Stachor v Police - [2014] SASC 126

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
STACHOR v POLICE
[2014] SASC 126
Judgment of The Honourable Justice Gray
16 September 2014
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERALLY
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES - SENTENCE DURING UNEXPIRED SENTENCE - GENERALLY
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-PAROLE PERIOD OR MINIMUM TERM - SOUTH AUSTRALIA - DISCRETION TO REFRAIN FROM FIXING
Appeal against sentence. The defendant pleaded guilty in the Magistrates Court to two counts of contravening a term of an intervention order and one count each of hindering a member of the police force in the execution of their duty, resisting a member of the police force in the execution of their duty, breach of a bail agreement and aggravated assault. The defendant was sentenced on 26 May 2014. At that time, he was serving a sentence of imprisonment imposed in the District Court of two years with a non-parole period of one year commencing on 26 January 2013. The defendant had unsuccessfully applied for parole in relation to that sentence, and would not be eligible to reapply. The Magistrate sentenced the defendant in respect of the two breaches of the intervention order and the breach of bail to one penalty of two months’ imprisonment, to be served concurrently with the sentence imposed in the District Court. For the offences of hindering a member of the police force in the execution of their duty and aggravated assault, the Magistrate imposed the one penalty of four months’ imprisonment to be served cumulatively with the sentence imposed in the District Court. The Magistrate declined to fix a non-parole period.
Whether the overall sentence imposed by the Magistrate consigning the defendant to a further 11 months in custody without any expectation of release on parole was manifestly excessive. Whether the Magistrate was required to review the non-parole period that had been fixed in the District Court. Where the parties agreed on the appeal that the appropriate course was for the appeal to be allowed for the limited purpose of extending the non-parole period.
Held:
1. Appeal allowed for the limited purpose of extending the defendant’s existing non-parole period of one year by a period of four months and, as a consequence, fixing a new non-parole period of one year and four months.
2. The non-parole period commenced on 26 January 2013.
3. The other orders of the Magistrate are confirmed.
Criminal Law (Sentencing) Act 1988 (SA) s 18A and s 32, referred to.

STACHOR v POLICE
[2014] SASC 126
Magistrates Appeals: Criminal
GRAY J.

This is an appeal against sentence.
On 27 March 2014, the defendant and appellant, Joshua Stachor, pleaded guilty in the Magistrates Court to two counts of contravening a term of an intervention order and one count each of hindering a member of the police force in the execution of their duty, resisting a member of the police force in the execution of their duty, breach of a bail agreement and aggravated assault. The offences were committed between 10 August 2012 and 26 January 2013.
The defendant was sentenced in the Magistrates Court on 26 May 2014. At that time, the defendant was serving a term of imprisonment of two years commencing on 26 January 2013 which had been imposed in the District Court. The Magistrate sentenced the defendant in respect of the two breaches of the intervention order and the breach of bail to one penalty pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA) of two months’ imprisonment, reduced from ten weeks on account of the defendant’s pleas of guilty. The Magistrate ordered that this sentence was to commence on 28 April 2014 and was to be served concurrently with the sentences imposed in the District Court. For the offences of hindering a member of the police force in the execution of their duty and aggravated assault, the Magistrate imposed the one penalty of four months’ imprisonment, reduced from six months on account of the pleas of guilty. The Magistrate ordered that this sentence was to be served cumulatively upon the sentences imposed in the District Court. In relation to the offence of resisting a member of the police force in the execution of their duty, it appears that no sentence was imposed. The Magistrate noted that as a result of these cumulative sentences, the defendant had a remaining sentence of 11 months’ imprisonment. The Magistrate indicated that, in the circumstances, she was not required to fix a non-parole period. Orders were made requiring the defendant to pay a victims of crime levy and prosecution fees.
Background
The Offending
In February 2012, the defendant was served with an intervention order designed to protect his former partner, KB, and their child, Z.
