Tran v Police No. Sccrm-98-1118 Judgment No. S6891

TRAN v POLICE
[1998] SASC S6891

Magistrates Appeal

Perry J

The appellant appeals against the sentence imposed upon him in the Magistrates Court sitting at Elizabeth on admitted charges of receiving and obtaining money by false pretences. Both offences took place on 2 July 1996.
Initially the appellant was sentenced on 18 December 1997. The learned sentencing magistrate then imposed a sentence of 18 weeks imprisonment, which was expressed to be cumulative upon an earlier sentence of nine months’ imprisonment, which had previously been suspended upon the entry by the appellant into a bond. The receiving and false pretences offences operated to breach the bond, which the learned sentencing magistrate estreated, at the same time activating the sentence of 9 months imprisonment. In the result, there was a total head sentence of 9 months and 18 weeks. Against that head sentence, a non-parole period of 19 months was fixed.
The matter was called on again before the learned sentencing magistrate on 15 July 1998. Apparently, this was on his own initiative, after it had been pointed out to him that at the time he had sentenced the appellant on 18 December 1997, he was not apprised of the fact that the appellant was on parole at the time of the commission of the offence for which he had received the suspended sentence. Pursuant to s75(1)(b) of the Correctional Services Act 1982, the revocation of the suspension rendered the appellant liable to serve the unexpired balance of the sentence for which he was on parole at the time of the commission of the offence for which he had received a suspended sentence. That unexpired balance was one year and 25 days.
When the matter was called on again before him on 15 July 1998, the learned sentencing magistrate intimated that he proposed to correct the error which had occurred by invoking his powers pursuant to s76B of the Summary Procedures Act 1921 to rectify the sentence.
Ms Lindquist had appeared as counsel on the appellant’s behalf on 18 December 1997, when she advanced a plea in mitigation on his behalf. On the hearing of the appeal I have had the benefit of an affidavit from her which summarised the submissions which she made and explains the subsequent history of the matter.
In the affidavit she states that she had no further contact from the appellant after he was sentenced.
Ms Lindquist was notified that the matter was to be called on again for further hearing on 15 July 1998. She was not given any reason why the matter was to be listed again. When she attended at the court to look at the court file, there was no documentation on it to indicate why it was being re-listed. Furthermore, when she spoke with the Prosecution she was informed that they had not taken any steps to bring the matter on again.
When she appeared on 15 July 1998, the attendance of the appellant had been arranged, and he was in court. The learned sentenced magistrate indicated the error which had occurred, and intimated that he proposed to add the period of one year and 25 days to the sentence which he had imposed in the preceding December. Ms Lindquist applied for an adjournment in order to take instructions but this was refused. She thereupon restated some of the matters which she had put in mitigation when the appellant had first been sentenced. She asked the learned sentencing magistrate not to increase the non-parole period.
The learned sentencing magistrate then delivered short ex tempore reasons. In those reasons, after explaining the circumstances which had led to him calling the matter on again, he went on to observe:
“The matter has now been called on pursuant to s76B of the Summary Procedure Act for rectification of that sentence. I now amend the sentence imposed on 18 December 97 as follows.
The suspended sentence is revoked and the term of nine months is to come into effect at the expiration of the balance of the term for which the defendant was on parole at the time of the commission of the offence for which he received the suspended sentence, namely, one year 25 days. The 18 weeks is to be served cumulatively upon the nine months making a total of one year nine months 18 weeks and 25 days.
I do not regard the fixing of a further non-parole period as appropriate given that the defendant has re-offended while on parole and has been given leniency by way of a suspended sentence for the parole breaking offence and has further re-offended while subject to the suspended sentence.”
He then went on to make an order accordingly, backdating the commencement of the total sentence of one year nine months, 18 weeks and 25 days, to 18 December 1997.
It is from that revised sentence that the present appeal is brought.
In his amended grounds of appeal the appellant complains that the sentence was manifestly excessive, and that the learned sentencing magistrate erred in not setting a non-parole period.
In what became the principal argument on appeal, the appellant also contended through his counsel Mr Vadasz that the learned sentencing magistrate was functus officio after having sentenced the appellant on 18 December 1997, and lacked power under s76B or otherwise to take the course which he did, which Mr Vadasz described as calling the matter on again to set “an entirely new sentence”.
In aid of that submission, Mr Vadasz referred to Muscat v Magistrates Court and Anor.[1] In that case the defendant was remanded for sentence after a plea in mitigation. When the matter resumed the magistrate handed down written reasons in which he indicated that he was imposing a suspended prison sentence.
[1] (1996) 66 SASR 367.
Before he had formally pronounced the sentence, the prosecution made further submissions as to previous offences committed by the defendant, which the prosecutor had learnt of during the period of the remand. The magistrate then withdrew his sentencing remarks.
