11 As this Court explained in R. v. Orphanides,[2] s.16(3B) was intended simply to abrogate, in the case of an offence committed during a period of parole, the general rule otherwise applying by virtue of s.16(1), that sentences are to be served concurrently. The prima facie rule of cumulation which s.16(3B) creates is capable of being displaced should the court so direct on the ground of exceptional circumstances.[3]
12 As the Court also explained in Orphanides, the prohibition on speculation which s.5(2AA) imposes, and the cumulation rule which s.16(3B) establishes, operate independently of each other. The phrase "may be required to serve" in s.16(3B) does not permit, let alone require, the court to speculate about what the Parole Board might do. The prohibition on speculation is absolute.
13 To comply with s.16(3B), the sentencing court must first consider whether exceptional circumstances exist. If such circumstances do exist, the court has power to order concurrency, in whole or part; if it does not, the court is bound to order that the parole sentence be served cumulatively on any period of imprisonment which may flow from the cancellation of the parole order.
14 In a case like the present, where the parole has already been cancelled and the offender is at the time of sentencing already serving a period of imprisonment consequent upon the cancellation, questions of totality also arise. We deal with those below.
Hunter's parole history
15 In the course of the hearing, the Court raised questions concerning the orders made by the Parole Board. Subsequently, the Office of Public Prosecutions provided the Court with a letter from the Parole Board answering those questions and containing Hunter's latest indent report. What follows is based on that information.
16 In 1988 Hunter was sentenced to 16 years' imprisonment for murder ("the original sentence"). A non-parole period of 13 years was fixed. On 9 December 2000, Hunter was released on parole, after serving the minimum sentence of 13 years. His parole period was uneventful until 12 March 2002 when he committed the first of the offences the subject of the present appeal.
17 On 13 March 2002, his parole was cancelled by the Parole Board.[4] As noted earlier, the period during which Hunter was on parole between 2000 and 2002 is not treated as time served in respect of the original sentence.[5] On 22 May 2002, Hunter was apprehended on warrant and, on the following day, his parole was cancelled. According to his indent, the amount of the original sentence "owing" at that time was two years 11 months and 29 days. On 8 July 2002 Hunter was re-paroled by the Parole Board.
18 The charges the subject of this appeal were laid on 7 August 2003. Following Hunter's failure to appear at his committal on 13 September 2004, his parole was again cancelled by the Parole Board on 22 September 2004, Hunter having failed to comply with the conditions of his parole. The indent records Hunter as then owing the Board two years 10 months and 11 days of the original sentence. On 18 October 2004 Hunter was apprehended on a parole warrant and recommenced serving the balance of the original sentence.
19 On 3 February 2005 he was sentenced to 12 months' imprisonment for driving offences. He appealed to the County Court against that sentence. The appeal was heard on 27 April 2005, and was allowed. Hunter was sentenced to three months' imprisonment and it was ordered that the sentence be cumulative upon the sentences the subject of the present appeal, which were imposed the same day.
20 Forty-eight days of the original sentence were served between 22 May 2002 and 28 July 2002. A further 113 days were served between 14 October 2004 and 3 February 2005 (when Hunter was sentenced for his driving offences). This meant that, at the time Hunter came to be sentenced on 27 April 2005, he had served 161 days of the parole period of the original sentence and he was liable to serve a further two years, six months and 20 days of that sentence.
Ground 1
21 In his sentencing remarks, the learned Judge noted that the offences for which Hunter was to be sentenced had been committed while he was on parole. There was no reference, however, to the fact that Hunter was in prison and serving the unexpired portion of his original sentence, with two and a half years to serve.
22 It is clear from the transcript of argument on the plea that his Honour was alive to the prohibition created by s.5(2AA) against taking into account "any possibility or likelihood" of action by the Parole Board. His Honour did not, however, give any consideration to the requirements of s.16(3B). As we have said, that subsection required his Honour to consider whether exceptional circumstances existed which would justify moderating the order for cumulation which would otherwise have to be made. Because of this error, the sentencing discretion is reopened and it is necessary for this Court to decide whether there were any exceptional circumstances.
