Neuhuber v Police - [2011] SASC 241

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
NEUHUBER v POLICE
[2011] SASC 241
Judgment of The Honourable Justice Gray
22 December 2011
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL
CRIMINAL LAW - PROCEDURE - PLEAS - PLEAS IN BAR - PLEA OF AUTREFOIS ACQUIT OR AUTREFOIS CONVICT - WHETHER SUFFICIENT BAR - PROPERTY OFFENCES
Appeal against sentence imposed by Magistrate - application for extension of time within which to appeal against conviction - where defendant sentenced in the Magistrates Court for a number of offences, including unlawful interference with a motor vehicle and theft - where the defendant unsuccessfully applied for release on parole following the completion of the non-parole period imposed by the Magistrate - complained on appeal that the defendant was entitled to be released on parole, and that as a consequence, the sentence imposed was manifestly excessive - further complained that the defendant had been wrongly convicted and sentenced for two offences that arose out of precisely the same facts, and accordingly was exposed to double jeopardy and double punishment.
Held: application for extension of time within which to appeal against conviction, refused - there is no substance to the proposed appeal against conviction - the gist and gravamen of the unlawful interference had no substantial identity to that of the theft offence - it has not been established that any matter relevant to sentencing has been overlooked by the Magistrate - appeal against sentence dismissed.
Bail Act 1985 (SA) s 22; Criminal Law Consolidation Act 1935 (SA) s 86(a), s 134 and s 170; Summary Offences Act 1953 (SA) s 41(1) and s 74A(3)(b)(i); Criminal Law (Sentencing) Act 1988 (SA) s 18A; Correctional Services Act 1982 (SA) s 66, referred to.
Farrelly v Howells (1976) 12 SASR 520; Moreshead v Police [1999] SASC 162; Deas v Police [1998] SASC 7236; R v O’Loughlin; ex parte Ralphs (1971) 1 SASR 219; Wemyss v Hopkins (1875) LR 10 QB 378; Pearce v The Queen (1998) 194 CLR 610; R v Waugh (2005) 93 SASR 274; R v Alashkar; R v Tayar (2007) 17 VR 65, considered.

NEUHUBER v POLICE
[2011] SASC 241
Magistrates Appeal
GRAY J:

This is an appeal against sentence. The defendant and appellant, Natasha Neuhuber, also seeks leave to appeal against conviction. An appeal against conviction has yet to be lodged.
The appeals require, inter alia, consideration of whether the defendant was exposed to double jeopardy and whether the defendant was sentenced on the basis of a misunderstanding with respect to the obligation on the part of the Parole Board to release the defendant on parole at the conclusion of her non-parole period.
Background
The defendant pleaded guilty in the Adelaide Magistrates Court to six offences. The first, of being in possession of a mobile telephone reasonably suspected of having been stolen, was committed on 28 February 2011. The remaining five offences were those of providing false information in an application for a release on bail knowing that information to be false, contrary to section 22 of the Bail Act 1985 (SA); of interfering with a motor vehicle without first obtaining consent of the owner contrary to section 86(a) of the Criminal Law Consolidation Act 1935 (SA); of theft of money, contrary to section 134 of the Criminal Law Consolidation Act; of being in possession of property reasonably suspected of having been stolen, contrary to section 41(1) of the Summary Offences Act 1953 (SA); and finally, of providing false personal details to a police officer, having been reasonably suspected of committing an offence, contrary to section 74A(3)(b)(i) of the Summary Offences Act. These five offences were committed on 1 March 2011.
On 1 April 2011, the Magistrate convicted the defendant of each of the above six offences and proceeded pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA) to impose the one penalty of nine months imprisonment for all offending. The Magistrate made a reduction of two months on account of her pleas of guilty and one month on account of time spent in custody.
On 4 February 2011, the defendant had been sentenced to imprisonment for two months in respect of two offences that occurred on 10 October 2010. Those offences were aggravated serious criminal trespass in an occupied residence[1] and dishonestly taking property without the owner’s consent.[2] The sentence was suspended on the defendant’s entry into a supervised 12 month good behaviour bond. On 1 April 2011, the Magistrate revoked the suspension of this sentence and accordingly the defendant became liable to serve the term of two months imprisonment.
