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 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.
The application for transfer of parole was signed by the defendant and following transfer and registration he was supervised by Correctional Services in South Australia. Neither counsel had been instructed about the registration and transfer of parole. This led the sentencing Judge to proceed under a misunderstanding of facts and the applicable law.
On 5 January 2007, the Parole Board of South Australia wrote to the DPP in the following terms:
We note that the abovenamed defendant was sentenced on 9 August 2006 in the District Court to 6 years imprisonment for various offences. A non-parole period of 2 years and 6 months was fixed.
It would appear that the court was not aware that Fiorino Staltari was subject to a Parole Order when a number of offences for which he was sentenced to imprisonment were committed.
Mr Staltari was sentenced in the Northern Territory Supreme Court, Darwin on 5 June 2001 to 5 years imprisonment for the offence of Aggravated Robbery with a minimum term of imprisonment of 2 years and 6 months. He was released on parole by the Northern Territory Parole Board on 20 September 2003. His parole term (sentence) expired on 19 March 2006.
Mr Staltari’s 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) Act, 1983. Section 10(1) of the Act states:
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 earliest offence committed by the defendant whilst on parole occurred on 17 September 2004. I advise, therefore, that he is liable to serve the unexpired balance of his parole pursuant to the provisions of s75 of the Correctional Services Act.
The balance of the sentence of imprisonment in respect of which Fiorino Michael STALTARI was on parole, being the balance unexpired as at 17 September 2004 is One (1) Year, Six (6) Months and Two (2) Days.
In accordance with s31(2) of the Criminal Law Sentencing Act, in our respectful submission, the sentence of imprisonment imposed on 9 August 2006 should be served cumulatively upon the above mentioned unexpired balance.
We note that the [sic] both the sentence and non-parole were backdated to commence on 18 January 2006. In light of the activation of s75 it is our further submission that the sentence and non-parole period should now commence from the day that the sentence was imposed in accordance with the Ruling in R v Bartels. (1986) 44 SASR 260 Court of Criminal Appeal.
We request that this matter be referred to the Sentencing Court for review.
On 11 January 2007, the DPP advised the solicitors for the defendant of the issue that had arisen and immediately requested that the matter be called on before the sentencing Judge for the making of submissions with a view to rectifying the sentence pursuant to section 9A of the Criminal Law (Sentencing) Act 1988 (SA). That section provides:
(1)A court that imposes a sentence on a defendant, or a court of co-ordinate jurisdiction, may, on application by the Director of Public Prosecutions or the defendant, make such orders as the court is satisfied are required to rectify an error of a technical nature made by the sentencing court in imposing the sentence, or to supply a deficiency or remove an ambiguity in the sentencing order.
(2)The Director of Public Prosecutions and the defendant are both parties to an application under this section.
On 6 February 2007, the matter was listed before the sentencing Judge for submissions on the application. There was an adjournment to meet the convenience of the defendant who was undertaking a particular course in prison and had the matter proceeded before the Court, he would have been unable to continue that course. As a result, submissions were not made until 18 May 2007.
The defendant opposed the application. The Judge ruled that in the particular circumstances section 9A did not empower her to act and provided the following reasons:
It seems to me, having considered recently all of the relevant authorities with regard to the ambit of the powers given to the court under s9A of the Criminal Law (Sentencing) Act and related sections in the Summary Procedure Act 1921, and my attention having been brought this morning to the case of Question of Law Reserved on sentence (1996) 67 SASR 90, in particular to the Chief Justice’s comments at pp.93 and 94 of that case, I am forced to the view that I do not have the power under s9A of the Act to correct the error that has arisen in this case.
My reasons for saying that are that, having heard submissions from both counsel as to the procedure I need to undertake, it seems obvious to me that I will need to exercise afresh the sentencing discretion in relation to Mr Staltari at least in relation to whether the non-parole period ought to be extended.
There is another complication. Once the unexpired parole of one year six months and two days is added to the head sentence, it automatically follows that Mr Staltari will be liable to an increased head sentence. When I sentenced Mr Staltari in August last year, I took into account very many considerations which I thought were relevant at the time and devised a sentencing package in order to ensure that the ultimate sentence arrived at was not crushing for a man in his position. I took the view that, notwithstanding the sad and sorry history of his offending to that point, there was some chance that he may be able to take advantage of an extended period on parole and pull himself out of the cycle of offending and drug taking which he seemed to have fallen into at that time of his life.
