FRANKS v POLICE No. SCGRG-98-914 Judgment No. S6897 [1998] SASC 6897

The magistrate sentenced the appellant to imprisonment for 16 weeks for the offence of receiving, to commence at the expiration of the unexpired balance of the appellant's period of parole. The magistrate declined to fix a non-parole period. The reason given for that by the magistrate was expressed as follows:

"Given your breach of home detention and further your breach of parole and your extensive record, including revocation of parole, I do not regard further fixation of a non-parole period as appropriate. No non-parole period set - defendant to serve entire term."

The net result was a total period of imprisonment in excess of one year and 10 months with no non-parole period.

The circumstances of the offence were that the victim's house had been broken into on 28 August 1997, and one of the articles stolen was a left-handed Fernandez electric guitar valued at $600. On 29 August the appellant sold the same guitar to Cash Converters at Gawler for the sum of $130. When questioned by police on 24 September 1997 the appellant asserted that he had bought the guitar some two to four weeks earlier through a friend with whom he was living, and that he had paid $150 for it. He produced a receipt, and acknowledged having subsequently sold it to Cash Converters at Gawler. However, the receipt he produced bore a date of 3 September 1997, some five days after the appellant had sold the guitar. On that discrepancy being pointed out to him, he exercised his right to silence.

The appellant is aged 34. He has an extremely poor antecedent record to which I will need to refer later. He was living in a defacto relationship with three children of the union. He had last worked as a part-time removalist.

The appellant was unrepresented in the Magistrates' Court. His grounds of appeal were as follows:

1. That the learned Magistrate erred in the exercise of his discretion by failing to fix a non-parole period after visiting the issue in as much that he, inter alia.

(a) failed to allow the appellant to make full submissions in relation to the subject of fixing a non-parole period.

(b) failed to adjourn the matter for preparation of a pre-sentence report.

(c) failed to give sufficient weight to the prospect of rehabilitation of the appellant in declining to fix a non-[parole] period.

(d) failed to obtain evidence or information from the appellant or the Department of Correctional Services concerning the appellant's performance whilst on parole.

2. That the sentencing has miscarried in all of the circumstances in as much as the appellant being unrepresented was not informed by the court:-

(a) that he could be immediately imprisoned for the offence of receiving.

(b) that the period of imprisonment could be cumulative to [the] unexpired portion of parole existing at the time of the offence.

(c) that the court in its discretion could refrain from fixing a new non-parole period if appropriate.

(d) that the appellant may adjourn the matter to either:-

(i) place sufficient material before the court to be heard on these issues; or

(ii) obtain the assistance of counsel to make submissions on his behalf.

3. The totality of the sentence is manifestly excessive in all of the circumstances.

The police prosecutor swore an affidavit deposing to what transpired before the magistrate. What follows is a summary of that affidavit. With particular reference to Ground 2 of the Notice of Appeal, he deposed to the fact that prior to the matter proceeding, the magistrate explained to the appellant the procedure to be adopted in court and the legal definition of receiving. The appellant informed the Court that he wished the matter to proceed, and pleaded guilty to the count of receiving. After reciting the facts and circumstances of the events to the Court, the prosecutor tendered a copy of his antecedent report and informed the magistrate of the period of the unexpired parole as at the date of commission of the offence. There was then a discussion between the magistrate and the appellant concerning his prior offending and terms of imprisonment, during which further previous convictions came to light.

The magistrate then explained to the appellant that a sentence of imprisonment would result in a revocation of his parole, and the magistrate asked the appellant whether he wanted an opportunity to obtain legal advice. He replied that he realised the implications of a sentence of imprisonment, and wished the matter to proceed. He was given the opportunity to and then made submissions to the Court relating to his personal circumstances before the magistrate imposed the sentence in question.

Although that affidavit was sworn before an affidavit sworn by the appellant as to the conduct of proceedings, it was filed after the appellant's affidavit had been filed. Included in the appellant's affidavit was an assertion that he was unsure whether he could be immediately imprisoned for a charge of receiving and was not aware that the Court could impose a period of imprisonment that would be cumulative upon his parole. His affidavit included:

"12. Neither before my plea was taken, or at any other time did the court explain to me about sentencing or the types of penalty which could be imposed. I suspected that I could be fined for the charge of receiving. However I believe that I would not be imprisoned for that offence. I was not told by the court that it may decline to fix a non-parole period. ... 14. I was not given an opportunity to tell the court about my progress whilst on parole. The Magistrate did ask me if I wished to say anything about the matter. I was unsure what I could or could not say so I decided to say nothing. As a consequence I did not tell the court about my background in any sort of detail and generally I felt that I did not have the capacity to tell the court what I should in relation to the matter. 15. The Magistrate did not direct any specific questions to me nor did the Magistrate make any suggestion about getting a pre-sentence report or any other sort of report from my parole officer."

