R v Edwards - [2011] SASCFC 33

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v EDWARDS
[2011] SASCFC 33
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Duggan and The Honourable Justice Gray)
29 April 2011
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE
The appellant was sentenced by a District Court Judge to imprisonment for eight years with a non-parole period of five years for two offences of rape – the District Court Judge allowed a discount of 10 per cent for an early plea of guilty made one week before trial – for an unknown reason the appellant was separately sentenced by a Magistrate, at an earlier hearing, to 18 months imprisonment for the assault that preceded the rapes – the District Court Judge ordered that the sentence and non-parole period for the rapes be cumulative upon the sentence imposed by the Magistrate – whether the sentence imposed by the District Court Judge was manifestly excessive – whether the reduction of 10 per cent was inadequate.
Held (Doyle CJ with Duggan and Gray JJ concurring): appeal allowed – the appeal succeeded only to correct a formal error made by the District Court Judge – the District Court Judge should have directed that the head sentence of eight years operate from the day on which the appellant became entitled to release on parole, rather than on the date of the expiry of the sentence imposed by the Magistrate – in all other respects the appeal against sentence failed.
Correctional Services Act 1982 (SA) s 66, s 68, s 68(4), s 69, s 74A, s 74A(a); Criminal Law (Sentencing) Act 1988 (SA) s 32, referred to.
R v Forrest (1986) 46 SASR 75; R v Byczko and Tichy (1985) 120 LSJS 190, discussed.
R v Hearn (2001) 80 SASR 175; R v Ford (2006) 95 SASR 133, considered.

R v EDWARDS
[2011] SASCFC 33
Court of Criminal Appeal: Doyle CJ, Duggan and Gray JJ

DOYLE CJ: Mr Edwards appeals against a sentence of imprisonment for eight years, in relation to which a District Court Judge fixed a non-parole period of five years. The sentence was imposed in respect of two counts of rape of Ms J. The Judge directed that the sentence be cumulative upon a sentence of imprisonment for 18 months imposed by the Magistrates Court in respect of certain other offences.
Mr Vadasz, counsel for Mr Edwards on appeal, complains that the sentence is excessive, standing alone and when taken in conjunction with the sentence imposed by the Magistrates Court. He also complains that a reduction of 10 per cent on account of Mr Edwards’ guilty plea is inadequate.
Mr Press for the Director of Public Prosecutions acknowledges an error in the form of the sentence, but submits that there is no error of substance.
It is necessary to correct the error of form, which I will identify in due course. Otherwise I would dismiss the appeal for the reasons that follow.
Facts
Mr Edwards and Ms J met in the latter part of 2008. They went out together, and a sexual relationship developed, but they did not live together. In January 2009 Mr Edwards assaulted Ms J, and the relationship came to an end. Mr Edwards was charged with that assault. Ms J still cared for Mr Edwards. This led to his bail conditions on the charge of assault being varied to allow him to be with Ms J, except when he was intoxicated. Mr Edwards was living with another woman. In early July 2009 he separated from her, and moved into the house occupied by Ms J.
On 18 July 2009 Mr Edwards telephoned Ms J, and asked her to collect him from a club where he was drinking. She did so. They then spent some time together at the club. Mr Edwards was affected by alcohol. Then they went to a hotel for a short time. Ms J then drove Mr Edwards to her home. Mr Edwards was in an angry mood, apparently as a result of an argument he was having at the time by telephone with the woman with whom he had been living. On arrival at the house, Ms J unplugged the house telephone. There had been a previous incident when Mr Edwards had run up a substantial bill on the phone. Mr Edwards took Ms J’s mobile phone, and used it to make a call or calls. Ms J went to bed. Shortly thereafter, Mr Edwards came into the bedroom and gave Ms J what I can only describe as a severe beating. Nothing she had done provoked this, except her action unplugging the phone, if one can call that an act of provocation. The beating continued over some time, accompanied by verbal abuse, spitting, kicking and biting. This assault was charged in separate proceedings from the rape proceedings, and came before a Magistrate with other charges. I mention this here because for present purposes it is necessary to bear in mind that the assault that I have just described was not to be taken into account in the proceedings before the District Court Judge.
I have not gone into all of the details of the assault, but I emphasise that it was severe and particularly nasty.
Ms J tried to clean the blood off herself, and then returned to bed.
