R v Henstridge No. Sccrm-97-320

R v HENSTRIDGE
[2000] SASC 112

Court of Criminal Appeal: Debelle, Nyland and Lander JJ (ex tempore)

NYLAND J: This is an appeal against a sentence imposed by a Supreme Court judge on 26 November 1997. In order to understand how the matter comes before this court it is necessary to have regard to some of the appellant’s prior history.
On 1 February 1991, the appellant was sentenced on one count of armed robbery and two counts of escaping custody, to be imprisoned for seven years 11 months and 10 days. The non-parole period, (as adjusted for Truth in Sentencing) became a period of four years, five months and eight days.
On 12 April 1995, the appellant was released on parole. On 29 November 1995 he was arrested for the offence of armed robbery at Findon and he remained in custody for that offence together with some driving offences until 8 November 1996 when he appeared in the Pt Adelaide Magistrates Court with respect to the driving offences and for the breach of his parole.
On 8 February 1996, in Pt Adelaide Magistrates Court the appellant received a sentence for four months imprisonment with respect to the driving offences. Those offences constituted a breach of parole. He therefore became liable to serve the balance of the unexpired period of the previous sentence being a period of three years, one month and three days.
Following the sentence imposed in the Pt Adelaide Magistrates Court, the appellant was subject to a head sentence of three years, five months and three days. A non-parole period of four months was fixed. The sentence and non-parole period were ordered to commence from 8 February 1996. This meant that the projected parole release date for the appellant was 7 June 1996. The expiry date of parole was 10 July 1999.
The appellant was due for release on parole on 7 June 1996 but in view of the charge with respect to the armed robbery at Findon on 25 July 1995 he was not released on parole but remained in custody in relation to that charge until 7 July 1996 when he was granted home detention bail. The appellant, subsequently, absconded and a Parole Board warrant and bench warrant were issued.
On 3 September 1996, the appellant was involved in an armed robbery at Gillman to which he subsequently pleaded guilty. The appellant was arrested and charged with the Gillman offence on 5 September 1996. On 27 September 1996 the Parole Board and bench warrants were executed. On 12 November 1996 the appellant appeared before the Parole Board. The Parole Board cancelled his parole from 27 September 1996 to 11 December 1996 for failing to report as directed.
At the expiration of the order imposed by the Parole Board, the appellant was remanded in custody in relation to the Findon and Gillman armed robberies.
On 10 February 1997, the appellant was arraigned in the District Court on the Gillman robbery and pleaded not guilty to that charge.
On 28 May 1997, the appellant again appeared before a District Court judge and on this occasion he pleaded guilty to the Gillman armed robbery. At the request of the appellant’s counsel he was remanded for sentence to wait outcome of the trial with respect to the Findon robbery.
On 10 November 1997, following his trial, the appellant was convicted of the Findon armed robbery.
On 26 November 1997, a Supreme Court judge imposed a sentence upon the appellant with respect to both the Findon and Gillman robberies. He ordered the appellant to be imprisoned for a period of seven years for the Gillman robbery “to commence at the expiration of the balance of the 1991 sentence”. He also sentenced the appellant to be imprisoned for seven years for the Findon armed robbery, to be cumulative upon the sentence for the Gillman robbery. That made a total sentence of 14 years. The judge then fixed a non-parole period of 12 years. He ordered that the non-parole period commence from 11 December 1996, presumably, because that was the date upon which the appellant had been remanded in custody following the order of the Parole Board.
The appellant subsequently appealed against his conviction and sentence with respect to the Findon robbery.
On 19 June 1998, the Court of Criminal Appeal delivered judgment. The appeal against conviction was allowed and a re-trial was ordered. In view of the order for re-trial the court did not consider it necessary to resolve the appellant’s appeal with respect to sentence.
On 10 July 1999, the parole period in respect to the sentence imposed in the Pt Adelaide Magistrates Court on 8 February 1996 expired.
On 23 September 1999, the Director of Public Prosecutions entered a nolle prosequi in relation to the Findon armed robbery. That left the appellant serving a seven year sentence for the Gillman armed robbery. As the non-parole period fixed by the Supreme Court judge concerned both offences, that is, the offences of armed robbery at both Findon and Gillman, it was necessary to fix a new non-parole period.
On 7 February 2000, an application was filed on behalf of the appellant to fix a non-parole period with respect to the Gillman sentence.
On 6 March 2000, that application came on for hearing before a Supreme Court judge. In the course of that hearing, it emerged that there had been an error with respect to the sentence imposed on 26 November 1997, as the sentencing judge had backdated the non-parole period to 11 December 1996.
As the appellant was on parole at the time he committed the armed robbery at Gillman the sentence for that offence could not be backdated as s 75 of the Correctional Services Act 1986 required the unexpired portion of the sentence for which he was on parole to commence on the date on which he was sentenced for the armed robbery at Gillman: R v Bartels (1986) 44 SASR 260. By virtue of s 31(2) of the Criminal Law (Sentencing) Act 1988, the sentence for the Gillman offence could only commence at the expiration of the unexpired portion of the sentence for which the appellant was on parole. In the result, the appellant was obliged to serve the balance of the unexpired sentence, which was a period of two years, 10 months and seven days. From this had to be deducted the period of two months and 14 days, served as a result of the Parole Board order of 12 November 1996, which left a term of two years, seven months and 23 days. When fixing the head sentence for the Gillman offence, the judge was entitled to take into account the time spent in custody which appears to be a period of about one year, but he was not empowered to impose a sentence or non-parole period which commenced any earlier than 26 November 1997.