On 10 August 2012, the defendant communicated with KB by telephone and then again in person at a shopping centre in Gawler. He told her that he wanted to see Z. At the defendant’s behest, KB got into the defendant’s vehicle with Z and her other child. The defendant subsequently argued with KB. In sentencing in respect of this conduct, the Magistrate proceeded on the basis that the defendant’s conduct represented a breach of the intervention order in the sense that the defendant communicated with KB, that he was in her company and that he intimidated her.
On 11 August 2012, the defendant was again in the company of KB. The defendant acted in an aggressive and frightening manner, prompting KB to send a text message to the defendant’s mother seeking help. When the defendant’s mother arrived, the defendant continued to behave aggressively. KB’s two children witnessed the defendant’s behaviour and were upset. The defendant took Z into a room and locked the others out. The police were called. When police officers attended, the defendant yelled abuse at them. They took Z from the defendant and arrested him. While being escorted from the house, the defendant became agitated, banging his head against a door frame and attempting to pull away from the police. The defendant was restrained on the ground while the police officers awaited a cage car. The defendant remained aggressive and abusive to the police officers and on several occasions moved violently, making it difficult for the police officers to control him. The defendant’s conduct on this occasion gave rise to the charge of resisting members of the police force in the execution of their duty.
On 9 October 2012, the defendant again breached his intervention order by making a telephone call to KB from the Adelaide Remand Centre.
On 13 August 2012, the defendant entered into a bail agreement. One of the conditions was that he was to remain at his residential address between the hours of 9.00 pm and 6.00 am. A check of his address at 9.10 pm on 25 January 2013 indicated that he was not there. This conduct gave rise to the charge of breach bail.
On 26 January 2013, police investigated the defendant’s whereabouts and located him at about 11.00 am at an address in Davoren Park. Police officers saw the defendant in the house. The defendant ran outside and jumped the back fence. After a foot chase, the defendant was taken to the ground and handcuffed. The defendant was taken to the Elizabeth Police Station and processed. Due to his aggressive behaviour and hostile demeanour towards the police officers, the defendant was placed in a padded cell under observation. The defendant threatened to self-harm and vomited. He was taken to the Lyell McEwin Hospital, where police officers stood guard. The defendant’s hostility towards the police officers continued. While at the hospital, the defendant spat into the face of one of the police officers, making contact with his eyes. The defendant’s conduct on this occasion gave rise to the charges of hindering a member of the police force in the execution of his duty and aggravated assault.
The District Court
Counsel for the defendant explained to the Magistrate that the reason for the delay in the entering of the guilty pleas was to enable the defendant to be dealt with in relation to a number of charges in the District Court, namely, two counts of aggravated threatening life and six counts of aggravated causing harm. The complainant in relation to these charges was KB. The defendant had made an application in the District Court for a Griffith remand to enable him to be assessed for eligibility to participate in a domestic violence intervention program. That application was unsuccessful.
The defendant was sentenced in respect of the District Court offences on 25 November 2013. The Judge imposed one sentence in respect of all counts under section 18A of the Sentencing Act of imprisonment for two years. A lower than usual non-parole period of 12 months was fixed with a view to facilitating the defendant’s desire to be assessed in respect of the domestic violence intervention program. The sentence was backdated to commence on 26 January 2013, when the defendant was remanded in custody in respect of those offences.
The Magistrates Court matters were adjourned on the application of the defendant. The reason for this was to enable the defendant to complete his non-parole period for the District Court offences and then be released on parole in order to undertake the domestic violence program prior to being sentenced in the Magistrates Court. Ultimately, this plan was frustrated. On 15 April 2014, the defendant’s application to be released on parole at the expiration of his non-parole period was refused and he was informed that he would not be eligible to reapply for parole. As a consequence, the defendant will be required to serve the full term of imprisonment imposed in the District Court.
The Magistrate’s Reasons
The Magistrate had regard to a psychologist’s report prepared in relation to the District Court offending and noted:
In a report prepared for the District Court in October 2013 the psychologist has noted that the hinder police and assault charges came about as a result of you ‘coming down and been [sic] hung over from ecstasy’ and therefore being committed under the influence of that drug. I bear that in mind. You are said to have described your dysfunctional relationship with [KB] as one in which you both treated each other badly although you admitted to inflicting verbal and emotional abuse as well as using physical force on two occasions. I give you credit for making those concessions. It’s described in the report that both you and your partner abused drugs during the term of your relationship.