For these reasons, some of the head sentences imposed and individual sentences were tailored to achieve the desired result.
In order to correct the error that has now arisen, I can see no other way around the problem, other than to go back to the beginning and resentence Mr Staltari, taking into account the new head sentence and any changed circumstances since August and the current date, that his counsel may wish to put to the court. For instance, it may be of relevance if I were to sentence afresh that Mr Staltari has used his time in prison usefully to attend courses and endeavour to rehabilitate himself. I just do not know about those matters. Although I am aware that this matter was delayed for a period of weeks - indeed, I think months, wasn’t it Ms Matson - to enable Mr Staltari to attend some course? So these things might be relevant on any resentencing exercise.
However, for all of the reasons I have given and particularly in light of the Chief Justice’s comment in Question of Law Reserved, I do not accept that I have the power under s9A of the Sentencing Act to rectify the error and the Director will have to take whatever action as he may be advised, if he wishes to correct it.
Counsel then appearing for the DPP sought instructions as to the course to be followed. Those instructions led to the lodging of this application on 26 June 2007.
Counsel for the defendant accepted the correctness of the background facts set out in these reasons. However, it was submitted that there had been a delay in the DPP’s application for leave to appeal that, of itself, should lead to its rejection. It was said that in the overall circumstances no miscarriage of justice could be shown to have arisen and that accordingly the application should be dismissed.
The submissions of counsel for the defendant in this respect should be rejected. The DPP acted appropriately and promptly in bringing the matter before the Court. On the section 9A application being refused, the application for leave to appeal was deferred to meet the defendant’s convenience so that he could continue steps he was taking towards his rehabilitation. As the defendant had been aware of his transferred status, it cannot be suggested that he suffered any undue prejudice as the result of any delay. Counsel for the DPP submitted that the Judge sentenced the defendant with an incomplete understanding of the facts, and so failed to sentence in accordance with the relevant applicable law. It was in these circumstances that it was submitted that the sentence imposed was inconsistent with the terms of section 75 of the Correctional Services Act.
Counsel for the DPP submitted that in the event that the application for leave was granted and the appeal allowed, this Court should re-sentence the defendant. In doing so it was submitted that regard should be had to section 75 of the Correctional Services Act when re-sentencing. It was otherwise accepted that the Court should have regard to the circumstances put before the sentencing Judge as well as any further submissions that may be made about subsequent events. This submission was opposed by counsel for the defendant. It was contended that if the appeal was to be allowed, the matter should be remitted to the sentencing Judge.
On the hearing of the application, in accordance with the usual practice of the Court, full argument was heard so that in the event that the application was granted the Court could proceed to deal with the appeal forthwith. Counsel made submissions in regard to sentence in the event that this Court decided to re-sentence the defendant.
The conclusion that we have reached is that the DPP should be granted leave to appeal and the appeal allowed. The sentence imposed by the sentencing Judge should be set aside. This Court should re-sentence the defendant. Submissions were made by both counsel at the time of the hearing of the application as to any further matters relevant to sentencing. As a result this Court has before it all relevant material to enable the defendant to be re-sentenced. Before coming to indicate the sentence that we would impose, it is convenient to set out the reasons for our conclusions.
Counsel for the DPP submitted that the sentencing process was defective as the sentencing Judge failed to give effect to the statutory requirements. It was contended that it was not relevant that the sentencing Judge was unaware that the defendant’s parole had been transferred to South Australia. It was pointed out that section 75 of the Correctional Services Act had mandatory application whenever a defendant committed an offence while on parole. In Czubac,[1] Gray and Sulan JJ observed:[2]
When a breach of parole has occurred and parole is cancelled, a defendant must first serve the balance of the unexpired portion of the term of imprisonment, the subject of the cancelled parole. Section 75 of the Correctional Services Act and s 31(2) of the Sentencing Act govern the situation…
…
The effect of these provisions is that a court is obliged when imposing a custodial sentence to direct that the sentence be cumulative on the balance of the unexpired sentence the subject of the breach of parole.
Counsel for the defendant submitted that the sentencing Judge had acted correctly on the information before the sentencing Court and in the circumstances there was no error in the sentencing process.
