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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Fraser

Details

AGLC: R v Fraser [2007] SASC 257
Case: [2007] SASC 257
Decision Date: 12 July 2007

CaseChat Overview and Summary

The case of R v Fraser involved an application by the Director of Public Prosecutions to rectify the sentence imposed on the defendant, Fraser, under section 9A of the Criminal Law (Sentencing) Act 1988 (SA). Fraser had been convicted of manslaughter while on parole for another offence. The sentencing judge was unaware of Fraser's parole breach at the time of sentencing, prompting the application for sentence rectification. The legal issue before the court was whether this rectification amounted to re-sentencing and if it was permitted by section 9A.

The court determined that the rectification of the sentence in this case did not amount to re-sentencing but rather a correction of a technical error and a supplementation of the sentencing order. The head sentence and non-parole period were adjusted accordingly. The court relied on the distinction between passing a completely new sentence and making an order that affects the operation of a sentence already passed, as articulated in Question of Law Reserved on Sentence (No 1 of 1996) (1996) 67 SASR 90. The court held that section 9A allows for the correction of errors rather than the imposition of a new sentence.

In conclusion, the court ordered Fraser to serve an additional 11 months for his parole breach, to commence on 18 June 2007, followed by 2 years and 10 months for manslaughter, making a total sentence of 3 years and 9 months. The total non-parole period was set at 14 months, consisting of 10 months for manslaughter and 4 months for the parole breach. The 4-month non-parole period was deemed appropriate due to Fraser's lack of intent to cause the death and breach parole. The court fixed Fraser's non-parole period at 14 months from the commencement date of his sentence.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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