R v ROBERTS [2016] SASCFC 41 (19 April 2016)

Last Updated: 29 April 2016

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

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R v ROBERTS

[2016] SASCFC 41

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Blue and The Honourable Justice Stanley)

19 April 2016

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - PAROLE - BREACH AND REVOCATION

CRIMINAL LAW - SENTENCE - PURPOSE OF SENTENCE - GENERALLY

On 17 August 2012, the appellant was sentenced by a Judge of the District Court for one count of aggravated robbery and one count of attempted aggravated robbery to a term of imprisonment of four years, five months and 28 days with a non-parole period of two years. The sentence was reduced from a starting point of imprisonment for seven years to five years to take account of the appellant’s guilty plea. The sentence was further reduced to four years, three months and 11 days to take account of eight months and 19 days already served in custody on remand. When the offences were committed, the appellant was on parole for earlier offending. As a result, the total of his sentences was increased by two months and 17 days representing the unexpired balance of that parole period.

On 29 September 2014, the appellant was released on parole. This was two years, one month and 12 days from the date of sentence and two years and 10 months from his return to custody. The appellant’s parole conditions included conditions to abstain from illicit drugs and to submit to urine testing.

On 25 February 2015, the appellant provided a urine sample that tested positive for methylamphetamine. On 4 March 2015, the appellant’s parole was cancelled and he was returned to custody. On 8 December 2015, a new non-parole period was set by the Judge of 16 months in relation to the outstanding sentence of one year, 11 months and 16 days. The commencement of the non-parole period was backdated to 4 March 2015.

The sole ground of appeal was that the non-parole period fixed by the sentencing Judge was manifestly excessive.

Held (per the Court):

1. A court of appeal will not interfere with the sentence passed below merely because it has a different view to the sentencing judge about the most appropriate sentence. Only if there is an error of the kind described in House v The King [1936] HCA 40; (1936) 55 CLR 499 does the appeal court have the power to quash the sentence passed below (at [14]).

2. The principles applicable to fixing a non-parole period as part of the exercise of the sentencing discretion in imposing an original sentence, apply also to the exercise of the sentencing discretion in fixing a new non-parole period pursuant to s 32(3) Criminal Law (Sentencing) Act 1988 (SA) after cancellation of a prisoner’s parole, as a result of a breach of parole. The additional factor is that, in fixing a new non-parole period, it is necessary that the court also have regard to the gravity of the breaching conduct that has resulted in the cancellation of the parole (at [25]).

3. The circumstances of the breach, when considered with all the other factors relevant to the fixing of a non-parole period, do not justify depriving the appellant or the community of the rehabilitative opportunity of parole for such a long period of time relative to the length of the head sentence (at [33]).

4. Allow the appeal. Set aside the non-parole period of 16 months. Fix a non-parole period of 13 months and 15 days to be backdated to 4 March 2015 (at [36]).

Correctional Services Act 1982 (SA) s 74(1) and s 74(3); Criminal Law (Sentencing) Act 1988 (SA) s 32(3), s 32(5)(c) and s 32(7)(a), referred to.

R v Jongewaard (2009) 266 LSJS 283; House v The King [1936] HCA 40; (1936) 55 CLR 499; R v Kreutzer (2013) 118 SASR 211; R v James (1990) 158 LSJS 7; R v Beauregard-Smith (2001) 79 SASR 408; R v Glynn [2000] SASC 323; R v Greenwood [2000] SASC 204; R v Creed (1985) 37 SASR 566; R v Stewart (1984) 35 SASR 477; R v Winters [1997] SASC 6230; R v Miller (2000) 76 SASR 151; R v Shrestha [1991] HCA 26; (1991) 173 CLR 48; Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525; R v Moyle (1996) 186 LSJS 462; R v Miller (2000) 76 SASR 151; R v Palmer [2016] SASCFC 34; Foley v Police [2008] SASC 338; R v Earley [2014] SASC 202; R v Wilson [1999] 203 LSJS 459, considered.

