R v Noonan - [2008] SASC 355

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Permission to Appeal)
R v NOONAN
[2008] SASC 355
Judgment of The Court of Criminal Appeal (ex tempore)
(The Honourable Chief Justice Doyle, The Honourable Justice Duggan and The Honourable Justice David)
10 December 2008
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-PAROLE PERIOD OR MINIMUM TERM - SOUTH AUSTRALIA - PARTICULAR CASES
Subject to specified exceptions, s 32 Criminal Law (Sentencing) Act 1988 (SA) ("Sentencing Act") requires Court to fix non-parole period when offender sentenced to period of imprisonment - under s 32(5)(a) Sentencing Act, non-parole period cannot be fixed if offender liable to serve a total period of imprisonment of less than one year - respondent sentenced to 11 months 14 days' imprisonment - whether Judge erred by taking into account periods spent in custody and on bail prior to commencement of sentence in determining whether s 32(5)(a) applied.
Held: regard cannot be had to time in custody prior to commencement of sentence for determining the total period of imprisonment a person is 'liable to serve' for the purposes of s 32(5)(a) Sentencing Act - respondent liable to serve less than one year's imprisonment - non-parole period not available - Judge erred in fixing non-parole period - permission to appeal granted - appeal allowed - respondent resentenced - period of imprisonment partly suspended pursuant to s 38(2a) Sentencing Act to achieve similar result.
Criminal Law (Sentencing) Act 1988 (SA) s 32, s 32(5)(a), s 38(2a); Correctional Sservices Act 1982 (SA) s 75; Criminal Law Consolidation Act 1935 (SA) s 137(1), referred to.
R v Greenwood [2000] SASC 204, discussed.

WORDS AND PHRASES CONSIDERED/DEFINED
"liable to serve", "total period of imprisonment"

R v NOONAN
[2008] SASC 355
Court of Criminal Appeal: Doyle CJ, Duggan and David JJ

DOYLE CJ: The Director of Public Prosecutions has applied for permission to appeal against a sentence imposed by the District Court.
The only ground raised is that the sentence is erroneous because it is a sentence not permitted by the Criminal Law (Sentencing) Act 1988 (SA) (“the Sentencing Act”).
I agree with counsel for the Director. The sentence imposed is contrary to s 32(5)(a) of the Sentencing Act. As the sentence is invalid, permission to appeal should be granted. The appeal should be allowed. The sentence should be set aside. This Court should re-sentence Mr Noonan.
Mr Noonan pleaded guilty to attempted aggravated robbery contrary to s 137(1) of the Criminal Law Consolidation Act1935 (SA). The maximum penalty for this offence is 12 years’ imprisonment.
The Judge imposed a sentence of imprisonment of 11 months 14 days. It is not necessary to go into the circumstances of the offending. It suffices to say that this is a lenient sentence.
The Judge arrived at this sentence by identifying a head sentence of 15 months as an appropriate starting point. But for Mr Noonan’s plea of guilty, the starting point would have been 20…

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.

Continue reading R v Noonan

Details

AGLC: R v Noonan [2008] SASC 355
Case: [2008] SASC 355
Decision Date: 10 December 2008

CaseChat Overview and Summary

The Court of Criminal Appeal of South Australia addressed a matter concerning the sentencing of Mr. Noonan for an attempted aggravated robbery. Mr. Noonan, who pleaded guilty to the offence, received a sentence of 11 months and 14 days imprisonment. The Director of Public Prosecutions sought permission to appeal against this sentence, arguing that it was erroneous because it contravened the Criminal Law (Sentencing) Act 1988 (SA). Specifically, the appeal contended that the Judge had incorrectly applied Section 32(5)(a) of the Act by considering the time Mr. Noonan had already spent in custody and on bail prior to his sentence, which led to an improper determination of the non-parole period.

The court examined whether the period in custody and on bail prior to the commencement of the sentence could be included in calculating the total period of imprisonment that Mr. Noonan was liable to serve. It was determined that such prior custody time could not be considered for determining the applicability of Section 32(5)(a). As Mr. Noonan was liable to serve a total period of imprisonment of less than one year, the Court was not empowered to fix a non-parole period, contrary to what the Judge had done. This misapplication rendered the sentence invalid.

The Court granted permission to appeal and allowed the appeal, setting aside the original sentence. In its place, the Court re-sentenced Mr. Noonan to 11 months and 14 days imprisonment, commencing from the date of his last custody, with a direction that he serve four months and 14 days of that sentence. The remaining seven months were to be suspended upon Mr. Noonan entering into a bond to be of good behaviour for a period of seven months, to take effect upon his release from prison. The judges unanimously agreed on the reasoning and the proposed orders.

Orders