Police v Van Boxtel
[2013] SASC 82
•3 June 2013
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v VAN BOXTEL
[2013] SASC 82
Judgment of The Honourable Justice White
3 June 2013
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - OTHER MATTERS
The respondent was sentenced in the Magistrates Court for 31 offences - in addition, the Magistrate had to deal with applications for the enforcement of two suspended sentence bonds - the Magistrate imposed a single sentence under s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (CLSA) - the prosecution appealed.
Held (allowing the appeal):
(1) It is not open to the Magistrate to impose a single sentence under s 18A of the CLSA which incorporated the two suspended sentence bonds.
(2) The Magistrate erred in law in failing to review and extend the existing non-parole period.
(3) An effective sentence of three months for the 31 offences before the Magistrate was so low as to shake public confidence in the administration of justice.
(4) Remission to Magistrates Court for the respondent to be re-sentenced.
See Related Files:
AMC-11-12839; MCMUB-12-1581; MCMUB-12-1580; MCPAD-12-3356; AMC-12-11639; MCHHL-12-2512; AMC-11-11357; MCHHL-11-6628; MCCHB-11-1994; MCCHB-11-1645; MCCHB-11-1655; MCHHL-11-3707; MCHHL-11-1130; MCHHL-11-5530; AMC-10-7870; AMC-10-4318; MCHHL-09-3986; AMC-07-10903; AMC-07-13285; AMC-07-14524
Criminal Law (Sentencing) Act 1988 (SA) s 18A, s 32, s 58; Criminal Law Consolidation Act 1935 (SA) s 20, s 85, s 86A, s 134, s 139; Road Traffic Act 1961 (SA) s 38; Bail Act 1985 (SA) s 17; Motor Vehicle Act 1959 (SA) s 91; Summary Offences Act 1953 (SA) s 17, referred to.
Everett v The Queen (1994) 181 CLR 295; R v Nemer [2003] SASC 375; (2003) 87 SASR 168; Heal v Police [1999] SASC 374; (1999) 75 SASR 331; R v Jeffries [2004] SASC 188; R v Leathley [2013] SASCFC 42; Hermel v Police [2000] SASC 34; (2000) 76 SASR 336; R v Major (1998) 70 SASR 488; R v Symonds [1999] SASC 217; Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610; R v Waugh [2005] SASC 470; (2005) 93 SASR 274; R v Bagnato [2011] SASCFC 161; (2011) 112 SASR 39; Attorney-General v Tichy (1982) 30 SASR 84; R v Drumgoon (Unreported, Supreme Court of South Australia, Court of Criminal Appeal, 13 December 1995, Judgment No S5382); Police v Dyke (Unreported, Supreme Court of South Australia, 1 August 1997, Judgment No S6290); R v Williams [2013] SASCFC 26; R v Cave [2012] SASCFC 42; House v The King (1936) 55 CLR 499; R v Shepperbottom [2001] SASC 31; (2001) 121 A Crim R 69; Hocking v Police [2009] SASC 268; (2009) 105 SASR 79, considered.
POLICE v VAN BOXTEL
[2013] SASC 82Magistrates Appeal
WHITE J. The respondent was sentenced in the Magistrates Court on 11 February 2013 for some 31 offences. In addition, the Magistrate had to deal with applications for the enforcement of two suspended sentence bonds, one of which related to a sentence of imprisonment for 54 months, and the other to a sentence of three months.
The Magistrate imposed for all these matters a single sentence of imprisonment for five years with a non‑parole period of 28 months and directed that both were to be taken to have commenced on 13 September 2012, when the respondent was taken into custody.
The prosecution appeal against this sentence. The principal complaints are that the head sentence and the non‑parole period are manifestly inadequate and that the Magistrate failed to review and extend the existing non‑parole period applicable to the respondent. Other errors were identified during the course of the appeal hearing.
The principles relating to appellate restraint on prosecution appeals of the present kind are well known, and it is unnecessary to review them in detail. It is sufficient to say that the considerations stated by the High Court in Everett v The Queen[1] are applicable. The circumstances in which prosecution appeals are allowed tend to be rare and exceptional.[2] In addition to showing error, the prosecution must also establish that the appeal should be allowed for some wider purpose, for example, to establish a sentencing principle, or to establish or maintain an adequate standard of sentencing for a particular offence or offences.[3] Alternatively, the prosecution must establish that the sentence imposed is so far below an appropriate range of sentences as to shake public confidence in the administration of justice.[4]
[1] (1994) 181 CLR 295.
