R v Sansbury - [2010] SASCFC 8

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v SANSBURY
[2010] SASCFC 8
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Duggan and The Honourable Justice David)
30 July 2010
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES - SENTENCE DURING UNEXPIRED SENTENCE - OFFENCE COMMITTED WHILE ON PAROLE OR PROBATION
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - COMMENCEMENT
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TIME SPENT IN CUSTODY
Appeal against sentence - appellant pleaded guilty to escaping custody - appellant on parole at time of offence - Parole Board cancelled his parole - whether head sentence excessive - whether Judge erred in not reducing head sentence by precise period spent in custody - whether Judge erred in not deducting from non-parole period the same allowance for time spent in custody as Judge deducted from the head sentence - whether Judge erred in failing to make a deduction from both head sentence and non-parole period for time spent in custody pursuant to order of Parole Board - consideration of when a sentence should be backdated - appeal dismissed.
Correctional Services Act 1982 (SA) s 75(1); Criminal Law Consolidation Act 1935 (SA) s 254(1); Criminal Law (Sentencing) Act 1988 (SA) s 30, s 30(2), s 31(2), s 32(2); Prisons Act 1936-1983 (SA) (repealed) s 42nf, referred to.
R v Bartels (1986) 44 SASR 260; R v Colson (1999) 73 SASR 407; The Queen v Slater (1984) 36 SASR 524, discussed.
DAT v Police (2002) 83 SASR 237; Frank v Police (2000) 77 SASR 273; P, NJ v R (2009) 83 ALJR 384; R v Czubak (2005) 92 SASR 400; R v P, NJ (No 4) (2008) 183 A Crim R 461; R v Wilson [2010] SASC 89, considered.

R v SANSBURY
[2010] SASCFC 8
Court of Criminal Appeal: Doyle CJ, Duggan and David JJ

DOYLE CJ: Mr Sansbury appeals against a sentence imposed by the District Court.
He complains that in fixing the head sentence the Judge failed to take fully into account the time spent in custody in respect of the offence in question; that the Judge did not deduct from the non‑parole period the same allowance for time spent in custody as the Judge deducted from the head sentence; and that the Judge erred in failing to make a deduction from both the head sentence and the non‑parole period for a period of six months spent in custody pursuant to an order of the Parole Board.
I would dismiss the appeal. The head sentence and non‑parole period are moderate. The sentencing Judge did not err. My reasons follow.
Mr Muscat, counsel for Mr Sansbury, also argues that the Court should reverse its decision in R v Bartels (1986) 44 SASR 260. This is not an appropriate case in which to consider that submission. However, I will return briefly to this matter in my reasons.
Background
Mr Sansbury has a long criminal record. He was released from prison on parole on 21 January 2009. His parole was due to expire on 24 February 2011.
On 12 August 2009 he was arrested and charged with a number of offences. They were later dealt with in the Magistrates Court. The sentence for these offences is of no present relevance.
In the early hours of 13 August 2009 two police officers took Mr Sansbury to hospital because he was complaining about pain in his left wrist. Because of that complaint, they did not handcuff him. As he was not handcuffed, he took the opportunity to run off. He pushed one of the police officers, causing no injury. He was caught a short time afterwards, not far away. The Judge accepted that the escape was a spur of the moment decision.
Mr Sansbury was held in custody in respect of the escaping custody offence.
On 13 August 2009 the unexpired balance of the sentence in respect of which he was on parole was one year six months and 11 days, according to the Parole Board.
On 19 August 2009 Mr Sansbury came before the Parole Board on a warrant issued by it. He admitted that he had breached his parole by virtue of the matters for which he was arrested on 12 August 2009. His admission might have related also to the offence of escape from custody, contrary to s 254(1) of the Criminal Law Consolidation Act 1935 (SA), with which he had been charged. The Parole Board records are not completely clear in this respect.
The Parole Board cancelled his parole from 19 August 2009 to 18 February 2010, a period of six months. He was returned to custody.
Mr Sansbury remained in custody from 18 February 2010 until he was sentenced in the District Court on 30 March 2010, a period of 40 days. This was custody in respect of the escaping custody offence.
When sentenced Mr Sansbury had been held in custody in respect of the escaping offence for about one week in August 2009; imprisoned for six months as a result of the cancellation of his parole; then held in custody in respect of the escaping custody offence for a further 40 days.