R v ROBERTS

[2016] SASCFC 41

Court of Criminal Appeal: Kourakis CJ, Blue and Stanley JJ

THE COURT:

Introduction

This is an appeal against sentence. The sole ground of appeal is that the non-parole period fixed by the sentencing Judge is manifestly excessive.
The appeal is from the decision of a Judge to fix a new non-parole period of 16 months in relation to an outstanding balance of sentence of one year, 11 months and 16 days. The commencement of the non-parole period was back-dated to 4 March 2015.
The appeal requires consideration of the principles applicable to fixing a non-parole period for a term of imprisonment following cancellation of the prisoner’s parole as a result of a breach of a condition of parole.

Background

In order to understand the issues on the appeal, it is necessary to set out the background to the appellant’s sentence.
On 17 August 2012, the appellant was sentenced by a Judge of the District Court for one count of aggravated robbery and one count of attempted aggravated robbery. The appellant was sentenced to imprisonment for four years, five months and 28 days with a non-parole period of two years. The sentence was reduced from a starting point of imprisonment for seven years to five years to take account of the appellant’s guilty plea. The sentence was further reduced to four years, three months and 11 days to take account of eight months and 19 days already served in custody on remand.
When the offences were committed, the appellant was on parole for earlier offending. As a result, the total of his sentence was increased by two months and 17 days representing the unexpired balance of that parole period. This resulted in total head sentences of imprisonment for four years, five months and 28 days with a non-parole period of two years, both to commence from the date of sentence.
On 29 September 2014, the appellant was released on parole. This was two years, one month and 12 days from the date of sentence and two years and 10 months from his return to custody. The appellant’s parole conditions included conditions to abstain from illicit drugs and to submit to urine testing.
On 25 February 2015, the appellant provided a urine sample that tested positive for methylamphetamine.
On 4 March 2015, the appellant’s parole was cancelled and he was returned to custody.^[1] At this time the appellant had one year, 11 months and 16 days of parole outstanding.
On 2 November 2015, the appellant applied to the District Court for a new non-parole period to be set pursuant to s 32(3) of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act).
On 8 December 2015, a new non-parole period was set by the Judge of 16 months in relation to the outstanding sentence of one year, 11 months and 16 days, the non-parole period to be treated as having commenced on 4 March 2015.

Sentencing remarks

In fixing the new non-parole period, the Judge said:

Jake Roberts, you applied to this court to have a non-parole period fixed referable to the outstanding balance of the sentence you were serving after you breached your parole. I set out the background.

On 17 August 2012 you were sentenced by his Honour Judge Smith, then of this court, for offending of aggravated robbery and aggravated attempted robbery. Those offences were committed on 29 November 2011. On the day of that offending you were on parole. You had been released from custody where you were serving a sentence for a number of Magistrates Court offences.

On 14 December 2009 in the Adelaide Magistrates Court you had been sentenced to 27 months imprisonment with a non-parole period of six months to date from 16 November 2009. You were apparently released on parole on 20 May 2010.

You breached that parole 18 months later by committing these serious robbery offences. There was a balance outstanding of some two months on your parole from the Magistrates Court offence. His Honour Judge Smith ordered you to serve the two months, 17 days and then he added to that the five year sentence he imposed for the two robbery offences, one the aggravated robbery and the other the attempted aggravated robbery.

His Honour took into account time that you had spent in custody. The effective head sentence he imposed was four years, five months, 28 days with a non-parole period of two years to start from 17 August 2012. This time you were released on parole on 29 September 2014. However, five months later you returned a positive sample to methylamphetamine, that was on 25 February this year. Your parole was cancelled on 4 March this year. Have you been in custody ever since.

You are 28. You have a reasonably lengthy antecedent history, mostly for offences of dishonesty. It seems you were addicted to heroin and would commit offences of dishonesty to support your habit. When you were first released on parole in 2010 you took steps to get off drugs. You were given permission by your parole officer to go to Odyssey House in Victoria, that is a residential drug rehabilitation centre. However, that unfortunately did not prevent you committing the robbery.

In the second release on parole you also relapsed into drug use. While in custody you have been on the methadone program. You have been exploring drug rehabilitation programs that might be available to you upon your next release. You also have an alcohol problem.

I will fix a new non-parole period for you but it will not be the low proportion of the head sentence that his Honour Judge Smith was able to impose. In relation to the outstanding sentence of one year, 11 months and 16 days I fix a non-parole period of 16 months. I backdate that to 4 March 2015.

