Musico v Police

MUSICO v POLICE
[2003] SASC 26
Magistrates Appeal: Criminal

MULLIGHAN J The appellant was charged by a police officer with assault occasioning actual bodily harm. He denied the charge and, after a trial before a learned Magistrate, was found guilty, convicted and sentenced to imprisonment for 16 months. He appeals against both the conviction and the sentence.
It was alleged that the offence occurred on 2^nd April 2001 at the Mount Gambier Prison when the appellant assaulted Mr Savutakis. Both men are long term prisoners at the gaol. The appellant is serving a life sentence for the murder of the parents of his wife. He has been in prison since 7^th September 1989 when he was arrested.
The offence is alleged to have occurred in the kitchen at the prison at about 6.00 pm. Mr Savutakis was working in the kitchen alone. According to him, the appellant entered the kitchen and attacked him by hitting him several times on the head and body with a rolling pin. He fell to the ground and the appellant continued to hit him on the legs with the rolling pin and also a heavy steel dough mixer hook. It was alleged that in consequence of the attack he suffered a gash on the back of his head which required sutures, an injury to his knee and bruises on his arms, legs and ankles. He claimed that the attack was unprovoked. According to the appellant, Mr Savutakis attacked him as he entered the kitchen. He used the rolling pin to fend him off and he did not cause any injuries to him.
The learned Magistrate accepted that it was not in dispute that for about two years before the incident the two men had been friends. They had worked together in the kitchen and for a time had lived together in the cottage area of the prison which provided better privileges for well-behaved prisoners. Their friendship cooled in the few months leading up to the incident and Mr Savutakis became critical of the appellant’s work in the kitchen. On 2^nd April 2001 the appellant was relieved of his position in the kitchen. In consequence he lost his privileged accommodation in the cottages and had to move back into the general cell area of the prison. Mr Savutakis suggested that the appellant was resentful and when the appellant struck him he said words to the effect, “You pinched my job again”.
The appellant acknowledged that for several weeks preceding the incident he felt that the kitchen supervisor was not happy with his work and other kitchen workers, including Mr Savutakis, did not want him in the kitchen. Although the appellant acknowledged that upon leaving his position in the kitchen he had to move back to a cell which was not clean, he denied that he held a grudge against, or resented, Mr Savutakis.
Immediately after the incident three correctional officers went to the kitchen, Messrs Hill, Bridges and Diedrich. Mr Hill and Mr Bridges gave evidence at the trial but not Mr Diedrich. The evidence does not make it entirely clear who went to the kitchen with whom but it seems likely that Mr Bridges arrived first and Mr Diedrich and Mr Hill arrived a little later.
According to Mr Bridges, he saw that Mr Savutakis was bleeding from his head. The other officers attended to him. Mr Bridges asked “What happened?” and Mr Savutakis said something to the effect that “Tony [the appellant] hit me”. He could not remember the exact words used by Mr Savutakis. He said that Mr Savutakis appeared to be dazed and in a great deal of pain. The kitchen was in disarray. He saw a broken rolling pin and a large dough hook at the back of the kitchen on the floor. Mr Bridges said that it took him about 20 seconds to a minute to reach the kitchen when responding to a call that an incident had occurred in the kitchen. When he arrived he did not see the appellant.
Mr Bridges and another corrections officer, Mr Wilson, went to the cottage occupied by the appellant. It appears from his evidence that Mr Hill accompanied them. Mr Bridges saw the appellant whom, he said, appeared agitated. He was told that it was alleged that he had assaulted Mr Savutakis in the kitchen, which he denied. The appellant asked who had said that and he also said that he had not done anything and had not been in the kitchen. The appellant was then placed in a management cell. Mr Bridges later took possession of a T‑shirt from the appellant’s room which was torn and damp. This article of clothing is also referred to as a jumper. Subsequently he took possession of the rolling pin and the dough hook. In cross-examination a report made by Mr Bridges about half an hour to an hour after dealing with the incident was put to him. It contains no reference to the appellant saying that he had not been in the kitchen. There is no mention in his statement to police that the appellant denied having been in the kitchen. The learned Magistrate did not deal with this matter in his reasons for judgment. Having considered the evidence, I conclude that it was not established that the appellant told Mr Bridges that he was not in the kitchen.
