R v THOMPSON

[2010] SASCFC 9

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v THOMPSON

[2010] SASCFC 9

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Doyle, The Honourable Justice Duggan and The Honourable Justice David)

30 July 2010

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - TAKING OUTSTANDING OR FURTHER OFFENCES INTO ACCOUNT

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - NATURE AND CIRCUMSTANCES OF OFFENDER - PRIOR CRIMINALITY

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-PAROLE PERIOD OR MINIMUM TERM  - SOUTH AUSTRALIA - GENERALLY

Appeal against sentence - present offences committed while appellant on parole for original offences - remaining portion of sentence of imprisonment for original offences came into effect on sentencing for present offences - sentence to be served cumulatively on original sentence - period of time served for breaches of parole deducted from unexpired portion of original sentence - non-parole period fixed at approximately 80 per cent of total period of imprisonment to be served - whether non-parole period manifestly excessive - whether sentencing judge properly took into account period of imprisonment served for breaches of parole - whether sentencing judge erred in not backdating sentence to date on which appellant's parole was cancelled. 

HELD: Appeal dismissed - non-parole period appropriate in the circumstances - if backdating permissible it would be nevertheless inappropriate - sentencing judge did not err - period of time served for breaches of parole should not be deducted from non-parole period - sentencing judge entitled to take time served for breaches of parole into account by fixing the non parole period by reference to a head sentence which had been reduced by reason of the time spent in custody.

Correctional Services Act 1982 (SA) s 74, s 75; Criminal Law (Sentencing) Act 1988 (SA) s 30, s 32(7)(a), referred to.
The Queen v Panagiotidis (Unreported, Supreme Court of South Australia, Court of Criminal Appeal, King CJ, Jacobs and Bollen JJ, 5 June 1987); Brock v The Attorney General (1984) 36 SASR 161; R v Kennett (Unreported, Supreme Court of South Australia, Court of Criminal Appeal, King CJ, Bollen and Jacobs JJ, 18 February 1992), discussed.

R v THOMPSON
[2010] SASCFC 9

Court of Criminal Appeal:       Doyle CJ, Duggan and David JJ

1. DOYLE CJ:          I would dismiss the appeal.  I agree with the reasons given by Duggan J.

2. DUGGAN J: The appellant pleaded guilty to a charge of aggravated serious criminal trespass in a place of residence and a further charge of theft from the occupiers of that residence (“the present offences”). The sentencing Judge imposed one sentence for both offences. He sentenced the appellant to imprisonment for two years and six months. His Honour then ordered that the sentence for the present offences be served cumulatively upon the balance of a sentence of imprisonment which came into effect pursuant to s 75 of the Correctional Services Act 1982 (SA) (“the Correctional Services Act”) when the sentence for the present offences was imposed.

3. There is no appeal against the head sentence of two years and six months.  However, it is claimed that the non‑parole period which was fixed in relation to the total period of imprisonment is manifestly excessive.  There is a further complaint that the Court did not take into account the fact that, prior to being sentenced, the appellant served a period of imprisonment for six months which had been ordered by the Parole Board for breaches of parole.

4. In order to deal with the grounds of appeal it is necessary to summarise the history of the matter beginning with the original sentence of imprisonment.

5. On 21 May 2008 the appellant was sentenced on seven counts of non‑aggravated serious criminal trespass, five counts of dishonestly taking property without the owner’s consent, one count of attempted non‑aggravated serious criminal trespass and one count of dishonestly dealing with property without the owner’s consent.  He was sentenced on all counts to one sentence of imprisonment for six years, one month and seven days.  The Court imposed a non‑parole period of imprisonment for six months.

6. The appellant was released on parole on 20 November 2008.  The present offences were committed on 24 February 2009 and the appellant was taken into custody on that date.

7. The Parole Board interviewed the appellant on 16 March 2010. He admitted to the Parole Board that he had committed the present offences. He also admitted other breaches of his parole. Pursuant to s 74 of the Correctional Services Act the appellant’s parole was cancelled by order of the Parole Board from 10 December 2009 to 27 April 2010.

