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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Uthmann v The King

Details

AGLC: Uthmann v The King [2022] SASCA 121
Case: [2022] SASCA 121
Decision Date: 24 November 2022

CaseChat Overview and Summary

The applicant, Uthmann, appealed against a sentence imposed by a sentencing judge. The dispute concerned the proper calculation of a non-parole period for a new offence, given that the applicant had previously been on parole and that period had expired by the time of sentencing. The appeal was heard by the Court of Criminal Appeal.

The legal issues before the Court were whether the sentencing judge erred in principle by failing to properly account for the applicant's expired period of parole when fixing the non-parole period for the new offence, and whether the resulting sentence was manifestly excessive. Specifically, the Court had to consider the operation of section 47(2) of the Sentencing Act in circumstances where the unexpired portion of a previous parole order had been served by the time of the new sentencing.

The Court reasoned that while section 47(2) of the Sentencing Act requires a court to consider the "total period of imprisonment" a person is liable to serve, this only applies to periods that the person is actually liable to serve by virtue of the new sentence and any unexpired balance of a previous sentence. In this case, by the time of sentencing, the applicant had already served the period of unexpired parole set by the Parole Board. Therefore, there was no existing sentence after which the new sentence could be served cumulatively, nor was the applicant liable to serve the balance of the previous sentence. However, the Court affirmed that the expiry of a previous parole period is a relevant consideration when fixing a non-parole period for subsequent offending. Failure to take this into account could lead to a manifestly excessive non-parole period. The Court noted that the manner in which this expired period is taken into account is within the sentencing judge's discretion, which could involve utilising section 30 of the Sentencing Act or adjusting the non-parole period.

The Court granted permission to appeal but ultimately dismissed the appeal. It found that the sentencing judge had considered the expired parole period as part of the applicant's personal circumstances and, given the applicant's status as a serious repeat offender and the minimum non-parole period applicable, the imposed sentence of five years (exceeding the minimum by a small margin) was not manifestly excessive.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.