R v Smith (No 2)

[2014] SASCFC 9

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v SMITH (No 2)

[2014] SASCFC 9

Judgment of The Court of Criminal Appeal

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

13 February 2014

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

Held (the Court): Since delivering the Court's reasons in R v Smith [2014] SASCFC 6, the decision in R v Byron; R v Earley (1992) 59 SASR 132 has come to the attention of the Court. Byron & Earley's case supports the reasons of Sulan and Blue JJ in R v Smith [2014] SASCFC 6.

R v SMITH (No 2)
[2014] SASCFC 9

Court of Criminal Appeal:       Sulan, Blue and Nicholson JJ

1. THE COURT:  Since delivering the Court’s reasons in this matter, the decision in R v Byron; R v Earley,[1] has come to the attention of the Court. In that case, King CJ (with whom Cox and Matheson JJ agreed) considered section 32(1) of the Criminal Law (Sentencing) Act 1988 (SA).

   [1] (1992) 59 SASR 132.

2. The defendants were each serving a sentence of life imprisonment for murder.  Byron was subject to a non-parole period of 33 years and Earley was subject to a non-parole period of 18 years.  They were convicted of wounding with intent to do grievous bodily harm upon a fellow prisoner who they assaulted while serving their sentences.

3. The District Court Judge sentenced both defendants to imprisonment for five years, and ordered the sentence to be cumulative upon the sentence of life imprisonment. King CJ observed that that pare of the sentence was “without meaning”. The District Court Judge declined to increase the defendants’ non-parole periods. The Director of Public Prosecutions applied for leave to appeal on the ground that the sentencing Judge was obliged to increase the non-parole periods in each case. The first question which arose was whether section 32(1)(b) imposes a mandatory obligation upon a sentencing Judge to increase the non-parole period, such that the Judge did not have power to refrain from increasing the period. Section 32(1)(b) was in the same terms as the section which we considered in this appeal and in the same terms as consider by the Court in Heal v Police[2] and R v Shepperbottom.[3] 

   [2] (1999) 75 SASR 331.

   [3] (2001) 121 A Crim R 69.

4. King CJ observed:[4]

   Read completely literally, par (b) imposes an obligation upon the sentencing judge, in the circumstances there specified, to extend the non-parole period and does not provide a power to refrain from so extending the period.  I think it is unlikely, however, that that was the intention of the draftsman.

   I think that a reasonable interpretation of the intention of the draftsman as disclosed by the language of the paragraph, is that the words “if any” were intended to follow the word “period”, so that the judge is entitled to refrain from extending the non-parole period or to extend it by such period as he thinks fit.

   King CJ’s interpretation of the section was in accord with the approach favoured by Doyle CJ in Shepperbottom, but which he declined to apply, deferring to the interpretation that the Court had expressed by way of obiter dicta of Heal v Police[5] that section 32(1) requires a sentencing Judge to increase the non-parole period.

   [4]    R v Byron & Earley (1992) 59 SASR 132 at 134-5.

   [5] (1999) 75 SASR 331.

5. King CJ concluded that, given the circumstances of the new offending, it w3as an erroneous exercise of the discretion for the sentencing judge not to increase the non-parole periods.  The Court increased the non-parole of each defendant by 4 years to 37 years and 22 years respectively.

6. In Heal and Shepperbottom, no reference was made to the case of Bryan & Earley.  If the Court had been referred to Byron & Earley’s case in Shepperbottom, the Court would have been faced with an earlier decision of the Court which articulated a contrary interpretation of the section to that advanced in Shepperbottom.

7. The decision in Bryon & Earley supports this Court’s decision in Smith.

8. Having had the decision of Bryon & Earley brought to our attention, it is appropriate for us to publish supplementary reasons to those deliver on 3 February 2014.  Having regard to Bryon & Earley’s case, we are of the view that it supports the reasons of Sulan and Blue JJ in this case.