Uthmann v The King - [2022] SASCA 121

Supreme Court of South Australia
(Court of Appeal: Criminal)
UTHMANN v THE KING
[2022] SASCA 121
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice Bleby)
24 November 2022
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - JUDGE ACTED ON WRONG PRINCIPLE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - OTHER FACTORS - OFFENCE COMMITTED WHILE ON BAIL, PROBATION OR PAROLE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - TRAFFICKING OR SALE AND SUPPLY
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - OFFENSIVE WEAPONS - FIREARMS - POSSESSION - GENERALLY
Application for permission to appeal against sentence.

The applicant pleaded guilty to one count of trafficking in a controlled drug, namely methylamphetamine, contrary to s 32(3) of the Controlled Substances Act 1984 (SA); one count of aggravated possession of a firearm without a licence, contrary to s 9(1) of the Firearms Act 2015 (SA); and one count of possessing ammunition, contrary to s 31(1) of the Firearms Act.
On 18 May 2022, a judge of the District Court sentenced the applicant to a period of imprisonment of six years and six months, reduced by five per cent on account of the applicant’s guilty pleas to six years and two months. The judge fixed a non-parole period of five years. The sentence and the non-parole period were backdated to commence on 13 October 2020.
The applicant contended the sentencing judge erred when fixing the non-parole period by failing to consider the ‘total period of imprisonment’ that he was liable to serve within the meaning of s 47(2) of the Sentencing Act 2017 (SA). He further complained the non-parole period was manifestly excessive, having regard to the previously cancelled period of parole.
Held (by the Court), granting permission to appeal but dismissing the appeal:
1.On 18 May 2022, the applicant was, within the words of s 47(2), no longer ‘liable to serve’ a total period of imprisonment ‘by virtue of the new sentence and the balance of the previous sentence’. As at the date of sentencing, there was no ‘total period of imprisonment’ within the contemplation of s 47(2) that the applicant was liable to serve. There was therefore no basis for fixing the non-parole period to commence on 6 January 2020.
2.It is open for a sentencing judge to ameliorate what might otherwise be an arbitrary discrepancy depending on whether the sentence commenced before or after the expiry of the previous parole period. The fact that a sentence is to follow on immediately from a period in prison due to the revocation of parole is a relevant personal circumstance to be taken into account.
3.The sentencing judge considered the applicant’s expired period of parole as part of the applicant’s personal circumstances. The minimum non-parole period he could impose pursuant to s 54(1)(b) of the Sentencing Act, sentencing the applicant as a serious repeat offender, was four years, 11 months and six days. Having regard to the seriousness and circumstances of the offending, and the applicant’s personal circumstances, a period of five years could not be said to be manifestly excessive.

Criminal Law (Sentencing) Act 1988 (SA); Correctional Services Act 1982 (SA) ss 74, 75; Controlled Substances Act 1984 (SA) s 32(3); Firearms Act 2015 (SA) ss 9(1), 31(1); Sentencing Act 2017 (SA) ss 44, 47(2), 45(2), 54(1)(b), referred to.
Da Silva v The Queen [2020] SASCFC 66; R v Culley (2019) 134 SASR 92; R v De La Cerna [2018] SASCFC 8; R v Gauci [2017] SASCFC 166; R v Waugh (2005) 93 SASR 274, considered.

UTHMANN v THE KING
[2022] SASCA 121
Court of Appeal – Criminal: Livesey P, Doyle and Bleby JJA

THE COURT: This application for permission to appeal against sentence raises a question of construction of s 47(2) of the Sentencing Act 2017 (SA).
The applicant pleaded guilty to one count of trafficking in a controlled drug, namely methylamphetamine, contrary to s 32(3) of the Controlled Substances Act 1984 (SA); one count of aggravated possession of a firearm without a licence, contrary to s 9(1) of the Firearms Act 2015 (SA); and one count of possessing ammunition, contrary to s 31(1) of the Firearms Act.
On 18 May 2022, a judge of the District Court sentenced the applicant to a period of imprisonment of six years and six months, reduced by five per cent on account of the applicant’s guilty pleas to six years and two months. The judge fixed a non-parole period of five years. This was approximately four-fifths of the head sentence, the applicant falling to be sentenced as a serious repeat offender.[1]
[1] Sentencing Act 2017 (SA), s 54(1)(b).
The sentence and the non-parole period were backdated to commence on 13 October 2020. This date requires explanation. The applicant committed the subject offending and was arrested on 6 January 2020. At that time, he was on parole in respect of a sentence of imprisonment for a previous trafficking offence. He had been sentenced to two years, four months and 24 days’ imprisonment for that offence, commencing on 13 March 2018.
