BETWEEN : CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF CORRECTIVE SERVICES

Parole - Application for declaration under s 49 of the Sentencing Administration Act 2003 (WA) - Referral to Court of Appeal - Whether Court of Appeal has jurisdiction - Calculation of parole eligibility in respect of partly concurrent sentences

Criminal Appeals Act 2004 (WA), s 46

Criminal Procedure Act 2004 (WA), s 98(2)(d), s 127(2)(b)

Rules of the Supreme Court 1971 (WA), O 18 r 16, O 58 r 11

Sentence Administration Act 2003 (WA), s 49

Sentencing Act 1995 (WA), s 34(2), s 36, s 37, s 85, s 88, s 89, s 93, s 94

Sentencing Legislation Amendment and Repeal Act 2003 (WA)

Supreme Court Act 1935 (WA), s 25(6), s 43, s 58(1)

Declaration that the minimum period the respondent will serve in custody is 2 years

1 McLURE JA: This is an application under s 49 of the Sentence Administration Act 2003 (WA) (Administration Act) for a declaration as to when the respondent is eligible to be released on parole. The application came before Blaxell J who referred to the Court of Appeal, pursuant to s 43(1) of the Supreme Court Act 1935 (WA) (Supreme Court Act), the following issue:

How, on a proper construction of the Sentencing Act 1995, is parole eligibility calculated in relation to partly concurrent parole terms?

2 The issue arose in the following circumstances. On 2 October 2007 the respondent was sentenced by McKechnie J on four counts of attempted aggravated armed robbery and one count of aggravated armed robbery. He imposed sentences of 2 years' imprisonment on each count with counts 2 - 5 to commence after 1 year had been served on count 1.

3 Section 34(2) of the Sentencing Act 1995 (WA) (Sentencing Act) requires that a court sentencing an offender to a fixed term state in open court the minimum period that the offender will serve in custody in respect of the term or, if more than one term is imposed, in respect of the aggregate of the terms. Pursuant to that requirement, McKechnie J stated in his sentencing reasons:

I make a parole eligibility order which means you will serve 18 months of that term if you are suitable for parole ...

4 The applicant subsequently indicated to the respondent that he would not become eligible for parole until he had served 2 years. As a result of that advice, the respondent applied under s 37 of the Sentencing Act to correct the sentence. The application was heard by McKechnie J. In a reserved decision, McKechnie J concluded that his statement of the minimum period of 18 months was correct. McKechnie J aggregated the 1 year to be served on count 1 with the concurrent 2-year term for the balance of the counts resulting in a total effective sentence of 3 years which he divided by one-half to produce the figure of 18 months.

5 The applicant contends McKechnie J erred in his approach in determining the minimum period the respondent would spend in custody. He says the correct approach in determining the minimum period is to determine the earliest release date, being the period the prisoner has to serve before becoming eligible for release on parole (what I will refer to as 'the non-parole period'), separately for each offence and aggregate them. That is, in determining the respondent's minimum period it is necessary to separately calculate the non-parole period for count 1 (1 year) and the non-parole period for counts 2 - 5 (1 year) and aggregate those periods. On that approach the earliest release date for all offences is 2 years not 18 months.

6 There is a preliminary issue as to this court's jurisdiction.

7 The applicant relies on s 49 of the Administration Act and s 43 of the Supreme Court Act. Section 49 of the Administration Act materially provides:

(1) If a doubt or difficulty arises to which this section applies and neither this Act nor the Sentencing Act 1995 nor the Sentencing Legislation Amendment and Repeal Act 2003 makes adequate provision for it, the CEO may apply in a summary way to a judge of the Supreme Court for an order resolving the doubt or difficulty.

(2) On such an application the judge may make any order he or she considers just and for that purpose may make a declaration as to -

(a) the length of ... any parole period;

(b) ...

(c) ...

(3) This section applies to doubts or difficulties as to -

(a) ...

(b) any matter relating to parole, including the date when a prisoner is eligible to be released on parole, the parole period applicable in any case ... ;

(c) ...

