R v Leathley - [2013] SASCFC 42

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v LEATHLEY
[2013] SASCFC 42
Judgment of The Court of Criminal Appeal
(The Honourable Justice Sulan, The Honourable Justice Peek and The Honourable Justice Nicholson)
23 May 2013
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - SINGLE SENTENCE FOR MULTIPLE OFFENCES
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - JUDGE ACTED ON WRONG PRINCIPLE
Appellant pleaded guilty to two counts of cultivating controlled plants for sale and admitted breaching a suspended sentence bond - the sentencing Judge imposed a single sentence of six years’ imprisonment with a non-parole period of three years - the Judge revoked the suspension of the previously suspended sentence of two years and three months’ imprisonment with a non-parole period of 14 months which he included in the single sentence imposed under s 18A of the Criminal Law (Sentencing) Act 1988 (SA) - whether the Judge erred in using s 18A to impose one penalty in circumstances where the appellant was to be dealt with for a breach of a suspended sentence bond in addition to the further drug offending.
Held: Section 18A of the Criminal Law (Sentencing) Act 1988 (SA) cannot be used to impose a single term of imprisonment where part of the sentence includes the activation of a previously suspended sentence - sentence set aside and remitted to District Court for re-sentencing.
Controlled Substances Act 1984 (SA) s 33(3); Criminal Law (Sentencing) Act 1988 (SA) s 9A, s 18A, s 58(4), referred to.
R v Jeffries [2004] SASC 188, considered.

R v LEATHLEY
[2013] SASCFC 42
Court of Criminal Appeal: Sulan, Peek and Nicholson JJ

SULAN J: This is an appeal against sentence. The defendant and appellant, Gavin Leathley, pleaded guilty to two counts of cultivating controlled plants for sale contrary to s 33(3) of the Controlled Substances Act (SA) and two counts of trafficking in a large commercial quantity of a controlled drug contrary to s 32(1) of the Act. The defendant also admitted breaching a suspended sentence bond. The sentencing Judge imposed a single sentence of six years’ imprisonment with a non-parole period of three years. The Judge revoked the suspension of the previously suspended sentence of two years and three months’ imprisonment with a non-parole period of 14 months which he included in the single sentence imposed under s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (the “Sentencing Act”).
The Director of Public Prosecutions (“the Director”) applies for leave to appeal against the sentence on the ground that the sentencing Judge erred in using s 18A of the Sentencing Act to impose one penalty in circumstances where the defendant was to be dealt with for a breach of a suspended sentence bond in addition to the further drug offending. The defendant also appeals on the ground that the sentence imposed was manifestly excessive having regard to the sentences imposed on three other defendants who were sentenced in the Magistrates Court for offences arising from the same conduct for which the defendant was charged.
The appeal was brought to this Court by the parties on the basis that the sentence should be set aside and the matter remitted to the District Court for re-sentencing. For the reasons that follow, I would allow the appeal on that basis. It is therefore unnecessary to consider the defendant’s parity argument; it can be put before a judge when the defendant is re-sentenced.
The error
In sentencing the defendant, the Judge stated:
Mr Leathley, for your crime, namely that matters to which you have pleaded guilty, as well as in respect of the breach of bond that you have admitted, I will use s.18A of the Sentencing Act to impose one sentence of imprisonment of six years. In the absence of a guilty plea on your plea, and those considerations that I have mentioned, it would have been seven years. I have allowed an appropriate discount, having regard to your guilty plea and those other matters.
Section 18A of the Sentencing Act provides as follows:
18A—Sentencing for multiple offences
If a person is found guilty by a court of a number of offences, the court may sentence the person to the one penalty for all or some of those offences, but the sentence cannot exceed the total of the maximum penalties that could be imposed in respect of each of the offences to which the sentence relates.
Section 58(1)(d) of the Sentencing Act provides that if a person has been sentenced to imprisonment and the sentence has been suspended, and that person breaches a term of their bond, the Court must revoke the suspension and order that the sentence be carried into effect. The sentence may be directed to be served cumulatively upon any other sentence then being served, or to be served.
It is well established that s 18A cannot be used to impose a single term of imprisonment where part of the sentence includes the activation of a previously suspended sentence. In R v Jeffries, Perry J (with whom Doyle CJ and Mullighan J agreed) made the following observations:[1]
However, the suspended sentence of imprisonment was not a sentence imposed by the sentencing judge. It was a sentence which had been imposed earlier in the Magistrates Court. All that the sentencing judge did was to revoke the suspension, thereby activating the term of imprisonment.
In those circumstances it was not open to the sentencing judge to aggregate the activated sentence within a single sentence pronounced pursuant to s 18A of the Criminal Law (Sentencing) Act, which included elements relating to other offences. Section 18A permits the court to pronounce one penalty for all or some of a number of offences for which the sentencing court has found the defendant guilty, but it does not enable a sentencing court to incorporate in the one penalty a sentence pronounced by another court.
The proper course for the sentencing judge to have taken in this case, having revoked the suspension of the 10 months sentence, was to direct that that be served, and that any further sentence which he imposed for offences which were otherwise before him, should be served cumulatively upon the 10 months sentence.
[1] [2004] SASC 188, [49]-[51].
In submissions to the sentencing Judge, counsel for the defendant accepted that the sentence the subject of the suspended sentence must be given effect and accumulated upon any further sentence. The Judge was then required to adjust the non-parole period. Counsel submitted:
As I read the legislation, any sentence that your Honour imposes must be accumulated on the two years and three months of the head sentence that he’s looking at on the bond matter. Then your Honour goes through the exercise of adjusting the non-parole period. Normally, I think it’s fair to say that would involve an increase in the non-parole period but, in my submission, this is one of those cases where if your Honour is in agreement with me there is good reason for your Honour to be generous to Mr Leathley and your Honour can do that with the adjustment of the non-parole period.
It is unfortunate that when the Judge imposed sentence, neither counsel for the DPP nor the defendant brought to the Judge’s attention the error in his approach. Had that occurred, the Judge could have re-called the sentence and applied the correct approach in imposing the sentence.
The Judge erred in imposing a global penalty which included the activation of a previous suspended sentence.
In considering the orders to be made for the breach of the suspended sentence bond, the Judge did not have regard to the matters contained in s 58(4) of the Sentencing Act including whether there were "special circumstances" which would justify a reduction in the term of the suspended sentence. In addition, the Judge did not indicate which part of the sentence was attributed to the breach of bond and which part was attributed to the subsequent offending. This is not a case where this Court should resentence the defendant. The matter should be remitted to the sentencing court for further submissions and consideration.
Conclusion
I would grant permission to appeal, allow the appeal, set aside the sentence and remit the matter to the District Court for re-sentencing before a different judge.
PEEK J. I agree with the orders proposed by Sulan J and with his reasons.
NICHOLSON J: I agree that the appeal should be allowed and with the orders proposed by Sulan J for the reasons he has given.