R v Jones
[2005] SASC 183
•26 May 2005
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v JONES
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Layton)
26 May 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERAL PRINCIPLES
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - HABITUAL CRIMINALS
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT
Appeal against sentence - appellant pleaded guilty to a number of driving offences and a number of dishonesty offences including aggravated robbery with an offensive weapon - appellant was sentenced to a total term of imprisonment of three years, 10 months and 28 days, a non-parole period of two years was fixed - fines totalling $3,750 were imposed and the appellant was disqualified from holding or obtaining a driver’s licence for a period of 12 months.
Appeal on grounds that sentencing judge erred in failing to backdate a sentence of imprisonment to the date when the appellant was first taken into custody; erred in imposing sentences of imprisonment for driving unauthorised; erred in imposing monetary penalties totalling $3,750 when also imposing immediate custodial sentence.
Crown conceded three errors of sentencing princple identified above and agreed that the appellant should be resentenced.
Consideration of the status of the Court record of sentence imposed - consideration of commencement date of sentence - discussion of section 74 of the Motor Vehicles Act 1959 (SA) and the meaning of 'subsequent offence' - consideration of monetary penalties.
Held: appeal allowed for the purpose of making the following orders: set aside the sentences imposed with respect to the two offences of driving whilst unauthorised; with respect to the April 2004 offence of unauthorised driving, appellant disqualified from holding or obtaining a driver’s licence for a period of 12 months; with respect to the driving offences committed in May 2004, appellant disqualified from holding or obtaining a driver’s licence for a period of 12 months to commence at the expiration of the disqualification the subject of the order in respect of the April 2004 offending; appellant to serve a total term of imprisonment of three years, two months and 28 days; a non-parole period of two years fixed - head sentence and the non-parole period are backdated to commence on 13 September 2004.
Criminal Law (Sentencing) Act 1988 (SA) s 13, s 18A and s 30(6); Motor Vehicles Act 1959 (SA) s 74, referred to.
R v Pahuja (No 2) (1988-1989) 50 SASR 551; R v Lane (1989-1990) 53 SASR 480; Sherlock v SA Police Unreported S 5549 2 April 1996; Frank v Police (2000) 77 SASR 273; R v Nguyen (2002) 84 SASR 190; Police v Nowak (2000) 76 SASR 551; O'Hara v Harrington [1962] Tas SR 165; R v Miller (2000) 76 SASR 151, considered.
WORDS AND PHRASES CONSIDERED/DEFINED
"subsequent offence"
R v JONES
[2005] SASC 183Court of Criminal Appeal Gray, Sulan and Layton JJ
THE COURT
This is an appeal against sentence.
The Issues on Appeal
There were four issues raised by this appeal.
The first was whether the Judge erred in failing to backdate a sentence of imprisonment to the date when the appellant was first taken into custody. The second was whether the Judge had erred in imposing sentences of imprisonment for driving unauthorised when the appellant’s previous driving offences were outside the period of three years specified in section 74(1) of the Motor Vehicles Act 1959 (SA) for a “subsequent offence”. A third issue was whether the Judge erred in imposing monetary penalties totalling $3750 when the appellant would be unable to pay any fine by reason of her immediate custodial sentence.
All three issues were conceded by counsel for the Crown as errors made by the Judge. It was agreed that appropriate adjustments to the sentence should be made. Notwithstanding these concessions, each of the acknowledged errors will be discussed in the course of these reasons.
It should also be recorded at the outset that counsel for the appellant conceded that in relation to the driving offences, a period of 12 months’ disqualification of licence for each offence to operate cumulatively would be appropriate.
These concessions then left the remaining issue - namely, whether a non-parole period of two years was manifestly excessive, having regard to the reduced head sentence when effect was given to the acknowledged errors.
Background
On 17 December 2004, the appellant was sentenced in the District Court in respect of a number of offences to a total term of imprisonment of three years, 10 months and 28 days. A non-parole period of two years was fixed. In addition, fines were imposed totalling $3,750 and the appellant was disqualified from holding or obtaining a driver’s licence for a period of 12 months.
