R v Smith

Case [2014] SASCFC 6

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v SMITH

[2014] SASCFC 6

Judgment of The Court of Criminal Appeal

(The Honourable Justice Sulan, The Honourable Justice Blue and The Honourable Justice Nicholson)

3 February 2014

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES RELATING TO THE ADMINISTRATION OF JUSTICE - OTHER OFFENCES

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - BREACH OF CONDITIONS OF SUSPENSION AND SENTENCE FOLLOWING BREACH

STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - GENERAL APPROACHES TO INTERPRETATION

CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE

Appeal against sentence.  Defendant charged with one count of fabricating evidence and one count of using evidence knowing it to have been fabricated in each case with the intention of influencing the outcome of judicial proceedings pursuant to ss 243(a) and (b) of the Criminal Law Consolidation Act 1936 (SA) respectively.  She pleaded guilty to the offences and was committed to the District Court for sentence.  There were also two applications for enforcement of a previously suspended sentence bond. 

The defendant was sentenced to nine months imprisonment in respect of the fabricated evidence offences.  The Judge revoked the suspension of the previously suspended sentence of two years and four months imprisonment with a non-parole period of 18 months imprisonment and ordered that it be served concurrently with the nine months imprisonment.  The total sentence imposed was two years and four months imprisonment with a non-parole period of 18 months imprisonment.

Whether the sentence imposed was authorised by law on the basis that the Judge failed to review and extend the existing non-parole period.  Whether the Judge was required to to exercise the discretion under s 58(3) and (4) before determining whether to make the new sentence cumulative or concurrent. Whether the Judge erred in failing to exercise the discretion not to excuse the failure to comply with the suspended sentence bond and by not reducing the term of the suspended sentence.

Held (dismissing the appeal):

1. The sentence was authorised by law. Where a person is subject to an existing non-parole period and the person is sentenced to a further term of imprisonment which is ordered to be served concurrently with the existing sentence such that the total head sentence is not increased, s 32(1)(b) of the Criminal Law (Sentencing) Act 1988 (SA) does not require a court to increase the non-parole period (per Sulan J [22]-[26] and per Blue J [58]-[60] and [68], Nicholson J agreeing).

2.  The Judge did not err in his consideration of the sentencing package. The Judge ought to have dealt with the application for enforcement of the bond before sentencing the defendant for the fabricating evidence offences.  However, there was no error as a result of the approach that was taken by the Judge (per Sulan J [31]-[34] and per Blue J [81]-[83], Nicholson J agreeing).     

3. The sentencing Judge properly exercised the discretion pursuant to s 58(3)…

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AGLC
R v Smith [2014] SASCFC 6
Case
[2014] SASCFC 6
Decision Date

CaseChat Overview and Summary

The appeal concerned Karen Lee Smith, who was appealing against a sentence imposed by the District Court of South Australia. Smith had previously been sentenced to a term of imprisonment for drug trafficking offences, which was suspended on the condition that she enter into a bond to be of good behaviour. She subsequently breached this bond by returning positive drug tests. During the proceedings to enforce the bond, Smith submitted a forged letter from a drug and alcohol service, leading to further charges of fabricating evidence. The sentencing Judge revoked the suspension of the original sentence, imposed a concurrent sentence for the fabricating evidence offences, and fixed a non-parole period.

The legal issues before the Full Court of the Supreme Court of South Australia were whether the sentence imposed was authorised by law, whether the sentencing Judge erred in declining to excuse the breach of the bond, and whether the Judge properly exercised his discretion regarding the sentencing package, including the non-parole period. Specifically, the court had to consider the application of sections 32(1)(b) and 58 of the Criminal Law (Sentencing) Act 1988 (SA) in the context of a revoked suspended sentence and new offending.

The Court held that the sentence was authorised by law. It was determined that section 32(1)(b) of the Criminal Law (Sentencing) Act 1988 (SA) did not mandate an increase in the non-parole period when a new concurrent sentence was imposed, provided the total head sentence was not increased. The Court found that the sentencing Judge had not erred in his consideration of the sentencing package, even though the application for enforcement of the bond ought to have been dealt with before sentencing for the fabricating evidence offences. Furthermore, the Court concluded that the sentencing Judge had properly exercised his discretion under sections 58(3) and 58(4)(a) of the Act, and that the sentence for the fabricating evidence offences was not manifestly excessive.

The appeal was dismissed. The Court affirmed that the sentencing Judge had correctly applied the relevant provisions of the Criminal Law (Sentencing) Act 1988 (SA) and had not made any errors in the exercise of his sentencing discretion.

Orders

Orders of the court

Held (dismissing the appeal):

1. The sentence was authorised by law. Where a person is subject to an existing non-parole period and the person is sentenced to a further term of imprisonment which is ordered to be served concurrently with the existing sentence such that the total head sentence is not increased, s 32(1)(b) of the Criminal Law (Sentencing) Act 1988 (SA) does not require a court to increase the non-parole period (per Sulan J [22]-[26] and per Blue J [58]-[60] and [68], Nicholson J agreeing).