The Magistrates' Court file includes notes that the magistrate made at the time which are consistent with the events stated in the affidavit of the police prosecutor.

Notwithstanding his sworn affidavit in support of his grounds, at the hearing of the appeal the appellant elected to proceed only on Ground 1, 2(c) and 3. He expressly abandoned grouns 2(a), (b) and (d). On the hearing of the appeal it was common ground that the magistrate did not give any warning of his intention not to fix a non-parole period and that he did not invite submissions from the appellant on that specific topic. He did not seek a pre-sentence report, and there was no discussion on that topic during the hearing.

The appellant had an extensive criminal record interstate, including convictions for breaking and entering and larceny offences, other offences of dishonesty, many motor vehicle offences, failing to comply with bail conditions, failing to comply with good behaviour bonds, driving whilst disqualified and escaping custody. In October 1995 in South Australia, the appellant, in respect of two counts of breaking entering and larceny, was given a sentence of 26 months' imprisonment with a non-parole period of 11 months. He was released from Yatala Labour Prison on home detention on 20 February 1996, but breached that obligation and committed a further breaking and entering and larceny offence on 18 March 1996, for which he was imprisoned for a further 12 months on 14 October 1996. That sentence was to commence at the expiration of the sentence imposed on 4 October 1995. On 15 November 1996 he was sentenced to a further six months' imprisonment on a charge of remaining unlawfully at large, which sentence was to be served cumulatively upon the previous sentence of imprisonment. From those sentences he was released on parole on 13 August 1997, parole then being due to expire on 13 April 1999. It was shortly after that release the offence the subject of this appeal was committed.

It was not seriously contended that, with his antecedents, the 16 week sentence for this offence was manifestly excessive in itself. The argument on appeal concentrated on the alleged defects in process before the magistrate and the failure to fix a non-parole period.

Section 32 of the Criminal Law (Sentencing) Act 1988 requires a court, when imposing a sentence of imprisonment for a total period of not less than one year to fix a non-parole period. Where a sentence is imposed for an offence committed during a period of release on parole, the court must, in fixing the non-parole period, have regard to the total period of imprisonment that the person is, by virtue of the new sentence and the balance of the previous sentence, liable to serve. By virtue of s32(5)(c) of the Act, a court may, however, decline to fix a non-parole period if the court is of the opinion that it would be inappropriate to fix such a period because of -

(i) the gravity of the offence or the circumstances surrounding the offence;

(iii) the behaviour of the person during any previous period of release on parole; or

It is to be noted that any one of those reasons is sufficient to justify the court declining to fix a non-parole period. It would appear that the magistrate, in declining to fix a non-parole period in this case, was influenced by the factors referred to in paragraphs (ii) and (iii) above.

The granting of a non-parole period can be seen in part as a reward for good behaviour whilst in custody, but more importantly as part of the prisoner's supervised rehabilitation into the community. In many cases the length of the non-parole period will be dictated by the court's assessment of the prospects of rehabilitation of the prisoner upon release from custody. There would therefore appear to be an assumption behind s32 of the Criminal Law (Sentencing) Act 1988 that a prisoner will benefit from such a supervised period of parole and that a non-parole period should be fixed unless the court is satisfied that one or more of the factors mentioned in the section outweigh the likely advantages of possible rehabilitation upon release on parole. The assumption inherent in s32 is that a non-parole period is normally to be fixed. Failure to fix a non-parole period will be an exception to the usual rule.

It is therefore important, when the court is considering an order declining to fix a non-parole period, that the defendant be given an opportunity to place whatever material he or she wishes before the court as to the benefits to be gained by an opportunity for supervised rehabilitation, and why that advantage is not outweighed by any of the factors referred to in s32(5)(c). This would necessarily require some warning by the court that it is considering not fixing a non-parole period and, in the case of an unrepresented defendant, some indication of the circumstances which might govern whether or not a non-parole period is fixed, and the giving of an opportunity to obtain legal advice if that is required.