The appellant pleaded guilty to all offences. In imposing terms of imprisonment, the Judge made reductions of between one quarter and one third on account of the early pleas.
The Offences
The offending, the subject of the charges, took place between April and August 2004. On 25 April 2004, the appellant drove a motor vehicle when unauthorised and drove an unregistered and uninsured vehicle. With respect to the charge of driving when unauthorised, the Judge imposed a term of imprisonment of four months. But for the plea of guilty a sentence of six months’ imprisonment would have been imposed.
On 3 May 2004, the appellant again committed the offence of driving a motor vehicle whilst unauthorised and of driving an unregistered and uninsured motor vehicle. She also pleaded guilty to failing to give particulars to a specified person at the scene of the crash. With respect to the offence of driving a motor vehicle whilst unauthorised, the appellant was sentenced to a term of imprisonment of four months. But for her plea of guilty, the sentencing Judge would have imposed a sentence of six months’ imprisonment.
On 19 May 2004, the appellant committed the offence of aggravated robbery with an offensive weapon. The circumstances of the offending were summarised by the sentencing Judge as follows:
On the morning of 19 May, you went to a pharmacy that was situated near your home at Seacombe Gardens. You were armed with a knife, you entered the shop and placed the knife on the counter. Members of the staff in the shop noticed that you appeared agitated. Upon putting the knife on the counter you demanded a drug called Zantac. You were told there was none in stock. You then demanded Serepax. The manager of the pharmacy, Mr Brian Goddard gave you several boxes of Serepax that were worth about $15.00.
Employees of the pharmacy recognised you, because you were a regular customer. They located the prescription lodged by you the day before for the drug Zantac, and they drew that prescription form to the attention of the police. You were arrested later that day. ... .
At the time of this offence you were addicted to heroin and tranquillisers. You’d been using those drugs on and off since you were 20 years old. You are now 33.
The Judge imposed a sentence of three years’ imprisonment. But for the plea of guilty, he would have imposed a head sentence of four years.
The offence of aggravated robbery with an offensive weapon was committed during the currency of a suspended sentence bond imposed on 9 August 2002. That sentence was in respect to an offence of larceny when the appellant was sentenced to imprisonment for 28 days. The sentencing Judge revoked the suspended sentence and as a result the appellant became liable to serve the 28-day term of imprisonment.
On 22 June 2004, the appellant stole a pair of shoes from a department store. The sentencing Judge imposed a sentence of one month’s imprisonment. But for the plea of guilty, a sentence of six weeks’ imprisonment would have been imposed.
On 11 August 2004, the appellant stole grocery items, hygiene products and clothing from a retail outlet. The sentencing Judge imposed a sentence of one month’s imprisonment. Again, but for the plea, he would have imposed a sentence of six weeks’ imprisonment.
The sentencing Judge ordered that each of the terms of imprisonment be served cumulatively. Consequently, the sentences totalled three years, 10 months and 28 days. The Judge fixed a non-parole period of two years. The Judge did not direct that the sentence start on any particular date.
The Court Record
The Court record signed by the sentencing Judge included the following under the heading “Sentence Detail”:
1, 4-12Aggravated Robbery/Drive Unregistered Motor Vehicle On a Road (2) /Drive Uninsured Motor Vehicle On Road /Unauthorised Person Drive Motor Vehicle On Road (2) /Fail to Give Particulars To Specified Person
IMPRISONMENT – For 3 YEARS 10 MONTHS 28 DAYS
One penalty imposed pursuant to s18A of the Criminal Law (Sentencing) Act.
2, 13Application For Enforcement Of A Breached Bond (2)
NO FURTHER BREACH PENALTY –
3, 14Larceny (2)
SUSPENSION REVOKED –
IMPRISONMENT – For 28 DAYS
1, 3-12, 14Aggravated Robbery/Larceny (2) /Drive Unregistered Motor Vehicle On A Road (2) /Drive Uninsured Motor Vehicle On Road (2) /Unauthorised Person Drive Motor Vehicle On Road (2) /Fail To Give Particulars To Spec
HEAD SENTENCE – 3 YEARS 10 MONTHS 28 DAYS Commencing 17/12/04
Non-Parole Period – 2 YEARS Commencing 17/12/04
Victims of Crime Act Levy imposed by Statute $435.00.
