R v Von Einem - [2009] SASC 247

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v VON EINEM
[2009] SASC 247
Judgment of The Honourable Justice Sulan
21 August 2009
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - NON-PAROLE PERIOD OR MINIMUM TERM - SOUTH AUSTRALIA - GENERALLY
Von Einem currently serving a sentence of life imprisonment for murder - earliest date of release on parole 1 November 2007 - further sentence of three months' imprisonment imposed by Magistrate with respect of incustodial offending to commence 24 June 2009 - Magistrate ordered review of non-parole period pursuant to s 32(5)(b) of the Criminal Law (Sentencing) Act 1988 (SA) - whether appropriate to fix a non-parole period in all the circumstances.
Held: Section 32(5) of Criminal Law (Sentencing) Act 1988 (SA) is such that a person who remains in custody after the non-parole period has been served is still subject to a non-parole period if and until revoked by order of the Court - refusal to extend the non-parole period would mean von Einem would serve the full sentence of three months' imprisonment - if a non-parole period was imposed, von Einem would theoretically be able to apply for parole forthwith - the extension of the non-parole period would therefore be of no personal or general deterrent effect - the three month sentence imposed by the Magistrate should be served.
Criminal Law (Sentencing) Act 1988 (SA) s 30, s 32, referred to.
R v Shepperbottom (2001) 121 A Crim R 69, discussed.