[1] Contrary to section 170 of the Criminal Law Consolidation Act 1935 (SA).
[2] Contrary to section 134 of the Criminal Law Consolidation Act 1935 (SA).
The convictions recorded on 1 April 2011 rendered the defendant liable to serve the balance of an outstanding period of parole; a period of three months and 25 days. This outstanding period of parole related to a sentence imposed on 1 April 2010. On that occasion, the defendant was sentenced by a Magistrate in respect of 38 offences to a total term of imprisonment of 14 months and 25 days. A non-parole period of six months commencing on 1 April 2010 was fixed.
In accordance with the terms of the Correctional Services Act 1982 (SA) and the Sentencing Act, the defendant commenced to serve the unexpired period of parole of three months and 25 days on 1 April 2011. The revoked suspended sentence of two months imprisonment and the further sentence of nine months imprisonment were ordered to be served cumulatively and commencing at the expiration of the unexpired period of parole. As a consequence, the defendant was to serve a total period of imprisonment of 14 months and 25 days. The Magistrate fixed a non-parole period of three months in respect of this total period of imprisonment commencing on 1 April 2011.
The defendant applied for release on parole following the completion of the non-parole period. The Parole Board conducted a hearing, but ultimately decided that as the offences for which the defendant had been imprisoned included “home invasion”, it had a discretion as to whether to release the defendant and decided in the exercise of that discretion not to release her on parole.
The defendant apparently formed an understanding that she was entitled to release on parole following the expiration of the non-parole period and that the Parole Board was obliged to grant her parole by no later than 30 July 2011. The defendant obtained legal advice and her complaints were taken up with the Parole Board by her lawyers. It was asserted that the Parole Board had acted illegally in not granting the defendant parole. Ultimately the defendant was granted bail pending appeal and was released on 26 September 2011.
Supreme Court Proceedings
On 23 September 2011, the defendant lodged an appeal in the Supreme Court against the sentence that had been imposed. As the appeal was more than five months out of time, an extension of time within which to appeal was sought. Three grounds were advanced. It was said that the defendant was entitled to be released on parole, that notwithstanding this entitlement, the Parole Board refused to order her release and that as a consequence, the sentence imposed was manifestly excessive. In the alternative it was said that the defendant would adduce fresh evidence on the appeal about her continuing imprisonment and it was said this circumstance warranted resentencing. Finally, it was contended that the defendant had been wrongly convicted and sentenced for two offences that arose out of precisely the same facts and as such, the defendant was exposed to double jeopardy and double punishment.
On 21 November 2011, the defendant sought leave to appeal against conviction. This application was made by interlocutory application in the sentence appeal proceedings. The application for leave was more than seven months out of time and an extension of time was sought. The complaint advanced was that the defendant had been exposed to double jeopardy. It was claimed that the count of illegally interfering with a motor vehicle and the count of theft arose out of precisely the same facts. This complaint mirrored the third complaint advanced on the sentence appeal.
On 21 November 2011, the defendant commenced judicial review proceedings against the Parole Board of South Australia. These proceedings challenge the lawfulness of the Parole Board’s conduct in refusing to release the defendant on parole. It would appear that one of the complaints being advanced on the sentence appeal was also sought to be advanced by way of the application for judicial review. It was said that the Parole Board was obliged, by the terms of section 66 of the Correctional Services Act, to release the defendant on parole no later than 30 July 2011. In those proceedings, the defendant – the plaintiff in the judicial review proceedings – seeks orders in the nature of certiorari to quash the decisions of the Parole Board made on 7 April 2011 and 30 August 2011. The first decision related to the Parole Board requiring the defendant to submit an application for release on parole. The second was the Board’s decision that the defendant was not suitable for release on parole. In the judicial review proceedings, the defendant also seeks a declaration that the defendant was entitled to release on parole pursuant to section 66(1) of the Correctional Services Act. Underlying the claim for judicial relief, lies the assertion that the Parole Board acted beyond power and illegally.