This record suggests that section 18A of the Criminal Law (Sentencing) Act1988 (SA) had been utilised by the sentencing Judge. However, the sentencing remarks do not disclose that the Judge’s section 18A powers were invoked. The record also discloses that the order of the Court was that the sentence commence on 17 December 2004, the date of sentencing. The Judge’s sentencing remarks did not specify a date for the commencement of the sentence.
Counsel for the Crown acknowledged that the Court record was the formal record signed by the Judge and recorded the sentence imposed. This Court was informed that it is this record on which relevant authorities including the Correctional Services Department act as the formal record of the Court. In the event of a difference between this record and sentencing remarks, it is the record that forms the official record of the Court.
Commencement of Sentence
Counsel for the Crown initially submitted that the terms of section 30(6) of the Sentencing Act addressed the first two grounds of appeal. Counsel said that the effect of the sub-section was to backdate the sentence imposed to the day on which the appellant was taken into custody. The sub-section provides:
If, on imposing a sentence of imprisonment, the court fails to specify the date on which or the time at which the sentence is to commence or is to be taken to have commenced, the sentence—
(a) will, in the case of a defendant not then in custody, commence on the day on which the defendant is subsequently taken into custody for the offence; or
(b) will, in the case of a defendant already in custody for the offence, be taken to have commenced on the day on which the defendant was last so taken into custody; or
(c) will, in the case of a defendant in custody for some other offence, commence on the day on which the sentence is imposed, unless the sentence is to be served cumulatively pursuant to this Act or any other Act.
Had the Court record been silent as to the commencement date, section 30(6) would have application. However, the Court record specifies a commencement date. In these circumstances section 30(6) has no application.
During the course of submissions, counsel for the Crown accepted that the Judge failed to bring to account the time spent by the appellant in custody awaiting sentence. The Crown further accepted that the sentence should be backdated. The appellant had been in custody from 13 September 2004.
Section 30 of the Sentencing Act provides:
(1) Where a court imposes a sentence of imprisonment and does not suspend the sentence, the court must specify the date on which, or the time at which, the sentence is to commence or is to be taken to have commenced.
(2) Where a defendant has been in custody in respect of an offence for which the defendant is subsequently sentenced to imprisonment, the court may—
(a) make an appropriate reduction in the term of the sentence, having regard to the period for which the defendant has been in custody; or
(b) direct that the sentence be taken to have commenced on the day on which the defendant was taken into custody.
...
(4) Where a court fixes a non-parole period, the court must specify the date on which the non-parole period is to commence or is to be taken to have commenced.
(5) Where a court directs that a sentence of imprisonment is to be taken to have commenced on the day on which the defendant was taken into custody, any non-parole period fixed by the court in respect of that sentence will be taken to have commenced on that day.
The desirability of backdating sentences was discussed in R v Pahuja(No 2)[1], where White J observed:
I prefer to back-date such a sentence rather than artificially reduce the head sentence because it is preferable that his record should show the correct length of his head sentence (and non-parole period) and that he and others affected by the sentence should know the correct result. Artificial results are always placed on record where head sentences and non-parole periods are artificially reduced to take account of time spent in custody. The better practice, in my view, is to back-date the true sentences rather than artificially reduce sentences when giving credit for time spent in custody. Otherwise a false impression is created in the minds of the prisoner and the public about the length of the head sentence and figures get into the statistical record which distort the general standard of sentencing so –called tariffs.
[1] (1988-1989) 50 SASR 551 at 563.
These observations have been consistently applied by Judges of this Court. Examples include R v Lane, [2] Sherlock v SA Police, [3] Frank v Police, [4] and most recently R v Nguyen. [5]
[2] (1989-1990) 53 SASR 480 at 481.
[3] Unreported S 5549 2 April 1996.
[4] (2000) 77 SASR 273 at [49]-[52].
[5] (2002) 84 SASR 190.
In the present case, the sentence should be backdated to commence on 13 September 2004, the date on which the appellant was first taken into custody.