[2] Ibid at 299.
[3] Ibid at 299-300. See also R v Nemer [2003] SASC 375 at [24]; (2003) 87 SASR 168 at 172.
[4] R v Nemer [2003] SASC 375 at [24]; (2003) 87 SASR 168 at 172.
The Approach of the Magistrate
The Magistrate adopted, appropriately, the technique of identifying individual notional sentences in relation to most of the 31 offences. The offences and the Magistrate’s notional starting points are summarised in Appendix A to these reasons.
The respondent had been sentenced on 18 October 2007 for the first three offences in the Appendix. The Magistrate at that time convicted the respondent but discharged him upon his entering into a bond to be of good behaviour for a period of 18 months and to appear again for sentence in the event of a breach.
An application for the enforcement of that bond had been brought previously and, on 22 June 2009, the breach was found proved. It is not altogether clear what then happened, but it does not seem that the Magistrate at that time made any of the consequential orders contemplated by s 58(1) of the Criminal Law (Sentencing) Act 1988 (SA) (CLSA). The respondent acknowledged, for the purposes of the sentencing on 11 February 2013, that the offences he committed between 23 and 30 April 2008 constituted a breach of the 2007 bond, and that he was to be sentenced by the Magistrate for the three 2007 offences. The Magistrate identified a notional single sentence of imprisonment of one month as appropriate for these three offences.
Given that breach of the 2007 bond had been addressed by the previous Magistrate on 22 June 2009, it may be that it was not open to the Magistrate on 11 February 2013 to deal again with a breach. However, that matter was not argued before me, and this Court does not have all the relevant files.
The total of the Magistrate’s notional sentences was imprisonment for 39 months.
The Magistrate reduced that notional total by one‑third on account of the respondent’s guilty pleas, and by one further month on account of time already served in custody. That produced a balance of imprisonment for 25 months.
On 22 June 2009, the respondent had been sentenced for one offence of illegal interference with a motor vehicle[5] and for eight offences of theft,[6] all of which were committed in May 2008. Most of the theft offences involved the taking of items from vehicles. A Magistrate had imposed a single sentence of imprisonment for 54 months with a non‑parole period of 28 months, but suspended that sentence upon the respondent entering into a bond to be of good behaviour for three years. The respondent acknowledged that his offending between 19 March 2010 and 23 March 2011 constituted breaches of this bond.
[5] Contrary to s 86A(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA).
[6] Contrary to s 134(1) of the CLCA.
The second application for enforcement of a suspended sentence bond related to a bond into which the respondent had entered on 29 March 2011 in relation to an offence of dishonestly receiving property.[7] A Magistrate had imposed a sentence of imprisonment of three months for that offence, but suspended it upon the respondent entering into a bond to be of good behaviour for a period of 18 months. The respondent acknowledged that the offence of theft committed on 4 May 2012 constituted a breach of this bond.
[7] Contrary to s 134(1) of the CLCA.
It can be seen that all but the first three of the offences in the Appendix were committed when the respondent was subject to one or other of the three bonds.
The total period to be served in custody under the two previous suspended sentences was 57 months. The Magistrate added that total to the notional balance of 25 months to obtain a starting point of imprisonment for 82 months.
The Magistrate then said:
[15]I have read the psychiatric report carefully and your letter. It is quite a good letter that you have written. I accept that you have had a difficult background, that you are now in a contemplative, as the psychologists call it, stage of thinking how better to manage the stresses that you were brought up with so that you live a better life for you and your kid and other people around you. You can build on that. No-one improves until they begin to think about the need to improve. I have read the letters from the prison. It is to your credit that you are using your time usefully there. I commend you to continue doing that. Regrettably you are going to be there for a bit longer. You can understand that now you have heard the sentences that I have to add up. I am pleased to see the Diversion Court program did give you some assistance. I regret that your time on the Drug Court did not work. You very quickly got straight back into drugs and they ruled your life. You cut off your bracelet and were found in Murray Bridge and hence the original charge from there.
[16]I think there are prospects for you to do better. Mr Ackland thought the same and, as I say, with hindsight it did not work then. You are reaching an age when, at 35, people begin to think about living life better because they realise that it is not going to go on forever. When you are twenty you think you are immortal but when you are forty you realise you are not, and you are reaching that age.