It is well settled that in the case of a self-represented defendant, where a magistrate is contemplating an order of imprisonment, the defendant should be informed of that and be given an opportunity of seeking legal advice: Cooling v Steel (1971) 2 SASR 249; Ivanoff v Linnane (1979) 20 SASR 279. The principles expounded by Wells J in Cooling v Steel (supra) require that a self-represented defendant is appraised of his rights and duties at all times, and that the court should take whatever steps are necessary to ensure that the proceedings are free of error or misunderstanding. I respectfully agree with the conclusion of Debelle J expressed in Pearce v SA Police (Unreported, 17 January 1996, Judgment No S5440) that those principles require an unrepresented defendant to be informed that the court is considering whether it should not fix a non-parole period, and that failure to do so will constitute error.

By failing to warn the appellant that he was considering not fixing a non-parole period and the basis upon which that could be done, the magistrate in this case fell into error. It remains to be determined, however, in the circumstances of this case, whether that error is such as to constitute a miscarriage of justice.

The appellant in his affidavit deposes to the fact that he did not know that the court could decline to fix a non-parole period and that the sentence for the offence would be added to the unserved period of parole. He alleges that if he had been told those things he would not have entered a plea of guilty and would have insisted on being represented by a solicitor. He would have asked for an adjournment so that a solicitor could make submissions for him. In view of the appellant's withdrawal of Ground 2(b) of his grounds of appeal, I must view those assertions with some scepticism. The appellant had a good knowledge of the procedures of courts of summary jurisdiction, the nature of material usually adduced relevant to sentence and of the benefits or otherwise of legal representation. He had been legally represented on previous occasions. Furthermore, he was given an opportunity, which he accepted, of putting information before the Court relating to the nature of the penalty to be imposed. That material was also relevant to the question of the non-parole period. He alleges in his affidavit:

"14. I was not given an opportunity to tell the court about my progress whilst on parole. The Magistrate did ask me if I wished to say anything about the matter. I was unsure what I could or could not say so I decided to say nothing. As a consequence I did not tell the court about my background in any sort of detail and generally I felt that I did not have the capacity to tell the court what I should in relation to the matter."

He did not state in his affidavit precisely what additional information he would have put had he been properly represented, nor was such additional information sought to be placed before me so I could determine for myself what the appropriate sentence should be. It was argued before me on appeal that the magistrate could not have properly considered the matters relevant to the fixing of a non-parole period in general. More particularly, it was said that he could not have considered matters relevant to the behaviour of the appellant during any previous period of release on parole. This was because the magistrate failed to make inquiries of the appellant and to inform himself of all relevant matters touching upon the circumstances of the offending and the appellant's personal circumstances. No elaboration was given on what additional material would or could have been led beyond that presented by the appellant before the magistrate, or how such material would have affected the outcome. It was also argued that the magistrate was left in ignorance about the appellant's attitude and performance whilst on parole in the past by his failing to cause a report to be prepared or to hear oral evidence from the parole officer. I deal below more specifically with the alleged failure to obtain a report, but it is most unlikely, in the circumstances, that a parole officer could have given any relevant information, let alone have done anything to enhance the appellant's attitude to and performance whilst on parole in the 14 days between his release and his committing this offence. That is the only period of parole he has served since his release on 13 August 1997. His attitude to his earlier release on home detention in 1996 was made clear by his criminal behaviour committed during that period.

In short, I am not satisfied, in the circumstances of this case, that any material additional information would have been put before the magistrate had the warning been given. I am not satisfied that the magistrate's failure to warn the appellant that he was contemplating not fixing a non-parole period caused the defendant any prejudice such as to constitute a miscarriage of justice.

It was also argued in this case, however, that not only should the magistrate have sounded a warning, but that he should in any event have obtained a pre-sentence report if he were contemplating not fixing a non-parole period. The appellant relies on such decisions as Kenchington v Shepherd (Unreported, Olsson J, 12 January 1990, Judgment No 2051) and Salomone v Watterson (Unreported, Cox J, 6 August 1992, Judgment No S3568). Those cases, however, were rather different. In Kenchington v Shepherd, a 25 year old unrepresented defendant pleaded guilty to a number of counts of breaking and entering. It was his first ever appearance in a court. There were odd features of the offence. Although he was 25 years old, his co-offenders, including the instigator of the offences, were juveniles. There was little personal information placed before the court, and the magistrate proceeded to sentence the defendant in what Olsson J described as a "fairly substantial information vacuum", and imposed a custodial sentence. Olsson J held that the sentencing process miscarried largely because of the failure to require a pre-sentence report. That decision is, with respect, quite understandable, given the information vacuum in which the magistrate had proceeded to impose a custodial sentence for a first offence.

