R v Williams
[2013] SASCFC 26
•18 April 2013
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v WILLIAMS
[2013] SASCFC 26
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Vanstone and The Honourable Justice White)
18 April 2013
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TOTALITY
CRIMINAL LAW - SENTENCE - INTERPRETATION OF SENTENCING PROVISIONS
The appellant was sentenced in the District Court for a number of serious offences committed in two groups - he was on parole at the time of the offending and so the sentences imposed rendered him liable to serve the unexpired balance of a previous sentence, being two years and nine months - the Judge sentenced the appellant to cumulative sentences of five years and three months imprisonment for the first group of offending and 11 years and three months for the second, and fixed a non-parole period of eight years and one month, excluding time already served - the appellant appeals against each of the two sentences and against the non-parole period on the ground that they are manifestly excessive.
Held (allowing the appeal):
(1) (per Gray J): the Judge did not have proper regard to the principle of totality and the Judge's sentencing discretion miscarried - the overall effect of the sentences imposed was crushing (at [27], [29]);
(2) (per Vanstone J): the overall sentence imposed was towards the upper end of the available range, but nevertheless within that range (at [48]);
(3) (per White J): the period of five years and three months for the first group of offences cannot be characterised as manifestly excessive, but the Judge erred in his fixation of the second sentence - the Judge should have concluded that some of the purpose of the second sentence was likely to be achieved by the appellant's completion of his previous sentence and of the first sentence, and that the imposition of the second sentence cumulatively on the first offended the totality principle (at [62], [73]);
(4) (per White J): the Judge miscalculated the unexpired balance of the previous sentence as two years and three months when in fact it was two years and nine months (at [74]);
(5) (per Vanstone and White JJ): the Judge erred in deducting the period already served in custody from the aggregate of the periods to be served with the effect that there were no longer separately identifiable sentences for each group of offences, and there was a failure to give effect to s 75 of the Correctional Services Act 1982 (at [49], [52], [77]-[78], [95]);
(6) (per Vanstone and White JJ): the sentences imposed by the Judge should be set aside - upon re-sentence, a sentence of five years and three months should be imposed for the first group of offences, and a sentence of nine years and three months for the second group of offences - the appellant is to be taken to have commenced serving the unexpired balance of his previous sentence on 13 October 2009 - the sentence for the first group of offending is to be taken to have commenced immediately after completion of the previous sentence, and the sentence for the second group is to commence immediately upon completion of the sentence for the first group - in respect of the total period to be served, a non-parole period of 10 years and six months is fixed, with that period to be taken to have commenced on 13 October 2009 (at [56]-[57], [99]-[101]);
(7) (per Gray J, dissenting): the sentences should be set aside and the defendant re-sentenced, pursuant to s 18A of the Criminal Law (Sentencing) Act 1988, to a single sentence for all offending - a term of imprisonment of nine years with a non-parole period of five years should be imposed (at [34]).
Criminal Law (Sentencing) Act 1988 (SA) s 10, s 18A, s 20B, s 31; Correctional Services Act 1982 (SA) s 74, s 75; Correctional Services (Miscellaneous) Amendment Act 2012 (SA) s 46, referred to.
R v Cattell [2010] SASCFC 18; R v Place (2002) 81 SASR 395; R v Perdikoyiannis [2011] SASCFC 82; R v Bartels (1986) 44 SASR 260; R v Czubak (2005) 92 SASR 400; R v Panagiotidis (Unreported, Supreme Court of South Australia, Court of Criminal Appeal, King CJ, Jacobs and Bollen JJ, 5 June 1987, Judgment No 9927), considered.
R v WILLIAMS
[2013] SASCFC 26Court of Criminal Appeal: Gray, Vanstone, White JJ
GRAY J.
This is an appeal against sentence.
The defendant and appellant, Lyall Parry Williams, engaged in an ongoing course of criminal conduct over a period of some weeks. At the time, he was on parole. The unexpired period of parole was two years and nine months. The defendant spent two years and 11 months in custody awaiting sentence having been taken into custody on remand on 13 October 2009.
The sentences under appeal were imposed by a District Court Judge on 10 September 2012. When regard is had to the unexpired period of parole to be served and to the time spent in custody, it is to be understood that the defendant faced a total term of imprisonment of 15 years and 10 months to be served from the date on which he was sentenced, namely 10 September 2012. The Judge fixed a non-parole period of eight years, one month and two days. As a consequence, the defendant was not eligible for parole until 12 October 2020.
On the appeal, it was submitted that the overall effect of the sentences imposed was crushing and, in the circumstances, manifestly excessive. It was contended that the sentencing Judge failed to have adequate regard to the principle of totality.
Background
The defendant pleaded guilty to the offences of aggravated robbery at Cash Converters and use of a motor vehicle without consent on 22 September 2009. The offending involved the theft of jewellery to the value of about $30,000.00. The defendant was in the company of others. The offenders were armed with a machete and a wrench. Although the offending took place in circumstances of intoxication, there was evidence of some planning through the offenders being armed and disguised.
The defendant pleaded guilty to further offending that occurred less than three weeks later on 9 October 2009. That offending included the offences of aggravated serious criminal trespass in a non-residential building, theft and the use of a motor vehicle without consent. The offending took place at the Black Forest Bakehouse. The offending involved the use of a firearm. A cash register and cash were taken.
Later, on the same day, the defendant committed the offence of aggravated robbery at the premises of a Café de Vili’s in Mile End. This offending involved the use of a firearm which was aimed at persons present. Cash of about $1,200.00 was taken.