The Magistrate said that he regarded the starting point of 82 months as a crushing sentence. Hence he reduced the starting point to his ultimate sentence of imprisonment for 60 months. He then fixed the non‑parole period of 28 months, giving reasons to which I will refer shortly. The end result was that the Magistrate imposed (purportedly under s 18A of the CLSA) a single sentence of imprisonment for 60 months with a non‑parole period of 28 months, with each to commence on 13 September 2012.
The Respondent’s Circumstances
The respondent, who is now 36 years old, has a poor criminal record. His antecedent record extends over three pages and includes two convictions for offences of violence, 40 convictions or findings of guilt for offences of dishonesty, 24 convictions or findings of guilt for breaches of bail agreements, four occasions upon which he has been dealt with for breach of a bond or a community based order, and one conviction for driving while his licence was suspended.
The respondent reports a difficult childhood, being subject to physical and psychological abuse from his mother and to sexual abuse by an older half‑sibling. His schooling was unsettled and concluded at the completion of Year 10. Apart from completing a four year painting apprenticeship, it seems that the respondent has never had long‑term employment.
Since his mid teens, the respondent has been a significant user of illicit drugs including amphetamines, heroin and marijuana as well as alcohol. Much of his offending has been related to his drug use, resulting from impulsive and reckless behaviour in order to obtain money with which to buy drugs, or to obtain food because his available money had been used for drugs. Some of his offending may have been committed while he was affected by illicit drugs.
The Magistrate was provided with a report of a psychologist, Mr Broomhall, who assessed the respondent on 22 January 2013. Mr Broomhall considered that the respondent may have a personality disorder and that the compromise to his psychological development caused by the difficulties in his upbringing had led him to abuse of illicit substances, and hence into a cycle of crime.
There were some favourable prognostic factors, including the respondent’s experience in the Magistrates Court Diversion Program, his entry into a stable domestic relationship, the imminent birth of a child, the establishment of a mentoring relationship with a social worker, and his acceptance of responsibility since being incarcerated. In particular, Mr Broomhall considered that the respondent had reached the stage of wanting to change aspects of his life and of developing the motivation to seek help and treatment to do so. In this latter respect I note that two of the respondent’s supervisors in custody had reported favourably on his progress and attitude.
However, Mr Broomhall considered that the respondent’s risk of re‑offending was closely related to his ability to control his illicit drug use and, in turn, to his ability to manage the ordinary stresses of life. It is also significant that the respondent’s offending continued during 2011 and 2012, including while he was a participant in the Magistrates Court Diversion Program.
In May 2011, the respondent was referred to the Magistrates Court Diversion Program principally, it seems, because of his two offences of driving while disqualified. The Magistrate had the program’s Final Report of 3 February 2012. That report indicated that the respondent had participated appropriately in the program and had made some progress on it, in particular by demonstrating some insight into his behaviour and by developing some motivation to change.
I observe that five of the respondent’s offences were committed after he completed the Diversion Program in February 2012.
Later in 2012, the respondent was referred for assessment for participation in the Drug Court Program. He commenced that 12 month program on 3 September 2012 but his participation was terminated on 8 October 2012. A Progress Report dated 12 November 2012 indicates that the respondent had failed to participate in a urine test, had removed his monitoring bracelet and had been arrested for further offending while on the program. Counsel for the respondent denied the truth of some of these matters, but did not suggest that it was necessary for the Magistrate to have made a finding about those circumstances.
I have proceeded on the basis that the three reports from intervention programs provided to this Court (the two mentioned above and an Eligibility Assessment Report from the Drug Court dated 14 August 2012) are the only relevant reports which have been prepared.
Errors in the Magistrate’s Approach to Sentencing
The sentencing task in this case was complex. The complexity was increased by the fact that the matters with which the Magistrate had to deal were contained in more than 18 separate files. Accordingly one can have some sympathy for his position. However, I consider that the Magistrate’s reasons and his orders reflect a number of errors of approach.
Inappropriate Use of s 18A of the Sentencing Act
The Magistrate’s use of s 18A of the CLSA was inappropriate. A single sentence of imprisonment under s 18A could be imposed for all but one of the offences for which the Magistrate himself was sentencing the respondent, but not in respect of the sentences previously imposed on the respondent on 22 June 2009 and 29 March 2011. They were separate and distinct sentences imposed by different Magistrates. Section 18A did not permit them to be subsumed in the single sentence imposed by the Magistrate.[8] The effect of the Magistrate’s approach is that the respondent has now been sentenced twice for the offences which were the subject of the two suspended sentences.
