R v Brady - [2011] SASCFC 79

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BRADY
[2011] SASCFC 79
Judgment of The Court of Criminal Appeal
(The Honourable Justice Nyland, The Honourable Justice Anderson and The Honourable Justice David)
4 August 2011
CRIMINAL LAW - SENTENCE - INTERPRETATION OF SENTENCING PROVISIONS
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - SERIOUS OR VIOLENT OFFENDER
Appeal against sentence – appellant convicted of offences of assault and aggravated causing harm with intent to cause harm – offences breached parole with respect to previous life sentence for murder – declaration pursuant to s 20B Sentencing Act that appellant a serious repeat offender – sentenced to 6 years imprisonment for new offences – Sentencing Judge applied R v Armstrong and declined to fix a non-parole period – appellant required to apply to the Supreme Court for a new non-parole period.
Whether Judge erred in declaring appellant a serious repeat offender – whether declaration futile in view of reactivation of previous life sentence – applicability of s 20B(4)(b) to total sentence to be served following breach of parole – whether declaration in District Court fettered discretion of Supreme Court in fixing new non-parole period – whether sentence manifestly excessive – whether recent amendments to Sentencing Act no longer required District Court to refer fixing of non-parole period to Supreme Court.
Held: Sentencing Judge correctly applied s 20B(1) to find appellant liable to be declared a serious repeat offender – declaration may have less relevance where a person becomes liable to serve balance of a sentence of life imprisonment or any lengthy term of imprisonment for offences other than murder but nevertheless enables Court to impose a disproportional sentence for breaching offences – declaration will fetter discretion of Judge fixing non-parole period for total sentence to be served following breach – Judge will be required to apply s 20B(4)(b) in determination of non-parole period. New non-parole period will be required to be no less than four fifths of head sentence fixed for breaching offences – sentence not manifestly excessive – no reason to depart from principles enunciated in R v Armstrong – no error demonstrated in approach by Sentencing Judge – appeal dismissed.
Criminal Law (Sentencing) Act 1988 ss 18a, 20a, 20B, 20B(1), 20B(3)(a), 20B(3)(b), 20B(4)(a), 20B(4)(b), 32, 32(3), 32(5)(b), 32(5)(ab), 32(5)(ba); Criminal Law Consolidation Act 1935 ss 19(2), 20(3), 20(3)(a), 23(1), 24(1)(b); Correctional Services Act 1982 ss 67(3)(a), 67(4)(a), 67(4)(b), 67(4)(h), 75, referred to.
R v Armstrong (1990) 54 SASR 207, applied.
R v Saunders [2011] SASCFC 37; R v Beauregard-Smith (2001) 79 SASR 408; R v Piotrowski (1990) 156 LSJS 254, considered.

R v BRADY
[2011] SASCFC 79
Court of Criminal Appeal: Nyland, Anderson and David JJ

NYLAND J: This appeal is concerned with the application of s 20B of the Criminal Law (Sentencing Act) 1988 (“Sentencing Act”) to the sentence of a person who commits an offence while on parole with respect to a sentence of life imprisonment.
The appellant was charged on an Information which alleged one count of assault, contrary to s 20(3) Criminal Law Consolidation Act 1935 (“CLCA”), a second count of aggravated causing serious harm with intent, contrary to s 23(1) CLCA and a third count of aggravated threatening harm, contrary to s 19(2) CLCA. Each of the offences was alleged to have occurred on 19 April 2009 at Port Augusta. The victim with respect to counts 1 and 2 was the appellant’s partner, C. The victim with respect to the third count was a man called H.
The circumstance of aggravation alleged with respect to counts 2 and 3 was that the appellant used an offensive weapon, namely a knife, when committing the offence.
The appellant pleaded not guilty to all of the charges. On 26 August 2010 by unanimous verdict of the jury the appellant was found guilty of the charge of assault alleged in count 1. On the second count he was found guilty of the alternate offence of aggravated causing harm with intent to cause harm. He was found not guilty of count 3.
Circumstances of offending
On the day in question the appellant had been to a hotel with others. The appellant had to walk home because the car he had been driving became stuck. When he arrived back at the house he punched C in the head for no apparent reason (count 1). Following that incident there was an argument between the appellant and H, who went outside and was calling the appellant to come outside for a fight. C went outside to tell H to come into the house. The appellant then went outside and told both C and H to return inside. When C did not comply the appellant grabbed her and stabbed her to the left side with a knife (count 2). C was subsequently taken to the Port Augusta hospital with her son, where the wound was treated. The judge sentenced the appellant on the basis that C had made a full recovery from the stabbing, apart from some scarring.
