Parole eligibility - Amendments to criteria - Retrospectivity

Interpretation Act 1984, s 37(1)

Sentencing Act 1995, s 89

1 MALCOLM CJ: In my opinion, this application for leave to appeal should be granted, the appeal allowed, and an order made that the applicant be eligible for parole in respect of the sentences imposed on him on 15 August 2003. I have reached that conclusion for the reasons to be published by Wheeler J. I am also in agreement with the additional comments which have been made by McKechnie J.

2 WHEELER J: This is an application for leave to appeal against sentence. The sole ground of the appeal is that the learned sentencing Judge erred in failing to declare the applicant eligible for parole.

3 The offences for which the applicant was sentenced were serious ones. At about 7.10 pm on 19 December 2002, having been arrested for other offences earlier on that day, the applicant was released from the East Perth lockup. His co-offender in the present offences was released at the same time. The two walked together in the general direction of the railway station. The applicant said that it was his intention to catch a train home. However, within minutes of his release on bail, and before reaching the train station, he noticed a vehicle parked in a car park with its window partially open. He decided to steal it in order to go home and told his co-offender of his intention. Having entered the car, the applicant used the dipstick to manipulate the ignition and he then drove it with the co-offender as a passenger.

4 In St George's Terrace near Barrack Street he stopped the car, at his co-offender's request. The co-offender got out of the vehicle and ran behind a young woman who was walking along the footpath, snatching her handbag. He ran back to the vehicle and the complainant gave chase and grabbed the applicant's arm through the driver's side window. The applicant accelerated, and the complainant tried to run alongside the vehicle for some distance but could not keep up, falling to the roadway and receiving minor cuts and grazes.

5 The applicant and co-offender then drove to Beaufort Street. He slowed the car. He said he did so because of the traffic. The co-offender jumped out and ran up to the next complainant, a lady of some 36 years of age, and grabbed her handbag. She would not let it go and he dragged her back to the vehicle. He got into the vehicle, pulling the complainant halfway in with him. The applicant began to accelerate away from the kerb. The complainant's husband, a man of some 58 years of age, grabbed on to her to try to stop her from being dragged away and both of them were pulled along the road. The handbag either broke free or the co-offender let go of it, and both the complainant and her husband fell. She

suffered minor cuts and abrasions but his right leg went under the rear wheel of the vehicle and was run over, causing extensive injury.

6 The applicant then attempted to turn from Beaufort Street into Mary Street but collided with another vehicle. He ran from the vehicle at the scene and the co-offender was caught.

7 The applicant was interviewed in relation to these offences and admitted his involvement. He participated in a videotaped record of interview and gave police a statement describing not only his own involvement but that of his co-offender.

8 The sentence imposed upon the applicant was an effective head sentence of 5 years to take effect immediately. It is not necessary to set out the detail of the individual sentences. They were very significantly reduced, and some were made concurrent, in order to recognise the applicant's personal circumstances, his early plea of guilty, his co-operation with police, and principles of totality. In respect of the last matter, totality was of particular importance because his parole in relation to other matters had been cancelled and he "owed" the Parole Board a considerable period, with his earliest eligible date for release being 2 November 2003. Were it not for his co-operation, plea of guilty and matters of totality, the head sentence would no doubt have been significantly greater. These offences plainly warranted a substantial term of imprisonment, and no complaint is made about the term itself.

9 In order to understand what was said by the learned sentencing Judge about parole, it is necessary to refer briefly to the applicant's background. He was at the time of sentencing a 30 year old man. His Honour accepted a submission by the applicant's counsel that he had had a "wretched" upbringing. That upbringing was set out in more detail in the report of Ms Fisher, a counsellor at the Sexual Assault Resources Centre. From birth to 41/2 years of age he spent a great deal of time either in Princess Margaret Hospital or with his grandparents. However, he and three of his oldest siblings were then sent to live with relatives. One relative subjected the applicant, from the age of 41/2, to very harsh treatment including regular beatings. In addition, it appears that he witnessed the sexual abuse of his sisters by another relative. Unsurprisingly, his behaviour became uncontrollable and he began to run away. At the age of 11 he was made a ward of the State and sent to a camp which he described as being an equally harsh environment. At 12 he was reunited with his mother who had by then married again. Unfortunately, his mother's husband also severely mistreated the applicant. At this time the applicant was also subjected to sexual abuse by another person, in circumstances which it is not necessary to detail. He began to steal and was introduced to amphetamines and sniffing. He has a history of illicit drug use.

10 Not surprisingly, he has a very significant record of juvenile offending and has spent a significant amount of time in and out of juvenile detention centres. His adult record of offending has two characteristics. On the one hand, his offending appears to be less frequent now than it was as a juvenile, there being apparently some periods of time during which he has managed to refrain from offending. However, on the other hand, his offending has become more serious and includes convictions for assault occasioning bodily harm, going armed so as to cause fear and threats to kill.

