R v Kirk No. DCCRM-02-48 - [2002] SADC 46

R v KIRK
[2002] SADC 46
Judge Burley
Criminal

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”.
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.
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.
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: R v Kirk No. DCCRM-02-48 [2002] SADC 46
Case: [2002] SADC 46
Decision Date: 30 April 2002

CaseChat Overview and Summary

The defendant, Kirk, pleaded guilty to four offences committed while on parole for an earlier sentence. The court, presided over by Judge Burley, had to consider the impact of the Correctional Services Act 1982 on the calculation of the defendant's non-parole period. The primary legal issue was determining how to calculate the expiry date of the original sentence in light of the defendant’s breach of parole and subsequent imprisonment for the current offences.

Judge Burley examined Sections 31(2), 32(2), 73, and 75 of the Correctional Services Act 1982. These sections provided the framework for understanding the cumulative nature of the defendant's sentences and the effect of parole breaches. The court noted that the Parole Board’s intervention and the defendant’s subsequent imprisonment from 30 October 2001 meant that the period from 7 March 2001 to 29 October 2001 did not form part of his service of the original sentence. By applying Sections 73 and 75, the court found that the defendant had to serve the balance of his original sentence in prison, which began from the date of the current offences. This interpretation led to the conclusion that the defendant had already served part of his original sentence since 30 October 2001, which needed to be factored into the calculation of the expiry date of the original sentence.

Judge Burley concluded that the expiry date of the original sentence must be calculated by taking into account the period served by the defendant since 30 October 2001. The court held that this period should be deducted from the remaining unexpired term of the original sentence. Consequently, the expiry date of the original sentence was determined to be 14 March 2004. This reasoning ensured that the defendant's time served since his breach of parole was appropriately considered in the sentencing process.

In light of the above findings, the court issued its final orders for the defendant’s sentencing. The defendant was to serve the balance of his original sentence, with the non-parole period commencing from the date of sentencing for the current offences. This ensured that the defendant’s total period of imprisonment was accurately reflected in the judicial process.

Orders