Penalties
The maximum penalty the offence of assault is two years imprisonment.[1] The maximum penalty for the offence of aggravated causing harm with intent to cause harm is 13 years imprisonment.[2]
[1] Section 20(3)(a) Criminal Law Consolidation Act 1935.
[2] Section 24(1)(b) Criminal Law Consolidation Act 1935.
Appellant’s criminal record for domestic violence
In his sentencing remarks the Judge referred to the appellant’s “appalling criminal record”, which included many offences of violence, including domestic violence.
On 12 November 1986 the appellant was sentenced by a Supreme Court Judge to a total of 2 years imprisonment with a non-parole period of 12 months on one count of unlawful wounding and four counts of assault. One of the victims was the appellant’s then de facto partner. She had been hit with a beer bottle and then stabbed on several occasions with a knife.
On 17 February 1989 the appellant was sentenced to 6 years and 9 months imprisonment on a charge of robbery with violence, the victim being a 59 year old female who had been punched more than once during the course of the robbery.
On 12 November 1992 the appellant pleaded guilty to the murder of his then de facto wife. He had stabbed her with a knife intending to cause her grievous bodily harm. The sentencing judge described the murder as vicious and brutal. She was trying to run away from the appellant when he chased her. She fell and was stabbed as she lay on the ground. The appellant was sentenced to life imprisonment and the Court fixed a non-parole period of 14 years and 5 months. [3]
[3] The Sentencing Judge inadvertently referred to a non-parole period of 15 years and 5 months but that does not affect the outcome of this case.
Appellant’s parole history
As I have just mentioned, on 12 November 1992 the appellant was sentenced to life imprisonment for the crime of murder with a non-parole period of 14 years and 5 months. That took into account 7 months spent in custody. That was extended on 9 December 1992 by 15 months for other prior offending and for a further 2 months on 8 July 1997 for the assault of a prison officer while incarcerated. The appellant’s non-parole period was subsequently reduced in accordance with Truth in Sentencing legislation. According to the calculations of the Parole Board, the appellant was eligible for release on parole on 30 May 2003. However that release was subject to a recommendation from the Parole Board, together with the approval of the Governor in Executive Council.
The appellant made an application for release on parole on 30 December 2002 but that was refused in September 2003. The appellant filed a further application on 27 September 2004. The Parole Board subsequently recommended his release but that recommendation was rejected by the Governor in Executive Council on 3 November 2005. The appellant again applied for parole on 22 May 2006. On 18 December 2007 the Parole Board recommended that the appellant be released on parole for a period of 10 years. That recommendation was finally approved on 24 January 2008 by the Governor in Executive Council. The appellant was then released just a few days later, ie on 30 January 2008. At the completion of the period of release fixed by the Parole Board the appellant’s life sentence would have been fulfilled. However the appellant was subsequently arrested in August 2008 on a breach of parole condition for drinking at Coober Pedy. That particular breach was eventually not proved but the appellant was nevertheless found to have breached his parole conditions by using cannabis. The appellant was once more released on parole on 5 February 2009 but he breached a residential condition and on 10 March 2009 a parole warrant was issued for his arrest. On 19 April 2009 the appellant committed the offences which were the subject of the sentence in the District Court.
Application for declaration that applicant be declared a serious repeat offender
In the course of sentencing submissions, counsel for the DPP made an application to the Judge for a declaration that the appellant be declared a serious repeat offender pursuant to the provisions of s 20B Sentencing Act. Section 20B is in the following terms:
20B—Declaration that person is serious repeat offender
(1) A person is liable to be declared a serious repeat offender if the following conditions apply:
(a)the person (whether as an adult or as a youth)—
(i)has committed on at least 3 separate occasions an offence to which this Division applies (whether or not the same offence on each occasion); and
(ii)has been convicted of those offences; or
(b)the person (whether as an adult or as a youth)—
(i)has committed on at least 2 separate occasions a serious sexual offence against a person or persons under the age of 14 years (whether or not the same offence on each occasion); and
(ii)has been convicted of those offences.

