R v Storr - [2005] SASC 394

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v STORR
Judgment of The Honourable Justice Gray
28 October 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - DISPARITY - CO-OFFENDERS
Application for leave to appeal against sentence – applicant convicted of serious criminal trespass in a place of residence, theft, two counts of deception and attempted deception – sentenced to one term of imprisonment of three years to be cumulative on the unexpired portion of a non-parole period of four years, 11 months and 26 days – leave to appeal sought on grounds that the sentence imposed was manifestly excessive; the sentence did not take adequate account of the time spent in custody on remand awaiting trial and sentence; the sentence lacked parity with that imposed on the applicant’s co-offender who had pleaded guilty to the subject offending as well as numerous other offences; and the sentence did not take adequate account of the applicant’s contrition.
Consideration of principles relating to sentencing co-offenders – discussion of authority dealing with difficulty of taking account of unexpired periods of parole and suspended sentences.
Held: application for leave to appeal refused – sentence imposed not arguably manifestly excessive – sentencing Judge had adequate regard to all factors relevant to sentencing – circumstances of co-offender different from those of applicant such that there was no arguable disparity between the sentences imposed.
Criminal Law Consolidation Act 1935 (SA) s 134, s 139, s 270A and s 170; Criminal Law (Sentencing) Act 1988 (SA) s 10(f), s 30 and s 32, referred to.
R v Czubak [2005] SASC 287; Lowe v R (1984) 154 CLR 606; Postiglione v R (1997) 189 CLR 295; The Queen v MacGowan (1986) 42 SASR 580; R v Cox (1996) 66 SASR 152; R v Bartels (1986) 44 SASR 260; R v Coleman [2001] SASC 229, considered.

R v STORR
[2005] SASC 394
Criminal (Application for Leave to Appeal):
GRAY J:
Background

This is an application for leave to appeal against sentence.
The Convictions and Sentence
On 5 May 2005 the applicant, Darren Leslie Storr, was convicted by jury verdict of the offences of serious criminal trespass in a place of residence,[1] theft,[2] two counts of deception[3] and attempted deception.[4]
[1] Section 170(1) of the Criminal Law Consolidation Act 1935 (SA).
[2] Section 134(1) of the Criminal Law Consolidation Act 1935 (SA).
[3] Sections 139 and 270A of the Criminal Law Consolidation Act 1935 (SA).
[4] Sections 139 and 270A of the Criminal Law Consolidation Act 1935 (SA).
On 8 July 2005 the applicant was sentenced by a Judge of this Court to a term of imprisonment of three years. This term was cumulative on the unexpired portion of a non-parole period of four years, 11 months and 26 days. Thus the total term of imprisonment to be served by the applicant was seven years, 11 months and 26 days. The Judge fixed a non-parole period of three years and six months. Both the head sentence and the non-parole period were to commence from the date of sentence, 8 July 2005.
When fixing the term of three years imprisonment for the subject offending, the sentencing Judge reduced his notional starting point by 15 months to take account of the time that the applicant had spent in custody, in addition to making an undisclosed reduction for other mitigatory factors.
In ordering that the total head sentence and the non-parole period commence from the date of sentence, 8 July 2005, the sentencing Judge brought to account all time spent in custody to that date.
The proposed grounds of appeal are as follows:
-the sentence imposed is manifestly excessive;
-the sentence does not take adequate account of the time spent in custody on remand awaiting trial and then sentence;
-the sentence is inconsistent with the sentence received by the co-accused for this offence and a number of others so as to give rise to a justifiable sense of grievance; and
-the sentence does not take adequate account of the applicant’s contrition as exhibited in the letters from the applicant to the victims and the Court.
The sentencing process can be difficult and confusing when the Judge is faced with a defendant who has an unexpired period of parole to serve. Attention was drawn to the convoluted nature of the legislative provisions that govern this aspect of sentencing in Czubak[5]. As lawyers and judges find this aspect of sentencing difficult and at times confusing, it is not surprising that the layperson in the position of the applicant would also be confused. For this reason I have addressed this application in some considerable detail.
[5] R v Czubak [2005] SASC 287.
