R v Staltari - [2007] SASC 337

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v STALTARI
[2007] SASC 337
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice David)
18 September 2007
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES, SENTENCES ON ESCAPE AND COMMENCEMENT OF SENTENCE
Application by DPP for leave to appeal against sentence - defendant convicted of offences while on parole for earlier offences and in breach of the terms of his parole - earlier offences had been committed in the Northern Territory - sentencing Judge was not told that defendant's parole had been transferred and formally registered in South Australia - whether the sentencing Judge sentenced with an incomplete view of the facts and so erred in not applying section 75 of the Correctional Services Act 1982 (SA) - Held: leave to appeal granted and appeal allowed - section 75 of the Correctional Services Act has mandatory application in these circumstances - defendant should have been required to serve the remaining period of his unexpired parole cumulatively upon his sentence - defendant re-sentenced to a head sentence of four years and four months imprisonment with a non-parole period of 18 months - head sentence will commence after defendant has served unexpired period of parole of one year, six months and two days - non-parole period commences immediately.
Parole Orders (Transfer) Act 1983 (SA) s 10; Correctional Services Act 1982 (SA) s 75; Criminal Law (Sentencing) Act 1988 (SA) s 9A, s 18A, s 30 and s 32, referred to.
R v Czubac (2005) 92 SASR 400, considered.

R v STALTARI
[2007] SASC 337
Court of Criminal Appeal: Gray, Sulan and David JJ
THE COURT

This is an application by the Director of Public Prosecutions (SA) for leave to appeal against sentence.
Background
On 9 August 2006, a Judge of the District Court sentenced the defendant to a term of imprisonment of six years with a non-parole period of two years and six months, both backdated to 18 January 2006. The defendant was sentenced in respect of a number of offences that occurred over a period of years including the offences of assault, criminal trespass, theft, unlawful possession and carrying an offensive weapon. The earliest time at which the offences occurred was 17 September 2004. The sentence of six years also included a term of imprisonment following the revoking of a suspended sentence breached by the defendant’s offending.
The application for leave to appeal arises in unusual circumstances.
The antecedent report of the defendant tendered by the DPP to the sentencing Judge during submissions as to sentence disclosed that on 31 December 2000, in the Northern Territory, the defendant committed the offence of robbery while armed with a dangerous weapon. He was sentenced by the Supreme Court of the Northern Territory on 4 June 2001 to imprisonment for five years. A non-parole period of two years and six months…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Staltari

Details

AGLC: R v Staltari [2007] SASC 337
Case: [2007] SASC 337
Decision Date: 18 September 2007

CaseChat Overview and Summary

The case of R v Staltari involved an application by the Director of Public Prosecutions (SA) for leave to appeal against the sentence imposed on the defendant by the District Court. The defendant was sentenced to a term of imprisonment of six years with a non-parole period of two years and six months, both backdated to 18 January 2006. The offences for which the defendant was sentenced included assault, criminal trespass, theft, unlawful possession, and carrying an offensive weapon. The sentencing Judge was not informed that the defendant's parole had been transferred and formally registered in South Australia, a fact that was directly relevant to the sentence to be imposed.

The legal issues in this case centred around the application of section 75 of the Correctional Services Act 1982 (SA). This section mandates that if a person is sentenced to imprisonment for an offence committed while on parole, they must serve the balance of the sentence, or sentences, of imprisonment in respect of which they were on parole. The question was whether the sentencing Judge, who was not aware that the defendant's parole had been transferred and formally registered, erred in not applying section 75 of the Correctional Services Act. The crux of the appeal was whether this oversight constituted an incomplete view of the facts that led to an error in sentencing.

The court granted leave to appeal and allowed the appeal, finding that the sentencing Judge did indeed sentence with an incomplete view of the facts and erred in not applying section 75 of the Correctional Services Act. The mandatory nature of section 75 in these circumstances meant that the defendant should have been required to serve the remaining period of his unexpired parole cumulatively upon his sentence. Consequently, the defendant was re-sentenced to a head sentence of four years and four months imprisonment with a non-parole period of 18 months. The head sentence will commence after the defendant has served the unexpired period of parole of one year, six months, and two days, while the non-parole period commences immediately.

Orders

Orders of the court

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Background

Background to the litigation

This is an application by the Director of Public Prosecutions (SA) for leave to appeal against sentence.Background On 9 August 2006, a Judge of the District Court sentenced the defendant to a term of imprisonment of six years with a non-parole period of two years and six months, both backdated to 18 January 2006. The defendant was sentenced in respect of a number of offences that occurred over a period of years including the offences of assault, criminal trespass, theft, unlawful possession and carrying an offensive weapon. The earliest time at which the offences occurred was 17 September 2004. The sentence of six years also included a term of imprisonment following the revoking of a suspended sentence breached by the defendant’s offending. The application for leave to appeal arises in unusual circumstances. The antecedent report of the defendant tendered by the DPP to the sentencing Judge during submissions as to sentence disclosed that on 31 December 2000, in the Northern Territory, the defendant committed the offence of robbery while armed with a dangerous weapon. He was sentenced by the Supreme Court of the Northern Territory on 4 June 2001 to imprisonment for five years. A non-parole period of two years and six months was fixed. The defendant was released on parole by the Northern Territory Parole Board on 20 September 2003. His parole supervision was transferred to South Australia on 29 September 2003. His parole was formally registered in South Australia on 11 November 2003 pursuant to the provisions of the Parole Orders (Transfer) Act1983 (SA). Section 10(1) of that Act provides: Upon a parole order being registered under this Act, then, subject to this Act, the laws of this State apply –…(b)as if the parolee had been released on parole pursuant to a parole order made under the law of this State (whether or not he was in fact so released) The defendant’s parole term expired on 19 March 2006. The offending, the subject of the present sentence, included offending that occurred while the defendant was on parole and in breach of the terms of his parole. This circumstance gave rise to the operation of section 75 of the Correctional Services Act 1982 (SA) which provides:(1) Where—(a)a person is sentenced to imprisonment for an offence committed while on parole and the sentence is not suspended; or(b)the suspension of a sentence of imprisonment imposed for an offence committed by a person while on parole is revoked,the person is liable to serve in prison the balance of the sentence, or sentences, of imprisonment in respect of which he or she was on parole, being the balance unexpired as at the day on which the offence was committed.(1a) Subsection (1) applies notwithstanding that, at the time of conviction of the person or of the revocation of the suspended sentence, the parole may have expired or been discharged.(2) Where a person referred to in subsection (1) is, at the time of conviction or revocation of the suspended sentence, still on parole, the parole is, by virtue of this subsection, cancelled.The sentencing Judge was not informed that the defendant’s parole had been transferred and formally registered. This was a matter directly relevant to the sentence to be imposed.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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