Later, again on the same day, the defendant committed the offences of aggravated serious criminal trespass in a place of residence and aggravated robbery at Clarence Park. A firearm was used. It was aimed at a person present and accompanied by a threat that he would be shot if the demand was not met.
The offences of aggravated robbery and aggravated serious criminal trespass in a place of residence carried a maximum penalty of life imprisonment. The offence of aggravated serious criminal trespass in a non-residential building carried a maximum penalty of 20 years imprisonment. The offence of theft carried a maximum penalty of 10 years imprisonment. The offences of using a motor vehicle without consent for a first offence carried a maximum penalty of two years imprisonment and for a subsequent offence, carried a maximum penalty of a term of imprisonment of not less than three months and not more than four years.
The defendant was aged 22 years at the time of the offending, and 25 years when sentenced. The defendant has lengthy criminal antecedents, including convictions for robberies using a weapon. At the time of the commission of the subject offending he was on parole. His breach of parole was a circumstance of aggravation.
The evidence of the defendant’s personal antecedents provides some explanation for embarking on a life of crime. He comes from disadvantaged circumstances. He is a member of an indigenous family in which both parents were heavy consumers of alcohol. His parents separated when he was aged about four years. His mother was so concerned about inappropriate conduct by his father that she threw him out. The defendant’s father was often in prison. The defendant was the youngest of three siblings, all of the same mother but with different fathers. One brother committed suicide when aged 18 years.
The defendant did not do well at school. He was often in trouble for bad behaviour and his schooling effectively finished at year 7. He commenced high school, but did not continue to finish the first year. By the age of 12, he had run away from home on two occasions, the second of which saw his relocation to Adelaide where he lived for a number of years with an aunt. He moved with bad company and commenced the consumption of alcohol and illicit drugs, and the sniffing of paint at a young age. He has never had employment. He spent considerable periods of time in juvenile detention. It might be suggested that his background circumstances predisposed him to an escalating involvement in a life of crime.
Information before the sentencing Judge suggested that there were some prospects of rehabilitation. The defendant has an average IQ and appears to recognise and understand his problems and difficulties. He has participated in programs while in custody, although at times in what appears to have been a half-hearted manner.
The defendant is now in his mid-twenties. He has spent most of the last three years in custody and, on any view, will remain in custody for a further period of time. It is to be hoped that on his release on parole, he will have been sufficiently rehabilitated to return to the community to be a law abiding citizen. Whether this occurs is problematic.
At the outset of his sentencing remarks, the Judge observed that fixing an appropriate sentence would be a difficult exercise.
Having addressed the circumstances of the offending, the defendant’s criminal antecedents and some aspects of his personal antecedents, the Judge turned to consider the Director of Public Prosecution’s application that the defendant be declared a serious repeat offender pursuant to section 20B of the Criminal Law (Sentencing) Act 1988 (SA). The Judge declined to make such an order.
The Judge utilised section 18A of the Sentencing Act to impose the one sentence for all of the offending on 22 September 2009 and utilised that section again to impose the one sentence for all of the offending on 9 October 2009. In respect to the offending of 22 September 2009, the Judge remarked:
… In relation to the offending at Cash Converters I impose a single penalty pursuant to s 18A of the Criminal Law (Sentencing) Act for the two offences. Had I not done so I would have made the sentences concurrent. Had it not been for your guilty pleas I would have imposed a sentence of seven years imprisonment. Taking into account your guilty pleas and the contrition you have shown there will be a sentence of imprisonment for five years and three months.
In respect to the offending on 9 October 2009, the Judge remarked:
For the offending of 9 October 2009 I again impose a single penalty. Had I not done so, given the proximity in time and the link between those offences and your drug and alcohol addiction, I would have made those sentences partially concurrent. Had it not been for your guilty pleas I would have imposed a sentence of 15 years imprisonment. Taking into account those pleas and your contrition you have shown there will be a sentence of 11 years and three months. They are to be served cumulatively creating a head sentence of 16 years and six months.
The Judge then turned to the time spent in custody and observed:
You have been in custody for two years and 11 months. In the usual circumstances I would backdate the head sentence and non-parole period to that date. Because you have a period of unexpired parole to serve, as a matter of sentencing construction I am not able to do that. Instead, I will give you credit for the time served.
The Judge then addressed the period of unexpired parole as follows:
However, to the head sentence must be added the unexpired parole, namely two years and three months. The head sentence becomes 18 years and nine months.
Having determined the head sentences and identified the further matters to be addressed, the Judge then turned his attention to the fixing of a suitable non-parole period and concluded:
The fixing of a suitable non-parole period is no less difficult an exercise. You must be deterred from further offending. You must be punished for your offending. Others must be deterred from such offending and realise that such offending must, of necessity, result in lengthy sentences of imprisonment. Nevertheless, a sentence and consequent non-parole period should not be so crushing as to leave you without any hope for the future.
Given your youth, the faint hope that such treatment as will be made available to you in prison, including psychiatric or psychological treatment, will be of benefit in improving your ability to conduct a responsible life, and the need for you to be integrated back into society and to be supervised for a lengthy period, I fix a non-parole period of 11 years. You are entitled to credit for the period of two years and 11 months spent in custody. The head sentence therefore becomes one of 15 years and 10 months and the non-parole period eight years one month. The sentence will operate from today.
Both parties accepted that the Judge failed to properly address the period of unexpired parole.