The Judge sentenced him to imprisonment for nine months. But for his plea of guilty, the starting point for the sentence would have been 12 months’ imprisonment. The Judge also reduced the sentence by one month to allow for time spent in custody in respect of the escaping custody offence.
The Judge noted that Mr Sansbury was liable to serve in prison the unexpired balance of the earlier sentence of imprisonment in respect of which he was on parole: s 75(1) of the Correctional Services Act 1982 (SA) (the CSA). The Parole Board had calculated this at one year 11 days. In doing so it had deducted the six months’ imprisonment served by virtue of its order.
That meant that Mr Sansbury was liable to serve a total period of imprisonment of one year nine months 11 days. The Judge fixed a non-parole period of 13 months. He directed that the head sentence and non-parole period commence on 30 March 2010, the day on which he sentenced Mr Sansbury.
Submissions on appeal
Mr Muscat submits that the head sentence is excessive. I disagree. Escaping from custody is a serious offence. The maximum penalty is imprisonment for seven years. Although this particular offence was not a serious one of its kind, it nevertheless remains a serious offence. Mr Sansbury took advantage of the consideration that the escorting police showed by not handcuffing his sore wrist. His long record indicates a need for personal deterrence. No criticism can be made of the head sentence.
Mr Muscat complains that the reduction of one month for time spent in custody was wrong, and that the Judge was obliged to make a reduction of 47 days.
It is the practice to make a reduction on account of time spent in custody. Section 30(2) of the Criminal Law (Sentencing) Act 1988 (SA) (the CLS Act) authorises this. There might be cases in which it is not appropriate to do so, but ordinarily a reduction should be made. Usually the reduction will be the period spent in custody. Section 30(2) of the CLS Act permits the Court to make “an appropriate reduction”. This need not be the precise period spent in custody. Sometimes it is difficult to get a precise figure. Rounding is permissible. If the reduction is to be something less than the period spent in custody, ordinarily brief reasons for not allowing the whole period should be given: Frank v Police [2000] SASC 245; (2000) 77 SASR 273 at [58] Lander J.
I do not regard the difference between 30 days and 47 days as indicating error. It was open to the Judge to take the broad axe approach that he took. The failure to give reasons for the reduction allowed is not of itself an error. The discrepancy between the time in custody and the time allowed is not indicative of some unexpressed error.
Mr Muscat submits that any reduction in the head sentence on account of time spent in custody in respect of the offence must be reflected in an appropriate reduction of the non-parole period. The Judge made no reference to such a reduction, and Mr Muscat submits that he has erred in this respect.
I do not agree. The practice in South Australia varies in this respect. Some judicial officers take the approach advocated by Mr Muscat. Others take the approach that as the reduced head sentence will tend to have the effect of reducing the non-parole period, an appropriate non-parole period can be achieved without going through the process of identifying a tentative or notional non‑parole period, and then reducing that by an appropriate allowance for the time spent in custody.
A non-parole period should be the minimum period which the offender must serve in prison to satisfy the punitive, deterrent and preventive purposes of punishment. In fixing the non-parole period the Court must reflect each of those purposes. It is appropriate for a judicial officer to fix the non-parole period having regard to these purposes, and to arrive at an appropriate non-parole period, without making a reduction on account of time spent in custody. A non-parole period is not fixed simply as a proportion of the head sentence. It is both a period of time that reflects the purposes of punishment, and a decision as to the minimum period to be spent in prison. The latter consideration is a significant matter.
If a judicial officer arrives at an appropriate non-parole period, taking into account relevant matters, there is no need to make a reduction on account of time spent in custody. Indeed, to do so might in some cases produce an inappropriate result. For present purposes it suffices to say that there is no requirement when fixing a non-parole period to arrive at an appropriate period and then to reduce that period by an appropriate allowance for time spent in custody. However, the time already spent in custody is to be borne in mind when fixing the non-parole period.
In the present case the non-parole period was moderate when one considers Mr Sansbury’s very lengthy criminal record. The Judge might well have considered that anything less than the period fixed by him would be inadequate as the minimum period to be served in custody. Having arrived at the period of 13 months, he was not obliged to reduce it on account of the time Mr Sansbury had spent in custody.