2. The Judge did not err in his consideration of the sentencing package. The Judge ought to have dealt with the application for enforcement of the bond before sentencing the defendant for the fabricating evidence offences. However, there was no error as a result of the approach that was taken by the Judge (per Sulan J [31]-[34] and per Blue J [81]-[83], Nicholson J agreeing).

3. The sentencing Judge properly exercised the discretion pursuant to s 58(3) of the Criminal Law (Sentencing) Act 1988 (SA) (per Sulan J [39] and per Blue J [71], Nicholson J agreeing).

4. The sentencing Judge properly exercised the discretion pursuant to s 58(4)(a) (per Sulan J [41]-[42] and per Blue J [76]-[78], Nicholson J agreeing).

5. The sentence in respect of the fabricating evidence offences was not manifestly excessive (per Sulan J [44]-[45] and per Blue J [78], Nicholson J agreeing).

Background

Background to the litigation

The defendant appeals on the ground that the sentence imposed was not authorised by law and that the Judge erred in declining to exercise the discretion to excuse the failure to comply with the suspended sentence bond and reduce the term of the suspended sentence.Background On 10 December 2010, the appellant was sentenced for two offences of trafficking in a controlled drug. She pleaded guilty to the offences and was sentenced to two years and four months’ imprisonment with a non-parole period of 18 months. The sentence was suspended upon the defendant entering into a bond to be of good behaviour for two years and included a condition that she be under the supervision of a community corrections officer and undergo testing for the presence of illegal drugs. The defendant breached a condition of the bond when, on 11 February 2011 and 13 October 2011, she returned positive results for the presence of amphetamine and methylamphetamine in her urine. On 8 March 2012, the Director of Public Prosecutions applied for enforcement of the breached bond based on the positive results to the drug testing. The application was heard by a District Court Judge. At the hearing, the defendant, through her counsel, tendered a letter which purported to be from Drug and Alcohol Services SA and signed by the Head Rehabilitation Officer, Maria Shephard, in support of a submission that the Judge should excuse the breach. The letter stated that the defendant had voluntarily enrolled herself in, and successfully completed, a seven day drug and alcohol detoxification program which included a number of counselling sessions. It further stated that there was a very low level of the defendant reoffending. Prior to the Judge ruling, it was discovered that the letter from Drug and Alcohol Services SA was a forgery. The defendant sent a letter to the Judge’s chambers explaining her reasons for fabricating the letter, citing panic at the prospect of losing her job and her home if the suspension was revoked. On 20 November 2012, the defendant was charged with two offences arising out of the fabricated letter (the “fabricating evidence offences”). The Judge disqualified himself from hearing the Director’s application for the enforcement of the bond. On 17 May 2013, the defendant pleaded guilty to the fabricating evidence offences in the Magistrates Court and was committed to the District Court for sentence. By further application dated 6 June 2013, the Director sought to enforce the 10 December 2010 suspended sentence bond based on the fabricating evidence offences. The defendant admitted that breach before a different Judge of the District Court (“the sentencing Judge”). On 17 June 2013, the defendant was sentenced for the two offences relating to the fabricated letter and for the two breaches of bond. The sentencing Judge imposed one sentence pursuant to s 18A of the Criminal Law (Sentencing Act) 1988 (“the Sentencing Act”) of nine months’ imprisonment in respect of the fabricating evidence offences. The Judge found that there was good reason to excuse the defendant’s breaches of bond relating to the positive drug test results. The Judge granted the Director’s application for enforcement relating to the fabricating evidence offences and cancelled the order suspending the original sentence of imprisonment imposed on 10 December 2010. The Judge ordered that the sentence of two years and four months’ imprisonment be served concurrently with the nine months’ imprisonment. A non-parole period of 18 months’ imprisonment was fixed.Sentencing remarks

