Moore v Police - [2006] SASC 324

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
MOORE v POLICE
[2006] SASC 324
Judgment of The Honourable Justice Sulan
25 October 2006
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - PRACTICE AND PROCEDURE - SENTENCING
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN GRANTED - PARTICULAR OFFENCES - OTHER OFFENCES
Appeal against sentence - appellant pleaded guilty to driving whilst disqualified and driving an unregistered motor vehicle - appellant arrested on 17 May 2006 and sentenced on 25 July 2006 - appellant was in custody from the time of arrest until sentenced - appellant was on parole at the time of the offence committed on 17 May 2006 - the unexpired period of parole at the time was two years, six months and twenty nine days - appellant sentenced to four months imprisonment for the offence of driving whilst disqualified to be served at the expiration of the unexpired period of parole - Magistrate subsequently re-listed the matter and re-adjusted sentence to reflect the time the appellant had spent in custody from his arrest until he was sentenced - whether the Magistrate failed to have regard to the time spent in custody when setting the non-parole period - whether the Magistrate appropriately applied s 76B of the Summary Procedure Act 1921 when recalling the matter and amending the sentence - consideration of the appropriate application of s 76A and s 76B of the Summary Procedure Act 1921.
Correctional Services Act 1982 s 75, s 75(1)(b); Criminal Law (Sentencing) Act 1988 s 9A, s 30(6)(c), s 31, s 31(2), s 32(1), s 32(2); Motor Vehicles Act 1959 s 9, s 91; Summary Procedure Act 1921 s 76A, s 76B, referred to.
Muscat v Magistrates Court (1997) 66 SASR 367; Police v Alikaris [2000] SASC 163; R v Czubak (2005) SASR 400; Tran v Police [1998] SASC S6891, considered.

MOORE v POLICE
[2006] SASC 324
Magistrates Appeal

SULAN J: This appeal yet again raises the difficulty sentencing courts have with the application of s 75 of the Correctional Services Act 1982 (“the Corrections Act”). I repeat what was said by Gray J and myself in R v Czubak:[1]
… The legislation is complex and on occasion can be difficult to follow and apply. Attention is drawn to the convoluted nature of the present legislative provisions so that consideration may be given to an amended and simplified legislative scheme.[2]
[1] (2005) 92 SASR 400.
[2] (2005) 92 SASR 400, 405 [18].
Background
On 25 July 2006 the appellant pleaded guilty to driving a motor vehicle whilst disqualified, contrary to s 91 of the Motor Vehicles Act 1959. He also pleaded guilty to driving an unregistered motor vehicle, contrary to s 9 of the Motor Vehicles Act 1959.
The circumstances of the offending were that in the early hours of the morning of Wednesday, 17 May 2006, police observed the appellant travelling east on West Thebarton Road in a Holden Commodore motor vehicle. The appellant pulled into the West Thebarton Hotel car park. The police approached him. Whilst the police were trying to establish his identity, he fled. Police eventually apprehended him and arrested him on an outstanding warrant. Police ascertained that he had been disqualified from driving on 6 July 2005 for 12 months. They also observed that the registration of the vehicle had expired.
The appellant admitted that he was aware that he was disqualified from driving. He told the police that he was unaware that the car was unregistered, as it did not belong to him.
The appellant has an appalling driving record. I will come to it in some further detail later. For the moment, it is sufficient to note that the appellant was on parole at the time of these offences. The unexpired period of parole at the time of the offence was two years, six months, and twenty nine days. The Magistrate sentenced the appellant to four months imprisonment for the offence of driving whilst disqualified, and ordered that the sentence be served at the expiration of the unexpired period of parole. The total head sentence was, therefore, two years, ten months, and twenty nine days. The Magistrate set a non-parole period of twenty months. On the count of driving an unregistered motor vehicle, the Magistrate imposed a conviction without penalty.
I will return to the events which occurred subsequent to 25 July 2006 later in these reasons.
The appeal
The appellant appeals the sentence, on the ground that the sentence is manifestly excessive. Upon hearing the appeal, it became clear that one of the reasons upon which it is submitted that the sentence is manifestly excessive is that the Magistrate was in error in the application of s 75 of the Corrections Act. It is said that she failed to have regard to the period that the appellant had spent in custody between 17 May 2006, when he was arrested, and 25 July 2006 when he was sentenced. The primary complaint is that the non-parole period is manifestly excessive. No complaint is made about the starting point of four months imprisonment for the offence of driving whilst disqualified.
