Court of Appeal (WA)|2002-11-26|Before: Malcolm CJ

Brazier v The Queen [2002] WASCA 314 (26 November 2002)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : BRAZIER -v- THE QUEEN [2002] WASCA 314

Criminal law and procedure - Sentencing - Attempting to possess a prohibited drug with intent to sell or supply - 499 grams of cocaine - Sentence of 4 years imposed cumulative on sentence of 4 and a half years for previous drug offence - Sentence reduced by directing 3 years of the sentence of 4 years be served cumulatively upon the sentence the applicant was serving as of 10 October 2001 - Question raised regarding proper form of order - Order varied by resentencing the applicant to a term of imprisonment for 4 years to be served partly cumulatively on the sentence he was serving as at 10 October 2001; 3 years of the sentence of 4 years be served cumulatively on the sentence he was serving as at 10 October 2001; the applicant serve an additional 12 months from the earliest date he would have been eligible for parole in respect of the sentence he was serving as at 10 October 2001; the sentence of 4 years be taken to have commenced on 8 July 2002

Order of the Court pronounced on 10 October 2002 varied

1 MALCOLM CJ: This was an application dated 28 October 2002 for a "re-pronouncement" of the order of the Court on 10 October 2002 by which the Court granted the applicant leave to appeal, allowed the appeal and varied the sentence imposed by directing that 3 years of the sentence of 4 years imposed be served cumulatively upon the sentences the applicant was serving as at 10 October 2001.

2 The application sought an order in the following terms:

"(a) That the appellant is sentenced to a sentence of 4 years' imprisonment to be served partly cumulative [sic cumulatively] upon the sentences the appellant was serving as at 10 October 2001.

(b) The (partly) cumulative portion of the sentence be 3 years.

(c) The (partly) cumulative portion commenced on the earliest date on which the appellant was eligible for release in relation to the sentences he was serving as at 21 October 2001 (ie 8 November 2002)."

3 The application was made pursuant to s 37 of the Sentencing Act 1995 (WA).

4 The application was heard by Malcolm CJ and Wallwork J as, in the time available prior to the retirement of the latter from this Court on 31 October 2002, it was not practicable to arrange for the former Fitzgerald AUJ to be present in Perth for the hearing of the application.

5 The order and the direction of the Court dated 10 October 2002 involved the making of an order under s 88(3) of the Sentencing Act which provides that:

"If at the time an offender is sentenced to a fixed term -

(a) the offender is serving or has yet to serve another fixed term imposed previously; or

(b) the offender is then also sentenced to serve another fixed term,

the sentencing court may order that -

(c) the fixed term is to be served cumulatively on the other fixed term; or

(d) the fixed term is to be served partly cumulatively on the other fixed term."

6 As is abundantly clear from the order and direction of the Court made on 10 October 2002, that order was an order under s 88(3)(d) of the Sentencing Act that the fixed term of 4 years was to be served partly cumulatively upon a fixed term of imprisonment of 4 and a half years imposed for a previous offence in 2000.

7 When he pronounced sentence on 1 February 2002, the learned sentencing Judge said:

"Had I sentenced you on 10 October last year, I would have considered you should have served or should serve 4 years of that on top of the sentence imposed in the District Court on 19 June 2000. I cannot backdate your sentence to take account of time spent in custody for the reasons already given. To achieve the same result as a sentence of 6 years' imprisonment imposed on 10 October last year and structured as I have outlined, therefore, I will impose a term of 4 years' imprisonment to be served cumulatively on the sentence imposed in the District Court on 19 June 2000."

8 The applicant was eligible for parole in respect of both of those sentences. As the Court noted in par 35 of the earlier reasons in Brazier v The Queen [2002] WASCA 278:

"It was made clear by the learned Judge that had he sentenced the applicant on 10 October 2001, he would have imposed a term of imprisonment for 6 years and ordered that the applicant serve 4 years of the 6 years cumulatively upon any other term of imprisonment he was already serving. This would have added 16 months to the minimum period that the applicant would have to serve before being eligible for parole. The sentence of 4 years to be served cumulatively was imposed in order to take account of the prejudice that the applicant had suffered by the delay and to achieve the same result as a sentence of imprisonment for 6 years imposed on 10 October 2001 and structured as the learned sentencing Judge had outlined."