Mr Edwards came into the bedroom again. Over Ms J’s protests and resistance, he had intercourse with her. While this was happening he spat at her and bit her lip. He threatened to cut her with a knife “next time”. He made other threats. Then he told Ms J to have a shower. She again tried to clean herself up.
She returned to her bedroom to find Mr Edwards asleep there. Ms J fell asleep on the bed. In the morning Ms J tried to get help using text messages on her mobile phone. She was afraid, understandably, to allow Mr Edwards to know what she was doing. Mr Edwards awoke and pulled Ms J back on to the bed. She reluctantly submitted to intercourse with him again. Not surprisingly, she was afraid to resist. Mr Edwards interrupted the intercourse to urinate on Ms J.
As a result of messages that Ms J had sent, police came to the house at about 9.20 am. Mr Edwards was arrested.
I have gone into the facts in some detail to indicate the brutality on the part of Mr Edwards, and the degrading manner in which he treated Ms J. Ms J suffered cuts and significant bruising. It took some time for the soreness and bruising to cease. She incurred expenses for medical treatment, and for cleaning her bed linen and other items.
Consideration of submissions
It is unfortunate that the Magistrate before whom the assault charge came sentenced Mr Edwards, rather than committing him for sentence in the District Court. The circumstances in which this happened are not clear. For the assault which preceded the intercourse, the Magistrate sentenced Mr Edwards to imprisonment for nine months. But for his plea of guilty it would have been 12 months. The total period of imprisonment, including sentences for other offences, was 18 months and one day. The Magistrate fixed a non-parole period of nine months. The imprisonment and non-parole period commenced from 19 July 2009, when Mr Edwards was first taken into custody.
As I said earlier, it is necessary to put this assault to one side. In that respect Mr Edwards is fortunate. The Magistrate’s sentencing remarks suggest that he was not given the full details of the assault.
Each offence of rape was serious. The fact that the rape occurred in the course of a relationship does not mitigate the seriousness of the offence at all. The two offences are quite distinct, separated by a period of some hours. Apart from the force used, Mr Edwards treated Ms J in a degrading manner.
Mr Edwards pleaded guilty about one week before trial. Mr Vadasz submits that Mr Edwards had virtually no memory of what he had done, and that explains the delay. Whatever the reason, the reduction for the plea of guilty had to be limited, and in my opinion the sentencing Judge did not err in that respect. The Judge accepted that Mr Edwards was remorseful. He had written a letter of apology, but this was not written until 24 September 2010, after the plea of guilty. The Judge accepted that Mr Edwards wanted to rehabilitate himself. But while one can accept that that is his wish, it remains to be seen whether it will be achieved. He has a significant record of offending, but the offences are mainly traffic offences. He has no previous offences of this kind or of this seriousness. He has had the benefit of suspended sentences in 2005 and 2008. He has a reasonable work record, and appears to be well regarded by his acquaintances.
He was assessed by a clinical psychologist, who reported that with appropriate treatment programs he was more likely to achieve his aim of behaving responsibly. The psychologist reported that at the time of the offending Mr Edwards probably suffered from a depressed mood and alcohol dependence.
Allowing for the circumstances of the offending, and the matters that I have summarised, I consider that the sentence of eight years’ imprisonment was within an appropriate range. It was certainly not manifestly excessive. In brief, the offences were very serious, Mr Edwards does not have a good record, there are some mitigating circumstances but they are not particularly powerful. There was no basis for reducing the sentence having regard to considerations of totality. For these reasons the appeal against the sentence must fail.
An error of form
Mr Edwards was arrested and taken into custody in relation to the charges of rape on 19 July 2009. He was not granted bail.
The Magistrate sentenced Mr Edwards on 11 September 2009. The single sentence of imprisonment for 18 months one day, and the non-parole period of nine months, were directed to commence from 19 July 2009, when Mr Edwards was first taken into custody.
On 19 April 2010 Mr Edwards was entitled to release on parole. This is what is sometimes called “automatic release”: s 66 of the Correctional Services Act 1982 (SA) (the CSA). I assume that the Parole Board had fixed the conditions of parole as required by s 68 of the CSA, and that Mr Edwards had accepted these conditions: see s 68(4) of the CSA.
Mr Edwards was not released because no grant of bail had been made in respect of the rape charges.