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

When the defendant came to be sentenced for the fabricating evidence offences on 17 June 2013, the only powers the sentencing Judge had to interfere with the original sentence, were those contained in s 58 of the Sentencing Act. For the reasons I have given earlier, I do not consider that the Judge erred in exercising those powers. There was no other power, in the circumstances, to reduce the non-parole period of 18 months’ imprisonment.Conclusion I would dismiss the appeal.BLUE J This is an appeal against sentence. The defendant/appellant, Karen Lee Smith, pleaded guilty to fabricating evidence with the intention of influencing the outcome of judicial proceedings[21] and using evidence knowing it to have been fabricated with the intention of influencing the outcome of judicial proceedings.[22][21] Criminal Law Consolidation Act 1935 (SA) s 243(a).[22] Criminal Law Consolidation Act 1935 (SA) s 243(b). The defendant had previously, in relation to a prior offence, been sentenced to a term of imprisonment of 28 months with a non‑parole period of 18 months. This was suspended upon her entering into a bond to be of good behaviour for two years. The sentencing Judge revoked the suspended sentence, declined to reduce the term of the original sentence and, in respect of the new offending, imposed a sentence of imprisonment for nine months to be served concurrently with the existing sentence of imprisonment for 28 months. The Judge fixed a non‑parole period for the combined offending of 18 months. The defendant appeals on the grounds that the sentencing Judge erred by:1.failing to find that there were proper grounds upon which her failure to comply with the conditions of the bond should be excused so as to refrain from revoking the suspension under section 58(3) of the Criminal Law (Sentencing) Act 1988 (SA) (“the Sentencing Act”); [23]2.failing to exercise his discretion to reduce the term of the original sentence (head sentence and/or non‑parole) under section 58(4)(a) of the Sentencing Act; [24]3.failing to increase the existing non‑parole period as required by section 32(1)(b) of the Sentencing Act.[25][23] Ground 3.[24] Grounds 4 and 5.[25] Ground 1. The relevant facts, sentencing remarks and contentions on appeal are set out in the judgment of Sulan J. On the hearing of the appeal, the ground summarised at 3 above was argued first on the assumption that the other grounds of appeal were to fail. It is convenient to deal with that ground first.Duty to extend non‑parole period The defendant contends that it was mandatory under section 32(1)(b) of the Sentencing Act for the Judge to increase the existing non‑parole period from 18 months to a period exceeding 18 months. Section 32(1) of the Sentencing Act provides:(1)Subject to this section, where a court, on convicting a person of an offence, sentences the person to imprisonment, the court must—(a) if the person is not subject to an existing non-parole period—fix a non-parole period; or(b) if the person is subject to an existing non-parole period—review the non-parole period and extend it by such period as the court thinks fit (but not so that the period of extension exceeds the period of imprisonment that the person becomes liable to serve by virtue of the sentence, or sentences, imposed by the court); or(c) if the person is serving a minimum term imposed in respect of an offence against a law of the Commonwealth or is liable to serve such a term on the expiry of an existing non-parole period—fix a non-parole period in respect of the sentence, or sentences, to be served upon the expiry of that minimum term.…

Ratio Decidendi

Legal Principle Established

The defendant makes an alternative contention that, if the original head sentence were not to be reduced, the Judge erred by not reducing the non‑parole period. She relies upon the same matters as in respect of the head sentence. That contention should be rejected for the same reasons.Order of consideration The defendant contends that, if the sentencing Judge was satisfied that special circumstances existed justifying a reduction under section 58(4), the Judge erred by making the new sentence for the new offending concurrent with the existing sentence rather than reducing the existing sentence under section 58(4) and making the sentence for the new offending cumulative. Given my conclusion that special circumstances justifying a reduction in the original sentence did not exist, this contention does not arise. However, if special circumstances justifying a reduction in the original sentence had existed, the Judge ought to have made an appropriate reduction in the original sentence rather than making the new sentence concurrent. Section 58(4) confers upon a court an explicit power to reduce the term of the suspended sentence if it considers that there are special circumstances justifying its so doing. If a court is satisfied that the term of the suspended sentence should be reduced, the court should proceed to make the reduction under section 58(4) rather than adopting a different sentencing technique of making the sentence for the new offending concurrent with the sentence for the original offending. In Heal v Police[36] Duggan J said:[36] (1999) 75 SASR 331.It is appropriate to refer to the procedure which should have been followed by the learned magistrate. He was required to deal first with the breach of bond which was admitted. In the event that there were no grounds which would have enabled the Court to refrain from revoking the suspension of the sentence of imprisonment for 24 months pursuant to s 58(3), the Court was required to order such revocation. However, if the magistrate had been invited to act pursuant to s 58(4), he was then required to consider whether there were special circumstances justifying a reduction in the term of the suspended sentence. This would include consideration as to whether the non-parole period should be reduced.After revoking the suspension of the earlier sentence and sentencing the appellant to further terms of imprisonment, the magistrate was then required to have regard to s 32 of the Sentencing Act. If the non-parole period of the revoked sentence had been reduced pursuant to s 58(4), the reduced non-parole period became the "existing non-parole period" for the purposes of s 32(1)(b).[37]and Lander J said:In my opinion the magistrate erred in adopting the sentencing process that he did.The convictions entered on 8 July 1998 gave rise to a breach of the bond entered into in May 1995 and the magistrate should first have had regard to that breach and the application of s 58 of the Act. Because the bond supported a suspended sentence of imprisonment the magistrate had to consider s 58(3) of the Act and determine whether the failure of the appellant to comply with the conditions of the bond was trivial or whether there were proper grounds upon which the failure could be excused. The breach was not trivial and there were no proper grounds upon which the failure could be excused.Next the magistrate had to determine, in revoking the suspension of the sentence of imprisonment, whether he should exercise any of the powers contained in s 58(4) of the Act and in this case, in particular, whether he should reduce the term of the suspended sentence (s 58(4)(a)).The magistrate could only have reduced the sentence imposed in July 1998 if he had been satisfied that there were special circumstances to reduce that sentence (s 58(4)). No such circumstances were apparent in this case.Having concluded that the head sentence of two years in relation to that bond must stand the magistrate then had to consider whether the sentences of imprisonment that he imposed in relation to the matters before him should have been accumulated with the earlier two-year sentence of imprisonment.[38]Millhouse J agreed with both Duggan J and Lander J.[37] Ibid at [9]-[10].[38] Ibid at [33]-[37].