R v Czubak - [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 of Criminal Appeal), considered.

R v CZUBAK
[2005] SASC 287
Court of Criminal Appeal Gray, Sulan and White JJ
GRAY and SULAN JJ
Introduction

This is an appeal against sentence.
The appellant pleaded guilty before a Judge of the District Court to the offence of aggravated serious criminal trespass in a non-residential building and the offence of larceny.
At the same time the appellant was sentenced in respect of 39 other offences to which he had pleaded guilty in the Magistrates Court on an earlier occasion. Those offences included 19 counts of non-aggravated serious criminal trespass in a place of residence, 17 associated counts of larceny, one count of attempted non-aggravated serious criminal trespass in a place of residence, one count of being unlawfully on premises and one count of failing to comply with a bail agreement. All matters had been referred to the District Court.
With respect to all but one offence, the learned sentencing Judge proceeded pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA) and imposed the one sentence.[1] That sentence was a term of of 9 years. Had it not been for the pleas of guilty, the Judge would have imposed a sentence of 12 years’ imprisonment. The remaining offence of being unlawfully on the premises was dealt with separately. The appellant was convicted but no other penalty was imposed.
[1] Section 18A provides:
The appellant’s conduct breached the terms of parole granted in respect of an earlier sentence. That sentence had been imposed on 23 March 2000, inter alia, for the offence of escape from custody. On that occasion the appellant was sentenced to imprisonment for 10 years, 3 months and 15 days. A non-parole period of 3 years and 3 months had been fixed. As a result of the present offending conduct, the Parole Board cancelled the appellant’s parole and ordered that the appellant serve 6 years, 5 months and 8 days being the unexpired balance of parole remaining as at 10 March 2002. The Parole Board was of the view that the appellant commenced serving the unexpired period of parole on 8 May 2002. The parties agreed that this view was correct.
The sentencing Judge concluded:
In respect of all the other offences; namely, the 19 counts of non aggravated serious criminal trespass in a place of residence, one count of aggravated serious criminal trespass in a non residential building, the one count of attempted non aggravated serious criminal trespass in a place of residence, the 18 associated counts of larceny and the one count of failing to comply with the bail agreement, I impose one sentence pursuant to s.18A of the Criminal Law (Sentencing) Act. If it had not been for your plea of guilty, I would have sentenced you to 12 years imprisonment. By virtue of your pleas of guilty, both in the Magistrates Court and in this court, I reduce that sentence to 9 years.
I am then required to add the period of 3 years, 10 months and 2 days, being the unexpired period of the balance of your parole after giving you credit for that time already served since 8 May 2002. That makes a total head sentence of 12 years, 10 months and 2 days. I set a non-parole period of 8 years.
It is evident from the sentencing Judge’s remarks that she intended the sentence to commence on the day of sentencing, 14 December 2004. This was expressly confirmed in the court’s record of proceedings signed by the Judge.
The Issues Arising on The Appeal
The sentencing Judge was obliged to order that the sentence of 9 years be served cumulatively on the unexpired balance of the sentence for which the appellant had been on parole.[2] That unexpired balance was a term of imprisonment of 6 years, 5 months and 8 days, not a term of 3 years, 10 months and 2 days as stated by Her Honour. The total sentence to be served by the appellant was a term of 15 years, 5 months and 8 days. Did the Judge intend this result?
[2] Section 75 of the Correctional Services Act1982 (SA).
The sentencing Judge fixed a non-parole period of 8 years with respect to the total term of imprisonment. Did the Judge intend the 8-year period that she fixed to be referable to a head sentence of 12 years, 10 months and 2 days or a head sentence of 15 years, 5 months and 8 days?
Breach of Parole
When a breach of parole has occurred and parole is cancelled, a defendant must first serve the balance of the unexpired portion of the term of imprisonment, the subject of the cancelled parole. Section 75 of the Correctional Services Act 1982 (SA) and section 31(2) of the Sentencing Act govern the situation and are relevantly in the following terms:
Section 75
(1)Where—
(a)     a person is sentenced to imprisonment for an offence committed while on parole and the sentence is not suspended; or
(b)     the suspension of a sentence of imprisonment imposed for an offence committed by a person while on parole is revoked,
the person is liable to serve in prison the balance of the sentence, or sentences, of imprisonment in respect of which he or she was on parole, being the balance unexpired as at the day on which the offence was committed.
(1a)Subsection (1) applies notwithstanding that, at the time of conviction of the person or of the revocation of the suspended sentence, the parole may have expired or been discharged.
(2)Where a person referred to in subsection (1) is, at the time of conviction or revocation of the suspended sentence, still on parole, the parole is, by virtue of this subsection, cancelled.
Section 31(2)
Where a sentence of imprisonment is imposed for an offence committed by the defendant—
(a)during a period of release on parole or conditional release; or
(b)     while serving a period of imprisonment pursuant to an order of the Parole Board for breach of parole conditions,
the sentence will (except where one of the sentences to which the defendant is subject is life imprisonment) be cumulative upon the sentence, or sentences, in respect of which the defendant was on parole.