8 Section 49(1) is oddly drafted. On its face, the requirements (1) that there be a doubt or difficulty as defined and (2) that neither the Administration Act, nor the Sentencing Act nor the Sentencing Legislation Amendment and Repeal Act 2003 (WA) (Amendment and Repeal Act) makes adequate provision for it, have to objectively exist to enliven the CEO's power to apply for a declaration. If that is so, the requirements are indirectly necessary to enliven the court's power to make a declaration. The first issue is whether the requirements in s 49(1) are met. The issue for determination in this case is a doubt or difficulty to which s 49 applies. On its face, the further requirement that 'neither [the Administration Act] nor the Sentencing Act 1995 nor the Sentencing Legislation Amendment and Repeal Act 2003 makes adequate provision for it' may be construed to require that there be a gap in the legislative scheme relating to parole. There is no such gap in this case. The issue is to be determined solely by reference to the proper construction of the Sentencing Act and the Administration Act. An alternative construction of s 49(1) is that inadequate provision is made if the application of the legislative scheme is ambiguous for whatever reason (including ambiguous statutory language or a gap in the legislative scheme). The explanatory notes to the Bill for the Administration Act support the wider alternative construction. A summary procedure for resolving doubt or difficulty occasioned by ambiguous statutory language is consistent with the purpose of the section. I prefer the wider construction.

9 The respondent contends this court has no jurisdiction under s 49 because the section confers jurisdiction on a judge of the Supreme Court. That submission overlooks s 43 of the Supreme Court Act which permits a judge of the Supreme Court to reserve a case or question for the consideration of the Court of Appeal. Section 58(1)(d) of the Supreme Court Act gives the Court of Appeal jurisdiction to hear and determine cases and questions reserved by a judge under s 43. However, a judge may only reserve a case for the Court of Appeal under s 43 of the Supreme Court Act in the exercise of his or her civil or appellate jurisdiction. An application under s 49 of the Administration Act does not enliven the court's appellate jurisdiction. That is apparent from the conferral of jurisdiction on a judge of the Supreme Court. The remaining question is whether an application under s 49 of the Administration Act is within the civil or criminal jurisdiction of the court.

10 That question needs to be examined in the broader context of the powers of a sentencing judge. The power of a judge sentencing an offender to make a binding order or direction in connection with parole is confined to the making or refusal of a parole eligibility order under s 89 of the Sentencing Act.

11 The consequences of a parole eligibility order for an offender sentenced to a term of imprisonment are detailed in the Sentencing Act and the Administration Act. A sentencing judge does not have the power to alter or affect the statutory consequences that flow from the making of a parole eligibility order. The consequences are in that sense automatic. Further, s 34(2) of the Sentencing Act does not confer any power on a sentencing judge. It provides:

If a court sentencing an offender imposes a fixed term ... the court is to state in open court the minimum period that the offender, as a result of the sentence and the operation of this Act, will serve in custody in respect of the term or, if more than one term is imposed, in respect of the aggregate of the terms.

12 The statutory obligation to state the minimum period cannot be construed as, in substance, a power to make a declaratory order that binds the parties and the authorities responsible for the administration of the law in this area (including the Prisoners Review Board). The statement under s 34(2) is in the nature of a non-binding advisory opinion. It follows that the statement of the minimum period does not form part of the sentence imposed by the sentencing judge. It is not shown on the warrant of commitment required to be issued under s 36 of the Sentencing Act. This explains why there was no appeal from the decision of McKechnie J under s 37 of the Sentencing Act and why the authorities did not regard themselves as bound by the judge's statement of the minimum period.

13 The question whether an application under s 49 of the Administration Act is within the civil or criminal jurisdiction of the court has to be answered against that statutory framework. The applicant is responsible for the proper administration of, inter alia, pt 3 of the Administration Act which deals with parole. The identity of the only person with standing to seek an order under s 49 (the applicant) and the nature of the court's power to grant relief (a declaration) point to the conclusion that the application is within the civil jurisdiction of the Supreme Court. That conclusion is consistent with the context. I note for the sake of completeness that the criminal law procedure powers are not wide enough to cover the referral of a question under s 49 to the Court of Appeal (see s 98(2)(d) and s 127(2)(b) of the Criminal Procedure Act 2004 (WA) and s 46 of the Criminal Appeals Act 2004 (WA)).

14 In any event, the Supreme Court in the exercise of its civil jurisdiction could determine the construction issue in this case pursuant to s 25(6) of the Supreme Court Act and O 18 r 16 of the Rules of the Supreme Court 1971 (WA) (the Rules) or pursuant to a construction summons under O 58 r 11 of the Rules. There could then be a referral to the Court of Appeal under s 43 of the Supreme Court Act. This court also has jurisdiction to hear and determine special cases where all parties agree that the same be heard before the Court of Appeal: s 58(1)(l) of the Supreme Court Act.

15 The sentencing judge made an order for a partly concurrent sentence under s 88(3)(d) of the Sentencing Act. Section 88(3) and (4) provide:

(3) 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 concurrently with the other fixed term.

(4) If under subsection (3)(d) a court orders that a term is to be served partly concurrently with another fixed term, the court must specify the period of the other fixed term that is to be served before the partly concurrent 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.