It became apparent during the course of submissions on this application that counsel for the applicant had not fully understood the way in which the sentences of the applicant and his co-offender, Vanessa Booth, had been constructed. The argument was developed on the simplistic basis that each had received a head sentence of three years in respect of their offending; that Ms Booth was being sentenced for a large number of other unrelated offences and that accordingly there was, in the circumstances, an unacceptable lack of parity.
Circumstances of the Offending
On 16 December 2003 the applicant entered a family home for the purpose of committing theft. A daughter of the family was in the house when the applicant knocked on the door but she left the premises before the applicant entered. The applicant entered the house and stole a purse and wallet.
The applicant was jointly charged with Ms Booth, who pleaded guilty to these and a number of additional offences. Ms Booth, on her plea, admitted that she acted as a lookout upon the applicant’s entry into the premises. The applicant was later involved in one unsuccessful and two successful attempts by Ms Booth to use credit cards stolen by the applicant.
Approach of the Sentencing Judge
When sentencing, regard was had to the applicant’s criminal antecedents, which included some 21 break and enter or criminal trespass offences between 1991 and 1998. In relation to offences committed in 1998, the applicant had been sentenced to a term of imprisonment of nine years and six months, with a non-parole period of four years. The applicant was on parole at the time of the subject offences.
The sentencing Judge had regard to the applicant’s personal circumstances, including his difficult childhood, his heroin addiction and his relationship with the co-accused, Ms Booth. The following observations were made concerning Ms Booth:
I have read the sentencing remarks of Judge David and I note the sentence which he imposed in the case of Ms Booth which was for a much larger number of offences. I have had regard to that sentence but it must be said that there are differences between her case and yours, including your history, her pleas of guilty, including what Judge David called an expression of contrition which was genuine and “refreshing” and her antecedents. It is likely that Judge David took a merciful approach in her case.
The sentencing Judge considered that the applicant at the time of trial had demonstrated no contrition or remorse for his offending. The Judge noted that the challenge to the charges and that the alternative account put forward by the applicant was rejected by the jury. However, reference was also made to letters received by the Court prior to sentencing wherein the applicant expressed some degree of contrition and remorse for his conduct.
The sentencing Judge had regard to the applicant’s prospects for rehabilitation. The applicant’s relative youth and the period of five years spent drug free were said to be favourable to those prospects. However, the applicant’s serious criminal antecedents and history of returning to drug use were also noted. The Judge was of the view that it was “appropriate to be somewhat guarded” when assessing the applicant’s prospects for rehabilitation.
Issues Advanced on the Application for Leave to Appeal
Parity
As earlier observed, the primary ground advanced by the applicant was that his sentence lacked parity with that imposed on Ms Booth.
Sentencing of Ms Booth
Ms Booth pleaded guilty to 59 counts of dishonesty and associated offences including the offences committed jointly with the applicant.
On 12 May 2005, a Judge of the District Court sentenced Ms Booth to 9 years, 8 months and 24 days imprisonment with a non-parole period of 3 years and 6 months. The sentence was backdated to 23 August 2004. This sentence comprised:
-outstanding parole of 3 years, 11 months and 24 days;
-plus 9 months being a period previously imposed as part of a suspended sentence that was revoked by the sentencing Judge on 23 August 2004 (4 October 2001 bond);
-plus 2 years being a period previously imposed as part of a suspended sentence that was revoked by the sentencing Judge on 12 May 2005 (8 August 2001 bond);
-plus 3 years for the fresh offences.
The District Court Judge concluded that 3 years imprisonment was the appropriate penalty for the fresh offences after:
-reducing the notional starting point by 8 months to take account of time spent in custody by Ms Booth on the fresh offences alone (the 8 months represented the period spent in custody between 16 December 2003 and 24 August 2004);
-reducing the notional starting point by a further 2 years on account of Ms Booth’s pleas of guilty and contrition, and
-reducing the sentence by a further year so as to avoid the imposition of a crushing penalty.
Consequently, the notional starting point for the fresh offending, that is the offending referred to above, was 6 years and 8 months.
Ms Booth’s offending occurred between 31 December 2001 and 16 December 2003. During this period, she was on parole for a series of dishonesty offences for which she was convicted on 26 November 1998. The District Court Judge considered this to be an aggravating factor of Ms Booth’s offending.
The District Court Judge considered Ms Booth’s conduct to be one course of criminal behaviour and proceeded to impose the one term of imprisonment for all of her offending. Regard was had to the time Ms Booth had spent in custody and her pleas of guilty.