The effect of these provisions is that a court is obliged when imposing a custodial sentence to direct that the sentence be cumulative on the balance of the unexpired sentence the subject of the breach of parole.[3]
[3] R v Bartels (1986) 44 SASR 260.
In the present case the sentencing Judge was obliged to order that the sentence of 9 years’ imprisonment be cumulative on the unexpired period of the appellant’s parole. As the unexpired period was 6 years, 5 months and 8 days, the total sentence to be served in prison was 15 years, 5 months and 8 days. That period expired on 16 October 2017, assuming a commencement date of 8 May 2002.
The Non-Parole Period
The non-parole period fixed by the sentencing Judge had to be referable to the total period of imprisonment faced by the appellant. Section 32 of the Sentencing Act provides:
(1)Subject to this section, where a court, on convicting a person of an offence, sentences the person to imprisonment, the court must –
(a) if the person is not subject to an existing non-parole period – fix a non-parole period; or
(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);
...
(2)Where the sentence of imprisonment is imposed for an offence committed during a period of release on parole or conditional release from a previous sentence of imprisonment or detention, the court, in fixing a non-parole period under subsection (1)(a), must have regard to the total period of imprisonment (or detention and imprisonment) that the person is, by virtue of the new sentence and the balance of the previous sentence, liable to serve.
The sentencing Judge was obliged by the terms of section 30 of the Sentencing Act to specify the date on which the non-parole period was to commence or was to be taken to have commenced. Section 30(6) provides:
If, on imposing a sentence of imprisonment, the court fails to specify the date on which or the time at which the sentence is to commence or is to be taken to have commenced, the sentence –
(a)     will, in the case of a defendant not then in custody, commence on the day on which the defendant is subsequently taken into custody for the offence; or
(b)     will, in the case of a defendant already in custody for the offence, be taken to have commenced on the day on which the defendant was last so taken into custody; or
(c)     will, in the case of a defendant in custody for some other offence, commence on the day on which the sentence is imposed, unless the sentence is to be served cumulatively pursuant to this Act or any other Act.
In the present case the appellant had been in custody since 8 May 2002. In this circumstance it would be unfair and unjust if the time spent in custody by the appellant could not be brought to account. The parties agreed that it would be appropriate for the non-parole period to commence on 8 May 2002.
A Crushing Sentence
Counsel for the appellant submitted that the total sentence of more than 15 years was a crushing sentence for an offender with cognitive impairment and whose offending did not involve any acts of personal violence. Counsel for the Crown acknowledged that a total term of imprisonment of more than 15 years was extremely high. In the circumstances, it appeared to this Court that the sentencing Judge may have been mistaken about the effect of operation of the statutory provisions. A report was sought from the sentencing Judge. The Judge’s report confirmed that she had intended that the appellant serve a total sentence in the range of 12 years’ imprisonment and be subjected to a non-parole period somewhere in the range of seven to 10 years.
On appeal, it was submitted that the sentencing Judge misunderstood the effect of section 75 of the Correctional Services Act and section 31(2) of the Sentencing Act. As earlier observed, the Judge was required by those provisions to make the sentence that she proposed to impose cumulative on the balance of the unexpired previous parole to be served. That balance was 6 years, 5 months and 8 days, not the period of 3 years, 10 months and 2 days referred to in the Judge’s sentencing remarks. Rather than there being a total sentence of imprisonment of 12 years, 10 months and 2 days, as appears was intended, a total sentence of imprisonment of 15 years, 5 months and 8 days was to be served.
Having regard to the misapplication of sentencing principle, we have reviewed the sentence and have concluded that it is manifestly excessive. It is appropriate that the appellant be re-sentenced.
It should be pointed out that the Judge’s misapprehension of the effect of the statutory provisions is not uncommon. Similar misapprehensions have occurred on the part of other Judges in the past. The legislation is complex and on occasion can be difficult to follow and apply. Attention is drawn to the convoluted nature of the present legislative provisions so that consideration may be given to an amended and simplified legislative scheme.
Since preparing these reasons, we have had the opportunity to consider the draft reasons of White J. As His Honour observes, it seems clear enough that the sentencing Judge intended that the appellant should be subject to imprisonment for a total period of 12 years with that period commencing on 8 May 2002, the date on which the appellant was taken into custody. However, White J concludes that as a consequence of the provisions of section 73 of the Correctional Services Act, the non-parole period cannot commence prior to 30 July 2002, the date on which the Parole Board revoked the appellant’s parole.
White J reaches this conclusion by adopting a similar construction for section 73 of the Correctional Services Act to that taken by this Court when construing section 75 of the Correctional Services Act. White J identifies in his draft a number of anomalies that result from this construction of section 73. The most significant is the anomaly that a person may spend time in custody without that time being brought to account in an appropriate way. It is to be observed that these anomalies do not arise under section 75.