16 The sentencing judge complied with s 88 (4). He specified that a period of 1 year was to be served before the partly concurrent terms were to begin and the period did not extend beyond the earliest date on which the respondent could be released on parole on count 1.

17 Section 89 materially provides:

(1) A court sentencing an offender to a fixed term may order that the offender be eligible for parole in respect of that term by making a parole eligibility order.

(2)-(4) ...

(5) If a court decides that an offender is to be eligible for parole in respect of 2 or more of the fixed terms it imposes, it is to make a single parole eligibility order in respect of those terms.

18 Sections 93 and 94 are of particular relevance. Those sections relevantly provide:

(1) Subject to section 94, a prisoner serving a parole term is eligible to be released on parole -

(a) if the term served is 4 years or less - when he or she has served one-half of the term; or

(b) if the term served is more than 4 years - when he or she has served 2 years less than the term.

(2) Any order for the release on parole of a prisoner to whom subsection (1) applies must be made in accordance with Part 3 of the Sentence Administration Act 2003.

(3) ...

1. Aggregation of parole terms for certain purposes

(1) In the case of a prisoner serving 2 or more parole terms -

(a) the time when he or she is eligible to be released on parole; and

(b) the parole period for such a prisoner,

are to be calculated by reference to the aggregate of those terms, but only if under subsection (3) or (4) those terms are to be aggregated.

(2) If under this section the matters referred to in subsection (1) are not to be calculated by reference to the aggregate of 2 or more parole terms, the matters are to be calculated in respect of each of the 2 or more parole terms separately.

(3) A parole term imposed at the same time as another parole term is to be aggregated with that other term for the purposes of subsection (1) unless it is to be served partly concurrently with that other term.

(4)-(5) ...

(6) For the purposes of applying this section a reference in this Part or in the Sentence Administration Act 2003 to a prisoner serving a parole term is, where necessary, to be taken as including a reference to a prisoner serving more than one parole term and in such a case, if under this section the terms can be aggregated, the reference to the term is to be taken as being a reference to the aggregate of the terms.

Table showing some examples of the operation of this section and sections 88 and 93, and section 7 of the Sentence Administration Act 2003

Aggregation of terms permitted for parole calculations.

Aggregation of terms permitted for parole calculations.

(See s.88(4))

Aggregation of terms not permitted for parole calculations.

Then begin serving term 2 concurrently with rest of term 1.

19 Section 85(1) of the Sentencing Act defines 'parole term' to mean a term to which a parole eligibility order applies.

20 Section 85(2) of the Sentencing Act provides:

(2) For the purposes of this Part and Part 11 and for the purposes of the Sentence Administration Act 2003, the aggregate of 2 or more fixed terms is the total effective period of imprisonment imposed on the offender having regard to whether the fixed terms are to be served concurrently or partly concurrently or cumulatively.

21 These provisions must be construed in the context of their legislative history.

22 The current versions of s 85(2), s 88(4), s 93 and s 94 of the Sentencing Act were inserted by the Amendment and Repeal Act.

23 Section 88(3)(d) of the former Act empowered the court to order that a fixed term be served partly cumulatively on the other fixed term.

24 Section 88(4) of the former Act was in the same terms as the current s 88(4) with the exception that it referred to a fixed term to be served partly cumulatively. So too with s 85(2) of the former Act which is in the same terms as the existing section save that it refers to fixed terms served 'partly cumulatively' rather than 'partly concurrently'.

(1) In the case of a prisoner serving 2 or more parole terms -

(a) the time when he or she is eligible to be released on parole; and

(b) the parole period for such a prisoner,

are to be calculated by reference to the aggregate of those terms, but only if under subsection (2) or (3) those terms are to be aggregated.

(2) A parole term imposed at the same time as another parole term is to be aggregated with that other parole term for the purposes of subsection (1) unless it is to be served partly cumulatively with that other term.

(3) A parole term imposed at a different time to another parole term is to be aggregated with that other term for the purposes of subsection (1) unless it is to be served concurrently with that other term or partly cumulatively with it.

(4) Subject to this section, a parole term, or an aggregate of 2 or more parole terms, may be aggregated with the aggregate of 2 or more other parole terms.

(5) For the purposes of this section a reference in this part or in the Sentence Administration Act 1995 to a prisoner serving a parole term is, where necessary, to be taken as including a reference to a prisoner serving more than one parole term and in such a case the reference to the term is to be taken as being a reference to the aggregate of the terms.