The District Court Judge further considered the principle of totality, taking into account the fact that the period to be served in relation to the 59 offences would be cumulative upon the period of six years, eight months and 24 days. Regard was also had to Ms Booth’s personal background, including circumstances of child abuse, drug addiction and teenage pregnancy. The Judge observed:
I am told that you have tried through therapist and social workers to come to grips with your past and the abuse that you received and I am told that your addiction to heroin rapidly took control of you and these offences are typical of the mania caused by heroin addiction. I reiterate, however, sad as that is and tragic as that is, that can be no excuse. I am told that you have been in custody for something like 18 months and you have tried to make progress with your past as far as you being sexually assaulted is concerned and also you feel as though you have weaned yourself off heroin.
I bear all of these factors in mind by way of background. I especially bear in mind and will give you a discrete benefit for the fact that you have pleaded guilty and shown genuine contrition. It is refreshing to hear someone through their counsel say they admit how horrendous their crime has been and how they are ashamed of it. You have done that.
When fixing the non-parole period, the District Court Judge had regard to Ms Booth’s personal circumstances and a period of eight months spent in custody otherwise unaccounted for in the sentencing process. A non-parole period of three years and six months was fixed, to commence on 23 August 2004. The Judge observed:
In setting a non-parole period I can bear, and I do bear in mind those matters personal to yourself: your horrific background and the difficulties you have had with your life and your attempts to get your life in order and your attempts to deal with your horrific past. I also, once again, take into account the period of eight months unaccounted for that you have spent in custody and I set a non-parole period of three years and six calendar months commencing from 23 August 2004.
Failure to Take into Account Relevant Differences
It was the applicant’s contention that he and Ms Booth each received head sentences of three years imprisonment. It was submitted that Ms Booth’s criminal antecedents were much more serious than the applicant’s. Ms Booth’s antecedents involved more than 157 offences including more than 50 dishonesty offences. These figures were compared to the applicant’s antecedents of some 57 offences, including some 30 dishonesty offences. It was also submitted that Ms Booth faced 59 charges whereas the applicant only faced five. As a consequence, counsel for the applicant submitted that the imposition of a head sentence of three years imprisonment on the applicant in respect of the subject offending and on Ms Booth in respect of all of her offending led to a lack of parity in the sentencing. In those the circumstances, the applicant was said to have suffered a justifiable sense of grievance.
Counsel for the applicant contended that when the applicant’s criminality was compared to that of Ms Booth, the sentence imposed in respect of the applicant’s offending ought to be reduced in order to avoid disparity.
Applicable Principles
The High Court discussed the principles of parity of sentencing in Lowe.[6] The Court there considered whether a Court of Criminal Appeal should have reduced the higher of two sentences on the ground that there was an inexplicable disparity between that sentence and the sentence of a co-offender, although the effect of the reduction would be to render the sentence manifestly inadequate. The majority held that disparity between sentences was not an error in itself, although it could suggest that there was an error in one of the sentences. It was observed that a sentence should be reduced to avoid disparity, but not if that reduction would result in exposing the sentence to the criticism that it was manifestly inadequate when compared to the level of criminality of the conduct involved. Gibbs CJ observed: [7]
It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account. … It may be said that the very existence of the disparity reveals that an error must have been committed, but I would prefer frankly to acknowledge that the reason why the court interferes in such a case is that it considers that the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done. The decision whether the existence of a disparity calls for intervention is a matter which lies very much within the discretion of the Court of Criminal Appeal.
[6] Lowe v R (1984) 154 CLR 606.
[7] Lowe v R (1984) 154 CLR 606 at 609-110.
In Postiglione,[8] Dawson and Gaudron JJ, in a joint judgment, restated the parity principle as follows:[9]
The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error. Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe v The Queen, recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to "a justifiable sense of grievance". If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options.
Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality.
[8] Postiglione v R (1997) 189 CLR 295.
[9] Postiglione (1997) 189 CLR 295 at 301-302 (footnotes omitted).