[1] R vCzubac (2005) 92 SASR 400.
[2] R vCzubac (2005) 92 SASR 400 at [10] (footnotes omitted).
The submissions of the DPP should be accepted. The sentencing Judge proceeded on a misunderstanding of the relevant facts and failed to have regard to statutory provisions that had mandatory application. Section 75 of the Correctional Services Act operated on its terms in any event.
There is a direct conflict between the terms of section 75 and the sentence imposed. Section 75 provides that the unexpired period of the defendant’s parole is to be served first and to commence from the date of sentence. The sentence imposed is to be cumulative on the unexpired period of parole. However, the sentence imposed was backdated to 18 January 2007, which was prior to sentence. No reference was to made about the unexpired period of parole. This conflict should be resolved. The Correctional Services Department and the Parole Board should be in a position to attend to their statutory obligations to the defendant according to law. At the moment there are two conflicting authorities to which they must attend – the Court order, and the Correctional Services Act. The defendant should be sentenced according to law. It is appropriate to grant the DPP leave, and to allow the appeal.
Re-sentencing
The circumstances of the offending, the subject of the sentence imposed by the sentencing Judge, were summarised by the sentencing Judge. There was no challenge to the correctness of her findings concerning the salient features of the defendant’s criminal conduct and his personal antecedents. It was accepted that the reasoning of the Judge on the information before the Court was correct and that the sentence arrived at having regard to that information was within the sentencing discretion. Her Honour’s observations are annexed to these reasons.
A notional head sentence of six years should be fixed for the offending, the subject of these proceedings, including the revocation of the suspended sentence. As the sentence to be imposed for this offending is to be cumulative on the unexpired period of parole, it is appropriate to have regard to time spent in custody that might not otherwise be brought to account. The defendant was taken into custody on 18 January 2006. Accordingly, to the date of this Court’s re-sentencing, a period of 20 months has been spent in custody. A reduction to the otherwise head sentence of six years should be made leading to a revised head sentence of four years and four months. This sentence is the one sentence to be imposed for all offending pursuant to section 18A of the Criminal Law (Sentencing) Act.
As a result, the total period to be served in prison is arrived at by adding to the unexpired portion of parole of one year, six months and two days to the term of imprisonment to be served cumulatively of four years and four months. The total prison term is as a result a term of five years, ten months and two days.
The non-parole period to be fixed is referable to the total period of imprisonment faced by the defendant. Section 32 of the Criminal Law (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) …
...
(2)Where the sentence of imprisonment is imposed for an offence committed during a period of release on parole or conditional release from a previous sentence of imprisonment or detention, the court, in fixing a non-parole period under subsection (1)(a), must have regard to the total period of imprisonment (or detention and imprisonment) that the person is, by virtue of the new sentence and the balance of the previous sentence, liable to serve.
The terms of section 30 of the Criminal Law (Sentencing Act) require the sentencing court to specify the date on which the non-parole period is to commence or is to be taken to have commenced. Section 30(6) provides:
If, on imposing a sentence of imprisonment, the court fails to specify the date on which or the time at which the sentence is to commence or is to be taken to have commenced, the sentence –
(a)will, in the case of a defendant not then in custody, commence on the day on which the defendant is subsequently taken into custody for the offence; or
(b)will, in the case of a defendant already in custody for the offence, be taken to have commenced on the day on which the defendant was last so taken into custody; or
(c)will, in the case of a defendant in custody for some other offence, commence on the day on which the sentence is imposed, unless the sentence is to be served cumulatively pursuant to this Act or any other Act.

The total term of imprisonment to be served by the defendant is five years, ten months and two days. To simply adopt the ratio fixed by the sentencing Judge would be appropriate if the sentence could be backdated. However, that, as observed earlier, cannot be ordered. The sentence is to commence when this Court re-sentences. A reduction has thus far only been made to the head sentence, reducing that sentence from six years to four years and four months. An adjustment needs to be made to recognise that the defendant has served some 20 months of his sentence. An appropriate reduction should be made to the non-parole period. Having regard to this factor, we would fix a non-parole period of 18 months to commence on the day this Court re-sentences.
Having regard to the foregoing reasons, we order that:
1 Leave to appeal be granted.
2 The appeal be allowed.
3The sentence imposed by the District Court on 9 August 2006 be set aside.