The applicant was remanded in custody on the date of his arrest, 6 January 2020. Then on 20 June 2020, the Parole Board cancelled his parole pursuant to s 74 of the Correctional Services Act 1982 (SA) (CSA). It did so on account of the applicant having breached his parole conditions prior to the subject offending, on 28 October 2019. The Parole Board determined, pursuant to s 74(1)(b) of the CSA, that the applicant was liable to serve the balance of nine months and eight days of the sentence for the previous offence in prison, backdated to commence on 6 January 2020 and expiring on 13 October 2020.
The sentence and non-parole period for the subject offending, imposed on 18 May 2022, were then backdated to commence on 13 October 2020. This was the date that the balance of the previous sentence expired, the applicant having remained in custody since then.
The offending
On 6 January 2020, police stopped a car being driven by the applicant. They located 130g of a substance, containing 86g of methylamphetamine, on the front passenger seat. This had been divided into three separate amounts, each weighing about an ounce.
Police also located under the driver’s seat a Margolin Vostok .22 calibre handgun fitted with a suppressor and magazine that held nine rounds. They located a further 35 .22 calibre rounds in an Armani bag on the front passenger seat.
The judge’s approach to sentencing
The sentencing judge accepted that following the applicant’s release from prison on parole, he had been prevailed upon by former associates to resume trafficking in order to repay a drug debt. The judge accepted that, at the time of his arrest, he was not a street-level dealer, but rather was acting as a courier. The judge observed that the amount of drug was significant and acknowledged the enormous harm methylamphetamine causes to users and the community more broadly. He noted that the offences were very serious examples of their type. He described the offending as follows:
You intended to supply a substantial amount of methylamphetamine and a loaded firearm with a suppressor to another, as well as ammunition suitable for that firearm. You are only though to be sentenced for the offences to which you pleaded guilty.
Given the amount of drug, your involvement in the drug trade over many years, including interactions with people prepared to harm you in order to recover debts, as well as what you were to deliver, I have no doubt you knew the firearm was to be used in criminal activity, likely the drug trade. Firearms are highly valued by those involved in the drug trade and other serious criminal activity.
No submission was made about the nature of your reward for committing these offences. Given the value of the drugs and likely value of the firearm, I am satisfied beyond a reasonable doubt you would have received some reward. However, I cannot quantify that in any meaningful way.
The judge gave full account to the matters raised in mitigation of penalty. At the time of the offending, the applicant was 25 years old and at sentencing he was 28 years old. He was raised by his mother and stepfather. Until he was 17 years old, he believed his stepfather to be his natural father. Upon learning that not to be the case, the applicant became angry, and his life became unsettled. He connected with his natural father for a time, but this man was a violent alcoholic. The applicant had the support of his family, including by help with accommodation and obtaining work.
The applicant had some stability in his life until he was introduced to alcohol and drugs at the age of 14. He began running away from home at 15 and was evicted from the family home at 16. He became addicted to crystal methamphetamine when he was 17. He has low self-esteem because of comments made about his weight by his mother, his stepfather, and others. He stopped attending school during year 10. There have been periods of his life when he had regular employment.
The judge had regard to the applicant’s Offender History Report. This records, from 2013, offences of fighting, disorderly behaviour, assault, driving offences and failing to comply with a bail agreement. His first trafficking conviction was in 2015. At the time of his past offending, he was under pressure to repay a drug debt. At the start of 2015, he was assaulted by five men, two of whom had knives. He received severe stab wounds and was hospitalised. He was stabbed again, to the shoulder, in November 2016. He has post-traumatic stress disorder as a result of being assaulted by those seeking to recover drug debts. He has also reported being harassed in custody, by associates of those to whom he owed money.
The judge said, with respect to the fact that the applicant was on parole at the time of the subject offending:
That you were on parole aggravates your offending. Outstanding parole of seven months and four days was cancelled and has already been served. Nonetheless, that period is part of your personal circumstances.
The judge fixed a single sentence for the three offences. He indicated notional starting points as follows:
For the trafficking offence, I identify a notional starting point of five years, six months.
…
For the possession of a firearm offence, I identify a notional starting point of four years, three months.
For the possession of ammunition offence, I identify a notional starting point of six months.
Had I imposed separate sentences, I would have made the sentences for the firearm and ammunition offences wholly concurrent.
In coming to an appropriate starting point for a single sentence, the judge had regard to the fact that the offences were committed at the same time and as part of a single job for another or others. He noted the importance of not punishing the applicant twice for considerations that might be common to both sets of offences.