In this Court, in MacGowan[10] King CJ outlined the basic principles regarding parity in sentencing co-offenders as follows:[11]
1.Where two or more persons are sentenced by the same judge for the same crime or crimes the sentences imposed on them should be proportionate to their respective degrees of culpability and to the various personal factors of aggravation and mitigation. Any distinctions in the sentences imposed should fairly reflect differences in the respective degrees of culpability and the circumstances of the offenders and should be explained by the sentencing judge. Unjustified disparities will be rectified by the Court of Criminal Appeal on appeal by the Attorney-General or the offender even though the sentence under review, considered apart from disparity, might be regarded as within the permissible sentencing range.
2.Sentences imposed by different judges on co-offenders should also be proportionate to the respective degrees of culpability and the individual circumstances of the co-offenders. In such circumstances, a sentencing judge should ascertain the punishment which has been imposed upon any co-offender previously sentenced. He should endeavour to assess a sentence which fairly reflects any relevant distinctions. If, however, the earlier sentence is, in the opinion of the judge imposing the subsequent sentence, outside the range of sentences properly applicable to the case, he may legitimately impose what he regards as the appropriate sentence, leaving any correction of disparity to the Court of Criminal Appeal. The sentencing judge should give reasons explaining any disparity between the sentence which he imposed and earlier sentences imposed on co-offenders.
3.Marked disparity of sentences imposed upon co-offenders by different judges is a ground upon which the Court of Criminal Appeal may intervene on an appeal by the Attorney-General or an offender. If both sentences are within the maximum authorized by law and are within the range of sentences properly open on the facts of the case, the Court of Criminal Appeal is not bound to intervene. In such circumstances disparity, although a ground for interference, will not necessarily lead the Court of Criminal Appeal to interfere. It is matter for the discretion of the Court. There may be considerations against interference. The protection of the public may require the higher sentence to stand. The lower sentence may be so inadequate that to establish parity may be felt to compound the error in a way which would be unacceptable to the public conscience. The sense of grievance experienced by the offender may have to be tolerated in the public interest. But in the absence of strong countervailing considerations, the Court of Criminal Appeal will interfere to eliminate marked disparities which cannot be justified in the circumstances of the case.
[10] The Queen v MacGowan (1986) 42 SASR 580.
[11] The Queen v MacGowan (1986) 42 SASR 580 at 582-583.

Just as a lenient sentence imposed on one co-offender may give rise to an acceptable degree of difference in sentences, so may differing criminal antecedents. In Cox,[12] the Court of Criminal Appeal considered the parity of sentences imposed on co-offenders, one of whom had a considerably more serious criminal history than the other. Doyle CJ, with whom Matheson and Debelle JJ agreed, observed: [13]
There is a marked disparity between that sentence and the sentence imposed upon the appellant, but if that disparity is justified by the appellant’s record, it must be permitted to stand. Otherwise, a hardened offender sentenced with a new offender would not receive an appropriate sentence. I do not understand the principles stated by the High Court in Lowe v The Queen (1984) 154 CLR 606 to require a reduction in a sentence when the disparity between it and a sentence imposed upon a co-offender is justified by significant differences in their antecedents. As I understand the principle it applies when, although the higher sentence cannot on its face be said to be erroneous or excessive, there is no identifiable factor in the sentencing process which objectively assessed supports the different approach. If there are factors which support different treatment then, to use expressions in the authorities, there can be no justifiable sense of grievance on the part of the offender who receives the heavier sentence, no appearance of unfairness to the community. This is because, if “… other things are equal persons concerned in the same crime should receive the same punishment; and where other things are not equal a due discrimination should be made”: R v Tiddy [1969] SASR 575 at 577; R v Kite (1971) 2 SASR 94 at 95.
Conclusion on Parity
[12] R v Cox (1996) 66 SASR 152 at 159.
[13] R v Cox (1996) 66 SASR 152.
At a superficial level one can understand the applicant being left with the impression that Ms Booth had received the same head sentence as himself in respect of the subject offending, whereas Ms Booth had been sentenced in respect of the subject offending and a further 54 counts. Had this been so, the applicant may have had an arguable case in respect of lack of parity. However, this is not correct.