The Appeal
On the hearing of the appeal, it was complained that the sentences were manifestly excessive. It was contended, in particular, that the Judge had adopted a mathematical approach and that in doing so he had failed to have proper regard to the issue of totality. It was accepted that the Judge did refer to the need to avoid a sentence that would be so crushing as to leave the defendant without hope for the future. However, it was pointed out that this observation was made after the Judge had fixed the head sentences; it led to no adjustment of the head sentences and appeared to be a remark made only in the context of the fixing of a non-parole period. Ultimately the non-parole period fixed was about 50 per cent of the head sentence, which would suggest a merciful approach, given the defendant’s criminal antecedents.
The Director accepted that the sentence was heavy, but contended that, notwithstanding its severity, it was warranted. The Director pointed to the criminal antecedents of the defendant and made the observation that it appeared that the defendant was unwilling to change his ways and remained a danger to the community. The Director acknowledged that the defendant’s personal antecedents allowed the conclusion that he had been greatly disadvantaged in his upbringing.
In Place,[1] this Court discussed several issues of sentencing principle. The proceeding concerned an offender who had committed multiple armed robberies over a three week period. In all, the defendant had committed six armed robberies. Other serious offences were also before the Court, including offences involving firearms. The Court identified that generally for a serious armed robbery offence, a starting point for sentencing was in the range of six to eight years in prison. The Court acknowledged the need for particular care to be taken when sentencing for multiple offences of a similar type occurring over a short period of time. The Court considered it appropriate to resentence Mr Place to a single sentence for all offending pursuant to section 18A of the Criminal Law (Sentencing) Act. The Court arrived at a notional head sentence for all offending of 23 years and then reduced this on account of totality to a term 11 years and six months. A non-parole period of six years was fixed.
[1] R v Place (2002) 81 SASR 395.
The Director accepted the authority of Place[2] but pointed out there were matters of aggravation in the present case that were not there present. He noted that the defendant in Place[3] was treated as a first offender. That could not be said of the present defendant.
[2] R v Place (2002) 81 SASR 395.
[3] R v Place (2002) 81 SASR 395.
A review of the sentencing remarks in the within proceedings suggests that the Judge did not have proper regard to the principle of totality. The Judge’s sentencing remarks disclose that he referred to the principle of totality only when addressing the non-parole period. There is no indication that he considered totality when determining the head sentences.
The defendant spent two years and 11 months in custody awaiting sentence and, in accordance with the Judge’s sentence, would spend a further eight years and one month in custody before being eligible for parole. This may be described as equating to an overall period of non-parole of 11 years.
At the time of the offending, the defendant was still a young man. He faced more than a decade of his formative years in custody. It is to be borne in mind that when aged about 33 years he would be eligible to be considered for parole; not entitled to parole. In my view, the Judge’s sentencing discretion miscarried. To my mind, the overall effect of the sentences imposed was crushing.
This Court should resentence the defendant. He does have prospects for rehabilitation. A psychological report before the Court confirms this to be the case. There are other indications, including his preparedness to undertake courses designed to advance rehabilitation. The defendant will need support and it is hoped that his needs will be met in an effective way in the prison environment. I use the term “hoped” because this Court is frequently told of the lack of resources and the lack of availability of genuine support for rehabilitation.
I would resentence the defendant pursuant to section 18A of the Sentencing Act to a single sentence for all offending, both on 22 September and 9 October 2009. I would start with a notional head sentence of 20 years. In arriving at that sentence I have made a reduction of five years on account of the pleas of guilty, contrition and remorse. I would make a further reduction on account of time spent in custody of two years and 11 months. This leads to a notional head sentence of a little more than 17 years. I would then invoke the doctrine of totality as I consider a head sentence of this order to be crushing. I would reduce the head sentence to a term of imprisonment of nine years.
This sentence should commence on the expiration of the unexpired period of parole of two years and nine months. As a consequence, the defendant faces a total time in custody of 11 years and nine months. I would fix a non-parole period of five years. I would backdate the sentence to commence on the day in which the defendant was sentenced in the District Court, namely 10 September 2012. The defendant will be eligible for parole on 10 September 2017.
It is to be recognised that the Parole Board will have the responsibility of making a decision as to whether the defendant, on application, should be granted parole. The Board will have the opportunity to assess the defendant’s progress. The Board will also have the ability to fashion terms of parole to suit the defendant’s particular needs.
Conclusion
I would set aside the sentences imposed by the District Court. I would sentence the defendant pursuant to section 18A of the Sentencing Act to a single sentence in regard to all offending to a term of imprisonment of nine years. I would direct that this term commence on 10 September 2012, the date on which the defendant was sentenced in the District Court. It is to be understood that by this time the defendant had fully served the unexpired period of parole and had spent a further two months in custody awaiting sentence. I have had regard to these matters in fixing the one head sentence of nine years imprisonment in respect of the offending of September and October 2009. I would fix a non-parole period of five years.
VANSTONE J: The appellant stood for sentence in the District Court for a number of serious offences committed in two groups. He was on parole at the time of the offending and so the sentence imposed gave rise to the liability to serve two years and five months of the previous sentence. About three years was spent in custody between arrest and sentence. The appellant was just short of his twenty-third birthday at the time of the most recent offending.
The effective head sentence for the new offending was a total of sixteen and a half years imprisonment. The unexpired parole part of the earlier sentence was added. A provisional non-parole period of 11 years was fixed, being some 58 per cent. From both the head sentence and non-parole period the time in custody was deducted.
Background
It is instructive to set out the course of events which led up to the sentence under appeal.