11 It was said by the applicant's counsel that he had on one occasion successfully completed parole. However, on three other occasions on which he had been offered parole his parole had been cancelled. Further, as I have already noted, these offences were committed within minutes of being released on bail in respect of other offences.

12 A shorthand way of summarising the applicant's antecedents would be that he is, on the one hand, obviously a person who is need of counselling and rehabilitation but that, on the other hand, he is obviously a person with an entrenched pattern of offending behaviour.

13 There were a number of factors, referred to before his Honour, which suggested that the applicant was beginning both to realise the seriousness of his current offending and to seek to deal with the issues giving rise to it. He had engaged in substance abuse counselling whilst in prison, and declared a preparedness to attend relevant programmes dealing with that issue. He had sought counselling from the Sexual Assault Resource Centre, and his counsellor suggested that in the relatively short time between June 2003 and August 2003, during which she had been undertaking counselling, she had perceived changes in him. As has already been noted, he had in relation to these offences confessed, pleaded guilty and co-operated with police. He had written letters of apology to the victims. He had also written a letter to his Honour, in which he recounted having been stabbed in the ear whilst incarcerated, and described the fear of prison caused by that incident. The letter also noted that by having agreed to give evidence against the co-offender he had made his own life more difficult whilst in prison.

14 The learned sentencing Judge noted that in his view "The material before the Court suggests that of recent times [the applicant has] taken a more positive attitude to ... rehabilitation which is supported by [the] plea of guilty at the earliest opportunity, [the] co-operation with the police and ... willingness to give evidence at the trial of [the co-offender]". He noted also the letters which had been written. However, his Honour concluded that "... there is nothing in the material before me which points to the appropriateness of parole".

15 In my view, the learned sentencing Judge was in error in the conclusion which he reached in relation to parole. There were a number of factors which pointed in favour of parole eligibility. On one reading, his Honour's remarks may, as the State submits, indicate that he intended to convey that, having balanced the various factors, he had concluded that those militating against parole outweighed those pointing towards parole eligibility. However, if such a balancing exercise were to be undertaken, it would be necessary for his Honour to have done so expressly. There is no explanation of why his Honour considered that there was "nothing" pointing to eligibility.

16 Having identified that error, it falls to this Court to consider whether it would be appropriate to order that the applicant be eligible for parole. A question arose concerning whether the Court was required to consider the issue of parole by reference to s 89 of the Sentencing Act 1995 as it was at the time of the applicant's original sentencing, or as it now is. It was common ground that the present s 89 is less favourable towards offenders and that an order for parole eligibility would be less likely to be made if the Court were to apply that section as it now stands.

17 The relevant principles of statutory interpretation are conveniently to be found collected and discussed in a decision of the Supreme Court of South Australia: Daire v Stokes (1982) 32 SASR 402. In that case, Walters J considered both the common law principles, and the provisions of s 16(1)(iv) and (v) and s 16(2) of the Acts Interpretation Act 1915 (SA), which are relevantly the same as s 37(1)(d) and (f) of the Interpretation Act 1984 (WA). His Honour said at (409):

"The common law principle to be applied with regard to the retrospective operation of a statute may be taken from two judgments. First, I cite the dictum of Wright J in In re Athlumney; Ex parte Wilson [1898] 2 QB 547 at 551-552 where his Lordship said:

'Perhaps no rule of construction is more firmly established than this - that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation, otherwise than as regards matter of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only.'

Secondly, I cite Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261 at 267, where Dixon J (as he then was) said:

'The general rule of the common law is that the statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to past events.'

While acknowledging the principle thus stated, nevertheless it seems to be open to question whether it applies to legal proceedings that are already on foot and which affect the penalty to which a person is liable in those proceedings. In this connection, I quote the observations of Bray CJ in Samuels v Songaila (1977) 16 SASR 397 at 400 where the former Chief Justice said:

'This proposition [that legislation is not to be construed so as to have retrospective operation] does not necessarily apply to legislation which merely affects the practice or procedure of the courts. But the nature and the amount of the penalty for a criminal or a quasi-criminal offence seem to me to be clearly not matters of procedure.'

Also, it appears to me that the provisions of s 16(1) (iv) and (v) and s 16(2) of the Acts Interpretation Act are not without significance for present purposes. [Sections 16(1) (iv) (v), and (2) were then set out]

These provisions of the Acts Interpretation Act were considered by the Full Court in Samuels v Songaila, where the Court dealt with the question whether old penalties for offences under the Road Traffic Act, 1961, as amended, were preserved for offences, committed prior to the repeal of those penalties and the enactment of new and increased penalties for those offences. By applying the provisions of s 16 of the Acts Interpretation Act, Bray CJ came to this conclusion:

'In my opinion this means that the repeal of the penalty provisions of the original s 47b does not affect the penalty liable to be imposed on the defendant prior to the repeal, ie the penalty which could have been imposed on him at any time between the date of the offence, 4th February, 1977, and 1st March, 1977, and when the new Act came into operation (sub-section iv).