(3) If a court convicts a person of a serious offence, and the person is liable, or becomes liable as a result of the conviction, to a declaration that he or she is a serious repeat offender, the court—
(a)must consider whether to make such a declaration; and
(b)if of the opinion that the person's history of offending warrants a particularly severe sentence in order to protect the community—should make such a declaration.

(4) If a court convicts a person of a serious offence, and the person is declared (or has previously been declared) to be a serious repeat offender—
(a)the court is not bound to ensure that the sentence it imposes for the offence is proportional to the offence; and
(b)any non-parole period fixed in relation to the sentence must be at least four‑fifths the length of the sentence.

The appellant opposed the making of the declaration, primarily on the ground that it would be “an exercise in futility” as the appellant had become liable to serve the balance of his sentence of life imprisonment as a result of breaching his parole by the commission of the subject offences. The Judge did not accept that submission. In his sentencing remarks the Judge reviewed the offending history of the appellant and had regard to the extensive submissions made by counsel for the appellant with respect to the circumstances surrounding the appellant’s childhood, adolescence and background. The Judge considered that those matters had been taken into account in the appellant’s favour on many occasions in the past and that the time had now come for the appellant’s personal circumstances to be regarded as secondary to the necessity to protect the community from his violent behaviour. He had regard to the provisions of s 20B(4)(a) which enabled him to impose a sentence which was not proportional to the offence and considered that s 20B had some work to do with respect to the head sentence. The Judge then made a declaration pursuant to s 20B(3)(b) Sentencing Act that the appellant was a serious repeat offender. Pursuant to s 18A Sentencing Act he sentenced the appellant to 6 years imprisonment for the two offences of which he had been found guilty. The Judge then referred to the decision of the Full Court in R v Armstrong,[4] and consistent with that authority, declined to fix a non-parole period and informed the appellant that he would have to make an application to the Supreme Court pursuant to s 32(3) of the Sentencing Act for that to occur.
[4] (1990) 54 SASR 207.
Ground 1 – Did the Judge err in declaring appellant a serious repeat offender?
Section 20B(1) Sentencing Act provides that a person is liable to be declared a serious repeat offender if, inter alia, he has on at least three separate occasions committed a serious offence which has resulted in a sentence of imprisonment other than a suspended sentence. In this case there was no dispute that the discretion pursuant to s 20B(1) was enlivened. The appellant’s extensive offending history, included the following offences, which were serious offences as defined by s 20A:[5]
[5] In his remarks the Sentencing Judge also referred to a conviction for occasioning actual bodily harm committed on 29 May 1984. However that was the result of a misunderstanding of a document tendered by counsel for the DPP who had overlooked the fact that no term of imprisonment had been imposed for that particular offence. It therefore should have been excluded from consideration. However, that error is of no moment, in view of the substantial number of other offences to which the section applied.
1 March 1983 – Indecent assault and rape.
24 September 1986 – Assault occasioning actual bodily harm.
12 November 1986 – Unlawful wounding.
7 February 1989 – Robbery with violence.
12 November 1992 – Murder.
9 December 1992 – Assault occasioning actual bodily harm.
5 June 1997 – Assault occasioning actual bodily harm.
8 July 1997 – Assault occasioning actual bodily harm.
16 October 2001 – Assault occasioning actual bodily harm.
The appellant was therefore liable to be declared a serious repeat offender as a result of those convictions. The offences which were the subject of sentencing before the District Court Judge were also serious offences as defined by s 20A. Section 20B therefore applied. Section 20B(3)(a) provides that the court must in those circumstances consider whether to make such a declaration. Section s20B(3)(b) then provides the Court with some discretion as it states that if the Court is of the opinion that the person’s history of offending warrants a particularly severe sentence in order to protect the community – the Court should make such a declaration.
The Judge therefore correctly applied the provisions of ss 20B(1) and 20B(3)(a). The question which arises is whether he erred in his application of s 20B(3)(b). On appeal, counsel for the appellant repeated the submission put to the District Court Judge that the declaration was not required in this case for the protection of the public in view of the re-activation of the appellant’s life sentence. Counsel submitted that the serious repeat offender provisions were not intended to apply to those who were liable to serve terms of life imprisonment as the community was adequately protected from such offenders as a result of their life sentence. Counsel referred to the comments of the Hon P. Holloway, AG in the Second Reading speech in the Legislative Council on 14 July 2003[6] in response to comments made by the Hon R D Lawson in the course of the debate, about a prisoner called Mark Erin Rust[7] who was the subject of an application for an indeterminate detention order.
