R v Ford - [2006] SASC 213

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v FORD
[2006] SASC 213
Judgment of The Court of Criminal Appeal
(The Honourable Justice Bleby, The Honourable Justice Gray and The Honourable Justice Anderson)
19 July 2006
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES RELATING TO THE ADMINISTRATION OF JUSTICE - ESCAPE - SENTENCING
Appeal against sentence - appellant sentenced to a term of imprisonment upon his plea of guilty to, inter alia, escaping lawful custody - whether sentencing Judge erred in directing that the sentence imposed would commence at the expiration of the existing sentence - consideration of authorities regarding escape lawful custody - discussion of legislative scheme - consideration of application of section 74A of the Correctional Services Act 1982 (SA) and section 254(2a) of the Criminal Law Consolidation Act 1935 (SA) - order of sentencing Judge directing that the subsequent sentence commence on the expiration of the existing sentence is set aside - the sentence of 22 months' imprisonment to commence on 23 December 2005 - appeal allowed.
Criminal Law Consolidation Act 1935 (SA) s 254(1)(a), s 134(1), s 86A, s 254(2a), s 353(5); Correctional Services Act 1982 (SA) s 66, s 67, s 74A, s 37A(2), s 37C(4), s 50A(2), s 73(1), s 74(3), s 74(4a), s 75, s 85D; Criminal Law (Sentencing) Act 1988 (SA) s 35(5)(a), s 23(7), s 31(3), s 32(1)(b) and (c), s 32(2) and (8), referred to.

R v FORD
[2006] SASC 213
Court of Criminal Appeal Bleby, Gray and Anderson JJ

BLEBY J: The circumstances giving rise to this appeal are described in the reasons for judgment of Gray J. I will not repeat them. Although, in the end result, I would allow the appeal for the purpose of making a different order, the practical result in this case would be the same as if the appeal were dismissed. However, that will not always be the case, and the route by which one arrives at the appropriate conclusion affects, in some cases, rights to automatic parole.
I agree with Gray J that there was no appealable error by the sentencing Judge in fixing a head sentence of 22 months imprisonment for the offence of escaping lawful custody. I agree with the reasons that Gray J has given for that conclusion. I also agree that, if that sentence were to stand alone, there was no error in fixing the non‑parole period at 20 months.
The difficulty arises in the relationship between this sentence and the appellant’s then existing sentence and the question whether the appellant was, at the time of sentence, entitled to parole.
I will not repeat the history of the appellant’s earlier sentencing, his offending while on parole and revocation of parole in 2002, his subsequent sentencing in the Magistrates Court, escape from custody and sentencing for that offence in the District Court.
The sentence for the offence of escaping from lawful custody was governed in part by s 254 of the Criminal Law Consolidation Act 1935. So far as is relevant that section provides:
(1)     Subject to this section, a person subject to lawful detention who—
(a)     escapes, or attempts to escape, from custody; or
(b)     remains unlawfully at large,
is guilty of an offence.
Penalty: Imprisonment for 7 years.
…
(2a)    A term of imprisonment to which a person is sentenced for an offence against subsection (1) is cumulative on any other term of imprisonment or detention in a training centre that the person is liable to serve.
The form of the appropriate sentence depends on whether, at the time of sentencing by the District Court Judge, the appellant was entitled to parole as of right or whether he was merely eligible for parole. Both the DPP and the appellant contended for the former. The Parole Board, although not represented on the appeal, has taken the opposite view. The resolution of that question depends on the proper interpretation of ss 66 and 67 of the Correctional Services Act as they were at the relevant time. So far as is relevant those sections provided:
Release on parole – prisoners imprisoned for less than five years
66.The Board must order that a prisoner who is liable to serve a total period of imprisonment of less than five years and for whom a non‑parole period has been fixed be released from prison or home detention on parole on a day specified by the Board, being a day –
(a)where, because the commencement of the non‑parole period has been back dated, the non‑parole period expires prior to the date on which it is fixed, not later than 30 days after the day on which it is fixed; or
(b)in any other case, not later than 30 days after the day on which the non‑parole period expires.
Release on parole – prisoners imprisoned for five years or more
67. (1) Where a prisoner is serving a sentence of life imprisonment or is liable to serve a total period of imprisonment of five years or more and a non‑parole period has been fixed in respect of the sentence or sentences –
(a) the prisoner; or
(b)the Chief Executive Officer, or any employee of the Department authorised by the Chief Executive Officer,
may apply in the prescribed manner to the Board for the prisoner’s release on parole.
The resolution of the question therefore depends on whether the appellant, as at 23 December 2005 (the date of expiry of the appellant’s non‑parole period) was “liable to serve a total period of imprisonment of less than five years”.
It is also necessary to have recourse to s 75(1) of the Correctional Services Act. That sub-section provides:
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. [Emphasis added]
Upon conviction and the imposition of a custodial sentence in the Magistrates Court on 23 December 2002 for offences committed while the appellant was on parole, the appellant became “liable to serve”, pursuant to s 75(1), the balance of the sentence in respect of which he was on parole, being the balance unexpired as at the date of the offence, namely 19 April 2002. That was a period of 11 months and 1 day.
