R v DAVEY - [2004] SASC 339

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v DAVEY
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Bleby and The Honourable Justice Anderson)
29 October 2004
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
Application for leave to appeal referred to Full Court for determination following refusal of leave by single judge – applicant charged with six counts of rape and one count of false imprisonment – applicant on parole at time of offending – plea of guilty during course of trial – sentence of imprisonment for 19 years imposed for current offences – held not arguable that sentence manifestly excessive.
Held further that structure of sentence not in accordance with provisions of Correctional Services Act 1982 and Criminal Law (Sentencing) Act 1988 – sentencing judge backdated sentence and non-parole period to date of arrest - statutory provisions require balance of the parole period to be served from date on which applicant sentenced on current offences – penalty for current offences to be served cumulatively upon balance of previous sentence – non-parole period to be calculated by reference to combined sentences – application for leave to appeal against sentence granted, appeal allowed and sentence adjusted in accordance with statutory requirements.
Correctional Services Act 1982 s 75; Criminal Law (Sentencing) Act 1988 ss 31, 32, referred to.
R v Bartels (1986) 44 SASR 260, applied.

R v DAVEY
[2004] SASC 339
Court of Criminal Appeal

Duggan, Bleby and Anderson JJ: The applicant has asked for the application for leave to appeal against sentence in this matter to be referred to the Full Court for determination following the refusal of leave by a single judge.
The applicant and a co-accused were charged with six counts of rape and one count of false imprisonment. Both pleaded not guilty at the commencement of the trial, but changed their pleas to guilty after the complainant gave evidence.
The facts are set out in detail in the remarks of the learned sentencing judge and it is unnecessary to repeat all that he said. The applicant and his co-accused had not met the complainant before this series of incidents. After meeting her in a hotel they enticed her, by means of a subterfuge, to the house in which they were living. The complainant, who has a serious sight defect, was accompanied by her three year old daughter.
At the house the applicant and the co-accused detained the complainant against her will for approximately three hours and subjected her to a series of degrading sexual acts which were accompanied with force and threats to kill.
The applicant has a criminal history and was on parole at the time of the offences. The learned sentencing judge imposed a global head sentence of imprisonment for 19 years after deducting one year for the late plea of guilty.
We are of the opinion that it is not arguable that the sentence imposed was outside the appropriate sentencing range for a series of serious offences of this nature and we refuse leave to appeal on ground 1 which claims that the sentence was manifestly excessive.
Ground 2 complains about the structure of the sentence with particular reference to the orders made as to the balance of the sentence that the applicant was required to serve by reason of the fact that he was on parole. This ground was not argued before the single judge, but it is conceded by the Director of Public Prosecutions that the orders made by the sentencing judge in this respect must be set aside.
The applicant was sentenced on 22 April 2004. He was sentenced to imprisonment for 19 years and a non-parole period of 13 years was imposed. The sentencing judge then added the unexpired parole period of 5 months and 25 days to the non-parole period to arrive at a total non-parole period of 13 years, 5 months and 25 days. He then directed that the non-parole period commence on 11 July 2002, the date of the applicant’s arrest. He did not make an order in relation to the commencement of the head sentence, but it would appear from his remarks that it was his intention that the head sentence should also commence on 11 July 2002.
The orders which the learned sentencing judge made after sentencing the applicant to imprisonment for 19 years were not in keeping with the provisions of s 75 of the Correctional Services Act 1982 and s 31 of the Criminal Law (Sentencing) Act 1988 (“the Sentencing Act).
Section 75(1) of the Correctional Services Act provides that, where a person is sentenced to an immediate term of imprisonment for an offence committed whilst on parole, the person is liable to serve the unexpired balance of the parole period as at the day on which the offence was committed. This was the period of 5 months and 25 days referred to by the sentencing judge.
In R v Bartels (1986) 44 SASR 260 it was held that the effect of s 75 was that the unexpired portion of the parole period was brought into effect as at the time the new sentence was imposed. The unexpired portion of the parole period which represents the balance of the previous sentence, cannot be backdated. The only way in which time spent in custody can be recognised is to reduce the head sentence by the appropriate amount.
Section 31 of the Sentencing Act then comes into operation. It provides:
“(1)Subject to subsection (2), the court by which a sentence of imprisonment is imposed may direct that the sentence be cumulative upon any other sentence, or sentences, of imprisonment or detention in a training centre then being served, or to be served, by the defendant.
(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.
(3)A direction may be given under subsection (1) irrespective of the number of cumulative sentences that the defendant is already serving or will, in consequence of the direction, be liable to serve.
(4)(Irrelevant).” (emphasis added)
When the sentencing judge sentenced the appellant to imprisonment for 19 years for the current offences, the appellant became liable to serve the unexpired portion of parole period as from that date (Correctional Services Act s 75(1)). The sentence for the current offences had to be served cumulatively on the unexpired parole period of 5 months and 25 days (Sentencing Act s 31(2)).
As the unexpired parole period could not be backdated, the judge was required to fix a head sentence and non-parole period after giving credit for the period in custody to the date of sentence. The judge should have deducted that period from the notional head sentence of 19 years and should have fixed the resultant period as the head sentence which was then to be cumulative upon the 5 months and 25 days unexpired parole period. He should then have fixed a non-parole period for the total sentence thus arrived at in accordance with the requirement of s 32(2) of the Sentencing Act. That provides:
“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.”
As it is now necessary to set aside the sentence and to re-sentence the appellant from today, the same principles must now be applied, taking into account that the appellant has now been in custody in respect of this offending since 11 July 2002, a period of 2 years, 3 months and 18 days. That period must be deducted from the notional head sentence of 19 years resulting in an actual head sentence for these offences of 16 years, 8 months and 12 days. By operation of law this means that he is now required to serve forthwith the balance of his previous period of parole, namely 5 months and 25 days, and that the sentence we now fix is cumulative upon that period. The total head sentence for which a non-parole period must be fixed is therefore 17 years, 2 months and 7 days from today, 29 October 2004.
In our view the non-parole period should be fixed at 11 years.
The orders of the court will be as follows:
1      Application for leave to appeal on ground 1 refused.
2      Application for leave to appeal on ground 2 granted.
3      Appeal on ground 2 allowed.
4      The orders made by the sentencing judge will be set aside.
5The applicant will be sentenced to imprisonment for 16 years, 8 months and 12 days cumulative upon the unexpired period of parole now required to be served, namely 5 months and 25 days, making a total head sentence of 17 years, 2 months and 7 days from today, 29 October 2004.
6A non-parole period of 11 years is imposed commencing from today, 29 October 2004.