[6] South Australia, Parliamentary Debates, Legislative Council, 14 July 2003, 2840 (Hon P. Holloway, Attorney General).
[7] Mr Rust had a long history of offending but eventually pleaded guilty to a number of charges, including the highly publicised murders of Megumi Suzuki and Maya Jakic. On 2 May 2003 Mr Rust was sentenced to life imprisonment with respect to both murders, such sentences to be served concurrently. Mr Rust also pleaded guilty to some other charges, including rape, and was found to be incapable of controlling his sexual instincts. An order was eventually made for his indeterminate detention and the court declined to fix a non-parole period.
Mr Holloway said:
[Mr Lawson] calls to his aid the case of Mark Erin Rust, who has pleaded guilty to two murders and a rape. The Mr Rusts of this world are not really the aim of this bill. Mr Rust and his like will be sentenced to very lengthy periods of imprisonment without this proposed power. Serious repeat offender legislation will not really bite those who are going to spend a substantial amount of time in prison in any event. In the case of murder, the head sentence is life anyway.
It is evident from the reference to the case of Rust that Mr Holloway was referring to the situation in which the court is imposing a sentence for the crime of murder. It is obvious that in such a case the serious repeat offender legislation will have little, if any, work to do as the legislation provides for a mandatory head sentence of life imprisonment for those convicted of murder and a mandatory minimum non-parole period of 20 years for that crime.[8] The protection of the community is therefore achieved by the lengthy periods of imprisonment which result from those provisions. But that is not this case. The appellant was not before the court for sentence with respect to the crime of murder. The District Court sentence related to the convictions for assault and aggravated causing harm and the making of the declaration was relevant to the appropriate penalty for those crimes. However the commission of those offences breached the appellant’s period on parole with respect to his earlier life sentence for murder. Section 75 Correctional Services Act 1982 (“CSA”), therefore applied to the fixing of the new non-parole period which had to include the life sentence as well as the sentence for the breaching offences.
[8] Section 32(5)(ab) Sentencing Act 1988.
It may be that the declaration will have less relevance where a person becomes liable to serve the balance of a sentence of life imprisonment or, for that matter, with respect to any person who is liable to serve a lengthy term of imprisonment for offences other than murder, as the new non-parole period is likely to be substantial and the community thereby protected. That may be a relevant matter for the sentencing court to take into account in a particular case when considering whether it should make the declaration. But, as the Judge indicated in his sentencing remarks, the declaration still has work to do. It enables the court to impose a disproportional sentencing for the offence(s) under consideration and it will also be relevant to the length of the non-parole period to be fixed in accordance with s 75 CSA.
It is also a matter which will be of assistance to the Parole Board when fashioning conditions for a prisoner’s later release on parole. Section 67(3)(a) CSA provides that the paramount consideration of the Board when determining an application for the release of a prisoner on parole must be the safety of the community. Section 67(4) CSA requires the Board to take into account a number of other matters when determining an application for release. This includes any relevant remarks made by the Court in passing sentence,[9] the likelihood of a prisoner complying with the conditions of parole,[10] as well as any other matters that the Board thinks relevant.[11] As can be seen, the focus of both s 20B(3)(b) Sentencing Act and s 67(3)(a) CSA is the safety or protection of the community. A declaration by a judge, as part of the sentencing process, that a prisoner is a serious repeat offender will therefore be a relevant matter for the Parole Board to consider when determining a prisoner’s suitability for release on parole.
[9] Section 67(4)(a) CSA.
[10] Section 67(4)(b) CSA.
[11] Section 67(4)(h) CSA.

However it is still necessary to determine the way in which s 20B(4)(b) operates with respect to fixing a new non-parole period with respect to a prisoner who is required to serve the balance of his life sentence as a result of breaching parole by the commission of further offences.
