R v Deluca

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Criminal)
R v DELUCA
[2011] SASCFC 120
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Peek)
26 October 2011
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - OTHER FACTORS - OFFENCE COMMITTED WHILE ON BAIL, PROBATION OR PAROLE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - OTHER MATTERS
Appeal against sentence by the defendant and application for permission to appeal against sentence by the Director of Public Prosecutions - defendant pleaded guilty to two counts of possessing a controlled drug for supply - defendant sentenced to one term of imprisonment for both offences of two years and eight months - earlier imposed suspended sentence of eight months imprisonment revoked - total term of imprisonment of three years and four months imposed - 20 month non-parole period fixed - whether the sentence was manifestly excessive - whether the Judge failed to have regard to an unexpired period of parole that was to be served by the defendant as a consequence of revoking the suspended sentence.
Held: Appeal by defendant allowed - Director granted permission to appeal and Director's appeal allowed - the Judge failed to have regard to an unexpired period of parole that was to be served by the defendant due to the revocation of the suspended sentence - sentence imposed by the Judge set aside - defendant resentenced - after making reductions, a head sentence of one year, two months and four days was imposed - period of imprisonment for revocation of the suspended sentence was not reduced - the two sentences to be served cumulatively, commencing on the expiration of the unexpired period of parole - accordingly, the defendant faces a total time in prison of two years, three months and 11 days - non-parole period of 12 months fixed.

R v DELUCA
[2011] SASCFC 120
Court of Criminal Appeal: Gray, Sulan and Peek JJ
GRAY J:

