R v Kirk No. DCCRM-02-48

[2002] SADC 46

R v KIRK
[2002] SADC 46

Judge Burley
Criminal

1. The defendant Kirk (to whom I shall refer as the defendant) pleaded guilty to four offences committed on 30 October 2001 at a time when he was on parole in respect of a sentence of imprisonment previously imposed for an earlier offence.  In these reasons I shall refer to the sentence imposed in respect of the earlier offence as “the original sentence” and to the offences the subject of the current sentencing as “the current offences”.

2. I have had to consider Section 32(2) of the Correctional Services Act 1982 (CSA) which requires me, when setting a non-parole period, to have regard to the total period of imprisonment, bearing in mind that Section 31(2) CSA provides that the new sentence must be served cumulatively upon the original sentence.  In order to have regard to the total period of imprisonment, I have to establish when the original sentence will expire in the events which have occurred.

3. Calculating the expiry date, I have had to consider the provisions of Sections 73 and 75 CSA. Rather than include the details of my reasoning and conclusions in relation to the operation of those two sections in my sentencing remarks to the defendant, I thought it appropriate to publish separate reasons covering that aspect of the matter at the same time as sentencing the defendant.

4. It is first necessary to set out a number of dates:

   ·On 14 November 1995 the defendant was convicted of attempted armed robbery and assault with intent to rob whilst armed.  He was sentenced to 8 years and 6 months imprisonment with the sentence commencing on 21 January 1995.  A non-parole period of 5 years and 6 months was set.

   ·Shortly after the expiry of the non-parole period, the defendant was released on parole on 27 July 2000 on certain terms and conditions.  His parole was due to expire on 21 July 2003.

   ·On 30 October 2001 the defendant committed the offences for which he is now to be sentenced.  He was arrested and taken into custody.  No bail was applied for.  The defendant has remained in custody since that date.

   ·On 30 November 2001 the Parole Board interviewed the defendant for alleged breaches of parole conditions including a designated condition (see Section 68(3) CSA).  The Parole Board found the breaches proved.  The breach of the designated condition was found to have taken place on 7 March 2001.  The balance of the period of the head sentence of 8½ years from 7 March 2001 was 2 years 4 months and 14 days.

5. At the time of the commission of the current offences, the defendant was on parole in respect of the original sentence. After the commission of the current offences on 30 October 2001, the Parole Board intervened as referred to above. Once the Parole Board determined that the defendant was in breach of a designated condition of parole he was, by force of Section 73(1) of the Correctional Services Act, liable to serve in prison the balance of the original sentence, namely the period of 2 years 4 months and 14 days. The effect of the Parole Board’s findings combined with Section 73(1) CSA meant that the period from 7 March 2001 to 29 October 2001 did not form part of the defendant’s service of the original sentence.

6. When the defendant is to be sentenced in respect of the current offences, Section 75(1) CSA applies. That section provides that the defendant is liable to serve in prison the balance of the original sentence in respect of which he was on parole, calculated from the day on which the offence was committed.

7. Both Section 73 and Section 75 CSA use the phrase “is liable to serve in prison”. As I understand the operation of Section 73, parole is cancelled by force of Section 73(3), which means that the defendant goes back into custody. This raises the question: what is the nature of the defendant’s retention in custody since his arrest on 30 October 2001? Does it constitute service of the existing sentence or is he merely in custody on remand awaiting arraignment and, in this case, sentence? If it is the former, his earlier sentence of 8 years and 6 months expires on 14 March 2004. If it is the latter, and if Section 75 of the Correctional Services Act applies, the resumption of service in prison of the original sentence does not commence until I sentence him for the current offences. This follows from the decisions of R v Slater (1984) 36 SASR 524 and R v Bartels (1986) 44 SASR 260.

8. In those two cases the Court of Criminal Appeal had to consider the operation of the equivalent of the current Section 75 of the Correctional Services Act. It was held that the defendant only recommences service in prison of the balance of the original sentence when he is sentenced for the subsequent offences: cf Bartels, per Johnston J at 276.8. It was also held that the non-parole period commences from the date of sentencing.