9 Having regard to the operation of s 87 of the Sentencing Act, the result of the course adopted by the learned sentencing Judge was that the applicant would be required to serve an additional 10 months of imprisonment over and above that which he would have served had he been sentenced on 10 October 2001 in the manner described by the learned Judge. Although his Honour attempted to achieve the same result, in fact, the result was that the applicant would serve a longer period than was intended. What his Honour intended to do was to pass a sentence which would be the equivalent of a sentence of 6 years imposed on 10 October 2001, of which he had directed 4 years to be cumulative on the earlier sentence pursuant to s 94 of the Sentencing Act. The learned Judge also clearly intended that the sentences should have been served partly cumulatively so that the parole terms would likewise be partly cumulative.

10 As explained in the previous reasons, the result was that, because sentencing was delayed until after the trial, a circumstance beyond the control of the applicant, he lost the benefit of having served a portion of his sentence dating from 10 October 2001, a period of 4 months, which in the circumstances represented the equivalent of serving a sentence of 1 year, as pointed out by this Court in par 40 in the original reasons in more than one way. This Court's conclusion was that the simplest way to achieve the desired result would be to reduce the sentence which would otherwise have been imposed by 1 year. The Court was unanimously of the opinion that justice would be done in the present case by granting the applicant leave to appeal, allowing the appeal and varying the sentence imposed by directing that 3 years of the sentence of 4 years imposed be served cumulatively upon the sentences the applicant was serving as at 10 October 2001.

11 As is abundantly clear from the order and direction of the Court, the sentence the Court imposed was in the form of an order under s 88(3)(d) of the Sentencing Act that the term of 4 years imposed by the Court was to be served partly cumulatively on the fixed terms that the applicant was serving as at 10 October 2001. To the extent that 3 years of the sentence was to be served cumulatively on the sentence he was serving as at 10 October 2001, it follows that the remaining year was to be served concurrently with the sentence he was serving as at 10 October 2001. Put another way, the order as pronounced had the effect that 3 years of the term of 4 years was to be cumulative upon the earlier sentence.

12 Section 88(4) of the Sentencing Act provides that, if, under s 88(3)(d), a Court orders that a term is to be served partly cumulatively upon another fixed term, the Court must specify the period of the other

fixed term that is to be served before the partly cumulative term is to begin; but that period must not extend beyond the earliest date on which the offender could be released (whether on parole or not) in relation to the other fixed term. The specification of the period of the other that is to be served before the partly cumulative term is to begin requires a calculation to be made. In such cases we are of the opinion that it is the duty of counsel to provide assistance to the Court in making the necessary calculations, noting that the term which is to be served partly cumulatively cannot commence later than the earliest eligibility for release date of the other term under s 88(4).

13 In the present case we directed counsel to confer with a view to agreeing upon an appropriate form of order. By an agreed minute dated 30 October 2002 the parties have agreed upon the following orders to be made by consent to dispose of the appeal, namely:

(3) that the original sentence of 4 years cumulative be varied, and the applicant resentenced such that:

(a) the applicant be sentenced to a term of 4 years' imprisonment to be served partly cumulatively on the sentence he was serving as at 10 October 2001;

(b) 3 years of the sentence of 4 years' imprisonment be served cumulatively on the sentence he was serving as at 10 October 2001;

(c) the applicant serve an additional 12 months from the earliest date he would have been eligible for parole in respect of the sentence he was serving as at 10 October 2001, before being eligible for parole;

(d) the sentence of 4 years to be taken to have commenced on 8 July 2002.

14 WALLWORK J: I agree with the reasons of the Chief Justice.

Brazier v The Queen [2002] WASCA 314

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Brazier v The Queen [2002] WASCA 314 (26 November 2002)

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