As can be seen from the sentencing remarks in relation to Ms Booth, factors personal to Ms Booth, coupled with her pleas of guilty and genuine expressions of contrition and remorse were material factors when determining her sentence. Those factors are not shared by the applicant. In the applicant’s case, the charges were contested and the matter proceeded to trial. His expressions of contrition and remorse were only received by the Court at the time of sentencing. In addition, the sentencing process undertaken in relation to Ms Booth required a complex analysis of outstanding parole and revocation of suspended sentences, which gave rise to a need to consider the principle of totality and arrive at a head sentence and non-parole period that was not crushing. In light of these circumstances, it is both difficult and unhelpful to attempt to compare the sentences imposed in relation to the offending for which Ms Booth and the applicant were charged as co-offenders.
The earlier analysis of the two sentences demonstrates that substantially different sentences were imposed. The sentence imposed on Ms Booth was substantially greater than that imposed on the applicant.
Ms Booth’s sentence was notionally fixed at six years and eight months with reductions then being made of two years for her pleas of guilty, eight months on account of time spent in custody and one year on account of the totality principle. This led to the head sentence of three years to be served cumulatively on the unexpired portion of the non-parole period.
In the case of the applicant, the notional starting sentence for his offending was four years and three months. There was no reduction on account of any plea - there had been no plea of guilty. A reduction of 15 months was made on account of time spent in custody. The resultant head sentence of three years was to be served cumulatively on the unexpired portion of the non-parole period.
The true sentence to be imposed is six years and eight months as against four years and three months. Once this analysis is understood, there is no arguable case for lack of parity. No disparity giving rise to a justifiable grievance on the part of the applicant has been demonstrated.
Account of Time Spent in Custody
A further complaint raised by the applicant is that the sentence imposed failed to take adequate account of the time spent in custody on remand awaiting trial and then sentence.
In a letter to the Director of Public Prosecutions dated 18 May 2005 the Secretary of the Parole Board of South Australia reported that the applicant had been paroled on 26 February 2003 and his parole was due to expire on 23 March 2009. It was further reported that:
The balance of the sentence of imprisonment in respect of which [the applicant] was on parole being the balance unexpired as at 16 June 2003 is 5 years, 5 months and 26 days. The balance unexpired as at 16 December 2003 is 4 years, 11 months and 26 days.
On 15 September 2003 the Parole Board issued a warrant for the arrest of [the applicant] for breach of parole conditions by failing to report on 4 July 2003 or thereafter. This warrant was executed on 16 December 2003. After being interviewed by the Parole Board on 11 March 2004 [the applicant] was ordered to serve from 16 December 2003 until 25 March 2004 pursuant to section 74 of the Correctional Services Act.
In accordance with R v Panagiotidis ruling the period served from 16 December 2003 until 25 March 2004 was deducted in calculating the balance of cancelled parole to be served.
[The applicant] has been held in custody on remand since 25 March 2004 in relation to the offences currently before the court.
Section 74 of the Correctional Services Act 1982 (SA) provides the Parole Board with the authority to revoke parole following breach and to order that the person serve the sentence of imprisonment in respect of which he or she was released on parole. The section relevantly provides:
(1)If the Board is satisfied that a person who has been released on parole has, while on parole, breached a condition of the parole (not being a designated condition), the Board may, by order, direct that the person serve in prison the sentence, or sentences, of imprisonment in respect of which he or she was on parole for such further period as the Board thinks appropriate, but not exceeding—
(a) the period between the day on which the breach occurred and the date of expiry of the parole; or
(b) six months,
whichever is the lesser.
(1a)Subsection (1) applies notwithstanding that, at the time of finding the breach proved, the parole has expired or been discharged.
As can be observed from the above letter from the Parole Board, the applicant had been in custody since 16 December 2003. However, he had been held in custody on remand in relation to the subject offending since 25 March 2004. The period of three months and 10 days spent in custody, being the period from 16 December 2003 to 25 March 2004, was time served in satisfaction of a determination made by the Parole Board pursuant to section 74 of the Correctional Services Act. This period was taken into account when calculating the applicant’s outstanding parole. As a result, the applicant spent a total period of some 15 months in custody in relation to the subject offences before being sentenced on 8 July 2005. The sentencing judge took this period of time spent in custody into account when imposing a head sentence on the applicant. The judge observed:
Your outstanding parole period is 4 years, 11 months and 26 days. You have been in custody since 16 December 2003 but for present purposes the relevant date is 24 March 2004. In that regard I refer to the letter from the Parole Board dated 6 June 2005. The unexpired balance of the parole period commences from today. You have been in custody for a period of about 15 months and I must and do take that into account in fixing the head sentence for the subject offences and the non-parole period.
