R v Glynn

R v GLYNN
[2000] SASC 323

Court of Criminal Appeal: Prior, Debelle and Lander JJ

1................ LANDER J: On 30 July 1998 the appellant on her plea of guilty, was convicted of robbery with violence. A Judge of the District Court sentenced her to be imprisoned for two years and six months. He set a non parole period of nine months. The sentence commenced on 30 July 1998.

On 28 April 1999 the appellant, who was born on 21 May 1975, and is now 25 years of age, was released on parole and returned to her home town of Mount Gambier to live with her young son and immediate family.
After release on parole she undertook several jobs including waitress work and work in a meat works but the distances involved in travel and in due course the execution of a Parole Board warrant prevented her securing long term employment.
During her release on parole she smoked cannabis in contravention of her parole conditions. She failed to attend an alcohol and other drug programme on 1 December 1999. She substituted a false urine sample on 3 December 1999.
On 9 May 2000 the appellant acknowledged all three breaches of parole.
On 23 March 2000 her parole was cancelled. At the time of cancellation the balance of the unexpired portion of parole was one year one month and 27 days. The appellant is due for release on 20 May 2001.
On 30 May 2000 she applied to the Judge of the District Court, who had sentenced her in 1998, requesting that he set a new non parole period. Her application was supported by her affidavit sworn on 7 June 2000. She also relied on the affidavit of her solicitor sworn on 9 June 2000, which exhibited a psychological report from Dr Allen Fugler dated 30 May 2000, and a number of references.
The matter came before the sentencing Judge on 14 June 2000, who ordered a Parole Board report pursuant to s 32(9) of the Criminal Law (Sentencing) Act 1988 (the Sentencing Act).
Such a report was provided on 21 June 2000.
The learned sentencing Judge referred to the Parole Board report which he said indicated that any future release had to be very strictly monitored. He said:
“I am not able to do that. I am not prepared to do that. I think you really have to stay in the hands of the Parole Board. I will encourage them to give you all the assistance for your future release on strict conditions and supervision as early as possible, but they are the people to do that and to lay out conditions.
I am not prepared to make any order.”
It may be assumed that the sentencing Judge believed that it was a matter for the Parole Board to determine when the appellant should be released. We think in that respect he was wrong and indeed the respondent concedes that the sentencing Judge was in fact wrong.
Section 32(3) of the Sentencing Act provides:
“Where a prisoner is serving a sentence of imprisonment but is not subject to an existing non-parole period, the sentencing court may, subject to subsection (5), fix a non-parole period, on application by the prisoner or the presiding member of the Parole Board.”
The appellant is a person who is serving a term of imprisonment and who is not presently subject to a non parole period. The non parole period set by the sentencing Judge expired at the time of her release on 28 April 1999. The fact that she completed that non parole period did not preclude this application; s 32(4). She has made an application as required by the subsection and so the sentencing Court did have a discretion subject to subsection (5) to fix a non parole period.
The appellant argued that the sentencing Judge was obliged to fix a non parole period unless the Judge was of the opinion it would be inappropriate to do so for any one of the reasons in s 32(5) of the Sentencing Act. The subsection is not couched in mandatory terms but rather in terms that suggest the sentencing Judge has a discretion which must be exercised subject to the matters in s 32(5), but it would be wrong to read s 32(3) without reference to the other subsections in the section.
The clear intent of the section is that all persons who are sentenced to imprisonment, except for those who came within s 32(5), shall be subject to a non parole period: s 32(1). We agree therefore that the sentencing Court must, on an application by a prisoner who is serving a sentence of imprisonment, but who is not subject to an existing period, fix a non parole period, unless the person is one of those referred to in s 32(5)(a) or (b) or, unless the Court declines to fix a non parole period because it is of the opinion that it would be inappropriate to do so for any of the reasons in s 32(5)(c).

