Police v Alikaris

[2000] SASC 163

POLICE v ALIKARIS
[2000] SASC 163

Magistrates Appeal: Criminal

1. DEBELLE J. (ex tempore)          This is a prosecution appeal against an order made by a magistrate revoking a sentence previously ordered by him and substituting an order that the respondent be convicted without penalty.

2. On 1 November 1999 the respondent pleaded guilty in the Magistrates Court at Port Augusta to two offences committed on 27 September 1999 at Port Augusta. The first offence was that he had threatened to cause harm to a woman, who I will call “M”, contrary to s 19(2) of the Criminal Law Consolidation Act 1935. The second was refusing without reasonable excuse to give his full name to police officers when required to do so contrary to s 74A of the Summary Offences Act 1953.

3. At the time of the offence, the respondent had had a relationship with M for about 12 months. Between 3.00 pm and a little after midnight on 27 September 1999, the respondent had telephoned M on more than 90 occasions.  The calls were at the rate of more than one per minute between 11.14 pm on 27 September and 12.40 am on 28 September.  The respondent and M had had an argument at M’s residence earlier in the day and the respondent had produced a kitchen knife from his person and cut the inside of his left elbow before leaving the premises.  In one of his many calls, the respondent had said that he was “coming around to get the fence or the money and stab you”.  Because the respondent had demonstrated that he was prepared to use a knife to inflict physical injury, M was in grave fear for her safety.

4. At about 11.30 pm on 27 September police officers had gone to the respondent’s flat to investigate the offence.  The respondent had answered the door but had slammed it in the face of the police officers.  Police officers later forcibly gained entry to the flat and the respondent refused to give his full name.

5. The respondent was arrested. He remained in custody until he appeared before the magistrate on 1 November 1999. Bail had earlier been refused. After the respondent’s plea of guilty the magistrate convicted him on both offences and, pursuant to s 18A of the Criminal Law (Sentencing) Act 1988, he imposed one sentence in relation to both offences. The magistrate sentenced the respondent to a period of imprisonment for 36 days, backdated to 27 September. He also imposed pecuniary penalties totalling $164. The sentence of 36 days was equivalent to the period the respondent had spent in custody.

6. The respondent was thereupon released from the Port Augusta Gaol. That did not end the matter because the offences on 27 September had been committed while the respondent was on parole. On 14 December 1998 he had been convicted on three counts of breaking and entering a building and committing offences therein. He was sentenced to 20 months imprisonment with a non-parole period of nine months. On 7 September 1999 the respondent had been released on parole, having served the whole of the non-parole period. Because the respondent had committed these offences whilst on parole and had been sentenced to a period of imprisonment, his parole was immediately cancelled: s 75(1) of the Correctional Services Act 1982. It was, therefore, necessary for the magistrate to make the order of imprisonment cumulative upon the period of parole and then fix a new non-parole period: see s 31(2) and s 32 of the Criminal Law (Sentencing) Act.  However, the fact that the respondent was on parole was not drawn to the attention of the magistrate.  For its part, the Parole Board was not aware of the sentence and the respondent was thereby released from gaol.

7. After learning of the sentence of imprisonment, the Parole Board, on 9 December 1999, issued a warrant for the arrest of the respondent.  He was arrested on 3 January 2000 and was imprisoned.  On 4 April 2000 the matter was called on at the respondent’s request.  He then had legal representation.  The Police Prosecution Department had not been informed of the hearing which proceeded before the same magistrate in the absence of any representative of the prosecution.  The magistrate then purported to make orders pursuant to s 76B of the Summary Procedure Act 1921, revoking the sentence of imprisonment on 1 November 1999 and sentencing the respondent afresh by ordering that he be convicted without penalty.  The magistrate did not revoke the pecuniary penalties.  The revocation of the order of imprisonment had the consequence that the respondent’s parole was not revoked.  The respondent was thereupon released from custody.

8. The complainant appeals against the orders on the ground that s 76B of the Summary Procedure Act does not invest the magistrate with the power he purported to exercise.

9. The magistrate has volunteered a report concerning the matter.  In that report he says that when the matter came before him on 1 November 1999 he was told that the respondent had been reconciled with M and that she was in court with young children of their relationship.  He decided that the respondent’s previous criminal record required that a period of imprisonment be ordered and he thus did not accede to the submissions then made on behalf of the respondent that he be convicted without penalty.  However, he backdated the period of imprisonment to equate with the period spent in custody realising that the penalty was “on the light side”.  He was not then informed that the respondent was on parole at the time he committed these offences.  He had called the matter on again in response to a request from the Correctional Services Department to have the matter relisted to correct the orders he had made.  He decided to convict without penalty.