[8] R v Jeffries [2004] SASC 188 at [49]-[50]; R v Leathley [2013] SASCFC 42 at [7].
In Heal v Police,[9] Duggan J set out the procedure to be followed by magistrates in circumstances such as the present.[10] That procedure does not involve incorporating previously suspended sentences in a new sentence.
[9] [1999] SASC 374; (1999) 75 SASR 331.
[10] Ibid at [9]-[11]; 333-4.
In respect of the two previous suspended sentences, the Magistrate was required by s 58(1)(d) of the CLSA (but subject to sub‑ss (3) and (4)) to revoke the suspensions and to order that the sentences be carried into effect. Section 58(3) permitted the Magistrate to refrain from revoking the suspension if satisfied that the respondent’s failure to comply with the conditions of the suspended sentence bonds was trivial or that there were otherwise proper grounds upon which the failure should be excused. The respondent’s breaches could not be regarded as trivial and it was not suggested that there were proper grounds upon which they could be excused. Nor was it suggested that special circumstances of the kind contemplated by s 58(4)(a) existed which could justify the Magistrate reducing the terms of the suspended sentences.
This meant that the Magistrate was required to revoke the two suspensions and to order that the two previous sentences be carried into effect. The Magistrate made orders to that effect. However, he did not make any order as to the commencement of either sentence. It is difficult to see any basis upon which the Magistrate could have ordered concurrency of those two sentences. This means that he should have directed that the sentence of 54 months be taken to have commenced on 13 September 2012 and that the three month sentence commence on its conclusion. Because the Magistrate wrongly considered that it was open to him to impose a single sentence under s 18A, he did not make those directions.
There is another difficulty in the Magistrate’s use of s 18A of the CLSA. The section cannot be used to impose a single sentence of imprisonment in respect of individual offences which attract only fines.[11] The offence of failing to truly answer truly the questions of a police officer in contravention of s 38 of the Road Traffic Act 1961 (SA), as then in force, could not be punished by imprisonment, as it attracted a penalty of a fine only. However, this was a relatively minor error in the complex sentencing task confronting the Magistrate. The first error, as outlined above, is much more significant as it is an error of law affecting the Magistrate’s entire sentence.
[11] Hermel v Police [2000] SASC 34 at [7]; (2000) 76 SASR 336 at 337-8.
Manifest Inadequacy
As a result of the Magistrate’s revocation of the two bonds, the aggregate of the periods of imprisonment which the respondent had to serve under the two previous sentences was 57 months. The Magistrate’s “head sentence” of 60 months was only three months greater.
In effect, the Magistrate’s starting point of a sentence of 39 months for the offences for which he was sentencing was reduced to three months. Some reduction was appropriate on account of the guilty pleas and time spent in custody, but the very size of the reduction is indicative of error. That error is underlined when it is remembered that the additional three months had to represent the sentence for 31 offences, each of which the Magistrate considered warranted a sentence of imprisonment.
An effective sentence of three months was manifestly inadequate. Several of the offences were of a serious kind; they were aggravated by the circumstance that the respondent was, in most cases, subject to a good behaviour bond at the time of their commission and, in many cases on bail; they showed a persistence in criminal behaviour; and the respondent’s criminal history was poor. The grounds upon which any leniency could be extended were limited, especially as the respondent was not being sentenced after a successful completion of a Drug Court program.
In my opinion, this feature of the sentence, even without reference to any of the other errors made by the Magistrate, would shake public confidence in the administration of justice if it were allowed to stand.
Failure to Consider Concurrency
It is evident that the Magistrate intended to comply with the approach outlined by Doyle CJ in R v Major[12] in relation to the application of s 18A. It was appropriate for him to do so. Doyle CJ said:
[T]he judge must first consider the sentence that would have been imposed had separate sentences been imposed in respect of each offence. As part of that process the judge must consider whether the sentences imposed would be concurrent or cumulative.[13]
The Chief Justice went on to elaborate this approach in Major[14] and discussed it further in R v Symonds.[15] It has several advantages and is consistent with underlying fundamental principles of sentencing.[16] The approach is of course to be applied in a practical way as the decision in R v Waugh[17] and the authorities reviewed by Peek J in R v Bagnato[18] indicate. At times, different approaches have been suggested in other judgments within this Court but, on my understanding, the principles discussed in Major, Symonds and Waugh, the latter two being decisions in which all three members of the Full Court agreed, state the relevant approach. If that approach is to be changed, then it would seem to require the constitution of a court of at least five judges. Unless and until that occurs, I consider it appropriate to continue to adopt the approach outlined in the authorities just referred to.