You indicated to the report writer that you realised that you were unlikely to be able to see the newest child whom you fathered, [Z]. Naturally you are upset about the loss of contact with the other two children as well. You were assessed as having some depression and anxiety and you are said to have anti-social features to your personality. The report writer predicted that you will experience extreme reactivity to interpersonal stresses and that you will have difficulty controlling your feelings of anger.
Your issues are said to require intense and enduring rehabilitation programs concentrating on anger management.
The Magistrate made the following remarks in relation to the approach to be taken in sentencing the defendant:
I am inclined to approach this matter by trying to estimate how you would have been dealt with if the District Court had all of these matters before it at the time of sentencing on the 25 November. Whilst I accept that your offending, your breaches of intervention order and breaches of bail were part of a pattern of offending already dealt with in the District Court the conduct concerning the police should be regarded in a different manner for the purpose of considering whether the sentences should run concurrently.
The Magistrate then imposed the earlier referred to sentences.
The Appeal
The defendant advanced two contentions on the appeal. First, the defendant submitted that the sentence imposed by the Magistrate was manifestly excessive. In particular, it was submitted that the Magistrate failed to give proper weight to the efforts that the defendant had made towards rehabilitation. The second contention was that the Magistrate had erred in failing to fix a non-parole period.
Manifestly Excessive
The defendant conceded that no complaint could be made on the appeal as to the individual terms of imprisonment imposed by the Magistrate. It was submitted that the effect of the overall sentence imposed by the Magistrate was to consign the defendant to a further 11 months in custody without any expectation of release on parole. It was submitted that no orders were made as part of the sentence which would allow for any period of supervision on parole which might facilitate and encourage the defendant’s desire to address his anger and violence. It was submitted that the material before the Magistrate provided ample information suggesting that the defendant would benefit from such assistance and supervision in the community following his period of imprisonment.
The defendant also submitted that the circumstances of his imprisonment militated towards the Magistrate exercising a degree of mercy. It was pointed out that the defendant was sentenced in the District Court to a lower than usual non-parole period in order to facilitate his assessment for participation in the domestic violence intervention program. It was said that this gave rise to a legitimate expectation by the defendant that he would be released on parole on or just after the expiration of the non-parole period fixed by the District Court Judge. It was submitted that this expectation was heightened when the defendant successfully pursued his release on bail for the Magistrates Court matters in order to permit his assessment for the domestic violence intervention program. The defendant contended that the rejection of his application for release on parole acted to dash his hopes and caused him a great deal of anguish.
On the appeal, I reviewed the Parole Board report relating to the defendant’s unsuccessful application for parole on the sentence imposed in the District Court. The report, dated 3 June 2014, outlines the circumstances of the defendant’s offending the subject of the District Court charges and then provides:
[The defendant] now says that he has a new partner who is 22 years of age. He says that he has found being in custody traumatic and that it has taken a toll on his life.
He has not, he says, been offered any intervention. Nevertheless, the Parole Board notes that he was interviewed twice in November 2013, when he refused to discuss his offending behaviour and was resistant to the interview process. It is not therefore correct that he has not been offered intervention in the sense that his attitude was such that it was not possible to offer him intervention.
His explanation for the offending was that he was in a “drug-fuelled relationship” with his victim.
He has a long-standing problem with illegal drugs. His explanation is that he suffers from depression and anxiety.
Notwithstanding his protestations that he is remorseful and that he intends to behave appropriately in the future, he denied when interviewed by the Parole Board that he was a violent person. The Board has also noted that on 27 February 2014 he made a phone call to a friend and in the course of that telephone call spoke of waking up with a woman and thinking how ugly she is and wanting to “punch her out”. When that was put to Mr Stachor he said that he did not recall the conversation, notwithstanding that it only occurred two months before his interview with the Board. The Parole Board also noted that in the same telephone call he said “I can’t be fucked applying for parole. I don’t want to be checked and monitored all the time. I’m going to tell them to stick it up their arse. I want to do my sentence and walk out of gaol with no restrictions”.