In order to understand the problem with which the Magistrate had to deal, it is necessary to set out in some detail the appellant’s antecedent history. I will not set out all his previous convictions, but I will refer to some of the relevant previous convictions.
Antecedent history
The appellant has been convicted of numerous driving offences over the past twenty two years.
On 25 January 1999, he was convicted of twelve counts of receiving, breaking and entering a building and committing an offence, unlawful possession, driving a motor vehicle without consent, and driving without a licence. He was sentenced to a total of forty two months imprisonment, with a non-parole period of two years, to commence on 1 June 1998.
The appellant was released on parole and, during his parole, he committed further offences of dishonesty and offences of driving whilst disqualified. He was released on parole on various occasions between January 2001 and December 2005 and breached his parole, resulting in his return to custody.
On 5 December 2005, he was released on parole, which was to expire on 16 December 2008. It was whilst he was on that parole that the offences the subject of this appeal were committed. As at the date of the offences committed on 17 May 2006, the unexpired period of parole which the appellant was due to serve was two years, six months and twenty nine days.
The letter from the Parole Board
The Secretary of the Parole Board of South Australia advised that, as a consequence of the appellant’s imprisonment on 25 July 2006 pursuant to the sentence imposed by the Magistrate, his parole was automatically cancelled, pursuant to the provisions of s 75 of the Corrections Act, and that the unexpired balance of his sentence, as at 17 May 2006, was two years, six months and twenty nine days.
During the appeal I received advice from the Secretary of the Parole Board in the following terms.
On 26 April 2006 the Deputy Presiding Member noted a report from Mr Moore’s supervising Community Correctional Officer advising that your client had been arrested by police on 9 March 2006 for being in possession of a double edged knife, which is an alleged breach of parole condition (b) on page 1 of all parole release orders. The Deputy Presiding Member authorised the issuing of a summons for your client to appear before the Board on 1 September 2006 unless an earlier date became available.
On 18 May 2006 the Deputy Presiding Member considered two further reports from Community Correctional Officers advising of further alleged breaches of parole by:
·being charged with additional offences committed whilst on parole including Drive Disqualified committed on 17 May 2006, which if proven, would be a breach of a designated condition; and
·failing to attend court on 11 May 2006 (good behaviour condition); and
·failing to report on 11 May 2006 (reporting condition).
The Deputy Presiding Member authorised the withdrawal of the summons and issuing of a Parole Board warrant for Mr Moore’s arrest. The warrant was executed on 18 May 2006. Mr Moore is now due to appear before the Board for interview on 24 October 2006, unless an earlier date becomes available.
The appellant is now due to appear before the Parole Board on 24 October 2006. At the time the appellant was sentenced by the Magistrate, the Parole Board had not determined to cancel his parole.
The legislative scheme
Section 75 of the Corrections Act provides as follows:
75 – Automatic cancellation of parole upon imprisonment for offence committed while on parole
(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.
Section 30(6)(c) of the Criminal Law (Sentencing) Act 1988 (“the Sentencing Act”) provides:
…
(6) If, on imposing a sentence of imprisonment, the court fails to specify the date on which or the time at which the sentence is to commence or is to be taken to have commenced, the sentence –
…
(c) will, in the case of a defendant in custody for some other offence, commence on the day on which the sentence is imposed, unless the sentence is to be served cumulatively pursuant to this Act or any other Act.
Section 31 of the Sentencing Act provides:
31. (1)     Subject to subsection (2), the court by which a sentence of imprisonment is imposed may direct that the sentence be cumulative upon any other sentence, or sentences, of imprisonment or detention in a training centre then being served, or to be served, by the defendant.
(2)     Where a sentence of imprisonment is imposed for an offence committed by the defendant –
(a)     during a period of release on parole or conditional release; 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.
(3)     A direction may be given under subsection (1) irrespective of the number of cumulative sentences that the defendant is already serving or will, in consequence of the direction, be liable to serve.
(4)     This section does not apply in relation to a youth unless the youth is sentenced as an adult.
Sections 32(1) and (2) of the Sentencing Act provides:
32. (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
(b)if the person is subject to an existing non-parole period – review the non-parole period and extend it by such period as the court thinks fit (but not so that the period of extension exceeds the period of imprisonment that the person becomes liable to serve by virtue of the sentence, or sentences, imposed by the court); or
(c)if the person is serving a minimum term imposed in respect of an offence against a law of the Commonwealth or is liable to serve such a term on the expiry of an existing non-parole period – fix a non-parole period in respect of the sentence, or sentences, to be served upon the expiry of that minimum term.