The defendant objected to the magistrate intimating that he would sentence the defendant afresh, arguing that the sentence had been pronounced in written form and the magistrate was therefore functus officio.
It was held by Lander J in this Court that a magistrate does not become functus officio before a formal minute of a conviction or order has been made under s70 of the Summary Procedure Act.
Lander J held, with reference to s76B, that the section was only of application after the formal minute had been made of the conviction or order, as until then there was nothing to correct.[2] I agree. If s76B is to avail at all, it will only be able to be utilised after the order has been minuted in accordance with s70.
[2] Ibid 379.
Mr Vadasz’ next contention was that a failure to order that the sentence be cumulative upon the unexpired balance of the sentence for which the appellant was on parole cannot properly be characterised as an “error” within the meaning of s76B.
I reject that contention. The error appears when one looks at the endorsement on the application for enforcement of the breached bond. The endorsement dated 18 December 1997, initialled by the learned sentencing magistrate, reads in part:
“Suspn. Revoked ........ deft to serve nine months imp F/W.”
The letters “F/W” are shorthand for “forthwith”.
But the order that the activated sentence of nine months imprisonment be served forthwith was erroneous, as it conflicted with s31(2) of the Criminal Law (Sentencing) Act 1988 which provides:
“(1) ...................
(2)... Where a sentence of imprisonment is imposed for an offence committed by the defendant -
(a).... during a period of release on parole; or
(b) while serving a period of imprisonment pursuant to an order of the Parole Board for breach of parole conditions,
......... the sentence will (except where one of the sentences to which the defendant is subject is life imprisonment) be cumulative upon the sentence, or sentences, in respect of which the defendant was on parole.
(3)...........”
It follows that the learned sentencing magistrate had jurisdiction to correct the error under s76B of the Summary Procedure Act.
Mr Vadasz further contented that the appropriate statutory provision to correct an order in sentence is to be found in s9A of the Criminal Law (Sentencing) Act 1988. That section provides in part:
“(1).. A court that imposes a sentence on a defendant, or a court of co-ordinate jurisdiction, may, on application by the Director of Public Prosecutions or the defendant, make such orders as the court is satisfied are required to rectify an error of a technical nature made by the sentencing court in imposing the sentence, or to supply a deficiency or remove an ambiguity in the sentencing order.
(2)........”
There is an obvious overlap between that section and s76B of the Summary Procedure Act. However, both sections are remedial, and there is no reason why the court should not exercise the jurisdiction conferred by one or other sub-section, in accordance with whichever seems to be more convenient.
S9A may only be invoked on an application by the Director of Public Prosecutions or the defendant. The Director of Public Prosecutions was strictly not a party to the proceedings in the Magistrates Court and may have lacked status under s9A to bring an application.
In any event, no application was brought under s9A and I see nothing irregular in the magistrate calling the matter on under s76B of his own initiative for the purpose of correcting the error.
Mr Vadasz next argued that even if the learned sentencing magistrate was entitled to revisit the head sentence, the appellant was still subject to a non-parole period, and there was no power to decline to set a non-parole period. Mr Vadasz contended that the magistrate was either stuck with the original non-parole period of ten months, which Mr Vadasz suggested he could not vary, or alternatively, the ten months non-parole period set in December was an existing non-parole period which could only be reviewed and extended.
It is true that s32(1)(b) of the Criminal Law (Sentencing) Act provides that if a person is subject to an existing non-parole period, on the sentencing of that person to imprisonment for another offence, the court must, within the limitations imposed by the sub-section “review the non-parole period and extend it by such period as the court thinks fit”.
Although it is true that the appellant was in one sense subject to an “existing non-parole period” when he came before the court on 15 July 1998, that was a non-parole period which had been set on the basis of an erroneous misunderstanding on the part of the sentencing court which had imposed it as to the duration of the head sentence against which the non-parole period was to operate. In those circumstances, it seems to me that the setting of the non-parole period of ten months was itself as much in error, as was the order that the activated sentence be served as from 18 December 1997.
In my opinion, s76B should be given a sufficiently benign construction to enable the court to recall the existing non-parole period and set another one in the event that the non-parole period first fixed, was fixed erroneously. Furthermore, if there is an ability to recall a non-parole period and set another one, there is likewise an ability not to set one at all.
But a separate question arises as to whether or not the refusal by the learned sentencing magistrate to set a non-parole period was itself erroneous.
In the first place, in my opinion, the learned sentencing magistrate erred in refusing the adjournment sought by Ms Lindquist. Both she and the appellant had attended in court on 15 July 1998 without an adequate understanding of the reason why the matter was being called on again. The requirements of procedural fairness demanded at the very leat that the appellant and his counsel be adequately informed of the nature of the proceedings, and that an adequate opportunity be given for the appellant to give appropriate instructions. Furthermore, if the magistrate had in mind not only opening up the question of the non-parole period but also the possibility that he might not set one at all, this should have been made clear, and an opportunity afforded for submissions to be made with the benefit of instructions from the appellant as to that specific issue.