…
I propose to impose one sentence of imprisonment for all five offences of three years (s 18A CLSA). In fixing that period I have taken into account the above matters, including the period you have spent in custody. That period will run from the end of four years, 11 months and 26 days from today, a total of seven years, 11 months and 26 days from today. Again, having regard to the above matters, including the time you have spent in custody, I fix a non-parole period of three years and six months commencing from today.
The sentencing Judge correctly took into account the time the applicant had spent in custody in relation to the subject offences when fixing the head sentence and non-parole period. The period of some three months spent in custody as a result of an order of the Parole Board pursuant to section 74 of the Correctional Services Act was taken into account when calculating the applicant’s outstanding period of parole. No error in sentencing approach has been identified. There is no substance in the applicant’s complaint.
Breach of Parole
As the applicant’s offending occurred whilst he was on parole, it was appropriate for the sentencing Judge to order that any sentence imposed in relation to the subject offending be cumulative on the applicant’s outstanding period of parole. The Court of Criminal Appeal has recently considered the application of section 75 of the Correctional Services Act and section 31(2) of the Criminal Law (Sentencing) Act 1988 (SA) and the appropriate approach to incorporating breach of parole into the sentencing process.[14] In Czubak it was observed:[15]
[14] R v Czubak [2005] SASC 287.
[15] R v Czubak [2005] SASC 287 at [10].
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 1982 (SA) and section 31(2) of the Sentencing Act govern the situation and are relevantly in the following terms:
Section 75
(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.
Section 31(2)
Where a sentence of imprisonment is imposed for an offence committed by the defendant—
(a)     during a period of release on parole or conditional release; or
(b)while serving a period of imprisonment pursuant to an order of the Parole Board for breach of parole conditions,
the sentence will (except where one of the sentences to which the defendant is subject is life imprisonment) be cumulative upon the sentence, or sentences, in respect of which the defendant was on parole.
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.[16]
[16] R v Bartels (1986) 44 SASR 260.
In Czubak the Court also commented on the fixing of non-parole periods when determining the appropriate sentence to impose in circumstances where there has been a breach of parole. It was observed that, in accordance with the requirements of section 32 of the Criminal Law (Sentencing) Act, the non-parole period fixed must be referrable to the total period of imprisonment faced by the defendant.[17] Section 32 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.
[17] R v Czubak [2005] SASC 287 at [12].
When fixing a non-parole period in such circumstances, a sentencing judge is obliged by section 30 of the Sentencing Act to specify the date on which the non-parole period is to commence.[18]
[18] R v Czubak [2005] SASC 287 at [13]. Section 30(6) of the Criminal Law (Sentencing) Act 1988 (SA) 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.
In the present case the sentencing Judge correctly had regard to the applicant’s breach of parole and acknowledged that the applicant would be required to serve the outstanding period of parole, namely four years, 11 months and 26 days, before serving any term of imprisonment ordered in relation to the subject offending. This period of outstanding parole and the cumulative result of the total head sentence was appropriately taken into account by the sentencing Judge.
Expression of Contrition and Remorse
A further proposed ground of appeal advanced by the applicant was that the sentencing Judge erred in failing to take adequate account of the applicant’s contrition as exhibited in the letters from the applicant to the victims and the Court.
As earlier observed, the applicant contested the charges of serious criminal trespass, theft, attempted deception and deception. At trial, the applicant advanced a version of events, which was rejected by the jury. His offending had a terrifying effect on the daughter of the owners of the premises where the criminal trespass occurred. The daughter was present at the premises at the time of entry. Her victim impact statement, and that of her parents, was tendered during sentencing submissions.
During the course of his sentencing remarks, the Judge noted the applicant’s failure to express contrition and remorse until submissions on sentence were made. At that time, counsel for the applicant provided to the court two letters written by the applicant: one addressed to the sentencing Judge, the other to the victim’s family. In these letters, the applicant acknowledged the criminality of his behaviour, its devastating impact on his victims and expressed contrition and remorse. He also expressed a desire to rehabilitate himself and move on with his life. The sentencing Judge referred to these letters in his remarks and observed:
I take into account the fact that up until your counsel’s submissions on sentencing you have shown no remorse or contrition. You invented a story about what happened on the day of the subject offences which the jury rejected. I have taken into account the two letters handed to me today. I accept that you show some remorse in those letters.