Nevertheless, his existing non-parole period had expired as of 19 April 2010. He was no longer subject to an existing non-parole period: see s 32 of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act). He was no longer serving a sentence of imprisonment. However, for the purposes of s 69 of the CSA, relating to duration of parole, he remained on parole and would do so until the expiry of the term of imprisonment to which the Magistrate sentenced him.
That is the effect of s 74A of the CSA. That section provides:
74A—Suspension of parole while serving imprisonment for offence committed before release on parole
Where a person who has been released on parole is sentenced to imprisonment for an offence committed before release on parole or for non-payment of a pecuniary sum—
(a) the parole is suspended for the duration of the imprisonment actually served in prison in pursuance of the subsequent sentence; and
(b) on release from prison—
(i)the person will continue on parole in respect of the sentence that was first imposed for the balance of the period of parole remaining as at the date of the commencement of the subsequent sentence; and
(ii)if released on parole from the subsequent sentence, the person will on release also be on parole in respect of that sentence for the period of that parole.
The operation of this provision was considered by this Court in R v Forrest (1986) 46 SASR 75. There, King CJ referred to the earlier decision of R v Byczko and Tichy (1985) 120 LSJS 190. In that case the prisoners had been serving a sentence of imprisonment. The non-parole periods expired, and they were entitled to parole, but remained in prison due to an administrative mistake. In relation to Byczko and Tichy King CJ said at 78:
The Court of Criminal Appeal expressed the view that it was not proper, in that state of things, to order that the new sentence commence at the expiration of the old head sentence but that the proper course was to order the new head sentence and non-parole period to commence on the date upon which he would be released from prison but for the new charge.
King CJ said that the problem referred to in that case had been dealt with by s 74A, which came into force subsequently. He went on to say at 79:
It is quite clear from that section that it is not appropriate to make a sentence imposed upon a person on parole commence in the future and that a non-parole period fixed with respect to the sentence of a person who is on parole in respect of an existing sentence, can be referable only to the new sentence. The parole for the existing sentence is suspended while the offender serves the custodial part of the new sentence. It then revives and runs concurrently with any period of parole in respect of the new sentence.
In other words, a person who is entitled to release on parole, and so in that sense is on parole, is to be dealt with under s 74A.
That decision was followed by this Court in R v Hearn [2001] SASC 238; (2001) 80 SASR 175 at [23]-[28] Gray J, with whom the others members of the Court agreed. It was again followed in R v Ford [2006] SASC 213; (2006) 95 SASR 133 at [84]-[89], Gray J, with whom Anderson J agreed, at [89].
The District Court Judge should have directed that the head sentence of eight years operate from 19 April 2010, the day on which Mr Edwards became entitled to release on parole in respect of the sentence imposed by the Magistrate. The Judge erred in directing that the head sentence operate from the expiry of the Magistrate’s sentence. The non-parole period should also operate from 19 April 2010, as the Judge directed. This is the result required by the relevant provisions of the Sentencing Act.
On the expiry of the non-parole period of five years fixed by the District Court Judge, Mr Edwards will resume serving the balance of parole in respect of the Magistrate’s sentence, being that balance as it was at 19 April 2010. That is the day from which the present sentence commences, and so the day from which the “parole is suspended”: s 74A(a) of the CSA. He will also be on parole in respect of the sentence imposed by the District Court. The balance of the head sentence imposed by the District Court will continue to run after he is released on parole.
Orders
It follows that the appeal succeeds only in relation to the formal error made by the Judge. To the extent that the sentence itself is challenged, the appeal fails. However, it is necessary to allow the appeal to correct the formal error.
Accordingly, I would allow the appeal. I would set aside the sentence imposed by the District Court Judge. I would impose a single sentence of imprisonment for eight years. In relation to that head sentence I would fix a non‑parole period of five years. I would direct that the head sentence and non-parole period both commence from 19 April 2010.
DUGGAN J: I would allow the appeal for the limited purpose identified in the reasons of the Chief Justice.
The appeal on the grounds put forward on behalf of the appellant should fail for the reasons given by the Chief Justice
GRAY J: I would allow the appeal for the purpose of correcting the formal error made by the Judge, as identified by the Chief Justice. Otherwise I would dismiss the appeal. I agree with the reasons of the Chief Justice.