We would be reluctant to construe section 73 of the Correctional Services Act in a way that would allow such anomalies. The results would appear to be unintended by the legislature. Such a construction would not accord with the purposive approach to statutory construction. This issue did not arise during the hearing of the appeal and the parties have not had the opportunity of making submissions. A conclusion could not be reached on the proper construction of section 73 without reopening the hearing of the appeal. However, it is unnecessary to determine the point in these proceedings as the period spent in custody between 8 May 2002 and 30 July 2002 can be brought to account by making an allowance for the time spent in custody when determining an appropriate sentence.
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.
The maximum penalty for the offence of non-aggravated serious criminal trespass in a place of residence is 15 years’ imprisonment; for the offence of attempted non-aggravated serious criminal trespass in a place of residence is 10 years’ imprisonment; for the offence of larceny is 5 years’ imprisonment; for the offence of being unlawfully on premises is 6 months’ imprisonment or a fine of $2,500 or both; and, for the offence of failing to comply with a bail agreement, 2 years’ imprisonment or a fine of $10,000.

The appellant was born in Adelaide in 1974. He had no contact with his father from the age of two years and had lived with his mother and stepfather until the death of his mother in 1986. He then went to live with an uncle who he claimed had been physically abusive towards him. At the age of 13, he ran away to live with a friend to avoid the uncle’s abuse.
The appellant finished school at the age of 13, having commenced but not completed his first year of secondary education. He obtained part-time work as a panel beater. He has no formal qualifications.
The appellant was introduced to drugs by his uncle at the age of about 13 years. Since that time he has been a regular user of marihuana and heroin. He claimed to have been drug-free since late 2003.
A review by a psychologist concluded that the appellant had significant cognitive impairment and functioned within the mental retardation range. He had a neurotic personality with a poor ability to cope under stress and was then inclined to act in a dysfunctional manner. It was the opinion of the psychologist that the appellant had become “largely institutionalised”. The appellant is unlikely to be able to cope in society without considerable support. It was suggested that his volatile and unstable personality would incline him to cope poorly in situations of stress and that in that circumstance he may resort to the use of drugs to cope.
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.
The orders that we would make are as follows:
-that the appeal be allowed;
-that the appellant be sentenced in respect of the present offending to a term of imprisonment of 2 years and 10 months. In fixing this term, a reduction of 3 years, 2 months and 23 days has been made on account of the time spent in custody. In other words, the term of imprisonment for this offending is 6 years and 23 days of which the appellant has already served 3 years, 2 months and 23 days in custody;
-The term of imprisonment of 2 years and 10 months is to be cumulative on the unexpired portion of the non-parole period. This results in a total head sentence of 9 years, 3 months and 8 days. This total term of imprisonment is to commence from 1 August 2005;
-that a non-parole period with respect to the total head sentence of 4 years and 9 months be fixed commencing from 1 August 2005.
The appellant will be eligible for parole on 1 May 2010. His sentence will end on 1 November 2014.
Earlier in these reasons we referred to the unnecessarily convoluted nature of the legislative provisions. The above calculations demonstrate the difficulties that arise. The mathematical exactitude required does not lie well with the judgmental nature of the sentencing process.
WHITE J
Introduction
This is an appeal against a sentence imposed by a Judge of the District Court on 14 December 2004.
The appellant pleaded guilty to, and was sentenced for, a series of offences, comprising 19 offences of serious criminal trespass in a place of residence, 18 offences of larceny, one offence of attempted serious criminal trespass in a place of residence, one offence of aggravated serious criminal trespass in a non-residential building and one offence of failing to comply with a condition of a bail agreement. These offences were committed on various dates in early 2002. I will refer to these as “the 2002 offences”.
In addition, in November 2001 the appellant had contravened s 17 of the Summary Offences Act 1953 by being on premises without lawful excuse.
In respect of the offence of being unlawfully on premises the Judge imposed a conviction without further penalty. There is no appeal against that sentence. In respect of the remaining offences the Judge imposed, pursuant to s 18A of the Criminal Law (Sentencing) Act, one sentence of nine years imprisonment. That period was fixed after reducing the Judge’s starting point of 12 years by 25 per cent on account of the appellant’s pleas of guilty.
Because the offences were committed while the appellant was on parole for sentences imposed in respect of earlier offences, the sentence of nine years was made cumulative upon the unexpired portion of those sentences, as required by s 31(2) of the Criminal Law (Sentencing) Act.
The appellant had been arrested on 8 May 2002 pursuant to a warrant issued by the Parole Board. He had been held in custody since 8 May 2002. After giving the appellant credit for the period he had spent in custody between 8 May 2002 and 14 December 2004, the Judge determined that the unexpired portion of his previous sentences was three years, 10 months and two days. The addition of that period to the sentence of nine years imposed by the sentencing Judge meant that the total period to be served from 14 December 2004 was 12 years, 10 months and two days. The Judge referred to this as the head sentence. A non-parole period of eight years was fixed.