Mr Hill was the only other corrections officer to give evidence. He went to the kitchen with Mr Diedrich in response to a call over the radio. He told the learned Magistrate that he saw Mr Savutakis leaning over the kitchen sink and that he was bleeding from his head. He said that he arrived at the kitchen about 30 seconds to a minute after hearing the call. He had the following conversation with Mr Savutakis:
“Q       What has happened.
A       He tried to kill me [or words to that effect].
Q      Who.
A       Tony Musico.”
Mr Hill said that Mr Savutakis was upset at the time. He was unsteady on his feet. Mr Hill saw a rolling pin, without handles, and the dough hook on the floor. Arrangements were then made for medical treatment for Mr Savutakis. Mr Hill said that when he went to the management cell with Mr Bridges, he observed that the appellant appeared upset.
Mr Savutakis told the learned Magistrate that the appellant entered the kitchen whilst he was cleaning the floor. He said that the appellant picked up the rolling pin and hit Mr Savutakis from behind on the back of the head and said, “You pinched my job”. According to Mr Savutakis the appellant hit him on the head four or five times. He then hit Mr Savutakis another five or six times on the arms with the rolling pin and then hit him on the legs and ankles. Mr Savutakis fell to the floor. He grabbed the rolling pin and the handle broke. The appellant hit him again, threw the rolling pin away and picked up the dough hook and hit him on the knee. He then grabbed the appellant by his shirt and it ripped. He threw water on the appellant who left the kitchen.
Mr Savutakis then used the telephone in the kitchen and contacted control at the prison. He gave evidence of what he said to the woman who answered the telephone without objection. He said that he had been attacked and that the appellant attacked him. He also said, “He nearly killed me. I need help”.
Photographs were taken of Mr Savutakis soon after the incident and were admitted into evidence. They show minor injuries to the both sides of the head, both arms and upper legs and left instep. Some of the photographs also show a laceration to the back of the head. A statement of Dr Randiki, a medical practitioner at Mount Gambier, who saw Mr Savutakis soon after the incident, was also admitted into evidence. He stated that the lacerations to the back of the head was four centimetres long and required five to six staples. Dr Randiki also noticed swelling and slight bruising to the right thigh and the left lower limb. He did not give evidence and so there was no evidence as to whether he saw any other injuries. No other injuries are noted in the hospital records.
A statement of Senior Constable Mulder was also admitted into evidence. He states that he spoke to the appellant at the Mount Gambier Prison on 5^th April 2001 in the presence of a corrections officer. He told him of the purpose of the interview, namely that it was alleged that he assaulted Mr Savutakis and cautioned him. The appellant did not respond. Constable Mulder then put to the appellant the allegations made against him and the appellant did not respond to anything said to him.
The appellant gave evidence. He told the learned Magistrate that he had worked in the kitchen for about two years and for most of that time had been the head cook which was a responsible position and involved the supervision of other prisoners. He and Mr Savutakis became friends and eventually he also worked in the kitchen. The appellant said that he worked in the “Lifeline” system in the prison which enables prisoners with problems to obtain assistance from other prisoners. In that context he provided assistance to prisoners, including Mr Savutakis. I gained the impression from his evidence that he was like a mentor to Mr Savutakis. The two men shared a cottage at the prison from October 2000 to March 2001.
According to the appellant, Mr Savutakis became too demanding of his time and he tried to distance himself from him. During the week before the incident, which is the subject of the charge, the appellant said the friendship was breaking down. Mr Savutakis would not accept that the appellant did not want to have any more to do with him. He had been telling the appellant what to do and was critical of his work. On 2^nd April 2001 the appellant was dismissed from the kitchen by the catering manager. A consequence was that he could no longer live in a cottage and had to return to live in a cell. He tried to delay the move for a day as, he said, the cell was filthy. He needed a couple of boxes for his personal belongings and went to the rear of the kitchen to obtain them from the rubbish trailer. He went into the kitchen to go to a storeroom to get a box. Mr Savutakis was in the kitchen and he grabbed hold of the appellant by his jumper. He tried to force him away and they fell to the floor.
The appellant told the learned Magistrate that Mr Savutakis grabbed hold of the dough hook while the appellant was still on the ground and tried unsuccessfully to hit him with it. They stood up. Mr Savutakis pushed him and the appellant had his back against the door of a freezer. He picked up the rolling pin from a shelf. He poked Mr Savutakis with it and swung it at his legs. He said he was trying to get Mr Savutakis to keep his distance and walk away. He connected with his legs on a few occasions. He acknowledged that he was wearing the upper garment which was seized by Mr Bridges. He described it as a jumper. The appellant denied that he had a grudge against Mr Savutakis.
