R v Noonan
[2008] SASC 355
•10 December 2008
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 355Court 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 months’ imprisonment. Mr Noonan had spent time in custody and on home detention bail earlier this year. That time in custody and on home detention bail occurred before Mr Noonan had last been taken into custody on 4 August 2008. The Judge could not backdate the sentence any further than 4 August 2008.
Having regard to the earlier period in custody and on home detention bail, the Judge made a further reduction and in the end imposed a sentence of 11 months 14 days’ imprisonment to commence from 4 August 2008.
As a matter of law, and as a matter of fact, the sentence imposed is a sentence of 11 months 14 days’ imprisonment. The “Report of Prisoner Tried” signed by the judge reflects that.
The Judge then fixed a non-parole period of four months 14 days.
In fixing the non-parole period the Judge acted contrary to s 32(5)(a) of the Sentencing Act. Section 32 imposes a duty on a court, subject to certain exceptions, to fix a non-parole period when it sentences a person to imprisonment. Section 32(5)(a) provides as follows:
32(5)The above provisions are subject to the following qualifications:
(a) a non-parole period may not be fixed in respect of a person who is liable to serve a total period of imprisonment (or detention and imprisonment) of less than one year;
The effect of s 32(5)(a) is that as Mr Noonan was liable to serve a total period of imprisonment of less than one year, the Court had no power to fix a non-parole period.
Counsel raised this matter with the Judge after he had imposed sentence. The Judge said that the period of time in custody and on home detention bail, prior to 4 August 2008, could be treated as part of the period of imprisonment that Mr Noonan was “liable to serve”.
The Judge erred in that respect. It is clear that s 32(5)(a) refers to the sentence actually imposed by the Court. As I have already said, that was a period of imprisonment for 11 months 14 days. Any other approach would give rise to uncertainty.
The Judge referred to an earlier decision of this Court in R v Greenwood [2000] SASC 204. In that case an offender was sentenced to imprisonment for 11 months. By operation of s 75 of the Correctional Services Act 1982 (SA) the offender became liable to serve in prison a further period of 42 days, being the balance of a sentence of imprisonment in respect of which he was on parole as at the day on which the offence for which he was sentenced to 11 months’ imprisonment was committed. In Greenwood the offender, by virtue of the sentence imposed by the District Court, became liable to serve a total period of imprisonment of 11 months 42 days, and accordingly a non-parole period had to be fixed. It is not necessary to decide whether that decision is correct, although in saying this I do not intend to cast any doubt on its correctness. The decision in Greenwood does not decide that for the purposes of s 32(5)(a) one takes into account an allowance or reduction from a notional starting point for a period of imprisonment.
As I have said, the sentence is erroneous. It should be set aside. This Court must sentence Mr Noonan afresh.
The sentence is a lenient one, having regard to the seriousness of the offence and Mr Noonan’s record. No suggestion was made that a lesser sentence should be imposed.
I would sentence Mr Noonan to imprisonment for 11 months 14 days, to commence from 4 August 2008, when Mr Noonan was last taken into custody.
Exercising the power conferred by s 38(2a) of the Sentencing Act, I would direct that Mr Noonan serve a period of four months 14 days of that sentence of imprisonment. I would further direct that the balance of the sentence, a period of seven months, be suspended upon condition that Mr Noonan enter into a bond to be of good behaviour for a period of seven months, the bond to be in the sum of $500. That bond is to take effect upon Mr Noonan’s release from prison.
Accordingly, I would grant permission to appeal. I would allow the appeal. I would set aside the sentence imposed by the District Court. I would substitute a sentence of imprisonment of 11 months 14 days, to commence from 4 August 2008. I would direct that Mr Noonan serve four months and 14 days of that sentence. I would further direct that the remainder of the sentence, a period of seven months, be suspended upon Mr Noonan entering into a bond in the sum of $500 to be of good behaviour for a period of seven months. The bond is to take effect on Mr Noonan’s release from prison.
DUGGAN J: I agree with the orders proposed by the Chief Justice and with his reasons for judgment.
DAVID J: I agree with the reasons of the Chief Justice and the orders he proposes.
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