On appeal, it was submitted that the effect of the decision of the sentencing Judge, taking into account the time in custody since 8 May 2002, was a “head sentence” of 15 years five months and eight days and a non-parole period of 10 years seven months and two days.
It was submitted that such a sentence was manifestly excessive.
The imposition of an appropriate sentence in this case was not a straightforward matter.
The Appellant’s Recent Criminal History
The appellant was sentenced on 16 July 1996 for nine counts of breaking and entering a building and committing an offence, and one count of assaulting police. Those offences had been committed whilst the appellant was on parole in respect of a sentence imposed for earlier offending in 1993. The sentences imposed on 16 July 1996 were therefore made cumulative upon the unexpired portion of the earlier sentences of imprisonment. As a result of the sentences imposed on 16 July 1996, the total period in custody which the appellant was liable to serve was eight years, 11 months and 15 days. The sentencing Judge on that occasion set a new non-parole period, in respect of all offences, of two years and six months. Both the non-parole period and the head sentence were fixed to commence on 31 August 1995.
On 3 December 1996, and whilst serving that period of imprisonment, the appellant escaped from custody and fled to Queensland. At the time of his escape, the appellant had served one year, three months and two days of his sentence. At that time he therefore had unserved sentences of seven years, eight months and 13 days.
Whilst in Queensland, the appellant committed a series of further offences, for which a number of sentences were imposed in the Townsville and Ipswich Magistrates Courts and in the Supreme Court of Queensland. It is not necessary to detail the offences committed in Queensland apart from noting that they included one offence of breaking and entering, and two offences of theft.
The appellant was transferred to South Australia pursuant to the Interstate Transfer of Prisoners Scheme[6] on 30 September 1999 and resumed serving the sentence pursuant to which he had been in custody at the time of his escape.
[6]See Prisoners (Interstate Transfer) Act 1982 (Qld), s 11; Prisoners (Interstate Transfer) Act 1982 (SA), s 18.
Following a plea of guilty, on 23 March 2000 the appellant was sentenced to imprisonment for 16 months for the offence of escaping lawful custody committed on 3 December 1996. This sentence was made cumulative on his existing sentences. At the same time, and pursuant to s 32(1)(b) of the Criminal Law (Sentencing) Act, the sentencing Judge reviewed and extended the existing non-parole period. The non-parole period, which had been set at two years and six months, was extended by nine months, to make a new non-parole period of three years and three months. The effect of these orders was that the head sentences to be served by the appellant were to expire on 13 October 2008 and that the appellant was to become eligible for release on parole on 28 September 2001.
The appellant was in fact released on parole on 9 September 2001 rather than 28 September 2001. This appears to have been attributable principally to a reduction of the sentence by 16 days due to an industrial dispute which affected the prison system. The expiry date for the appellant’s head sentence total also appears to have been affected by the industrial dispute, so the Parole Board indicated that the head sentences were to expire on 18 September 2008.
The Present Offences
Shortly after release on parole, the appellant committed the offences to which the present appeal relates.
On 8 or 9 November 2001, the appellant was unlawfully on premises in Glenelg North. The appellant had opened a cyclone fence and removed a “doggy door” in the door of a home.
Thereafter, commencing on 3 January 2002 and continuing to 6 May 2002, the appellant committed the criminal trespass and larceny offences for which he was sentenced by the Judge. On 13 January 2002, the appellant, in company with others, broke into the premises of Betta Electrical at Parafield and stole property and money to the approximate amount of $8,000. This was the offence of aggravated serious criminal trespass in a non-residential building and one of the larceny offences.
The appellant broke into 19 homes in various suburbs of Adelaide. These were the offences of serious criminal trespass in a place of residence. On 17 of those 19 occasions, the appellant also committed the offence of larceny by stealing money, jewellery, electrical goods or other property. On all but one occasion the homes were unoccupied at the time of the trespass.
On 7 May 2002, the appellant attempted to break into a home at Magill. The male occupant of that residence was at home and heard the appellant trying to break in via the front door with a screwdriver.
The Appellant’s Arrest and the Cancellation of Parole
It was a designated condition of the appellant’s release on parole on 9 September 2001 that he was not to drive a motor vehicle unless he was the holder of a current driver’s licence. A finding of a breach of a designated condition results in automatic cancellation of parole.[7]
[7] Correctional Services Act 1982, s 68(3) and s 73(3).
On 10 March 2002, that is, whilst on parole, the appellant drove a motor vehicle when he was not a holder of a current driver’s licence. Accordingly, s 73 of the Correctional Services Act 1982 had application.
Section 73 provides:
(1)Where the Board finds that a person who has been released on parole has, while on parole, breached a designated condition, the person is, subject to this Part, liable to serve in prison the balance of the sentence, or sentences, of imprisonment in respect of which the person was on parole, being the balance unexpired as at the day on which the breach was committed.
(2)Subsection (1) applies notwithstanding that, at the time of finding the breach proved, the parole has expired or been discharged.