17.08.2007Appellant is sentenced in the District Court to six years imprisonment for three counts of armed robbery, and illegal use, and the suspension of an earlier sentence of four months imprisonment is revoked and accumulated. A non-parole period of two years and six months is fixed to run from 22 February 2006.
20.01.2009Approximate date of release on parole.
22.09.2009Appellant commits robbery at Cash Converters store at Kilkenny, aggravated both by being in company with two others and by being armed (count 1); maximum penalty life imprisonment. The offenders were disguised. They smashed display cases and stole about $30,000 worth of jewellery, leaving in an illegal used car driven by a fourth man (count 2); maximum penalty imprisonment for four years.
"Balance of previous sentence is two years and nine months.
(I note that, on the advice of the Parole Board, the judge calculated this period as two years and three months. It appears that from 15 October 2009 to 14 April 2010 the appellant was serving a period of six months on account of a breach of condition of his parole. The Court has no information about this. However, the period of six months need not play a part in the calculation as long as the balance of the previous sentence is reckoned from the date of commission of the first offence and credit is given from the date when the appellant was arrested and went into custody, as now directed by s 75(3) Correctional Services Act 1982.)
9.10.2009Appellant commits serious criminal trespass at the Black Forest Bakehouse, smashing a door to enter and intimidating employees, an offence aggravated by his being in company with another man and by the use of a firearm (count 6); maximum penalty life imprisonment. A cash register and cash are stolen (count 7); maximum penalty imprisonment for ten years. A stolen car is used (count 8); maximum penalty imprisonment for four years.
"Appellant commits robbery at the premises of Café de Vili’s at Mile End South, some $1,200 being stolen, the offence being aggravated by his being in company with three others and by being armed (count 9); maximum penalty life imprisonment.
"Appellant commits serious criminal trespass at a home at Clarence Gardens, an offence aggravated by the presence of the occupiers, being in company with two others and by being armed with a firearm which was levelled at one of the homeowners (count 11); maximum penalty life imprisonment. The householder’s motor vehicle is taken, being robbery, again aggravated by being in company and by being armed (count 12); maximum penalty life imprisonment.
13.10.2009Appellant arrested and remanded in custody.
5.10.2011Appellant pleads guilty to counts 1 and 2 on information of 5 October 2011 (replacing first information of 13 September 2010).
27.10.2011Appellant pleads guilty to counts 6, 7, 8, 9, 11 and 12 on second information of 13 September 2010. Trial fixed for 7 November 2011, now vacated.
10.09.2012Appellant sentenced by Judge Soulio.
For the offending on 22 September a single sentence of five years and three months was imposed. For the 9 October offending a single sentence of 11 years and three months was imposed. The sentences were ordered to be served cumulatively and had to follow the period of unexpired parole. A non-parole period (for all three sentences) of 11 years was indicated. The judge then deducted time spent in custody since arrest from each of the head sentence and non-parole period and ordered that the sentence start forthwith.
Arguments on appeal
Mr Vadasz, who appeared for the appellant, submits that the final head sentence is, in all the circumstances, manifestly excessive. He puts that the excess is attributable both to the starting points selected by the judge for each group of offending being too high and also by reason of the fact that, having set separate sentences for each group of offences, the judge then added the two totals together. Counsel described this as an arithmetical approach. Then, it is said the judge failed to reduce the total by reference to the totality principle.
Mr Vadasz also submits that while the judge noted that the appellant was of Aboriginal heritage, he apparently failed to weigh the significance of that fact inasmuch as it had contributed to the offending. It had contributed, it was said, because at an early age the appellant was left to his own devices, his parents being either intoxicated or in prison. Reference was made to a psychiatric report which documented the appellant’s upbringing and which was before the sentencing judge. Counsel pointed to the appellant’s limited education. His position in a minority racial group could well have been a causative factor in his early involvement with the criminal justice system.
Mr Vadasz pointed to R v Place (2002) 81 SASR 395. That was an appeal in relation to a sentence for six armed robberies with associated offences, in which, in resentencing, this Court made a substantial reduction on account of totality.
Analysis
It cannot be doubted that this was a severe sentence, particularly for a man in his twenties. The Director of Public Prosecutions, who appeared personally, did not argue to the contrary. As he submitted, however, the length of the final sentence is a function of the number of very serious offences committed by the appellant, while on parole, and against the background of a long history of very serious offending. Each one of the aggravated robberies to which the appellant pleaded could have attracted a sentence of six to eight years imprisonment. In fact, the seriousness of his crimes is underlined by observing that they exposed the appellant to five maximum penalties of life imprisonment.
It is apparent that the final sentence could only have been reached by notionally ordering concurrency of some of the sentences, or otherwise making a marked reduction on account of the totality principle.
The complaint about insignificant weight being placed upon the appellant’s Aboriginality is not made good. It is true that the fact that the appellant’s origins are indigenous was a relevant fact to be weighed with all other relevant factors. However, it was not, of itself, a mitigating factor. In the end, factors such as that were effectively swamped by the number and seriousness of offences committed.
The analogy with R v Place is hard to draw. That was a very different case. It was decided some ten years ago. In that case there were highly persuasive factors of mitigation – such as the fact that the defendant himself alerted police to his having committed a number of the offences and early pleas of guilty – which do not apply here. I note that the appellant’s pleas of guilty were entered at a very late stage. Pleas of guilty to counts 1 and 2 were entered only a few days before the trial of the matter was listed to proceed and the pleas in relation to the balance of the charges were also entered at a very late stage. The letters written by the appellant to the victims of the various offences and the contrition associated with them had to be evaluated in the context of the appellant having maintained his innocence of all the charges for two years after their commission.
