R v FORREST (No 2) - [2016] SASCFC 91

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v FORREST (No 2)
[2016] SASCFC 91
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Kelly and The Honourable Justice Lovell)
24 August 2016
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - POWERS OF APPELLATE COURT - GENERALLY
The appellant was charged with 13 offences committed during the course of three violent home invasions in June 2013. The appellant pleaded guilty to two offences which related to the second (Valley View) home invasion. The appellant also pleaded guilty to the offence of making use of fabricated evidence.
The appellant was convicted by jury of nine counts relating to the first (Ottoway) and third (Woodville Gardens) home invasions.
The learned trial Judge proceeded in sentencing the appellant by using s 18A of the Criminal Law (Sentencing) Act 1988 (SA) to impose separate sentences in relation to the three home invasion convictions and the fabricated evidence conviction. The appellant also had an unexpired balance of a previous sentence to serve by reason of the above offending breaching his parole. The unexpired portion of parole of four years, one month and 19 days was ordered to be served cumulatively upon the total head sentence imposed of 30 years and eight months’ imprisonment.
The Judge reduced the head sentence and non-parole period by five years on account of totality, to a head sentence of 29 years, nine months and 19 days and a non-parole period of 16 years was fixed.
Judgment previously delivered allowing the appeal against convictions relating to the first and third home invasions, and remitting those nine counts for retrial.
Both the appellant and the Crown instituted appeals against the sentence imposed by the Judge but were never heard and were awaiting determination of the conviction appeal.
Whether the Court has the power, upon allowing an appeal against conviction, to quash sentences for convictions not the subject of that appeal against conviction.
Held per the Court:
1. The sentence is set aside.
2. The sentence on counts 8 and 9 of the information and the fabricated evidence conviction is remitted to a single Judge of this Court for re-sentencing.
Criminal Law (Sentencing) Act 1988 (SA) s 18A; Criminal Law Consolidation Act 1935 (SA) s 353, s 354, referred to.

R v FORREST (No 2)
[2016] SASCFC 91
Court of Criminal Appeal: Kourakis CJ, Kelly and Lovell JJ