(3)Where a person referred to in subsection (1) is, at the time of finding the breach proved, still on parole, the parole is, by virtue of this section, cancelled.
On 21 March 2002, the Parole Board issued a warrant for the arrest of the appellant in relation to the suspected breach of the designated condition.
Pursuant to that warrant, on 8 May 2002, police located and arrested the appellant. At that time the appellant told the police that he had never resided at an address at which he was required to reside by the terms of a bail agreement. That led to the charge of failing to comply with a bail agreement to which I referred earlier.
Following his arrest on 8 May 2002, the appellant was taken into custody. Thereafter he remained in custody until he was sentenced on 14 December 2004.
The Parole Board interviewed the appellant on 30 July 2002 and the breach of the designated condition, constituted by his driving when unlicensed, was found proved. By operation of s 73(3) of the Correctional Services Act, the appellant’s parole was then cancelled and the defendant became liable to serve in prison the unexpired balance of the sentences in relation to which he was on parole as of the date of the breach, 10 March 2002.[8] The Parole Board calculated that, as at 10 March 2002, the unexpired balance of the appellant’s head sentences was six years, five months and eight days.
[8] Correctional Services Act 1982, s 73(1).
The Effect of the Sentencing for the 2002 Offences
The appellant pleaded guilty to all of the offences, including the breach of bail discovered by police on 8 May 2002 and the offence of being unlawfully on premises committed in November 2001. Some pleas were taken in the Magistrates Court and some in the District Court. A number of the offences had been committed before the date on which the breach of the designated parole condition occurred (10 March 2002). In those circumstances, and given the sentence of imprisonment imposed by the sentencing judge, s 75 of the Correctional Services Act 1982 is relevant. It provides:
(1)    Where -
(a)     a person is sentenced to imprisonment for an offence committed while on parole and the sentence is not suspended; or
(b)     the suspension of a sentence of imprisonment imposed for an offence committed by a person while on parole is revoked,
the person is liable to serve in prison the balance of the sentence, or sentences, of imprisonment in respect of which he or she was on parole, being the balance unexpired as at the day on which the offence was committed.
(1a) Subsection (1) applies notwithstanding that, at the time of conviction of the person or of the revocation of the suspended sentence, the parole may have expired or been discharged.
(2)Where a person referred to in subsection (1) is, at the time of conviction or revocation of the suspended sentence, still on parole, the parole is, by virtue of this subsection, cancelled.
Section 75(1) had the effect that, on the imposition of the sentence of imprisonment by the Judge on 14 December 2004, the appellant became liable to serve the balance of the sentences of imprisonment in respect of which he was on parole. The balance to be served was the portion of his sentences which were unexpired as at the first date on which an offence for which the new sentence of imprisonment was imposed had been committed. That was 3 January 2002. Thus, although the effect of the order of the Parole Board on 30 July 2002, in conjunction with s 73(1) of the Correctional Services Act 1982, was that the appellant became liable to serve the balance of the earlier sentences calculated as at 10 March 2002, the effect of the sentence imposed on 14 December 2004, in conjunction with s 75(1) of the Correctional Services Act 1982, was that the appellant became liable to serve the unexpired balance of that earlier sentence calculated as at 3 January 2002.
The Approach of the Sentencing Judge and Her Report
I reproduce the last part of the Judge’s sentencing remarks in relation to all offences other than that of being unlawfully on premises:
I impose one sentence pursuant to s 18A of the Criminal Law (Sentencing) Act. If it had not been for your pleas of guilty, I would have sentenced you to 12 years imprisonment. By virtue of your pleas of guilty, both in the Magistrates Court and in this Court, I reduce that sentence to 9 years.
I am then required to add the period of 3 years, 10 months and 2 days, being the unexpired period of the balance of your parole after giving you credit for that time already served since 8 May 2002. That makes a total head sentence of 12 years, 10 months and 2 days. I set a non-parole period of 8 years.
Thus the Judge first fixed, pursuant to s 18A of the Criminal Law (Sentencing) Act, a single sentence of nine years imprisonment for the 2002 offences. Section 31(2) of that Act required that that sentence be served cumulatively upon the unexpired balance of the previous sentence in respect of which the offender was on parole at the time of the 2002 offences. The Judge recognised this by saying that she was adding the unexpired period of the balance of the parole. As will appear below, in my respectful opinion, the Judge made an error in fixing the sentence of nine years for the 2002 offences without reference to the time served in custody since 8 May 2002, and in her calculation of the unexpired period of the previous sentence which the appellant was liable to serve.
The Judge provided a report to this Court. In that report the Judge said that she had contemplated “an effective head sentence in the range of 12 years” and that she intended to set an “effective non-parole period somewhere in the range of seven to ten years”. Her Honour explained that, “[b]y effective I mean from the date when he first went into custody and started to serve the term of unexpired parole”. As will appear later in these reasons, the appellant could not, on present authority, have commenced to serve the term of unexpired parole as at the date he was taken into custody. However, it seems clear enough that the Judge intended that the appellant should be subject to imprisonment for a total period of 12 years, with that period commencing on 8 May 2002, and that he should serve a minimum term of imprisonment of seven to ten years, calculated from 8 May 2002, before being eligible for parole.
