Sandery v Police No. Scgrg-98-189, Scgrg-98-193, Scgrg-98-234 Judgment No. S6609

[1998] SASC 6609

SANDERY  v  POLICE

Magistrates’ Appeal

Bleby J (Ex tempore)

These are three appeals against sentences imposed on the appellant in the Magistrates Court sitting at Elizabeth on 13 April 1994, at Port Adelaide on 2 May 1994 and at Holden Hill on 18 May 1994.

On 13 April 1994, the magistrate at Elizabeth convicted the appellant on his plea of guilty on four charges (“the Elizabeth matters”): one of possessing a dangerous firearm without a licence for which he was fined the sum of $300 [I will leave out in each case the reference to court fees and criminal injuries compensation levy which were imposed on all charges.]; a charge of intentional or reckless damage to property for which he was sentenced to 2 months imprisonment; a charge of breaching bail for which he was sentenced to 1 month imprisonment cumulative on the previous sentence; and a charge of assault occasioning actual bodily harm for which he was sentenced to a period of 6 months imprisonment cumulative upon the other two sentences.

At that time, the magistrate was informed of an unexpired period of parole in respect of an earlier sentence to which the appellant had been subject at the time of committing these offences.  That unexpired period was 10 months and 11 days.  The magistrate took that into account and added it to the other head sentences which he had just imposed, and arrived at a total head sentence of 19 months and 11 days.  He fixed a non‑parole period of 15 months.

The circumstances surrounding that earlier unexpired parole period were that he had been sentenced on 4 September 1992 to 15 months imprisonment for breaking into a building with intent and with larceny, that 15 months sentence being cumulative upon an unexpired portion of an earlier parole period of 1 year 6 months and 29 days.  The total head sentence then imposed was, therefore, 2 years 9 months and 29 days for which a non‑parole period of 15 months was set.  In relation to that sentence the appellant was released on parole on 22 April 1993.  An order for release on parole was prepared which contained a number of conditions which the appellant signed and agreed to.  The order for release on parole indicated that his parole period would expire on 28 November 1993.  In fact that was incorrect, and the head sentence of the previous sentence did not expire until 21 December 1994.

Between his release on parole and his sentencing in the Elizabeth matters a number of offences were committed.

First, on 14 November 1993, he committed an offence of breaking and entering with intent to commit a felony and was found by night in possession of housebreaking implements.  That was the subject of the sentence in the Holden Hill Magistrates Court on 18 May 1994 (“the Holden Hill matter”).  I will return to that sentence in a moment, because it was imposed after the sentences imposed in respect of other offences which were committed later than 14 November 1993.

On 8 February 1994, he committed one of the offences comprising the Elizabeth matters.  On 23 March 1994, he committed another of the offences comprising the Elizabeth matters and, on 27 March 1994, yet another.  He was first brought before the magistrate who heard the Elizabeth matters on 28 March 1994.  He was then unrepresented.  The question of his unexpired parole was raised.  On that occasion the appellant denied having an unexpired period of parole at the time when the offences were committed.  He claimed, and it was clear before me that he was fully aware, at that time, of the statement in his release form, that the parole period expired on 28 November 1993.  The matter was adjourned to enable the situation to be clarified.

He appeared again before the same magistrate on 31 March 1994.  The court was informed that a Mr Nitschke had been instructed to act for the appellant, however he did not appear on that day.  The court was informed by the prosecution that his parole expired on 21 December 1994 and not 28 November 1993 and that the date appearing in his order for release was wrong.  At that stage, the prosecution was awaiting advice from the Crown Solicitor as to the effect of the misstatement, and the matter was further adjourned until 13 April.  On 13 April the appellant again appeared before the magistrate.  Mr Nitschke, who had previously been instructed to act for the appellant, withdrew.  The appellant made his own submissions in respect of sentence.  The magistrate was advised of the opinion of the Crown Solicitor, and in the light of that opinion proceeded to sentence the appellant on the Elizabeth matters by imposing the sentence to which I have previously referred.

In the course of his sentencing remarks the magistrate said:

“I have looked at your previous record and it is a lengthy one.  It appears to me that you were on parole at the time.  There has been some error by the Parole Board when they released you last year.  They apparently misadvised you as to the unexpired portion of your parole.  That matter has now been clarified, however, by an opinion from the Crown Solicitor.  I accept the opinion from the Crown Solicitor that you still have some time to serve in relation to previous matters.  Whatever was the situation it does not excuse further offending and serious offending at that.”