Although I would not wish to deny any hope of rehabilitation in this case, the sentencing judge was justified in what he said about the guarded nature of the prognosis. Mr John Bell, Clinical Psychologist, whose report on the appellant was before the judge, included this passage:
His antipathy and pessimism towards the likely effectiveness of those rehabilitation interventions which can be guaranteed via DCS based programs therefore is the basis for some pessimism, in my opinion, for his long term rehabilitation.
This was a case where, in fashioning the sentence, the Court had to give particular weight to s 10(2) Criminal Law (Sentencing) Act 1988 in its directive to ensure by the sentence that the public is protected from the appellant.
In sentencing for a number of serious crimes, as the sentencing judge was, there is always a greater area of discretion in relation to determining the length of the final sentence. I consider that the sentence imposed was towards the upper end of the available range for a man of the appellant’s age; but within that range nonetheless. Therefore I would not interfere with the length of the sentence imposed.
Because of error in the way the sentence was structured it is necessary to allow the appeal for the purpose of rectifying it. The error is that, having ascribed sentences to the first and second groups of offending by means of s 18A Criminal Law (Sentencing) Act, the judge went on to subtract from the addition of those two sentences a period for time in custody. That left the position that there were no longer any identifiable sentences for the first and second groups of offences. Had the period of time in custody been subtracted from the sentence for either one group of offences, or indeed a period subtracted from each, this error would not have been made. Presumably the judge proceeded in that way to demonstrate that the appellant was being given full credit for the time on remand, in circumstances where he took the view that he was unable to backdate. However, that power is now available to a sentencing judge.
Section 75(3) of the Correctional Services Act was enacted relatively recently, on 31 August 2012. The section provides as follows:
75—Automatic cancellation of parole on imprisonment for offence committed while on parole
(1) Where—
(a)a person is sentenced to imprisonment for an offence committed while on parole and the sentence is not suspended; or
(b)the suspension of a sentence of imprisonment imposed for an offence committed by a person while on parole is revoked,
the person is liable to serve in prison the balance of the sentence, or sentences, of imprisonment in respect of which he or she was on parole, being the balance unexpired as at the day on which the offence was committed.
(1a) Subsection (1) applies notwithstanding that, at the time of conviction of the person or of the revocation of the suspended sentence, the parole may have expired or been discharged.
(2) Where a person referred to in subsection (1) is, at the time of conviction or revocation of the suspended sentence, still on parole, the parole is, by virtue of this subsection, cancelled.
(3) Any period for which the person is detained in custody or in prison after committing the offence is to be counted as or towards the period that the person is liable to serve in prison under this section (and any date on which the sentence is to be taken to have commenced will be fixed accordingly).
Where a person on parole has been in custody after new offending, s 75(3) appears to require that the sentencing court order that the sentence, or total period to be served (commencing with the unexpired balance of the previous sentence) be backdated to the date of arrest, so that the prisoner will be taken to have been serving the balance of the earlier sentence while on remand. It may be noted that s 31 Criminal Law (Sentencing) Act requires that the new sentence be cumulative upon the sentence in respect of which the defendant was on parole.
There is some confusion arising from material from the Parole Board as to what is the relevant period of unexpired parole. On my calculation it is two years and nine months. If the sentence is backdated to the date of arrest then the period would be as stated. As seen, the Parole Board seems to have deducted from the period of unexpired parole as at the date of the new offending a period of 182 days, by reason of a breach of condition of parole under s 74 Correctional Services Act. Since, under s 75(3), the period on remand is to be counted towards the unexpired parole, the Parole Board’s order becomes immaterial; the whole of the time spent in custody after arrest will be counted. (It appears that the judge counted this period in the appellant’s favour twice: once when reducing the unexpired balance and again when deducting the entire period in custody from the sentence and non-parole period.)
Conclusion
Having regard to the foregoing I would allow the appeal only for the purpose of re-ordering the sentence. I consider the sentence should be imposed as follows.
For the Cash Converters offending on 22 September 2009 one sentence of five years and three months is affirmed. For the offending of 9 October 2009 a single penalty of 11 years and three months is affirmed. As before, those sentences are to be accumulated, giving a total of 16 years and six months. Those sentences are to be served after service of the unexpired balance of the sentence imposed on 17 August 2007. The non-parole period of 11 years is affirmed. In accordance with s 75 Correctional Services Act the sentence, that is, the total period to be served, and the non-parole period, is to be taken to have commenced on 13 October 2009 when the appellant was arrested. The backdating ensures that full credit is given for the time on remand.
Addendum
Having written these reasons it has become apparent to me that there is no agreement in this Court as to the disposition of this appeal.
It is apparent from what I have written I would not have interfered with the sentence imposed. However, having adjudged the sentence to be “at the upper end of the available range for a man of the appellant’s age” and noting that the other two members of this Court have found the total sentence to be manifestly excessive, I am prepared to reduce the sentence so that some agreement can be achieved. To this end I would use the totality principle to reduce the head sentence on the 9 October 2009 offending from eleven years and three months to nine years and three months. The sum of the two sentences would then become 14 years and six months. That period would be served after expiry of the balance of the August 2007 sentence. I would reduce the non-parole period to ten years and six months.