I have earlier referred to s 75 CSA. That provides that where a person is sentenced to imprisonment for an offence committed while on parole and that sentence is not suspended, the person is liable to serve in prison the balance of the sentence for which he or she is on parole, being the balance unexpired as the date on which the offence was committed. In the ordinary course the sentence for the breaching offence(s) is required to be cumulative on the unexpired period of parole. The new non-parole period is then fixed with respect to the total sentence of imprisonment which ensues. However, where a person is subject to a sentence of life imprisonment and breaches parole it is not possible to accumulate the sentences and the total sentence to be served remains that of life imprisonment.
Section 20B(4)(b) provides that once the declaration is made the non-parole period must be at least four-fifths of the head sentence (hereinafter called the “four-fifths” rule). In this case the head sentence was 6 years imprisonment for the two offences of which the appellant had been found guilty. If there had not been a breach of an existing non-parole period, the four-fifths rule would have resulted in a non-parole period of 4 years and about 10 months.
Counsel for the appellant submitted that in this case the four-fifths rule created an ambiguity as it potentially applied to the total term of imprisonment to be served by the appellant following his breach of parole. That was life imprisonment and was a term which was impossible to quantify. However, that is not the way the section operates. Section 20B(4)(a) refers to the sentence imposed by the Court and s 20B(4)(b) refers to the non-parole period to be fixed in relation to the sentence. That is clearly a reference to the new offence and not the total period to be served following the breach. This was considered by the Court of Criminal Appeal in R v Saunders,[12] ie whether s 20B(4)(b) required the non-parole period to be at least four-fifths of the sentence imposed for the subject offences or alternatively whether it required the sentence to be four-fifths of the total period to be served of which the subject offences formed part, White J said at [123]:
I think it reasonably plain, on an ordinary grammatical construction of s 20B(4)(b), that it applies in relation to the sentence imposed for the serious offence, and not to the total period in custody which, by virtue of some previous sentence, the offender is also liable to serve in custody. The “sentence” to which subs (4)(b) refers is the sentence imposed for that offence, or those offences, to which subs (4)(a) refers. In turn, that is the serious offence, or serious offences of which the court has convicted the person, as contemplated in the opening line of s 20B(4)(b). The sentence to which s 20B(4)(b) refers must therefore be the head sentence imposed for those offences. This means that the non-parole period must be at least four-fifths of the sentence which the Court has imposed for the offence or the offences to which subs (4)(a) refers, namely, the sentence which need not be proportional to the offence.
[12] [2011] SASCFC 37.
Those remarks are of equal application to the present case. The total sentence of life imprisonment is not subject to the four-fifths rule. The rule only applies to the head sentence imposed by the District Court Judge which, as earlier mentioned, in this case would have resulted in a non-parole period of 4 years and about 10 months. However, the District Court Judge declined to fix a non-parole period which means that the appellant is now required to apply to the Supreme Court to determine that matter.
Counsel for the appellant submitted that the effect of the procedure adopted by the District Court Judge was to fetter the discretion of the Supreme Court . The Supreme Court Judge in fixing a new non-parole period would be obliged to fix a term to reflect the total criminality of the offending,[13] but the making of the declaration meant that he or she would have to reflect the four-fifths rule in the determination of an appropriate non-parole period.[14]
[13] R v Beauregard-Smith (2001) 79 SASR 408.
[14] Section 20B(4)(b) Sentencing Act.
In my opinion, the declaration made in the District Court means that the Supreme Court Judge will be required to take into account, and apply, s 20B(4)(b) Sentencing Act in the determination of the appropriate non-parole period. That will fetter the discretion of the Judge who fixes the non-parole period, but that is the intent of the legislation. This section is just one of a number of legislative changes in recent years which limit the discretion of sentencing judges and requires the imposition of mandatory minimum non-parole periods with respect to those offenders who commit serious crimes.[15] The effect of the declaration is that in circumstances such as this the Supreme Court Judge will be required to fix a non-parole period which will be no less than four-fifths of the sentence imposed in the District Court which in this case will be a minimum of 4 years and about 10 months. However, I do not consider that to be inconsistent with the requirement for the new non-parole period to reflect all of the appellant’s criminality. It will still be open to the Supreme Court Judge, when fixing the non-parole period for the total sentence, to fix a term which is appropriate in the circumstances. However, that is likely to be higher than the minimum non-parole period resulting from the declaration and sentence imposed in the District Court.