The learned Magistrate found Mr Savutakis to be a credible witness and said that he found that his evidence had a ring of truth about it. He went on to say:
“This was reinforced by the evidence of officers Hill and Bridges and the injuries depicted in the photographs. The injuries in the photographs were consistent with Savutakis’s description of the blows struck by the defendant and totally inconsistent with the defendant’s version of events. The defendant also denied that he was splashed with water by Savutakis, yet the jumper found by Hill and Bridges in his cottage shortly after the incident had wet patches on it consistent with Savutakis’s account. There is no way that the jumper could have got wet when, in accordance with the defendant’s version, both fell to the ground in the ensuing scuffle because, on the defendant’s evidence, he fell on top of Savutakis and did not at any stage come in contact with the wet floor.
The defendant also said that he did not walk into the kitchen carrying a cardboard box. He said that he was moving towards the storeroom in search of a box. The evidence of the video recording of the kitchen area, taken shortly after the incident by Bridges, clearly showed a cardboard box on the bench as described by Savutakis. Savutakis, in his evidence, said that he saw the defendant come into the kitchen carrying a small cardboard box.
On the totality of the evidence I am satisfied that the defendant attacked Savutakis with the rolling pin and the steel mixer as alleged and caused the injuries to Savutakis’s head, arms and legs as depicted in the photos and as described by Savutakis. I believe Savutakis is still suffering the effects of those injuries and will continue to do so for some time in the future. I find the defendant guilty as charged.”
The appellant was convicted and the sentence was imposed. He was, and is, serving a sentence of imprisonment for life having been found guilty of two counts of murder committed on 7^th September 1989. At the time of that sentence, a non-parole period of 24 years was fixed to commence, presumably, from that date when he was taken into custody. The learned Magistrate ordered that the sentence of imprisonment be served cumulatively upon the life sentence and ordered that the non-parole period be extended by nine months.
The first ground of appeal against the conviction is that the learned Magistrate erred in admitting hearsay evidence of witnesses Mr Bridges and Mr Hill as to conversations they had with Mr Savutakis. These are the conversations to which I have referred. During the course of argument, Mr Boucaut, who appeared for the appellant at the hearing of the appeal, but not at the trial, made the same complaint about the evidence of Mr Savutakis as to what he said when he rang the control room.
There was no objection to any of this evidence at the trial and defence counsel at the trial cross-examined witnesses about aspects of it. Nevertheless, I do not think it was admissible. No issue had arisen about whether Mr Savutakis had made prior statements which were inconsistent with his evidence or that any part of his evidence was a recent invention. There was no other basis for admissibility. However, I do not think the reception of the evidence compromised the trial. The evidence should not have been led but there was no objection. There was no dispute that the appellant did hit Mr Savutakis. The only issue was the extent of the violence and whether the appellant was acting in self defence. The learned Magistrate did not refer to this evidence in his reasons for judgment.
The second ground of appeal is that the learned Magistrate erred in finding that the evidence of Mr Savutakis was “reinforced by the evidence of the officers Hill and Bridges”. This ground must be considered along with the first ground. The learned Magistrate did not say what part of the evidence of Mr Hill and Mr Bridges reinforced the evidence of Mr Savutakis but they both gave evidence which did support his evidence. As has been mentioned, they saw him in the kitchen. They saw that he was bleeding profusely from a wound to the head and that he had injuries. They saw the broken rolling pin and the dough hook on the floor. They collected the upper garment from the appellant which was wet and torn. Mr Savutakis said that he had thrown water at the appellant. In those respects the evidence of Mr Savutakis was supported by the evidence of the corrections officers. There is no reason to suppose that the learned Magistrate was referring to the evidence of the corrections officers as to the statements made by Mr Savutakis to them and to the officer in the control room as the evidence which reinforced Mr Savutakis’s evidence.
Both the first and second grounds of appeal are rejected.
The third ground of appeal is that the learned Magistrate erred in asking or permitting questions of the appellant as to why he had not offered a version of events of the incident to police. Mr Boucaut, in submissions, argued that the learned Magistrate also erred in asking questions of the appellant as to why he had not given information to the corrections officers when they spoke to him after the incident involving Mr Savutakis. The appellant had said in evidence that he believed that he would have had a scratch mark behind his neck as a result of the incident. Mr Bridges said in evidence that when he strip searched the appellant after the incident he did not see any marks or injuries on him and he did not believe that he asked him if he had any injuries. The following exchange between the learned Magistrate and the appellant occurred:
“QDid you tell staff about that.
