usually between half and two thirds of the total head sentence, the authorities required a sentencing judge to consider the circumstances of each individual case. When setting a non-parole period the same factors that were relevant to the setting of a head sentence, but agreed it was not the sole consideration.  She acknowledged that rehabilitation must be taken into account as an important factor in determining the sentence, but agreed it was not the sole consideration.  Other factors which the court was required to hear included prior offending history, the personal circumstances of a defendant, the seriousness of the offending and principles of personal and general deterrence.

    Conclusion

11. Section 32 of the Criminal Law Sentencing Act SA (1988) refers to the duty of a court to fix a non-parole period when sentencing a person to a term of imprisonment. Subject to some qualifications, which appear in s 32(5), there is no established formula to be followed by a judicial officer in the setting of a non-parole period. In particular, there is no formula regarding the percentage of the non-parole period in relation to the head sentence. The length of the non-parole period will depend upon the circumstances of the case and the circumstances of the defendant. It does however represent the minimum term which the defendant must spend in prison to satisfy the punitive deterrent and preventive purposes of punishment. This has been the subject of discussion in a number of cases.

12. In Salvador Salgado-Silva[5] the NSW Court of Appeal commented at [35]:

    … it is inappropriate for a sentencing judge to adopt a mechanistic approach to the assessment of an appropriate sentence when it comes to the application of discounts and allowances for the various subjective matters which his Honour was required to take into account.   With so many sentencing principles jostling against each other for primacy, a balancing exercise must necessarily be undertaken to reach an appropriate sentencing regime. 

    [5] (2001) NSWCCA 423.

13. The court went on to say, however, at [39]:

    It has been accepted by this Court in a number of cases that the appropriate practice is to fix a non-parole period of between 60 to 66 per cent, except for the worst class of case.

14. In R v Khim[6]Perry J when discussing the fixing of a non-parole period said at [23] that it would be wrong to approach this aspect of the matter on the footing that there was any sort of norm as to the proportion of the head sentence represented by the non-parole period.  He went on to refer to the decision of the Court of Criminal Appeal in R v Creed[7], wherein King CJ (with whom Cox and Olsson JJ concurred) said:

    Counsel for the respondent mentioned, in the course of his submissions, what I gathered from him was regarded as something of a norm, namely that the non-parole period should represent two-thirds, in an ordinary case, of the head sentence.  The members of  this bench know of no such practice and speaking for myself, and I think the other two members of this Court, I would wish to say that the Court does not regard a non-parole period of two-thirds, nor indeed any other proportion, of the head sentence as being the norm.  Every case has to be considered upon its own facts and a non-parole period has to be fixed in every case which reflects the considerations which are peculiar to that case.  In some cases, the punitive, deterrent and preventive aspects will play an important part, in others the prospects of rehabilitation by means of parole will play a much greater part.  Nothing in the nature of a norm can be acceptable.

    [6] (2002) SASC 343.

    [7] (1985) 37 SASR 566.

15. In R v Power[8] Sulan J re-stated the principle that there was no “norm” as to the proportion of the head sentence which the non-parole period should represent, but after referring to the observations of King CJ in R v Creed[9] said at [29]:

    There are circumstances where a court may see little prospect that a person will respond to parole in a positive and useful way.  In those circumstances, the court may well set a non-parole period which is a high percentage of the head sentence.  On the other hand, there are circumstances in which the court may set a lesser non-parole period, particularly in the case of a lengthy sentence, so that an assessment can be made by the Parole Board after a reasonable period to determine whether the prisoner has progressed sufficiently on the path to rehabilitation to be entitled to be released.  Nevertheless, the non-parole period must also reflect the requirement of punishment and general and personal deterrence.

    [8] [2003] SASC 288.

    [9] (1985) 37 SASR 566.

16. In R v Manolakis[10] however, Gray and Layton JJ (in a joint judgment) commented at [12] that:

    A non-parole period, being the minimum period of imprisonment required to be served by an offender, is commonly in the order of one half to two-thirds of the head sentence.

    [10] [2008] SASC 129.

17. In Police v Maraldo[11] at [46] Doyle CJ said:

    In fixing a non-parole period a court must consider all of the factors that it considers in fixing a head sentence.  That is well established.  Of course, in fixing a non-parole period a court may give greater weight to factors personal to the offender than is given when fixing the head sentence.  But despite that, considerations of punishment, deterrence and rehabilitation remain relevant.  As has been said often, the non-parole period can be described as the minimum period of imprisonment that must be served having regard to considerations of punishment, deterrence and rehabilitation.

    [11] [2005] SASC 479.

18. In this case, the learned Magistrate clearly endeavoured to strike a balance between the deterrent aspect of the sentence and the potential rehabilitation of the appellant, given that the appellant appeared to have made some progress to reform during the 12 months he was on the Drug Court Program.  Having done that, she indicated that she would fix a non-parole period which was “far more lenient” than that which she would normally impose.  She then fixed a period of two years, which is the minimum period that the appellant will be obliged to serve before being eligible for release on parole.  That non-parole period would, however, appear to be within the range of what might normally have been expected for the appellant’s offending and does not appear adequately to reflect her intention to make an allowance for the appellant’s progress towards rehabilitation.  I therefore consider that the Magistrate has fallen into error with respect to this aspect of the matter and it is appropriate to exercise the sentencing discretion afresh.  During the period that the appellant was participating in the Drug Court program he was reviewed on a regular basis[12].  Although those reports included references to some drug relapses, the reports are in the main positive and indicate that the appellant was endeavouring to resolve his drug problems and had recognised the detrimental effects that drugs and consequent offending had on his lifestyle.  The commission of further offences while on the program are of concern, but they are at least of a different nature to the long history of offending which preceded the appellant’s entry into the drug program.

    [12]   Progress reports are contained in YJAM 2 to McMahon affidavit.

19. Ms Smith correctly submitted that all the considerations relevant to the fixing of head sentence are also relevant to fixing the non-parole period, but as Doyle CJ pointed out in R v Miller:

    (I) must consider all factors relevant to the setting of a head sentence, but it is appropriate to give greater weight to rehabilitation of the prisoner when fixing a non-parole period, and to bear in mind the ability of the Parole Board to assess the prisoner's suitability for parole when the time comes.

20. In my opinion, the community as well as the appellant will benefit from his successful rehabilitation.  This is not particularly easy to resolve.  The appellant’s criminal history precludes the setting of a very low non-parole period, but it is desirable to set a non-parole period which will assist in removing the appellant from the prison system in the not too distant future and allow him to pursue his rehabilitation in the community.  Having taken into account all the circumstances of this matter, I consider it is appropriate to fix a non-parole period of 15 months. 

21. There remains the question of suspension of sentence.  In considering whether sentence should be suspended, the court must find that there is good reason so to do.  In this case, the learned Magistrate did not refer to the question of suspension in her sentencing remarks.  I understand however that both prosecution and defence made submissions as to that aspect of the matter and there is no reason to think the Magistrate overlooked those submissions. 

22. Given the significant prior criminal history of the appellant, the fact that he had been given the benefit of suspended sentence bonds in the past, and had on occasions breached them, I consider that he was an unlikely candidate for suspension of sentence, notwithstanding his completion of the Drug Court program.  The Magistrate did not err in failing to suspend the sentence.  The appeal will be allowed to the extent that the non-parole period imposed by the Magistrate will be set aside and in lieu thereof I fix a non-parole period of 15 months to commence from 24 September 2008.