Salomone v Watterson had some similar features. It involved a 24 year old shoplifter charged with a single offence, his first, the principal concern in that case being the recording of a conviction. In those circumstances the magistrate had to be satisfied as to the various matters set out in s16 of the Criminal Law (Sentencing) Act 1988 before he could refrain from recording a conviction. In that particular case the relevant circumstances were the character and antecedents of the appellant, and the extenuating circumstances under which the offence was committed. Such material was brought to the attention of the magistrate by the unrepresented defendant, but Cox J considered that in the circumstances of that case the magistrate had erred in proceeding to conviction. He considered that before taking that step in the circumstances of that particular case, should the magistrate have felt disinclined to act under the section on the material before him, he should have obtained a report, and should not have proceeded without at least checking the appellant's story by means of a pre-sentence report.

In this case, however, it is difficult to know how the magistrate would have benefited from a pre-sentence report. There were no obvious circumstances alerting the magistrate to the need for such a report. The appellant's record spoke for itself. The absconding from his home detention and the breaking and entering offence committed in 1996 both occurred less than one month after his release on parole on 20 February 1996. Between the date of the breaking and entering offence and his conviction for that offence he committed an offence of carrying an offensive weapon and another offence of unlawful possession. As I have already mentioned, this offence was committed within two weeks of his release from custody in August 1997. There would not have been much opportunity for a parole officer even to come to know the appellant, let alone comment favourably on his prospect of rehabilitation.

In neither of the two cases I have cited did the Court attempt to be dogmatic about when a magistrate should obtain a pre-sentence report. The Court on each of those occasions stressed that the decision was made in the particular circumstances of that case. Likewise, it would be inappropriate for me to attempt to specify the circumstances when a magistrate should or need not obtain a pre-sentence report. It is sufficient to say it in the circumstances of this case I do not consider that it was necessary, even though the appellant was unrepresented.

There remains the question whether, on the material before the magistrate, he should nevertheless have fixed a non-parole period. The Court is not now required to find that there was a "special reason" for not fixing a non-parole period. Compare Flentjar v Wright (1986) 42 SASR 246. However, as Cox J observed in Martin v Police (1993) 168 LSJS 344 at 346, the principles laid down in Flentjar v Wright may well still have application to s32 of the Criminal Law (Sentencing) Act, particularly with respect to long sentences. It must be remembered, however, that Flentjar v Wright was dealing with the system of parole with remissions before the operation of the present truth in sentencing legislation. The head sentence in that case was five years and six months. The appellant's outlook for rehabilitation was not good. The magistrate declined to fix a non-parole period. The non-parole period fixed by the Full Court was five years and three months. The error of the magistrate in that case was the failure to take into account the option of fixing a very long non-parole period. As it was, with the system of remissions then in place, the 66 months' sentence would have resulted in release after 44 months. A 63 month non-parole period would have resulted in eligibility for release after 42 months, but importantly the appellant would be subject to parole for the whole period of the fixed head sentence - a further 24 months. The difference in the period of sentence to be served by the fixing of a long non-parole period was negligible. The additional period of advice and supervision available by the fixing of a non-parole period almost as long as the head sentence was substantial. That was a benefit which the magistrate plainly overlooked in that case. It is a difference which does not apply under the present regime.

A maximum period of parole, if fixed in this case, would, of necessity, have been a relatively short period - a matter of some months only. It would not have brought about the potential advantages available under the system operating at the time when Flentjar v Wright was decided. What the magistrate had to decide here was whether the relatively short period of parole and the slight prospects of the appellant's rehabilitation during such a short period was outweighed by the factors which he identified, in particular the appellant's criminal record and his behaviour during previous periods of parole and home detention. There was abundant material on which the magistrate could properly conclude that those factors did outweigh any benefit that might be achieved by a short period of parole and that release on parole for such a period would not have been of benefit to either the applicant or the community.

In my opinion it was within the proper range of the magistrate's discretion under s32 of the Criminal Law (Sentencing) Act for him to have exercised the discretion the way he did, and I cannot point to any error of principle which would justify the appeal being allowed. Accordingly, in my opinion, the appeal must be dismissed.