R v Fraser - [2007] SASC 257

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v FRASER
[2007] SASC 257
Reasons for Decision of The Honourable Justice Anderson
12 July 2007
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES, SENTENCES ON ESCAPE AND COMMENCEMENT OF SENTENCE - SENTENCE DURING UNEXPIRED SENTENCE
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - NON-PAROLE PERIOD OR MINIMUM TERM - SOUTH AUSTRALIA - DISCRETION OF COURT
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT
BREACH OF PAROLE - SENTENCING JUDGE NOT INFORMED OF BREACH - BREACH NOT TAKEN INTO ACCOUNT - RECTIFICATION OF SENTENCE REQUESTED BY PROSECUTOR
Application by Director of Public Prosecutions to rectify sentence under s 9A of the Criminal Law (Sentencing) Act 1988 (SA) - offence of manslaughter committed while defendant on parole for another offence - sentencing judge unaware of breach of parole at time of sentencing - whether amounts to re-sentencing - whether permitted by s 9A.
Held: Rectification in this case does not amount to re-sentencing but correction of error of a technical nature and supplying a deficiency in the sentencing order - head sentence and non-parole period rectified accordingly.
Criminal Law (Sentencing) Act 1988 (SA) s 9A; Correctional Services Act 1982 (SA) s 75, referred to.
R v Bartels (1986) LSJS 159; R v Porter Ruling of Cox J, 3 February 1999, court file number SCCRM-98-38, applied.
Question of Law Reserved on Sentence (No 1 of 1996) (1996) 67 SASR 90, discussed.