It will be remembered that on 22 October 2002 the Parole Board had cancelled the appellant’s parole for the breach of a designated condition of the parole which occurred on 17 September 2002. He had been taken into custody for that on 30 September 2002. By virtue of s 73 of the Correctional Services Act he had therefore become “liable to serve” the balance of the same sentence as from the date of the breach of the designated condition. That was a period of 6 months and 2 days.
For present purposes, the order of the Parole Board and the effect of s 73 of the Correctional Services Act can be ignored. That is because the effect of the order in the Magistrates Court overtook the effect of the Parole Board’s order and required the appellant to serve a greater balance of the same sentence than was produced by the effect of the Parole Board’s order. As the appellant had by then already served 2 months and 24 days of that period, the Magistrate correctly calculated that he had a further 8 months and 7 days period of that sentence to serve from the date on which the Magistrate imposed the sentence. I say that notwithstanding the reservation I expressed in Blackman v Police[1] about the effect of an earlier period of imprisonment brought about as a result of revocation of parole after the date of the relevant offence. Having considered the matter further, I think that any other interpretation would be unjust. Both ss 73 and 75 require a balance of the same sentence to be served. Whatever that balance is, it can only be served once. It happens, in this case, that the operation of s 75 results in a longer period of imprisonment than the operation of s 73. For present purposes, it is only of significance that, on the day of his being sentenced by the Magistrate, the appellant became “liable to serve” under s 75 a period of 11 months and 1 day. Section 75 did not render him liable to serve some lesser period. In the circumstances which happened, the period that he was liable to serve had already begun. The only purpose in calculating the remaining balance of 8 months and 7 days was to indicate the date upon which the Magistrate’s sentence of 4 years and 2 months would commence. It could have been expressed as a period of 11 months and one day from 30 September 2002.
[1] Unreported, 16 March 1998, Judgment No. S6599.
The sentence imposed by the Magistrate was to be cumulative upon the earlier sentence.[2] Therefore, at the point of sentence in the Magistrates Court, the appellant became “liable to serve” not only the 11 months and 1 day of the earlier sentence but the additional 4 years and 2 months, making a total of 5 years, 1 month and 1 day. The fact that the appellant had already served 2 months and 24 days of that period is immaterial.
[2] Section 31(2), Criminal Law (Sentencing) Act 1988.
The Magistrate was then required to fix a non‑parole period in respect of that total period of imprisonment that the appellant was then liable to serve.[3] Section 32(7)(a) of the Criminal Law (Sentencing) Act required the Magistrate to take into account the period of 2 months and 24 days already served.
[3] Section 32(2), Criminal Law (Sentencing) Act 1988.
There may be a question as to whether he did so. The certificate of record of the Magistrates Court for the offences in question records:
IMPRISONMENT – For 4 YEARS 2 MONTHS
Sentence of 4 years and 2 months imprisonment, to be served at the expiration of the unexpired parole of 8 months and 7 days.
After recording details concerning some other offences, the certificate records:
HEAD SENTENCE – 4 YEARS 10 MONTHS 7 DAYS
Non‑Parole period – 3 YEARS Commencing 23/12/02
Without more, it must be presumed that the Magistrate acted in accordance with s 32(7)(a) of the Criminal Law (Sentencing) Act. In any event, no-one now seeks to call in question the fixing of that non‑parole period, and taking into account an extra two months and 24 days is not likely to make any material difference.
There may also be a question as to whether the Magistrate could have backdated the commencement of the non‑parole period to 30 September 2002.[4] It is not necessary to resolve that question. In fact the Magistrate fixed the non‑parole period of 3 years to run from the date of the sentence. However, there can be no doubt that the non‑parole period was required to be fixed in respect of the whole period of imprisonment that the appellant was then liable to serve.
[4] See generally s 30, Criminal Law (Sentencing) Act 1988.
The phrase “liable to serve” must be construed consistently where it is used in Part 6 of the Correctional Services Act. The same expression is used in ss 66, 67, 73 and 75. So construed, it follows that s 66 of the Act had no application because the appellant was not liable to serve a total period of imprisonment of less than 5 years. Section 67 did have application because he was liable to serve a total period of imprisonment of 5 years or more and a non‑parole period had been fixed in respect of that whole period. It follows that he was not entitled to automatic parole as at 23 December 2005, and at the time of imposition of the sentence by the District Court Judge the appellant was still lawfully in custody, his application for parole having been declined on 20 December 2005.
I do not see that this result is inconsistent with anything that King CJ said in R v Forrest.[5] The former Chief Justice was there dealing with what was then s 50(2) of the Correctional Services Act 1982 which has its present counterpart in s 254(2a) of the Criminal Law Consolidation Act quoted above. King CJ said:[6]
The problem relates to the commencing date of a sentence for escape from custody and any non‑parole period fixed at the time of imposing such sentence, where the person sentenced is then in prison serving an existing sentence or on parole in respect of such sentence.
