R v COLSON No. SCCRM-99-8 Judgment No. S184 [1999] SASC 184

Supreme Court of SA|1999-05-13|Before: Doyle CJ, Mullighan JJ

On Appeal from DISTRICT COURT (HIS HONOUR JUDGE PIRONE)

(Court of Criminal Appeal: Doyle CJ, Prior and Mullighan JJ)

This appeal against sentence turns upon the interaction between the Criminal Law (Sentencing) Act 1988 ("the Sentencing Act") and the Young Offenders Act 1993 ("the YOA").

The appellant was serving a sentence of detention in a training centre. That sentence was imposed on the appellant when he was a youth. While serving the sentence he was permitted to visit a relative in hospital. He escaped from custody in the course of that visit. At the time of the escape the appellant had turned eighteen years of age. He was no longer a youth for the purpose of the YOA, notwithstanding the extended definition of "youth" in the YOA.

The appellant pleaded guilty to a charge of escaping from custody contrary to s254(1) of the Criminal Law Consolidation Act 1935.

A term of imprisonment for this offence must be cumulative on any other term of imprisonment that the prisoner is liable to serve: s50(1) Correctional Services Act 1982. I doubt whether that provision applies to the present case. The appellant was serving a sentence of detention in a training centre, not a term of imprisonment. In any event, the judge did not refer to this provision, and does not appear to have regarded himself as bound by it.

The appellant has a significant criminal record, and on two previous occasions has escaped from custody. No doubt influenced by that, the District Court judge imposed a sentence of imprisonment of 15 months. He fixed a non-parole period of 6 months.

The judge made a further order, and this is the subject of the appeal. He ordered that the head sentence and the non-parole period commence at the expiration of the period of detention being served by the appellant.

The issue on appeal is whether the judge had power to make that order. If he did not, the order is invalid. If the order is invalid the sentence was passed on an erroneous basis and the appellant would have to be resentenced.

The YOA distinguishes between a sentence of detention and a sentence of imprisonment. The Youth Court cannot sentence a youth to imprisonment, although in limited circumstances it may direct that a sentence of detention be served in a prison: s23(1) and (6) of the YOA. The Supreme Court and the District Court have power to sentence a youth to imprisonment: s29 of the YOA.

In any event, when sentenced by the judge the appellant was serving a sentence of detention in a training centre. The sentence that the judge imposed was a sentence of imprisonment.

Section 31(1) of the Sentencing Act provides as follows:

"Subject to subsection (2), the court by which a sentence of imprisonment is imposed may direct that the sentence be cumulative upon any other sentence, or sentences, of imprisonment then being served, or to be served, by the defendant."

This provision does not apply relation to a youth, unless the youth is sentenced as an adult: s31(4). However, the provision is capable of application because when the sentence of imprisonment was imposed he was an adult.

However, the difficulty is that when sentenced in the District Court the appellant was not serving a sentence of imprisonment, but a sentence of detention. That being so, there is difficulty in treating s31(1) as conferring power to make the order that the judge made.

A consideration of the Sentencing Act as a whole indicates that the distinction between a sentence of imprisonment and a sentence of detention is recognised in the provisions of that Act. Having considered the Sentencing Act as a whole, I conclude that one cannot read s31(1) as using the term "a sentence of imprisonment" to embrace a sentence of detention as well.

Provisions that reflect an awareness of the distinction between a sentence of detention and a sentence of imprisonment include s31(4), s31A and s71B. Section 3A makes the provisions of the Sentencing Act applicable to the sentencing of a youth, but in the event of a conflict with a provision of the YOA, the latter provision prevails. But s3A cannot apply to the present case because it applies only to the sentencing of a youth and the enforcement of a sentence against a youth. When sentenced the appellant was not a youth in the primary sense of that term. The extended definition of "youth" in the YOA does not appear to me to bring s3A into play in the present case.

I therefore conclude that s31(1) of the Sentencing Act does not authorise the order that the District Court judge made.

Power to specify the date on which a sentence is to commence

Section 30 of the Sentencing Act provides as follows:

"30.(1) Where a court imposes a sentence of imprisonment and does not suspend the sentence, the court must specify the date on which, or the time at which, the sentence is to commence or is to be taken to have commenced.

(2) Where a defendant has been in custody in respect of an offence for which the defendant is subsequently sentenced to imprisonment, the court may--

(a) make an appropriate reduction in the term of the sentence, having regard to the period for which the defendant has been in custody; or

(b) direct that the sentence be taken to have commenced on the day on which the defendant was taken into custody.

