R v Furlong - [2004] SASC 217

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v FURLONG
Judgment of The Court of Criminal Appeal
(The Honourable Justice Mullighan, The Honourable Justice Nyland and The Honourable Justice Anderson)
30 July 2004
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE
Appeal against sentence - appellant sentenced with respect to series of offences committed whilst on parole - appellant sentenced in Magistrates Court for other offences while awaiting sentence in District Court - whether sentence imposed by District Court judge manifestly excessive - whether full credit given for time served - appeal dismissed.
Criminal Law (Sentencing) Act 1998 ss 18A, 31(2), 32(1)(b); Correctional Services Act 1982 s 75, referred to.

R v FURLONG
[2004] SASC 217
Court of Criminal Appeal : Mullighan, Nyland and Anderson JJ

MULLIGHAN J: I would dismiss the appeal for the reasons given by Nyland J.
NYLAND J: This is an appeal against a sentence imposed in the District Court on 12 September 2003. The issue for determination is whether the prisoner has been given full credit for time served as the provisions of s 31(2) of the Criminal Law (Sentencing) Act 1998 precluded the sentence from being backdated to the date upon which the appellant was taken into custody.
The appellant was charged on information with five offences, viz two offences of serious criminal trespass in a non-residential building and two offences of larceny, all of which were committed jointly with Douglas Paul Edey on 6 January 2002. The appellant was separately charged with the offence of assault with intent to resist lawful apprehension, also committed on 6 January 2002 and further offences committed on 7 January 2002, viz illegal use, driving in a manner dangerous, driving without being the holder of an appropriate licence, resisting a police officer and contravening a condition of the bail agreement. At the time of sentence in the District Court the appellant was serving other sentences and was subject to a non-parole period. The District Court judge ordered him to be imprisoned for a total period of three years and four months, cumulative upon the sentences currently being served. His non-parole period was extended by18 months to 28 months to date from 13 August 2003.
Grounds of Appeal:
The grounds of appeal are as follows:
“1.         The sentence was manifestly excessive.
(1)    The time the applicant has already spent in custody has been taken off the head sentence instead of the non-parole period.
(2)    The time already spent in custody has not fully been taken into account.
(3)    The applicant did not have the time already spent in custody taken into account for sentencing on other matters.
(4)    The sentence fails to give adequate weight to the prospects of rehabilitation and the facilities in Port Augusta Prison are inadequate for any treatment program.
(5)    That the sentence did not properly take account of the appellant’s circumstances.
2.           The sentence was not properly backdated.”
On 16 February 2004, leave was given to the appellant to appeal on grounds 1(1), (2) and (3) and 2, all of which relate to the method of calculation of the sentence. No application has been made on the other two grounds for which leave was refused.
Background:
On 6 January 2002, the appellant and Edey drove to Balaklava and early in the morning broke into a building of the Telstra Corporation where they stole goods to the value of about $2,200. They then broke into Balaklava Foodland and stole tobacco products valued at about $4,500. The alarm was activated at the Foodland building. A police officer attended. The appellant assaulted the police officer with a car jack and ran away. Edey remained behind and co-operated with police.
After running away, the appellant hid in the town for about 18 hours. At about midnight he took a motor vehicle and began driving to Adelaide in the course of which a lengthy high speed pursuit ensued. In that pursuit, the appellant ignored red traffic lights and drove in a manner dangerous to the public. The pursuit continued for about an hour over a distance of about 100 kms. Damage was caused to the vehicle which in due course was abandoned and the appellant ran away. He was eventually apprehended by police officers after offering violent resistance. The vehicle which had previously been worth about $3,000 was written off.
Prior offending and sentencing history:
At the time of sentence the appellant was 34 years old and had a long history of prior offending going back to 1983 when he was still a youth. On 16 November 1995, in the Adelaide Magistrates Court, the appellant received a sentence of 30 months imprisonment with a non-parole period of 21 months with respect to a number of offences of dishonesty.