The defendant on the hearing of the appeal sought an order that the judicial review proceedings be heard at the same time. If such an order were made, it would follow that all proceedings would be adjourned as the defendant to the judicial review proceedings, the Parole Board of South Australia, has not been served. I declined to make the order as I had formed the view that it was important to address the defendant’s appeal and application for leave as soon as practicable. Both were well out of time.
Application for Leave to Appeal against Conviction
It is convenient to first address the argument of double jeopardy. The facts before the Magistrate were those outlined in the police apprehension report dealing with events occurring on 1 March 2011. The driver of a truck was engaged in unloading goods. He left the passenger door unlocked. The driver was moving goods into a market. The defendant was observed by witnesses leaning through the passenger door while standing on the footpath, rummaging in the cabin of the truck. The defendant was pulling items from the cabin. Papers and money were removed. When approached, the defendant closed the passenger door and sought to walk away. Papers and coins fell to the ground in the vicinity of the passenger door of the truck and the defendant picked up a number of the coins.
It was the defendant’s submission on the appeal that two of the offences to which she had pleaded guilty, namely, illegally interfering with the truck and theft of money arose from precisely the same facts.
It is to be observed that the act of entering a vehicle and searching that vehicle and in that process disturbing papers and other possessions has been held to amount to an interference with a vehicle.[3] The acts of removing a cover, pulling down a mirror, undoing and removing a fuel cap of a motorcycle have each been held to amount to interference with a vehicle.[4]
[3] Moreshead v Police [1999] SASC 162.
[4] Deas v Police [1998] SASC 7236.
On the hearing of the appeal, the defendant referred to the decision of Farrelly v Howells.[5]Farrelly was charged with two offences: having stolen petrol from a parked motor vehicle and having unlawfully interfered with the vehicle on the same occasion. Farrelly removed the cap of the petrol tank of the vehicle, syphoned out the petrol and replaced the cap. Farrelly was convicted on his plea to each charge and sentenced for both offences. Wells J reached the conclusion that as the facts relied upon in support of each charge were substantially identical, the conviction for larceny was a bar to a conviction on the charge of unlawful interference with the motor vehicle. In the course of his reasons, Wells J observed:[6]
The gist or gravamen of the larceny was, of course, the taking and removal of the petrol with the necessary fraudulent intent. The gist or gravamen of the unlawful interference was the removal, known to be without the authority of the owner, of the petrol tank cap and the lowering of the level of the petrol. (I take the view that it would be a piece of jurisprudential pedantry to treat the petrol as other than part of the vehicle.) In my judgment, the taking and carrying away was at an end, in the circumstances of this case, when the syphoned petrol was placed in the appellant's empty petrol tank; thereafter he was simply using that which he had stolen. The interference with the vehicle was at an end when the appellant stopped syphoning the petrol into the container used.
…
The question therefore arises, on the facts of this case, whether the Court, after recording the conviction on the larceny charge, and upon learning that precisely the same facts were being relied on in support of each charge and what those facts were, should have cancelled the record of the convictions and put the prosecution to their election.
[5] Farrelly v Howells (1976) 12 SASR 520.
[6] Farrelly v Howells (1976) 12 SASR 520, 524-525.
The decision in Farrelly is distinguishable. Wells J treated the petrol as part of the vehicle. His Honour took the view that the theft was of part of the vehicle and that the act of interference was the taking of that property. Wells J concluded this aspect of this judgment with the following qualification:[7]
In all the circumstances, though with the hesitation that will almost always accompany the resolution of this kind of issue, I have reached the conclusion that conviction of the larceny in this case was a bar to a prosecution for unlawful interference. In my opinion, there is a substantial identity between the gist or gravamen of the larceny and that of the unlawful interference. I wish to emphasise that my conclusion rests upon the facts, circumstances and charges of this particular case. My decision does not purport to go beyond them.
[7] Farrelly v Howells (1976) 12 SASR 520, 525.
In the present proceeding, there can be no suggestion that the defendant was stealing part of the truck. The defendant opened the passenger door, leaned inside the cabin, pulled items from the cabin including coins and papers and then stole some of the coins. The defendant’s conduct interfered with the truck, did so illegally, and without the owner’s consent. Separately the defendant’s conduct involved the theft of money.