4The defendant be re-sentenced by this Court today in respect of all offending. This Court imposes the one sentence – a term of imprisonment of four years and four months. Account has been taken in fixing this sentence of the revoked suspended sentence. A reduction of 20 months has also been made in respect of the time the defendant has already spent in custody.
5The term of imprisonment of four years and four months is to be cumulative on the unexpired portion of parole to be served by the defendant. That unexpired balance is a period of one year, six months and two days and is to be served commencing from the date of the Court’s re-sentencing.
6Having regard to the total term of imprisonment to be served by the defendant of five years, ten months and two days, a non-parole period of 18 months is fixed. This non-parole period is to commence on the day of re-sentencing. The defendant will be eligible for parole on 18 March 2009.
Annexure
Excerpts from the sentencing remarks made on 9 August 2006
You have admitted in court to breaching that bond you entered into in the Adelaide Magistrates Court on 22 July 2004 and now, unless I can find that the circumstances of your breaches were trivial, or some other proper ground, you will be liable to serve that sentence imposed in July of 2004.
I think you realise that there are no proper grounds on which the failure can be excused and the breaches are certainly not trivial. It only stands to reason that I will make an order this morning revoking the suspension of that sentence and it will then follow that you will be liable to serve a term of six years imprisonment, with that non-parole period of two years unless again I can find that there are some special circumstances and reduce that sentence somewhat. I will return to that in a few moments.
Turning now to the offences for which you are to be dealt with by me in this court. You have pleaded guilty to aggravated serious criminal trespass in a non-residential building, one count of theft, and two counts of assault, with the intention to resist lawful apprehension, all committed in the one episode of offending on 17 September 2004. Sadly, I note that that offending occurred less than two months after you entered into the bond in the Adelaide Magistrates Court in July of 2004.
You are liable to serve a maximum term of imprisonment of 20 years for that aggravated serious criminal trespass, 10 years for the theft, and five years for each of the counts of assault with intent to resist lawful apprehension.
The fact is that in the early hours of the morning you broke into the Nairne pharmacy and attempted to get away with about $600 worth of medication from the pharmacy. A concerned neighbour, [S], awoke and tried to stop you leaving the pharmacy. During a struggle with you, you produced a meat cleaver from the backpack you were carrying and hit him in the eye with it. [S] had cuts and bruises including to the right eye as a result of this incident but the physical injuries were far outweighed by the emotional trauma of the whole incident. He suffered from stress, depression and anxiety as a result of this incident.
Another concerned member of the community, [M], who is the victim of the second count of assault with intent to resist lawful apprehension, was driving by and stopped at the very time that [S] was trying to stop you, and he joined in and assisted in restraining you until the police arrived. You swung the meat cleaver at him as well.
You say that you carried the meat cleaver as it is dangerous up there in the local community and you want to protect yourself with a weapon. The fact is, Mr Staltari, that the community up there is made much more dangerous as a result of people like you carrying such dangerous weapons in their backpacks around the streets in the early hours of the morning.
The fact that you used it solely to try and avoid being arrested is not really a mitigating circumstance, as far as I am concerned. Your use of the meat cleaver in this way makes it a most serious aggravating circumstance about that whole episode of offending. It is certainly the most serious episode of offending for which you are to be dealt with this morning.
On 21 December 2004 you committed a theft at the K-Mart at Mount Barker. The maximum penalty for that theft is also 10 years imprisonment.
You were observed making two entries into that shop that day, stealing items like DVDs and toys and taking them back to the car before you were intercepted and arrested for that offence.
The next episode of offending for which you are to be dealt with are the two counts of assaults on [G] and [N] and that charge of failing to comply with a bail agreement on that same date. So for these three offences you are liable to a maximum term of imprisonment of two years in the case of each of the assaults and two years for the failure to comply with the bail agreement or a fine of $10,000.
The facts giving rise to those charges are simply that you went to Mount Barker in breach of an earlier bail agreement. You shouldn’t have been there at all that day. When you saw your former girlfriend [N] with her new boyfriend, [G], you got out of your car and shouted at them and chased them down the road frightening them.
