R v De Luca - [2011] SADC 137

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v DE LUCA
[2011] SADC 137
Decision of Her Honour Judge McIntyre
2 September 2011
CRIMINAL LAW - PROCEDURE - JURISDICTION
Section 9A application by the Director of Public Prosecutions for rectification of sentence to rectify fact unexpired parole not brought to the attention of sentencing Judge. Application declined on the basis that the circumstances of the case require a resentencing process rather than mere rectification.
Correctional Services Act 1982 s75(1)(b); Criminal Law (Sentencing) Act 1988 s9A, referred to.
R v Staltari [2007] SASC 337; R v Fraser [2007] SASC 257; Sullivan v Police [2010] SASC 216, considered.

R v DE LUCA
[2011] SADC 137

An application has been made by the Director of Public Prosecutions under section 9A of the Criminal Law (Sentencing) Act 1988 (SA) for the rectification of Mr De Luca’s sentence.
On 28 June 2011 I sentenced Mr De Luca to 2 years 8 months imprisonment reduced from 3 years and 6 months to reflect his guilty plea, 10 days in custody and time on home detention bail. I also revoked a suspended sentence bond entered into on 7 April 2010 and ordered that the sentence of imprisonment of 8 months be served cumulative upon the sentence I had just imposed. The total period of imprisonment was therefore 3 years and 4 months. I declined to reduce that on the grounds of totality. I set a lower than usual non-parole period of 20 months in order to enable Mr De Luca to have an extended period of supervision in the community to assist with his rehabilitation from drug addiction. The sentence and non-parole period were backdated to 29 December 2010 the date on which he was taken into custody.
At the time of sentencing I was not made aware that Mr De Luca was on parole at the time he committed the offence of drive dangerously to escape police pursuit committed on 10 March 2009 for which the suspended sentence bond was imposed. Section 75(1)(b) of the Correctional Services Act 1982 provides where a suspension of a sentence of imprisonment imposed for an offence committed by a person whilst on parole is revoked the person is liable to serve in prison the balance of the sentence of imprisonment for which he was on parole being the balance that was unexpired as at the day on which the offence was committed. Section 75 has a mandatory application.[1]
[1] R v Staltari [2007] SASC 337
The balance of Mr De Luca’s sentence of imprisonment unexpired as at 10 March 2009 is 5 months and 7 days. Had I been made aware of this, this should have been ordered to be served from the date of my sentence, 28 June 2011.
The Director submits that I am empowered to use s.9A of the Criminal Law (Sentencing) Act in order to vary the sentence imposed on 28 June 2011 to rectify the technical error in the earlier sentencing order. The defendant opposes the use of s.9A arguing that it is inappropriate in the circumstances of this matter as it would require a reconsideration of the sentencing process that was not within the powers provided by section 9A.
The Director relies upon R v Fraser[2] and Sullivan v Police.[3]In Fraser His Honour Justice Anderson determined that rectification in that case did not amount to resentencing but rather to correction of an error of a technical nature. I note that counsel in that case agreed that that the proper approach was for His Honour to recall the original sentence although there was some dispute as to the appropriate length of the non-parole period. In Sullivan His Honour Justice Kourakis upheld a Magistrate’s decision to correct a previous sentence in reliance on s.9A in circumstances where the Magistrate had initially proceeded on a misapprehension about the amount of unexpired parole.
[2] [2007] SASC 257
[3] [2010] SASC 216
The defence seeks to distinguish those cases and relies upon a District Court decision of Her Honour Judge Kelly (as she then was) declining to utilise section 9A in similar circumstances to those in the present case on the basis that it would require a fresh exercise of the sentencing discretion at least in relation to whether the non-parole period ought to be extended. This decision was the subject of appeal to the Court of Criminal Appeal in R v Staltari.[4]The Court of Criminal Appeal allowed the DPP’s appeal determining that section 75 of the Correctional Services Act 1982 is mandatory and required the defendant to serve the remaining period of his unexpired parole cumulatively upon his sentence. The appeal did not address whether the sentencing judge was correct in her decision not to utilise section 9A to rectify the sentence. However, I note that the CCA heard further submissions on sentence and proceeded to re-sentence.
[4] See note 1 above.
These decisions do not sit comfortably together. If I were not constrained by the decisions in Sullivan & Fraser my view would be the same as that expressed by Kelly, DCJ in Staltari. The circumstances of Mr De Luca’s case do not constitute an exercise in rectification but rather a resentencing process. That this is so is made plain by the Director’s submission that the Court may rectify the sentence imposed on 28 June 2011 as follows:[5]
(a)     By revoking the suspended sentence of imprisonment of 8 months.
(b)By ordering that the 8 month sentence of imprisonment be served cumulatively upon        the five month seven day period of unexpired parole.
(c)     By sentencing the defendant to imprisonment for 2 years and 2 months reduced      from 2 years 8 months to take into account the time spent in custody between 29 December 2010 and 28 June 2011 (to be served cumulatively for the offences of    two counts of possessing a controlled substance for supply).
(d)     By ordering a head sentence and non-parole period commenced on 28 June 2011.
[5] Directors written submissions paragraph 8
This has the effect of varying the head sentence and changing the commencement date. It also necessitates reconsideration of the non-parole period to ensure that it would be a reasonable proportion to the new head sentence and take into account time already spent in custody.
When I sentenced Mr De Luca I took into account a number of considerations which I thought relevant at the time in order to devise the sentencing package ultimately arrived at. If I was to proceed on the basis suggested by the DPP’s submissions I would need to reconsider the question of totality and the length of the non-parole period. This latter issue is particularly complex in view of my assessment at the time of sentencing that Mr De Luca required an extended period of supervision in the community. In addition, I am aware that before the issue of the unexpired parole came to light, Mr De Luca had lodged an appeal in respect of my sentence.
In the circumstances therefore I consider it appropriate to decline to proceed under s.9A of the Criminal Law (Sentencing) Act 1988 to rectify the error. No doubt the Director may make application if so advised to correct the error at the time of the hearing of Mr De Luca’s application for leave to appeal.