The orders I would make are:
1.allow the appeal;
2.set aside the sentence imposed in the District Court;
3.for the offending on 22 September 2009 impose one sentence of five years and three months imprisonment;
4.for the offending on 9 October 2009 impose one sentence of nine years and three months imprisonment, to be served cumulatively;
5.order that the total of the two sentences commence at the expiration of the unexpired balance of parole, being two years and nine months;
6.fix a non-parole period of ten years and six months in respect of all three periods;
7.order that the entire sentence should be taken to have commenced on 13 October 2009.
WHITE J. The circumstances giving rise to this appeal against sentence are set out in the chronology in the reasons of Vanstone J.
Strictly speaking, the appeal should be against two sentences: the sentence of five years and three months imposed by the Judge under s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (CLSA) for the offences committed on 22 September 2009; and the sentence of 11 years and three months imposed under s 18A for the offences committed on 9 October 2009, and against the non‑parole period fixed by the Judge by reference to the total period to be served.
As the Judge ordered that the two sentences be served cumulatively, they aggregate 16 years and six months. However, the Judge did not impose a single sentence of that length, and the appeal is not to be determined on the basis that he did so. There is a tendency to speak colloquially of the aggregation of two or more such sentences as a “head sentence”, but to do so should not obscure the true position that separate sentences are imposed. The Report of Prisoner Tried in a case such as the present should not refer to the aggregate of the two sentences as a “head sentence” and should record the sentences which were in fact imposed.[4]
[4] R v Cattell [2010] SASCFC 18.
This means that, putting to one side the non‑parole period and subject to a difficulty arising from the manner in which the Judge treated time already served in custody, there is no single sentence in the present case which can be impugned as manifestly excessive. The appeal on the grounds of manifest excess must be directed to one or other or both of the individual sentences, although it may be the combined effect of the sentences which indicates that either or both is excessive. This is so even though the Judge himself referred to the aggregate of the two individual sentences as the “head sentence”.
The First Sentence
In my opinion, the period of five years and three months which the Judge intended to impose for the offences of aggravated robbery and illegal use of a motor vehicle committed on 22 September 2009 cannot reasonably be characterised as manifestly excessive. The offence of aggravated robbery by itself required a sentence of that order.
In R v Place[5] this Court indicated that the standard of penalty for such an offence in circumstances like the present is imprisonment for a period between six and eight years. In the present case, there was little scope for reduction below that standard, given the elements of premeditation and planning involved and the frightening circumstances in which the offence was committed. It is also an aggravating feature that both offences were committed whilst the appellant was on parole.[6]
[5] [2002] SASC 101; (2002) 81 SASR 395.
[6] R v Perdikoyiannis [2011] SASCFC 82 at [88]-[90].
The reduction which the Judge allowed for the appellant’s pleas of guilty and expression of contrition was generous, as the pleas were not entered until the date upon which the appellant’s trial was to commence.
The appellant’s personal circumstances as outlined in the reasons of Gray J and Vanstone J do attract some sympathy but, in the circumstances, they are not such as to warrant the period of five years and three months being regarded as manifestly excessive.
If the first sentence stood by itself, the appeal on the grounds of manifest excess would fail.
The Second Sentence
On 9 October 2009, the appellant, with others, committed six offences in quick succession. They were aggravated serious criminal trespass in a non‑residential building and theft at the Black Forest Bake House, illegal use of a vehicle, aggravated robbery at Café de Vili’s, aggravated serious criminal trespass in a place of residence and aggravated robbery. The circumstances in which each of those offences were committed must have been extremely frightening, involving as they did threats of violence by a gang of men to vulnerable members of the community.
Despite the matters of personal mitigation, a single sentence under s 18A for these offences had to be severe. This was so even though all of the offending occurred within a space of about three quarters of an hour. I note that the reduction for the pleas of guilty in relation to these offences may also have been generous, as those pleas were entered only a few days before the trial was to commence. If the offences committed on 9 October 2009 had been the only offences for which the Judge was sentencing, I doubt that the sentence of imprisonment for 11 years and three months, although severe, could be described as manifestly excessive.
However, total accumulation of the second sentence on the first sentence (which in turn would not commence until the appellant had served the unexpired portion of a previous sentence) would mean that the appellant would not commence serving it until he had served eight years in custody since his arrest on 13 October 2009. Given this long period of time, it was appropriate for the Judge to take account of the deterrent and rehabilitative effect which was to be expected by his completion of the earlier sentence and the first sentence. This was especially so having regard to some of the appellant’s personal circumstances. These included his relative youth (22 years at the time of the offending); his insight into his behaviour and its causes as revealed in the report of the psychologist, Mr Bell, and the indications that in the last 12 months or so in custody before being sentenced the appellant had developed some stability and a sense of responsibility. He has voluntarily undertaken a work function within the prison; he has taken advantage of the assistance offered by the Aboriginal Liaison Officers; and, as reported by the prison authorities, his time in prison has been without incident.
It is true that in December 2011 Mr Bell was somewhat guarded about the appellant’s prospects of successful rehabilitation. However, Mr Bell’s reservations seem to have their basis in the apparent absence of appropriate rehabilitation programs. Mr Bell accepted that, with an appropriate integrated support safety network, rehabilitation may be achieved.
The Judge made no reference to the prospect that some of the rehabilitative and personal deterrent effects otherwise to be achieved by the second sentence, if standing by itself, may be realised by the appellant’s completion of the unexpired portion of his previous sentence and his service of the first sentence. There is no other indication that the Judge moderated the second sentence in light of the first. The Judge said simply that the two sentences “are to be served cumulatively”. This, together with the severity of the second sentence, suggests that the Judge did not consider fully the interrelationship between the two sentences and, in particular, did not consider the implications for the second sentence of the period of incarceration to be served under the first.