This is an appeal by a defendant against sentence and an application for permission to appeal against sentence by the Director of Public Prosecutions.
The defendant, Bradley John Deluca, following his plea of guilty in the District Court, was sentenced on two counts of possessing a controlled drug for supply.[1] He was sentenced to the one term of imprisonment for both offences of two years and eight months. The Judge revoked a suspended sentence of eight months imprisonment imposed with respect to an earlier offence of dangerous driving to escape police pursuit. As a consequence, the defendant faced a total term of imprisonment of three years and four months. A non-period of 20 months was fixed. The sentence was backdated to commence on 29 December 2010.
[1] Contrary to section 33I(1) of the Controlled Substances Act 1984 (SA).
The defendant complained on appeal that the sentence imposed is manifestly excessive when regard is had to the circumstances of the offences, the pleas of guilty, the defendant’s age and prospects for rehabilitation, the time spent in custody and a consideration of totality.
It was accepted by both parties that a material error had occurred in the sentencing process. That error, to be discussed later in these reasons, was a failure by the Judge to have regard to an unexpired period of parole that was to be served by the defendant as a consequence of the revoking of the suspended sentence. It was on this ground that the Director applied for permission to appeal. I consider there to be a clear error. I would grant the Director permission to appeal so that this error may be corrected.
Background Circumstances
On 5 May 2010, the police stopped and searched a motor vehicle in which the defendant was a passenger. During a search, the police located a cigarette box in the front passenger footway where the defendant was seated. Inside the cigarette box were two small bags of powder. The first weighed 0.85 grams and contained 0.16 grams of methylenedioxymethamphetamine. The second contained 0.21 grams of powder of which 0.16 grams was methylamphetamine. The defendant admitted possessing the drugs for the purpose of supply to another person. The defendant was a long term user of drugs and regularly shared those drugs with friends.
Following the defendant’s arrest, he remained in custody for 20 days and was then released on home detention bail. He failed to attend in the District Court on 6 December 2010 and a bench warrant was issued for his arrest. He was brought before the District Court on 29 December 2010 and remained in custody until the date of sentence on 28 June 2011.
The defendant has extensive criminal antecedents, both in this State and elsewhere in Australia. Many of his prior convictions relate to drug offending; most recently, on 3 December 2007, the defendant was sentenced to a term of imprisonment of two years and ten months, with a non-parole period of one year and eight months for the offence of possessing methylamphetamine for sale.
On 2 November 2009, the defendant was returned to prison on a Parole Board warrant in relation to a breach of parole, being parole in respect of the 3 December 2007 sentence. He remained in custody until 7 April 2010 and has, as a consequence, served 157 days of the balance of parole in relation to that sentence. On 7 April 2010, the balance of his outstanding parole was a period of five months and seven days.
On 10 March 2009, the defendant committed the offence of dangerous driving to escape police pursuit. He was convicted of this offence on 7 April 2010 and as noted above, a term of imprisonment of eight months was imposed. That sentence was suspended upon entry into a bond to be of good behaviour for two years.
At the time of sentencing, the defendant was aged 33 years. He was single, with no children. His parents separated when he was 12 years of age. It was at this time that he commenced the use of cannabis. The defendant turned to methylamphetamine use in his early twenties. His relationship with a long-term partner failed in 2003. Since that time, the defendant has lived in South Australia without friends or relations and has commenced heavier use of illicit drugs. On his release from custody, the defendant informed the Court that he proposed to return to Victoria, where his parents and two brothers reside. It was asserted that his family would assist in his rehabilitation to become drug free and to obtain employment.
The sentencing Judge considered that there was little hope of rehabilitation until the defendant had overcome his drug addiction. The Judge considered that the offences were serious and that general and personal deterrence were significant factors in determining the sentence to be imposed.
The Judge acted pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA) and imposed the one sentence for both offences. Having made a reduction of ten months on account of the time spent in custody, time spent on home detention and on account of contrition and remorse evidenced by the pleas of guilty, the Judge imposed, as noted above, a head sentence of two years and eight months imprisonment. The Judge revoked the suspended sentence of eight months. When fixing the non-parole period, the Judge imposed what was described as a lower than usual non-parole period of 20 months. This was to provide the defendant with an extended period of time with supervision in the community to assist with his rehabilitation.
The Appeal
As earlier mentioned, the Director accepted that the appeal should be allowed, the sentence set aside and the defendant resentenced.
The Court’s powers and duties on an appeal against sentence are set out in the Criminal Law Consolidation Act 1935 (SA). Section 353 relevantly provides:
…
(4)     Subject to subsection (5), on an appeal against sentence, the Full Court must—
(a)     if it thinks that a different sentence should have been passed—
(i)quash the sentence passed at the trial and substitute such other sentence as the Court thinks ought to have been passed (whether more or less severe); or
(ii)quash the sentence passed at the trial and remit the matter to the court of trial for resentencing; or
(b)     in any other case—dismiss the appeal.
(5)The Full Court must not increase the severity of a sentence on an appeal by the convicted person except to extend the non-parole period where the Court passes a shorter sentence.
[Emphasis added.]
Section 340, operative as from 3 August 2008 and introduced by section 5 of the Criminal Law Consolidation (Double Jeopardy) Amendment Act 2008 (SA), provides:
Despite any other rule of law, if on an appeal against sentence the court is satisfied that the sentence should be quashed and another sentence (whether more severe or otherwise) imposed, the court must—
(a)     impose the sentence that should have been imposed in the first instance; and
(b)     order that the sentence—
(i)will be taken to have come into effect on a date before the date of the order; or
(ii)     will take effect on a date on or after the date of the order.
[Emphasis added.]
The words of section 340 make it clear that that section only imposes the relevant duty on the Court at the point after the question of the grant of permission to appeal and the question of whether the appeal should be allowed, have been decided.
In my view, the effect of section 340 is to remove from consideration any rule of law enabling a Court to impose, when resentencing, a sentence other than the sentence which the Court thinks ought to have been imposed at first instance.
The within proceeding is a clear case of an error on the part of the sentencing Judge. It is inevitable that, at least in part, a different sentence should be imposed. As a consequence the defendant should be resentenced. In these circumstances, it is unnecessary to further consider the defendant’s appeal insofar as it is suggested that the sentencing Judge made particular errors and imposed a manifestly excessive sentence.