Section 74 Motor Vehicles Act
Counsel for the Crown accepted that the sentencing Judge had erred in treating the unauthorised driving offences as subsequent offences within the meaning of section 74 of the Motor Vehicles Act 1959 (SA). Section 74 relevantly provides:
(2) Subject to this Act, a person who—
(a) drives a motor vehicle of a particular class on a road; and
(b) is not and has never been authorised, under this Act or the law of another State or a Territory of the Commonwealth, to drive a motor vehicle of that class on a road,
is guilty of an offence.
Maximum penalty:
For a first offence—$2 500.
For a subsequent offence—$5 000 or imprisonment for 1 year.
...
(5)Where a court convicts a person of an offence against subsection (2) that is a subsequent offence, the following provisions apply:
(a) the court must order that the person be disqualified from holding or obtaining a driver's licence for such period, being not less than 3 years, as the court thinks fit;
(b) the disqualification prescribed by paragraph (a) cannot be reduced or mitigated in any way or be substituted by any other penalty or sentence;
(c) if the person is the holder of a driver's licence—the disqualification operates to cancel the licence as from the commencement of the period of disqualification.
(6)In determining whether an offence is a first or subsequent offence for the purposes of subsection (2), any previous offence against this section or section 91(5) for which the defendant has been convicted will be taken into account, but only if the previous offence was committed within the period of 3 years immediately preceding the date on which the offence under consideration was committed.
Although the appellant had committed earlier relevant offences, they were not previous offences within the meaning of the section. Those offences occurred more than three years prior to the subject offending.
The unauthorised driving offence committed in April 2004 was a first offence for the purposes of section 74 of the Motor Vehicles Act. However, the offence committed in April 2004 was committed within the period of three years immediately preceding the date on which the May 2004 offence of unauthorised driving was committed.
This might suggest that the May 2004 offence was a subsequent offence for the purpose of section 74. However, both counsel agreed that it was authoritatively settled that provisions indistinguishable from section 74 have been construed to mean that an increased penalty of a subsequent offence could only be applied when the subsequent offence occurred after the conviction for the first offence.[6]
[6] DC Pearce and RS Geddes, Statutory Interpretation in Australia, (5th ed, 2001) at 237:
“It is common to find in Penal Studies a provision stating that a person who is convicted of an offence for a second time is to be subject to a greater penalty than would be imposed for the first offence. The operation of this type of provision was discussed in O’Hara v Harrington [1962] Tas SR 165. The Traffic Act, 1925 provided a mandatory suspension for a person who was convicted for Drunken Driving on a second occasion. Burbury CJ, following O’Connor v Bini (1908) VLR 567, applied what he described as a canon of construction that was laid down as long ago as the time of Coke that an increased penalty for a “second offence” could only be applied when the second offence occurred after conviction for a first offence.
See also Police v Nowak (2000) 76 SASR 551 in relation to the meaning of “second offence” for the purposes of the drink driving provisions in the Road Traffic Act wherein the court followed the same reasoning as espoused in O’Hara v Harrington.
It follows that the sentencing Judge had no power to imprison the appellant for the offences of unauthorised driving and in doing so acted beyond jurisdiction.
Monetary Penalties
Counsel for the Crown acknowledged that, as the orders for imprisonment were imposed with immediate effect, it was inappropriate to impose monetary penalties for any of the offending. The appellant was without means.
Sections 13(1)(a) and (2) of the Sentencing Act provide:
(1) The court must not make an order requiring a defendant to pay a pecuniary sum if the court is satisfied that the means of the defendant, so far as they are known to the court, are such that—
(a) the defendant would be unable to comply with the order; or
...
(2)The court is not obliged to inform itself as to the defendant's means, but it should consider any evidence on the subject that the defendant or the prosecutor has placed before it.
Counsel for the Crown accepted that the Court should be satisfied that the appellant would be unable to pay any fine imposed by reason of her immediate custodial sentence. Counsel acknowledged that fines should not have been imposed.
