R v Reid No. Sccrm-90-32, Sccrm-90-33, Sccrm-90-34, Sccrm-90-35, Sccrm-00-221

R v REID
[2000] SASC 425

Criminal

1................ PERRY J.......................... By application dated 26 September 2000 Anthony Bruce Reid applies for the fixation of a non-parole period with respect to the sentences of imprisonment which he is currently serving. The application is brought pursuant to s 32(3) of the Criminal Law (Sentencing) Act 1988.

The applicant is 44 years of age. He has a long record of prior offending, dating back to 1980. His previous convictions include offences of dishonesty, false pretences, substance abuse, and a number of offences of assault and armed robbery.
On 6 April 1989 he was sentenced in the Supreme Court of Queensland following his conviction in that Court on two counts of causing grievous bodily harm with intent to cause grievous bodily harm, and attempted armed robbery accompanied by wounding, both offences having been committed on 26 May 1988 at Brisbane. From the remarks on sentence pronounced by the sentencing judge, it appears that he took a serious view of the offending. This is not surprising, given that during the course of the attempted armed robbery he fired a shotgun over a distance of four yards in the direction of the face of the victim.
At that time he was given credit for some ten months already spent in custody. Allowing for that, he was then sentenced to imprisonment on the count of causing grievous bodily harm to a term of sixteen years, and on the attempted armed robbery, ten years, both sentences to be served concurrently from 6 April 1989.
In May 1989 the applicant made a successful application for transfer to South Australia. On 14 August 1989 he was taken into custody at Yatala Gaol.
Subsequently he was brought before this Court on charges involving four separate counts of armed robbery and one count of attempted armed robbery.
The armed robbery offences were committed between 30 November 1987 and 13 May 1988, between which dates, while armed with a shotgun or rifle, he robbed four banks. The attempted armed robbery committed in June 1988 also involved a bank. That crime miscarried when the shotgun which he was carrying accidentally discharged, wounding a co-offender who had accompanied him into the bank, and also wounding a customer.
At first he pleaded not guilty, but subsequently he entered pleas of guilty, following which he was sentenced by Olsson J on 13 August 1990.
Upon each of the five offences then in question the applicant was sentenced to imprisonment for four years, giving a total head sentence of twenty years which was directed to run as from the date upon which he was taken into custody in South Australia, that is, from 14 August 1989. Olsson J fixed a single non-parole period of thirteen years, to commence from the same date.
On 6 February 1998 the applicant was released on parole. At that time the authorities were encouraged to think that he was demonstrating a positive attitude towards his rehabilitation. He had entered into a relationship with a custodial officer from the Department of Correctional Services. She eventually resigned from the Department and took up cohabitation with him.
Initially his parole was uneventful. He reported regularly to the Port Lincoln Community Correctional Centre. In August 1999 he successfully sought a variation of his parole conditions to enable him to live in Alice Springs, where he intended to stay with his de facto wife at her daughter’s home.
Unfortunately, towards the end of 1999 and again early this year, he tested positive for cannabinoids and opiates, which was a breach of the conditions of his parole. However, I accept the explanation given by Mr Vadasz, who appeared for the applicant, that he was prescribed opiates at that time as part of medical treatment for an injury to his right arm. Apart from some minor use of marijuana, he has in fact not lapsed again into substance abuse.
On 1 July 2000 the applicant committed further offences in the Northern Territory. It appears that he had been in employment, but that a cheque given to him by his employer for his wages was not met on presentation. He then wrote another cheque himself for the amount of the wages which were due, which at first he did not present. Later he presented it after receiving an eviction notice to leave the premises in which he was living at the time.
In the result, he was charged with stealing, forgery and an attempt to commit a crime.
I have had the benefit of a copy of the transcript of the remarks of the learned magistrate who dealt with him with respect to those offences in the Court of Summary Jurisdiction of the Northern Territory of Australia on 11 July 2000. The learned magistrate obviously accepted the explanation given, namely, that the applicant was motivated to steal the cheque because of the money he was owed.
Under the Northern Territory legislation a sentence of imprisonment was mandated. Because of the applicant’s record, the learned magistrate would have imprisoned him in any event. However, he indicated that had it not been for the applicant’s previous record, he would have seriously considered suspension of the sentence.
In fact the applicant was sentenced to a six week custodial term of imprisonment commencing from the date of his apprehension in the Northern Territory, that is, 1 July 2000.
After he had served that term, on 11 August 2000 he was extradited to South Australia pursuant to a Parole Board warrant, where he remains in custody in this State.
If one has regard only to the sentence of twenty years imposed by Olsson J in 1990, the applicant is, pursuant to the provisions of s 75 of the Correctional Services Act 1982, liable to serve in prison the balance of that sentence which was unexpired as at the date upon which the Northern Territory offending was committed, that is, as of 1 July 2000. I am informed that that balance is 4 years and 7 months.
However, there is a complication. Although Olsson J referred to the sentence of sixteen years which had been imposed in Queensland in April 1989, when he came to pronounce sentence he did not make further reference to that sentence. He did not, for example, direct that the sentence which he was imposing was to run concurrently with that sentence.
Pursuant to s 27 of the Prisoners (Interstate Transfer) Act 1982, the balance of the Queensland sentence which remained as at the date upon which the applicant was taken into custody in South Australia, is for all purposes to be regarded as a sentence imposed in this State. Under the Act it is described as a “translated sentence”. Furthermore, pursuant to s 28(7) of the Act a non-parole period in respect of a person “subject to a translated sentence may be fixed, extended or reduced by the appropriate South Australian court on the application of the person the subject of the sentence or the Crown”.
This Court is the “appropriate” court, and I have the power to fix a non-parole period with respect to whatever balance should be regarded as remaining of the translated sentence.
Ignoring any question of remissions, that sentence would have approximately a further five years or so to run, a period which does not differ greatly from the unexpired balance of the sentence imposed by Olsson J.
In all the circumstances, I am prepared to deal with the matter on the footing that the translated sentence is running in parallel with, that is, being served concurrently with, the balance of the sentence imposed by Olsson J. Dealing with the matter in that way I am prepared to fix a single non-parole period to take effect against both sentences.
While on the face of it the offending in the Northern Territory which operated as a breach of parole is serious, when the matter is looked at closely, there were extenuating circumstances. Furthermore, every credit must be given for the fact that the applicant was able to remain in employment more or less constantly following his release on parole in February 1998, a period in excess of two years. He maintains a stable relationship with the woman to whom I have referred, who has obviously had a positive and beneficial influence on the applicant’s efforts to rehabilitate himself. Further, I have been given to understand that he has employment which he can go to upon his release on parole if this application is successful.
I have taken into account the report of the parole Board dated 6 November 2000. To a certain extent, that report is based on a false premise, in that the author assumes that the applicant has failed to cope with his prior drug addiction.
In all the circumstances, I think that the justice of the case would be met if I fixed a further non-parole period of four calendar months to be served from the date upon which he was re-taken into custody in this State, that is, from 11 August 2000.
I so order.

[2000] SASC 425

29 November 2000