Time in Custody and the Unexpired Period of an Earlier Sentence

Sections 73 and 75 of the Correctional Services Act are analogues. In the case of s 75 a person sentenced to imprisonment for an offence committed while on parole becomes liable to serve the unexpired portion of the sentence for which he or she was on parole. In the case of s 73 a person who is found by the Parole Board to have breached a designated condition of the parole becomes liable to serve the unexpired portion of the sentence in respect of which he or she was on parole.
Although each of s 73(1) and s 75(1) of the Correctional Services Act speak of the offender being “liable to serve” the balance of a previous sentence, and specify the date from which that balance is to be calculated, neither specifies, at least explicitly, the manner in which a period in custody prior to the date of finding of the breach by the Parole Board (in the case of s 73(1)) or prior to the date of sentence for the further offending (in the case of s 75(1)) is to be taken into account. However, in R v Bartels[9] each member of the Full Court held that where a person is sentenced to imprisonment for an offence committed while on parole and is liable, pursuant to s 75(1) of the Correctional Services Act, to serve the unexpired balance of the previous sentence, the person commences to serve that unexpired balance on the day on which he or she is sentenced for the offence committed whilst on parole and not on any antecedent date on which the person was taken back into custody.
[9] (1986) 44 SASR 260 at 267 per White J, at 276-7 per Johnston J and at 290 per O’Loughlin J.
This construction has been followed in a number of later cases.[10] The language in which s 75(1) is expressed has been taken to indicate that it is only when the person is sentenced for the later offence that he or she becomes liable to serve the unexpired portion of the previous sentence. In the absence of cancellation of the parole by other means, until the sentencing for the later offence there is no liability to serve the balance of the previous sentence.
[10]R v Henstridge [2000] SASC 112; R v Zoneff (No 3) [2000] SASC 175; (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.
Section 30(2) of the Criminal Law (Sentencing) Act 1988 permits a Court, when sentencing, to take account of a period already spent in custody in respect of the offence for which the sentence is being imposed, or to direct that a sentence of imprisonment be taken to have commenced on the day on which the defendant was taken into custody. However s 30(2) has no application to the balance of the sentence which the defendant becomes liable to serve by virtue of s 75(1) of the Correctional Services Act. Periods in custody prior to being sentenced cannot therefore be regarded as part of the service of a sentence which the person (not then having been sentenced for the later offence so as to trigger the operation of s 75(1)) was not then liable to serve. This was the view taken of the predecessor of s 75(1)[11] by King CJ in R v Slater[12] and followed in R v Bartels[13] in relation to s 75(1) of the Correctional Services Act. Any period spent in custody prior to the sentencing for an offence committed while on parole is to be taken into account in fixing the sentence for that offence.[14]
[11] Prisons Act 1936, s 42nf.
[12] (1984) 36 SASR 524 at 530.
[13](1986) 44 SASR 260 per O’Loughlin J; See also R v Zoneff (No 3) [2000] SASC 175; (2000) 113 A Crim R 423; Police v Ogden [2002] SASC 329.
[14]R v Slater (1984) 36 SASR 524 at 530 per King CJ; R v Bartels (1996) 44 SASR 260 at 267 per White J.
The same construction has been applied in the case of s 73. In Kola v Parole Board of South Australia[15] the plaintiff had been arrested and held in custody on a warrant issued by the Parole Board on account of his suspected breach of a designated condition of his parole. The Parole Board did not make the actual finding of the breach until the plaintiff had been in custody for many months. Doyle CJ applied Bartels in the context of s 73 and held that the time in custody before the finding of the breach could not be regarded as reducing the period which the plaintiff became liable to serve only on the finding of the breach.[16] Application of Bartels in the context of s 73 also has the effect that the offender commences to serve the unexpired balance of the previous sentence on the day on which the Parole Board makes the finding of breach of the designated condition.
[15] [2004] SASC 423.
[16] Kola v Parole Board [2004] SASC 423 at [51]–[58].
This construction is capable of producing anomalous results in the case of both s 73 and s 75. A defendant who is sentenced for a later offence to imprisonment for a shorter period than the period spent in custody while on remand cannot have the “surplus” brought into account in reduction of the original sentence. Further, a period spent in custody on remand for a later offence may not be brought into account at all if the Court does not impose a sentence of imprisonment for that later offence but the parole is later cancelled pursuant to ss 73 and 74 of the Correctional Services Act. Further again, a breach of a designated condition not amounting to a criminal offence, which leads to the arrest and detention of the defendant in custody, may result in a period in custody which may not be taken into account in determining the expiry date of the original sentence. The circumstances considered in Kola v Parole Board[17] provides another example of circumstances which may produce an unfair result. I agree with the view expressed by the Chief Justice in Kola that consideration by the Attorney-General of legislative amendment is appropriate.[18]
[17] [2004] SASC 423.