(2) Where the sentence of imprisonment is imposed for an offence committed during a period of release on parole or conditional release from a previous sentence of imprisonment or detention, the court, in fixing a non-parole period under subsection (1)(a), must have regard to the total period of imprisonment (or detention and imprisonment) that the person is, by virtue of the new sentence and the balance of the previous sentence, liable to serve.
The effect of the sections referred to is that if a person who is on parole is sentenced to a term of imprisonment for an offence committed whilst they were on parole, the person becomes liable to serve the balance of the sentence or sentences of imprisonment in respect of which that person was on parole, being the balance unexpired as at the date on which the offence was committed. That sentence is to commence immediately upon the sentence of imprisonment which is imposed with respect to the further offending. The sentence of imprisonment imposed is to be cumulative upon the unexpired period of parole which the person is required to serve. Pursuant to s 32 of the Sentencing Act, the court is required to fix a non-parole period in respect of the whole of the sentence.
The Magistrate applied the sections correctly. The effect of the Magistrate’s order was that, upon the imposition of the sentence of imprisonment of four months, the appellant became liable to immediately serve the unexpired balance of parole of two years, six months and twenty nine days. The total sentence was two years, ten months and twenty nine days, commencing at the date of sentence. The unexpired period of parole was to be served first and the four months sentence was ordered to be cumulative upon that sentence.
By operation of the provisions of the two Acts, the Magistrate could not backdate the sentence that she imposed for the further offending. By virtue of s 75 of the Corrections Act, the unexpired period of parole commenced upon the appellant being sentenced. By virtue of s 30(6)(c) of the Sentencing Act, the four months sentence was cumulative upon the unexpired period of parole.
The Magistrate made it clear that the unexpired period of parole commenced on 25 July 2006. However, the Magistrate failed to have regard to the period of two months and nine days which the appellant had spent in custody between the time of his arrest on 17 May 2006 and the time of sentence on 25 July 2006. The Magistrate was required to have regard to that period.[3] She was required to have regard to that in adjusting both the head sentence and the non-parole period.
[3] See R v Czubak (2005) 92 SASR 400.
The Magistrate identifies an error
On 8 August 2006, the matter was re-listed before the Magistrate. It appears that the appellant’s solicitor requested that the Magistrate re-list the matter. In submissions before me, Mr Love, who appeared for the appellant, suggested that the matter was brought back to the Magistrate upon her own motion. It is unnecessary to resolve that question.
Upon the parties attending before the Magistrate, she said:
On application of defence counsel, this matter has come before me again to re-fix the head sentence and non-parole period, due to new information coming to light.
I set the head sentence at two years, eight months and twenty days, and the non-parole period at twenty months, to commence from 25 July 2006.
It is unclear what the new information is to which the Magistrate refers. However, it seems that she was informed that she had failed to have regard to the period that the appellant spent in custody prior to sentence, because her re‑adjusted sentence reflects in the head sentence a reduction of two months and nine days, being the period he had been in custody from his arrest to the date of sentence.
It is unclear whether the Magistrate exercised her powers pursuant to s 76A or s 76B of the Summary Procedure Act 1921. Sections 76A and 76B of that Act provides:
76A – Power to set aside conviction or order
(1)The Court may, on its own initiative or on the application of any party, set aside a conviction or order.
(2)An application to set aside a conviction or order under this section must be made within 14 days after the applicant receives notice of the conviction or order.
(3)The Court may set aside a conviction or order under this section if satisfied –
(a)that the parties consent to have it set aside; or
(b)that the conviction or order was made in error;
(c)that it is in the interests of justice to set aside the conviction or order.
(4)Where the Court sets aside a conviction or order under this section it may, without further formality –
(a) proceed to re-hear the proceedings in which the conviction or order was made; or
(b)adjourn the proceedings for subsequent re-hearing.
Section 76B provides:
76B – Correction of conviction or order
The Court may, on its own initiative or on the application of any party, correct an error in a conviction or order
Upon re-considering the Magistrate’s reasons, it does not appear to me that she invoked the powers under s 76A, because she does not appear to have set aside her earlier order and re-heard the matter. If she had done so, the new sentence would have had to commence on 8 August 2006. If that were the position then, pursuant to s 75 of the Corrections Act and s 31(2) of the Sentencing Act, the Magistrate would have had to have had regard to the longer period that the appellant had spent in custody from the time of his arrest until 8 August 2006. She has not done so. If, therefore, she was acting under s 76A of the Summary Procedure Act 1921, she has made an error.