Nor does it affect any legal proceedings in respect of that penalty or the punishment for that offence (sub-section v). Sub-section v may or may not be restricted to legal proceedings commenced before the repealing Act came into operation but these proceedings were so commenced.'

Zelling J took a similar view."

18 Applying the principles discussed above, it would appear to me that the applicant had, at the time at which he came to be sentenced, a right to have his eligibility for parole considered in accordance with s 89 as it then stood. On appeal, this Court looks back to the time of sentence to consider whether a different sentence "should have been passed" (s 689(3) Criminal Code). Amendments to the Sentencing Act after the date of the applicant's sentence should not therefore be construed so as potentially to limit, retrospectively, his eligibility for parole.

19 It is true that, as counsel for the State pointed out, this Court in Spina v The Queen [2003] WASCA 219(S) considered that, when re-sentencing an offender following a successful appeal, it was required to apply the provisions of cl 2.1 of Sch 1 of the Sentencing Legislation and Repeal Act 2003. However, that legislation required the reduction of an offender's sentence, rather than exposing the offender to an increased penalty, so that different considerations may apply (cf Samuels v Songaila (1977) 16 SASR 397 at 403 per Bray CJ). Further, because of the different method of calculation of parole effected by the same legislation, the practical effect of the application of that clause would be that the offender would be liable to serve a period in custody equivalent to that which would have been served in respect of a sentence imposed under the previous sentencing regime; the change could in effect be regarded as one of form rather than substance.

20 In my view, in re-sentencing the applicant, the Court should apply s 89 as it formerly stood. It must be acknowledged that, while there were factors pointing in favour of parole eligibility, there were also factors suggesting that such an order would be inappropriate. The most notable of those factors were the applicant's lengthy criminal history and his poor performance under supervision on previous occasions. In my view, however, this is not a case in which factors of that kind lead to the conclusion that the applicant is such a danger to the community that no order for parole eligibility should be made. The applicant has a clear need for treatment, and there are some indications that he has recognised that need and has begun to respond positively to treatment which has been available to him. In those circumstances, it would be appropriate to order that he be made eligible for parole. Whether he is ultimately released to parole will of course depend upon any progress he might make, whilst in custody, in dealing with the various matters which have contributed towards his offending to date.

21 I would therefore grant leave, allow the appeal and order that the applicant be made eligible for parole in respect of the sentences imposed on him on 15 August 2003.

22 MCKECHNIE J: It may immediately be accepted that the applicant was a marginal candidate for parole. His record, particularly the commission of these offences, is eloquent as to his attitude in late 2002. However, there were some matters, as detailed by Wheeler J, which did point towards parole.

23 It may sometimes be unfair to a Judge to read ex tempore remarks at sentence with the same precision as may be applied to a reasoned reserve judgment. Infelicity of expression should not obscure the commonsense evaluation of the judicial reasoning towards a particular decision.

24 As against this, however, the words used by a judge cannot be entirely ignored or rewritten. The State submitted that the passage "...there is nothing in the material before me which points to the appropriateness of parole..." is not to be read literally and it could not have been intended to be so read because the Judge had, moments earlier, referred to material which suggested that of recent times, the applicant had taken a more positive attitude to his rehabilitation.

25 There is considerable force in the submission. However, giving the submission full weight there remains an unresolved ambiguity as to whether the Judge did take the positive matters into account in declining

to make a parole eligibility order. The ambiguity should be resolved in the applicant's favour. Consequently, I agree with Wheeler J that the Judge fell into error and that this Court should consider parole afresh.

26 A matter of consequence which arises is whether the reconsideration is subject to the past or present form of the Sentencing Act, s 89(4).

27 The answer is crucial in this case. Counsel for the applicant conceded that if the new parole provisions apply "... I would not argue parole because the provisions have changed substantially."

28 That is a proper stance because the applicant would fall into three of the four categories in s 89(4) with a highly likely consequence that parole would not be granted.

29 I agree with Wheeler J, for the reasons she expresses, that parole eligibility should be considered under s 89 in the form as at the time of original sentence. Spina v The Queen [2003] WASCA 219(S) is distinguishable in the manner explained by Wheeler J. The Sentencing Legislation Amendment and Repeal Act 2003, Sch 1 cl 2.1 limited the effect of the clause to the imposition of sentences, expressly leaving to one side the making of a parole eligibility order.

30 I agree with Wheeler J, for the reasons she gives, that a parole eligibility order is appropriate. The chief reason for my reaching that conclusion is that I consider the community's interests will be best served by a period of supervised release. The fact that the applicant owes the Parole Board a substantial number of days is relevant but not, in this case, decisive.

31 I would grant leave, allow the appeal and make a parole eligibility order in respect of the sentences imposed on 15 August 2003.