Counsel for the police pointed out that Wells J relied on the observations of Bray CJ in O’Loughlin, and in particular the following:[8]
Far more difficult, however, is the position where one of the offences is not completely comprised in the other but there are substantial similarities between them. Such a case was Wemyss v. Hopkins.
The facts of that case are set out in full by Wells J. I agree with him that its importance seems to have been overlooked. There the first conviction was held to be a bar to the second prosecution, though Wemyss was not and could not have been convicted of the second offence on the charge of the first and neither of them was completely comprised in the other. Wemyss could not have been convicted of common assault on the charge of being a driver of a carriage who by negligence or wilful misbehaviour caused harm to the prosecutrix or vice versa. In theory he could have been guilty of assault without driving a carriage at all or he could as a driver have endangered the prosecutrix by negligence without committing any assault. It was not the legal identity, or even the legal similarity, of the offences in the abstract which was significant, but that it was sought to prosecute him twice in connexion with the same set of facts.
[Footnotes omitted.]
[8] R v O’Loughlin; ex parte Ralphs (1971) 1 SASR 219, 224.
It was submitted that the decision of Wemyss,[9] referred to by Bray CJ, was now of doubtful authority. Attention was drawn to the following observations of McHugh, Hayne and Callinan JJ in Pearce:[10]
On closer analysis, therefore, it may be that Wemyss and other cases that are said to support the proposition that a plea in bar is available when a person is charged with different offences arising out of the same set of facts do not do so. Moreover, there are sound reasons to confine the availability of a plea in bar to cases in which the elements of the offences charged are identical or in which all of the elements of one offence are wholly included in the other.
[9] Wemyss v Hopkins (1875) LR 10 QB 378.
[10] Pearce v The Queen (1998) 194 CLR 610, [24]; see also R v Waugh (2005) 93 SASR 274.
In the present proceeding, it is to be observed that the elements of the offences of illegal interference and theft are not identical and the elements of one are not wholly included in the other. It is possible to contemplate circumstances occurring where it may be said that the elements of the two offences do coincide, such as the facts in the matter of Farrelly. However, as Wells J pointed out, it was the finding that the petrol was part of the vehicle that allowed the conclusion that there was a substantial identity between the gist or gravamen of the larceny and of the unlawful interference.
As discussed above, in the present proceeding, the defendant engaged in a course of conduct, separate aspects of which gave rise to the separate offences. The gist and gravamen of the unlawful interference had no substantial identity with that of the theft. In these circumstances, there is no substance to the proposed appeal against conviction.
The Sentence Appeal
Turning to the appeal against sentence, it follows from what I have already observed that insofar as it is suggested that the defendant was exposed to double punishment, that aspect of the appeal has no prospects of success. It remains to consider the other grounds.
The defendant submitted that the Magistrate proceeded to sentence the defendant on the understanding and with the expectation that the Parole Board would be obliged to order her release on parole at the conclusion of the non-parole period, and particularly, no later than 30 days following that period. This submission relied on the defendant’s contention as to the proper construction of section 66 of the Correctional Services Act and the application of that section to the characterisation of the defendant’s offending. It is convenient to set out the text of section 66:
Automatic release on parole for certain prisoners
(1)Subject to subsection (2), the Board must order that a prisoner who is liable to serve a total period of imprisonment of less than five years and for whom a non-parole period has been fixed be released from prison or home detention on parole on a day specified by the Board, being a day—
(a)     where, because the commencement of the non-parole period has been back dated, the non-parole period expires prior to the date on which it is fixed, not later than 30 days after the day on which it is fixed; or
(b)     in any other case, not later than 30 days after the day on which the non-parole period expires.
(2)     Subsection (1) does not apply to—
(a)     a prisoner if any part of the imprisonment for which the prisoner was sentenced is in respect of a sexual offence; or
(ab)   a prisoner if any part of the imprisonment for which the prisoner was sentenced is in respect of an offence of personal violence; or
(ac) a prisoner if any part of the imprisonment for which the prisoner was sentenced is in respect of an offence against section 85 (being an offence consisting of arson) or 85B of the Criminal Law Consolidation Act 1935; or
(b)     a prisoner of a class excluded by the regulations from the application of subsection (1).
