R v Salasch [2002] ACTSC 91 (6 September 2002)

Last Updated: 9 September 2002

THE QUEEN v DAVID ALEXANDER SALASCH

[2002] ACTSC 91 (6 September 2002)

CATCHWORDS

SENTENCING - re-sentencing after successful appeal by prisoner against original sentence - prisoner subject to earlier sentence at time of original sentence - non-parole period - intervention of new statutory provisions since original sentence - inadequacy of information as to expiry of earlier sentence.

Supreme Court Act 1933, s 13

Rehabilitation of Offenders (Interim) Act 2001, s 31, s 32

Crimes Act 1900, s 360

Salasch v The Queen [2002] FCAFC 119

REASONS FOR JUDGMENT

No. SCC 95 of 1998

No. SCC 79 of 2000

Judge: Miles CJ

Supreme Court of the ACT

Date: 6 September 2002

IN THE SUPREME COURT OF THE )

) No. SCC 95 of 1998

AUSTRALIAN CAPITAL TERRITORY ) No. SCC 79 of 2000

THE QUEEN

v

DAVID ALEXANDER SALASCH

ORDER

Judge: Miles CJ

Date: 6 September 2002

Place: Canberra

THE COURT ORDERS THAT:

1. A period of two years and nine months be set during which the prisoner not be eligible to be released on parole. That period to commence on 6 July 2001 and expire on 5 April 2004.

2. The Sheriff or gaol authority to take into account for the purpose of reckoning under s 360 of the Crimes Act 1900 time already spent in custody.

1. This matter comes before the Court as a result of a successful appeal by the prisoner against the severity of a sentence imposed by me on 6 July 2001 (see Salasch v The Queen [2002] FCAFC 119).

2. On 10 May 2002 a Full Court of the Federal Court of Australia set aside the sentence and remitted the matter to this Court for the purpose of re-sentencing the prisoner in the light of the reasons of the Federal Court published that day.

3. The re-sentencing raises a number of difficult issues such that I was initially minded to order under s 13 of the Supreme Court Act 1933 that the jurisdiction be exercised by a Full Court of this Court.

4. However with the assistance of counsel I have come to the opinion that whilst the difficulties are real they do not all need resolution for the purpose of determining what is a just and appropriate sentence for present purposes.

5. The Federal Court did not see fit to interfere with the head sentence I imposed, nor with the order that it commence at the expiry of any unexpired sentence which the prisoner was liable to serve at the time I sentenced him. What is required is the setting of a non-parole period pursuant to s 31 of the Rehabilitation of Offenders (Interim) Act 2001 (the Rehabilitation of Offenders (Interim) Act). The relevant provisions of that Act came into force on 24 September 2001, that is, between the time of the original sentence and the hearing of the appeal. Section 31, where relevant, provides as follows:

"31 Court to set nonparole period

(1) If a court sentences a person to a term of imprisonment of 1 year or longer, or 2 or more terms of imprisonment that total 1 year or longer, the court must set a period (a nonparole period) during which the person is not eligible to be released on parole.

Note Section 43 provides that, if the person is released on parole, the sentence is not discharged unless the parole is completed without the parole order being revoked.

(2) When the court sets the nonparole period, the court must specify -

(a) the date the nonparole period begins; and

(b) the date the nonparole period ends.

(3) The date specified under subsection (2) (a) may be a date before the sentence of imprisonment is imposed.

Note The Crimes Act 1900, s 451 requires time held in custody to count as a period of imprisonment already served under the sentence.

...

(7) If a court sentences a person to imprisonment but fails to set, or fails properly to set, a nonparole period, the court may set a nonparole period on the application of the Attorney-General, the director of public prosecutions, the secretary, or the person sentenced.

(8) This section applies to an offence whether the offence was committed, a person was convicted of the offence, or a person was sentenced for the offence, before or after the commencement of this Act."

6. Counsel also made submissions with regard to the application of s 32 of the Rehabilitation of Offenders (Interim) Act, but I do not think that it is necessary for me to arrive at any conclusions on those submissions.

7. Section 31 appears to recognise the very real difficulties that do arise in practice in relation to non-parole periods. It requires that the period be "set" and, as well, presumably for the sake of clarity, the dates of commencement and conclusion of that period be "specified". In addition there is provision in s 31(7) for revisiting the matter where the court "fails properly to set" a non-parole period.