[12] (1998) 70 SASR 488.
[13] Ibid at 490.
[14] Ibid.
[15] [1999] SASC 217 at [20]-[22].
[16] See, for example, Pearce v The Queen [1998] HCA 57 at [45]; (1998) 194 CLR 610 at 624 in which McHugh, Hayne and Callinan JJ said:
A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality.
[17] [2005] SASC 470; (2005) 93 SASR 274.
[18] [2011] SASCFC 161 at [124]-[152]; (2011) 112 SASR 39 at 75-83.
In the present case, the Magistrate did, as already noted, comply with the first limb of the suggested approach by identifying notional individual sentences for most of the offences for which he was sentencing. However, the Magistrate did not adopt the second part of the approach outlined by Doyle CJ, namely, by addressing whether the individual notional sentences should be concurrent or cumulative.
Had the Magistrate addressed this issue, he may well have concluded that some concurrency was appropriate, at least in respect of those offences which seemed to constitute aspects of a single incursion into criminal conduct. As Wells J observed in Attorney‑General v Tichy:[19]
Where, whatever the number of technically identifiable offences committed, the prisoner was truly engaged upon one multi‑faceted course of criminal conduct, the judge is likely to find concurrent sentences just and convenient.[20]
It may have been possible for the Magistrate to have characterised the respondent’s conduct on 17 May 2011 in that way. Those offences comprised the theft of a credit card and then nine separate uses of the credit card on the same day at shops or hotels to obtain a benefit by deception. Instead of considering concurrency of his notional individual sentences for these offences, the Magistrate simply aggregated them, in a rather mechanical way, in the overall total of 39 months.
[19] (1982) 30 SASR 84.
[20] Ibid at 93.
Some concurrency may also have been appropriate for the same reason in respect of the five offences committed on 25 February 2011.
Ordinarily a sentence imposed for a breaching offence should be made cumulative upon the earlier suspended sentence.[21] King AJ expressed the principle in Police v Dyke:[22]
As a general principle, sentences for subsequent offences which give rise to the activation of an earlier suspended sentence should be made cumulative upon the activated sentence.
It makes a mockery of a suspended sentence if it is simply absorbed into the sentence for the subsequent offending. There are, of course, exceptions to every rule but there is nothing in the circumstances of the present case, to my mind, which could justify making the sentences for the subsequent offending concurrent with the activated sentence.
Hence, it is usually appropriate for the sentence for the breaching offence to be made cumulative upon the previous sentence. However, as King AJ recognised, there can be exceptions.
[21] R v Drumgoon (Unreported, Supreme Court of South Australia, Court of Criminal Appeal, 13 December 1995, Judgment No S5382).
[22] (Unreported, Supreme Court of South Australia, 1 August 1997, Judgment No S6290).
This case had one unusual feature. The aggregate of the two suspended sentences was 57 months. It is unusual for periods of imprisonment of that length to be suspended. The activation of the two suspended sentences meant that the appellant would have to serve a very long period before commencing service of the sentence imposed for the 31 offences. In that circumstance, it may have been appropriate for the Magistrate to take account of the deterrent and rehabilitative effect likely to be achieved by the appellant’s service of the two previously suspended sentences.[23] If he had done so, it could have been reflected in one of two ways: by shortening the sentence imposed for the 31 offences;[24] or by ordering partial concurrency.[25]
[23] See R v Williams [2013] SASCFC 26 at [69]; R v Cave [2012] SASCFC 42 at [73]-[75], [78].
[24] See, for example, R v Williams [2013] SASCFC 26 at [83].
[25] See, for example, R v Cave [2012] SASCFC 42 at [78]-[81].
These were matters to be considered by the Magistrate. It is evident that he did not do so.
Reduction for Guilty Pleas
Deductions for pleas of guilty and the willingness to facilitate the course of justice which they indicate tend generally to be in the range of 15-25 per cent. The Magistrate’s deduction of one‑third on account of the respondent’s guilty pleas for all of the offences for which he was sentencing was well in excess of that range. The Magistrate did not provide any explanation for a deduction of this size or for his departure from usual practice.