Approach on appeal

The test to be applied in determining whether to interfere on appeal with a decision on sentence is set out in R v Jongewaard^[2] where Doyle CJ said:^[3]

The issue for this Court is whether the Judge was wrong in imposing the sentence that he imposed, and in deciding not to suspend that sentence. This Court does not substitute its opinion as to an appropriate sentence. The Court will intervene only if error is established. As Gleeson CJ, Gummow, Hayne and Callinan JJ said in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [25]:

As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504-505, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender's appeal, as "manifest excess", or in a prosecution appeal, as "manifest inadequacy".

A court of appeal will not interfere with the sentence passed below merely because it has a different view to the sentencing judge about the most appropriate sentence. Only if there is an error of the kind described in House v The King^[4] does the appeal court have the power to quash the sentence passed below. As was said in R v Kreutzer by Kourakis CJ,^[5] if the error identified by the appeal court is manifest excess or inadequacy (an outcome error), the Full Court will fix the sentence it thinks ought to have been imposed. If the error identified by the appeal court is one of failing to take into account all relevant matters or taking into account extraneous ones (a process error), the Full Court may fix a different sentence in accordance with what it thinks ought to have been imposed, even if the sentence imposed below was not, in itself, manifestly unreasonable. On the other hand, the Full Court may, after finding the process error, nonetheless take the view that the same sentence should have been passed. In such a case, it will dismiss the appeal.

Fixing a new non-parole period

Section 32(3) of the Sentencing Act provides:

Where a prisoner is serving a sentence of imprisonment but is not subject to an existing non-parole period, the sentencing court may, subject to subsection (5), fix a non-parole period, on application by the prisoner or the presiding member of the Parole Board.

The authorities in relation to the operation of s 32 establish certain principles. First, s 32(3) facilitates the fixation of a non-parole period even though parole has been cancelled and the prisoner is thus liable to serve the unexpired term of his or her sentence.^[6] Secondly, the primary purpose of s 32 itself is to require the court to fix a non-parole period, subject to the provisions of s 32(5)(c) (which is not relevant to this matter).^[7] Thirdly, when fixing a non-parole period, the court must take into account time already served as required by s 32(7)(a) of the Sentencing Act.^[8]
In R v Creed,^[9] King CJ, with whom Cox and Olsson JJ agreed, said:^[10]

In fixing a non-parole period, as in fixing a head sentence, a judge has to bear in mind the purposes for which sentences are imposed. The non-parole period, no less than the head sentence, must reflect the basic consideration of justice that the punishment should fit the crime, having regard both to the offence and the offender, and it must reflect the community's sense of justice, what in some of the cases is called “the moral sense of the community”. For that reason alone the non-parole period, no less than the head sentence, should be properly proportionate to the gravity of the crime.

In R v Stewart,^[11] King CJ said:^[12]

Having considered what is the minimum term of imprisonment which is required to meet the punitive and protective purposes of punishment I must then consider whether parole is appropriate on other grounds. That involves a consideration of the likelihood of the applicant responding to parole. I must consider what prospects there are of his rehabilitation by means of parole and what prospects there are of his observing the terms of parole, responding to it and leading a good and useful life in consequence.

In R v Winters,^[13] Doyle CJ, with whom Matheson and Olsson JJ agreed, considered the observations of King CJ in Stewart. The Chief Justice said:

I do not suggest that what King CJ there said is exhaustive of the matters that require consideration. However, as I have already said, these passages conveniently summarise the approach to be taken.

It is clear from what his Honour said, that in fixing a non-parole period the Court must continue to bear in mind and give appropriate weight to the purposes for which punishment is imposed. That was recognised by the High Court in Power v The Queen [1974] HCA 26; (1974) 131 CLR 623 and more recently affirmed by the High Court in Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525. As was said by Mason CJ and McHugh J (at 531):

“... It follows that the considerations which the sentencing judge must take into account when fixing a minimum term will be the same as those applicable to the setting of the head sentence. Obviously, the weight to be attached to these factors and the way in which they are relevant will differ due to the different purposes behind each function.”

This is so, even though the purpose of the parole system is directed towards rehabilitation: The Queen v Shrestha [1991] HCA 26; (1991) 173 CLR 48 at 69.

