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…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading R v Von Einem

Details

AGLC: R v Von Einem [2009] SASC 247
Case: [2009] SASC 247
Decision Date: 21 August 2009

CaseChat Overview and Summary

In the matter of R v Von Einem, the defendant is currently serving a life sentence for murder, with the earliest possible release date on parole set for November 1, 2007. A further sentence of three months' imprisonment was imposed by a magistrate for incustodial offending, set to commence on June 24, 2009. The magistrate ordered a review of the non-parole period under section 32(5)(b) of the Criminal Law (Sentencing) Act 1988 (SA) to determine whether it was appropriate to fix a non-parole period in the circumstances.

The central legal issue before the court was whether section 32(5) of the Criminal Law (Sentencing) Act 1988 (SA) allows for the imposition of a non-parole period on a person who remains in custody after the initial non-parole period has been served. The court was required to determine the appropriate approach to sentencing in this context, particularly in relation to the deterrent effect of a non-parole period. The court had to balance the principles of sentencing and the potential implications for the defendant's parole eligibility.

The court found that section 32(5) of the Criminal Law (Sentencing) Act 1988 (SA) permits a person who remains in custody after the non-parole period to still be subject to a non-parole period if and until revoked by order of the court. The court concluded that refusing to extend the non-parole period would result in Von Einem serving the full three-month sentence imposed by the magistrate. Furthermore, if a non-parole period was imposed, Von Einem would theoretically be able to apply for parole immediately, rendering the extension of the non-parole period ineffective in terms of personal or general deterrence. Therefore, the three-month sentence imposed by the magistrate should be served as intended.

Orders