In view of the procedural unfairness which resulted from the shortcomings in that respect, I think it proper to quash the corrected sentence, including the non-parole period, and exercise the sentencing discretion afresh.
To do so, it is necessary to have regard to the facts of the two offences to which the appellant pleaded guilty.
As for the receiving charge, the facts as submitted to the court below, according to the affidavit of the police prosecutor, were that on 2 July 1996 persons, the identify of whom was unknown, entered the house of the victim and removed a portable stereo set, video cassette recorder and a computer game to a total value of $410.
A month later, on 2 August 1996, the victim was in the premises of Cash Converters at Salisbury when he saw his property on a shelf being offered for sale. He contacted the police.
According to Cash Converters, a person now identified as the appellant had entered the store on 9 July 1996 and offered the goods in question for sale by producing appropriate identification. He was given $165 for the goods.
Several weeks later, the police located the appellant who stated that he had purchased the goods from a male person whose name he gave, and that he had bought goods from this person in the past. He stated that he had paid $70 for the goods and had bought them from this person to help him out. He was unable to identify the person or give any other details of him, except for his name. He did not obtain a receipt for the goods. He denied being involved in any breaking and entry of the premises of the victim.’
The appellant, who is aged 25 years, has a long history of prior offending dating back to 1991 when he appeared on the Port Adelaide Children’s Court. Many of the offences are street offences, but interspersed in the record of convictions are a number of convictions for larceny, possession of drugs and breaking and entering.
The appellant pleaded guilty on an earlier date than 18 December 1997, when a pre-sentence report had been ordered. But the appellant was late for his appointment, with the result that no such report was prepared. The learned sentencing magistrate refused an application to make another order that such a report be obtained.
Be that as it may, it was put to the learned sentencing magistrate that the appellant had taken no part in the theft of the video cassette recorder and the other items, and met the person from whom he purchased them by chance. It was conceded, however, that the appellant knew that the items were stolen, and participated in taking the items to Cash Converters for resale, as the person from whom he purchased them lacked the necessary identification details to enter into the transaction with Cash Converters.
The appellant was born in Vietnam and came to Australia in 1983. He had an unsettled home life and left home at the age of 14, virtually living on the streets since then. His mother had not migrated when he came with his father initially, but she came out in 1994, following which there has been some attempt to create a home life. Although not living continually at home, the appellant has been spending more time at home since 1996. In 1996 he returned to Vietnam and was married there in March 1997, when he returned to Australia. He has been attempting to sponsor his wife’s passage to Australia since then.
The attention of the learned sentencing magistrate was drawn to the fact that the appellant had spent three or four months in custody during 1997 on a number of charges dating from 1996, including the charges now in question. He was granted bail on 16 October 1997 with home detention conditions and had remained on home detention bail until 18 December 1997 when he was first sentenced on the offences now in issue.
Against that background, and putting aside for one moment the question of suspension of sentence, I am of the view that the sentence of 18 weeks imprisonment imposed by the learned sentencing magistrate on the charges of receiving and obtaining money by false pretences was reasonable. Furthermore, no case has been made out to reduce the activated term of imprisonment.
It follows that I would not interfere with the overall sentence of one year, nine months, 18 weeks and 25 days.
However, although pursuant to s32(5)(c) of the Criminal Law (Sentencing) Act a court may decline to fix a non-parole period, in my opinion, this was not an appropriate case in which to take that course. Under s32(5)(c), the grounds upon which the court may decline to fix a non-parole period are:
“(i)... the gravity of the offence or the circumstances surrounding the offence;
(ii)the criminal record of the person;
(iii).. the behaviour of the person during any previous period of release on parole;
(iv)any other circumstances.”
I do not think that the gravity of the offence would have warranted a refusal to fix a non-parole period. It seems to me that only grounds (ii) and (iii) were applicable.
Although the appellant’s criminal record was bade, he was still a young man and many of the offences were minor in nature.
In my experience, it is unusual to invoke the power to refuse to set a non-parole period for somebody of this age. In all the circumstances, I consider that a non-parole period should be set.
The head sentence adds up to approximately 28 months.. An appropriate non-parole period is, in my view, 18 calendar months.
I would allow the appeal for the limited purpose of quashing the order of the learned sentencing magistrate pursuant to which he declined to set a non-parole period, and substituting an order that there be a non-parole period of 18 calendar months.
The non-parole period and the head sentence are both to run from 18 December 1997.
I will hear the parties as to costs.

[1998] SASC 6891

2 October 1998