R v Healey No. Scgrg-98-139 Judgment No. S6867

[1998] SASC 6867

R V HEALEY

[1998] SASC 6867

Court of Criminal Appeal: Prior, Lander and Wicks JJ

LANDER J       

1     This is an appeal against sentence. 

2     The appellant was charged on 18 October 1998 with being in possession of housebreaking equipment.  He was also charged that, on the same day, he gave a false name and address.  He was further charged that on 7 November 1997 he broke and entered a house and stole goods to the value of $1,696. 

3     The appellant pleaded guilty before a judge of the District Court who, in respect of the first count, ordered the appellant to be imprisoned for eight months and fifteen days.  He convicted the appellant without penalty in respect of the second count.  In respect of the third count, he ordered the appellant to be imprisoned for one year and six months.  He ordered that the sentences be cumulative upon each other. 

4     The appellant committed these offences whilst he was on parole.  The learned sentencing judge was told that the unexpired balance of the sentence of imprisonment which had been ordered to be served by the Court of Criminal Appeal was three years and four days. 

5     Also, at the time that he committed these offences, he was subject to a bond to be of good behaviour.  That bond supported the suspension of the period of imprisonment of fifteen months. 

6     The learned trial judge found that there had been a breach of that bond and he was unable to find that the breach was trivial or that there was any reason why the breach should be excused.  He revoked the suspension of imprisonment of fifteen months.  He also ordered the appellant to serve the unexpired portion of the non-parole period of three years and four days. 

7     His Honour made each of his sentences cumulative on each other, arriving at a total head sentence of six years, five months and nineteen days.  He fixed a non-parole period of four years and six months.  The sentence was to commence from the date of sentence, 28 May 1998. 

8     The appellant has appealed upon the following grounds:

“1..... In all of the circumstances the head sentence and the non-parole period were manifestly excessive. 

2.The Learned Sentencing Judge failed to have regard to the totality principal (sic).  

3...... The Learned Sentencing Judge failed to have regard to section 21 of the Statutes Amendment (Truth In Sentencing) Act 1994 in that he failed to take into account the fact that the unexpired period of parole was the balance of a parole period fixed during the previous statutory scheme which allowed for a remission of sentence.” 

9     The circumstances of the offences were unremarkable. 

10   In relation to the first and second counts, the appellant, who was riding his bike at night at Noarlunga Downs, came under the observation of police officers.  He swerved to avoid a police car and threw a bag onto the ground.  The bag contained a bolt cutter, screwdrivers, a wrecking bar, a hooked piece of wire, a bunch of keys and torches.  The appellant gave a false name and address. 

11   The third offence occurred when the appellant, in the company of two other men, kicked down the door of a house at Port Willunga, entered the house and stole a video recorder, a video game unit and controls, an electric drill, a camera, a football, a torch, a wallet, a key set, two bags and a Swiss army knife, together of the value of $1,696. 

12   The appellant pleaded guilty to all of these offences and he was given credit for a guilty plea in respect of the first and second counts to the extent of three months and, in respect of the third offence, six months, which amounted to a credit of 25 per cent off the head sentence of each sentence. 

13   The appellant was born in New South Wales in 1965, the fifth of seven children.  His parents separated when he was eleven years of age.  His father apparently was an aggressive alcoholic who was given to domestic violence.  Shortly after his parents' separation, the appellant started to exhibit antisocial and offending behaviour.  He left home on a regular basis and began living a life which involved dishonesty. 

14   Eventually, he left home at the age of seventeen and lived in a de facto relationship until he was first imprisoned in 1987.  In 1990, he was convicted of very serious offences involving dishonesty and breaking and entering.   Eventually, on 23 November 1990, the Court of Criminal Appeal sentenced him to be imprisoned for eight years and set a non-parole period of six years. 

15   He was released from prison in 1994.  He began employment at Fricker Brothers as an apprentice wood machinist but was dismissed because of drinking and poor attendance.  Eventually, he completed his apprenticeship as a wood machinist working through TAFE.  In 1995, he found work with the Salvation Army and remained with that organisation until March 1998.  He worked with the Salvation Army on a voluntary basis between December 1995 and March 1998. 