It is not easy to identify any circumstance which may have justified a reduction of one‑third. While some of the respondent’s guilty pleas were entered relatively early (and one on the same day that the complaint was laid), others were not entered until relatively late. Counsel for the respondent provided a possible explanation for the lateness of some of the pleas which may well be correct, but it remains the case that (on the records provided to this Court) the respondent did not indicate guilty pleas to any of the offences except three at the first available date. There were no other particular features of the respondent’s case suggesting that a deduction higher than normal was appropriate in his case.
The extent of the reduction for a defendant’s plea of guilty is a matter of discretionary judgment. Appellate courts are slow to interfere with the exercise of such a discretion. They will do so only if one of the well recognised grounds for interfering with a discretionary judgment of the type discussed in House v The King[26] is established.
[26] (1936) 55 CLR 499.
I consider that the prosecution has established circumstances of that kind. Principally, that is because of the absence of any justification for a deduction of one‑third. One can draw that conclusion more confidently given that the Magistrate did not provide any reason for his deduction of one‑third.
Error of Law – Failure to Extend the Non‑parole Period
The Magistrate fixed a non‑parole period of 28 months. This was the same period as had been fixed for the sentence of imprisonment for 54 months imposed on 22 June 2009.
The Magistrate was required to act in accordance with s 32(1) of the CLSA, which provides (relevantly):
(1)Subject to this section, where a court, on convicting a person of an offence, sentences the person to imprisonment, the court must—
...
(b) if the person is subject to an existing non-parole period—review the non-parole period and extend it by such period as the court thinks fit (but not so that the period of extension exceeds the period of imprisonment that the person becomes liable to serve by virtue of the sentence, or sentences, imposed by the court); or
...
As the respondent was subject to the existing non‑parole period, s 32(1)(b) required the Magistrate to review the period of 28 months “and extend it by such period” as he saw fit, providing of course that it did not exceed the total period in custody which the respondent was obliged to serve.
The proper application of s 32(1)(b) has been discussed in a number of authorities. In Heal v Police[27] Duggan J said, by way of obiter:
The Court is required to extend the non‑parole period under this provision. It is not permitted to allow the existing non‑parole period to remain as it is; nor is it permitted to reduce the period.[28]
Similarly, Lander J said, again by way of obiter:
Having arrived at that point the magistrate had to then proceed under s 32 of the Act and, because the appellant was subject to an existing non‑parole period, review the non‑parole period and extend it by such period as he saw fit (s 32(1)(b)), subject to the limitation in that subsection. ... The section does not allow for a reduction in the non‑parole period and that is because it may be assumed that the further conviction or convictions, which have caused the need to reconsider the existing non‑parole period, could only serve to increase the previous non‑parole period set.[29]
[27] [1999] SASC 374; (1999) 75 SASR 331.
[28] Ibid at [11]; 334.
[29] Ibid at [39]; 338.
In R v Shepperbottom[30] the Court had to consider the application of s 32(1)(b) in circumstances similar to the present. Doyle CJ referred to the earlier authorities, including Heal, and identified possible alternative constructions of s 32(1)(b). The Chief Justice then continued:
[31]Although I can see arguments either way, the arguments in favour of treating s 32(1)(b) as permitting the Court to decline to extend a non-parole period are not sufficiently strong to persuade me that the Court should depart from previously expressed views to the contrary. Accordingly, I would follow those views. It follows that I do not accept the view expressed by Lander J in Bromley.
[32]It follows from this that the sentencing Judge erred in failing to extend the non-parole period. His error is an error of law. He failed to impose the sentence required by law, in failing to extend the non-parole period.
[33]It follows that in my opinion the head sentence was manifestly inadequate, and the sentence is one not authorised by law.[31]
[30] [2001] SASC 31; (2001) 121 A Crim R 69.
[31] Ibid at 73-4.
It will be observed that Doyle CJ considered that the failure of the sentencing Judge in that case to review the non‑parole period in circumstances such as the present and to extend it by such period as the Judge thought fit, amounted to an error of law. It was that error of law which led Doyle CJ to conclude that the prosecution appeal in Shepperbottom should be allowed.
Duggan J, who provided separate reasons, agreed with the conclusion of Doyle CJ. Williams J concurred with the reasons of Doyle CJ.
Counsel for the respondent drew attention to the opening sentence of [34] in the reasons of Doyle CJ in Shepperbottom:
[34]Assuming that the Court is obliged to extend the non-parole period, I consider that in the circumstances of this case, an extension of six months would be appropriate.[32]
(Emphasis added)
[32] Ibid at 74.