ANo, because that is why they approached me and the staff and they said nothing.
QObviously from what I’ve seen, they put the allegation to you that you had assaulted Mr Savutakis in the manner said. Didn’t you try to offer some information and say, ‘Look not me. I’ve got scratched. It was him that was pulling me and I was defending myself’.
ANo. When the staff approached me, was a little bit different from what they came across in court because Mr Bridges and Mr Wilson came to the door and knocked and say, ‘Open up’ and I say, ‘Yes’ and Mr Bridges said, ‘You come with us please’. I said, ‘Where are we going’? They said, ‘We are taking you to management’. I said, ‘Why?’ He replied, ‘You go where I say you go’. I said, ‘Well let’s go. We’ll talk on the way’.
QBut eventually you were told what the reason was that you were taken to management.
AYes.
QDidn’t you say to them, ‘Hey, I’ve got scratched at the back of my neck’.
ANo. When you’re in gaol and things happen, you don’t want to go around to say much. I was prepared to keep the secret if officers call or call me up and say, ‘What happened to you and Peter?’ I would be happy to explain, but that question was never put to me as procedure, so they done the procedure. I keep my mouth shut and let them to do what they want to do.”
The police prosecutor then asked whether the appellant had an opportunity to tell his side of the story to the police officers. The appellant’s counsel at the trial objected but it appears from the transcript that the evidence was allowed. He said that he did not and said:
“A The police officer came to see me in the gaol, yes.
Q But you didn’t have an opportunity to tell your side of the story.
AWhen they walk in the room, the police officer is standing there. He stated his name to me and he says, ‘I am here to ask you a few questions about an assault. I am going to ask you a few questions and I am going to ask you your name.’ I replied with my name and he said, ‘Shut up’. He put his hand up to shut up, so I did. I say, I say nothing.”
The Magistrate then took up the questioning again:
“QBut the allegations were put to you about the assault etc and as you said here today, you had scratches on your neck which would have corroborated and proved your side of story. Why didn’t you show them to the police officers, to other people and say, ‘I’ve received scratches to the back of my neck’.
AThe way it was approached to me, I didn’t have an opportunity in the gaol. Department of Correctional Services - when these things occur to people they are separated and the two people are secured in cell block and are asked, ‘What happen between you?’ You say your side, and who is in charge take their statements. What happens afterwards, both people have an opportunity to say their bit. Two sides have equal opportunity to press charges with the police and this didn’t occur when this happened. In my opinion and in my belief, I know the system was completely wrong.
QThis thing of scratches on your neck is something of recent invention, isn’t it.
ANo, it not. It is common sense to say that if pulled by my jumper, it is common sense I would have scratches in your back.
QYou don’t know whether there were scratches there, but you are just assuming there would have been the scratches.
AOf course there would have been.”
No adverse criticism may be drawn because the appellant exercised his right not to answer questions asked by Constable Mulder: Petty v The Queen; Maiden v The Queen (1991) 173 CLR 95 and The Queen v Ryman (1991) 162 LSJS 7. The questions asked by the prosecutor were objectionable and should not have been allowed. The questions asked by the learned Magistrate as to why the appellant did not make explanations to Constable Mulder were also objectionable and should not have been asked. The last three questions were also impermissible because they were in the nature of cross-examination. If those questions were to be asked, it was for the prosecution to ask them: Newman v Byrne [1969] SASR 350.

I have been concerned about this matter. It is necessary to decide if these errors compromised the trial so that the conviction should not stand. In Newman v Byrne Mitchell J declined to interfere with a conviction because she was not satisfied that there had been a miscarriage of justice. In Pope v Ewendt (1977) 17 SASR 45, Bray CJ noted that there was no specific power in the appeal provisions of the former Justices Act like in the old Rules of the Supreme Court, Order 58 Rule 26, or in the proviso to s 353(1) of the Criminal Law Consolidation Act 1935 empowering the Court to dismiss an appeal even if the point raised is decided in favour of the appellant, if it thinks that no substantial miscarriage of justice has occurred. However, he went on to say that an appeal under the Justices Act would be dismissed even if evidence was wrongly admitted, if that evidence could have had no effect upon the result. However, it had to be clear that the same result must or would have been achieved if the wrongly admitted evidence had been excluded. White J held in O’Leary v Daire (1984) 13 ACrimR 404 at 416 that an appeal may be dismissed if the errors at the trial could have had no effect upon the result. In Gazepis v Police (1997) 70 SASR 121, Doyle CJ, with whom Lander and Bleby JJ agreed, expressed the same view but refrained from expressing any opinion as to whether the appellant had to demonstrate a miscarriage or the respondent had to show that none had occurred.