The expression “imprisonment that the prisoner is liable to serve” in s 50(2) clearly connotes, in my opinion, the head sentence and not the non‑parole period. The expression is used in that sense in s 65 and that is its natural and ordinary meaning. The sentence for escape, where the subsection applies, therefore commences at the expiration of any existing head sentences. If the person sentenced is in prison serving an existing sentence at the time of the imposition of the sentence for escape, I see no problem. The sentence for escape commences, by operation of law, at the expiration of the existing sentences. The non‑parole period fixed at that time is referable, on the principles explained above, to the whole period of imprisonment which he is liable to serve.
[5] (1987) 46 SASR 75.
[6] Ibid at 79.
The object of the phrase “liable to serve” in that section was “imprisonment”. King CJ held that in that context “imprisonment” meant a head sentence and not merely a non‑parole period. I respectfully agree with that conclusion.
The object of the phrase “liable to serve” in s 75 of the Correctional Services Act is “the balance of the sentence … unexpired as at the day on which the offence was committed”. That can only mean, in this case, the period of 11 months and one day. If the appellant was liable to serve that period for the purposes of s 75, he was also liable to serve it for the purposes of ss 66 and 67, along with the cumulative sentence imposed by the Magistrate.
There are other sections in the Correctional Services Act[7] and the Criminal Law (Sentencing) Act[8] in which the expression “liable to serve” is used, but by reference to different objects such as “term of imprisonment”, “sentence”, “period of imprisonment”, “imprisonment”, “total period of imprisonment”, “balance of a non‑parole period” and “balance of the sentence”. These may all have different meanings according to their context. My point is that if a person is liable to serve a period of imprisonment by virtue of s 75 of the Correctional Services Act he is also liable to serve it for the purposes of s 67. When added to the head sentence imposed by the Magistrate, the appellant was liable to serve a period in excess of five years imprisonment.
[7] Sections 37A(2), 37C(4), 50A(2), 66(1), 73(1), 74(3), 74(4a), 75 and 85D.
[8] Sections 23(7), 31(3), 32(1)(b) and (c), 32(2), (5) and (8).
This approach to a sentence or imprisonment which a defendant is liable to serve is not to be confused with a sentence fixed having regard to time already spent in custody. If a person at the time of sentence has spent one year in custody and, after taking that into account, a sentence of four years from the date a sentence is imposed, the sentence or imprisonment that the person is liable to serve by order of the court is still four years, not five. In my opinion, the only reason that the 2 months and 24 days served in custody before the date of sentence by the Magistrate is brought into account is because that period, forming part of the balance of the appellant’s sentence unexpired as at the day on which he committed the offences, cannot be served twice.
It follows that the District Court Judge was correct in aggregating the sentence of 22 months to the existing sentence making a total of 6 years 8 months and 7 days from 23 December 2002. However, he was technically wrong to fix a non‑parole period of 20 months from 23 December 2005. He was also wrong to say that the period of parole for the original sentence was suspended under s 74A of the Correctional Services Act. That section provides:
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.
That section had no application because the appellant had not been released on parole at the time he was sentenced by the District Court Judge.
The position was governed, in this case, by s 254(2a) of the Criminal Law Consolidation Act. The sentence of 22 months was cumulative upon the existing sentence. The sentencing Judge was correct in so directing. Pursuant to s 32 of the Criminal Law (Sentencing) Act the Judge was required to fix a new non‑parole period for the total sentence. The Judge erred in fixing a separate non‑parole period for the escape custody offence. However, in the circumstances I consider it appropriate to do what in fact the Judge did by adding to the existing non‑parole period which ended on 23 December 2005 the additional notional non‑parole period of 20 months which he considered to be appropriate to the sentence of 22 months. The appropriate order should therefore have been that the sentence of 22 months is cumulative upon the existing sentence and that a new non‑parole period of 4 years and 8 months is fixed from 23 December 2002.
The sentencing Judge erred for two reasons in directing that, upon the expiry of the 20 month non‑parole period, the appellant would commence to serve the period of parole which was suspended on 23 December 2005. In the first place, the Judge was purporting to rely on s 74A of the Correctional Services Act which, in my judgment, had no application. However, if it did, the period of parole for the original sentence would have resumed not upon the expiry of the non‑parole period but upon the appellant’s release from prison.[9] The Judge was also mistaken in referring to “the twenty month period of parole” with respect to the sentence he had imposed as being served concurrently with the suspended period of parole. The period of parole, if any, could be no more than two months. However, that slip does not appear to have been material.
[9] Section 74A(b), Correctional Services Act. Under the provisions of the present s 67, Correctional Services Act the release on parole at that time would be discretionary.
The order of the sentencing Judge also raises another potential anomaly in that, having fixed a total head sentence of 6 years 8 months and 7 days from 23 December 2002, the possible concurrent period of parole could result in the period of parole ending at a different time from that of the head sentence. That is not conceptually possible under our current sentencing regime.
The difference in the interpretation of the Correctional Services Act between Gray J and me, although we agree on the sentence to be imposed, may result in a different total head sentence. This is because, on the application of s 74A of the Correctional Services Act, portion of the 22 month head sentence (up to two months in this case) may be served concurrently with the balance of the previous sentence.

I have given consideration to whether my judgment is in conflict with s 353(5) of the Criminal Law Consolidation Act 1935. That subsection provides:
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.