16   The appellant began to consume alcohol at age eleven and was a very heavy drinker until 1994.  He was also a user of amphetamines and graduated to heroin in 1989.  He has remained dependent upon heroin since 1989, although he has had periods of abstention. 

17   Dr Fugler, a forensic psychologist, described the appellant as “somewhat of an enigma”.  The appellant, on the one hand, has a significant history of criminal behaviour but, on the other hand, worked for a long period of time on a voluntary basis for the Salvation Army.  He has carried out that voluntary work during times when he was both a heavy drinker and heroin-dependent.  The voluntary work he has performed for the Salvation Army was verified by a letter from the Salvation Army.  That letter was from a person who now acts as his counsellor, but who confirmed that he had known the appellant for some time while the appellant was a volunteer working in the William Booth Hostel in Whitmore Square. 

18   I do not think it can be said that the sentence for possession of housebreaking implements, or the sentence in relation to the breaking and enter, are manifestly excessive.  The sentence of less than nine months in respect of the first offence, and of eighteen months in respect of the third offence, are within a range of appropriate penalties for offences of that kind, albeit at the higher end of that range. 

19   I do not think it can be said that the learned sentencing judge erred in making the sentences cumulative.   They occurred at different times and the third offence occurred after the appellant had been charged in respect of the first and second offences. 

20   The sentence of imprisonment which was imposed by Judge Lunn on 28 August 1996, and which he suspended, arose in the following circumstances: The appellant was charged and pleaded guilty for shop breaking and larceny.  The offence occurred on 10 March 1994.  The appellant stole $14.40 worth of goods but caused damage to the premises of $3690.  He was intoxicated at the time.  Judge Lunn was impressed by submissions made on the appellant's behalf indicating that the appellant had managed to partly rehabilitate himself.  He adjourned the matter for twelve months to assess the appellant's behaviour over that period.  At the end of the twelve months he sentenced him to be imprisoned for fifteen months with a non-parole period of ten months, but suspended the sentence on the appellant entering into a bond to be of good behaviour for three years. 

21   Whilst the appellant's record at that time indicated that perhaps an immediate sentence of imprisonment ought to be imposed Judge Lunn was satisfied that the appellant was taking steps to rehabilitate himself and that there was some good prospects that the appellant would succeed in those endeavours and he therefore extended to the appellant leniency by suspending the sentence of imprisonment. 

22   When the appellant committed these offences in 1997 an application was made to Judge Noblet for enforcement of a breached bond.  The learned Sentencing Judge concluded that the breach was not trivial and there was no other reason why the breach should be excused.  He therefore revoked the suspension of sentence and ordered the sentence of imprisonment to be served.  I agree with the learned sentencing judge that the failure of the appellant to comply with the conditions of the bond was not trivial, and nor were there any other proper grounds upon which the failure could be excused.  I therefore agreed with the learned sentencing judge that it was appropriate to revoke the suspension and order the sentence of imprisonment to be carried out. 

23   It was open to the learned sentencing judge at the time of the revoking of the suspension of sentence, if satisfied that there were special circumstances justifying him so doing, to reduce the term of the suspended sentence.   Although the learned sentencing judge did not explicitly refer to this power, implicitly he must have believed that there were no special circumstances which could have justified a reduction in the term of the sentence of imprisonment.  In my opinion there were no special circumstances which justified the reduction of the term of the suspended sentence, and it was appropriate in those circumstances to require the appellant to serve the period of imprisonment of fifteen months in relation to the 1994 offence. 

24   Usually it would be appropriate to make the sentences for the offences which activate the revocation of the previously suspended sentence cumulative upon the sentence of imprisonment for which the suspension has been revoked.   There was no reason in this case to approach the matter otherwise.  It was therefore appropriate to make the sentences for the two 1997 offences for which sentences of imprisonment were imposed cumulative on each other, and cumulative on the 1996 sentence which was imposed for the 1994 offence. 