The Parole Board has no confidence that Mr Stachor is either suitable for release or likely to be compliant if he were granted parole. Accordingly his application is refused and he is not eligible to re-apply prior to his sentence expiring on 25 January 2015.
As will be discussed below, the manner in which the appeal transpired rendered it unnecessary to address the question of manifest excess.
Failure to Fix a Non-Parole Period
Section 32 of the Sentencing Act establishes the requirement to fix a non-parole period and relevantly provides:
(1)Subject to this section, where a court, on convicting a person of an offence, sentences the person to imprisonment, the court must—
(a)     if the person is not subject to an existing non-parole period—fix a non-parole period; or
(b)     if the person is subject to an existing non-parole period—review the non-parole period and extend it by such period as the court thinks fit (but not so that the period of extension exceeds the period of imprisonment that the person becomes liable to serve by virtue of the sentence, or sentences, imposed by the court); or
(c)     if the person is serving a minimum term imposed in respect of an offence against a law of the Commonwealth or is liable to serve such a term on the expiry of an existing non-parole period—fix a non-parole period in respect of the sentence, or sentences, to be served upon the expiry of that minimum term.
…
(5)     The above provisions are subject to the following qualifications:
(a)     a non-parole period may not be fixed in respect of a person who is liable to serve a total period of imprisonment (or detention and imprisonment) of less than one year;
…
In concluding that there was no requirement to fix a non-parole period, the Magistrate noted:
… I am mindful that your original non-parole period has expired and that you are no longer subject to a non-parole period. On the basis of information conveyed to me it appears that you are to serve out your head sentence until expiry in about January 2015 which is seven months from now. With the additional penalty of four months your head sentence will now be approximately 11 months from now. Given that the remaining head sentence is approximately 11 months I consider that there is no requirement to fix a non-parole period in these circumstances. …
As earlier mentioned, the defendant was sentenced in the Magistrates Court on 26 May 2014. The defendant’s sentence of imprisonment imposed in the District Court was due to expire on 25 January 2015. The four month cumulative sentence imposed by the Magistrate would therefore be served from 26 January to 26 May 2015. On the appeal, the defendant contended that as the defendant was being sentenced to a total period of imprisonment of not less than one year, the Magistrate erred in concluding that the requirement to impose a non-parole period did not arise.
Once a non-parole period has been fixed by order of the court, a person who remains in custody after the non-parole period has been served is still subject to the non-parole period. A non-parole period, once ordered, remains in force unless and until revoked by an order of the court.[1] Accordingly, although the defendant’s non-parole period had expired at the time that he was sentenced by the Magistrate, the order fixing the non-parole period had not been revoked. The defendant was therefore subject to an existing non-parole period of one year. On the appeal, the police conceded that, in this circumstance, the Magistrate was required pursuant to 32(1)(b) of the Sentencing Act, as extracted above, to review and extend the existing non-parole period. In my view, this was an appropriate concession.
[1] R v Von Einem [2009] SASC 247.

On the hearing of the appeal, both counsel agreed that the appropriate course was for the appeal to be allowed for the limited purpose of extending the non-parole period. As a consequence of the cumulative sentence of four months imposed by the Magistrate in respect of the offences of hindering a member of the police force in the execution of their duty and aggravated assault, the defendant faced a total period in custody of two years and four months. It was further agreed that in the particular circumstances of this matter, the non-parole period should be extended by a period of four months to make a total new non-parole of one year and four months.
Having regard to the Parole Board report and having regard to the submissions of counsel, as set out above, I consider it appropriate to extend the non-parole period by a period of four months and, as a consequence, fix a new non-parole period of one year and four months. That non-parole period commenced on 26 January 2013.
Conclusion
I allow the appeal for the limited purpose of extending the defendant’s existing non-parole period of one year by a period of four months and, as a consequence, fixing a new non-parole period of one year and four months. The non-parole period so fixed commenced on 26 January 2013. The other orders made by the Magistrate are confirmed.