9. One of the effects of these decisions is that, where Section 75 of the Correctional Services Act applies, and there has been no prior intervention by the Parole Board pursuant to Section 73 CSA, time spent in custody pending trial is characterised as time spent in custody on remand and not as time spent in service in prison of the original sentence. The balance of the period to be served of the original sentence has to be calculated accordingly, although detention in custody pending trial of the current offences may operate to reduce the length of the sentence of imprisonment to be imposed in respect of the current offences.

10. Neither of the two authorities referred to involved an intervention by the Parole Board as has occurred in this case. I raise that fact because I think it may be a distinguishing feature. When the Parole Board acts pursuant to Section 73 of the Correctional Services Act, that has the legal effect of cancelling parole so that the defendant (who is necessarily in custody because otherwise he could not have been dealt with by the Board pursuant to Section 73) commences to serve in prison the balance of the original sentence of imprisonment. It also means that from the date of breach of parole to the date of resumption of service in prison of the original sentence, the defendant is not regarded as serving the original sentence. These matters cannot be ignored by me when subsequently sentencing the defendant in respect of the current offences. The determination of the Parole Board on 30 November 2001, combined with the operation of Section 73 of the Correctional Services Act, means that time spent in custody pending trial constitutes service in prison of the original sentence from the date of the Parole Board’s determination.

11. If I regard the defendant as having recommenced service in prison of the original sentence on 30 October 2001, the original sentence will expire on 13 March 2004, that is 2 years 4 months and 14 days after 30 October 2001.

12. I must next consider how Section 75 CSA is to be applied. The section provides that the defendant is liable to serve in prison the balance of the original sentence “unexpired as at the day on which the offence was committed”. In calculating the unexpired balance it is appropriate to take into account that, because of the Parole Board’s determination pursuant to Section 73 CSA, the period from 7 March 2001 to 30 October 2001 does not constitute any form of service of the original sentence. Thus, the unexpired balance is 2 years 4 months and 14 days. However, that does not take into account that the defendant has been serving in prison the original sentence since 30 October 2001 and that the recommencement of service in prison under Section 75 CSA does not commence until sentencing for the current offences takes place: R v Slater and R v Bartels (supra).  If the recommencement of service in prison does not take place until sentencing, the original sentence does not expire until September 2004.

13. In essence, if Section 75 CSA is taken literally, the six month’s service in prison of the original sentence by the defendant since 30 October 2001 cannot be taken into account when calculating the expiry date of the original sentence. This is plainly unfair. The difficulty was considered by King CJ in The Queen v Panagiotidis, BC8700299 delivered on 5 June 1987. His Honour was of the view that Section 75 CSA must be read in its context. He held that the period served in prison by the defendant pursuant to an order of the Parole Board under Section 74 CSA could be taken into account when calculating the expiry date of the original sentence. In my view, there is no material difference between Section 73 and Section 74 CSA for present purposes.

14. The same problem was adverted to (but not decided) by Bleby J in Blackman v Police, an unreported decision delivered on 16 March 1998, Judgment No S6599. By then, Section 75 CSA had been amended by Section 8 of Act No 30 of 1990. Part of the amendment removed the words “subject to this part” from Section 75(1) CSA. Bleby J thought that this may have a bearing on whether or not the decision in Panagiotidis was still applicable.

15. The second reading speech recorded in Hansard, 1990, Volume 1 at p688, makes it clear that the amendment related to clarifying the position with regard to a parolee who is given a suspended sentence of imprisonment for an offence committed when on parole.  For that reason, I do not consider that Parliament, by passing Act No 30 of 1990, intended to create the situation which would otherwise apply in this case, namely, re-service of time spent in prison.  The section, as it now is, must “not be read in isolation and out of context”: per King CJ at 4 in Panagiotidis.

16. In those circumstances, I consider that Section 75 may be read as subject to Sections 73 and 74 CSA. In other words, any period of imprisonment served pursuant to either Section 73 or Section 74 CSA must be taken into account when calculating the expiry date of the original sentence.

17. For the above reasons, I hold that the expiry of the original sentence of imprisonment must be calculated by deducting from the period of 2 years 4 months and 14 days, the period from 30 October 2001 to the date of sentencing.  This means that the expiry date of the original sentence is 14 March 2004.