The order of the Court of Criminal Appeal delivered on 19 June 1998 did not include any order finalising the period of the sentence. The judge hearing the application to fix the non-parole period therefore indicated that it was appropriate for the matter to be referred to this court for finalisation of the appeal.
In his notice of appeal, the appellant complained of the sentencing judge’s failure to take into account the appellant’s plea of guilty with respect to the Gillman offence and he also complained that the total head sentence of 14 years and non-parole period of 12 years was manifestly excessive.
Mr Ey, who appeared for the appellant on the hearing of the appeal, submitted that the sentence of seven years now remaining with respect to the Gillman offence was manifestly excessive. He submitted that the sentencing judge had failed to make any reference to the appellant’s plea of guilty and, despite the directions given by the Court of Criminal Appeal to sentencing judges on numerous occasions, failed to indicate the extent of the discount, if any, which he had made for that plea.
Mr Ey also complained that the sentencing judge had failed to take into account the time spent in custody. He argued that, bearing in mind that the appellant was initially sentenced for two armed robberies, the sentence now remaining of seven years for the Gillman robbery was manifestly excessive. He also submitted that the sentencing judge had failed to give sufficient regard to matters put in mitigation, such as the appellant’s age at the relevant time and his de facto’s health problems. He argued that there was still sufficient reason to allow scope for significant parole in the case of the appellant in view of the length of time already spent in custody. He submitted that the appellant was contrite, that he had responded well in custody although having had the status of a remandee for a large portion of that time, which meant that he was not eligible for certain privileges. He had also made steps to rehabilitate himself, which included assistance to other prisoners with respect to rehabilitation programs.
Although the sentencing judge failed to refer to the discount with respect to the plea of guilty, he indicated that in imposing sentence he had regard to the totality principle. That being the case, it is likely that the penalty for the Gillman offence, having been committed subsequent to another armed robbery and while on home detention bail, was likely to result in a sentence substantially higher than the period of seven years imposed by the sentencing judge.
The Gillman offence was a serious crime. The appellant entered a business premises at about 12.15 p.m.. He was wearing a black balaclava and he was armed with a firearm. He demanded that a female employee at the premises hand over a bag containing about $10,000 in cash. Two stolen vehicles were also used in the robbery. The appellant was arrested approximately two days later. In my view, the plea of guilty to some extent reflected the inevitability of conviction as it appeared to be a very strong Crown case.
As the sentencing judge fell into error by the backdating of the sentence, I believe it is appropriate to set aside the sentence he imposed and exercise the sentencing discretion afresh. However, taking into account all of the circumstances of the Gillman robbery, as I have explained them, I do not think it can be said that the sentence of seven years was manifestly excessive, except to the extent that I would be prepared to recognise the appellant’s plea of guilty and I give credit to the appellant for a period of 12 months to reflect that plea.
I would also give the appellant credit for a period of one year for time spent in custody on remand with respect to the Gillman offence. The balance of the unexpired parole period as at the date that the learned sentencing judge sentenced the appellant, namely 26 November 1997, which is the date which this court should adopt, was two years seven months and 23 days. His head sentence should be, therefore, be calculated as follows: there should be added to the unexpired sentence of two years, seven months and 23 days the sentence of five years for the Gillman offence, making a total of seven years, seven months and 23 days. I would fix a non-parole period of five years. Both the head sentence and non-parole period are to date from 26 November 1997.
DEBELLE J: I agree with the reasons of Nyland J, but I would make one further observation. I think that the sentence as proposed by her Honour is merciful. The circumstances of this offence, and the appellant’s prior record, would have justified a head sentence of eight years from which a discount of one year or thereabouts would have been appropriate. However, as the judge who initially sentenced this appellant had fixed a head sentence of seven years, it is difficult for this court at this late stage to order a higher sentence.
The sentence in this case reflects the circumstances which are peculiar to the manner in which the events have unfolded so far as the trial of this appellant for the particular offences have unfolded. It should not be regarded indicating that there is any departure from the normal standards of sentencing for this serious offence.
LANDER J: I agree with the reasons of Nyland J and I agree that this court ought to impose a head sentence of seven years seven months and 23 days and I agree with the non-parole period of five years.
DEBELLE J: The order of the court will therefore be:
Appeal allowed.

The sentence ordered on 26 November 1997 will be set aside, and in lieu thereof the appellant will be sentenced to a period of imprisonment for seven years, seven months and 23 days.

The non-parole period will be five years. Both the head sentence and the non-parole period will date from 26 November 1997.

[2000] SASC 112

19 April 2000