R v VON EINEM
[2009] SASC 247
Criminal

SULAN J: Bevan Spencer von Einem is currently serving a sentence of life imprisonment for murder. On 5 November 1984, he was imprisoned for life with a non-parole period of 36 years, to commence on 3 November 1983. As a result of the introduction of truth in sentencing legislation on 1 August 1994, von Einem’s sentence was adjusted to life imprisonment with a non-parole period of 24 years and 15 days.
A letter from the Parole Board advises that the earliest date upon which von Einem could be released was 1 November 2007.[1] Von Einem was eligible to submit an application for release on parole on 1 May 2007, but to date he has not made an application for parole.
[1] von Einem was entitled to 16 days’ remission as at 1 August 1994.
On 27 May 2009, von Einem pleaded guilty to possession of child pornography. The pornographic material was found in a sealed envelope in von Einem’s cell. The Magistrate, in sentencing von Einem, accepted that he was not the author of the material, that the material was provided to him by an unnamed prisoner, that he did not solicit it, and that he did not read the material. That unnamed prisoner told von Einem that the author was a prisoner named Anthony Wheatman, who intended to harm von Einem. The unnamed prisoner suggested to von Einem that he might keep the material in order to protect himself from Wheatman. Von Einem kept the material in his cell for over 12 months. The police became aware of the material after a discussion with von Einem’s lawyers, and seized the material.
The police fingerprinted the material and found Wheatman’s fingerprints on many of the pages. Von Einem’s fingerprints were located on paper attached to the envelope containing part of the material. His fingerprints were also found on the first page of that material but, significantly, on no other page. This evidence tended to confirm von Einem’s version that he had not read the material.
The Magistrate concluded that von Einem did not have a prurient interest in the material. The Magistrate observed that there was no actual exploitation of a victim. She categorised the offending as being at the lower end of the scale of seriousness.
On 24 June 2009, the Magistrate sentenced von Einem to three months’ imprisonment. She ordered that, pursuant to s 32(5)(b) of the Criminal Law (Sentencing) Act 1988, (“the Act”), von Einem appear before the Supreme Court for a review of his non-parole period.
The relevant provisions of the Act are as follows:
30 – Commencement of sentences and non-parole periods
(1)     Where a court imposes a sentence of imprisonment and does not suspend the sentence, the court must specify the date on which, or the time at which, the sentence is to commence or is to be taken to have commenced.
…
(6)     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. (highlighting is mine)
…
32Duty of court to fix or extend non-parole periods
(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); (highlighting is mine) or
(c)if the person is serving a minimum term imposed in respect of an offence against a law of the Commonwealth or is liable to serve such a term on the expiry of an existing non-parole period – fix a non‑parole period in respect of the sentence, or sentences, to be served upon the expiry of that minimum term.
…(2) to (4) [unnecessary to include].
(5)     The above provisions are subject to the following qualifications:
(a)a non-parole period may not be fixed in respect of a person who is liable to serve a total period of imprisonment (or detention and imprisonment) of less than one year;
(ab)if fixing a non-parole period in respect of a person sentenced to life imprisonment for an offence of murder, the mandatory minimum non-parole period prescribed in respect of the offence is 20 years;
(b)where a person who is subject to a sentence of life imprisonment is further sentenced to imprisonment by the Magistrates Court or the Youth Court, the question of whether a non-parole period should be fixed or extended must be referred to the court by which the sentence of life imprisonment was imposed; (highlighting is mine)
(ba)if fixing a non-parole period in respect of a person sentenced to imprisonment for a serious offence against the person, the mandatory minimum non-parole period prescribed in respect of the offence is four-fifths the length of the sentence;
(c)a court may, by order, decline to fix a non-parole period in respect of a person sentenced to imprisonment if the court is of the opinion that it would be inappropriate to fix such a period because of –
(i)the gravity of the offence or the circumstances surrounding the offence; or
(ii)the criminal record of the person; or
(iii)the behaviour of the person during any previous period of release on parole or conditional release; or
(iv)any other circumstance.
…    (5a) to (10) [unnecessary to include].
As von Einem is serving a sentence of life imprisonment, the Act requires the Supreme Court, which imposed the sentence of life imprisonment, to consider whether the non-parole period should be extended.
The Magistrate did not specify a commencement date for the sentence which she imposed. The sentence, therefore, commenced on 24 June 2009.[2] It follows that the sentence will have been served by 23 September 2009.
[2] Criminal Law (Sentencing) Act 1988 (SA), s 30(6)(c).
Section 32 of the Act requires a court, when sentencing a person for an offence, to set a non-parole period. There are qualifications to this requirement. They include that the court may not fix a non‑parole period in respect of a sentence of imprisonment in respect of a person who is liable to serve a total period of imprisonment of less than one year. Even though the sentence von Einem received was less than one year, because he is serving a sentence of life imprisonment the subsection does not apply.
Further, a court may decline to fix a non-parole period in respect of a person liable to serve a sentence of greater than 12 months’ imprisonment if the court is of the opinion that, to do so, would be inappropriate. The circumstances which enliven the discretion not to fix a non-parole period are the gravity of the offence, the circumstances surrounding the offence, the criminal record of the person, the person’s behaviour when previously released on parole, and any other circumstance.[3] Those factors are all factors which have the primary aim of protection of the public.
[3] Criminal Law (Sentencing) Act 1988 (SA), s 32(5)(c).
In the case of a person serving a mandatory life sentence, the only way in which that sentence could be mitigated is for the court to fix a non-parole period which results in that person being eligible for release on parole after the expiration of a non-parole period. The effect of not fixing a non-parole period is that the person must spend the whole of their sentence in prison which, in the case of a life sentence, is for the term of their natural life. Although there may be cases which would justify the refusal of the court to fix a non-parole period, such cases would be rare. This might occur where a court is satisfied that the release of a person would pose an unacceptable risk of danger to the public.[4]
[4] The Queen v von Einem (1985) 38 SASR 207, 220-1.
Once a non-parole period has been fixed by order of the court, a person who remains in custody after the non-parole period has been served, is still subject to the non-parole period. It is only a person who is subject to a non-parole period who can be released on parole. If this were not so, a person who had served their non-parole period in custody and had not applied for parole, or had previously applied for parole but been refused, would be regarded as no longer subject to a non-parole period. Such a person could not apply for parole in the future until a court had fixed a non-parole period. That is not what is required or intended under the Act. Once a non‑parole period has been ordered, it remains in force unless revoked by order of the court. In the case of von Einem, although the non‑parole period has expired, the order fixing the non-parole period has not been revoked. The order is still in force. Von Einem is subject to an existing non-parole period.
Section 32(1)(b) of the Act requires a sentencing court which has sentenced a person who is in custody in respect of an unrelated offence to review that person’s existing non-parole period. If the court extends the non-parole period, it cannot extend it beyond the length of the sentence which the court has imposed. For example, if a person is serving a sentence and is subject to a non-parole period of two years, and that person commits an offence whilst in prison for which the person receives a further sentence of 12 months’ imprisonment to be served cumulatively upon his existing sentence, a court, in extending the non-parole period, cannot extend it beyond the 12-month sentence. That is, in the example, the maximum period of non-parole the court could order is three years’ imprisonment.
The maximum period that von Einem’s non‑parole period could be extended is three months, which would result in a non-parole period of 24 years, three months and 15 days, commencing on 3 November 1983. As he has been in custody well beyond that period, such an order would have no effect upon his eligibility to apply for parole.
Counsel for the Director submitted that I should extend the non-parole period by three months. He submitted that to do so will act as a personal deterrent to von Einem, and be of general deterrence to others who may offend in similar circumstances. That submission should be rejected.
In R v Shepperbottom,[5] the Court discussed whether, pursuant to s 32(1)(b), it is mandatory to extend the non-parole period of a prisoner who is sentenced to imprisonment for offences committed whilst he was in custody and subject to an existing non-parole period.
[5] (2001) 121 A Crim R 69.
Doyle CJ said that there may be an appropriate case in which the Court will decline to extend the non-parole period if the interests of justice demand. This is such a case. If I were to extend the non-parole period, it would have no practical effect.
If I refuse to extend the non-parole period, then von Einem is liable to serve the full sentence of three months’ imprisonment before he can be released. That period expires on 23 September 2009. If, on the other hand, I were to set a non-parole period, then von Einem would be eligible to apply for parole and, theoretically, be entitled to be released on parole forthwith. It is not clear, in the circumstances, why setting a non-parole period would serve as any deterrent. If I refuse to fix a non-parole period, von Einem could not be released until he has served the sentence of three months’ imprisonment.
In the circumstances of this case, if the sentence has any deterrent effect, it is a greater personal and general deterrent to require von Einem to serve the sentence rather than to fix a non-parole period.
The sentence of three months’ imprisonment imposed by the Magistrate should be served. This is not an appropriate case for the Court to extend the non‑parole period. I decline to do so.