On 25 January 1996 the appellant appeared in the District Court on a charge of robbery and was sentenced to three years, seven months imprisonment. He had breached a non-parole period previously set as a result of which he was subject to a head sentence of six years, one month with a non-parole period of four years and three months.
On 13 August 1996 the appellant again appeared in the District Court on a charge of break and enter building and commit offence. He was sentenced to 18 months imprisonment. As a result of breach of parole, the sentence was made cumulative upon his earlier sentence and his non-parole period was extended. He was then left with a head sentence of six years, 19 months with a non-parole period of four years and nine months.
The appellant was subsequently released on parole on 6 October 2000. He committed further offences, however, on 18 September 2001 and 7 November 2001 and was returned to custody. On 3 December 2001 he was again released on parole. The present offences were committed on 6 and 7 January 2002 and therefore breached his parole. The appellant has been in custody since his arrest on 7 January 2002. The appellant was sentenced to the September 2001 offences in the Adelaide Magistrates Court on 13 August 2003 and for the November 2001 offences in the Holden Hill Magistrates Court on 18 March 2003. The sentence by the District Court judge which is the subject of this appeal was imposed on 12 September 2003.
Sentencing with respect to the current offence:
The District Court judge exercised his powers pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 and imposed one penalty with respect to all five of the offences which were committed at Balaklava. For those offences he sentenced the appellant to imprisonment of 28 months. He indicated, however, that in the determination of that sentence he had allowed a discount of approximately 25% for the pleas of guilty as well as an allowance of 14 months, 11 days, for the period of time for which the appellant had been in custody relating to these offences. Edey, was also 34 years at the time of sentence. He had a history of prior offending but nothing of any significance since 1988. He had co-operated with the police and, at the time of his arrest, had yelled at the appellant to stop him from attacking the police officer. He was sentenced to three years imprisonment after a 25% discount was allowed for his plea of guilty. Edey received an 18 month non-parole period. Due to circumstances personal to him, which included progress with respect to his rehabilitation Edey’s sentence was suspended.
The appellant was further sentenced for those offences committed by him separately. For the offence of illegal use of the motor vehicle the appellant was sentenced to imprisonment for nine months cumulative upon the single sentence of imprisonment for 28 months and he was disqualified from holding or obtaining a driver’s licence for 12 months.
For the offence of driving in a manner dangerous to the public, the appellant was fined $500 which was payable forthwith. In default of payment, time in lieu was to be served concurrently with the sentence of nine months imposed for the illegal use charge.
For driving while not holding appropriate licence the appellant was fined $200 payable forthwith and in default of payment, time in lieu was to be served concurrently with the sentence for illegal use.
For resisting a police officer in execution of his duty the appellant was sentenced to imprisonment for three months, cumulative upon the other sentences.
For breach of his bail agreement, he was fined $200 payable forthwith and in default, time in lieu was to be served concurrently with the sentence of three months for resisting a police officer.
As a result of the accumulation of these sentences, the total head sentence imposed by the District Court judge was three years and four months. As the offending had breached parole, that sentence could not be backdated: s75 Correctional Services Act 1982. The judge therefore ordered that sentence to be cumulative upon the sentence currently being served. That resulted in a head sentence of seven years, six months and 25 days. The judge extended the existing non-parole period of 10 months by 18 months (the latter being the equivalent of a non-parole period fixed for Edey). This left the appellant with a 28 month non-parole period which he directed to commence from 13 August 2003.
Mr Richards, who appeared as counsel for the appellant on the hearing of the appeal, submitted that the judge had failed to give the appellant full credit for time spent in custody with respect to the head sentence and had not made any allowance at all for it when fixing the non-parole period.
The judge, in his sentencing remarks, specifically mentioned taking into account a period of 14 months and 11 days when he fixed the head sentence. That was the allowance for time served sought by counsel representing the appellant at the time of sentencing submissions. This was calculated as being from the date that the appellant was taken into custody after his arrest on 7 January 2002 to 18 March 2003, which was the date on which the appellant appeared in the Holden Hill Magistrates Court and was sentenced for the offences committed by him in November 2001.