26 The former Court of Criminal Appeal had taken the view that in the case of partial cumulation under the former Act, the effect of s 94(2) and s 94(3) was to provide for what the court described as 'partial aggregation' of the terms (my emphasis) and rejected the proposition that there was to be no aggregation thereof: Kirby v The Queen [2003] WASCA 164 [10] - [11] (Murray J) (Kirby No 1); [109] - [110] (Robert-Smith J); Pinkstone v The Queen [2003] WASCA 66; (2003) 140 A Crim R 83 [109] - [110] (Murray J). The correctness of that construction was doubted in Kirby v The Queen [2003] WASCA 239 [12]. The expression 'partial aggregation' reflects the fact that only the period to be served before the commencement of the other fixed term is added to the other fixed term.

27 The explanatory notes to the Amendment and Repeal Act in relation to the clause amending s 88(3) and s 88(4) of the Sentencing Act state:

The amendment to subsections (3) and (4) arise as a result of a 1996 case of Peter Alexander Mitchell v R ... The partial aggregation arising from 'Mitchell' was not intended. The use of part concurrency conveys a clearer intention of the desired outcome.

28 I infer the Mitchell case referred to in the explanatory notes is the sentencing of Peter Alexander Mitchell by Murray J on 2 May 1997 (ts 363). The explanatory notes for s 94(3) state:

Under subsection (3) if parole terms are imposed at the same time they can be aggregated unless the court has ordered that the terms are to be served partly concurrently.

29 McKechnie J followed the partial aggregation of terms approach adopted in Pinkstone and Kirby (No 1). He added the 1-year period to be served in respect of count 1 and the 2-year term for counts 2 - 5 to produce an effective aggregate term of imprisonment of 3 years and determined the respondent's earliest release date on parole by dividing the aggregate term of 3 years by one-half in accordance with s 93(1)(a) of the Sentencing Act.

30 The applicant contends that eligibility for release on parole is not to be calculated by reference to the effective aggregate of the terms but rather by aggregating the non-parole period for count 1 and the (single) non-parole period for counts 2 - 5. The respondent in effect conceded the correctness of the applicant's approach.

31 The approach contended for by the applicant is in accordance with the clear and unambiguous language of pt 13 of the Sentencing Act, in particular s 94(1), (3) and (6). A term to which a parole eligibility order applies (a parole term) imposed at the same time as another parole term is not to be aggregated with that other term if it is to be served partly concurrently with that other term: s 94(3). If a term is to be served partly concurrently with another term, the time when the prisoner is eligible to be released on parole is to be calculated in respect of each of the two or more parole terms separately: s 94(2). The general provision in s 89(5) in relation to a single parole order is not inconsistent with s 94(2). Even if it were, the general provision must give way to the specific direction in s 94(2) to calculate the earliest release date for each parole term separately.

32 The intended operation of s 93 and s 94 is shown in the examples in the table in s 94(6). The final example in that table shows the methodology to be applied when sentences are to be served partly concurrently. It demonstrates that the partial aggregation of terms approach adopted by McKechnie J is wrong. It also demonstrates that the applicant's statement of principle, although accurate for the facts of this case, is not universally applicable. In the final example, 1 year of term 1 (a sentence of 4 years) is to be served before term 2 (a sentence of 6 years) begins. The non-parole period for term 1, separately calculated, is 2 years. However, only the time served for count 1 alone (1 year) is added to the non-parole period for term 2 (4 years) resulting in a minimum period in custody before becoming eligible for parole of 5 years. I will refer to the time served on term 1 before the commencement of term 2 (which cannot be longer than the non-parole period for term 1) as the 'serve alone period'. The serve alone period for term 1 is to be aggregated with the non-parole period for term 2.

33 It is the case that in the final example in the table in s 94(6), the earliest release date for the sentences as a whole is the same whether the two terms are partially aggregated (1 + 6 - 2 = 5) or the serve alone period and the non-parole period for term 2 (1 + 4 = 5) are aggregated. However, that is a consequence of adopting a different criterion for calculating parole periods after 4 years. The rationale for adopting a different criterion may be difficult to fathom, however it cannot be said that the consequences of the difference are anomalous. This is not a case where two constructions are otherwise open on the language of the statute. Moreover, the clear language of s 94 is consistent with and promotes the legislative intent revealed in the extrinsic material.

34 In summary, the partial aggregation of terms approach adopted by McKechnie J is not in accordance with the Sentencing Act. The minimum period an offender sentenced to partially concurrent sentences will serve in custody is to be determined by aggregating (i) the time to be served for the nominated count (term 1) before the commencement of the sentence(s) to be served concurrently (term 2) and (ii) the non-parole period, separately calculated, for term 2. Accordingly, I would declare that the minimum period the respondent will serve in custody is 2 years.