Police v Gray - [2012] SASC 18

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v GRAY
[2012] SASC 18
Judgment of The Honourable Justice Blue
10 February 2012
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SETTING ASIDE AND AMENDMENT - ORDERS
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SENTENCING - IMPRISONMENT - SUSPENSION OF SENTENCE
Respondent convicted by Magistrate of two counts of aggravated assault, two counts of breaching a domestic violence restraining order, one count of hindering police and one count of breaching bail - respondent thereby breached 5 week suspended sentence bond previously imposed - suspension revoked in respect of 5 week sentence and respondent sentenced to 12 months for new offences with a one month non-parole period - respondent had been in custody over 4 months before sentencing - after 9 months in custody Magistrate set aside the sentences pursuant to s 9A of the Sentencing Act because the Parole Board decided not to release respondent on parole - Magistrate substituted for the sentences previously imposed an order that respondent be released on a good behaviour bond for 12 months.
Police appeal against later orders - whether Magistrate had power under s 9A Sentencing Act or s 76A Summary Procedure Act to set aside and substitute different sentence - if appeal allowed - whether Magistrate's orders revive - whether Magistrate overlooked backdating or reducing original head sentence for time served in custody on remand - whether such adjustment could be made on a Police appeal under s 42(5) Magistrates Court Act or only by cross-appeal - whether term of imprisonment runs while defendant not in custody - whether adjustment should be made - whether in all the circumstances defendant should now return to prison or be subject to a bond.
Held: Appeal allowed - Magistrate had no power to set aside the sentence pursuant to s 9A Sentencing Act or s 76A Summary Procedure Act - Magistrate's setting aside and substituted sentencing order quashed - original orders revived - Supreme Court has the power to vary Magistrate's original sentence - Magistrate overlooked time spent in custody when fixing head sentence - original orders varied to provide that head sentences commence from when respondent taken into custody - sentence continued to run notwithstanding respondent's release from custody following the later orders of Magistrate - respondent to enter into a good behaviour bond for 14 months
Criminal Law (Sentencing) Act 1988 (SA) s 9A; Summary Procedure Act 1921 (SA) s 76A, s 76A(3); Magistrates Court Act 1991 s 42, s 42(5); Correctional Services Act 1982 (SA) s 66, s 67, referred to.
Police v Churchill (1998) 71 SASR 461; Police v Clayton-Smith (2010) 107 SASR 261, applied.
Andrews v Parole Board of South Australia (2008) 257 LSJS 280; Police v Scheving [2011] SASCFC 155; R v Garrett (1978) SASR 308; R v Jamieson (1988) 50 SASR 130; R v McHugh (1985) 1 NSWLR 588; R v Newmann (2004) 145 A Crim R 361; R v Tilley [2010] SASCFC 73; Whan v McConaghy (1984) A Crim R 147, considered.

POLICE v GRAY
[2012] SASC 18
Magistrates Appeal: Criminal

BLUE J.    On 23 May 2011, the defendant was convicted of two counts of aggravated assault,[1] two counts of thereby breaching a domestic violence restraining order,[2] one count of hindering police[3] and one count of breaching bail.[4] He was found to be thereby in breach of a bond which had previously been imposed on the suspension of a five week term of imprisonment. A Magistrate revoked the suspension of the five weeks imprisonment, and imposed pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (“the Sentencing Act”) a sentence of 12 months imprisonment. He fixed a non-parole period of one month in respect of those sentences.
[1]    Criminal Law Consolidation Act 1935 (SA) s 20(3).
[2]    Domestic Violence Act 1994 (SA) s 15(1).
[3]    Summary Offences Act 1953 (SA) s 6(2).
[4]    Bail Act 1985 (SA) s 17(1)
On 10 October 2011, the Magistrate set aside the sentences which he had imposed on 23 May and substituted an order that the defendant be released on a bond to be of good behaviour for 12 months. He made this order because the Parole Board had in the meantime refused the defendant’s application for parole.
The Police appeal against the orders made by the Magistrate on 10 October 2011.
The defendant opposes the appeal and in the alternative seeks an order pursuant to s 42 of the Magistrates Court Act 1991 (SA) (“the Magistrates Court Act”) (or in the further alternative cross-appeals seeking an order) varying the orders made by the Magistrate on 23 May 2011 so as either to backdate the commencement of the sentences to 11 January 2011 or to reduce them on account of time spent in custody on remand in respect of the offences between 11 January and 23 May 2011.
Background facts
On 31 December 2008, the defendant committed two assaults on his ex-wife and one assault upon her friend.
On 20 January 2009, a Magistrate made a five year domestic violence restraining order against the defendant in respect of contact with his ex-wife.
On 16 November 2009, the defendant was sentenced by a Magistrate for the December 2008 offences to five weeks imprisonment, which was suspended upon his entering into a bond to be of good behaviour for 18 months.
On 10 January 2011, after the defendant and his ex-wife had reconciled, an argument took place. The defendant assaulted his ex-wife by grabbing both of her hands. The following day, (while on bail on charges arising from the incident the previous day) a further argument took place and the defendant again assaulted his ex-wife by grabbing both of her hands. He then fled when the police arrived.
On 11 January 2011, the defendant was arrested and remanded in custody until he was sentenced on 23 May 2011. He thereby spent four months and 12 days in custody on remand in respect of the offences.
On 23 May 2011, the Magistrate sentenced the defendant pursuant to s 18A of the Sentencing Act in respect of the two counts of assault, the two counts of failure to comply with the domestic violence order and one count of breaching bail to 12 months imprisonment (cumulative on the five weeks imprisonment in respect of which he revoked the suspension) with a non-parole period of one month. He convicted the defendant on the count of hindering police without further penalty.
Some time after the expiration of the one month period, the defendant applied for parole. On 5 September 2011, the Parole Board refused to grant parole on the basis that the defendant had no insight into his offending behaviour. It appears that he had not undertaken any programs addressing domestic violence while in prison.
On 10 October 2011, the Magistrate called the matter on of his own volition. He made an order pursuant to s 9A of the Sentencing Act recalling the sentences which he had imposed on 23 May 2011 and substituting an order that the defendant be released on a bond to be of good behaviour for 12 months, to be under the supervision of an officer of the Department of Correctional Services and to obey his or her lawful directions (including attendance at domestic violence programs, psychological or psychiatric assessment and treatment).
The Magistrate said that his reason for making the set aside order was that the intent of his original orders had been frustrated by the Parole Board substituting its own decision for the intent of the Court.
Power of Magistrates Court to set aside previous orders
The Magistrate said that he made the orders of 10 October 2011 pursuant to s 9A of the Sentencing Act. S 9A(1) provides:
A court that imposes a sentence on a defendant … may, on application by the Director of Public Prosecutions or the defendant, make such orders as the court is satisfied are required to rectify an error of a technical nature made by the sentencing court in imposing the sentence, or to supply a deficiency or remove an ambiguity in the sentencing order.
The Police contend that the Magistrate had no power pursuant to s 9A of the Sentencing Act to make the orders of 10 October 2011. The defendant concedes that this is so. The defendant’s concession is rightly made. It is clear here that the Magistrate had made no “error of technical nature” on 23 May 2011 nor was there any “deficiency” or “ambiguity” in the orders which he made on that day (at least of a type which would justify the orders which the Magistrate made on 10 October 2011).
On appeal, the defendant seeks instead to support the Magistrate’s orders under s 76A of the Summary Procedure Act 1921 (SA) (“the Summary Procedure Act”).
S 76A(1) of the Summary Procedure Act empowers the Court (either on its own initiative or on the application of any party) to set aside a conviction or order. However, s 76A(3) provides that the Court may only set aside a conviction or order if satisfied:
(a)     that the parties consent to have it set aside; or
(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.
The defendant relies upon s 76A(3)(c) and contends that it was “in the interests of justice” for the Magistrate to set aside his previous sentencing order.
In Police v Churchill,[5] a Magistrate sentenced the defendant to imprisonment for three months cumulative upon the unexpired portion of an existing sentence (in respect of which the defendant had breached parole), which the Magistrate (mistakenly) believed was nine and a half months. This gave a total period (on the Magistrate’s belief) of twelve and a half months, which the Magistrate believed exceeded the threshold of twelve months so as to permit him to fix a non-parole period. He fixed a non-parole period of five days. Four days later, the Magistrate set aside the sentence which he had imposed because he had learnt that the unexpired portion of the existing sentence was only eight and a half months, so that the total of eleven and a half months had not permitted him to fix a non-parole period. The Magistrate substituted a higher sentence of four months so as to achieve a total of twelve and a half months and permit him to fix a non-parole period.
[5] (1998) 71 SASR 461, [1998] SASC 6675.
Mullighan J held that the Magistrate had no power to set aside his previous orders on this ground. Mullighan J said:[6]
… it is simply contrary to the provisions of the [Sentencing Act] to increase a sentence in order to attract the power to impose a non-parole period.
[6] (1998) 71 SASR 461 at 463.
In Police v Clayton-Smith,[7] on 23 July 2009, the defendant had been convicted of two counts of driving a motor vehicle without a licence. On 8 January 2010, the defendant appeared before a different Magistrate charged with driving a motor vehicle while unlicensed on 1 August 2009. As this was a “subsequent offence” due to the convictions on 23 July 2009, the Magistrate was obliged by s 74(5) of the Motor Vehicles Act 1959 (SA) to impose a disqualification order of not less than three years. In order to circumvent that provision, the Magistrate set aside the convictions recorded on 23 July 2009 and proceeded to re-convict the defendant for the same offences on 8 January 2010. The result of those orders was that the offence committed on 1 August 2009 ceased to be a “subsequent offence”.
[7] (2010) 107 SASR 261; [2010] SASC 127.
Gray J held that the Magistrate did not have power under s 76A of the Summary Procedure Act to set aside the convictions recorded on 23 July 2009. Gray J said:[8]
Counsel for the Police submitted that the facts of the case, and the material before this Court, led to the conclusion that the Magistrate made the orders that she did in order to avoid the operation of s 74(5) of the Motor Vehicles Act. Accordingly, it was said that the power provided by s 76A of the Summary Procedure Act was not exercised in the interests of justice, and instead was used for an improper purpose.
…
… I am of the view that the Magistrate acted under the power conferred by s 76A of the Summary Procedure Act for the purpose of avoiding or limiting the operation of s 74(5) of the Motor Vehicles Act in relation to the defendant….S 76A was not enacted for the purpose of authorising Magistrate to merely avoid or limit the operation of s 74(5) of the Motor Vehicles Act or like provisions.
S 76A is to be used for the purpose for which it was conferred…. the Magistrate was acting for an improper purpose, and upon a proper construction of s 76A, the orders purported to be made under s 76A were made beyond power and are void for that reason.
At the hearing of the appeal, I accepted counsel for the Police’s submission that, in the circumstances, the interests of justice did not call for the invocation of s 76A and the vacating of the earlier orders by the Magistrate. …
[Footnotes omitted]
[8] (2010) 107 SASR 261 at [15], [25]-[27].
In the present case, the Magistrate set aside his previous orders because he did not accept the exercise of the discretion conferred on the Parole Board in refusing to release the defendant on parole. This is evident from his remarks when he said:
The reason for my [recalling the previous orders] is that it has come to my attention that the intent of my order that I made on that day has been frustrated by the provisions of s 66 of the Correctional Services Act in that the Parole Board has basically substituted its decision for refusing to release the defendant on parole for the decision and intent of the Court when the order was made. …
It would appear to me that the Board has substituted its views on this matter for the view expressed by the Court when passing sentence.
In all of the circumstances, therefore, I think it is appropriate for me to exercise my discretion…to rectify the sentencing by recalling that order and by resentencing the defendant today.
Sections 66 and 67 of the Correctional Services Act 1982 (SA) (“the Correctional Services Act”) vest discretion[9] in the Parole Board to determine applications for parole in those cases (such as assault) in respect of which release on parole is not mandatory upon the expiration of 30 days after a non-parole period expires.
[9] Andrews v Parole Board of South Australia (2008) 257 LSJS 280 at [16] per David J (Duggan J and Anderson J agreeing), [2008] SASC 237.
The Correctional Services Act does not give any right of appeal against a decision of the Parole Board, although this Court has jurisdiction to judicially review a decision of the Parole Board.[10] Once the Magistrate sentenced the defendant on 23 May 2011 to 12 months and five weeks imprisonment with a non-parole period of one month, it became the exclusive function of the Parole Board to determine whether and if so when the defendant should be released upon parole. The Magistrate had no power to overturn the decision of the Parole Board in the exercise of its discretion. Equally, he had no power under s 76A of the Summary Procedure Act to set aside his previous orders because he disagreed with the decision of the Parole Board. The reasoning of Gray J in Police v Clayton-Smith is directly applicable and the Magistrate acted for an impermissible and hence improper purpose in setting aside his previous orders.
[10] Andrews v Parole Board of South Australia (2008) 257 LSJS 280.
Accordingly, I would allow the appeal and (subject to what follows) set aside in their entirety the orders made by the Magistrate on 10 October 2011.
Effect of setting aside the setting aside orders
I invited the parties to make submissions on the question whether, if I were minded to set aside the orders made by the Magistrate on 10 October 2011, it would follow (unless I made any further specific order) that the orders made on 23 May 2011 would automatically revive. It is common ground between the Police and the defendant that in that event the orders of 23 May 2011 would automatically revive.
The Police (and the defendant) cited as authority for their proposition the decision of the Full Court in Police v Scheving.[11] In that case, a conviction by a Magistrate had been set aside by a single Judge of this Court. In turn, the Full Court set aside the orders made by the single Judge and instead dismissed the appeal against the conviction. The orders proceeded on the basis that the conviction automatically revived on the setting aside of the single Judge’s orders. The Police (and the defendant) contend that the same principle applies where the intermediate order was one made, not on appeal by a higher court, but by the original court setting aside its previous order.
[11] [2011] SASCFC 155.
The common submission by the parties appears to be soundly based in principle and I intend to act on the basis of the common ground between the parties without further considering that question of principle.
To clarify the intent of my order setting aside the orders of 10 October 2011, I would add to my order (subject to what follows) that those orders are set aside to the intent that the original sentence imposed on 23 May 2011 is thereby revived.
Variation to original sentence
The defendant contends that the Magistrate made an error on 23 May 2011 in imposing the sentence of 12 months imprisonment (cumulative upon the sentence of five weeks imprisonment in respect of which he revoked the suspension). The error is that the Magistrate failed to either backdate or reduce the sentence of 12 months imprisonment on account of the time spent by the defendant in custody on remand.
It is a clearly established sentencing principle that generally the sentencing court should exercise its discretion so as to take into account time spent in custody in relation to an offence when imposing a sentence and generally should do so (in the simple case such as the present where the defendant was continuously in custody up to the date of sentencing) by either back-dating the commencement of the sentence to the commencement of the custody or by deducting the period in custody prior to sentencing from the head sentence and any non-parole period.[12] All other things being equal, it is usually preferable to use back-dating rather than deduction, but this is in the discretion of the sentencing court.[13]
[12] See eg R v Garrett (1978) 18 SASR 308 at 315; R v Jamieson (1988) 50 SASR 130 at 134 and R v Tilley [2010] SASCFC 73 at [23]-[24].
[13] R v McHugh (1985) 1 NSWLR 588 at 590-591; R v Newman (2004) 145 A Crim R 361, [2004] NSWCCA 102 at [27], [29], [30] and [32]; R v Tilley [2010] SASCFC 73 at [23]-[24].
In the present case, it is common ground that the Magistrate ought to have taken into account in one manner or another the time spent in custody. The contest is as to whether or not he did so.
It is clear that the Magistrate was aware of the time spent in custody because he referred to it in rejecting a submission by the defendant that the time spent in custody was sufficient penalty in itself. It is also clear that the Magistrate in his reasons did not say that he was back-dating the commencement of the head sentence (or indeed the non-parole period). The question therefore is whether he deducted the time spent in custody (four months and 12 days) from the head sentence before arriving at the figure of 12 months imprisonment. I have concluded that he did not do so for three inter-related reasons.
1.If the Magistrate had so acted, it follows that his starting point (prior to deduction for time spent in custody) would have been 16 months and 12 days imprisonment. This is a most improbable starting point and it is more likely that he adopted a round starting point of one year.
2.The Magistrate expressly stated that he deducted the time spent in custody from the non-parole period which he would otherwise have imposed in arriving at the non-parole period which he fixed.
3.In the head sentence at 12 months, the Magistrate did not say that he was making any deduction on account of time spent in custody and there is nothing in his reasons which suggests that he did so. It appears to have been an oversight on his part not to do so.

In these circumstances, the defendant contends that the original sentence imposed by the Magistrate on 23 May 2011 should be adjusted so as to reflect the time spent in custody. He contends that this Court has power to do so on the Police appeal by reason of s 42(5)(a) or (c) of the Magistrates Court Act. In the alternative, he contends that such an order should be made on his own cross-appeal (which he filed out of an abundance of caution in the event that s 42(5) does not give power to this Court to so act).
The Police concede that this Court has power to vary the judgment given on 23 May 2011 pursuant to s 42(5) of the Magistrates Court Act. S 42(5) provides:
On the hearing of the appeal, the appellate court may exercise any one or more of the following powers:
(a) it may confirm, vary or quash the judgment subject to the appeal and, if the court thinks the interests of justice so require, it may vary or quash any other judgment given in the same or related proceedings;
…
(c) it may make any other order … that may be necessary or desirable in the circumstances.
The Police accept that the judgment of 23 May 2011 was given in “the same proceedings” (and in any event in “related proceedings”) as the judgment of 10 October 2011 and this is plainly so. The Police also accept that, if I conclude that the Magistrate overlooked taking into account the time spent in custody in fixing the head sentence, the interests of justice require a variation to that judgment on the Police appeal. Even if that concession (which was very fairly made) were not correct, I would plainly have power on the defendant’s cross-appeal to vary the judgment of 23 May 2011 (given that I consider that it would be appropriate in all the circumstances to extend the time within which the defendant may appeal).
Accordingly, (subject to what follows) I would vary the orders made on 23 May 2011 so as to provide that the head sentences of 12 months and then five weeks commence on 11 January 2011 and that the non-parole period of five months 12 days commence on 11 January 2011.
Time not spent in custody
The defendant was released from custody on 10 October 2011 as a result of the orders made by the Magistrate on that day (when he was released upon a bond). He has remained out of custody since that time, which now amounts to four months.
It is common ground between the Police and the defendant that, absent any special order, the sentence of 12 months continued to run notwithstanding the release of the defendant from custody.[14] I proceed on the basis that this is so without further consideration.
[14] The parties cite the decision of the High Court in Whan v McConaghy (1984) 153 CLR 631, [1984] HCA 22.
It is also common ground between the parties that this Court has power pursuant to s 42(5) of the Magistrates Court Act to adjust either the commencement date of the sentences or the length of the sentences (in a manner opposite to the adjustment normally made to take into account time in custody prior to sentencing) so as to take account of the fact that the defendant has not been in custody for a period of four months or alternatively to make an order that the sentence not be treated as running for all or part of that period of four months.
The defendant contends that, in all of the circumstances, I ought not to exercise my discretion to make such an order, and in the alternative, if I did so, I should only make an order by reference to a proportion of the period of four months to reflect the fact that the defendant has been subject to a bond and supervision over that four month period. The Police do not ask me to make such an order, but say that it is a matter within my own discretion.
In considering this question, it is relevant to consider the result in the event that I did or did not make such an order.
1.If I made no such order at all and issued a warrant for the apprehension of the defendant which were to be executed forthwith, the defendant would be obliged to remain in custody from 10 to 15 February 2012.
2.If I made such an order to the fullest extent, the defendant would be obliged (subject to any successful application for parole) to remain in custody until 15 June 2012.