The fixing of a non-parole period serves a different function from the setting of a head sentence. In R v Miller,^[14] Doyle CJ observed that, in accordance with what was said by the High Court in R v Shrestha,^[15] in fixing a non-parole period it is appropriate to give greater weight to rehabilitation than would be the case in fixing the head sentence. This recognises the different purpose to be served by the fixing of a non-parole period as against a head sentence^[16] and the ability of the Parole Board to assess the prisoner’s suitability for parole when the time comes.^[17]
The purpose of fixing a non-parole period is to determine the optimum time when the prisoner will respond to parole and make the most of the opportunity it allows for rehabilitation after serving the minimum period necessary to meet the punitive and protective purposes of punishment. It is for that reason that relatively more weight is given to rehabilitation in fixing the non-parole period. The starting point for fixing a non-parole period is the length of the head sentence. It is a different discretionary exercise to fixing the head sentence, notwithstanding that it is informed largely by the same considerations. Nonetheless the discretion demands a balancing of competing sentencing objectives.
In R v Palmer,^[18] Kourakis CJ said:^[19]

The need for punishment and protection will generally result in non-parole periods of between one half and three quarters of the head sentence. Where in that range, or in special cases where outside that range, the non-parole period is fixed will depend on a realistic balancing of positive and negative indications of the offender’s prospects of rehabilitation...The safer course is to fix a lower or higher proportion by reference to the usual range depending on whether the offender has relatively poor or good indications for rehabilitation. That assessment must be based largely on factors like the offender’s antecedents, previous responses to community corrections orders, degree of contrition and demonstrated willingness and capacity to overcome criminogenic factors.

In Foley v Police,^[20] Kourakis J identified the relevant considerations in fixing a non-parole period for a term of imprisonment which includes a period of unexpired parole as:^[21]
- The prospects of rehabilitation on parole.
- The gravity of the offences on which the offender was imprisoned and then paroled.
- The gravity of the breaching offences on which the offender was imprisoned or the breach of the designated condition.
- The need to deter the offender and others from commission of offences of the type with respect to which he was on parole and offences of the type that breached that parole, or the need to deter the offender and others from breaching a designated condition.
- The need to deter the offender and others from breaching parole.
In R v Earley,^[22] Stanley J addressed the considerations relevant to fixing a new non-parole period pursuant to s 32(3). Stanley J said:^[23]

In considering the appropriate length of a non-parole period to be imposed, a number of matters are to be taken into account. The non-parole period fixed should continue to reflect the degree of criminality involved in the offending for which the sentence of imprisonment was initially imposed. This process involves an assessment of the amount of time which the prisoner must spend in prison in order to satisfy the punitive, deterrent and preventive purposes of punishment. Other relevant considerations include:

• the gravity and circumstances of the original offence;

• the nature, circumstances and seriousness of the breach or breaches of parole;

• the protection of the community from violence at the hands of the applicant;

the likely future response to supervision and whether the applicant is a good candidate for parole;

• the desirability of the applicant undertaking treatment if released;

the sentencing standards that are applicable at the time of the cancellation of the parole; and
all the considerations relevant to the fixing of a head sentence, although with greater weight given to rehabilitation.

These authorities demonstrate that, subject to one additional factor, the principles applicable to fixing a non-parole period as part of the exercise of the sentencing discretion in imposing an original sentence apply also to the exercise of the sentencing discretion in fixing a new non-parole period pursuant to s 32(3) after cancellation of a prisoner’s parole as a result of a breach of parole. The additional factor is that, in fixing a new non-parole period in these circumstances, it is necessary that the court also have regard to the gravity of the breaching conduct that has resulted in the cancellation of the parole.^[24]
In R v Wilson,^[25] Bleby J said:^[26]

I do not suggest that the previous record is altogether irrelevant in such an exercise. What will be relevant in determining whether a non-parole period should be fixed, and in fixing the period in these circumstances, are the nature and circumstances of the breach or breaches of parole, an assessment of the subject’s likely future response to supervision and whether he is a good candidate for parole, bearing in mind, particularly, the need to protect members of the community from violent episodes. This seems to have been behind the reasoning of King CJ in R v James (1990) 158 LSJS 7 at 9.