Having regard to the need for the starting point to be proportionate to the seriousness of the applicant’s offending and his personal circumstances, the judge imposed a sentence of six years and six months’ imprisonment, reduced by five per cent to six years and two months’ imprisonment for the applicant’s guilty pleas.
As noted above, the judge was required to fix a non-parole period of at least four-fifths of the head sentence, as the applicant was a serious repeat offender. In doing so, the judge considered the applicant’s guilty pleas; his age, being one where ‘it was not too late to change [his] ways’; the difficulty the time in custody has been and will be because of the applicant’s post-traumatic stress disorder; limits on the applicant’s freedoms and visits because of the COVID-19 pandemic; and the threats made to the applicant.
The appeal
The applicant has not challenged the head sentence. His primary complaint is that the sentencing judge erred when fixing the non-parole period by failing to consider the ‘total period of imprisonment’ that he was liable to serve within the meaning of s 47(2) of the Sentencing Act. That section provides:
(2)If the sentence of imprisonment is imposed for an offence committed during a period of release on parole or conditional release from a previous sentence of imprisonment or detention, the court, in fixing a non-parole period under subsection (1)(a), must have regard to the total period of imprisonment (or detention and imprisonment) that the person is, by virtue of the new sentence and the balance of the previous sentence, liable to serve.
The applicant contended that the history recounted above meant that the ‘total period’ he was ‘liable to serve’ within the meaning of s 47(2) commenced on 6 January 2020, the date on which he was imprisoned for the balance of the sentence for the previous offending. However, the sentencing judge had regard only to the period of imprisonment attributable to the subject offending, commencing 13 October 2022, when fixing the non-parole period.
The second Notice of Appeal against Sentence also complains that the non‑parole period is manifestly excessive, having regard to the previously cancelled period of parole.
The key submission made on behalf of the applicant is that a portion of the period attributable to the earlier sentence should be incorporated into the mandatory minimum non-parole period for this subject offending. The applicant submitted that notwithstanding that this period had expired, the sentencing judge had the power to backdate the commencement of the non-parole period to 9 January 2020, the date the applicant was taken into custody.
The surrounding statutory framework
Pursuant to s 44(1) of the Sentencing Act, a sentencing judge is required to specify the date of commencement of the sentence. As is conventional, it was open to the sentencing judge to take time already spent in custody into account, whether by reducing the sentence or directing that it commences at an earlier date.[2]
[2] See Sentencing Act 2017 (SA), ss 44(2) and (3).
As noted above, the Parole Board had cancelled the applicant’s earlier parole pursuant to s 74 of the CSA. Section 74(1)(b) provides that if the Board is satisfied that:
(b) in the case of any other person released on parole – the person has, while on parole, breached the condition of the parole that is constituted by the commission of an offence or that is, in the opinion of the Board, a serious breach,
the Board may, by order, direct that the person serve in prison the balance of the sentence, or sentences, of imprisonment in respect of which the person was on parole, being the balance unexpired as at the day on which the breach was committed.
Section 75(1) of the CSA provides:
(1)     Where—
(a)     a person is sentenced to imprisonment for an offence committed while on parole and—
(i)    the sentence is not suspended; or
(ii)the court does not order that the person serve the sentence subject to a home detention order or an intensive correction order under the Sentencing Act 2017; or
(b)     the suspension of a sentence of imprisonment imposed for an offence committed by a person while on parole is revoked,
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 day on which the offence was committed.
Section 75(3) provides:
(3)Any period for which the person is detained in custody or in prison after committing the offence is to be counted as or towards the period that the person is liable to serve under this section in prison or under a home detention order or intensive correction order (as the case requires) (and any date on which the sentence is to be taken to have commenced will be fixed accordingly).
As a note to s 75(1) observes, s 45(2) of the Sentencing Act requires that any sentence for an offence committed whilst on parole is to be cumulative on any sentence in respect of which the defendant was on parole. In addition, by s 75(3), any period for which a defendant is detained after committing an offence whilst on parole, must be counted towards the period which the defendant is liable to serve under s 75.
These provisions operate where a court is required to address the consequences of breach of a parole condition and the need to serve an unexpired parole period, together with new offending for which the defendant is yet to be sentenced and for which a new non-parole period is yet to be fixed.
Section 47(2) of the Sentencing Act operates in that setting. The Court, when fixing parole, must have regard to the ‘total period of imprisonment’ but only that which ‘the person is, by virtue of the new sentence and the balance of the previous sentence, liable to serve’.