Between 16 June and 28 June, that same year, that’s 2005 we are in, you stole various items from a number of cars, a house and a shed in the Littlehampton and Mount Barker area. The total value of all the property you stole during that month was about $7,500. You pleaded guilty in the Magistrates Court to that charge earlier this year and you are liable to a maximum term of imprisonment for that offence of 10 years.
On the day you were arrested for those offences, the police found you carrying a pocketknife and you were also charged with carrying an offensive weapon because of that pocketknife, which attracts a maximum term of imprisonment of six months or a fine of $2,500.
Finally, in January this year, that’s 2006, you committed an offence of unlawful possession by being found in possession of 17 antanex tablets stolen from the Mount Barker chemist in January of 2006. Your plea to that charge of unlawful possession makes you liable now to a maximum term of imprisonment of two years or a fine of $10,000, or both. Sadly, all of this offending constitutes breaches of the bond you entered into in the Magistrates Court in July of 2004.
Finally, I deal with the offence of breaking and entering a building contrary to s.170 of the Criminal Law Consolidation Act, as it then was. That offence is, I acknowledge, somewhat out of sequence with all of the most recent offending that I have to deal with. I am told it was as a result of some forensic evidence which connected you to the scene of that break-in of one [K], that you have now pleaded guilty to that offence of breaking and entering the building and stealing a number of items of personal property valued at about $600. That offence occurred as long ago as 1999, I think. Fortunately, [K] was not at home, having left the house to go to work and she discovered the break-in when she got home. The offence, as it then was, in 1999, attracted a maximum term of imprisonment of eight years.
…
You are now 27 years old. You have never been married and you have no children. It seems that you have had some relationships but they seem to have been with other people, who I infer also seem to have been involved either with excessive alcohol consumption or illicit drugs. Indeed, as I have already pointed out, two of the offences which you have pleaded to arose out of your breakdown really of your relationship with [N].
I have read Dr Raeside’s report of 6 April this year. There appears to be no apparent reason why you descended at a very early age into abusing illicit drugs, starting with marijuana and amphetamines and graduating to heroin. I am really quite at a loss to understand it, Mr Staltari. I note it was at this stage when you were addicted to heroin that you were convicted for the most serious offence on your criminal record, which is the aggravated robbery committed in company with someone else when you were living in Darwin. The Darwin Supreme Court sentenced you to five years imprisonment, with a non-parole period of two and a half years.
Once again, it is regrettable to note that your current offending not only breaches the bond you entered into in the Magistrates Court in Adelaide in 2004 but really constitutes a breach of the parole that you were granted as a result of serving that sentence in Darwin.
Your history since leaving school has been chequered, but you have managed, I note, to hold down jobs.
You are obviously not stupid. Indeed, at one stage you went to Queensland and worked for your grandfather and apparently you had the opportunity to take over a computer business from him. For whatever reason, and it is very sad, it seems you were not up to that opportunity and you came back to Adelaide and then it seems you fell into some very bad habits.
It is obvious that your addiction to illegal drugs has led you into some of the offending which appears on your criminal record.
It appears from the report of Dr Raeside that you have been on the methadone program whilst in custody and even I note before you went into custody, indeed as I read this report, it seems that you went on the methadone program sometime last year, after that most recent spate of offending which brings you here.
Since you have been in custody you have obviously had the time to reflect, and I accept that you are now contrite for the distress, upset and inconvenience that you have caused to your many victims by your criminal actions, which seems to range from dealing with or stealing from people’s cars whilst they are parked in the driveway at night to actually breaking into the chemist and stealing dangerous prescription drugs.
Even as your life has gone downhill, it seems you do still have a loving and supportive family, who are prepared to stand by you and assist you in whatever way they can, even whilst you are in custody and when you come out of gaol. You would do well to reflect on that for the remaining time you must spend in custody and resolve to take advantage of that when you are next paroled because if you do not you are at risk now of having your life simply punctuated by repeated episodes of gaol and offending and gaol, and it seems to me you are far too intelligent to allow your life to slip away like that.
I turn now to the appropriate sentence or sentences which I must impose for these offences. As I said at the beginning I must sentence you against the background of that suspended sentence in 2004. It seems on that occasion you were either given a very severe head sentence or a very merciful non-parole period, or perhaps both because the court there sentenced you to six years imprisonment with a two year non-parole period. As I have said I do not consider that there are any proper grounds in which I can excuse your failure to comply with the terms of that bond and I, therefore, estreat the bond and revoke the suspended sentence. This means that you are now liable to serve six years head sentence and two years non-parole period.