If the Magistrate purported to correct an error pursuant to s 76B of that Act, having been informed that she failed to have regard to the period spent in custody when setting sentence, the Magistrate, although she adjusted the head sentence, appears to have overlooked any consequent adjustment to the non-parole period. In failing to re-adjust the non-parole period, she has failed to have regard to time spent in custody when determining the non-parole period.
In that regard, I consider she has made an error.
There is also some doubt whether the Magistrate can invoke s 76B of the Summary Procedure Act 1921 to correct an error of the nature identified. The application of s 76B has been the subject of consideration by Perry J in Tran v Police,[4] and by Debelle J in Police v Alikaris.[5]
[4] [1998] SASC S6891.
[5] [2000] SASC 163.
In Tran, the defendant was sentenced on 18 December 1997 to eighteen weeks imprisonment, to be served cumulatively upon an earlier sentence of nine months imprisonment, which had previously been suspended. The offences for which he received the eighteen weeks imprisonment constituted a breach of a suspended sentence of nine months imprisonment, and activated that sentence with a result that the defendant received a total of nine months and eighteen weeks imprisonment against which a non-parole period of nineteen months was fixed.
On 15 July 1998, the matter was re-listed before the Magistrate because the Magistrate had discovered that on 18 December 1996, when the defendant was sentenced, he was in fact on parole at the time of the commission of the offence for which he had received the suspended sentence. The effect of s 75(1)(b) of the Corrections Act rendered the defendant liable to serve the unexpired balance of the previous sentence of one year and twenty five days.

The Magistrate, on re-calling the matter, indicated that he intended to correct the error, pursuant to s 76B of the Summary Procedure Act 1921. The Magistrate amended the sentence imposed on 18 December 1997, to have regard to the additional period which the appellant was required to serve pursuant to his breach of parole. It is unnecessary to go into further detail, save to say that the defendant appealed on the grounds that the sentence was manifestly excessive, and on the ground that the Magistrate failed to set a non-parole period.
One of the matters argued before Perry J was whether the Magistrate was empowered to do what he did. It was submitted that he was functus officio. Perry J held that s 76B had application after an order had been minuted. He held that the Magistrate had jurisdiction to correct the error. Perry J had regard to s 9A of the Sentencing Act, which provides that on the application of the Director of Public Prosecutions, the Court can rectify an error of a technical nature made by a sentencing court in imposing sentence, or it may correct a deficiency or remove an ambiguity in the sentencing order.
Perry J concluded that there was an overlap between s 9A of the Sentencing Act and s 76B of the Summary Procedure Act 1921. He concluded that both sections were remedial and that there was no reason why the Court should not exercise the jurisdiction conferred by one or other subsection, in accordance with whichever seems to be more convenient.[6]
[6] Tran v Police [1998] SASC S6891, [15].
In Alikaris,[7] Debelle J considered whether a magistrate had power to revoke a sentence previously ordered by him, and substitute an order that a defendant be convicted without penalty. Debelle J referred to ss 76A and 76B of the Summary Procedure Act 1921. He referred to the decision of Muscat v Magistrates Court,[8] which is authority for the proposition that a magistrate is able to make orders pursuant to both sections 76A and 76B, notwithstanding that he is functus officio. Debelle J said:
When the magistrate made his order he was, effectively, exercise his sentencing discretion afresh and ordering an entirely different penalty. He was reconsidering his later decision. In no sense was he rectifying his earlier orders or correcting an error in those orders. He was making entirely fresh orders. Section 76B did not authorise the later orders. When considering what orders should be made when informed that an offence was committed while the defendant was on parole, it will be necessary for the magistrate to consider such matters as whether the defendant is failing to respond to leniency, the period he has spent in custody, the seriousness of the offence which he committed whilst on parole, and to have regard to the totality principle in fixing a penalty and the new non-parol period. To recite those factors which affect the sentencing discretion is to demonstrate that in no sense is the reconsideration of a penalty upon being informed of those matters a mere exercise of the slip rule.[9]
[7] [2000] SASC 163.
[8] (1997) 66 SASR 367.
[9] [2000] SASC 163, [12].
The power of the Court under s 76A is wider than the power vested in the Court by s 76B. Pursuant to s 76A, the Court can set aside a conviction or order. Section 76B is not so widely expressed. It is applicable to correct an error in a conviction or order. As s 76A is a wider power, there are conditions to be satisfied before it may be exercised. In particular it may only be exercised if an application is made within 14 days of the original order.
