R v Sansbury

Case [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(SA) s 254(1); Criminal Law (Sentencing) Act 1988 (SA) s 30, s 30(2), s 31(2), s 32(2); Prisons Act 1936-1983 (SA) (repealed) s 42nf, referred to.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

  1. DOYLE CJ:          Mr Sansbury appeals against a sentence imposed by the District Court.

  2. 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.

  3. I would dismiss the appeal.  The head sentence and non‑parole period are moderate.  The sentencing Judge did not err.  My reasons follow.

  4. 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…

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R v Sansbury [2010] SASCFC 8
Case
[2010] SASCFC 8
Decision Date

CaseChat Overview and Summary

The Supreme Court of South Australia, constituted by Doyle CJ, Duggan and David JJ, heard an appeal against a sentence imposed on the appellant, Mr Sansbury. Mr Sansbury had pleaded guilty to escaping from lawful custody. At the time of the escape, he was on parole. The Parole Board had subsequently cancelled his parole. The dispute on appeal concerned the calculation and commencement of the sentences imposed, and whether the head sentence was excessive.

The court was required to determine several legal issues. These included whether the sentencing judge erred in not reducing the head sentence by the precise period Mr Sansbury had spent in custody in respect of the escaping offence. Further, the court considered whether the judge erred in not deducting from the non-parole period the same allowance for time spent in custody as was deducted from the head sentence. Finally, the court examined whether the judge erred in failing to make a deduction from both the head sentence and the non-parole period for time spent in custody pursuant to the Parole Board's order.

The court reasoned that it was not appropriate for the sentencing judge to backdate the unexpired balance of the sentence in respect of which Mr Sansbury had been on parole. To do so would negate the punishment imposed by the Parole Board. The court found no basis to conclude that the sentencing judge had erred in imposing the sentence, and therefore no basis to disturb it. The failure to backdate a sentence is not an error in itself, but only becomes an error if it results in a sentence that is excessive or otherwise erroneous.

For the reasons given by the Chief Justice, Doyle CJ, Duggan J, and David J all agreed that the appeal should be dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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