I do not believe that it does offend that subsection. In the first place, the total head sentence I would fix is the same as that fixed by the sentencing Judge. Secondly, if there is a potential increase in the sentence, I believe it is a consequence of the application of the Correctional Services Act to the sentence imposed and not a consequence of my judgment.
In my opinion the appeal should be allowed. I would confirm the head sentence fixed by the sentencing Judge of 22 months cumulative upon the existing sentence, making a total period of 6 years 8 months and 7 days from 23 December 2002. I would set aside the non‑parole period fixed by the sentencing Judge. In lieu thereof I would fix a non‑parole period of 4 years and 8 months from 23 December 2002.
GRAY J
Introduction
Kendrick Laurence Ford, the defendant and appellant, pleaded guilty to the offences of escape from custody pursuant to section 254(1)(a) of the Criminal Law Consolidation Act 1935 (SA)[10], theft of a knife pursuant to section 134(1) of the Criminal Law Consolidation Act[11], and interference with a motor vehicle pursuant to section 86A of the Criminal Law Consolidation Act. [12]
[10] The maximum sentence is imprisonment for seven years.
[11] The maximum sentence is ten years imprisonment.
[12] The sentence for second or further offence is imprisonment for not less than three months and not more than four years.
On 8 February 2006, the sentencing Judge imposed the one sentence in respect of all offences:
The order of the court is that you be sentenced to a term of imprisonment of 22 months, reduced from 24 months for your pleas of guilty. The sentence will commence at the expiration of your existing sentence, which means that your new overall head sentence is now 6 years, 8 months and 7 days from 23 December 2002. I fix a non-parole period of 20 months. The non-parole period will run from 23 December 2005.
The Judge fixed the non-parole period with respect to the head sentence of 22 months and remarked:
Upon the expiry of the non-parole period, you will commence to serve the period of parole which was suspended on 23 December 2005 in accordance with s.74A of the Correctional Services Act. Concurrently with that period of parole, you will also commence to serve the two month period of parole with respect to the sentence which I have imposed: see Meyer v R (1997) 95 A Crim R 577.
In the reasons that follow, the sentence imposed of 22 months is described as the “subsequent sentence”. The sentence that had been imposed on 23 December 2002 is referred to as the “existing sentence”.
The foregoing paragraphs extracted from the sentencing remarks contain an inconsistency. Initially the Judge spoke of the subsequent sentence commencing at the expiration of the existing sentence. However, in the latter paragraph, the reference to the parole periods being served concurrently in accordance with section 74A of the Correctional Services Act 1982 (SA) implied that the existing sentence was to be served before the subsequent sentence.
The appellant complained that the sentencing Judge had erred in directing that the subsequent sentence of 22 months commence at the expiration of the existing sentence. The appellant contended this represented error in the sentencing process that called for a reconsideration of the entire sentence. He argued that the existing sentence had been suspended by operation of section 74A of the Correctional Services Act until the expiration of the subsequent sentence. The resolution of this inconsistency will be addressed later in these reasons.
The appellant further complained that the subsequent sentence of 22 months was manifestly excessive. It was argued that the sentencing Judge failed to have proper regard to the appellant’s pleas of guilty, to his contrition and to his co-operation with the authorities. The complaint also related to the length of the non-parole period. It was said that a non-parole period of 20 months against a head sentence of 22 months was manifestly excessive.
It is convenient first to consider the appeal with respect to the subsequent sentence. Once that aspect of the appeal is resolved, it will be necessary to consider the interaction between the existing sentence and the subsequent sentence, whether any error occurred and whether any injustice has resulted.
The appellant initially submitted that the sentencing Judge had erred in imposing a non-parole period by reference to an “overall head sentence of 6 years, 8 months and 7 days”. This submission was misconceived. During the course of the appeal, counsel’s attention was drawn to remarks of the Judge that made it clear that the non-parole period was fixed with reference to the head sentence for the subsequent offending. Ultimately, the appellant abandoned this complaint.
The Subsequent Sentence
The Circumstances of the Offending
On 29 May 2005, the appellant escaped from the Cadell Training Centre. He had worked in the kitchen during the morning and he took a knife before returning to his cell. Later that day, he escaped. Cadell is a low-security gaol and the appellant was able to leave undetected.
The appellant walked to Morgan, a nearby town, trying to hitch a ride. He was unsuccessful. He came upon and entered an unlocked motor vehicle. The owner then approached. The appellant told the owner that he was looking for a bottle of water. The owner photographed the appellant and telephoned the police. Police apprehended the appellant, arrested him and returned him to custody. His escape lasted less then 24 hours. The appellant was cooperative with police. He acknowledged the events that had occurred.
The appellant had a history of drug abuse. It was said that he had incurred a drug debt in prison that he was unable to meet. He had been threatened and was in danger. It was for this reason that he escaped.
Counsel for the appellant submitted that the sentencing Judge failed to have proper regard to the circumstances of the escape. Counsel contended that the appellant had engaged in a foolish act, brought about by fear concerning reprisal over a drug debt.