Having carefully considered the evidence, I have reached the conclusion that these errors could not have affected the result of the trial. The appellant answered the questions asked of him relevantly and appropriately and gave explanations for not giving his account of the incident to the corrections officers and Constable Mulder. It is not as if some prejudicial but inadmissible evidence had been admitted against him. It is simply that he was, in effect, being asked why he did not give an explanation earlier. The real question is whether his answers to these questions could have contributed to the adverse finding of the learned Magistrate as to his credit. I have reached the conclusion that these answers would not have had that consequence. The learned Magistrate saw and heard the appellant give evidence. There can be no reason to suppose that he misused his advantage of having seen and heard all of the witnesses. He was entitled to take the view that there was support for the evidence of Mr Savutakis and to prefer his evidence to that of the appellant regardless of the impugned questions and answers.
I reject this ground of appeal. Consequently the appeal against conviction must be dismissed.
The appeal against sentence
The remarks on sentencing of the learned Magistrate are not available, however it is conceded by the respondent that there has been an error in the sentencing process. The learned Magistrate ordered that the sentence of imprisonment for 16 months be served cumulatively upon the sentence of imprisonment for life and he purported to extend the non-parole period by a period of nine months.
It was an error to order that the sentence be served cumulatively upon the sentence of life imprisonment for the reasons set out in R v Byron; R v Earley (1992) 59 SASR 132. As King CJ said at 133-134:
“A sentence of imprisonment for life is a sentence of imprisonment for the term of the prisoner’s natural life. It therefore expires at death. The notion of any sentence commencing at the expiration of that sentence is, therefore, without meaning.
The mechanism, provided in the Criminal Law (Sentencing) Act 1988, for imposing punishment for further crimes committed by persons who are undergoing a life sentence is the extension of the non-parole period which exists with respect to the life sentence.”
The order that the sentence be served cumulatively upon the life sentence must be set aside.
The non-parole period fixed by this Court with respect to the sentence of life imprisonment was 24 years, which was adjusted to 15 years, eight months and 24 days in consequence of s 20 of the Statutes Amendment (Truth in Sentencing) Act 1994. The appellant was due to be released on parole on 30^th May 2005 subject to continued good behaviour. S 32(1) of the Criminal Law (Sentencing) Act 1988 provides that where a court, on convicting a person of an offence, sentences the person to imprisonment, it must, if the person is subject to an existing non-parole period, review that period and extend it by such period as the court thinks fit. S 32(5)(b) of that Act provides that where a person who is subject to a sentence of life imprisonment is further sentenced to imprisonment by the Magistrates Court or the Youth Court, the question of whether a non-parole period should be fixed or extended must be referred to the court by which the sentence of life imprisonment was imposed. This provision was not brought to the attention of the learned Magistrate. The purported extension of the non-parole period must also be set aside.
There are other grounds of appeal against the sentence.
The first of those grounds is that the sentence is manifestly excessive. The second of them is that the apparent loss of the remarks of the learned Magistrate on sentencing renders it unclear as to whether he had proper regard to the relevant sentencing principles and therefore the sentencing discretion should be exercised afresh.
The appellant is aged 32 years. He was born in Italy and completed the equivalent of third year of high school. He arrived in Australia for a holiday in February 1989 and in June of that year he married an Italian Australian girl. On 7^th September 1989 he was arrested for the murders and has been in custody ever since.
When he was arrested the appellant did not speak English. He has taught himself to read, speak and write English and now does so fluently. Apart from the incident involving Mr Savutakis, the appellant’s behaviour in prison has been exemplary. He has devoted considerable time to self-improvement. Testimonials and certificates were placed before the learned Magistrate. The appellant participated in the Lifeline Scheme as a mentor and counsellor for other prisoners. The Director of the Centre wrote that his commitment has been excellent. He completed studies in communication skills, self awareness, counselling techniques and specific focus modules on suicide, grief, mental illness, violence and relationships. The letter from the Director regarding these matters was before the learned Magistrate at the trial no doubt as evidence of good character. A corrections officer also provided a testimonial in which it is stated that the appellant has a positive outlook and has attained certificates in horticulture, basic computer skills, peer support and prisoner listener, education and in basic cookery. He attained good results with two prisoners when acting as a mentor. He is polite and courteous to staff and there are no negative entries on his conduct sheet when at the Mount Gambier Prison. He has experienced escorted periods out of the prison and behaved in an exemplary manner. He is also a qualified fork lift operator.
