Thor Kristiansen v John William Callaghan
[2013] ACTSC 164
•5 August 2013
THOR KRISTIANSEN v JOHN WILLIAM CALLAGHAN
[2013] ACTSC 164 (5 August 2013)
APPEAL AND NEW TRIAL – APPEAL-GENERAL PRINCIPLES – Interference with Discretion of Court Below – appeal against non-parole period imposed by Magistrate – error by Magistrate in approach to setting new non-parole sentence for total of sentence being served and new sentence being imposed – appeal upheld.
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentencing – appeal against sentence – sentence of imprisonment imposed on offender already serving sentence of imprisonment – Magistrate set new non-parole period for sentence term consisting of new sentence and remainder of sentence being served after parole cancelled – new non-parole period should have been set for total term of earlier sentence and new sentence – effective non-parole period over 86% of total sentence – no reasons given for unusually long non-parole period – appeal upheld – new non-parole period set.
Crimes (Sentencing) Act 2005 (ACT), s 66
EX TEMPORE JUDGMENT
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. SCA 30 of 2013
Judge: Penfold J
Supreme Court of the ACT
Date: 5 August 2013
IN THE SUPREME COURT OF THE )
) No. SCA 30 of 2013
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:
THOR KRISTIANSEN Appellant
AND:
JOHN WILLIAM CALLAGHAN Respondent
ORDER
Judge: Penfold J
Date: 5 August 2013
Place: Canberra
THE COURT ORDERS THAT:
The appeal is upheld.
The sentences as previously imposed by the Chief Magistrate are confirmed.
The non-parole period set by the Chief Magistrate is set aside, and a new non-parole period of 44 months is imposed on the total sentence of 67 months and 10 days.
Introduction
Thor Kristiansen has appealed against the sentence imposed on him in the Magistrates Court on 15 April this year, specifically the non‑parole period then imposed.
The sentences
2011 sentences
On 29 March 2011, I sentenced Mr Kristiansen for a series of offences including aggravated burglary, as well as two offences of assault occasioning actual bodily harm. I also re‑sentenced him for several earlier offences. At that point Mr Kristiansen was sentenced to a total term of imprisonment of 55 months and 10 days, backdated to 1 November 2009. I set a non‑parole period of 30 months.
Release on parole
Mr Kristiansen was released on parole on 30 April 2012, having served exactly the 30 months non‑parole period. He remained at liberty for over seven months, but on 12 and 13 December 2012 he committed offences of driving while disqualified, and on 19 December that year was remanded in custody. On 8 January 2013 his parole was cancelled, and I am told that this was done because of unsatisfactory compliance with requirements of his parole supervision, rather than for reasons relating to the re‑offending.
2013 sentences
In April this year, Chief Magistrate Walker sentenced Mr Kristiansen, for the two new offences, to a total of 12 months imprisonment, to be accumulated on the earlier sentence of 55 months and 10 days. At that point, he had spent nearly another 4 months in custody, so was entitled to be treated as if he had served roughly 34 months of his original sentence of just over 55 months.
Setting a new non-parole period
Section 66 of the Crimes (Sentencing) Act 2005 (ACT) deals with the setting of a non‑parole period where a sentence (called the primary sentence) is imposed on top of a sentence already being served (the existing sentence). The court is required to set a new non‑parole period:
...as if the court that imposes the primary sentence had sentenced the person to imprisonment for a term equal to the total of the terms of the existing sentence and the primary sentence.
I cannot see any basis in the Crimes (Sentencing) Act for treating the existing sentence as only that part of an earlier sentence that, at the time of the new sentencing, the offender has been serving in continuous custody. I do not understand the Sentence Administration Board, in cancelling parole, to be sentencing the offender to a new term consisting of so much of the original term as was not served before parole was granted. That is, Mr Kristiansen’s existing sentence, for the purposes of s 66, was the full 55 months and 10 days of the sentence I imposed in March 2011.
The total of the terms of the existing sentence and the primary sentence was, as already noted, 67 months and 10 days, and her Honour was required to set a new non‑parole period for that new total sentence of 67 months and 10 days. Instead, her Honour calculated a new total sentence of 37 months and 10 days. This total seems to have been reached by considering not the 30 months of the original sentence that had already been served but only the 25 and a bit months of the original sentence that was left after parole was revoked, to which she then added her new 12 month sentence.
The Chief Magistrate then determined that a non‑parole period in fact amounting to roughly 75% was appropriate; her Honour identified the period as 28 months from the beginning of the new period of 37 and a bit months. The effect of ignoring the 30 months served before Mr Kristiansen was released on parole was to produce a non‑parole period, for the period which s 66 required her Honour to deal with, of just over 86%, a very high non‑parole period in any normal circumstances.
It cannot be said that a non‑parole period of 86% was unavailable to her Honour, especially in the context of the cancellation of Mr Kristiansen’s earlier grant of parole due to unsatisfactory behaviour while on parole, and his re‑offending only six months into a parole period of over two years. However, I am satisfied, having regard to her Honour’s comment to Mr Kristiansen that his total sentence “is one of 3 years, 1 month and 10 days”, that her Honour had fallen into error in calculating the total sentence for which she was required to set a new non‑parole period, and that therefore I am able to consider re‑sentencing Mr Kristiansen.
Considerations on re-sentencing
Except for prefacing her conclusion that the new non‑parole period should be a term in fact equal to roughly 75% of the new sentence with “having regard to all the circumstances”, her Honour did not give any reason for choosing this proportion. Even a 75% non‑parole period would be high in this jurisdiction, and in the absence of reasons expressed by her Honour, I see no need to start from the basis in considering a new non‑parole period that the appropriate re‑sentence would involve a 75% non‑parole period on the 67‑month sentence, which would be roughly 50 months.
On the other hand, given Mr Kristiansen’s unsatisfactory performance while on parole and his re‑offending during that period, while noting that the re‑offending was not as serious as some of the offending for which I had earlier sentenced him, I cannot see that he can expect me to re-apply the 55% proportion that I used when I sentenced him in March 2011.
A non‑parole period of 44 months would be roughly 65% of the total sentence. This would serve to give Mr Kristiansen another reminder, which he clearly needs, of the need to take seriously both his obligations in prison and his obligations while on parole, while still leaving him nearly two years subject to parole supervision after he next becomes eligible for parole.
Conclusions
Accordingly, the appeal is upheld.
Mr Kristiansen’s sentences as previously imposed are confirmed, except that I set a new non‑parole period, for the total sentence of 67 months and 10 days, of 44 months.
This means that Mr Kristiansen, who has now been in custody for just over seven and a half months since being remanded in custody in December, has now served nearly 38 months of his total sentence, and will be eligible for parole again in about six months.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.
Associate:
Date: 5 August 2013
Counsel for the appellant: Mr M Kukulies-Smith
Solicitor for the appellant: Kamy Saeedi Lawyers
Counsel for the respondent: Mr S Drumgold
Solicitor for the respondent: ACT Director of Public Prosecutions
Date of hearing: 5 August 2013
Date of judgment: 5 August 2013
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