I turn now to sentence you on each of the current matters. I should say at the outset that in order to achieve what I regard as an appropriate sentence and to ensure that the ultimate sentence you receive is not so crushing as to deprive you of any hope I have decided to utilise the provisions of s.18A of the Criminal Law (Sentencing) Act with regard to each group of offending and also to adopt your counsel’s submissions that some of the offences at least should be made concurrent with each other.
Finally, I will, in sentencing you, apply the principle of totality. Because of the original sentence which has now been activated it has been very difficult to achieve what I consider to be a just result by simply making offences concurrent because it has been necessary to impose for each episode of offending appropriate sentences which actually reflect the criminality of your conduct on each occasion.
For the four offences committed on 17 September 2004, that is the aggravated serious criminal trespass in a non-residential building, the theft and the two counts of assault with intent to resist, but for your plea of guilty I would have imposed a head sentence of two years and six months. In the light of your pleas of guilty I impose a head sentence of two years. That sentence will be cumulative on the sentence of six years which you are now liable to serve by virtue of the revocation of the suspended sentence.
For the offence of unlawful possession committed between 11 and 17 January 2006, but for your plea of guilty I would have imposed a head sentence of six months. In the light of your plea of guilty I impose a head sentence of four months. That sentence will be concurrent on the sentence I just imposed for the four offences on 17 September 2004.
For the offence of theft committed between 16 and 28 June 2005, but for your plea of guilty I would have imposed a head sentence of 15 months. In the light of your plea of guilty I impose a head sentence of 12 months.
For the offence of carrying an offensive weapon on the same date you are convicted without further penalty. The sentence I have just imposed will be concurrent with the other sentences I have just imposed.
For the three offences committed on 27 May 2005, being the two common assaults and the failure to comply with the bail agreement, utilising the provisions of s.18A of the Criminal Law (Sentencing) Act, I impose one sentence of three months for those three offences. But for your pleas of guilty that sentence would have been four months. Once again this sentence will be concurrent with the others.
For the offence of theft on 21 December 2004 at the Mount Barker K-Mart I impose a head sentence of two months. But for the plea, the head sentence would have been three months. That sentence will be concurrent with the other sentences just imposed.
For the offence of breaking and entering contrary to s.170 of the now repealed Criminal Law Consolidation Act section which dealt with breaking and entering but for your plea of guilty I would have imposed a head sentence of nine months. In the light of your plea of guilty I impose a head sentence of six months. Once again, that sentence will be concurrent with the sentences I have just imposed. The net effect of the sentences I have just imposed is that you would have been liable to a total head sentence of eight years.
I consider for a man of your age and in all of the circumstances such a head sentence is crushing. A result of the fact that you are now liable to serve that head sentence of six years has, in a sense, skewed the sentences that I consider I must impose for your current offences. It probably does not matter whether I formally reduce the head sentence on the revoked sentence from six years to four or simply tell you that now by applying the principle of totality I intend to reduce the total head sentence that you are liable to serve by two years to bring back the overall head sentence for you to six years. One way or another I consider that a total head sentence to be served of six years is appropriate.
It remains for me now to set a non-parole period having regard to all of these circumstances.
I note that you have been in custody since 18 January this year. I am able to backdate the sentence to be served from that day and I intend to do that.
In setting the non-parole period I am taking into account that although your prognosis, particularly from reading Dr Raeside’s report, does not appear to be particularly good, you are still a relatively young man, you have the support of a loving and supportive family and there is still hope for you that if you can pull yourself together and have the strength to get off the drugs and stay off the drugs you will, and are, capable of leading a law-abiding and productive life. In all of the circumstances I consider a non-parole period of two and a half years to be appropriate.
The head sentence of six years and the non-parole period of two and a half years, that is two years and six months, will both be backdated to 18 January 2006 when you were taken into custody. Do you understand the total sentence you have to serve now? Six years with a two and a half year non-parole period, backdated to 18 January this year.
I hope you take advantage of the relative leniency of the sentence I have just imposed and manage to get on with your life as soon as possible when you get out on parole.