It is worth noting that on Mr Muscat’s approach some care is called for in making a reduction on account of time spent in custody. I will illustrate this point by reference to an example that was canvassed with counsel in the course of submissions. Assume an offender has been in custody for six months; that the judge considers a head sentence of five years’ imprisonment is appropriate; that the judge fixes a head sentence of four years six months to allow for time in custody; and that the judge considers that a non-parole period of three years is appropriate. On Mr Muscat’s approach the judge should then reduce the proposed non-parole period by two months, not by four months or by six months. The result is a non-parole period of two years ten months. As the non-parole period is two-thirds of the head sentence, he submits that the same proportion should be applied to the time spent in custody to arrive at the reduction to be made in the non-parole period on account of the time spent in custody. The reduction is one third of the time spent in custody. If the reduction was to be four months or six months, the offender would be better off than he would have been had the sentence been backdated. I use this example simply to illustrate that on Mr Muscat’s approach the matter is not straightforward.
Mr Muscat is correct in saying that on the approach taken by the sentencing Judge Mr Sansbury will spend longer in custody than he would have if the Judge had imposed the same head sentence (not reduced for time spent in custody) and fixed the non-parole period at the same proportion of this head sentence, both backdated to 19 February 2009. (For the present I ignore the complication attributable to the Parole Board order.) But implicit in the comparison that he makes is the assumption that the result achieved by backdating provides a measure against which a sentence that is not to be backdated must be determined. I do not accept that assumption. It is one thing to say that when it is open to a court to impose a backdated sentence it is preferable to do so because the sentence then reflects the full measure of the punishment imposed, and it avoids some of the complications that arise when the sentence is not backdated. I agree with that statement: see R v Wilson [2010] SASC 89 at [18] Gray J. But it is another thing to say that a backdated sentence provides a measure for the correctness of a sentence that is not backdated. Moreover, there will be situations in which it is not possible to backdate the sentence. For reasons that I will indicate, this is such a situation. This leads to the next point.
Mr Muscat submits that Mr Sansbury is disadvantaged by having admitted promptly his breaches of parole, and as a result of the Parole Board ordering that he serve six months’ imprisonment. If the Judge had sentenced Mr Sansbury before the Parole Board acted, he submits that the Judge would have imposed a sentence of ten months’ imprisonment. The Judge would have reduced the head sentence by about seven months on account of time spent in custody, resulting in a head sentence of three months. The combined head sentence would have been one year nine months 11 days. The non‑parole period would have been fixed in relation to that head sentence, but the appropriate part (see the explanation above) of the period in custody (from 13 August 2009 to 30 March 2010) would have been deducted from the non-parole period, resulting in a non-parole period of less than 13 months.
The submission is based on the assumption that the Judge did not backdate the sentence. I have expressed the submission using my own calculations. Mr Muscat put the submission in more general terms.
The submission overlooks the fact that the six months spent in custody by order of the Parole Board was ordered as punishment for a breach of parole. The breach warranted separate punishment, even if the escaping custody offence was the only breach of parole: DAT v Police [2001] SASC 219; (2002) 83 SASR 237 at [37] Doyle CJ. On Mr Muscat’s approach the period served under the Parole Board order would reduce the head sentence and, by the appropriate proportion, the non-parole period fixed by the Judge. That would not be right. It would make the decision of the Parole Board ineffective. It is not to the point that if the Parole Board had not made its order the whole time would have been deducted from the head sentence. The fact is, six months of the time in custody was served on a different basis and should not be deducted. There is no unfairness in this respect.
For these reasons the complaints about the sentence should be rejected. No error on the part of the Judge has been demonstrated.
Mr Muscat’s submissions have proceeded on the basis that ordinarily the Court should backdate a sentence, rather than make a reduction on account of time spent in custody, and on the basis that the effective sentence, if backdated, should be the standard by which the sentence (if not backdated) should be measured. I accept the first proposition as a general guide: see R v Wilson [2010] SASC 89 at [18] Gray J. But I emphasise that this is only a general rule. I do not accept the second proposition, although I agree that a court should be mindful of the different outcome that backdating and not backdating might produce.
Mr Muscat went on to submit that in this case the Judge could have and should have backdated the sentence he imposed to 12 August 2009.
The decision of this Court in The Queen v Slater (1984) 36 SASR 524 has been treated as deciding that when a person is sentenced to imprisonment for an offence committed while on parole, and the sentence is not suspended, the person is liable to serve in prison the balance of the sentence of imprisonment in respect of which he was on parole, being the balance unexpired as at the date of the offence committed while on parole, and that by operation of s 75(1) of the CSA that sentence begins to be served on the day on which the new sentence is imposed. Slater has been understood as deciding that the Court has no power to alter that, and so cannot backdate the commencement of the balance of the sentence in respect of which the offender was on parole. That has the consequence that the newly imposed sentence will commence at a future date, when the unexpired balance has been served. This is the result of s 31(2) of the CLS Act, which requires that the sentence imposed for the offence committed while on parole be cumulative upon the sentence in respect of which the offender was on parole.