The magistrate went on then to deal with other aspects of the fixing of the penalty.

It was clear, therefore, that as at 13 April the appellant was aware of the mistake in his order for release, and that it was at least the prosecution’s view that his parole period did not expire until 21 December 1994. He was expressly sentenced on that basis, namely that all the offences comprising the Elizabeth matters had been committed whilst the appellant was on parole. If that was correct, then the magistrate was also correct in taking into account the unexpired period of the parole of 10 months and 11 days which would then have to be served by the appellant pursuant to s75 of the Correctional Services Act 1982.

The appellant then appeared on 2 May 1994 in the Port Adelaide Magistrates Court on a charge of being found by night in possession of housebreaking implements (“the Port Adelaide matter”).  That offence was committed on 7 March 1994.  He was sentenced to 8 months imprisonment cumulative upon the total sentence of 19 months and 11 days imposed in the Elizabeth matters.  The total head sentence, therefore, became 27 months and 11 days and a fresh non‑parole period was set of 20 months.

Then, on 18 May, the appellant appeared on the Holden Hill matter when Mr Nitschke appeared for him.  On that occasion, he was sentenced for the breaking and entering and being found by night in possession of housebreaking implements, being the offence to which I previously referred, and which had been committed on 14 November 1993.  For that offence, he was sentenced to a further 8 months imprisonment cumulative upon the previous sentences.  The total sentence was then 35 months and 11 days dating from 13 April 1994, and a non‑parole period of 22 months was then set.  It will be apparent that even making no allowance for any remissions under the then sentencing regime, both the head sentence and the non‑parole period have long since expired.

The three notices of appeal were lodged within a few days of each other, but the first one was lodged on 2 February 1998; that is over three years and nine months after the imposition of the sentence concerned.

The time within which an appeal against sentence may be brought is limited to a period of 14 days: Supreme Court Rules 1987, Rule 96C.02. However, the court does have power to extend the time within which such an appeal may be brought, and it is obvious that if the appellant is to succeed, he requires such an extension of time for what, in the circumstances, is a very long period of time.

As to what should be the principles guiding a court in an application such as the present for an extension of time, I refer first to what the Full Court of this court said in R v Brown [1963] SASR 190 at p191. The court then comprising the former Chief Justice, Sir Mellis Napier, Millhouse and Hogarth JJ said in relation to an application where the time within which to appeal or to apply for leave to appeal was 10 days:

“The practice is that, if any reasonable explanation is forthcoming, and if the delay is, relatively, slight, say for a few days or even a week or two, the Court will readily extend the time, provided that there is a question which justifies serious consideration.  But, whilst that is so, appellants are expected to act promptly, and, in particular, the court does not countenance the appeal being held over, whilst counsel is obtaining a shorthand note of the summing up and going over it with a tooth comb.  Where the accused is represented by counsel the court takes the view that, ‘if counsel has a genuine grievance regarding a summing up he knows substantially what it is as soon as the summing up is finished’.

It follows that wherever the delay is substantial an application to extend the time is by no means a matter of course.  It is not sufficient that there would have been a question calling for serious consideration, if the appeal had been instituted in due time.  When the time prescribed by the Act has expired the party convicted has lost his right to appeal, and it is for the court to say whether, taking all the circumstances into account, it is in the interests of justice that he should be permitted to institute and pursue his appeal.”

That case and that passage has been referred to with approval on a number of occasions in this court, one of the more recent ones being in the case of R v Foster (1996) 187 LSJS 135, a decision of Lander J. His Honour adopted that passage and went on to say the following (at p139) with which I respectfully agree:

“Where the delay is significant, an applicant must give a proper and detailed explanation for the delay.  However, the court will usually not extent the time within which to appeal or the time within which an application for leave to appeal may be brought unless the applicant can establish that the delay itself was caused through exceptional circumstances or some untoward vicissitude of life which prevented the applicant from applying his or her mind to the question of appeal, or if the delay was otherwise caused, that on the merits the appeal would be likely to succeed (R v Balchin (1974) 9 SASR 64 and 65; Reg v Armstrong (1963) 35 SASR, 356 at 367).

To put it another way, the court will ordinarily need to be persuaded, where the delay is significant, that there exists, by refusing to extend time, an apprehension that a miscarriage of justice might occur: R v Balchin at 65 and R v Trotter [1979] 22 SASR 64 at 65.”