[18] Kola v Parole Board [2004] SASC 423 at [61].
However, the view adopted in Bartels is well established and has been followed in numerous decisions. It is the position which I consider should be applied in the circumstance of this case.
Application in the Present Case
Application of that construction of s 75(1) in the circumstances of this case would mean that the period spent in custody between 8 May 2002 and 14 December 2004 was not service of the unexpired portion of the sentences imposed on the appellant on 16 July 1996 and on 23 March 2000.
However, this case has the additional feature that the Parole Board found, on 30 July 2002, a breach of a designated condition of the appellant’s parole. By virtue of s 73(1) of the Correctional Services Act, that finding then triggered a liability in the appellant to serve the unexpired portion of the previous sentence. The appellant should therefore, in my opinion, be regarded as having been serving the unexpired portion of the previous sentences from 30 July 2002. That leaves, without account having been taken of it, the period in custody between 8 May 2002 and 30 July 2002 which, on the authorities referred to above, cannot be regarded as part of the service of the original sentences because in that period the appellant was not then liable, within the meaning of s 73(1) and s 75(1), to serve those sentences.
Against that background, I consider that the sentencing in this case has been affected by the following errors. First, the Judge was in error in determining the unexpired balance of the previous sentences by giving credit to the appellant for the whole of the time which he has spent in custody between 8 May 2002 and 14 December 2004. For the reason given above, the appellant could only be regarded as having been serving the prior sentences from 30 July 2002.
Secondly, the Judge has not appropriately taken account of the time which the appellant did spend in custody from 8 May 2002 to 30 July 2002. This period should have been taken into account in the fixing of the sentence for the 2002 offences.[19]
[19] R v Slater (1984) 36 SASR 524 at 530 per King CJ; R v Bartels (1996) 44 SASR 260 at 267 per White J.
Thirdly, the Judge has not taken account of the fact that the unexpired portion of the previous sentence which the appellant is liable to serve was to be calculated from 3 January 2002, and not 8 May 2002.
In addition, it is apparent that the Judge has not given effect to her own intention in sentencing as explained in her report. Although the Judge intended that the total of the terms of imprisonment to be served by the appellant with effect from 8 May 2002 was to be 12 years, the effect of her sentence is that, before allowing for the non-parole period, the appellant is to serve a total period in custody of 15 years, five months and eight days calculated from 8 May 2002. Ms Davison, who appeared for the DPP on the appeal, accepted that the sentence imposed by the Judge was significantly longer than the Judge had intended. Furthermore, Ms Davison did not seek to resist the appellant’s contention that the sentence imposed by the Judge, taking into account the time in custody since 8 May 2002, was manifestly excessive.
Both counsel submitted that it was appropriate for this Court to re-sentence the appellant. I am satisfied that it is appropriate to do so.
The Personal Circumstances of the Appellant
The appellant was born on 7 May 1974. He was just on 28 years old at the time of the 2002 offending. The appellant has a long history of offending with numerous convictions for offences of dishonesty including larceny, breaking and entering buildings, fraud, illegal use of motor vehicles, assaults and property damage. He has been imprisoned on many occasions. On several occasions, the appellant has committed offences whilst on parole. It is an aggravating feature that the 2002 offences were committed whilst the appellant was on parole.[20]
[20]R v McFarlane [1999] SASC 129; (1999) 105 A Crim R 121 at 123 [10] per Doyle CJ and at 126 [43] per Bleby J; R v St Clair [2000] SASC 179 at [12] per Mullighan J.
The appellant’s upbringing appears to have been rather unfortunate. He has had no contact with his father since the age of two years. His mother died when he was twelve years old. His relationship with members of his extended family appears to have been difficult, including a period during which he was subjected to physical abuse. The appellant left school at the age of 13. His first offending commenced soon thereafter. Although the appellant has admitted to being a regular user of cannabis and heroin in the past, he claims to have been drug-free during the period in which he has been in custody since 2002.
The appellant has been assessed by a psychologist as having low intelligence with poor non-verbal ability.
His antecedent record shows that he has spent the greater part of his adult life in correctional institutions. A psychologist has reported that he has become largely institutionalised and that his general level of functioning is poor.
The submission to the trial Judge was that the appellant had been released on parole in September 2001 with little preparation for his release and assistance in re-establishing himself in society. The submission was that his relapse into further offending occurred in that context and in the further context of him resorting to use of illicit drugs. The psychologist has reported that the appellant’s ability to cope in society at that time without considerable support was limited. He has described the appellant as having a volatile and unstable personality make-up.
It was submitted to the sentencing Judge that the appellant had come to the realisation that he had to change his behaviour if he was not to spend a substantial portion of the rest of his life in gaol. It was said that the appellant wishes to establish a better relationship with his nine year old son and further, has commenced establishing a relationship with his stepfather with whom he lived until the time of his mother’s death.