The duty of this Court is to resentence the defendant to a sentence that this Court itself considers to be the appropriate sentence.
Before coming to discuss the question of resentencing, it is appropriate to deal with the submission made by the defendant that he should have received “his 25%” discount for his pleas of guilty. It is important to recognise that a reduction is not made on account of plea of guilty simpliciter. The sentencing Court has a discretion to make a reduction on account of contrition and remorse which may be evidenced in part by a plea of guilty. Additionally, the sentencing Court may have regard to the willingness of a defendant to assist the administration of justice. The High Court in Cameron[2] discussed the relevance of a plea of guilty in the sentencing process. Gaudron, Gummow and Callinan JJ observed:[3]
[2] Cameron v The Queen (2002) 209 CLR 339.
[3] Cameron v The Queen (2002) 209 CLR 339, [11], [13]-[14].
It is well established that the fact that an accused person has pleaded guilty is a matter properly to be taken into account in mitigation of his or her sentence. In Siganto v The Queen it was said:
"a plea of guilty is ordinarily a matter to be taken into account in mitigation; first, because it is usually evidence of some remorse on the part of the offender, and second, on the pragmatic ground that the community is spared the expense of a contested trial. The extent of the mitigation may vary depending on the circumstances of the case."
It should at once be noted that remorse is not necessarily the only subjective matter revealed by a plea of guilty. The plea may also indicate acceptance of responsibility and a willingness to facilitate the course of justice.
…
It is difficult to see that a person who has exercised his or her right to trial is not being discriminated against by reason of his or her exercising that right if, in otherwise comparable circumstances, another's plea of guilty results in a reduction of the sentence that would otherwise have been imposed on the pragmatic and objective ground that the plea has saved the community the expense of a trial. However, the same is not true if the plea is seen, subjectively, as the willingness of the offender to facilitate the course of justice.
Reconciliation of the requirement that a person not be penalised for pleading not guilty with the rule that a plea of guilty may be taken into account in mitigation requires that the rationale for that rule, so far as it depends on factors other than remorse and acceptance of responsibility, be expressed in terms of willingness to facilitate the course of justice and not on the basis that the plea has saved the community the expense of a contested hearing.
[Footnote omitted.]
Kirby J commented as follows:[4]
The discount for a plea of guilty to the charge brought against the accused is to be distinguished from a discount for a spontaneous and immediate expression of remorse conducive to reform and for immediate co-operation with investigating police. The latter has always been treated as deserving of such recognition in the sentencing of an accused. In many cases such feelings of repentance will continue and manifest themselves in an early plea of guilty that is adhered to at the trial. Obviously, the timing of any plea of guilty has a large bearing on the credit that should be given to the prisoner. A plea of guilty at the last moment (as on the day set down for the trial) will ordinarily attract a smaller discount in sentence than one that is entered at the first reasonable opportunity. But even a belated plea will normally attract a discount.
[Footnotes omitted.]
[4] Cameron v The Queen (2002) 209 CLR 339, [65].
The defendant’s criminal antecedents, as mentioned above, disclose extensive offending over almost two decades. He has been sentenced in respect of drug offending on five occasions during the 1990s and on four occasions in the last decade. His earlier offending appears to have been connected to cannabis. However the last two offences have involved amphetamines, on one occasion the offence was for possession and on the other, possession for sale. In addition, the defendant’s antecedent history discloses many instances of non-compliance with Court orders. He has committed the offence of driving under disqualification on several occasions. He has breached his bail on at least nine occasions. He has breached bonds on two occasions and, on one, a suspension of a sentence was revoked.
Following the sentencing of the defendant, it became apparent that the Judge had not given proper consideration to the fact that the revoking of the suspension of the imprisonment for the offence of dangerous driving to escape police pursuit triggered the activation of the outstanding period of parole. As mentioned earlier, it is this aspect of the matter in respect of which the Director asserts error.
As noted above, on 3 December 2007, the defendant was sentenced to a term of imprisonment of two years and ten months with a non-parole period of one year and eight months to date from 22 March 2007. As further noted above, the defendant has served 157 days of the balance of parole in relation to the sentence. There remains an outstanding period of five months and seven days of unexpired parole in respect of this sentence. The revoking of the suspended sentence imposed on 7 April 2010 for the offence of dangerous driving to escape police pursuit activates the outstanding balance of the parole period so that the defendant must now serve the remaining period of five months and seven days. This is a matter that was overlooked by the sentencing Judge.
Section 75 of the Correctional Services Act 1982 (SA) and section 31 of the Criminal Law (Sentencing) Act 1988 (SA) by their terms require that any suspended sentence to be revoked and any further sentence to be imposed commence following the expiration of the unexpired period of parole.[5]
[5] Section 75 of the Correctional Services Act 1982 (SA) 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 31 of the Criminal Law (Sentencing) Act 1988 (SA) 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)This section does not apply in relation to a youth unless the youth is sentenced as an adult.
Possession of amphetamines for supply is a serious offence. The defendant faces a maximum term of imprisonment of ten years on each count. However, the weight of the drugs was extremely low, in each case, 0.16 grams. The supply was to friends. In my view, this was at the lower end of the scale of seriousness for this type of offending.
The defendant’s antecedents precluded the leniency that might be granted to a first offender. It is accepted that the defendant is a long term drug user. It is further accepted that he has demonstrated on many occasions over a lengthy period an inability to comply with court orders or directions from authorities which he is obliged to follow.
In the circumstances, having made a reduction of six months on account of contrition and remorse, for the willingness of the defendant to assist the administration of justice through his pleas of guilty, for the 20 days spent in custody and for the time spent on home detention bail, I would fix a head sentence of two years imprisonment.
However, there remains one further factor to be brought to account; that is, the period the defendant has spent in custody between 29 December 2010 and the day on which this Court resentences, 26 October 2011 – a period of nine months and 27 days. It is not possible to backdate the sentence because of the term of the statutory provision. As a consequence, I would reduce the proposed head sentence to bring to account the time spent in custody of nine months and 27 days and impose a head sentence of one year, two months and four days.