8. The appellant was sentenced in relation to the present offences on 9 April 2010, 18 days before the expiration of the term of imprisonment directed by the Parole Board.  The balance of the original sentence which came into effect when the appellant was sentenced for the present offences was five years and two days.

9. The period of time served as a consequence of the decision of the Parole Board was deducted when the unexpired balance of the original sentence was calculated.  This was in accordance with the decision of this Court in The Queen v Panagiotidis.[1]  A period of 121 days was deducted on this account.

   [1]    (Unreported, Supreme Court of South Australia, Court of Criminal Appeal, King CJ, Jacobs and Bollen JJ, 5 June 1987) at 5.

10. As stated, the sentencing Judge ordered that the sentence of imprisonment for two years and six months be served cumulatively on the unexpired portion of the original sentence.  This resulted in a total period of imprisonment of seven years, six months and two days.  From this the Judge deducted seven months and 16 days which was agreed to be the period which the appellant had spent in custody awaiting sentence for the present offences.  This reduced the head sentence to six years and 10 months.  The non‑parole period was also reduced by seven months and 16 days; after rounding down, it was fixed at five years and four months.  The sentencing Judge ordered that the head sentence and non‑parole period commence on the date of sentencing.

11. The main point argued by Mr Muscat, for the appellant, was that the non‑parole period is manifestly excessive.  He pointed out that it is approximately 80 per cent of the head sentence.

12. The question whether the Court should fix a non‑parole period and, if so, the appropriate length of the non‑parole period depends very much on the circumstances of the particular case.  As King CJ observed in Brock v The Attorney‑General:[2]

    Whilst this Court has frequently said that sentencing judges should have regard to the policy of the legislature in instituting and maintaining a system of parole and should, therefore, in framing sentences allow proper scope for the operation of parole, nevertheless the question arises in every case as to whether the particular person who is sentenced is a proper candidate for parole, and if so, the extent to which parole can play a useful part in the sentence which is being [im]posed. Everything depends upon the circumstances of the case and on the circumstances of the particular offender.

    This Court has said on more than one occasion that there may well be cases in which the circumstances indicate that parole has no part to play in the sentence which is being framed, or that if it has a part to play it should be a relatively minor part.

    The sentencing Judge has to ask himself, first, what is the minimum period of imprisonment which the purposes of punishment require that the offender serve in custody, and then what are the prospects of the particular offender responding to parole.

    [2] (1984) 36 SASR 161 at 162.

13. In performing this task it is necessary to consider a wide range of matters including the punitive, deterrent, and preventative purposes of punishment, the antecedents of the defendant, the prospects of rehabilitation and the manner in which the defendant has responded to parole on previous occasions.

14. It is clear in this case that the punitive and deterrent aspects of punishment far outweigh the personal circumstances of the appellant.  He has a lengthy criminal history comprising convictions for a variety of offences.  He was shown considerable leniency with the imposition of a particularly short non‑parole period when sentenced on 21 May 2008, but committed the present offences approximately three months after his release on parole.  In that short time there were other breaches of his parole apart from the commission of the present offences.

15. Mr Muscat identified an error in the sentencing remarks.  The sentencing Judge referred to the original sentence and the short non‑parole period of six months.  His Honour continued:

    While I do not have those sentencing remarks to hand, it may well be that the court on that occasion was, in light of your appalling record, attempting to fashion a sentence that would provide you with a very strong incentive not to continue to commit offences.

    Notwithstanding that, I note that on 8 December 2009 you were convicted of non‑aggravated serious criminal trespass in a place of residence and dishonestly taking property without the owner’s consent, although no penalty was imposed. It may be that either that offence was not very serious or the court decided to extend further leniency to you so as to allow the existing very substantial suspended sentence to continue to encourage you to comply with the law.

    Accordingly, when you committed the offences that are before this court on 24 February 2009, you were only some distance into the suspended sentence of six years, one month and seven days.

    Accordingly, your continued offending in the light of this very extensive history tends to indicate the efforts the courts have made both by way of bonds or short non-parole periods to deter you from committing further offences and encourage you to not transgress in the future have plainly failed.