The Effect on the Victims
The sentencing Judge received Victim Impact Statements from three of the appellant’s victims. Each of those victims reported suffering varying levels of anxiety, distress, feelings of violation and insecurity about their homes and person as a result of the appellant’s conduct. It is reasonable to suppose that the appellant’s other victims have experienced similar impacts.
Section 18A of the Criminal Law (Sentencing) Act
In circumstances where multiple offences have been committed and use of the method of aggregating notional individual sentences will produce a starting figure which is so high that it is inevitable that there will be a substantial reduction in accordance with the principle of totality, it is appropriate not to apply the approach suggested in R v Major[21] and instead to fix a single sentence proportionate to the offending after taking account of the principle of totality.[22]
[21] (1998) 70 SASR 488.
[22]R v Symonds [1999] SASC 217 at [22] per Doyle CJ; R v Nylander [2003] SASC 191; (2003) 228 LSJS 24 at 39-40 [80]-[82] per Bleby J.
This is such a case. For each offence of serious criminal trespass, the appellant could expect to receive a term of imprisonment of at least 20 to 24 months,[23] perhaps more, given that the appellant had a significant prior record for offences of this type. Additional penalties would be imposed for the substantive offences committed during the course of the serious criminal trespasses. In the case of the present offending, those substantive offences are themselves very serious, amounting to larceny of money and goods having a total value of over $60,000. Were individual penalties to be imposed cumulatively for each separate offence, the appellant would be facing a combined total of head sentences well in excess of 30 years imprisonment. Such a sentence would be disproportionate and crushing, and would have to be reduced substantially on account of the principle of totality. Accordingly, it is appropriate to fix a single sentence without first determining notional individual sentences. In fixing that single sentence regard will have to be had to the principle of totality.
[23] R v Delphin (2001) 79 SASR 429 at 440 [47].
Re-sentencing
It is convenient for the re-sentencing of the Full Court to be made effective as from the date of the Judge’s sentence, namely, 14 December 2004.
In my opinion, an appropriate starting point for a single sentence for the 2002 offences is imprisonment for a term of eight years and four months. I would reduce that starting point by 25 per cent on account of the appellant’s pleas of guilty. That would result in a sentence of six years and three months. In addition, the appellant should be given credit for the period spent in custody from 8 May 2002 to 30 July 2002. I would round that period off as three months. That produces a head sentence of six years in respect of the 2002 offences.
The Parole Board has indicated, and both parties agree, that the unexpired balance at 3 January 2002 of the sentences imposed on 16 July 1996 and 23 March 2000 was six years, eight months and 15 days. The period in custody between 30 July 2002 and 14 December 2004 reduced that unexpired balance, as at 14 December 2004, to four years and four months. The sentence of six years which I would impose for the 2002 sentences is to be cumulative upon that period. Accordingly, the sentence of six years would commence to be served at the expiry of the earlier sentences.
I appreciate that when the sentence of six years is added to the unexpired balance of the previous sentences of four years and four months together with the period spent in custody from 8 May 2002 until 14 December 2004, an aggregate period of 12 years, 11 months and six days is reached. That period is greater than the period which the Judge said she had intended to impose but is less than the amount which the Judge did in fact impose. Nevertheless, I consider that the sentence of six years is an appropriate sentence for the 2002 offences in the circumstances of this case.
The Court is required, pursuant to s 32(1) of the Criminal Law (Sentencing) Act, to fix a non-parole period. A non-parole period must be fixed by reference to the period of imprisonment to which it relates.[24] A non-parole period cannot be ordered to commence on a date earlier than the date of commencement of the term of imprisonment to which it relates[25]. In this case, the earliest date on which the non-parole period could commence is 30 July 2002, but I consider it appropriate that it commence on 14 December 2004. The fixation of the non-parole period should take account of the period which the appellant has already spent in custody. I would fix a non-parole of six years which is to be taken to have commenced on 14 December 2004.
[24]Criminal Law (Sentencing) Act 1988, ss 32(1) and 32(2); Kennett v The Queen (Unreported, 18 February 1992, Supreme Court of South Australia, Court of Criminal Appeal).
[25] R v Bartels (1986) 44 SASR 260 at 267; Stehbens v Police [2004] SASC 227 at [18].
Summary
In summary, in my opinion the appeal should be allowed. In lieu of the sentence of imprisonment of nine years imposed by the sentencing Judge, I would impose a sentence of six years. That sentence is cumulative upon the unserved balance, four years and four months as at 14 December 2004, of the sentences in respect of which the appellant was on parole at the time of his offending in 2002. The sentence of six years should commence to be served at the expiration of four years and four months from 14 December 2004.
I would fix a non-parole period of six years to commence on 14 December 2004.

If a person is found guilty by a court of a number of offences, the court may sentence the person to the one penalty for all or some of those offences, but the sentence cannot exceed the total of the maximum penalties that could be imposed in respect of each of the offences to which the sentence relates.