Counsel submitted that the emphasised portions indicated that Doyle CJ had not reached a final conclusion about the proper application of s 32(1)(b). I do not agree. It is evident that Doyle CJ had earlier expressed a firm conclusion as to the proper construction of s 32(1)(b) and the decision in Shepperbottom is explicable only upon the basis of that conclusion. The opening words of [34] are, in my opinion, only the manner of expression adopted by Doyle CJ to reflect his recognition that his view of the proper construction of the provision may not prevail ultimately. However, as seen, both Duggan J and Williams J agreed with Doyle CJ.
Counsel for the respondent also drew attention to the decision of Sulan J in Hocking v Police.[33] In that case, Sulan J held that s 32(1)(b) did not require the non‑parole period to be extended when the Judge had ordered that the sentence for the breaching offence be wholly concurrent with the previous sentence in respect of which the existing non‑parole period had been set. The circumstances considered by Sulan J are different from those of Shepperbottom and this case. Hocking did not provide any justification for the Magistrate taking a view of s 32(1)(b) which was different from that stated by the Full Court in Shepperbottom.
[33] [2009] SASC 268; (2009) 105 SASR 79.
The Magistrate gave the following explanation for the non‑parole period which he fixed:
[17]In relation to the non‑parole period the normal position is that we accept non‑parole periods that are set by previous sentencing magistrates when a sentence is suspended. There may be exceptional circumstances when we do not. I have in mind a non‑parole period of a little over two years and so the appropriate thing for me to do is to leave Mr Ackland’s non‑parole period undisturbed but not add to it. The short message is that you are going to do 28 months non‑parole backdated to 13 September. It is a long time but you need to understand no‑one enjoys this process that we are just going through. You did it. You caused it. When you come out, do better. I could have given you a lot more. I have been as lenient as I can without triggering an appeal, and if you go upstairs you might get more.
There are aspects of this passage which are not entirely clear. If the Magistrate’s statement that magistrates normally accept non‑parole periods set by previous sentencing magistrates when a sentence is suspended was intended to indicate the approach in cases such as the present, then it was, with respect, in error because it failed to give effect to s 32(1)(b) as explained in Shepperbottom. The Magistrate may instead have intended to refer to the circumstance in which the Court revokes a suspended sentence bond but does not impose a new sentence of imprisonment. In that circumstance, it is quite understandable that magistrates do not ordinarily alter the non‑parole period fixed by the sentencing magistrate, but that was of no relevance in this case.
The Magistrate’s statement that he had been as lenient as he could “without triggering an appeal” may have been intended as a statement of reassurance to the respondent. If it was more than that and amounted to a statement of his approach, then it indicates that the Magistrate did not proceed in accordance with proper sentencing principles.
While there are these uncertainties in the Magistrate’s reasons, one thing is clear. The Magistrate did not advert to s 32(1)(b) and did not act in accordance with its requirements. This was an error of law.
Disparity in the Notional Sentences
Counsel also referred to some disparities in the notional sentences identified by the Magistrate. It is not necessary to address the detail of this submission. It is sufficient to note that there does seem to be some basis for counsel’s submission in relation to the two notional sentences of three months imprisonment for the offences committed on 25 February 2011; in the two notional sentences of imprisonment for one week for the breaches of bail committed on 16 and 23 March 2011; and, possibly, in relation to some of the offences of theft committed between October 2011 and June 2012, both dates inclusive.
Conclusion
The result, in my opinion, is that the Magistrate’s sentence is affected by two significant errors of law. In addition, the effective sentence for the 31 offences for which the Magistrate was sentencing is manifestly inadequate. There are other errors, as identified. Those circumstances mean that the appeal should be allowed and the respondent re-sentenced in accordance with law. Accordingly, this is one of the relatively exceptional cases in which a prosecution appeal should be allowed.
There remains a question as to whether this Court should re-sentence the respondent or whether the matter should be remitted to the Magistrates Court for that purpose. I favour the latter course. First, this Court does not have all the materials available to the Magistrate as the Magistrates Court has not been able to provide six of its files nor a letter written by the respondent to the Magistrate.
It is also evident that the Magistrate’s approach to sentencing of the respondent was influenced, to an extent, by the fact that he was sitting in the Drug Court and that, prior to sentencing, the respondent had been subject to supervision by that Court. It is preferable for the respondent to be re‑sentenced in that same context.
Remission to the Magistrates Court would also allow the uncertainty arising from the previous action taken for the enforcement of the 2007 bond, to which I referred earlier in these reasons, to be addressed.