16. Although the present offences were breaches of parole, the offences for which the appellant was sentenced on 8 December 2009 were committed on 2 August 2006.  The sentencing Judge appears to have assumed that they were committed after the appellant had been given the suspended sentence on 21 May 2008.

17. This assumption does not appear to have loomed large in the mind of the sentencing Judge.  The fact remains that the appellant committed the same sort of offences approximately three months after his release.  The comments made by the Judge in the last paragraph set out above remain accurate.

18. In my view the length of the non‑parole period imposed by the sentencing Judge was appropriate in the circumstances.

19. Mr Muscat advanced a further argument.  He argued that the sentencing Judge should have ordered that the sentence and the non‑parole period commence on 10 December 2009, the date on which the Parole Board cancelled the appellant’s parole for a period ending on 27 April 2010.

20. It is unnecessary to decide whether backdating the sentence in the circumstances of this case would be permissible under s 30 of the Criminal Law (Sentencing) Act 1988 (SA) (“the Sentencing Act”).  Even if backdating were permissible it would, in my view, be inappropriate.  The effect would be to allow the period of imprisonment for breach of parole to count as time served in relation to the unexpired portion of the original sentence when that period had already been deducted from the unexpired portion of the sentence in accordance with the practice adopted in The Queen v Panagiotidis.

21. Mr Muscat also argued that the non‑parole period imposed by the sentencing Judge should have been reduced by four months, the period served in consequence of the Parole Board order.  Reliance was placed on R v Kennett,[3] where the Court of Criminal Appeal reduced both the head sentence and the non‑parole period imposed in that case because of time spent in custody pending sentence.  The distinguishing feature between the two cases is that here the relevant period was served as part of a sentence and was not time spent in custody awaiting sentence, as was the case in R v Kennett.  Allowing the period of four months to be taken into account so as to reduce a non‑parole period imposed subsequently would have the effect of negativing the punishment imposed for the breaches of parole.

    [3]    (Unreported, Supreme Court of South Australia, Court of Criminal Appeal, King CJ, Bollen and Jacobs JJ, 18 February 1992).

22. Finally, Mr Muscat drew attention to s 32(7)(a) of the Sentencing Act which provides as follows:

    (7)In fixing or extending a non-parole period, the court—

    (a)     must, if the person in respect of whom the non-parole period is to be fixed or extended is in prison or a training centre serving a sentence of imprisonment or detention, take into account the period already served…

23. The circumstances in which a person might be serving a sentence of imprisonment or detention will differ from one case to another and the manner in which that consideration is to be taken into account will also differ.  The subsection does not provide any guidance as to how the period served is to be taken into account in a particular case.

24. However, the manner in which it would be appropriate to take this into account where the period being served has been ordered as a result of a breach of parole is explained in The Queen v Panagiotidis. In that case it was held that the period served was to be deducted from the unexpired balance which the appellant was required to serve pursuant to s 75(1) of the Correctional Services Act.  It thus became relevant in determining the head sentence and the non‑parole period, bearing in mind that the non‑parole period is to be considered against the background of the reduced head sentence.  In turn, it was ultimately held that, although the total head sentence was somewhat less as a result of the deduction, the non‑parole period remained moderate and no reduction was made.

25. In my view it would be inappropriate in a case such as the present to simply deduct the period served for breach of parole from what would otherwise be the non‑parole period.  As explained above, this would have the effect of negativing the sanction imposed for the breach of parole.

26. In The Queen v Panagiotidis the Court itself deducted the period served from the unexpired balance of the sentence.  Since then it has become the practice of the Parole Board to reduce the sentence administratively.  This does not alter the fact that the court takes note of and in effect confirms the administrative reduction made by the Parole Board and takes it into account when fixing the non‑parole period.

27. If this analysis is correct, the sentencing Judge in the present case took into account the period served on account of the breach of parole by fixing the non‑parole period by reference to a head sentence which had been reduced by reason of the time spent in custody.

28. In my view the appeal should be dismissed.

29. DAVID J:              I agree the appeal should be dismissed for the reasons given by Duggan J.