(3) Where a court imposes a sentence of imprisonment on a defendant who is not present in court, the court must direct that the sentence is to commence--

(a) on the day on which the defendant is taken into custody pursuant to the warrant of commitment issued in respect of the sentence; or

(b) if the defendant is subject to some other sentence of imprisonment-on the completion of that other sentence of imprisonment or at some earlier time fixed by the court.

(4) Where a court fixes a non-parole period, the court must specify the date on which the non-parole period is to commence or is to be taken to have commenced.

(5) Where a court directs that a sentence of imprisonment is to be taken to have commenced on the day on which the defendant was taken into custody, any non-parole period fixed by the court in respect of that sentence will be taken to have commenced on that day.

(6) If, on imposing a sentence of imprisonment, the court fails to specify the date on which or the time at which the sentence is to commence or is to be taken to have commenced, the sentence--

(a) will, in the case of a defendant not then in custody, commence on the day on which the defendant is subsequently taken into custody for the offence; or

(b) will, in the case of a defendant already in custody for the offence, be taken to have commenced on the day on which the defendant was last so taken into custody; or

(c) will, in the case of a defendant in custody for some other offence, commence on the day on which the sentence is imposed, unless the sentence is to be served cumulatively pursuant to this Act or any other Act."

Section 30(1) was enacted to overcome a common law rule that a sentence of imprisonment was treated as commencing on the first day of the sitting of a Court sitting under a Commission of Oyer and Terminer or Gaol Delivery, and to overcome a further common law rule that there was no power to make an order that a sentence commence at an earlier time: The Queen v Garrett (1978) 18 SASR 308 at 314. The common law rule was displaced in 1934, when the Prisons Act was amended so that s24(1) read as follows:

"All sentences of offenders, convicted at any criminal sittings of the Supreme Court or a Circuit Court shall date from the first day of holding the sittings unless the Court orders that the sentence of imprisonment shall date from any other day, in which case the sentence shall date from that day."

That provision was carried forward into s21(1) of the Correctional Services Act 1982 which provided as follows:

"A sentence of imprisonment imposed upon a person convicted of an offence by the Supreme Court or a District Court shall be deemed to have commenced on the first day of the criminal sittings in which he was so convicted, unless the Court imposing the sentence directs that the sentence shall be deemed to have commenced, or shall commence, on a day that is earlier or later than that day."

It is to be noted that an explicit reference is made to fixing a later commencement date, and that s30(1) of the Sentencing Act also appears to contemplate the fixing of a commencement date that is later than the time at which the sentence is imposed.

In relation to s30(1) of the Sentencing Act it is also pertinent to bear in mind that the Sentencing Act is intended to regulate generally the sentencing of offenders. It is reasonable to assume that it was intended to provide a sentencing court with flexible powers. It is also apparent that it was intended to impose upon a sentencing court an obligation to avoid uncertainty about the time of commencement of a sentence.

For present purposes the issue is whether s30(1) supports the order that the judge made. Can his order be supported on the basis that it is an order specifying the time at which the sentence that he imposed is to commence?

On its face, and bearing in mind the contrast between s24 of the Prisons Act and s21 of the Correctional Services Act, s30(1) appears to confer a power to specify that a sentence of imprisonment will commence at a time later than the date on which it is imposed.

The argument to the contrary is that it is pretty well unheard of for a court to impose a sentence of imprisonment and to specify that it is to commence at a later time, other than when the sentence is made cumulative upon another sentence in exercise of the power under s31(1), or in the particular case dealt with by s30(3). The argument is that it could not have been intended to confer such a power.

However, to my mind it is difficult to treat the subsequent subsections of s30 as, in effect, exhaustively stating the scope of the apparently general power conferred by s30(1). If that is what they do, then s30(1) is to be read as doing no more than imposing an obligation to specify a date or time, the relevant date or time being arrived at as a result of the operation of later subsections, and not by the exercise of a power conferred by s30(1) to fix a date or time. On the other hand, it might be said that if s30(1) confers a general power, why did Parliament make the particular provisions found in the following subsections? The answer to that question is that Parliament thought it appropriate to deal specifically with the more commonly encountered situations, and, to some extent, to limit the scope of the discretion conferred by s30(1) by providing what a court must do in certain circumstances. As well, s30(2)(a) confers a power that is not conferred by s30(1). On the other hand, s30(2)(b) appears to be no more than a particular example of what may be done pursuant to the power conferred by s30(1). Section 30(3) appears to limit the scope of the discretion conferred by s30(1), by requiring the court to make a particular direction when it imposes a sentence of imprisonment on a person who is not present in court.