Mr Muscat submits that Slater was wrongly decided, and should be overruled, opening the way for Mr Sansbury’s sentence to be backdated.
In Slater the Court was dealing with provisions of the Prisons Act 1936-1983 (SA). The equivalent to s 75 of the CSA was s 42nf of the Prisons Act. There are similarities between the relevant provisions of the CLS Act and of the CSA on the one hand, and the provisions of the Prisons Act on the other hand. However, there are also differences. Section 30 of the CLS Act contains provisions not found in the Prisons Act. In R v Colson [1999] SASC 184; (1999) 73 SASR 407 I considered s 30(1) of the CLS Act in light of its history. I concluded that that provision confers “a general power to specify a date or time for the commencement of a sentence, earlier or later than the time at which the sentence was imposed”: at [24]. The other members of the Court agreed. This approach was endorsed by this Court in R v P, NJ (No 4) [2008] SASC 97; (2008) 183 A Crim R 461 at [32] Duggan J, at [96] Gray J, at [118] White J. That reasoning appears to have been endorsed by the High Court in P, NJ v R [2009] HCA 6; (2009) 83 ALJR 384 at [15]-[19].
In brief, Mr Muscat submits that s 75(1) of the CSA creates the liability to serve the balance of the sentence of imprisonment in respect of which the offender was on parole, that liability arising on the imposition of a sentence of imprisonment for an offence committed while on parole. He submits that it does not control the working out or effecting of that liability. He submits that under s 30 of the CLS Act the Court can fix the time at which the offender will begin to serve the unexpired balance sentence. He submits that when Slater was decided the legislation did not contain provisions equivalent to those now found in s 30 of the CSA in particular. He also relies on s 32(2) of the CLS Act, which requires the Court, in fixing a non-parole period in a case of this kind, to have regard to “the total period of imprisonment” to be served, and submits that the Court cannot do this unless it can backdate the commencement of the serving of the unexpired balance sentence.
For these reasons, he argues, the decision in Slater should be reversed.
The powers conferred by s 30 of the CSA are conferred on a court that imposes a sentence or that sentences a defendant.
His submission appears to treat the court that sentences a person to imprisonment for an offence committed while on parole as imposing the balance of the sentence of imprisonment in respect of which the offender was on parole. In that way, the power conferred by s 30 can be used to fix a time for the commencement of the unexpired balance sentence. Alternatively, the power of the court to fix a date for the commencement of the unexpired balance sentence must be found elsewhere.
In Slater it was only King CJ who dealt with this issue. I cannot find anything in the reasons of Zelling J or Cox J that bears on the point. It is not completely clear that King CJ was intending to say that the Court had no power to fix the date on which a person falling under the equivalent of s 75 of the CSA begins to serve the unexpired balance sentence. There have been significant legislative changes since then. But it is not obvious that s 30 of the CSA empowers the court to fix a date for the commencement of the unexpired balance sentence.

Some doubts have been expressed about this aspect of the reasons of King CJ in Slater: R v Czubak [2005] SASC 287; (2005) 92 SASR 400 at [22] Gray and Sulan JJ, cf White J at [72]-[75]; R v Wilson [2010] SASC 89 at [47] Vanstone J and at [1] Doyle CJ.
This is not an appropriate occasion to reconsider the decision in Slater, although I agree that it would be appropriate to do so when the occasion presents itself. For the reasons that I have explained, it was not appropriate for the Judge to backdate the unexpired balance sentence. To do so would negate the punishment imposed by the Parole Board. In the present case there is no basis for concluding that the Judge erred, and so there is no basis for disturbing the sentence that he imposed. The failure to backdate a sentence is not, of itself, an error. It is an error only if it gives rise to a sentence that is excessive or otherwise erroneous.
Conclusion
For these reasons I would dismiss the appeal.
DUGGAN J: I would dismiss the appeal for the reasons given by the Chief Justice.
DAVID J: I have read the reasons of the Chief Justice. I agree with his remarks both generally and in relation to the matters specifically raised in this case. I agree the appeal should be dismissed.