The Judge did refer to the need to avoid imposing a sentence which would be “crushing”, but this was in relation to the fixing of the non‑parole period. This suggests that the Judge did not address the issue of totality in relation to the head sentences.
For the reasons given, I consider that the Judge should have concluded that some of the purpose of his second sentence was likely to be achieved by the appellant’s completion of his previous sentence and his service of the first sentence and that the imposition of the second sentence on the basis that it was to be wholly cumulative on the first would offend the totality principle. In this circumstance, I consider that the Judge erred in his fixation of the second sentence and that it is appropriate for this Court to re‑visit that sentence.
There are other errors in the Judge’s sentencing. The Judge considered that the unexpired balance of the appellant’s previous sentences as at 22 September 2009 was two years and three months. In fact, it was two years and nine months. As a result of a sentence and order of the District Court made on 17 August 2007, the appellant had to serve a total of six years and four months in custody and a non‑parole period of two years and six months. Both the total period of six years and four months and the non‑parole period were to be taken to have commenced on 22 February 2006. This meant that as at 22 September 2009, the appellant had served (in custody and on parole) three years and seven months of the total period, leaving a balance of two years and nine months, and not two years and three months as the Judge had supposed.
It appears that the Judge relied on the statement in the Parole Board letter of 18 June 2012 that the unexpired balance of the previous sentence at 22 September 2009 was two years and three months. However, the Parole Board went on in that letter to state that the period of 182 days (six months) which the appellant had served in custody between 15 October 2009 and 14 April 2010 had been taken into account in calculating the period of two years and three months. That is to say, some of the appellant’s time in custody since 22 September 2009 was taken into account in determining the unexpired balance of his previous sentence at 22 September 2009.
This error of the Judge would not have affected the overall sentencing if the Judge had not also given the appellant credit for the whole of the two years and 11 months which he had spent in custody since his arrest on 13 October 2009. It was appropriate for the appellant to be given credit in some way for that period, but only on the basis that the unexpired balance of the previous sentence at 22 September 2009 was two years and nine months.
There is a further difficulty in the way the sentences were structured. The Judge aggregated the unexpired balance of previous sentences for which the appellant was on parole at the time of his offending and the two sentences which he imposed. This amounted to what the Judge described as a “head sentence” of 18 years and nine months in respect of which he then fixed a non‑parole period of 11 years. The Judge then deducted two years and 11 months to give the appellant credit for the whole of the period he had spent in custody between his arrest and the sentencing (10 September 2012). This produced the “head sentence” of 15 years and 10 months and a non‑parole period of eight years and one month.
This was an error because it had the effect, as Vanstone J has pointed out, that there is no longer any identifiable sentence for the first and second group of offences. It also involved a failure to give effect to s 75 of the Correctional Services Act 1982 (SA) (CSA) to which I will refer shortly.
The errors in the sentencing mean that this Court should re‑sentence.
Re‑sentence
Much of the appellant’s personal circumstances are set out in the reasons of Gray J and Vanstone J and it is not necessary to repeat them.
I note that the appellant suffers from depression and that the prison staff have expressed concerns about his mental health. There is, however, no suggestion that this is having the effect of making the appellant’s incarceration unduly harsh. The appellant had an unfortunate developmental history and account should be taken of it in the sentencing process.
The fact that both sets of offending occurred whilst the appellant was on parole is a significant aggravating feature.
On re‑sentence, I would impose the same sentence for the offences committed on 22 September 2009, after the reduction for the pleas of guilty and expressions of contrition, as did the Judge, namely, a sentence of five years and three months. In respect of the offences committed on 9 October 2009, I would impose a single sentence under s 18A of the CLSA of nine years and three months. In fixing that period I have taken account of the deterrent and rehabilitative effect likely to be realised by the appellant’s service of the first sentence.
This means that the total period to be served for the offences committed on 22 September 2009 and 9 October 2009 is 14 years and six months.
Giving formal effect to this conclusion requires consideration of ss 74 and 75 of the CSA in order to determine the manner in which account is to be taken of the unexpired portion of the sentence for which the appellant was on parole at the time of commission of the offences and the time he has served in custody before sentence.
Sections 74 and 75 of the Correctional Services Act 1982
As previously indicated, at the time of the commission of the offences on 22 September 2009 the unexpired portion of the sentence resulting from the District Court orders of 17 August 2007 was two years and nine months.
It seems that immediately following the appellant’s arrest, the Parole Board directed that he serve six months of the unexpired portion of his previous sentence in custody, commencing on 15 October 2009. In doing so the Parole Board exercised the power then available to it under s 74(1) of the CSA to direct that an offender serve in prison the sentence in respect of which he or she was on parole “for such further period as the Board thinks appropriate” but not exceeding six months or the balance of the person’s sentence.[7]
[7] Section 74(1) was amended by s 46 of the Correctional Services (Miscellaneous) Amendment Act 2012 (SA) with the effect that, subject to some qualifications, the Board may now direct that the offender serve in prison the balance of the sentence in respect of which the person was on parole, being the balance unexpired as at the day on which the breach was committed. That is to say, the power of the Board to direct that the offender serve part only of the unexpired portion of the previous sentence has been removed.
On 14 April 2010 the appellant completed service of the six month period directed by the Parole Board. Since then he has been held on remand in custody for the subject offences.