THE COURT: On 28 July 2016, this Court allowed the appellant’s appeal against convictions on:
·two counts of aggravated serious criminal trespass in a place of residence (counts 1 and 10);
·one count of attempted murder (count 11);
·one count of aggravated endangering life (count 3);
·three counts of aggravated robbery (counts 4, 6, and 13);
·one count of aggravated causing serious harm with intent to cause serious harm (count 5); and
·one count of false imprisonment (count 7).
Those offences were charged on an Information numbered 65 of 2014 (the Information). The Court remitted each of those matters for retrial.
The sentences passed on those counts must necessarily be set aside. However, the question of the appellant’s sentencing is complicated in that, on the same occasion that he was sentenced on those counts, he was also sentenced for the following offences to which he pleaded guilty:
·Aggravated serious criminal trespass in a place of a residence at Valley View (count 8);
·Aggravated robbery at Valley View (count 9); and
·Making use of fabricated evidence (charged on an Information called up from the Magistrates Court and numbered 72 of 2015 in this Court).
By reason of the commission of the offences, the appellant’s pre-existing parole was revoked with the effect that the appellant was liable to serve four years, one month and 19 days from 12 June 2013.
The form of the Judge’s sentencing remarks and the Court’s record of the sentences passed (the Record of Proceedings) suggest that the Judge imposed cumulative sentences of imprisonment as follows:
·On counts 1, 3, 4, 5, 6, and 7 (the Ottoway offending) – one penalty pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act) of 10 years’ imprisonment;
·On counts 8 and 9 (the Valley View offending) – one penalty of imprisonment pursuant to s 18A of the Sentencing Act of imprisonment for five years cumulative on the earlier sentence;
·On counts 10, 11, and 13 (the Woodville Gardens offending) – one penalty pursuant to s 18A of the Sentencing Act of 15 years’ imprisonment cumulative on the preceding sentences;
·On the Magistrates Court offence – eight months’ imprisonment cumulative on the earlier imposed sentences; and
·Unexpired portion of parole of four years, one month and 19 days to be served cumulatively upon the total sentence imposed of 30 years and eight months’ imprisonment.
For those sentences, the Judge’s sentencing remarks purported to fix a non-parole period of 21 years, and that non-parole period is also noted in the Record of Proceedings.
However, the Judge then concluded her sentencing remarks as follows:
[101]I consider a sentence of 34 years, nine months and 19 days and a non-parole period of 21 years would be crushing. I reduce your head sentence and non-parole period by five years on account of totality to a head sentence of 29 years, nine months and 19 days and a non-parole period of 16 years. The sentence is backdated to 12 June 2013 when you were taken into custody.
Similarly, the Record of Proceedings provides:
Head sentence and non-parole period reduced by 5 years on account of totality
HEAD SENTENCE
Imprisonment –                   29 years 9 months and 19 days
Non-parole period -               16 years
Sentence to commence -         12 June 2013
VIC Levy   $5460
Section 353 of the Criminal Law Consolidation Act 1935 (SA) (CLCA) provides:
353—Determination of appeals in ordinary cases
(1)The Full Court on any such appeal against conviction shall allow the appeal if it thinks that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law, or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal; but the Full Court may, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.
(2)Subject to the special provisions of this Act, the Full Court shall, if it allows an appeal against conviction, quash the conviction and either direct a judgment and verdict of acquittal to be entered or direct a new trial.
…
(4)Subject to subsection (5), on an appeal against sentence, the Full Court must—
(a) if it thinks that the sentence is affected by error such that the defendant should be re-sentenced—
(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.
…
It is a necessary implication of an order quashing a conviction and ordering a retrial pursuant to s 353(2) CLCA that the sentence imposed, being a part of the order of conviction, is set aside.
Section 354(1) of the CLCA relevantly provides:
354—Powers of Court in special cases
(1)If it appears to the Full Court that an appellant, although not properly convicted on some count or part of the information, has been properly convicted on some other count or part of the information, the Court may either affirm the sentence passed on the appellant at the trial or pass such sentence in substitution therefor as it thinks proper and as may be warranted in law by the verdict on the count or part of the information on which the Court considers that the appellant has been properly convicted.
If discrete sentences in accordance with the first part of the Judge’s reasons and the Record of Proceedings were imposed, s 354 of the CLCA would allow this Court to affirm or vary the sentences, imposed on the other convictions to ensure a just outcome in the changed circumstances.
Section 354 does not expressly allow this Court to set aside the sentences on the other convictions and to remit the matters for re-sentencing after the determination of the guilt of the appellant of any offences remitted for retrial. It would be convenient for the Full Court to have that power but there is no reasonable necessity from which it can be implied. This matter warrants the attention of the Parliament.
Section 18A(1) of the Sentencing Act relevantly provides:
18A—Sentencing for multiple offences
(1)If a person is found guilty by a court of a number of offences, the court may sentence the person to the one penalty for all or some of those offences, but the sentence cannot exceed the total of the maximum penalties that could be imposed in respect of each of the offences to which the sentence relates.
It follows from the last paragraph of the sentencing remarks that the Judge did not intend to impose the discrete sentences fixed for each group of offences as a final sentence. The only statutory mechanism by which the Judge could give effect to her ultimate decision to impose a total head sentence of 29 years, nine months and 19 days’ imprisonment and a non-parole period of 16 years was s 18A of the Sentencing Act. The circumstance that the Judge proceeded in error in imposing a single sentence which incorporated within it the period of non‑expired parole, or in any other way,[1] does not make the sentencing order any less an exercise of the power conferred by s 18A of the Sentencing Act to impose one sentence on all of the offences.
[1] Section 74 of the Correctional Services Act 1982 (SA) (the CSA) relevantly provides:
74—Cancellation of release on parole by Board for breach of conditions
(1)If the Board is satisfied that a person who has been released on parole has, while on parole, breached a condition of the parole, the Board may, by order, direct that the person serve in prison the balance of the sentence, or sentences, of imprisonment in respect of which the person was on parole, being the balance unexpired as at the day on which the breach was committed.
…
(1b) Where the Board makes an order under subsection (1) in respect of a person who is still on parole, the Board must order that the person's release on parole be cancelled.
…
(6)Any period for which the person is detained in custody or in prison after breaching the condition is to be counted as or towards the period that the person is liable to serve in prison under this section (and any date on which the sentence is to be taken to have commenced will be fixed accordingly).
Section 75 of the CSA relevantly provides:
75—Automatic cancellation of parole on imprisonment for offence committed while on parole
(1)Where—
a) a person is sentenced to imprisonment for an offence committed while on parole and the sentence is not suspended; or
(b) the suspension of a sentence of imprisonment imposed for an offence committed by a person while on parole is revoked,
the person is liable to serve in prison the balance of the sentence, or sentences, of imprisonment in respect of which he or she was on parole, being the balance unexpired as at the day on which the offence was committed.
…
(3)Any period for which the person is detained in custody or in prison after committing the offence is to be counted as or towards the period that the person is liable to serve in prison under this section (and any date on which the sentence is to be taken to have commenced will be fixed accordingly).
The Judge, having engaged s 18A of the Sentencing Act to impose a single sentence on all of the convictions, and the convictions on the Ottoway and Woodville Gardens home invasions having been set aside, the single sentence must also necessarily be set aside. The resulting position is that the appellant must be dealt with by a Judge or Judges of this Court on the Ottoway and Woodville Gardens offences to which he has pleaded not guilty, and on the Valley View and the fabricated evidence offences to which he has pleaded guilty. The Judge or Judges before whom these matters are listed will determine whether sentencing should proceed immediately on the matters to which the appellant has pleaded guilty or whether the sentencing should await the conclusion of the matters which have been remitted for retrial.
Even if the correct analysis of the Judge’s sentencing is that discrete sentences were imposed on the Valley View and fabricated evidence offences, then both the appellant and the Director agree that an error has been made in the Judge’s overall approach to sentencing. Both the appellant and the Director consent to orders setting aside the sentences on the Valley View offences and the Magistrates Court offence and remitting those matter for sentencing to a single Judge.
Accordingly, this Court orders:
·Sentence set aside;
·Remit the matters on counts 8 and 9 of the Information and on the Information numbered 72 of 2015 to a single Judge of this Court for re-sentencing.