Antecedents
The appellant was born on 28 February 1979. He had a very difficult childhood. He had been placed in foster care at the age of 11 or 12 and had as a result been subjected to group care. He offended as a youth from 1991. He had many appearances before the Adelaide Children’s Court. His adult offending commenced when he was aged 18. From 1997 through to 1999, he engaged in dishonest conduct including the offences of: use of a motor vehicle without consent, larceny, break and enter, false pretences, receiving and unlawful possession. In 1998, he was sentenced to a term of imprisonment of 20 months. In 1999, he was sentenced to a term of imprisonment of 33 months. On 26 October 1999, he attempted to escape from custody and was sentenced on 27 June 2000 to a period of imprisonment of 11 months with a non-parole period of 8 months.
Counsel for the appellant said that whilst in custody, the appellant had been encouraged to use heroin and as a result had accumulated a debt to other prisoners. This led to his placement in protective custody. Over his protests, he was removed from protective custody and placed at Cadell. The drug debt remained and he feared reprisal. This fear led to his escape. Counsel pointed out that on his capture he was completely frank with police about the circumstances of his escape. He made early pleas of guilty. Counsel said that this conduct demonstrated contrition and remorse. Counsel further said that the appellant had the support of his mother, who was prepared to assist on his release from custody.
Counsel’s submission placed particular emphasis on what he said was the minimal reduction made on account of his pleas of guilty and his co-operation with the police. The Judge made a reduction of two months from an otherwise head sentence of 24 months. Counsel also submitted that a non-parole period of 20 months as against a head sentence of 22 months was, in the circumstances, too severe.
The Authorities
The authorities dealing with the offence of escaping from lawful custody repeatedly emphasise the seriousness of the offence. A paramount consideration is the need for severe punishment to provide deterrence. As King CJ observed in Knight:[13]
Escaping from prison is a serious crime. The maximum sentence prescribed by law for the crime is five years’ imprisonment. I am bound to say that, in my opinion, the sentences which have been imposed for this crime over recent years are far too low. The crime is serous for a number of reasons. It involves a deliberate defiance of the legal system. It threatens the control by the authorities of prisons and prisoners. It puts the community to the expense, often the great expense, of a search for the escapee. It unsettles the community and undermines its sense of security. To my mind the deterrent purpose of punishment for this type of crime is paramount. I believe that the courts should make clear to prisoners that an escape from prison will result in severe punishment.
[13] R v Knight (1986) 40 SASR 479 at 479; see also, R v Cox (1996) 66 SASR 152 at 156 and Morrison v Behrooz (2005) 155 A Crim R 110.
In Forrest[14], King CJ returned to these observations:[15]
In [Knight] I referred to the inadequacy of sentences commonly imposed for prison escapes and indicated that in my view the time had come for a substantial increase in the level of punishment for this offence. A perusal of the judgments of the members of the Court of Criminal Appeal who sat upon the appeal against the sentence imposed upon Knight, indicates to me that they concurred in that warning.
The present offence was committed before the warning given in Knight's case. I appreciate therefore that the learned sentencing judge felt somewhat constrained, as I did in Knight's case, by the level of sentences which have prevailed over the last few years. I am satisfied, however, that notwithstanding that this offence occurred before the warning given in Knight's case, the sentence imposed is manifestly inadequate. The crime was serious in itself. It was committed by a man whose criminal record disentitles him to any leniency on the ground of previous good conduct. He has escaped on a previous occasion and made an earlier attempt to escape. He has not profited by the leniency extended to him on those occasions. In those circumstances the crime called for severe punishment.
I would increase the sentence to three years. I would have made a greater increase if the offence had occurred after the warning given in Knight's case. The primary purpose of sentence for escape from custody is deterrence and there is far less scope for a parole component in such a sentence than is the case with sentences for other crimes. I would fix a non-parole period of two years and nine calendar months.
[14] R v Forrest (1987) 46 SASR 75
[15] R v Forrest (1987) 46 SASR 75 at 76-77.
These remarks were referred to in Shepperbottom[16], where Doyle CJ observed:[17]
The offence of escaping from custody is a serious offence. It will always call for a deterrent penalty. The fact that Cadell is a low security prison does not diminish the seriousness of the offence. … Accordingly, this is an offence which calls for a deterrent punishment.
This Court has held in a number of decisions that the offence of escaping from lawful custody will usually attract severe punishment: see R v Cox (1996) 66 SASR 152 at 156, and the cases there referred to, and see also R v Forrest (1986) 46 SASR 75 and R v Heaton (1994) 177 LSJS 342. Sentences of about two years’ imprisonment are quite common, when there are no particular aggravating circumstances. There have been higher and lower sentences, of course: see, for example, Marshall v R (Unreported, Court of Criminal Appeal, 22 September 1995, Judgment No S5282).
[16] R v Shepperbottom (2001) 212 LSJS 486.
[17] R v Shepperbottom (2001) 212 LSJS 486 at [14].
The seriousness of an escape depends upon the circumstances as well as the type of custody or detention from which the offender escapes. The degree of planning involved is also a relevant factor, as is the period spent at large. It also remains an important consideration, when sentencing for offending of this nature, to demonstrate to those in custody that if they escape, imprisonment of sufficient length to act as a deterrent to others may result.[18]
[18] See for example R v Stokes [2001] NSWCCA 82; Bailey v Kupsch [1966] Tas R (NC 20).