8. From a reading of the judgment of the Federal Court, it is obvious that at the time I sentenced the prisoner I proceeded on the mistaken assumption that he was on parole pursuant to order of the Parole Board at the time he committed the drug offences in 1997 and also at the time he committed the offence of assault occasioning actual bodily harm on 11 December 1999. Had I been correct, the sentence of imprisonment imposed by me would have had the effect of revoking any such parole order and returning the prisoner to custody to serve the unexpired term of the sentence to which he was still subject. The structure of the sentence actually imposed was based on that false premise. The effect of the proposed accumulation of sentences was intended to be a term of six years to be served in addition to any unexpired sentence the prisoner was then liable to serve. Furthermore, the date before the expiry of which period he was not to be eligible for release on parole was intended to be three years from the date of sentence. However, the parole order which was current when he came before me was made in respect of offences committed after the offences for which he was to be sentenced by me. Without revocation that parole order of 13 November 2000 was still due to expire on 12 November 2001.

9. The Director of Public Prosecutions concedes that the Parole Board never did revoke the parole order of 13 November 2000. Accordingly, the parole period and the sentence in respect of which it was made did in fact expire on 12 November 2001. The accumulation of sentences imposed by me therefore commenced on that date. The Federal Court has not interfered with that part of the sentence.

10. The non-parole period of three years from the date of sentence on 6 July 2001 was fixed, bearing in mind that the prisoner had not been in custody in respect of the offences for which he was to be sentenced. The Federal Court did not expressly endorse or condemn the length of the period so fixed. What their Honours did say was that there was a failure to take into account -

"...that, as a consequence of the date upon which the new sentences were to be imposed, the appellant was losing the benefit of the parole order previously been made in his favour."

11. With all that said, it is difficult to see how the setting of a three year non-parole period is excessive or operates unjustly to the prisoner, or is otherwise inappropriate.

12. Mr Corr, for the prisoner, submits that the non-parole period should restore to the prisoner the benefit in effect of the remainder of the period of the unrevoked parole order (now expired), namely from 6 July 2001 to 12 November 2001, a period of some four months, on the ground that his incarceration during that period was not related to any breach of his parole but to offences committed before he was released on parole. Furthermore, he submits that the non-parole period should recognise and be shown to recognise that the prisoner spent the period between his release on 13 November 2000 and his conviction on 4 July 2001 without breach of his parole.

13. The Director of Public Prosecutions submits that the "effective" non-parole period should or could have been fixed by aggregating the remainder of the period of the parole order expiring on 12 November 2001 and a further period of three years, and that by the selection of the date of sentence as the commencement of the three year non-parole period, the prisoner has been given a benefit referrable to the deprivation of his capacity to serve the remainder of the previous sentence whilst on parole.

14. I would be inclined to accept what the Director submits were it not for other factors. The confusion, if I may call it that, arises largely from the fact that the charges for the offences occurring in 1997 were not laid until 3 March 1998 and the prisoner was not committed for trial on those charges (and the charge for the 1999 offence) until 2 May 2000. There appears to be no explanation for this inordinate delay. There is a further matter. Once again I have to remark on the fact that the sentencing of an offender has had to proceed without accurate material being furnished to the Court as to details of parole, probable expiry dates of sentences and the like. As I have said many times, until there is a proper system of furnishing accurate material of that nature through the evidence of a responsible corrections officer, errors on the part of the Court as to calculation of relevant periods and fixing of dates will continue to occur. As a result of such error this prisoner has been put in uncertainty as to his future and the fault is hardly his.

15. There is also an outstanding matter of time already spent in custody (if any) in relation to the 1997 drug offences and the 1999 assault offence and how that is to be reckoned for the purposes of s 360 of the Crimes Act 1900. The information before me for this purpose is even at this stage far from clear. I therefore record that I have not carried out any reckoning for the purposes of s 360, and it may be expected that that will be done by the Sheriff or the gaol authority.

16. There was a further submission by Mr Corr that the prisoner's time in custody since he was sentenced over a year ago has been spent usefully and that his rehabilitation is well on track. That is a matter which is always pleasing to hear, but only in the most exceptional of cases is it something to take into account for the purpose of re-sentencing after a successful appeal. In this case it simply confirms some of the remarks made on the occasion of the original sentence and of itself should have no impact on the outcome.

17. However, having regard to the totality of the matters already mentioned, I think that the date for eligibility for release on parole should be advanced some three months. I therefore set a period of two years and nine months during which the prisoner is not eligible to be released on parole. I order that the period commence on 6 July 2001 and expire on 5 April 2004.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Miles.

Associate:

Date: 6 September 2002

Counsel for the Prosecution: Mr R Refshauge, SC

Solicitor for the Prosecution: ACT Director of Public Prosecutions

Counsel for the Defence: Mr G Corr

Solicitor for the Defence: Sheila Foliaki-Singh & Associates

Dates of hearing: 6 June 2002 and 14 August 2002

Date of judgment: 6 September 2002