R v Zoneff (No 3) No. Sccrm-99-265

[2000] SASC 175

R V ZONEFF (NO. 3)

LANDER J. The prisoner was convicted on 7 April 2000 of 39 counts of false pretences. The offences were committed over a period between 16 January 1996 and 5 April 1997. Fifteen of the offences were committed before 11 May 1996.
Mr Zoneff had been convicted on 3 July 1987 of a number of offences including false pretences, forgery, uttering and fraudulent conversion. He was sentenced to be imprisoned for 14 years and a non parole period of 9 years was set. The sentence was to commence on 12 May 1986.
He appealed against that sentence and on 18 November 1987 the Court of Criminal Appeal allowed his appeal and reduced the head sentence to ten years and the non parole period to seven years, the sentence to commence on 12 May 1986.
Mr Zoneff was convicted of six counts of false pretences and fraudulent conversion on 16 April 1997. He had previously been on bail in respect of those offences but upon his conviction his bail was revoked. On 17 March 1998 sentence was pronounced and he was sentenced to be imprisoned for 7 years and 6 months cumulative upon the 1987 sentence, for which he was then on parole, making a total of ten years nine months and 26 days. The trial Judge fixed a non parole period of six years after taking into account 12 months that the appellant had served in custody prior to the pronouncement of the sentence.
Mr Zoneff appealed to the Court of Criminal Appeal against both conviction and sentence. In the Court of Criminal Appeal his sentence was reduced to four years which when added to the three years nine months and 26 days outstanding on the first sentence made a total of seven years three months and 26 days. The Court Of Criminal Appeal fixed a non parole period of five years. It dismissed his appeal against conviction.
Mr Zoneff appealed, with the leave of the High Court, to the High Court against the 1997 convictions. On 7 March 2000 the High Court allowed that appeal and set aside those convictions and ordered a re-trial.
In my opinion the time served by Mr Zoneff in prison between April 1997 and 7 March 2000 is attributable to the charges for which he was convicted in 1997. If he is to be retried in respect of those offences and if he was convicted in respect of any of those offences then clearly enough the sentencing Judge would have to take into account the period which he has served in respect of the 1997 convictions.
If the 1997 convictions had not been set aside Mr Zoneff could not have claimed that he had served time in respect of these offences whilst at the same time serving the sentence of imprisonment for the 1997 convictions.
Mr Zoneff was not arrested in respect of these offences. An information was filed in the Magistrates Court, in February 1998, before he was sentenced in the District Court for the 1997 charges. He first appeared before a Magistrate on 26 May 1998. Thereafter he was remanded to appear from time to time. Because there was no application for bail he was remanded in custody. Between May 1998 and 7 March 2000 he did not apply for bail in respect of these offences. Such an application would have been futile. He was then serving the sentence of imprisonment imposed by the District Court.
If that sentence had not been imposed it is reasonable to assume that Mr Zoneff would have been granted bail. He had previously been granted bail in respect of the previous charges and answered that bail. He would have been entitled to apply for bail when he appeared before the Magistrate in late May 1996 and could have been expected to obtain bail shortly after that.
It follows, in my opinion, that after the High Court set aside the 1997 convictions he should not be treated as if he was solely serving a period of imprisonment pursuant to those convictions.
The question is whether a person, who is serving imprisonment pursuant to two orders, one a sentence of imprisonment and the other a remand order, and the sentence of imprisonment is set aside, should be allowed credit for the time served in respect of the remand order.
A person cannot build up a positive credit balance of imprisonment which he or she can draw on when later convicted: R v Arts and Briggs (1997) 93 A Crim R 56. If the information had been laid in the Magistrates Court after the 1997 convictions had been set aside Mr Zoneff could not have called upon this Court to recognise the time spent in custody in relation to the 1997 convictions in this sentence.
However, where he was in prison because of both the 1997 convictions and these offences, and where the 1997 convictions have been set aside, fairness dictates that the Court should recognise that he has served time in respect of these offences. It would be unfair to regard that period as solely attributable to the 1997 convictions and dead time. He has served a term of imprisonment for offences for which he has not been convicted. At the time he was serving that term of imprisonment he was also on remand in custody in respect of these offences. In this sentence it would be appropriate to regard Mr Zoneff as having served some time in respect of these offences.
