R v Warrior

[2015] SADC 133

DISTRICT COURT OF SOUTH AUSTRALIA

(Criminal)

R v WARRIOR

[2015] SADC 133

Reasons for Ruling of His Honour Judge Tilmouth

9 October 2015

CRIMINAL LAW - SENTENCE - INTERPRETATION OF SENTENCING PROVISIONS

As Mr Warrior was not entitled to automatic release on parole with respect to an earlier sentence, it was not appropriate to backdate a later sentence to the date upon which he nominally became eligible to apply for release on parole with respect to the earlier sentence, but it is appropriate to order the present sentence be backdated to the first date his liability to serve that earlier sentence was discharged.

Criminal Law (Sentencing) Act 1988 (SA) s 25(1), s 30; Correctional Services Act 1982 (SA) s 66(1), s 66(2)(aa), s 74A(a); Prisons Act 1936 (SA) s 42K(1); R v Hughey (2007) 252 LSJS 316, referred to.
PNJ v The Queen (2009) ALJR 384, applied.
R v Edwards [2011] SASCFC 33, distinguished.
R v Witter (2011) 111 SASR 293; R v Byzco & Tichy (1985) 120 LSJS 190; R v Hearn (2001) 80 SASR 175; R v Ford (2006) 95 SASR 133; R v Jackamarra [2013] SASCFC 98, considered.

R v WARRIOR
[2015] SADC 133

The issue

1. Earlier today the defendant Joshua Warrior was sentenced on four counts of theft by using a recently stolen credit card to attain property and one count of using a stolen motor vehicle without the owner’s consent, committed on 7 June 2014.

2. During the course of sentencing submissions a difficult issue arose as to when the sentence should take effect.  These reasons explain why the sentence was not back-dated to the date upon which he became eligible to apply for release on parole with respect to another sentence imposed in the meantime.

   Underlying facts

3. Mr Warrior has a number of prior convictions for dishonesty offences. He was most recently sentenced in the Port Lincoln Magistrates Court on 22 July 2014, for serious criminal trespass and related offences, to 5 months imprisonment.  The Magistrate ordered this sentence be served cumulatively upon the unexpired term of a sentence imposed by the District Court on 22 December 2010, for two trespass and related offences, the unexpired portion of which was 8 months and 5 days.

4. Accordingly the aggregate head sentence imposed in July 2014 became one of 13 months and 5 days imprisonment.  The Magistrate fixed a non-parole period of 4 months effective from 25 June 2014, when Mr Warrior was taken into custody with respect to the charges upon which he was sentenced earlier today.  The Port Lincoln offences were committed in January 2010 and 16 March 2013 respectively.  Strictly speaking the period of one month spent in custody between 25 June and 22 July 2014 was not ‘time in custody’ in respect of those offences.[1]

   [1]    R v Hughey (2007) 252 LSJS 316, R v Witter (2011) 111 SASR 293.

5. Although Mr Warrior became eligible to apply for parole on 25 October 2014, he did not apply for it.  The balance of the sentence imposed in July 2014 was completed as of 29 June this year.  At that time the order for remand in custody on the present charges first made on 25 June 2014, again took effect.

6. There are before the court two reports from the Parole Board ordered pursuant to section 25(1) of the Criminal Law (Sentencing) Act 1988 (SA). The Board was asked to report on the prospects of Mr Warrior successfully applying for parole had he applied for it when it fell due in October 2014. As to this aspect of the matter the second report reads:

   … it is impossible to give a definitive answer, or even an answer with any real utility … that Mr Warrior would have been released should he have made an application when eligible to do so.

   Statutory context

7. Mr Warrior was not entitled to automatic release on parole, as prisoners generally are for offences involving imprisonment of 5 years or less, pursuant to s 66(1) of the Correctional Services Act 1982 (SA). This is because s 66(2)(aa) thereof exempts the operation of the general position with respect to sentences for offences ‘committed while the prisoner was on parole’. That was the situation here since the offences for which he was sentenced in July 2014 were committed on 16 March 2013, at a time when he was released on parole between 29 January and 2 April of that year.

