R v Von Einem

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.