Consideration of the Appeal
The offence of escaping from custody can be expected to carry a term of imprisonment. The appellant had a relevant prior offence of attempting to escape from lawful custody in 1999. As earlier observed, on that occasion he was sentenced to a term of imprisonment of 11 months with a non-parole period of 8 months.
Given the appellant’s antecedents, and in particular the prior offence of attempting to escape from lawful custody, the sentencing Judge’s notional starting point of 24 months imprisonment was well within his sentencing discretion. It is to be borne in mind that the one sentence was imposed for all three offences.
The reduction on account of the pleas would appear to be at the lower end of the range for reductions. However, the appellant could hardly have resisted acknowledgment of his guilt in the circumstances. The allowance made by the Judge was within his discretion.
The appellant’s poor criminal record suggests that he was not a good candidate for parole. The appellant has been given many opportunities by the courts. He has not responded well. In these circumstances, the fixing of a non-parole period of 20 months was within the Judge’s discretion. This was a case where the appellant’s antecedents operated to preclude or reduce any prospects for leniency.
No error of sentencing principle has been identified. It has not been shown that the Judge had regard to any irrelevant material or that he failed to have regard to any relevant considerations.[19] The sentence imposed was an appropriate sentence for the appellant’s offending.
The Relationship between the Existing Sentence and the Subsequent Sentence
[19] Dinsdale v The Queen (2000) 202 CLR 321.
The Relevant History
On 12 March 2002, the appellant was released on parole with respect to sentences of imprisonment imposed in 1999 and 2000. These sentences are referred to in these reasons as the “earlier sentence”.
On 19 April 2002, the appellant committed further offences. As at that date, the unexpired balance of his earlier sentence was 11 months and 1 day.
On 17 September 2002, the appellant committed a breach of a designated condition of his parole by driving a motor vehicle without a licence. As at that date, the unexpired balance of his earlier sentence was 6 months and 2 days.
On 30 September 2002, the appellant was arrested and returned to custody. The appellant had remained on parole between 19 April 2002 and 30 September 2002.
On 22 October 2002, the Parole Board cancelled the appellant’s parole for breaching the designated condition on 17 September 2002. The unexpired balance of the earlier sentence as at 17 September 2002 was, as mentioned above, 6 months and 2 days.
On 23 December 2002, a magistrate imposed a sentence of 4 years and 2 months imprisonment with respect to the appellant’s April 2002 offending. The magistrate ordered that this term be served cumulatively on the unexpired balance of the appellant’s then existing sentence. The magistrate calculated the unexpired balance of that sentence to be 8 months and 7 days, being a period of 11 months and 1 day, less a period of 2 months and 24 days the time spent by the appellant in custody between 30 September 2002 and 23 December 2002. As a result, the Magistrate imposed a total head sentence of 4 years, 10 months and 7 days’ imprisonment. A non-parole period of 3 years was fixed by reference to that total head sentence. Both the total head sentence and the non-parole period were ordered to commence on 23 December 2002.
There was some debate as to whether the magistrate was correct in his approach. However, the parties agreed on the hearing of this appeal that no challenge would be advanced concerning the sentence of the magistrate.
As previously outlined, on 29 May 2005, the appellant escaped from Cadell and committed the offences the subject of the present appeal. He was arrested and returned to custody within 24 hours.
On 20 December 2005, the Parole Board considered the appellant’s application for parole but declined to approve his release.
On 8 February 2006, the appellant was sentenced with respect to the subsequent offending, the subject of this appeal. As earlier observed, a sentence of 22 months imprisonment was imposed with a non-parole period of 20 months. The sentencing Judge took the view that the appellant had been automatically entitled to release on parole on 23 December 2005, and technically was to be treated as having been released from custody. As from that date, in the Judge’s view, the appellant had remained in custody, on remand in respect of the subsequent offending. The Judge ordered the sentence of 22 months imprisonment to be cumulative on the existing sentence of 4 years, 10 months and 7 days, which the appellant was still serving. The Judge directed that the “overall” head sentence of 6 years, 8 months and 7 days “run from” 23 December 2002. He also directed that the non-parole period of 20 months that he had fixed in respect of the subsequent sentence run from 23 December 2005.
A difference of opinion has arisen between the Parole Board and the parties as to whether the appellant was entitled to automatic release on parole with respect to the existing sentence on 23 December 2005. The resolution of this difference turns on whether the appellant was serving a sentence of less than 5 years or 5 years or more. In the former case, the appellant had an automatic entitlement to parole. In the latter, he was eligible to apply for release on parole.
The Parole Board has advised this Court of its view that the appellant was not entitled to automatic release. Counsel for the appellant and for the Crown both disagreed and submitted that the correct position was that the appellant had been sentenced to a period of imprisonment of less than 5 years and was entitled to automatic release on 23 December 2005.