The predecessor provisions of s30(1) have been considered by this Court. However, the earlier provisions did not contain the detailed subsequent provisions to be found in s30. In The Queen v Garrett (1978) 18 SASR 308 the Court emphasised that s24 of the Prisons Act conferred a power to order that the sentence shall date from any other day, but in context it may be that the Court was directing its mind only to a date before the first day of the sittings at which the sentence was imposed. In The Queen v Thomas (1986) 41 SASR 566 a judge sentenced an offender to imprisonment for an offence against Commonwealth law and for an offence against State law. Commonwealth law then required the Court to impose a minimum sentence in respect of the offence against Commonwealth law. State law then required the Court to impose a single non-parole period in respect of all sentences imposed under State law. The question arose as to whether the Court had power, in effect, to make the sentence under State law, and the non-parole period, cumulative upon the sentence imposed under Commonwealth law. In particular, could the judge order that the sentence under State law, and the non-parole period under State law, would commence at the expiration of the service of the minimum term of imprisonment fixed for the Commonwealth offence? This Court held that s21(1) of the Correctional Services Act was sufficiently flexible to allow for an order in those terms. It is to be noted that this meant that the Court was directing that the sentence would commence at a time later than the time at which it was imposed. Granted, this was in the context of, in effect, making one sentence of imprisonment cumulative upon another, although that is not exactly what the Court did. It is to be noted that it was not suggested that the relevant result was to be arrived at in exercise of the power then conferred by s310 of the Criminal Law Consolidation Act to make a sentence of imprisonment cumulative upon another sentence of imprisonment. In R v Jamieson (1988) 50 SASR 130, without making any reference to the decision in Thomas, the Court referred to s21 of the Correctional Services Act as conferring a power, quite generally, to order the commencement of a sentence prior to the date of the commencement of the sittings at which the sentence was imposed. The Court did not have to consider the use of that power to specify a commencement time later than the time at which the sentence was imposed.

The cases to which I have referred clearly enough treat s30(1), or its predecessor, as conferring a general power to direct that a sentence is to commence at an earlier date or time than the time at which it is imposed. Thomas, at least in the context of an order akin to an order for accumulation, treats the predecessor provision as empowering the fixing of a commencement time after the sentence is imposed.

Taking into account the general terms in which s30(1) is expressed, and its history, and not without some hesitation, I conclude that it is intended to confer a general power to specify a date or time for the commencement of a sentence, earlier or later than the time at which the sentence of imposed.

One of the reasons for my hesitation is the fact that, as I said earlier, it is pretty well unheard of for a court to order that a sentence of imprisonment is to commence at a later time than the time at which it is imposed, except in the circumstances dealt with by subsections (3) and (6). But the same comment applies to fixing an earlier date or time for commencement of a sentence, other than in the circumstances contemplated by subsections (2) and (6). As King CJ said in Jamieson, it would only be in very rare circumstances that it would be appropriate for a court to exercise the power to fix an earlier commencement date or time so as to include a period during which the offender has not actually been in custody: 50 SASR 130 at 134. Likewise, it would only be in exceptional circumstances that it would be appropriate for the court to fix a later commencement time, other than in the circumstances contemplated by s30(3) and (6).

Nevertheless, for the reasons I have indicated, I conclude that s30(1) does authorise the judge to make the order that he made.

I should add that the order that the judge made is not an order that falls within s31(1) of the Sentencing Act. I accept that the power to accumulate sentences of imprisonment is conferred by that provision, and not by s30(1). However, for reasons that I have already explained, s31(1) does not apply in the present case.

For those reasons I conclude that the judge had the power to make the order that he made. It follows that the appeal must be dismissed.

There are two other matters. Section 41 of the YOA empowers the release of a youth from a training centre after the youth has completed at least two-thirds of the period of detention. The exercise of the power is subject to a number of conditions. It is doubtful whether it would be appropriate to exercise that power in the present case, bearing in mind that the result of the exercise of the power would merely be to bring about the time at which the sentence of imprisonment would commence.

A further matter is that there seems to be no power for a court to consider the duration of the period of detention and sentence of imprisonment, and then to fix a non-parole period in relation to that whole period. Whether, if the appellant were transferred to a prison, there would be power to do so is another question. It may be that there should be such a power.

These observations cause me to suggest that this case reveals the need for some further consideration by Parliament of the interaction between the Sentencing Act and the YOA.

Young Offenders Act 1993(SA)

Criminal Law Consolidation Act 1935(SA)

Correctional Services Act 1982(SA)

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