In Tran, Perry J held that s 76B could be used to correct orders which had been made by magistrates who had not been informed of the fact that an offence had been committed whilst the defendant was on parole. Whilst I agree with Perry J that s 76A and s 76B is remedial legislation and should receive a liberal construction, I respectfully disagree that s 76B can be used to re-sentence a defendant. I agree with Debelle J that s 76A permits the magistrate to re-call the order and sentence afresh. Section 76B is limited to the correction of technical and clinical errors.
In my view, s 76B cannot be applied in the manner the Magistrate purported to apply it. Even if my view is incorrect, the Magistrate is in error in not having regard to the time spent in custody when setting the non-parole period. She made no adjustment to give effect to the period served in custody, pending sentence.
Re-sentencing
In view of the foregoing, the appeal should be allowed and the sentence imposed by the Magistrate must be set aside and the appellant re-sentenced. I propose to re-sentence the appellant, effective from this date. All relevant information has been provided to me.
By consent, the appellant tendered three letters. The first was a letter written by Mr Michael Clements, who was the employer of the appellant at the time that the offence was committed. Mr Clements states that he is partly to blame for the position that the appellant found himself in on the day that he was apprehended. The appellant was working for Mr Clements, who speaks highly of his work ethic. Mr Clements states that usually he would pick up the appellant, as he knew that he was on parole. He had taken the appellant to his parole officer on several occasions.
On the day in question, Mr Clements was ill and he told the appellant to find his own way to work. He is concerned that it was because of his insistence that the appellant find his own way to work, that the appellant committed the offence out of loyalty to his employer. Mr Clements has indicated that he feels responsible for the appellant being in custody, as the appellant was making supreme efforts to change his life and he was making progress. He has indicated that the appellant’s job will be available to him upon his release.
I received both a handwritten letter and a typewritten letter from the appellant in which he indicates that at the time he was making every effort to change his lifestyle. He had regular employment. He has a fiancé with whom he wants to settle. His mother is ill and his fiancé is looking after her. He wishes to be reunited with her and put his life on track.
The sentence of four months imprisonment for the offence of driving whilst disqualified, given the appellant’s prior record, was in my view merciful. As of today, the appellant will have spent five months in custody from the time of his arrest. I have regard to that period the appellant has spent in custody. The situation demonstrates the problem that arises when a person has spent time in custody which is greater than the sentence which he is required to serve. If I have regard to the time spent in custody, the order should be a conviction without penalty, as he has already served one month more than the sentence originally imposed. If I were to make that order, that would not trigger the requirement to serve the unexpired period of parole. It would be a matter for the Parole Board to determine whether to revoke the appellant’s parole and to determine when he should be released. That was not the intention of the Magistrate, nor is it my intention.
I therefore impose a sentence of one day’s imprisonment in respect of the offence of driving whilst disqualified.
Pursuant to s 75 of the Corrections Act, I have imposed a custodial sentence of one day, the appellant now becomes liable to serve the unexpired period of his parole, being two years, six months and twenty nine days. I am required to set a non-parole period in respect of the total sentence of two years, six months and thirty days.
I have regard to the submissions made by the appellant’s counsel and to the correspondence from the appellant and his employer.
There seems to be some hope that the appellant may have at last realised that offending and breaching his parole will only result in lengthier terms of imprisonment and a life spent in and out of gaol.
At the time of this offence, the appellant was in employment. He had settled down with a partner whom he wishes to marry. He committed the offence in circumstances which have now been explained. Although the offence was deliberate, the appellant was attempting to get to his place of employment.
I consider that it is appropriate to set a non-parole period substantially less than the period he was required to serve, in order to give him one last chance to live a meaningful life. I set a notional non-parole period of six months. However, there is still to be brought to account the five months the appellant has now been in custody, and I therefore reduce the notional non-parole period to one month.
The effect of this judgment is as follows:
Appeal allowed.
1. The sentence of the Magistrate is set aside.
2.The appellant is re-sentenced, as of today, to a term of imprisonment of one day for the offence of driving whilst disqualified.
3.By operation of s 75 of the Corrections Act, the appellant is liable to serve, as of today, the unexpired period of parole of two years, six months and twenty nine days.
4.By operation of s 31 of the Sentencing Act, the sentence of one day’s imprisonment is to be served at the expiration of the period of unexpired parole.
5.As a result, the total period of imprisonment to be served by the appellant is two years, six months and thirty days.
6.Pursuant to s 31(2) of the Sentencing Act, the non-parole period in respect of the total sentence is fixed at one month.
In respect of the offence of driving an unregistered vehicle, there is recorded a conviction without penalty.