Section 10(1)(f) of the Sentencing Act provides that a court should have regard to an accused’s expression of contrition, repentance and remorse as a mitigating factor when sentencing.[19] Contrition and remorse may also give rise to a reduced sentence following a plea of not guilty. However, the mitigating effect will depend upon all the circumstances. A vigorous defence to charges does not constitute an aggravating feature. An expression of contrition and remorse is a question of fact that must be established by the circumstances of the case. If an accused is found guilty, some positive evidence of contrition through the actions of the accused will usually be required.
[19] Section 10(1)(f) of the Criminal Law (Sentencing) Act 1988 (SA) provides:
In the present case, the sentencing Judge acknowledged the applicant’s expressions of regret, contrition and remorse and took this into account when sentencing. The fact that the applicant contested the charges at trial necessarily meant that a reduction could not be made on account of any plea of guilty. In addition, any mitigating effect of the applicant’s expressions of contrition and remorse had to be considered in the context of the time at which the letters were received and balanced against the seriousness of the applicant’s offending and its impact on the victim and her family.
This ground is not arguable.
Manifestly Excessive
The maximum penalty for serious criminal trespass in a place of residence is 15 years imprisonment. Pursuant to section 170(2) of the Criminal Law Consolidation Act, the offence will be considered an aggravated offence if another person is lawfully present on the premises at the time of the offending and the assailant is aware of their presence. In the present case, the sentencing Judge found that the daughter of the owners of the premises:
was in the house when [the applicant] knocked on the front door and but for the fact that she left the house, the charge against [the applicant] might have been more serious and might have included an application under s.20B of the Criminal Law (Sentencing ) Act 1988.
Both Parliament and the courts have acknowledged the community’s strong concerns regarding what has been described as “home invasion” offences. As noted by the Court of Criminal Appeal in Coleman:[20]
[20] R v Coleman [2001] SASC 229 at [31]-[39] (footnotes omitted).
Community concern about ‘home invasions’ (which might generally be described as criminal incidents in which intruders force entry into an occupied dwelling and then commit one or more further crimes in the dwelling) have been the catalyst for recent legislative changes.
The offences of serious criminal trespass and aggravated serious criminal trespass were created by an amendment to the Criminal Law Consolidation Act 1999 (SA) which took effect from 25 December 1999. Parliament has substantially increased the maximum penalties for both offences, particularly the latter. That offence now carries a maximum penalty of life imprisonment.
As was said by the South Australian Court of Criminal Appeal in R v Delphin at [20]:
"These amendments have changed dramatically the levels of sentence which courts must now impose for this type of offence. The substantial increases in maximum penalty directed by Parliament cannot be ignored by the courts."
Section 10(1)(ea) and section 10(2) were also introduced on 25 December 1999 by section 4 of the Criminal Law (Sentencing) (Sentencing Principles) Amendment Act 1999 No 79. Section 10(1)(ea) of the Criminal Law (Sentencing) Act now provides that when determining a sentence, a court should have regard to" the case of an offence committed by an intruder in the home of another - the need to give proper effect to the policy stated in subs(2):”
That section provides:"A primary policy of the criminal law is to protect the security of the lawful occupants of the home from intruders."
These amendments also redesign the criterion for considering whether to order imprisonment under s11 of the Criminal Law (Sentencing) Act that section provides:"(1) A sentence of imprisonment may only be imposed -...(b) if a sentence of imprisonment is necessary to give proper effect to the primary policy stated in s10(2)."
The seriousness with which the courts must view this type of offending is clear. Parliament has recognised the fears of the community and responded in an effort to ensure that persons are protected within the confines of their homes.

The circumstances of the applicant’s offending can be described as aggravated and serious. He entered a family home whilst a person was present. The family experienced trauma as a result of this offending. When considered in the context of the circumstances of the offending, the head sentence of three years to be served cumulatively upon the outstanding period of parole was well within the appropriate range of sentence for offending of this type.
Conclusion
No arguable error in sentencing has been identified. The application for leave to appeal against sentence is refused.

The degree to which the defendant has shown contrition for the offence –

(i)by taking action to make reparation for any injury, loss or damage resulting from the offence; or

(ii) in any other manner;