The operation of s 47(2)
In this case, the effect of the Parole Board order was that the applicant was liable to serve a period of unexpired parole in prison. The Parole Board set both a start date and an end date for that period in prison.
Neither date was set by the Court. By the time the applicant fell to be sentenced for the subject offending, that period set by the Parole Board had expired. However, the practical effect of the structure of both the Parole Board’s order and the sentence for the subject offending was that the applicant was imprisoned for a continuous period, commencing on 9 January 2020.
In R v De La Cerna,[3] the Court of Criminal Appeal made observations regarding the operation of the predecessor provisions to ss 45 and 47 of the Sentencing Act in the CriminalLaw (Sentencing) Act 1988 (SA) (CLSA), when addressing cumulative sentences and the need to fix a non-parole period in conjunction with s 75 of the CSA. These were to the effect that where an unexpired period of parole had been served by the time of sentencing, that period did not form part of the total period of imprisonment that the defendant was liable to serve:[4]
Sections 31(2) and 32(2) of the CLSA are premised on a defendant being liable to serve both the balance of the previous sentence pursuant to s 75 of the CSA and the new sentence imposed for the offence committed whilst on parole. However, in this case, by operation of s 75(3) of the CSA, the unexpired portion of the parole period had been fully served by the time the Judge came to sentence and there was therefore no existing sentence after which the new sentence could be served cumulatively. Nor was s 32(2) of the CLSA engaged because Mr De La Cerna was no longer liable to serve the balance of the previous sentence.
[3] [2018] SASCFC 8.
[4] R v De La Cerna [2018] SASCFC 8 at [10] (Kourakis CJ, Blue and Doyle JJ).
This did not, however, mean that the existence of an expired period is irrelevant to sentencing for subsequent offending. Failure to take it into account when setting a non-parole period may result in a manifestly excessive non-parole period:[5]
Even though a sentencing court would ordinarily order that the non-parole period commence on the same date as the head sentence, that will not always be appropriate. For example, this court has just held in R v Gauci[6] that when a new sentence is imposed for an offence committed whilst on parole and the offender is still serving the balance of his parole at the time of sentence, sub-s (2) of s 32 of the CLSA is most effectively accommodated by backdating the non-parole period to the date on which the offender was taken into custody. Notwithstanding the limited application of s 32(2) of the CLSA in a case in which the balance of the previous sentence is still being served, the discharge of the balance of the previous sentence before the imposition of the new sentence is a relevant consideration when fixing the non-parole period for the new sentence. Failure to have regard to that circumstance may result in the fixing of a non-parole period which is manifestly excessive because, but for the expiry of the balance of the previous parole, an overall non-parole period would otherwise have been fixed for both the balance of the parole and the new sentence. The way in which the discharge of the unexpired parole is taken into account is a matter in the discretion of the sentencing Judge. Section 30 of the CLSA may be utilised or the non-parole period for the new sentence adjusted, depending on all of the circumstances.
(Emphasis added; footnote in original)
[5] R v De La Cerna [2018] SASCFC 8 at [12] (Kourakis CJ, Blue and Doyle JJ).
[6] [2017] SASCFC 166.

This is not a case like R v Gauci,[7] R v Culley[8] or Da Silva v The Queen,[9] where there were presently existing non-parole periods which the Court was required to take into account when reviewing and extending a non-parole period under s 47, having regard to new offending. It is that difference, however, that illustrates the applicant’s complaint. From his perspective, he is now subjected to a ‘total period of imprisonment’ that commenced on 9 January 2020. The date of 13 October 2020 has no practical significance for him, as he has remained imprisoned throughout.
[7] [2017] SASCFC 166.
[8] (2019) 134 SASR 92.
[9] [2020] SASCFC 66.
The applicant submitted that he is ‘liable to serve’ that ‘total period of imprisonment’ within the meaning of s 47(2). While one component has been served, there is, he submitted, no warrant under the Sentencing Act for splitting up that total period. Neither, in his submission, does the use of the present tense, ‘is liable to serve’ detract from this. It is simply a descriptor of the total period.
The applicant submitted that arbitrary and unjust outcomes would result if it were otherwise. His own case illustrated that the difference in result could be stark, depending on whether he was sentenced before or after 13 October 2020, the date the previous period expired. This was particularly so as he was required to be sentenced as a serious repeat offender. The four-fifths requirement had the potential to operate more harshly if it necessarily ran from the later date. Setting a non-parole period from 9 January 2020, on the other hand, would likely result in an overall shorter time in prison, even allowing for the prospect that the non-parole period would be comprised of the four-fifths period for the subject offending and some further period on account of the period of cancelled parole.