8. Section 30(1) of the Criminal Law (Sentencing) Act 1988 (SA) requires the court to specify the date upon which an immediate term of imprisonment ‘is to be taken to have commenced’. Section 30(2) thereof furnishes the sentencing court with a wide discretion to reduce the term of a proposed sentence, or to direct it be backdated, principally to give effect to time already spent in custody. Section 30(2) of the Criminal Law (Sentencing) Act is in these terms:

   (2)If a defendant has spent time in custody in respect of an offence for which the defendant is subsequently sentenced to imprisonment, the court may, when sentencing the defendant, take into account the time already spent in custody and—

   (a)     make an appropriate reduction in the term of the sentence; or

   (b)     direct that the sentence will be taken to have commenced—

   (i)     on the day on which the defendant was taken into custody; or

   (ii)     on a date specified by the court that occurs after the day on which the defendant was taken into custody but before the day on which the defendant is sentenced.

9. This section clearly furnishes the power to direct that a sentence is to commence at an earlier time than when the sentence is imposed.[2]It is established by the highest of authority that no narrow construction should be given to the words ‘time in custody in respect of an offence’: PNJ v The Queen;[3] R v Witter.[4]  Five judges of the High Court wrote in PNJ:[5]

   [18] If a person is charged with an offence, taken into custody, and later convicted of that offence, there is no doubt that s 30(2) would apply. But if, as is often the case, the charge that is laid at the time of an offender’s arrest is not the charge of which the offender is later convicted, it does not follow that the time served cannot be described as “time in custody in respect of an offence” of which the offender is later convicted. The question is whether the time in custody is “in respect of” (which is to say, is referable to) the offence in question. And where, as here, the applicant’s conduct was complete when he was taken into custody but the offence of murder was not complete until the victim died, the expression “time in custody in respect of an offence” may be given the application that has been described.

   [2]    R v Colson (1999) 73 SASR 407, [23].

   [3] (2009) 83 ALJR 384, [17].

   [4] (2001) 111 SASR 293, [18], Gray, Sulan & David JJ.

   [5] (2009) 83 ALJR 384, [18].

   The submissions of Counsel

10. The position of the prosecution is that the sentence on the four counts of dishonesty and one count of illegal use, should be backdated only to the date upon which Mr Warrior was discharged from the Port Lincoln sentences on 29 June 2015.  Whereas it was submitted by Mr Lang on behalf of Mr Warrior, that it was appropriate to backdate the sentence to the time he became eligible for parole on 24 October 2014.  Obviously as Ms Borek for the prosecution observed, ‘that makes quite a dramatic difference to when he can be released’.[6]

    [6]     T4.27-28, 18 September 2015.

11. The position taken by Mr Lang has its basis in the decision of the Court of Criminal Appeal in R v Edwards.[7]  This case at first sight appears to be authority for the proposition that a head sentence should commence from the day upon which an offender becomes entitled to release on parole on an earlier sentence.  Mr Edwards had badly assaulted and raped a woman twice during closely related incidents in point of time.  For some inexplicable reason he was separately sentenced to imprisonment by a Magistrate for the assault and later by the District Court for the rapes.  The Magistrate backdated the sentence to the date of arrest on both charges.  Mr Edwards became eligible for release on parole on this sentence on 19 April 2010.  However he was not so released as ‘no grant of bail had been made in respect of the rape charges’.[8]  Accordingly he was then no longer subject to an existing non-parole period and therefore ‘no longer serving a sentence of imprisonment’, but was ‘remanded on parole’.[9]

    [7] [2011] SASCFC 33.

    [8] Ibid, [22].

    [9] Ibid [23].

12. Mr Edwards was not sentenced by the District Court until 22 December 2010.[10]  It was held, per Doyle CJ, Duggan and Gray JJ agreeing, that the rape sentence should have operated from 19 April 2010 when Mr Edwards became eligible for release on parole.[11] The impetus for this conclusion rests on the construction of s 74A of the Correctional Services Act which the court considered should be read as providing ‘a person who is entitled to release on parole, and so in that sense is on parole’.[12]

    [10]   DCCRM-09-1842.

    [11] Ibid [26].

    [12] Ibid, [24].