The Legislative Scheme
A degree of complexity arises when sentencing offenders who commit offences whilst outstanding prison terms remain to be served. The convoluted nature of the legislative provisions has been the subject of earlier comment by this Court.[20] This appeal requires further consideration of the difficulties arising from the complex legislative scheme. The understanding of the scheme is further complicated by the repeal of sections in some statutes and their re-enactment in other legislation.
[20] R v Czubak (2005) 92 SASR 400 at [36] (Gray and Sulan JJ).
The dispute as to whether the appellant was entitled to automatic parole, with respect to the existing sentence, or whether he was only eligible to apply for parole needs to be resolved. As earlier observed, a sentence of 5 years or longer would lead to an eligibility to apply for parole on 23 December 2005. If the sentence was less than 5 years, then the appellant had an automatic entitlement to parole as at 23 December 2005.
If the appellant was entitled to automatic parole, it would follow that he had been released on parole by operation of law on 23 December 2005. In that event, the appellant was technically on parole but remained in custody on remand with respect to the subsequent offending for which he was yet to be sentenced.[21] In this circumstance, section 74A of the Correctional Services Act applied, his parole with respect to the existing sentence was to be suspended until he became eligible for parole with respect to the subsequent sentence. At that time both periods of parole would be served concurrently. Section 74A provides:
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.
[21] R v Forrest (1987) 46 SASR 75.

In the event that the appellant was only eligible for release, it followed, as the Parole Board had not ordered his release, that at the time he came to be sentenced for the offence of escape from lawful custody, he remained in custody serving the existing sentence. In this circumstance section 254(2a) of the Criminal Law Consolidation Act applied and the sentence imposed by the sentencing Judge would be cumulative on the existing sentence. Section 254 provides:
Escape or removal from lawful custody
(1)     Subject to this section, a person subject to lawful detention who—
(a)    escapes, or attempts to escape, from custody; or
(b)     remains unlawfully at large,
is guilty of an offence.
Penalty:
Imprisonment for 7 years.
...
(2a)   A term of imprisonment to which a person is sentenced for an offence against subsection (1) is cumulative on any other term of imprisonment or detention in a training centre that the person is liable to serve.[22]
[22] Section 50(2) of the Correctional Services Act (now repealed) was in the same terms as section 254(2a).
An Apparent Conflict Resolved
In Forrest, King CJ discussed the apparent conflict between the then section 50(2) of the Correctional Services Act and section 74A of the Correctional Services Act. Section 254(2a) of the Criminal Law Consolidation Act is in the same terms as the now repealed section 50(2). Consequently, the same conflict arises in the present appeal.
In a situation where a judge imposes a sentence upon a person who is in prison serving an existing term of imprisonment, the judge sentencing in respect of the new sentence could order that sentence to be concurrent wholly or partly with the existing sentence or cumulatively upon it. In the event of the sentence being cumulative, the judge would order the new sentence to commence at the expiration of the existing sentence. The judge would then extend the non-parole period and fix a new non-parole period referable to the total period of imprisonment to be served. In this circumstance, no conflict would arise between section 254(2a) and section 74A.
However, in the event of the prisoner being released on parole prior to being sentenced in respect of the later offence, a difficulty does arise. Section 254(2a) directs the court to order that the sentence for the new offence be cumulative on any other imprisonment that the prisoner is liable to serve. However, section 74A directs that the parole be suspended for the duration of the imprisonment actually served in prison in pursuance of the subsequent sentence. Section 74A further directs that, on release, the suspended parole continues and runs concurrently with the parole period fixed in regard to the subsequent offence. King CJ resolved this conflict in the following manner:[23]
Ex facie ss 50(2) and 74a are in conflict as to prisoners sentenced, while on parole, for escape prior to release on parole. When the scheme is considered as a whole, however, I think that it is clear that s 74a must prevail. It is the provision specifically relating to the sentencing of prisoners on parole and it solves the problems otherwise inherent in that process. It does so, moreover, in a way which produces a cumulative effect, at least in respect of the custodial portion of the new sentence, and is therefore in harmony with the purpose of s 50(2). In my opinion the provisions which apply to a sentence of imprisonment on a parolee for escape from custody prior to his release on parole are those in s 74a and not those in s 50(2).
[23] R v Forrest (1987) 46 SASR 75 at 80.
As section 254(2a) is in the same terms as its progenitor, section 50(2), the reasoning and observations of King CJ apply equally to the present case. Section 74A is to prevail.
The Construction of Section 66 of the Correctional Services Act
The proper construction of the words “liable to serve a total period of imprisonment” appearing in section 66 of the Correctional Services Act also arises for consideration. That section provides:
The Board must order that a prisoner who is liable to serve a total period of imprisonment of less than five years and for whom a non-parole period has been fixed be released from prison or home detention on parole on a day specified by the Board, being a day—
(a) where, because the commencement of the non-parole period has been back dated, the non-parole period expires prior to the date on which it is fixed, not later than 30 days after the day on which it is fixed; or
(b) in any other case, not later than 30 days after the day on which the non-parole period expires.
The magistrate, when imposing the existing sentence on 23 December 2002, took a period of 2 months and 24 days spent by the appellant in custody into account and reduced the sentence to be imposed by that period of time. As a result, the total head sentence imposed by the magistrate was imprisonment for 4 years, 10 months and 7 days; a period less than 5 years.