[15] Amendments to s 32 Sentencing Act which came into effect on 1 November 2007 provide for minimum non-parole periods for certain crimes. In fixing a non-parole period for a person sentenced to life imprisonment for an offence of murder, sub-section 32(5)(ab) sets a minimum of 20 years for a crime at the lower end of objective seriousness. In fixing a non-parole period in respect of a person sentenced to imprisonment for a serious offence against a person, sub-section 32(5)(ab) provides that the mandatory minimum non-parole period must be four-fifths the length of the sentence.
Ground 2 – Was the sentence manifestly excessive?
In addition to the complaint with respect to the declaration of the appellant as a serious repeat offender, counsel submitted that the head sentence of 6 years was manifestly excessive. He submitted that the Judge had erred in finding that the offence of aggravated causing harm was a particularly serious example of that offence when the jury had acquitted the appellant of the greater charge of aggravated causing serious harm. He also submitted that there were personal circumstances of the appellant that warranted particular consideration independently of the s 20B declaration, such as the appellant’s significant psychological problems. He also referred to matters arising out of the appellant’s parole history which disclosed that he had remained in custody for several years after becoming eligible for release and then was released from gaol at short notice without the usual preparations for returning to society. These were relevant matters for the Judge to take into account, but it is evident from his remarks that he had regard to all of them. In my opinion the Judge was correct in concluding that the appellant’s personal circumstances had to be regarded as secondary to the need to protect the community from his violent behaviour. The appellant’s antecedent history includes a number of prior offences of violence , including some against women, which included the use of a knife as a weapon. Personal deterrence and the protection of the community were clearly significant factors to be taken into account with respect to penalty. Although the conviction of the appellant with respect to Count 2 was of the lesser offence of aggravated causing harm with intent, the circumstance of aggravation was the use of a knife. This Court has said on many occasions that when a weapon, namely a knife, is introduced into an inflamed situation, the offender should be well aware of its danger.[16] As King J said In R v Piotrowski at p 256:
… it is necessary that the sentences imposed by courts should be a warning and a deterrent to those who are tempted to introduce a lethal instrument such as a knife into a potentially violent situation.
[16] (1990) 156 LSJS 254.
However, it appears from the sentencing remarks in this case that the Judge sentenced the appellant on the erroneous understanding that the appellant had pleaded guilty to the charge of assault, whereas the conviction for that offence was the result of a verdict of the jury. In his remarks the Judge indicated that he had allowed a deduction for the plea, but did not specify the amount. When the error was drawn to the Judge’s attention after he had imposed sentence, the Judge indicated that he had only reduced the sentence for the plea by a small amount, but as that made the sentence more lenient he decided to leave the sentence as it was, ie at 6 years.
As the Judge gave credit to the appellant for a plea of guilty, the starting point for the sentence was a little higher than the 6 years finally imposed but, as the Judge indicated, that error was to the appellant’s advantage. In my opinion, the sentence of 6 years imposed by the Judge was well within a range appropriate for this offending without needing to have any recourse to the s 20B declaration. To the extent that the 6 year sentence represented a disproportionate sentence following the s 20B declaration, in my opinion it can be regarded as moderate.
Ground 3 – The decision in R v Armstrong[17]
[17] (1990) 54 SASR 207.
Section 32 Sentencing Act is concerned with the duty of the Court to fix or extend a non-parole period but it also includes a provision permitting the Court to decline to fix a non-parole period in certain circumstances. This was a matter which was considered in R v Armstrong, the circumstances of which are similar to those which arose in the present case. The appellant in Armstrong was convicted of a number of counts of housebreaking and larceny. He was on parole when the offences occurred, serving a life sentence for murder. A District Court Judge sentenced him to an unsuspended term of imprisonment for the dishonesty offences, which meant that the appellant was liable to serve the balance of his life sentence. The Full Court considered the effect upon the appellant’s parole of the fresh sentences imposed in the District Court and discussed the construction of s 32 Sentencing Act. Cox J (with whom King CJ and Duggan J agreed) said at [228]:
That leaves the question whether the learned judge acted correctly in declining to fix a non-parole period in the case of this appellant.