3.If I made an order in respect of a proportion of the four months not spent in custody, the defendant would be obliged to remain in custody (subject to any successful application for parole) until a proportionate date somewhere between 15 February and 15 June 2012.
In any of those events, upon the expiration of the term of imprisonment, the defendant would not be subject to the supervision to which he has been subject pursuant to the orders of 10 October 2011.
At this point, the defendant has served nine months (less one day) out of a total sentence of 12 months and five weeks. He has been subject to a bond to be of good behaviour and under the supervision of the Department of Correctional Services for four months. Circumstances have changed since he was originally sentenced as a result of the orders wrongly made by the Magistrate on 10 October 2011. The rehabilitation of the defendant is in the interests of both the community and the defendant himself and would be best served by the defendant continuing under supervision and completing the anger management course which has now been arranged for him. But for this factor, I would have been disposed to take into account (in one manner or another) a substantial portion of the four months not spent by the defendant in custody in fashioning appropriate orders pursuant to s 42 of the Magistrates Court Act.
In all of the circumstances, I consider that it is preferable that the defendant not return to prison if he is prepared to enter into a bond to be of good behaviour for 14 months from today. On the assumption that he is prepared to do so, I would not make any adjustment or orders to take into account (in whole or in part) the four months which the defendant has not spent in custody. I would impose the bond in respect of the two counts of failing to comply with the domestic violence restraining order on the basis that their contribution to the total sentence imposed pursuant to s 18A of the Sentencing Act reflected approximately the period which the defendant would otherwise have to serve in prison (subject to any parole) but for my decision that he be released on a bond. That it is appropriate to impose a sentence of imprisonment coupled with a bond is established by Police v Abdulla[15] and Police v Churchill.[16]
[15] (1999) 74 SASR 337 at [49] per Perry J, [1999] SASC 239.
[16] (1998) 71 SASR 461 at 464 per Mullighan J, [1998] SASC 6675.
Invitation not to set aside orders of 10 October 2011
The defendant invited me to exercise a discretion not to set aside the orders made on 10 October 2011 in the event that I were to conclude that they were wrongly made on the basis that it would not now be in the interests of justice that the defendant return to prison given that he has been under the supervision of the Department of Correctional Services for four months and his participation in an anger management course has been arranged. The defendant cites Police v Alikaris[17] as authority that this may be an appropriate course in certain circumstances.
[17] [2000] SASC 163 at [17] per Debelle J.
As I have concluded that it is appropriate to vary the sentence originally imposed by the Magistrate in a manner which results in the release of the defendant on a bond, I consider that it would not be appropriate to decline to set aside the orders of 10 October 2011. An order wrongly made should not be permitted to stand unless (perhaps) that were the only manner in which the interests of justice could be achieved.
Conclusion
In the event that the defendant is prepared to enter into a bond, I would make the following orders:
1.I allow the appeal by the Police and set aside in their entirety the orders made by the Magistrate on 10 October 2011 to the intent that (subject to order 2) the orders made on 23 May 2011 thereby revive.
2.I vary the orders made on 23 May 2011 as follows:
(a)    the sentence of 12 months imprisonment commence on 11 January 2011;
(b)    the sentence of five weeks imprisonment commence on the expiration of the sentence of 12 months imprisonment;
(c)    there be a non-parole period fixed in respect of the sentences of imprisonment of five months and 12 days commencing on 11 January 2011;
(d) the two counts of failing to comply with the domestic violence restraining orders be severed from the sentence pursuant to s 18A of the Sentencing Act and in respect of those two counts, the defendant be released upon entering a bond in the sum of $200 to be of good behaviour for a period of 14 months commencing today, to be under the supervision of a Community Corrections Officer of the Department of Correctional Services and to obey the lawful directions of such officer including directions to attend programs deemed appropriate from time to time dealing with domestic violence and as to psychological or psychiatric assessment and to undertake any treatment deemed appropriate from time to time and to report to the Department of Correctional Services within two working days;
(e)    the conviction of the defendant without further penalty for hindering police remain unchanged.