13. On the other hand the Court of Criminal Appeal considered in that event:[13]

    On the expiry of the non-parole period of five years fixed by the District Court Judge, Mr Edwards will resume serving the balance of parole in respect of the Magistrate’s sentence, being that balance as it was at 19 April 2010. That is the day from which the present sentence commences, and so the day from which the “parole is suspended”: s 74A(a) of the CSA. He will also be on parole in respect of the sentence imposed by the District Court. The balance of the head sentence imposed by the District Court will continue to run after he is released on parole.

    [13] Ibid [27].

14. In R v Byzco & Tichy,[14] the appellants were entitled to release on parole pursuant to section 42K(1) of the Prisons Act 1936 (SA) as it then stood. King CJ considered (White and Mohr JJ agreeing):

    A maximum of the law of equity may seem strangely out of case in the criminal jurisdiction but I think that the court ought to treat it as done that which ought to have been done and should treat the appellants as prisoners on parole at the time of the imposition of the sentences which are under appeal.

    The appellants remained in prison without parole simply due to what was described as ‘administrative confusion’, and so stood to be dealt with under s 74A of the Correctional Services Act.

    [14] (1985) 120 LSJS 190.

15. In R v Hearn,[15] an appeal was allowed and a non-parole period reset to run from the date the prisoner was actually granted release on parole.[16]  The Court of Criminal Appeal made the same type of order in R v Ford,[17] in which the defendant was actually released on parole.  All these cases concerned prisoners entitled to automatic release on parole.  In Edwards, as in the present case, there was no grant of bail in respect of the charges for which the sentence under review was imposed.

    [15] (2001) 80 SASR 175.

    [16] Ibid [9] and [35].

    [17] (2006) 95 SASR 133, [85], [87]-[88].

    Analysis

16. Based on these authorities, no difficulty in principle presents in back-dating the current sentence to the date Mr Warrior was due for release on parole, or for that matter to the date of his arrest.  As the High Court emphasised in PNJ v The Queen:[18]

    … it is quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words.

    However these authorities are distinguishable from this case.  They relate to mandatory release on parole. This is not such a case. Mr Warrior was not released on parole and he was not entitled to automatic release, as the prisoners were in the above cases.  Like Edwards, he was remanded in custody on the outstanding charges, however unlike Edwards he had not be ‘released on parole’, or for practical purposes effectively eligible for release on parole, within the meaning of s 74A(a) of the Correctional Services Act.

    [18] (2009) 83 ALJR 384, [19].

17. This conclusion is consistent with the observations of Nicholson J in R v Jackamarra,[19] in which the appellant remained in custody despite becoming eligible for parole and in fact was approved for release on parole.  Nicholson J observed as ‘there is nothing to suggest that the appellant, despite being eligible to apply for parole … , was either granted parole or found to be entitled to be released on parole, although remaining in custody on the present matters … there is no basis upon which the head sentence and non-parole period… might be ordered to commence any earlier …’.

    [19] [2013] SASCFC 98, [134], (Blue J agreeing).

18. Since Mr Warrior was remanded in custody in June 2014 for the offences on which he was sentenced today, an order for release on parole by the Parole Board would be ineffective anyway, unless a successful application was made for release on bail in the interim.  Furthermore, to order the present sentence to be backdated to the nominal date he became eligible for release on parole, that would give Mr Warrior credit for the time spent in custody in respect of an offence unconnected in time and place and of a completely different and disparate character, and so, to adopt the expression employed by the High Court in PNJ,[20] this is not ‘time in custody … referrable to … the offence in question’.

    [20] Above at [18].

19. Finally, even if it was open to backdate the present sentence to 25 October, it would not prove to be of any practical benefit to Mr Warrior, since for as mentioned earlier, the decision in Edwards means that as a consequence he would become liable to serve the balance of the Port Lincoln sentences, on the expiry of the non-parole period set for the present offences.

    Conclusion and orders

20. It was for these reasons that the conclusion was reached when Mr Warrior was sentenced, that it was appropriate to backdate the present sentence to 29 June 2015 when his liability to serve the Port Lincoln offence was discharged, and not to the earlier date upon which he became eligible to apply for release on parole with respect to that sentence.