There are other testimonials from corrections officers who speak highly of him. He assists prison staff as well as prisoners and is regarded as trustworthy with personal discipline. He performed his duties as head cook at the Mount Gambier Prison effectively. He is regarded as a sincere, courteous and genuine man.
This material indicates, it is fair to say, that the appellant is a remarkable man. It must have been difficult for him when he began to serve his sentence as he could not speak English. However, he has undertaken an extraordinary amount of personal development and adapted to prison life in a most positive manner.
After the incident involving Mr Savutakis, the appellant was moved to the Port Lincoln Prison where he has since remained. I accept the contention that this move is, in itself, a substantial punishment as he has lost all of the advantages which he developed at the Mount Gambier Prison.
It is the appellant’s wish that upon his eventual release from prison on parole he may return to Italy and see his elderly mother before she dies. I do not know what matters the learned Magistrate took into account when imposing sentence, but matters of considerable importance are the development and good behaviour of the appellant in prison.
I have briefly mentioned the evidence of the appellant at the trial as to the nature of his relationship with Mr Savutakis and the reason for its deterioration. I did not see the witnesses or hear their evidence, but support for the appellant’s evidence about that matter is to be found in the testimonials to which I have referred. His generosity and assistance to other prisoners is well established by that material and it seems reasonably possible that he did withdraw from Mr Savutakis for the reasons which he gave. I think an appropriate basis upon which to sentence the appellant, based upon the evidence and the findings made by the learned Magistrate, is that the appellant blamed Mr Savutakis for the loss of his work as the head cook and his occupation of a cottage. He reacted by assaulting him by hitting him over the head with the rolling pin and causing the laceration. It seems unlikely that the injury to the head was caused by the dough hook because photographs of that hook indicate that it is a heavy object and if used to attack Mr Savutakis would have caused a more serious injury than the laceration. It is reasonably possible that the appellant acted out of frustration and, perhaps, resentment.
At all events, it is an isolated incident in a long course of exemplary conduct in prison and is out of character. Given the background of the appellant which I have mentioned, I think some leniency should have been extended to him. I realise that offences committed in prison must be punished adequately in order to enhance a safe environment for corrections officers and prisoners and that general and personal deterrence must be significant factors in the sentencing process: see R v Byron; R v Earley. However, that is not to say that due regard must not be given to frustration of the offender of the nature experienced by the appellant. Furthermore, I think that there are real prospects of the rehabilitation of the appellant if he continues his past good conduct in prison and is prepared appropriately for his release from prison. This is an unusual case because of the circumstances of the appellant.
In all of the circumstances, I think the sentence of imprisonment for 16 months is manifestly excessive. A sentence of imprisonment for nine months is appropriate.
It is unnecessary to consider the second ground of appeal. I have had access to the transcript of the evidence at the trial and I have had the benefit of submissions from Mr Boucaut and Mr Camilos. As I am satisfied that the sentence of imprisonment is manifestly excessive, I must exercise the sentencing discretion afresh. The unavailability of a transcript of the remarks on penalty of the learned Magistrate is therefore of no significance.
I dismiss the appeal against conviction. I allow the appeal against sentence. I quash the sentence imposed by the learned Magistrate and I sentence the appellant to imprisonment for nine months. Whether the existing non-parole period should be extended must be considered by this Court exercising its criminal jurisdiction. I was asked to follow the course adopted by Prior J in O’Neil v South Australian Police (unreported, S5636, 15^th May 1996). In that case a Magistrate purported to extend a non-parole period fixed with respect to a sentence of life imprisonment upon the imposition of a sentence of imprisonment for an offence committed in prison. Having set aside the order extending the non-parole period, Prior J proceeded to exercise the jurisdiction of the court which had imposed the non-parole period and extended it by 10 months. I decline to follow that course. In my view, extension of the non-parole period must be considered by this Court in the exercise of its criminal jurisdiction. To do so in this present appeal would be to act upon the application of the respondent, namely the Police. If an application is to be made, it must be made by the Director of Public Prosecutions who must decide whether the circumstances warrant such an application. That decision cannot be made by the Police.

[2003] SASC 26

7 February 2003