As was observed by Kourakis J in Foley v Police,^[27] in R v Wilson^[28] the offender breached parole by breaching a designated condition. In those circumstances, it was understandable that particular attention needed to be given to the seriousness of the breach. The gravity of the breaching offence may inform both the need for deterrence and the prospect of rehabilitation in fixing a new non-parole period. At least two factors affecting the fixing of the non-parole period when parole has been breached suggest that it will be a higher proportion of the head sentence in those cases than otherwise. First, the breach itself will usually reflect adversely on the prospects of rehabilitation. Secondly, the sentencing court must have regard to the need to deter parolees from breaching their parole. However, these considerations are merely factors that must be weighed in the balance in the exercise of the sentencing discretion. This is consistent with the approach Stanley J took in R v Earley.^[29]

Consideration

In this case the appellant was serving a sentence of imprisonment for serious offences that had their genesis in an underlying drug addiction. The Judge who imposed the original sentence of imprisonment of four years, five months and 28 days fixed a non-parole period of two years. If the Judge had back-dated the sentence instead of reducing it by eight months and 19 days for time in custody, the total head sentence would have been five years together with two months and 17 days for the earlier unexpired parole. The non-parole period would have been two years, eight months and 19 days, being 52 per cent of the head sentences.
The appellant was released on parole on 29 September 2014 after serving two years and 10 months from the time he was taken into custody. The appellant was on parole for four months and 26 days before he breached the condition of his parole that he abstain from using illicit drugs.
The Director submits that this breach of the parole conditions is serious because it represented a lapse into drug taking. That is significant in this context because there is a clear nexus between the appellant’s past drug use and serious criminal conduct by him to support that drug taking. In these circumstances, there is no error by the sentencing Judge in fixing a non-parole period of 16 months which must have been informed by the need to protect the community from the risk that the appellant’s prospects of rehabilitation are poor and the chance that once released he might relapse into the commission of similar crimes. Accordingly, the length of the non-parole period reflected the need for specific and general deterrence and protection of the public.
We do not accept this submission. It is relevant that, given the appellant’s history of drug use, the nature and circumstances of the breach which resulted in the cancellation of his parole is the very kind of set-back that could be expected because of his drug addiction. In this context, it is significant that the appellant was seeking treatment for his drug addiction, the breach did not involve a descent into further criminal conduct, and he did not commit any other breach of his parole after his release on 29 September 2014.
It is appropriate to assess the length of the new non-parole fixed by the Judge by assuming that the original sentence and non-parole period had been back-dated rather than reduced for time in custody. On that assumption, the original non-parole period would have been two years, eight months and 19 days, the defendant was released on parole a further one month and 11 days thereafter, and the Judge extended the non-parole period by 16 months, making a total of four years and two months, being 73 per cent of the original notional head sentence of five years, eight months and 19 days.
The sentencing Judge made no error in determining to fix a non-parole period that represented a higher proportion of the head sentence than the original non-parole period. However, there was both a process error and an outcome error. The Judge erred in failing to have regard to the considerations identified at [23] to [25] above which are relevant to fixing a new non-parole period after a cancellation of parole. Further, given the nature and circumstances of the breach, a further period of 16 months in the context of an effective head sentence of five years, two months and 17 days, where the appellant had already served two years and 10 months in custody before his release on parole, is manifestly excessive. It is outside the range of non-parole periods that could availably be fixed in these circumstances for this appellant. The circumstances of the breach, when considered with all the other factors relevant to fixing a non-parole period, do not justify depriving the appellant or the community of the rehabilitative opportunity of parole for such a long period of time relative to the length of the head sentence. Accordingly, the non-parole period of 16 months must be set aside.

Resentencing

In this case the sentencing Judge ordered that the non-parole period of 16 months commence on 4 March 2015. The appellant has served 13 months and 15 days of this non-parole period. If we were exercising the sentencing discretion afresh without this period of the non-parole period having been served, we would have fixed a period of less than 13 months and 15 days. However, given the current position, we are content to fix a non-parole period of that length.
A non-parole period of that length is more than enough to reflect the minimum time justice requires the appellant must serve having regard to all the circumstances of the breach of his parole conditions and the necessity for deterrence, both specific and general, the protection of the public and the requirements of punishment.

Conclusion

Authorities Cited15

Referred to (15)