10. Once the magistrate had made the orders on 1 November 1999 and had endorsed the back of the complaint with a minute of the conviction, he was functus officio and he could not, without proper authority, amend the orders he had made: Muscat v Magistrates Court (1996) 66 SASR 367 at 378. The only powers the magistrate could exercise were those prescribed by s 76A and 76B of the Summary Procedure Act which provide:

    “       76A  (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;

    (b)     that the conviction or order was made in error; or

    (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.

    76B  The Court may, on its own initiative or on the application of any party, correct an error in a conviction or order.”

A magistrate is able to make orders pursuant to both provisions, notwithstanding that he is functus officio: Muscat v Magistrates Court (supra) at 378 – 379.

1. Section 76B invests the Magistrates Courts with a kind of slip rule.  It is plainly intended to promote the effective and convenient administration of justice.  Superior courts of record, such as the Supreme Court, have always possessed an inherent power to amend errors of a technical nature made in a conviction, judgment, or order of the court, notwithstanding that the court is functus officio: see Jovanovic v R (1999) 165 ALR 6 at 10. Section 76B is intended to provide a like power but the power is limited to correcting an error in a conviction or order. Like the slip rule, the power may only be exercised to correct an error of a clerical or technical nature where the orders made by the magistrate, be they orders relating to the conviction or the sentence, do not reflect the intention of the magistrate. The limits of the slip rule were identified in R v Cripps; (ex parte) Muldoon [1984] 1 QB 686 at 695 in these terms:

   “It is surprisingly wide in its scope.  Its primary purpose is akin to rectification, namely, to allow the court to amend a formal order which by accident or error does not reflect the actual decision of the judge ...  But it also authorises the court to make an order which it failed to make as a result of the accidental omission of counsel to ask for it ...  It even authorises the court to vary an order which accurately reflects the oral decision of the court, if it is clear that the court inadvertently failed to express the decision which it intended ...  However, it cannot be over-emphasised that the slip rule power can never entitle the trial judge or a court to reconsider a final and regular decision once it has been perfected ...”

Those observations were quoted with approval in Jovanovic (at 11).

1. When the magistrate made his order he was, effectively, exercising 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 already 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-parole 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.

2. This construction of s 76B is confirmed when it is compared with s 76A which gives the Magistrates Court power to set aside a conviction or order.  That power is plainly wider than the power vested in the court by s 76B in that it enables a conviction or order to be set aside.  Section 76B is not so widely expressed.  It is simply 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 within 14 days of the original order.

3. In Tran v Police (unreported, 2 October 1998, Judgment No. S6891), 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.  While I agree with His Honour that s 76A and s 76B are remedial legislation and should receive a liberal construction, I respectfully disagree that s 76B can be used in that way.  In my view, when magistrates seek to correct orders because they are later informed that the defendant has committed an offence whilst on parole, the procedure to adopt is that prescribed by s 76A.  If the period of 14 days has expired the matter can then only be corrected on appeal.

4. There is a further defect in the orders made on 4 April.  They were made in the absence of any representative of the prosecution.  The rules of procedural fairness required that notice be given to the prosecution of the hearing and the prosecution be given an opportunity of being heard.  As the orders were made in breach of these rules, they are a nullity on that ground also and liable to be set aside.

5. The appellant also complains that the order made on 4 April 2000 convicting the respondent without penalty was a manifestly inadequate sentence.  There is considerable force in the submission.  The maximum penalty for threatening harm is five years imprisonment.  The threat to stab M caused her to fear for her safety, particularly as it was made in a barrage of irrational telephone calls late at night.  Later, the respondent openly defied police when they sought to speak to him.  The respondent had a poor record of offending.  The only factor calling for an exercise of leniency was the fact that the respondent and M were reconciled and living together again.  In addition, the magistrate was entitled to have regard to the fact that the respondent had spent 36 days in custody and had spent a further period in custody after his arrest on 3 January 2000.  It is apparent from the magistrate’s reasons that he was making orders to reflect the orders made on 1 November 1999 and that he did not wish the respondent to forfeit his parole.  It is, however, unnecessary to determine whether the sentence is manifestly inadequate because the appellant does not, in all the circumstances, seek to have the respondent sentenced afresh.  The appellant very properly takes the view, and I agree, that the delay in finalising the matter and the fact that the respondent would be exposed to double, if not triple, jeopardy in respect of the sentencing orders already made, suggests that he should not be sentenced again.  I am encouraged to take this view because the respondent and M are still reconciled and living together.  I am not informed that he has been guilty of any further offending.  His prospects of rehabilitation will be improved if he is not required to return to prison.

6. Notwithstanding that the orders should be set aside, the appellant does not wish to jeopardise the liberty of the respondent. There are difficulties if the respondent is sentenced afresh. Those difficulties arise by reason of s 32(5) of the Criminal Law (Sentencing) Act.  The appellant’s purpose is to ensure that s 76B is not used improperly.  For these reasons, the most appropriate course is to dismiss the appeal and allow the order made by the magistrate on 4 April 2000 to stand.  The order will therefore be appeal dismissed.