R v Czubak

Case [2005] SASC 287

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v CZUBAK

Judgment of The Court of Criminal Appeal

(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice White)

1 August 2005

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE

Appeal against sentence – appeal against cumulative sentence imposed by sentencing Judge in respect of offence of aggravated serious criminal trespass in a non-residential building and offence of larceny and 39 other offences to which appellant had pleaded guilty in the Magistrates Court – appeal on grounds that sentencing Judge had incorrectly calculated the total sentence to be imposed and the date upon which it was to commence such that the sentence imposed was crushing.

Consideration of effect on sentence of breach of parole – discussion of section 75 of the Correctional Services Act 1982 (SA) and section 31(2) of the Criminal Law (Sentencing) Act 1988 (SA) – consideration of application of sections 30 and 32 of the Criminal Law (Sentencing) Act 1988 (SA) – consideration of relationship between sections 73 and 75 of the Correctional Services Act 1982 (SA) – discussion of relevant factors to take into account when re-sentencing.

Held by majority: appellant sentenced in respect of present offending to 2 years and 10 months’ imprisonment with reduction of 3 years, 2 months and 23 days made on account of time spent in custody – to be cumulative on unexpired portion of non-parole period – results in total head sentence of 9 years, 3 months and 8 days to commence from 1 August 2005 – non-parole period of 4 years and 9 months is fixed, commencing from 1 August 2005 - appeal allowed.

Criminal Law (Sentencing) Act 1988 (SA) s 18A, s 30(6), s 31(2) s 32; Correctional Services Act 1982 (SA) s 68(3), s 73, s 75; Summary Offences Act 1953 (SA) s 17; Prisoners (Interstate Transfer) Act 1982 (Qld) s 11; Prisoners (Interstate Transfer) Act 1982 (SA) s 18, referred to.
R v Bartels (1986) 44 SASR 260; R v Rossi (1988) 142 LSJS 451; R v Johnson (1986) 43 SASR 63; R v Simpson (2004) 89 SASR 515; R v Henstridge [2000] SASC 112; R v Zoneff (No 3) (2000) 113 A Crim R 423; Deas v Police  (Unreported, 7 August 1998), Supreme Court of South Australia, Bleby J, Judgment No S6789); Stehbens v Police [2004] SASC 227; R v Slater (1984) 36 SASR 524; Police v Ogden [2002] SASC 329; Kola v Parole Board of South Australia [2004] SASC 423; R v McFarlane (1999) 105 A Crim R 121; R v St Clair [2000] SASC 179; R v Major (1998) 70 SASR 488; R v Symonds [1999] SASC 217; R v Nylander (2003) 228 LSJS 24; R v Delphin (2001) 79 SASR 429; Kennett v The Queen (Unreported, 18 February 1992, Supreme Court of South Australia, Court…

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R v Czubak [2005] SASC 287
Case
[2005] SASC 287
Decision Date

CaseChat Overview and Summary

In the case of R v Czubak, the appellant appealed against the sentence imposed by the sentencing judge for the offence of aggravated serious criminal trespass in a non-residential building and larceny, as well as 39 other offences to which he had pleaded guilty in the Magistrates Court. The appellant contended that the sentencing judge had incorrectly calculated the total sentence to be imposed and the date from which it was to commence, resulting in a crushing sentence.

The legal issues before the court were whether the sentencing judge had correctly calculated the total sentence to be imposed and the date from which it was to commence. The court also considered the effect of the appellant's breach of parole on the sentence, and the relevant factors to take into account when re-sentencing. The court examined the relevant sections of the Correctional Services Act 1982 (SA) and the Criminal Law (Sentencing) Act 1988 (SA) in the context of the appeal.

The court held, by majority, that the appellant was sentenced in respect of the present offending to 2 years and 10 months' imprisonment with a reduction of 3 years, 2 months and 23 days made on account of time spent in custody. This sentence was to be cumulative on the unexpired portion of the non-parole period, resulting in a total head sentence of 9 years, 3 months and 8 days to commence from 1 August 2005. The non-parole period of 4 years and 9 months was fixed, commencing from 1 August 2005. The appeal was allowed.

DECISION:
The court found that the sentencing judge had made an error in calculating the total sentence to be imposed and the date from which it was to commence. The court held that the total sentence and the non-parole period should commence on the date of re-sentencing by the court, being 1 August 2005. The court had regard to the period spent by the appellant in custody from 8 May 2002 to 1 August 2005 and made a reduction for the period spent in custody. The sentence of imprisonment imposed with respect to the present offending was therefore 2 years and 10 months, to commence at the expiration of the unexpired period of parole. The total sentence to be served was therefore 9 years, 3 months and 8 days commencing on 1 August 2005. The non-parole period was fixed at 4 years and 9 months, referable to the total cumulative term of imprisonment of 9 years, 3 months and 8 days. The appellant would be eligible for parole on 1 May 2010.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The sentencing Judge made the following observations about a reduction for the appellant’s pleas of guilty:Although your plea of guilty to the charges of aggravated serious criminal trespass in a non residential building and larceny, which were committed on 13 January 2002, were only entered on the day of the trial in this court, I intend to give you credit for your pleas of guilty on the basis that by entering your pleas to all of the outstanding Magistrates Court matters in addition to the matter in this court, you have saved the State considerable time and expense in respect of running numerous trials in numerous different courts. Both counsel accepted that this was an appropriate approach to be taken in the present case. In arriving at an appropriate head sentence, we have made a reduction of the order of one quarter on account of the pleas of guilty and the appellant’s contrition and remorse. Although some of the pleas were made shortly before trial, the majority were entered at early stages of the proceedings.Conclusion The principle of totality allows the court to avoid imposing a crushing sentence.[4] In the present case when considering the application of this principle one factor to be borne in mind is that the sentence to be imposed is to be cumulative on the unexpired balance of a term of imprisonment. Although this earlier term of imprisonment cannot be reduced, it is a relevant personal circumstance to be considered when determining the appropriate sentence for the present offending conduct.[5] [4] R v Rossi (1988) 142 LSJS 451 at 453, R v Johnson.[5] R v Simpson (2004) 89 SASR 515 at [79]-[81]. A total term of imprisonment of 12 years and 6 months to include the balance of the unexpired period of parole of 6 years, 5 months and 8 days is an appropriate term. The total sentence and the non-parole period should commence on the date of re-sentencing by this Court. In this circumstance a reduction for the period spent in custody between 8 May 2002 and the date of re-sentencing, 1 August 2005, should be made. This is a reduction of 3 years, 2 months and 23 days. As we have observed, sections 73 and 75 of the Correctional Services Act do not stipulate the time at which the unexpired period of parole should commence. In this case, as earlier discussed, we consider that the period should commence at the date of sentence, being 1 August 2005. We have had regard to the period spent by the appellant in custody from 8 May 2002 to 1 August 2005. The sentence of imprisonment we intend to impose with respect to the present offending is therefore 2 years and 10 months. This term is to commence at the expiration of the unexpired period of parole. The total sentence to be served is therefore 9 years, 3 months and 8 days commencing on 1 August 2005. Had there been no reduction for time spent in custody, a non-parole period of 8 years would have been appropriate. However, as the non-parole period is to take effect from 1 August 2005, we would fix a period of 4 years and 9 months. The non-parole period is referable to the total cumulative term of imprisonment of 9 years, 3 months and 8 days. The appellant will be eligible for parole on 1 May 2010.

Ratio Decidendi

Legal Principle Established

Neither section 73 nor section 75 stipulate the time from which the sentence that the appellant is liable to serve for a breach of parole commences. White J concludes that it cannot commence prior to 30 July 2002. As we have said, we consider it is unnecessary for us to decide that question in this case, as we intend to order that any unexpired period of parole and a non-parole period are to commence as of today, that being 1 August 2005. In so doing, we intend to give credit to the appellant for the time spent in custody from 8 May 2002 until 1 August 2005.Considerations on Re-sentencing The circumstances of the offending as outlined by the sentencing Judge were accepted by both counsel. The offending commenced in November 2001 and continued through until May 2002. The modus operandi of the appellant was similar in most cases. He would break into private homes, through doors or windows, on occasions, where necessary, causing damage. The homes were generally unoccupied. On most occasions property was taken. Fingerprints were often left by the appellant. In all, property to a value of about $60,000 was taken. On several occasions residents were present. The sentencing Judge summarised the appellant’s criminal antecedents as follows:You are now 30 years old. You first appeared in the Adelaide Children’s Court in 1990 charged with larceny, illegal use, property damage, assault, driving whilst unlicensed, resisting arrest and other offences. Since that time you have regularly appeared in court charged with offences of dishonesty, property damage, traffic matters, illegal use of motor vehicles, assaults, breaking, entering and larceny, as that offence used to be known, or as the offence of aggravated or non aggravated criminal trespass used to be known.In 1993, you were sentenced to two years and three months with a non-parole period of 12 months for a series of offences. Whilst on parole for that offending, you committed further offences for which you were sentenced in 1995 to four years, three months and nine days with a non parole period of 18 months.In 1996, for further offences, your head sentence was increased to eight years, 11 months and 15 days and a non-parole period of two and a half years was imposed.You escaped from custody on 3 December 1996 and you went to Queensland where you were sentenced by the Supreme Court in Queensland at Townsville for a further series of offences committed whilst you had escaped from custody. These included further offences of dishonesty, breaking and entering and offences of violence.You were returned to South Australia under the Transfer of Prisoners Scheme, I think, and in March 2000, you were sentenced in this court for the offence of escaping from custody. You received a head sentence at that time of 10 years, three months and 15 days with a non-parole period of three years and three months. You were released on parole on 7 September 2001. Within months, you commenced this spate of offending for which you are to be dealt with today. Your record it seems, contains numerous breaches of parole as a result of which previous parole has been cancelled and you have then become liable to serve the balance of the unexpired parole from that previous sentence.