25 That leaves the question of the unexpired parole period. His Honour made the existing non-parole period cumulative upon each of the other sentences. Because of the provisions of s75(1)(b) of the Correctional Services Act the appellant became liable on the revocation of the suspension of imprisonment to serve the unexpired portion of the parole period at the time of the commission of the offence which gave rise to this suspended sentence.  That means that notwithstanding that more than three years and six months had passed between the date of the offence with which Judge Lunn was concerned and the date of these offences, the unexpired portion of the parole period is not affected. 

26   The sentence of the Court of Criminal Appeal was imposed before the Truth In Sentencing legislation.  It would have attracted remissions.  Indeed s20 of the Truth In Sentencing Act (1994) reduced the sentence of imprisonment by the number of days of remission credited.  However, that Act was amended by the Statutes Amendment Correctional Services Act (1995) by which s4 provided that if a prisoner became liable to serve an unexpired balance of a term of imprisonment imposed before the commencement of the Act no reduction is to be made.  Section 4 must be taken to have come into operation on 1 August 1994 (see s2(2) of the Statutes Amendment Correctional Services Act).  The appellant was therefore liable to serve the unexpired portion of parole of three years and four days. 

27 Section 31(2) of the Criminal Law Sentencing Act required that the sentences imposed in relation to the 1997 offences be cumulative upon the unexpired period of parole.   It cannot be said, therefore, that the learned sentencing judge erred in his approach in making each of the sentences cumulative upon each other.  The appellant argued that the learned sentencing judge should have taken into account the amendment to the Truth In Sentencing Act which, by reason of the further offending, deprived the appellant of the remissions which would have otherwise been available to him.  I do not agree with that submission.  To accede to that submission would be to disregard the terms of the amending Act.  It would be inappropriate to give to the appellant remissions to which the statute says he is not entitled.  The amending act is quite clear in the terms it must be acknowledged by the court. 

28   The appellant further argued that the learned sentencing judge ought to have had regard to the totality principle in arriving at the head sentence.  The Crown argued that where there is an unexpired parole period to which must be added sentences for further offences the court cannot have regard to the totality principle.   However, the Crown accepted that the unexpired parole period was a matter personal to the appellant to which regard must be had (R v Chandler (1994) 62 SASR 558 per King CJ at 560). However, the Crown argued that even accepting that the appellant must serve the unexpired portion of the sentence, and these other sentences, and the revocation of the bond, all that did not amount to a crushing sentence.

29   The appellant argued that the learned sentencing judge should have taken into account the fact that the appellant's remissions in relation to the 1990 sentence had been taken from him by the amending Act.  It was said that if that could not be taken into account directly because of s4 of the amending Act it could be taken into account in assessing whether the whole of the sentence was crushing.   In my opinion that would also not be appropriate.  That would be to do indirectly what Parliament has pronounced should not be done directly. 

30   The offences in 1988, 1989 and 1990 were very serious, and so serious the Court of Criminal Appeal believed that a head sentence of eight years and a non-parole period of six years was appropriate.  The offence for which Judge Lunn imposed sentence was committed very shortly after the appellant was released on parole.  The offences which the appellant committed in 1997 indicate that the rehabilitation of the appellant trumpeted to Judge Lunn in 1996 was illusory.  It is not appropriate to consider whether this sentence is inappropriate by only having regard to the offences committed in 1997.  It is not appropriate simply to argue that these offences were not so serious that the appellant should not have received a head sentence in excess of 6 years.  It is not only for the 1997 offences that this head sentence results.  The head sentence is arrived at because of a course of criminality between 1988 and 1997.  I am unable to say that the total of the various sentences is crushing, or that it should be reduced by reference to the totality principle.  In my opinion it cannot be said that the learned sentencing judge erred in making each of the sentences cumulative upon each other and not reducing the accumulation of those sentences by reason of the totality principle. 

31   Having regard to the personal circumstances of this offender I do not believe that a non-parole period of four years and six months is manifestly excessive.  In my opinion the appeal should be dismissed. 

PRIOR J:           I agree. 

WICKS J:          I agree. 

PRIOR J:           The order of the court is therefore appeal dismissed.