Mr Richards submitted, however, that the total period for which allowance should have been given with respect to both the head sentence and the non-parole period was 20 months and five days, being the period from the appellant’s arrest on 7 January 2002 to the date on which he was finally sentenced by the District Court judge on 12 September 2003.
Part of the difficulty which has arisen in this matter is the result of an error made by the magistrate who sentenced the appellant on 13 August 2003 for offences committed in September 2001. At that time the appellant was subject to an existing non-parole period. The magistrate was therefore obliged to review it and extend it by such period as he/she thought fit: s 32(1)(b) Sentencing Act. Instead of doing that, the magistrate fixed a new non-parole period to commence from 13 August 2003, the date on which sentence was imposed. There has, however, not been any appeal against that sentence.
Effect of sentences imposed since 7 January 2002:
In order to determine whether the appellant has been given appropriate credit for time spent in custody it is necessary to examine the effect of the various sentences imposed upon him since 7 January 2002. The offences committed by the appellant in November 2001 were dealt with in the Holden Hill Magistrates Court on 18 March 2003. At that time a sentence of one year and three months imprisonment was imposed. This was ordered to be served cumulative upon the unexpired balance of parole which was said to be one year, six months and 21 days. This resulted in a head sentence of two years, nine months and 21 days. A non-parole period of six months was set.
The Parole Board subsequently noted that an incorrect balance of parole had been applied and this balance was later amended to one year, five months and 25 days, making a total sentence to be served by the appellant of two years, eight months and 25 days with a six month non-parole period to be commence from 18 March 2003.
On 13 August 2003, the appellant appeared in the Adelaide Magistrates Court with respect to offences committed on 18 September 2001. He was sentenced to one year and six months imprisonment. This sentence was correctly ordered to be served at the expiration of the sentence of two years, eight months and 25 days imposed on 18 March 2003. This resulted in a head sentence of four years, two months and 25 days. The magistrate then fixed a non-parole period of 10 months to commence from 13 August 2003. On that date, however, the appellant was still subject to the non-parole period of six months which had been fixed by the magistrate in the Holden Hill Magistrates Court on 18 March 2003.
As mentioned earlier, however, pursuant to s 32(1)(b) of the Sentencing Act, the magistrate who imposed sentence on 13 August 2003 should have reviewed the earlier non-parole period and extended it from 18 March 2003 by such period as he thought fit. He did not do that, but set a fresh non-parole period to commence on 13 August 2003.
The District Court judge, when sentencing the appellant applied the provisions of s 32(1)(b) of the Sentencing Act. He reviewed the existing non-parole period set by the magistrate on 13 August 2003 and made the order for an extension of the non-parole period to date from 13 August 2003.
On the hearing of the appeal Mr Richards submitted that the intention of the magistrate who fixed the 10 month non-parole period on 13 August 2003 was to increase the existing non-parole period by four months, but due to his failure to back-date the commencement of the new non-parole period to 18 March 2003, the appellant had not been given any credit for the period between March and August 2003.
There is no information before the court as to the manner in which the 10 month non-parole period was calculated by the magistrate who imposed sentence on 13 August 2003. I would find it surprising, however, for the non-parole period to have been extended by as little as four months when the sentence being imposed was a further 18 months. Mr Richards submitted, however, that it had been intended by the court to deal with the appellant leniently due to his status as a protected prisoner. The appellant had been assaulted in custody by another inmate on an earlier occasion. The failure of the District Court judge to give appropriate credit to the appellant for time served meant, however, that the appellant had been deprived of that leniency.
