R v De La Cerna - [2018] SASCFC 8

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v DE LA CERNA
[2018] SASCFC 8
Judgment of The Full Court (ex tempore)
(The Honourable Chief Justice Kourakis, The Honourable Justice Blue and The Honourable Justice Doyle)
9 February 2018
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - OTHER MATTERS
The appellant was convicted in the District Court of trafficking in methylamphetamine. He appeals against the sentence on the ground that it was calculated on the basis of information later discovered to be mistaken, in that it extended by approximately two months the minimum period required for his sentences to be fully served.
Held per the Court (Kourakis CJ, Blue and Doyle JJ), allowing the appeal:
1. The sentence imposed was calculated based on misinformation provided to the sentencing Judge and should be correctly adjusted (at [14]).
2. The Court orders that the sentence be varied such that the head sentence and non-parole period commence on the correct date (at [14]).
Criminal Law (Sentencing) Act 1988 (SA) ss 9A, 30, 31, 32; Correctional Services Act 1982 (SA) s 75, referred to.

R v DE LA CERNA
[2018] SASCFC 8
Court of Criminal Appeal: Kourakis CJ, Blue and Doyle JJ

THE COURT: (ex tempore) The appellant appeals against the sentence imposed upon him in the District Court on a conviction for trafficking in methylamphetamine.
The offence was committed on 12 July 2016 when police found the methylamphetamine in Mr De La Cerna's car and arrested him. At the time he was subject to parole with respect to a sentence of two years imprisonment imposed in the District Court for an earlier offence of trafficking in a controlled drug.
As a result of his arrest, Mr De La Cerna's parole was revoked with effect from 12 July 2016. The Judge was informed that as at 12 July 2016, the unexpired balance of Mr De La Cerna’s parole was eight months and 15 days. Recently it was discovered that that information was mistaken. It is agreed that the unexpired portion of his parole was six months and 15 days.
Mr De La Cerna remained in custody from the time of his arrest on 12 July 2016 until the day of his sentence on 27 September 2017.
After his arrest Mr De La Cerna was sentenced to 21 days imprisonment for an offence of driving whilst disqualified which was also committed whilst on parole. Both that sentence and the unexpired portion of parole had been served by 18 February 2017, although the Judge, by reason of the information earlier referred to, believed that the sentences were not fully served until 18 April 2017. Accordingly, the Judge backdated the sentence of three years and six months which he imposed for the trafficking offence to 19 April 2017 and fixed a non-parole period of two years to commence on the same day (the new sentence).
The effect of the sentence imposed by the Judge was that Mr De La Cerna served the entirety of his unexpired parole without the benefit of an overall non‑parole period. The notice of appeal complained that even though the earlier sentence had expired by the time that the Judge came to sentence, the Judge was required by ss 31 and 32 of the Criminal Law (Sentencing) Act 1998 (SA) (CLSA) to fix an overall non-parole period dating from the time he was taken into custody.
Section 31 of the CLSA relevantly provides:
31—Cumulative sentences
(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.
…
Section 32 of the CLSA relevantly provides:
32—Duty of court to fix or extend non-parole periods
(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); or
…
(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.
…
(5)     The above provisions are subject to the following qualifications:
(a)     a non-parole period may not be fixed in respect of a person who is liable to serve a total period of imprisonment (or detention and imprisonment) of less than one year;
…
Section 75 of the Correctional Services Act 1982 (SA) (the CSA) relevantly provides:
75 —Automatic cancellation of parole on imprisonment for offence committed while on parole
(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.
…
(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.
(3)Any period for which the person is detained in custody or in prison after committing the offence is to be counted as or towards the period that the person is liable to serve in prison under this section (and any date on which the sentence is to be taken to have commenced will be fixed accordingly).
Sections 31(2) and 32(2) of the CLSA are premised on a defendant being liable to serve both the balance of the previous sentence pursuant to s 75 of the CSA and the new sentence imposed for the offence committed whilst on parole. However, in this case, by operation of s 75(3) of the CSA, the unexpired portion of the parole period had been fully served by the time the Judge came to sentence and there was therefore no existing sentence after which the new sentence could be served cumulatively. Nor was s 32(2) of the CLSA engaged because Mr De La Cerna was no longer liable to serve the balance of the previous sentence.
However, s 30(1) and s 30(4) of the CLSA confer a wide discretion with respect to the commencement date of a sentence which is defined to include the non-parole period:
30—Commencement of sentences and non-parole periods
(1)Where a court imposes a sentence of imprisonment and does not suspend the sentence under Part 5, the court must specify the date on which, or the time at which, the sentence is to commence or is to be taken to have commenced.
…
(4)Where a court fixes a non-parole period, the court must specify the date on which the non-parole period is to commence or is to be taken to have commenced.
Even though a sentencing court would ordinarily order that the non-parole period commence on the same date as the head sentence, that will not always be appropriate. For example, this court has just held in R v Gauci[1] that when a new sentence is imposed for an offence committed whilst on parole and the offender is still serving the balance of his parole at the time of sentence, sub-s (2) of s 32 of the CLSA is most effectively accommodated by backdating the non-parole period to the date on which the offender was taken into custody. Notwithstanding the limited application of s 32(2) of the CLSA in a case in which the balance of the previous sentence is still being served, the discharge of the balance of the previous sentence before the imposition of the new sentence is a relevant consideration when fixing the non-parole period for the new sentence. Failure to have regard to that circumstance may result in the fixing of a non-parole period which is manifestly excessive because, but for the expiry of the balance of the previous parole, an overall non-parole period would otherwise have been fixed for both the balance of the parole and the new sentence. The way in which the discharge of the unexpired parole is taken into account is a matter in the discretion of the sentencing Judge. Section 30 of the CLSA may be utilised or the non-parole period for the new sentence adjusted, depending on all of the circumstances.
[1] [2017] SASCFC 166.
The non-parole period of two years fixed by the Judge in this case was only 57 per cent of the head sentence of three years, six months. That is a low non‑parole period for a recidivist trafficker of methylamphetamine who has offended whilst on parole.
If account is taken of the eight months and 15 days which Mr De La Cerna had already served, the percentage non-parole period rises to 64 per cent. If the appeal had proceeded, the relevant question would have been whether that proportion was manifestly excessive. Be that as it may, Mr De La Cerna has since been released on home detention. He has now abandoned the appeal. Mr De La Cerna asks only that his sentence be adjusted to take into account the lesser term of his unexpired parole. The misinformation provided to the Judge should be corrected. This Court is empowered to do so pursuant to s 9A of the CLSA. Accordingly, the sentence is varied by ordering that the head sentence and the non-parole period commence on 19 February 2017.