The way in which account is to be taken of these periods in custody is governed by ss 74 and 75 of the CSA. In the past, the interrelationship between ss 74 and 75 has given rise to some difficulties.[8] However, both sections were amended by the Correctional Services (Miscellaneous) Amendment Act 2012 which came into force (relevantly) on 31 August 2012 (10 days before the Judge imposed the two sentences which are the subject of the present appeal). It was common ground on the appeal that it is the sections in their amended form which are applicable in this case.
[8] See, for example, R v Bartels (1986) 44 SASR 260; R v Czubak [2005] SASC 287, (2005) 92 SASR 400.
Section 75(1) and (3) are relevant presently:
(1) Where—
(a) a person is sentenced to imprisonment for an offence committed while on parole and the sentence is not suspended; or
(b) the suspension of a sentence of imprisonment imposed for an offence committed by a person while on parole is revoked,
the person is liable to serve in prison the balance of the sentence, or sentences, of imprisonment in respect of which he or she was on parole, being the balance unexpired as at the day on which the offence was committed.
…
(3)Any period for which the person is detained in custody or in prison after committing the offence is to be counted as or towards the period that the person is liable to serve in prison under this section (and any date on which the sentence is to be taken to have commenced will be fixed accordingly).
The effect of s 75(1)(a) (which has not been amended) is that, upon a person being sentenced to imprisonment for an offence committed while on parole, the person becomes liable to serve the unexpired balance of the previous sentence. In R v Bartels,[9] this Court held that in such circumstances the person commences to serve the unexpired balance on the day on which the person is sentenced for the offence committed while on parole and not on any antecedent date on which the person was taken into custody.[10] The construction adopted in Bartels has been followed in a number of later cases.[11]
[9] (1986) 44 SASR 260.
[10] Ibid per White J at 267; per Johnston J at 276-7; and per O’Loughlin J at 290.
[11] R v Czubak [2005] SASC 287 at [71]; (2005) 92 SASR 400 at 414.
However, s 75(3) (which is new) provides that any period for which a person is detained in custody after committing an offence while on parole “is to be counted as or towards” the period which the person is liable to serve in prison under s 75 and, further, that the date on which the sentence is to be taken to have commenced will be fixed accordingly. The expression “is to be” in subs (3) appears to connote a mandatory requirement. This is reinforced by the words in parenthesis which require that the date on which the sentence is to be taken to have commenced “will be” fixed accordingly. In context, the word “sentence” in the parenthesis should be taken to be a reference to the unexpired portion of the previous sentence which the person becomes liable to serve under s 75.
The effect of s 75(3) is that if an offender, after committing an offence on parole, has served a period in custody which is equal to, or exceeds, the unexpired balance of the sentence for which the person was on parole, the period of that service which is equal to the unexpired balance is to count as service of the unexpired balance. If the person has served a shorter period, then the sentencing court is to give credit in respect of that shorter period. The date on which the offender is to be regarded as having commenced serving the unexpired balance is to be fixed so as to recognise these credits. In this way, s 75(3) avoids the injustice which would arise if a person who has served time in custody following arrest for an offence committed on parole is not given credit for that period. In this respect it gives effect to the principle stated by this Court in R v Panagiotidis.[12]
[12] Unreported, Supreme Court of South Australia, Court of Criminal Appeal, King CJ, Jacobs and Bollen JJ, 5 June 1987, Judgment No 9927.
Although it does not arise in the present case, it seems reasonable to construe the expression “any period” in subs (3) as not including a period served in custody as a result of a sentence imposed by a court.
In the present case, the Judge imposed sentence on 10 September 2012. Section 75(1) meant that, upon the imposition of the sentences, the appellant then became liable to serve the balance of his previous sentence, being the balance unexpired as at 22 September 2009.
As the appellant has spent more than two years and nine months in custody since being arrested on 13 October 2009, s 75(3) required that two years and nine months of that period be counted as the period which he was liable to serve under s 75(1) and that the commencing date be fixed to recognise that fact. Accordingly, the Judge should have ordered that the appellant be taken to have commenced serving the unexpired portion of his previous sentence on 13 October 2009. This was so even though the Parole Board order did not take effect until two days later.
That means that the appellant is to be regarded as having served the unexpired portion of his previous sentence in the two years and nine months commencing on 13 October 2009. The sentence imposed by the Judge for the offences committed on 22 September 2009 should therefore be taken to have commenced at the end of that two years and nine months. The sentence which I would impose for the offences committed on 9 October 2009 should commence on the completion of that sentence.
Non‑parole Period
The total period in custody to be served by the appellant, including the unexpired portion (two years and nine months) of his previous sentence, is therefore 17 years and three months.
Having regard to that total period, and acting under s 32(2) of the CLSA, I would fix a non‑parole period of 10 years and six months. I would direct that that period be taken to have commenced on 13 October 2009. This will provide the appellant with the opportunity to have a relatively long period on parole during which he may be subject to supervision. The non‑parole period of 10 years and six months also reflects the gravity of the appellant’s offending.
Summary
I would allow the appeal and set aside the sentences imposed by the Judge. In their place I would impose a sentence of five years and three months for the offences committed on 22 September 2009, and a sentence of nine years and three months for the offences committed on 9 October 2009.
I would direct that the appellant be taken to have commenced serving the unexpired balance of his previous sentence on 13 October 2009; that the sentence of five years and three months be taken to have commenced immediately after the completion of the previous sentence; and that the sentence of nine years and three months commence immediately upon completion of the sentence of five years and three months.
In respect of the total period to be served, I would fix a non‑parole period of 10 years and six months and direct that that period be taken to have commenced on 13 October 2009.
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