R v Furlong

Case [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

  1. MULLIGHAN J:               I would dismiss the appeal for the reasons given by Nyland J.

  2. 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.

  3. 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:

  4. 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.”

  5. On 16 February 2004, leave was given to the…

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AGLC
R v Furlong [2004] SASC 217
Case
[2004] SASC 217
Decision Date

CaseChat Overview and Summary

In the matter of R v Furlong, the appellant challenged the sentence imposed by the District Court judge. The appellant had committed a series of offences while on parole, leading to his sentencing on various dates in different courts. The primary legal issues were whether the sentence was manifestly excessive and whether the appellant had received full credit for the time he had already served. The appeal was dismissed by the court, which found that the sentence was appropriate and that the appellant had been given credit for the correct amount of time served.

The court examined the appellant's criminal history, which dated back to 1983, and noted that he had multiple convictions for serious offences. Despite his lengthy criminal record, the court acknowledged the appellant's protected status, which should have been considered in the sentencing process. The court assessed the method of calculation of the sentence, including the reduction for the appellant's guilty pleas and the time he had spent in custody. It was determined that the appellant had been given credit for 14 months and 11 days of time served, which was appropriate given that he had already been serving a sentence for other crimes. The court found that the non-parole period imposed by the District Court judge was sufficient, taking into account the appellant's protected status and the seriousness of his current offences.

The court concluded that the sentence imposed by the District Court judge was not manifestly excessive, and that the appellant had been given full credit for the time he had served. The sentence reflected the appellant's criminal history and the seriousness of his current offences, while also considering his protected status. The court rejected the appellant's argument that the non-parole period was too short, finding that it was appropriate given the circumstances. The appeal was dismissed, and the sentence imposed by the District Court judge was upheld.

In light of the court's findings, the appellant's sentence remains as imposed by the District Court judge. The appellant is to serve a total effective head sentence of nine years and three months, with a non-parole period of four years and five days. The court's decision confirms the appropriateness of the sentence and the method of calculation used by the District Court judge.

Orders

Orders of the court

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Background

Background to the litigation

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:

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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