One of the first things to consider is whether there is any adequate reason for the delay.  No adequate reason has been advanced for the delay in this case.  The appellant was aware at the dates of his sentencing that his previous parole period had been wrongly calculated.  He was aware of that from his own knowledge of his release order and the fact that the hearing of the Elizabeth matters had been adjourned on two occasions to enable the question of the parole period to be sorted out and advice obtained from the Crown Solicitor as to the effect of the misstatement in his release order.  The fact had also been referred to by the learned magistrate in his sentencing remarks, which I have already read.

The only event which is said to have occurred to have precipitated these appeals was that sometime during 1997, the appellant received what is now Exhibit R1, and a copy of the Crown Solicitor’s advice referred to by the learned magistrate in his sentencing remarks in the Elizabeth matters.

Exhibit R1 was a memorandum dated 15 April 1997 from the Parole Board of South Australia to a Mr Jim Litchfield, a probation and parole officer.  That merely sets out the circumstances of the sentence imposed by the learned magistrate, the subject of one of these appeals, the circumstances of his release and the error contained in his order for release.  There is a reference then to the Crown Solicitor’s advice and the fact that it was provided to the learned sentencing magistrate.

The other document which the appellant says he received was the Crown Solicitor’s advice itself, and it was the advice which the magistrate acted on in imposing the sentence in the Elizabeth matters.

When it is all boiled down, the only thing that changed, so far as the appellant is concerned, was that he seems to have received advice from some source that his sentence might be wrong because of some mistake in his earlier period of parole.  He was, of course, at all material times aware of that mistake.

In my opinion, the fact that he may have received some advice to suggest that he might have been able to appeal at some earlier time, or that it might be arguable that the sentence was wrong, is insufficient reason for the delay in bringing these appeals. 

One must also consider whether the delay was caused by some other exceptional circumstances which prevented the appellant from applying his mind to the question of an appeal.   There are no circumstances of which I am aware which would come within that category.  The authorities also show that, if the delay is caused other than by such exceptional circumstances or some other adequate reason, a ground for extending time may be that, on the merits, the appellant would be likely to succeed or that a miscarriage of justice might occur if the appeal were not allowed to proceed and the time not extended. 

Mr Richards, for the appellant, in the course of his final submission, did not really seek to rely on any adequate reason for not bringing the appeal earlier or for any exceptional circumstance which caused or which prevented the appeal from being lodged earlier.  He based his case exclusively on whether, in the interests of justice, the appellant should be able to pursue his appeal. 

He then made submissions as to why he considered that the appellant had sound prospects of success, and that an injustice would occur if the appellant were not permitted to bring his appeal.  In my opinion, none of those arguments have any merit and there will be no detriment to the interests of justice if the time is not extended.

The Correctional Services Act, as it was at the time when the appellant was released on parole in 1993, was in rather different terms from the present provisions. It included what was then s69 which read as follows:

“69. A prisoner (not being a prisoner serving a sentence of life imprisonment) who is released on parole will, unless the release is cancelled or suspended, the parole order is discharged or the sentence is extinguished, remain on parole until the expiry of the term, or terms, of imprisonment to which the prisoner was sentenced.”

It is that section which, in my opinion, determined the period of any parole, and no mistake on an order of release form could affect the operation of that section.  In those circumstances, in my opinion, the appellant was on parole at the time when he committed each of these offences.

Section 72 of the Correctional Services Act at that time enabled a person to apply to the Parole Board to seek a discharge from parole before the sentence expired. That was one circumstance where the total period could be foreshortened, but there is no suggestion of that having occurred here. Sub‑section (3) of s72 provided:

“(3) Where a person has been discharged from parole pursuant to this section, the sentence, or sentences, of imprisonment will, subject to this Part, be taken to have been wholly satisfied.”

It seems to me that was the only way in which any sentence or period of parole could have been shortened under the Correctional Services Act, and it could not have been shortened by a mistake contained in the release order.

This was not a case where the appellant’s parole had been cancelled under the provisions of s74 of the Correctional Services Act.  I make no comment about any questions which might arise on a consideration of cancellation of parole where representations may have been made by the Parole Board and acted on by the prisoner concerned.  That is not this case. 

The complaint here relates to the operation of s75 of the Correctional Services Act which, at all material times, has required that where a person is sentenced to imprisonment for an offence committed whilst on parole, and the sentence is not suspended, 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 date on which the offence was committed. 