There is no doubt that the judge had power to fix a non-parole period here. Subsection (5)(b) prevents a court of summary jurisdiction from fixing or extending a non-parole period in the case of a person who is already serving a sentence of life imprisonment, but there is no such restriction expressed in the case of the District Court and I see no good reason for inferring one. When it is a matter of extending an existing non-parole period fixed by the Supreme Court, the District Court judge will have no option. Whatever the gravity of the earlier offence, he will have to make the subs (1) order himself. No-one else has the power to do it. The choice between acting or declining will only arise, with these mixed sentences, where for some reason the prisoner is not subject to an existing non-parole period. Such instances will be uncommon. In the case of many offences triable in the Supreme Court, the simplest and desirable course will be for the District Court judge himself to fix the non-parole period. Where, however, it is a matter of taking into account a prior conviction for murder, and the consequent life sentence, I think it will normally be desirable for the District Court to decline jurisdiction, as it were, and to allow the prisoner to make an application under subs(3), which will necessarily be to the Supreme Court. See subs (10)(c)(ii). In that way the non-parole period can be fixed by the Court that is used to dealing with very serious crimes and the non-parole periods appropriate to them. I see no difficulty in applying the words “any other circumstance” in subs (5)(c)(iv) to such a case. In my opinion, the learned judge acted correctly in declining to fix a non-parole period here.
In this case the District Court Judge followed Armstrong and declined to fix a non-parole period, leaving it to the appellant to make an application to the Supreme Court. As I understand the matter there was no submission put to the District Court Judge that he should not have proceeded in that way. However, on appeal, counsel for the appellant submitted that there was no longer any reason to restrict the ability of the District Court to set a new non-parole period. Section 20B Sentencing Act came into force on 27 July 2003 and therefore post-dated the decision in Armstrong. Counsel also referred to the provisions of s 32(5)(b) Sentencing Act which had been amended since it was considered by the Court in Armstrong.[18]The section currently provides:
Where a person who is subject to a sentence of life imprisonment is further sentenced to imprisonment by the Magistrates Court or the Youth Court, the question of whether a non-parole period should be fixed or extended must be referred to the Court by which the sentence of life imprisonment was imposed.
[18] Amendments were made to s 32(5)(b) Sentencing Act on 18 December 1995 and 1 October 1998.
Counsel for the appellant submitted that as a matter of statutory construction the fact that the section specifically excluded the Magistrate and Youth Courts, but not the District Court, meant that the District Court now had jurisdiction to deal with a case such as this in which a person subject to life imprisonment required a new non-parole period to be fixed. Counsel also submitted that the requirement for the appellant to make an application to the Supreme Court was an unnecessary duplication of proceedings when all the relevant information had been provided to the District Court Judge as a result of the trial and sentencing. That would now have to be repeated in the Supreme Court. Counsel also relied on the fetter of the discretion of the Supreme Court, as discussed earlier in these reasons, as another reason why Armstrong should no longer be followed.
In my opinion, the s 20B proceedings and the amendments to s 32(5)(b) Sentencing Act do not require the Court to depart from the principles enunciated in Armstrong. I regard the amendment to s 32(5)(b) to be of no significance as the wording of the section as discussed in Armstrong was as follows:
(b)where a person who is subject to a sentence of life imprisonment is further sentenced to imprisonment by a court of summary jurisdiction, the question of whether a non-parole period should be fixed or extended must be referred to the court by which the sentence of life imprisonment was imposed;
Although there have been a number of amendments to s 32 since Armstrong was decided it can be seen that s 32(5)(b) is essentially in the same terms as are the other sections which were relevant to the decision in that case.
The Court in Armstrong did not suggest that the District Court did not have the power to fix the non-parole period but expressed the view that where it was necessary to take into account a prior conviction for murder and the consequent life sentence, it would normally be desirable for the District Court to decline jurisdiction and allow the prisoner to make an application to the Supreme Court. In my opinion that is still the situation. Inevitably there will be some duplication with respect to submissions and reports but that is no different to what occurred in Armstrong and in my opinion is not affected by the s 20B declaration. The declaration does no more than inform the court fixing the non-parole period of the approach to sentence taken by the sentencing judge. In any event, the fetter on the discretion which results from the declaration will apply to any Judge who eventually fixes the non-parole period. It does not matter whether that is a Supreme Court or a District Court Judge. I consider that the District Court Judge in this case was correct in the procedure which he adopted. In my opinion the appeal should be dismissed.
ANDERSON J: I would dismiss the appeal for the reasons given by Nyland J.
DAVID J: I would dismiss the appeal. I agree with the reasons of Nyland J.