In my view, the suspended sentence imposed on the defendant in respect of the offence of dangerous driving to escape police pursuit should be revoked. This was serious offending involving driving at a speed of 90 kilometres per hour on the incorrect side of the road in a 25 kilometre per hour zone due to road works that at the time were ongoing. Although this was offending of a different nature to drug offending, given the defendant’s history, it was another instance of non-compliance with directions from authority.
I would not reduce the period of eight months imprisonment pursuant to section 58(4) of the Criminal Law (Sentencing) Act 1988 (SA). The defendant has a lengthy criminal antecedent history and his entitlement to any leniency for a person with a good record, is long gone. The defendant well understood the consequences that would follow when he breached the terms of his suspended sentence bond. He breached the bond within the first month of his release. I do not see any occasion for ordering any concurrency or partial concurrency of the revoked suspended sentence with the sentence to be imposed with respect to the drug offending. The sentences should be served cumulatively.
The suspension of this sentence activated the unexpired period of parole of five months and seven days. As discussed above, the revoked suspended sentence as well as the sentence imposed for the drug offending, are to commence on the expiration of the unexpired period of parole.
As a consequence, the defendant faces a total time in prison of two years, three months and 11 days. This Court must now fix a non-parole period with respect to this total period of imprisonment. It is to be borne in mind that the period spent in custody from 29 December 2010 until 26 October 2011 has been spent without the benefit of any parole. In all the circumstances, I would fix a non-parole period of 12 months. The defendant is to commence serving the unexpired period of parole on 26 October 2011. Accordingly, he will be eligible for parole on 26 October 2012.
Conclusion
I would allow both the Director’s appeal and the defendant’s appeal.
I would set aside the sentence imposed by the District Court. I would resentence the defendant in respect of the two counts of possessing drugs for supply to the one sentence of imprisonment pursuant to section 18A of the Sentencing Act of one year, two months and four days. I would revoke the suspension of the sentence imposed for the offence of dangerous driving to escape police pursuit of eight months imprisonment. I would order that the sentence of imprisonment of one year, two months and four days be cumulative on the revoked suspended sentence of eight months imprisonment. I would direct that the revoked sentence of imprisonment of eight months commence on the expiration of the defendant serving the unexpired balance of parole of five months and seven days.
I would fix a non-parole period of 12 months in respect of the total time to be spent in prison of two years, three months and 11 days. Accordingly, the defendant will be eligible for parole on 26 October 2012.
I would direct that the defendant commence serving the unexpired period of parole on 26 October 2011.
SULAN J: I would allow the appeal and agree with the orders proposed by Gray J.
PEEK J: I would allow the appeal. I agree with the reasons of Gray J.

[2011] SASCFC 120

26 October 2011

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Criminal Law

Statutory Interpretation

Legal Concepts

Appeal

Sentencing

Charge

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