(3)     In this section—
offence of personal violence means any of the following offences (including a substantially similar offence against a corresponding previous enactment or the law of another place):
(a) an offence against the person under Part 3 of the Criminal Law Consolidation Act 1935;
(b)     a home invasion;
(c)     an offence of robbery or aggravated robbery;
(d)     a conspiracy to commit, or an attempt to commit, an offence referred to in paragraph (a), (b) or (c);
(e)     an offence that is committed in circumstances in which the offender uses violence or a threat of violence for the purpose of committing the offence, in the course of committing the offence, or for the purpose of escaping from the scene of the offence.
[Emphasis added.]

The defendant submitted that pursuant section 66(1), the Parole Board “must” release the defendant on parole following the serving of a non-parole period. It was said that section 66(2) had no application.
Counsel for the police submitted that there was no basis to conclude that the Magistrate had an understanding or expectation that section 66(1) would apply. It was pointed out that a proper understanding of the sentence imposed by the Magistrate and in particular the offending the subject of the suspended term of imprisonment and the offending giving rise to the obligation of the defendant to serve the unexpired period of parole, gave rise at the very least to a strong case that section 66(2) had application. It was contended that as the Magistrate had the defendant’s antecedents before him, he would be aware that one of the offences that the defendant committed giving rise to the suspended sentence was an offence of serious criminal trespass committed in a place of residence. This was said by counsel for the police to be “home invasion”.
It is to be observed that home invasion is a phrase used in section 66(3). That phrase is not defined in the Correctional Services Act. It is however defined in both the Criminal Law Consolidation Act and in the Sentencing Act as the offence of serious criminal trespass committed in a place of residence.[11] Further, it was pointed out that the balance of the period of non-parole to be served related to a number of offences including the breach of an earlier suspended sentence and also the offence of resist police.
[11] Section 15C of the Criminal Law Consolidation Act 1935 (SA) and section 20A(1) of the Criminal Law Consolidation Act 1988 (SA).
The defendant, as the Magistrate pointed out, has a lengthy criminal record and has been subjected to sentences of imprisonment for dishonest conduct. Her offending as an adult appears to have commenced in 1990 and continued over the next two decades.
In my view, the submission of the police should be accepted. Given the nature of the offences leading to the term of imprisonment faced by the defendant on 1 April 2011, there could be no expectation that she would be entitled to automatic parole or that any discretion that should be exercised would necessarily be exercised in her favour.
The defendant sought to introduce fresh evidence setting out the defendant’s difficulties with the Parole Board alleging illegal and inappropriate conduct on the part of the Parole Board. Counsel for the police had no objection to the Court being aware of the relevant history, but objected to its receipt as fresh evidence. It was contended that to succeed on the sentence appeal it was necessary to show that the Magistrate’s discretion in some way miscarried. It was argued that there was no basis to assume that the Magistrate had misunderstood what may happen to the defendant following her serving the non-parole period of three months.
Counsel for the defendant referred to authorities suggesting that regard could be had by an appeal court to a refusal to grant parole as fresh evidence relevant to the court’s consideration of a sentence appeal. Counsel referred in particular to a Victorian decision of R v Alashkar; R v Tayar,[12] however that decision does not assist. Under the Victorian legislation, the issue of parole was always a matter of discretion.
[12] R v Alashkar; R v Tayar (2007) 17 VR 65.
I do not consider that the defendant has established that there is a relevant matter to sentencing that was overlooked by the Magistrate. Having regard to the circumstances of the offending and the defendant’s appalling record, the Magistrate on any view imposed a very merciful sentence. There was no complaint about the sentence until the defendant’s concerns about release on Parole arose. To my mind, that is the defendant’s real complaint. Judicial review proceedings have been available to address that complaint. Those proceedings were not issued until 21 November 2011. The defendant’s complaints about the Parole Board can be addressed through those proceedings. If there is any substance to those complaints the Court can consider the appropriate relief.
Conclusion
Having regard to the foregoing, I refuse an extension of time to appeal against conviction. I consider the application has no merit. I dismiss the appeal against sentence.