There is no precise date upon which it can be said that he started serving time in respect of these offences. Mr Brebner, for the Director of Public Prosecutions, suggested if I was to proceed on this basis I should assume he commenced serving imprisonment for these offences on 1 May 1998. I think that is reasonable.
Section 30(2) of the Criminal Law (Sentencing) Act 1988 allows me, in the exercise of my sentencing discretion, to have regard to the period spent in custody by making an appropriate reduction in the term of sentence. The section would also allow me to date the sentence from the day Mr Zoneff was taken into custody but because, for reasons which I will give, I believe he was still subject to an unexpired period of parole, that second option is not available: R v Bartels (1986) 44 SASR 260.
I think, in fairness, I should have regard to the period of two years and two months spent in custody since 1 May 1998 by reducing Mr Zoneff’s sentence by that amount. That period of two years and two months includes the period since 7 March 2000 when it is beyond doubt that he has been in custody in respect of these offences.
If he is retried in respect of the 1997 convictions, and convicted, the sentencing judge will be aware that I have given him credit for the period served between 1 May 1998 and 7 March 2000. Subject to the discretion of the sentencing Judge Mr Zoneff could not expect to receive that credit again.
The second matter to be addressed is whether Mr Zoneff’s parole in relation to the 1986 convictions had expired when he committed these offences.
The Crown asserts that when Mr Zoneff committed the first of these offences on 16 January 1996 he was then on parole in respect of the 1987 convictions. The Crown contend that his parole was not to expire until 12 May 1996 and that therefore there was an unexpired period of parole of three months and 26 days to which I must have regard. Section 75 of the Correctional Services Act 1982 provides that where a person is sentenced to imprisonment for an offence committed while on parole, and the sentence is not suspended, that person becomes liable to serve in prison the unexpired balance of the sentence as at the day on which the offence was committed. In this case there is no doubt that Mr Zoneff must be imprisoned for these offences and the seriousness of the offences and Mr Zoneff’s antecedents mean that the sentence of imprisonment cannot be suspended.
Mr Zoneff’s parole, if he is on parole, has been cancelled by operation of the convictions: s 75(2) Correctional Services Act.
However, Mr Zoneff has argued that the previous period of parole had expired when he committed the first of these offences. Three arguments were put in support of that submission.
First it was submitted that s 79a of the Correctional Services Act applied to Mr Zoneff and he was entitled to remissions during the period that that section was in operation.
Section 79a was enacted as s 48 of the Statutes Amendment (Sentencing) Act 1992 which was assented to on 21 May 1992 and came into operation by proclamation on 30 September 1992.
Section 79a was repealed by the Statutes Amendment (Truth In Sentencing) Act 1994 which was assented to on 2 June 1994 and came into operation by proclamation on 1 July 1994. Section 79a therefore only applied between 30 September 1992 and 1 July 1994.
It was said, however, that s 79a applied to Mr Zoneff during the period of its operation.
Section 79a provided:
“79a.......... Remission credited to a prisoner who is serving a non-parole period will be credited against both the non-parole period and the term, or total of the terms, that the prisoner is liable to serve.”
Prisoner is defined in s 4 of the Correctional Services Act 1982:
“means a person committed to a correctional institution pursuant to an order of a court or a warrant of commitment.”
In my opinion, a person who was, during the operation of s 79a, on parole was not a prisoner because that person was not committed to a correctional institution during the relevant period. Section 79a applies only to prisoners. Mr Zoneff was not a prisoner during the relevant period and therefore s 79a has no application.
Nor, in my opinion, can Mr Zoneff take advantage of the now repealed s 79 which allowed for remissions in respect of a non parole period but gave no remissions in respect of the head sentence.
Secondly Mr Zoneff also relied upon s 20 and s 21 of the Statutes Amendments (Truth In Sentencing) Act (the Truth In Sentencing Act).
The Truth In Sentencing Act, as I have said, came into operation on 1 July 1994. It provided in Part 5, for transitional provisions, which were in the following form:
“20... A sentence of imprisonment (including a suspended sentence) imposed before the commencement of this Act and a non-parole period imposed before the commencement of this Act are, on the commencement of this Act, reduced -
(a)by the number of days of remission credited to the prisoner or youth; and
(b)by the maximum number of days of remission that the prisoner or youth could have earned after the commencement of this Act had this Act not repealed Part VII of the Correctional Services Act 1982.”
Section 20 was amended by the Statutes Amendment (Correctional Services) Act 1995 which came into operation on 20 April 1995, by striking out the words “A sentence” and substituting the words “Subject to subsection (2), a sentence” and by inserting in s 20 (s 2) and (3) in the following form:
“(2).. If a prisoner or youth becomes liable to serve the unexpired balance of a term of imprisonment imposed before the commencement of this Act, no reduction of that balance is to be made under this section.
(3) In subsection (1), the “maximum number of days of remission”, in relation to a sentence of imprisonment (including a suspended sentence) in respect of which a non-parole period has been fixed, means the maximum number of days of remission that the prisoner or youth could have earned in respect of that non-parole period assuming that he or she was released in accordance with section 66(1) of the Correctional Services Act1982 (as in force before the commencement of this Act), whether or not he or she is in fact released at the end of the non-parole period (as reduced under this section).”
The amendments to s 20 operated retrospectively: Owen v State of South Australia (1996) 66 SASR 251.
It was put that s 20 operated from 1 July 1994 to give credit to Mr Zoneff of three years and four months for remissions to which he would have been entitled. It was put that s 20(2) had no application because he did not become liable to serve the unexpired balance of the term of imprisonment imposed because it had already been reduced under s 20(1).
In my opinion the argument cannot be accepted for two reasons. First Mr Zoneff was not entitled to any remissions because when the Truth In Sentencing Act came into operation he was on parole and not entitled to any remissions under s 79 or s 79a of the Correctional Services Act. He did not have any remission days credited to him against the head sentence. Nor was he entitled to have any days credited for the reasons already given. Therefore s 20(1) does not apply.
However, even if he was entitled to remissions by reason of s 20(1), in my opinion, s 20(2) would operate to negate the benefits contained in s 20(1) of the Truth In Sentencing Act. Mr Zoneff is a person who has become liable to serve the unexpired balance of his term of imprisonment. In considering whether s 20(2) operates regard must be had to the term of imprisonment imposed by the Court, not to the term after applying remissions.
I do not accept the argument that the Truth in Sentencing Act operated to reduce the sentence of imprisonment and therefore that s 20(2) had no application because the offences were committed outside of the reduced period. To give that construction to s 20(1) would be to ignore s 20(2). It would also deny the retrospective operation of the amendments.
Thirdly it was put that Mr Zoneff’s parole was cancelled by operation of s 75 of the Correctional Services Act when he was imprisoned by Judge Lowrie on 17 March 1998. At the time of sentence there was an existing non parole period of three years three months and 26 days. Judge Lowrie’s sentence commenced on 16 April 1997. Therefore it said that between 16 April 1997 and 7 March 2000 Mr Zoneff served the previous non parole period. That might be right and it might be that Mr Zoneff has in fact served nearly three years of the non parole period for which he was liable to serve in the event that he was convicted of an offence. But that does not assist Mr Zoneff in respect of these offences because the non parole period which he became liable to serve by reason of Judge Lowrie’s sentence was not fully served by 7 March 2000 and he was still liable to serve a non parole period in excess of three months and 26 days.
In my opinion all arguments fail and it is my opinion that Mr Zoneff was a person on parole at the time that he committed the first 15 offences for which he has been convicted.
It follows that I must have regard to the total period of imprisonment that Mr Zoneff is, by virtue of the new sentence and the balance of the previous sentence, liable to serve.
The sentence I am about to impose will, for the above reasons be cumulative on the three months and 26 days unexpired portion of the 1987 sentence. The sentence I impose will date from today (R v Bartels (supra)) but I shall give credit to Mr Zoneff for the two years and two months already served.

[2000] SASC 175

23 June 2000