That section operates of its own force. It does not require a decision of a court or any other person to bring it into play, and as soon as a person is sentenced to a custodial sentence, which is not suspended, for an offence committed whilst on parole, then s75 operates and the balance of the sentence must be served.

Section 75 cannot, in my opinion, be regarded, as Mr Richards argued, as creating an offence for which some intention is necessary or which involves some fact‑finding inquiry as to why or the circumstances under which the appellant breached his parole. That sort of inquiry might be appropriate under s74. It is not appropriate under s75. Section 75 renders the appellant’s state of mind irrelevant. It acts automatically as a consequence, not of an offence being committed whilst on parole, but as a consequence of the sentence of imprisonment being imposed for an offence committed whilst on parole. Section 31(2) of the Criminal Law (Sentencing) Act 1988 further requires that those sentences be served cumulatively. In other words, the magistrate here had no choice; the offences having occurred during an extant period of the parole, s75 operated on any custodial sentence the magistrate then saw fit to impose.

Another consequence of s69 as it then was of the Correctional Services Act is that no mistake by the Parole Board in a written order of release could, as I said before, alter the period of parole.  There is no substance, in my opinion, in the argument that parole, in fact, ceased on 28 November 1993 merely because the Parole Board represented that it would.  I have already referred to the sections which make that clear.  It was argued for the appellant that no only did he have to intend to be in breach of his parole, but, if mens rea were not required, he could rely on the defence referred to by the High Court in Proudman v Dayman (1943) 67 CLR 536, that is, a defence of honest and reasonable mistake.

In my opinion, Proudman v Dayman has limited operation. Section 75 of the Correctional Services Act merely requires the balance of a term of imprisonment to be served in certain circumstances. The appellant is not charged with any relevant offence of breaching parole. Section 75 of the Correctional Services Act does not create an offence.  There is no substance, in my opinion, in the Proudman v Dayman argument.

Section 66(5) of the Correctional Services Act as it then applied said:

“(5) A prisoner must not be released pursuant to this section until -

(a).... the conditions to which his or her release on parole would have been subject have been fixed or recommended by the Board and, if the case so requires, approved by the Governor, pursuant to this section; and

(b)    the prisoner has accepted those conditions in writing.”

It was said in argument that the appellant’s release was invalid, or at least in some way became invalid after 28 November 1993, because no conditions applied. That was because they had not been accepted by the appellant beyond the date stated in his release order. It was said that that section imports the requirement of mens rea to a breach of parole before it could be acted upon. Again, in my opinion, this argument has no substance, as it cannot invalidate a continuing period of parole as required by s69 of the Correctional Services Act, nor can it impinge upon the absolute effect of s75.

However, even if there were any substance to the appellant’s foreshadowed argument on the merits, one of the offences for which he was sentenced occurred on 14 November 1993, during the period which, on his own case, he was effectively on parole and subject to the conditions to which he had agreed.  For that offence he was sentenced on 18 May 1994, in the Holden Hill Magistrates Court, to a period of 8 months imprisonment cumulative upon then existing sentences.  If that were the only sentence which validly brought into play the outstanding period of his parole, for which the appropriate sentence would then have to have been served, the sentences in the Elizabeth matters and the Port Adelaide matter would then have to have been added.  In a sense, therefore, it does not matter that other offences were committed outside what the appellant considered to be the valid period of parole. 

Finally, there is a question of the utility of this appeal.  I have already noted that it was not argued that there were any events giving rise to or explaining the delay.  I have dealt with what I consider to be the merits of the appellant’s case upon the appeal.  However, it will have been apparent from what I have already said that the sentences which were in imposed in April and May of 1994 have all now been served, and nothing can be done to undo those sentences.  In that sense the appeal is futile, and one does not generally give leave to extend time for what would be otherwise a futile exercise, R v O'Meally [1965] VR 626.

I am conscious of the appellant’s argument that the alleged mistake in 1994 extended to taint subsequent sentences which have been imposed upon him, including one recently imposed by Debelle J of this court, which I am told is the subject of another appeal to the Court of Criminal Appeal.  I am in no position to judge whether it could be argued that such later offences were tainted by any alleged miscarriage in relation to these offences.  I have no information as to the circumstances of his parole, when he was on parole, when the offences were committed, or any details of the offences.  However, in my opinion, even equipped with such information it could not affect the outcome of the appeal, for reasons I have given. 

The application for an extension of time in which to appeal in each case is therefore refused.