The applicant further submitted that the approach indicated in R v De La Cerna could not be correct as a matter of statutory language. This was on the basis that on the approach taken in that case, any period of imprisonment that has already been served would not be one that the defendant is, on sentencing, ‘liable to serve’. A non-parole period could never be backdated.
It is convenient to start with these submissions as to the absurdity of potential outcomes. We accept that the approach indicated by the Court in R v De La Cerna has the potential to lead to different outcomes, depending on whether a defendant is sentenced before or after expiry of the previous, unexpired period now being served in prison. However, as the Court also said in R v De La Cerna, a sentencing judge is required in any event to take into account the discharge of an unexpired parole period. How that is done is a matter for the discretion of the sentencing judge. A failure to take it into account may result in a manifestly excessive non‑parole period.
In other words, on the approach identified in R v De La Cerna, it is open for a sentencing judge to ameliorate what might otherwise be an arbitrary discrepancy depending on whether the sentence commenced before or after the expiry of the previous parole period. The fact that a sentence is to follow on immediately from a period in prison due to the revocation of parole is, in any event, a relevant personal circumstance to be taken into account.[10]
[10] See, e.g., R v Waugh (2005) 93 SASR 274 at [39] (White J, Doyle CJ and Sulan J agreeing).
Next, we do not accept the applicant’s submission that the consequence of the approach identified in R v De La Cerna would be that a non-parole period could never be backdated on an application of s 47(2). An ordinary reading of the words ‘is liable to serve’, connotes the present tense. However, the subject that is described by that phrase is ‘the total period of imprisonment’. It is not, in its terms, that part of the total period of imprisonment that remains to be served at the time of sentencing. If the person is sentenced prior to expiry of the previous period, the present tense descriptor ‘is liable to serve’ will operate to describe the total period, however much of it has been served in fact.
It does not undermine that conclusion to posit that where the previous parole period has expired before sentencing, s 47(2) does not operate on that previous period, as the defendant is no longer ‘liable to serve’ that period. The section is expressly concerned with identifiable periods that a defendant is presently liable to serve. To take the present case as an example, the applicant is under a head sentence of six years and two months. He is (presently) ‘liable to serve’ that period of imprisonment, which commenced on 13 October 2020.
As a matter of language and logic, therefore, we do not accept that the approach identified in R v De La Cerna has the absurd results for which the applicant contended.
Returning to the text of s 47(2), the phrase ‘is liable to serve’ is a descriptive phrase, operating in the present tense, qualifying a ‘period’ of imprisonment. In our view, as a matter of ordinary language, it connotes a present liability. Where there is, at the time of sentencing, an existing unexpired parole period required to be served in prison and a new sentence imposed of a period of imprisonment, there results a present liability to serve both of those periods. Section 47(2) is a legislative device that accumulates those two periods into a ‘total period of imprisonment’ that the defendant is liable to serve.
Where the parole period has expired by the time of sentencing, however, there is no present liability to serve that period in prison. There is therefore nothing in that regard on which s 47(2) can operate, expressed as it is, to recognise a ‘total period of imprisonment’ in respect of which there is a present liability.
For this reason, we would respectfully endorse the approach indicated in R v De La Cerna, although we acknowledge, with respect, that the Court in that case did not tie its reasoning as set out above directly to the wording of the section in the way that we have done.
In our view, on 18 May 2022, the applicant was, within the words of s 47(2), no longer ‘liable to serve’ a total period of imprisonment ‘by virtue of the new sentence and the balance of the previous sentence’. It follows that s 47(2) of the Sentencing Act did not apply to the applicant. As at the date of sentencing, there was no ‘total period of imprisonment’ within the contemplation of s 47(2) that the applicant was liable to serve. There was therefore no basis for fixing the non-parole period to commence on 6 January 2020.
However, the period of imprisonment imposed by the sentence still followed on immediately from a period in prison due to the revocation of parole. That was a relevant personal circumstance of the applicant.
As already observed, the sentencing judge considered the applicant’s expired period of parole as part of the applicant’s personal circumstances. In the event, he was required to sentence the applicant as a serious repeat offender. The minimum non-parole period he could impose pursuant to s 54(1)(b) of the Sentencing Act was four years, 11 months and six days. He imposed a period of five years. Having regard to the seriousness and circumstances of the offending, and the applicant’s personal circumstances as set out above, this could not be said to be manifestly excessive.
Conclusion
We grant permission to appeal. We dismiss the appeal.