Section 32(5) provides:
“(a) not relevant.
(b) not relevant.
(c).... A court may, by order, decline to fix a non parole period in respect of a person sentenced to imprisonment if the court is of the opinion that it would be inappropriate to fix such a period because of -
(i)the gravity of the offence or the circumstances surrounding the offence; or
(ii)the criminal record of the person; or
(iii)the behaviour of the person during any previous period of release on parole; or
(iv)any other circumstance.”
It is unlikely, in this case, that the Judge was motivated by s 32(5)(c)(i), because he had previously seen fit to fix a non parole period in respect of the sentence of imprisonment which the appellant is now serving. So also it is unlikely that it was the criminal record of the appellant which motivated the Judge to refuse to fix a non parole period. Whilst the appellant has a criminal record it was not of a kind which had previously led the sentencing Judge to refuse to fix a non parole period.
No other circumstance was mentioned so the sentencing Judge must have been motivated, in our opinion, by the behaviour of the appellant during the period of release on parole which led to the cancellation of parole: s 32(5)(c)(iii).
The appellant has been given leave by a Judge of this Court to appeal to this Court. However the appellant’s Notice of Appeal purports to appeal from the sentence imposed by the sentencing Judge on 29 July 1998, when he sentenced her to be imprisoned for two years and six months and set a non parole period of nine months. It not only purports to appeal from that sentence but the ground of appeal for which leave was apparently given is:
“That the decision of the Learned Judge not to impose a non parole period was in all the circumstances incorrect.”
Clearly enough the appellant cannot appeal against the original sentence of imprisonment or the non parole period which was set.
The appellant can only appeal, if she is entitled, against the sentencing Judge’s refusal on 28 June 2000 to set a non parole period. Her right to appeal, if it exists, must lie in the Criminal Law Consolidation Act 1935. Section 352(1)(a)(iii) of that Act provides:
“(1)   Appeals lie to the Full Court as follows:
(a)     if a person is convicted on information -
(i)     Not relevant.
(ii)    Not relevant.
(iii)the convicted person or the Director of Public Prosecutions may appeal against sentence passed on the conviction (other than a sentence fixed by law), or a decision of the court to defer sentencing the convicted person, on any ground with the leave of the Full Court;”
It seems to me that she has no right of appeal unless the refusal to fix a non parole period is a sentence or the refusal amounts to the Court deferring sentence.
Sentence is defined in s 348 of the Criminal Law Consolidation Act in the following terms:
“’sentence’ includes any order of the court of trial or of the judge thereof made on, or in connection with, a conviction with reference to the convicted person, or any property, or with reference to any moneys to be paid by the person, and also includes an order under section 39 of the Criminal Law (Sentencing) Act1988 discharging the convicted person, without imposing a penalty, on the person entering into a bond.”
If the appellant has the right to appeal then the fixing of a non parole period must be a sentence. In our opinion it is, because it is an order in connection with a conviction, and a necessary order if a person is sentenced to be imprisoned, and if there is to be compliance by the sentencing Judge with s 32 of the Sentencing Act.
The refusal to fix a non parole period, in our opinion, amounts to a decision of the Court to defer sentencing in that respect and is therefore capable of being appealed to this Court, with leave of the Full Court.
In our opinion it would be appropriate for this Court to give leave to the appellant to appeal from the decision of the District Court Judge made on 28 June 2000, refusing to fix a non parole period.
Leave should be on conditions that the Notice of Appeal is amended first, to identify the correct order appealed from and secondly, to identify the ground upon which the appeal is brought, namely that the sentencing Judge erred in refusing to fix a non parole period.
It is clear from the Parole Board report that the appellant did not behave well whilst on parole. She has, as we have already said, admitted the breaches of her parole conditions, but as well she did not co-operate nearly as well as she might with her parole officer during the period of her parole. Indeed her behaviour was such that the Parole Board considered cancelling her parole earlier than it did for non co-operation. She abused her parole officer on a number of occasions. She has often failed to keep appointments. She dealt with other persons in an aggressive manner. Her conduct has been one of continuing immaturity.
The Parole Board concluded in its report:
“Whilst this young woman has clearly had difficulties in her life, there is an assistance available to deal with those issues and that includes counselling for substance abuse and also counselling in relation to her childhood difficulties. It would not appear that Ms Glynn is sufficiently motivated to deal with those issues and until such time as she genuinely makes a commitment to effect a change, those issues will remain unresolved. She needs however, to accept responsibility for herself and for her own conduct and it is difficult for someone to engage in that behaviour modification in an institution. Those lessons, if they are to be learned are better learned in a community setting. If Ms Glynn is to be released by the court she will require strict supervision and she will need to motivate herself to address issues which have in the past resulted in offending behaviour.”
It is clear enough that the Parole Board believed that the appellant has been non co-operative and is reluctant to change. By the same token the Parole Board was suggesting that she is unlikely to modify her behaviour whilst she is incarcerated.
There may be reasons for her behaviour whilst on parole. Her anti-social behaviour, whilst on parole, may be due to a very difficult childhood. Her biological parents separated when she was six months of age and at the age of 18 months she was placed in her first foster home. She was hyperactive and uncontrollable as a child. She may have suffered from an Attention Deficit Disorder although that has not been confirmed.
She was expelled from her first school at the age of seven. She was expelled from the first high school which she attended in her first year and absconded from the second high school she attended at the age of 13. Her behaviour at school was dysfunctional.
She left home when she was about 13 and lived on the streets in Adelaide in the suburbs until eventually she returned to live in Mount Gambier at the age of 17.
She complains that she was sexually abused by an uncle and a stepfather over a period of time.
She suffers from depression and a low level of anxiety.
She was a heavy drinker from the age of 13 to 16. She abused benzodiazepines, LSD and amphetamines.
She needs psychotherapy and further treatment.
She has joined a Christian church at Mount Gambier.
In her affidavit in support of her application for the setting of a non parole period she has expressed remorse and contrition for her behaviour whilst on parole. She indicated that she would be prepared to undergo the phsycotherapy necessary. She wishes to return to her son who was due to start school in August.
It must not be overlooked that whilst the appellant’s parole was cancelled due to her failing to observe conditions of her parole, she has not committed any further offences whilst on parole.
She has been in custody since March of this year and, as we have indicated, at the time she was returned to custody she had just over one year and one month of the parole period to serve. She has therefore served nearly six months of the unexpired non parole period when she returned to prison.
In setting a non parole period the Court must take into account the period already served if the person is in prison serving a sentence: s 32(7)(a). We would therefore have regard to the period served since 24 March 2000 and fix a non parole period of six months to date from the date she returned to prison.

We make the following orders:
1...... Leave to the appellant to appeal from the sentencing Judge’s refusal to set a non parole period on 28 June 2000 upon the following conditions:

1.1... That the appellant amend the Notice of Appeal to identify the order complained of; and

1.2... That the existing ground of appeal be deleted and in lieu thereof there be substituted the following:

“The sentencing Judge erred in refusing to fix a non parole period.”

2Appeal allowed.

3The appellant’s application for the setting of a non parole period be granted.

4Set a non parole period of six months to date from 24 March 2000.

[2000] SASC 323

18 September 2000