In Forrest, this Court had to consider the offence of escaping from custody and the impact of the sentence to be imposed for that offence on the balance of an existing sentence to be served. King CJ discussed the meaning of the expression “imprisonment that the prisoner is liable to serve” in section 50(2) of the Correctional Services Act:[24]
The expression “imprisonment that the prisoner is liable to serve” in s 50(2) clearly connotes, in my opinion, the head sentence and not the non-parole period. The expression is used in that sense in s 65 and that is its natural and ordinary meaning.
[24] R v Forrest (1987) 46 SASR 75 at 79.
As earlier observed, section 50(2) has now been repealed and re-enacted as section 254(2a) of the Criminal Law Consolidation Act.
As King CJ pointed out, the expression “imprisonment that the prisoner is liable to serve” also appeared in section 65(4)(a) of the Correctional Services Act. Section 65(4)(a) has since been repealed and re-enacted as section 32(5)(a) of the Criminal Law (Sentencing) Act 1988 (SA).[25] The expression “imprisonment that the prisoner is liable to serve”, also appears in section 66 of the Correctional Services Act. It is clear from the context of section 66 that the expression “imprisonment that the prisoner is liable to serve” was intended to have the same meaning as that expression has in section 32(5)(a). King CJ reasoned that the reference to “imprisonment” in section 65 in its natural and ordinary meaning referred to a head sentence. I agree. The same interpretation has application to the same expression in section 66 of the Correctional Services Act, section 35(5)(a) of the Criminal Law (Sentencing Act) and section 254(2a) of the Criminal Law Consolidation Act.
[25] Section 65(4)(a) of the Correctional Services Act provided:
The words “liable to serve” also appear in sections 23(7), 31(3), 32(1)(b) and (c), 32(2) and (8) of the Criminal Law (Sentencing) Act and in sections 37A(2), 37C(4), 50A(2), 73(1), 74(3), 74(4a), 75 and 85D of the Correctional Services Act. When those words are used with reference to a sentence of imprisonment they should be interpreted consistently as referring to a head sentence imposed by a sentencing court. The words “liable to serve” should receive a consistent interpretation throughout the legislative scheme.
The term of the existing sentence meant that the appellant was liable to serve less than 5 years imprisonment. He was not liable to serve a period of imprisonment that he had already served. This is the proper approach to be taken to the construction of the expression “imprisonment that the prisoner is liable to serve”. The appellant was automatically entitled to parole on 23 December 2005. The sentencing Judge was correct to proceed on this basis.
The Resolution of the Inconsistency
As earlier observed, the sentencing Judge, in the course of his remarks said:
The sentence [of 22 months imprisonment] will commence at the expiration of your existing sentence, which means that your new overall head sentence is now 6 years, 8 months and 7 days from 23 December 2002.
As earlier observed, there is an inconsistency in the Judge’s sentencing remarks. At one point the Judge does not appear to follow the dictates of section 74A of the Correctional Services Act. Instead, the Judge at this point appears to apply section 254(2a) of the Criminal Law Consolidation Act. However, later the Judge does purport to apply section 74A of the Correctional Services Act when dealing with the concurrency of the serving of the non-parole periods. This would suggest that the Judge may have made a slip in directing that the subsequent sentence commence at the expiration of the existing sentence.
However, the effect of the Judge’s order was that the subsequent sentence would commence at the expiration of the existing sentence. Section 74A of the Correctional Services Act required the reverse. The existing sentence should have been suspended. As the appellant had been released on parole with respect to the existing sentence, at the time he was sentenced in respect of the subsequent sentence, section 74A required that the balance of the parole period with respect to the existing sentence and the parole period with respect to the subsequent sentence be served concurrently.
This error has not given rise to any injustice. The remark of the sentencing Judge referred to above is incorrect. However, the only variation to the sentence under appeal that is necessary to make it comply with section 74A of the Correctional Services Act is to direct that the subsequent sentence commence on 23 December 2005. Section 74A then has application and provides for the existing sentence to be suspended. Otherwise the sentence should be confirmed.
In the event that the appeal against the subsequent sentence was to be dismissed, both counsel agreed that the correct position was that the appellant would be eligible for parole 20 months after 23 December 2005. This is the date on which the appellant will be eligible for parole. That date is 23 August 2007. In the event of parole being granted, both parole periods with respect to the existing and subsequent sentences will be served concurrently.
Conclusion
This appeal should be allowed. The order of the sentencing Judge directing that the subsequent sentence commence on the expiration of the existing sentence should be set aside. An order should be made directing that the subsequent sentence of 22 months imprisonment commence on 23 December 2005.
ANDERSON J I agree with the order proposed by Gray J for the reasons he gives and I agree that the appeal should be allowed solely for the purpose of fixing the commencement date and duration of the non-parole period.

The above provisions are subject to the following qualifications:

(a) a non-parole period shall not be fixed in respect of a person who is liable to serve a total period of imprisonment of less than one year.

Section 32(5)(a) of the Criminal Law (Sentencing) Act 1988 (SA) provides:

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.