R v FRASER
[2007] SASC 257
Criminal

Anderson J: An application has been made by the Director of Public Prosecutions pursuant to s 9A of the Criminal Law (Sentencing) Act 1988 (SA) for the rectification of Mr Fraser’s sentence.
On 18 June 2007 I sentenced Mr Fraser to 4 years and 9 months imprisonment, which was reduced from 6 years on account of Mr Fraser’s guilty plea. I fixed a non-parole period of 3 years. Mr Fraser pleaded guilty to manslaughter.
At the time of sentencing I was not made aware that on 18 February 2004 Mr Fraser had been placed on parole for 26 months in relation to a previous sentence. At the time of committing the offence of manslaughter on 11 February 2005, Mr Fraser had a further 14 months and 8 days remaining of that parole. However of the time that Mr Fraser spent on remand for the manslaughter, 3 months and 8 days was pursuant to a parole board warrant. That leaves him with a further 11 months remaining of that parole. I will refer to the 11 months as the “unexpired period of parole”.
Section 75 of the Correctional Services Act 1982 (SA) states that:
(1)Where¾
(a) a person is sentenced to imprisonment for an offence committed while on parole and the sentence is not suspended;
…
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.
…
(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.
It is clear from the wording of this section and from the decision of the Court of Criminal Appeal in R v Bartels (1986) 133 LSJS 159, that where a person commits an offence while on parole from a previous conviction, the balance of the parole cannot begin to be served until the person has been sentenced for the later offence. I sentenced Mr Fraser on 18 June 2007.
The Director has applied to rectify Mr Fraser’s sentence so that he serves this unexpired period of parole in addition to the sentence for manslaughter.
Section 9A of the Criminal Law (Sentencing) Act 1988 (SA) states that:
(1)A court that imposes a sentence on a defendant, or a court of co-ordinate jurisdiction, may, on application by the Director of Public Prosecutions or the defendant, make such orders as the court is satisfied are required to rectify an error of a technical nature made by the sentencing court in imposing the sentence, or to supply a deficiency or remove an ambiguity in the sentencing order.
(2)The Director of Public Prosecutions and the defendant are both parties to an application under this section.
Counsel have agreed that the proper approach in relation to sentencing is for me to recall the sentence that I handed down on the 18 June 2007 and order that:
·Mr Fraser serve the unexpired period of parole, commencing on 18 June 2007; and
·upon the completion of this unexpired period of parole, Mr Fraser serve the head sentence for manslaughter, less the period of time spent on remand for which Mr Fraser was not under a Parole Board warrant.
The period of time that Mr Fraser spent on remand for the Parole Board warrant was 3 months and 8 days. Upon my calculation the period when Mr Fraser was on remand, but not under that warrant, amounts to 1 year, 10 months and 20 days, which I will round up to 1 year and 11 months.
Applying this calculation to the approach set out in par [8] of these reasons means that the 1 year and 11 months period referred to above is to be deducted from the original sentence of 4 years and 9 months. This leaves a sentence of 2 years and 10 months.
There is some dispute over the appropriate length of the non-parole period. On 18 June 2007 I imposed a non-parole period of 3 years, with both the original sentence and the non-parole period being backdated to 20 April 2005. That was the date on which Mr Fraser was arrested and taken into custody. This meant that Mr Fraser had only a further 10 months to serve in custody from the date he was sentenced on 18 June 2007.
Mr Nitschke, counsel for the defendant, has submitted that while s 9A allows me to rectify the sentence by imposing the unexpired period of parole to be served from 18 June 2007, I must ensure that ultimately I impose a non-parole period that will result in Mr Fraser spending only 10 months in custody. Mr Nitschke submits that were I now to impose a greater non-parole period, this would in effect amount to re-sentencing, and that s 9A does not confer a power to re-sentence. He submits that s 9A merely allows me to rectify an error.
Cox J was faced with a similar situation in the matter of R v Porter (SCCRM-98-38). In that matter the defendant had been convicted of manslaughter and Cox J had not been made aware that the defendant had been on parole at the time of committing the crime. As in this case, counsel applied for the sentence to be rectified pursuant to s 9A to take into account the time remaining of the parole. In his ruling on the rectification of sentence, which he handed down on 3 February 1999, Cox J stated:
It remains, then, to impose an appropriate sentence for the manslaughter offence and to fix a non-parole period to embrace both that sentence, which must be cumulative on the activated sentences by virtue of the legislation… and, as I say, to fix a comprehensive non-parole period.
Cox J then increased the non-parole period. He makes it clear that this increase in the non-parole period relates to the portion of the sentence relating to the unexpired portion of parole and is not an increase in the non-parole relating to the sentence for manslaughter.
It is my view that a separate period of non-parole should be set for this unexpired period of parole. To take this approach in my view is not in any way re-sentencing Mr Fraser for the charge of manslaughter. On 18 June 2007 I handed down a sentence for manslaughter that required Mr Fraser to spend a further 10 months in custody for that offence. In rectifying Mr Fraser’s sentence, he will still be spending 10 months in custody for manslaughter, but he will also spend a further period in custody for his breach of parole.
I am not in anyway re-evaluating the factors that I took into account in sentencing Mr Fraser for manslaughter. I do not view this as re-sentencing Mr Fraser. I regard it as an acceptable exercise of the powers conferred by s 9A. It seems to me that the section was enacted for this type of purpose. I consider that in the terms of s 9A what I am doing amounts to rectifying an error of a technical nature and also supplying a deficiency in the sentencing order.
Because of the view I have taken, it is not necessary to consider the decision in Question of Law Reserved on Sentence (No 1 of 1996) (1996) 67 SASR 90. In that case, Doyle CJ stated:
… it is not clear that [section 9A] enables the passing of a completely new sentence, as distinct from the making of an order which affects the operation of a sentence already passed.
Conclusion
For the reasons set out in par [8], par [9] and par [10] I order that Mr Fraser be sentenced to 11 months for his breach of parole, commencing 18 June 2007, and then for 2 years and 10 months for manslaughter, to commence upon the conclusion of the 11 months. This amounts to a total sentence of 3 years and 9 months.
I order a total non-parole period of 14 months, comprising the 10 months non-parole for the manslaughter and a further 4 months non-parole for the breach of parole.
I have settled on the period of 4 months for two reasons. First, I sentenced Mr Fraser for manslaughter on a criminal recklessness basis. The fact that he did not intend to cause the death of Mr Moore also means that he did not intend to breach his parole. For this reason I consider that the non-parole should be shorter than it would have been had he intentionally breached parole.
Secondly, I have taken into account Mr Nitschke’s submission that upon being sentenced on 18 June 2007 Mr Fraser had a “date upon which he had an anticipation of being … released on parole” and, as Mr Nitschke put it, “he is now facing a movement in the distance of his release on parole”. For these two reasons I consider that a non-parole period of 4 months is appropriate for the unexpired period of parole.
Mr Fraser is therefore sentenced to 3 years and 9 months imprisonment commencing on 18 June 2007. I fix his non-parole period at 14 months from that date.