The appellant’s status as a protected prisoner is mentioned in the psychological report of Dr Jack White, dated 24 March 2003 which was provided to the District Court judge at the time of sentence. That report says:
“Mr Furlong said that in 1996 he was the victim of a brutal bashing at Yatala Labour Prison by a fellow prisoner, Scott Hart. He said he was badly beaten around the head with an iron bar, and his injuries required 70 stitches. He said that he was also raped by the prisoner. Mr Furlong said that he was too afraid to report anything as he had seen other prisoners become (sic) he feared further victimisation within the prison environment were it revealed that he had been raped. Mr Furlong indicated that since that time he had been put ‘on protection’.”
In the course of sentencing submissions, counsel for the appellant mentioned that the appellant had spent the last 21 months or so in protection. In his sentencing remarks the judge referred to Dr White’s report and mentioned aspects of it, although he did not specifically mention this particular matter.
The District Court judge specifically referred to an allowance of 14 months and 11 days with respect to time spent in custody when fixing the head sentence. When he fixed the non-parole period he simply said “in all of the circumstances your existing non-parole period is extended by 18 months to 28 months from 13 August 2003”. In order to determine whether the judge made an equivalent allowance for time served when fixing the non-parole period, it is necessary to look at the notional head sentence imposed with respect to the present offending and compare it with the effective non-parole period for the same crimes.
The judge imposed a sentence of 28 months for the five Balaklava offences. He allowed a deduction of 25%, that is, about nine months, to allow for the pleas of guilty, plus 14 months 11 days for time served. This means that the sentence for the five Balaklava offences prior to reduction was about 51 months. For the same crimes, Edey received a sentence of 48 months prior to the discount for his plea. Edey had, however, co-operated substantially with the police when arrested and did not have any recent criminal history. For the offences committed separately by him, the appellant was sentenced to further periods totalling 12 months, bringing the effective head sentence prior to deduction to about 63 months. The judge then reviewed the non-parole period and extended it by 18 months. Edey, who received a lesser sentence and who was not serving any other sentence received a non-parole period of 18 months.
Conclusion:
Given an effective District Court sentence in excess of five years, and also comparing it to Edey’s sentence, it would be surprising for the judge to have extended the non-parole period by as little as 18 months. If, however, 14 months 11 days is added to the non-parole period to take into account the same allowance as was made with respect to the head sentence, the effective non-parole period imposed by the judge for these particular crimes was about 32 months. That is approximately one half of the sentence imposed by the District Court judge. That would sufficiently take into account any leniency with respect to the appellant’s protected status and in my view, is the approach taken by the sentencing judge.
In my opinion, it was not appropriate for the District Court judge to allow credit to the appellant for any greater period than 14 months and 11 days for time served, as once the appellant was sentenced on 18 March 2003, he commenced serving a term of imprisonment for those other crimes. I have already mentioned that there is no information before us as to the method by which the magistrate on 13 August 2003 fixed the non-parole period. Nevertheless, in order to determine whether the appellant has been given proper credit with respect to all the time served since he was taken in custody on 7 January 2002, namely, a period of 20 months and five days, it is helpful to look at the result which flowed from the sentence in the District Court.
The sentence imposed by the District Court judge was three years and four months. That was cumulative upon a previous sentence of four years, two months and 25 days. The final head sentence following the sentence in the District Court was therefore seven years, six months and 25 days. If that sentence is in addition to the 20 months, five days spent in custody, the head sentence would effectively be nine years and three months. If the same period is added back into the 28 month non-parole period, the minimum term to be served by the appellant for all of his offending before being eligible for parole would be four years and five days, which is less than two-thirds of the effective head sentence. The incident in which the appellant was assaulted occurred in 1996. The appellant continued to offend thereafter. The offences for which the appellant was sentenced in the District Court were serious. The appellant has ended up with a non-parole period of less than two-thirds of the head sentence if all his time in custody is taken into account. This reflects some leniency to the appellant as a protected prisoner.

In my opinion, the appellant has been given credit for all time served and the appeal should be dismissed.
ANDERSON J: I agree that the appeal should be dismissed for the reasons given by Nyland J.