Non Parole Period
Parole is a system of early supervised release. The purpose of parole is to offer the prisoner hope of possible future release. It provides an inducement to reform. It also allows the prisoner to address the causes of the original offending with supervision and assistance. It aims to prevent crime by assisting the prisoner to make long-term lifestyle changes. Parole offers long-term community protection. It envisages that the benefits will continue for longer than the period which the offender would otherwise have been held in prison.
In R v Miller, Doyle CJ referred to the High Court’s consideration of the purpose of a grant of parole in Power v The Queen;[7] Deakin v The Queen;[8] Bugmy v The Queen[9] and R v Shrestha[10] and observed: [11]
I must consider all factors relevant to the setting of a head sentence, but it is appropriate to give greater weight to rehabilitation of the prisoner when fixing a non-parole period, and to bear in mind the ability of the Parole Board to assess the prisoner’s suitability for parole when the time comes.
[7] (1974) 131 CLR 623.
[8] (1984) 58 ALJR 367.
[9] (1990) 169 CLR 525.
[10] (1991) 173 CLR 48.
[11] (2000) 76 SASR 151 at [42].
Counsel for the appellant submitted that, given the appellant’s dysfunctional childhood, her ongoing problems with drugs, her genuine attempts at rehabilitation, her mental state and her prospects for rehabilitation, the approach taken by the sentencing Judge in fixing a non-parole period at a little more than one half of the head sentence was appropriate. Counsel contended that a non-parole period of 20 months would be appropriate having regard to the reduced head sentence.
Counsel for the Crown submitted that the offending was serious and referred to the summary of facts in the sentencing Judge’s remarks referred to earlier in these reasons. Counsel did not seek an order under section 353(5) of the Criminal Law Consolidation Act 1935 (SA)[12] extending the non-parole period. However, counsel for the Crown submitted that the two-year non-parole period was the minimum term that could reasonably be fixed for the offence of aggravated robbery with an offensive weapon. Notwithstanding the reduction of the head sentence by eight months, it was contended that the non-parole period was appropriate and should not be reduced. Counsel drew attention to the appellant’s criminal antecedents, which include a lengthy criminal record extending over a period of more than 20 years. During these two decades the appellant has committed many dishonesty offences. She has been sentenced to immediate custodial terms on a number of occasions. She has breached parole conditions and breached bonds. The offending the subject of the present sentences involved a breach of the terms of a suspended sentence bond.
[12] The Full Court must not increase the severity of a sentence on an appeal by the convicted person except to extend the non-parole period where the Court passes a shorter sentence.
Counsel for the Crown was correct to submit that the non-parole period fixed by the Judge was the minimum that could be expected by this appellant with respect to the offence of aggravated robbery with an offensive weapon. Not only was the offence serious, but it was also committed in circumstances that involved a breach of a suspended sentence bond. In addition, there were the two terms of imprisonment for the larceny offences. The appellant’s criminal antecedents militated against leniency. A two-year non-parole period should be fixed.
Conclusion
Having regard to the concessions made by the Crown, it is appropriate to allow the appeal. The two sentences of four months’ imprisonment imposed in respect of the driving without authority offences should be set aside. As a result, the total sentence to be served by the appellant should be reduced by eight months to a term of three years, two months and 28 days. The sentence and the non-parole period should both commence on 13 September 2004, the date on which the appellant was first taken into custody.
The appeal is allowed for the limited purpose of making the following orders:
(1)Set aside the sentences imposed with respect to the two offences of driving whilst unauthorised.
(2)With respect to the April 2004 offence of unauthorised driving, order that the appellant be disqualified from holding or obtaining a driver’s licence for a period of 12 months.
(3)With respect to the driving offences committed in May 2004, order that the appellant be disqualified from holding or obtaining a driver’s licence for a period of 12 months to commence at the expiration of the disqualification the subject of the order in respect of the April 2004 offending.
(4)Having regard to the sentence of three years imposed for the offence of aggravated robbery with an offensive weapon and the cumulative sentences of larceny, each of one of month and the revoked 28 days suspended sentence, the appellant is obliged to serve a total term of imprisonment of three years, two months and 28 days. A non-parole period of two years should be fixed.
(5)The head sentence and the non-parole period are backdated to commence on 13 September 2004, the date on which the appellant was first taken into custody.
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