Accordingly, I allow the appeal and set aside the orders made by the Magistrate on all the files which were before him, including on the three applications for enforcement of the bonds. I remit the matter to the Magistrates Court so that the respondent can be re-sentenced by another Magistrate.
I will hear the parties as to any further orders.
APPENDIX A
Police v Van Boxtel
Summary of Offences
Offence number Date of offence Offence Statutory provision Applicable maximum penalty Magistrate’s notional starting point 1.
(AMC-07-14524)30.8.07 Theft CLCA, s 134 10 yrs imp
1 mth imp 2.
(AMC-07-13285)14.4.07 Fail to truly answer RTA, s 38 $1250 3.
(AMC-07-10903)10.7.07 -9.8.07 Breach of bail Bail Act, s 17 $10 000 or 2 yrs imp 4.
(MCHHL-09-3986)23.4.08 -30.4.08
Theft
CLCA, s 134 10 yrs imp
3 mths imp 5.
(MCHHL-09-3986)29.4.08 Obtaining a benefit by deception CLCA, s 139(a) 10 yrs imp 3 mths imp 6.
(AMC-10-4318)19.3.10 Driving while disqualified MVA, s 91(5) 2 yrs imp
1 mth imp 7.
(AMC-10-7870)29.5.10 Driving while disqualified MVA, s 91(5) 2 yrs imp
1 mth imp 8.
(MCHHL-11-5530)25.2.11 Assault
CLCA, s 20(3) 2 yrs imp
3 mths imp 9.
(MCHHL-11-5530)Being on premises without lawful excuse SOA, s 17(1) $2 500 or 6 mths imp
10.
(MCHHL-11-1130)Assault
CLCA, s 20(3) 2 yrs imp
3 mths imp 11.
(MCHHL-11-1130)Assault
CLCA, s 20(3) 2 yrs imp
12.
(MCHHL-11-1130)Damaging property belonging to another person
CLCA, s 85(3) 10 yrs imp 13.
(MCCHB-11-1655)16.3.11 Breach of bail Bail Act, s 17 $10 000 or 2 yrs imp 1 wk imp
14.
(MCCHB-11-1645)23.3.11 Breach of bail Bail Act, s 17 $10 000 or 2 yrs imp 1 wk imp 15.
(AMC-11-12839)17.5.11 Theft
CLCA, s 134 10 yrs imp
3 mths imp 16.
(AMC-11-12839)Obtaining a benefit by deception
CLCA, s 139(a) 10 yrs imp 1 mth imp 17.
(AMC-11-12839)Obtaining a benefit by deception
CLCA, s 139(a) 10 yrs imp 1 mth imp 18.
(AMC-11-12839)Obtaining a benefit by deception
CLCA, s 139(a) 10 yrs imp 1 mth imp 19.
(AMC-11-12839)Obtaining a benefit by deception CLCA, s 139(a) 10 yrs imp 1 mth imp 20.
(AMC-11-12839)Obtaining a benefit by deception
CLCA, s 139(a) 10 yrs imp 1 mth imp 21.
(AMC-11-12839)Obtaining a benefit by deception
CLCA, s 139(a) 10 yrs imp 1 mth imp 22.
(AMC-11-12839)Obtaining a benefit by deception
CLCA, s 139(a) 10 yrs imp 1 mth imp 23.
(AMC-11-12839)Obtaining a benefit by deception
CLCA, s 139(a) 10 yrs imp 1 mth imp 24.
(AMC-11-12839)Obtaining a benefit by deception
CLCA, s 139(a) 10 yrs imp 1 mth imp 25.
(MCHHL-11-6628)20.10.11 Theft CLCA, s 134 10 yrs imp 6 mths imp
26.
(AMC-11-11357)31.10.11 Theft CLCA, s 134 10 yrs imp 1 mth imp 27.
(MCHHL-12-2512)20.3.12 Theft CLCA, s 134 10 yrs imp 1 mth imp 28.
(AMC-12-11639)4.5.12 Theft CLCA, s 134 10 yrs imp 1 mth imp 29.
(MCPAD-12-3356)6.6.12 Theft CLCA, s 134 10 yrs imp 1 mth imp 30.
(MCMUB-12-1580)6.9.12 Breach of bail Bail Act, s 17 $10 000 or 2 yrs imp 1 mth imp 31.
(MCMUB-12-1581)11.9.12 Being on premises without lawful excuse SOA, s 17(1) $2 500 or 6 mths imp 2 wks imp TOTAL 39 mths imp
11
21
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