23 Hunter relied upon three circumstances which were said to be exceptional. First, he relied on the delay of 15 months in charging him with these offences. Hunter had been interviewed on 22 May 2002 and had made extensive admissions in relation to these offences. It was submitted that, in the period from his re-parole on 8 July 2002 until he was charged with these offences on 7 August 2003, he had proceeded to "get his life in order". Such a submission was not made to the trial Judge and no evidence was placed before him, or before this Court, of any efforts by Hunter to rehabilitate himself during that period. Counsel for Hunter on the plea had said no more than that delay was a mitigating factor.
24 Secondly, it was submitted that Hunter's prospects of rehabilitation constituted an exceptional circumstance. It was acknowledged before this Court that, because of Hunter's amphetamine use, he was in a florid state at the time of the commission of these offences. Initially, some reliance was placed upon the fact that Hunter had provided clean urine screens when in custody, but it was acknowledged in argument that this occurred prior to his arrest on the present charges. Ultimately, counsel for Hunter accepted that there was little or no material relating to Hunter's conduct during his period on parole which threw any light upon his prospects of rehabilitation, and this argument was all but abandoned. Thirdly, counsel for Hunter referred to the principle of totality. He conceded - properly - that this could not constitute an exceptional circumstance under s.16(3B), but argued that it was relevant to whether the sentencing discretion had miscarried.
25 In our view, none of these matters constitute "exceptional circumstances" which displace the cumulation rule provided by s.16(3B).
Grounds 2 and 3
26 It is convenient to consider grounds 2 and 3 together. Counsel for Hunter submitted that the competing imperatives of s.5(2AA) and s.16(3B) create a difficulty for sentencing judges in applying the totality principle. As to ground 2, it was submitted that the trial Judge had either not understood that Hunter was serving the unexpired portion of his original sentence, as a consequence of the Parole Board's cancellation of his parole, or else had misconstrued s.5(2AA) of the Act as preventing him from having any regard to the sentence which Hunter was then serving as a consequence of the cancellation of his parole.
27 Under ground 3, it was contended for Hunter that the sentencing discretion miscarried because the judge ignored the fact that the balance of the original sentence was being served, and so failed to give effect to the principle of totality. It was submitted that the sentencing judge failed to have regard to the total criminality of Hunter and, in particular, had not considered the whole of the jail time which Hunter would have to serve as a result of the cumulation required by s.16(3B).
28 At first senior counsel for the Crown submitted that the principle of totality did not require the sentencing judge to take account of the original sentence being served. Some days after the conclusion of oral argument, however, a written submission was filed by the Director, which acknowledged that the principle of totality did require the sentencing judge to take into account periods of imprisonment consequent upon cancelled parole. In the written submission senior counsel referred to the decisions in R. v. Masterson[6]; R. v. Youil[7]; R. v. Cutajar[8]; R. v. Brock[9]; R. v. Gorman[10]; R. v. Ulla[11]; and R. v. Berkelaar[12] as illustrating that the principle of totality requires the sentencing court to take into account periods of cancelled parole being served.
29 This concession - belatedly made by the Crown - is clearly correct. This Court has made clear repeatedly that a period of imprisonment being served at the time of sentencing must be taken into account in the exercise of the sentencing discretion.[13] Nothing in s.5(2AA) of the Sentencing Act authorised, let alone required, the trial Judge to disregard the fact that Hunter was then serving the unexpired portion of his original sentence. On the contrary, the prohibition on speculation meant that the judge was bound to assume that the full term of the original sentence would be served. Any possibility that Hunter might again be released on parole had to be disregarded.
30 As already discussed, there must in the absence of exceptional circumstances be cumulation in respect of offences committed whilst on parole.[14] At the same time, viewed as a whole the aggregate of sentences imposed by reason of cumulation cannot be greater than any sentence required to fulfil the totality principle and all the appropriate aims of sentencing in the case.[15] There must be relativity between the totality of the criminality and the totality of sentences,[16] not only for the offences for which the person is being sentenced, but for the sentence which the person is currently serving.[17]
31 Where parole is cancelled, the principle of totality must "bulk large" in the determination of the aggregate term of imprisonment imposed for the later offences.[18] In R. v. Sullivan,[19] Eames, J.A. (with whom Charles and Buchanan, JJ.A. agreed), said: