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[2003] WASC 129
Supreme Court of WA
2003-06-26
Murray J
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : DOWNEY -v- THE QUEEN [2003] WASC 129
Criminal law and procedure - Application for declaration as to eligibility for parole - Calculation dependent upon aggregation of parole terms
Sentencing Act 1995 (WA), s 85(1), s93, s 94
1 MURRAY J: This was an application for a declaration that on the proper construction of the relevant provisions of the Sentencing Act 1995 (WA) and the Sentence Administration Act 1995 (WA) the applicant would be eligible for release on parole after serving a term of 3 years and 4 months imprisonment from 8 March 2000. If that were right, the applicant's eligibility date would be 8 July 2003.
2 Neither party made any submissions as to the source of the Court's power to make such a declaration. Counsel for the respondent did not suggest, however, that the Court lacked the power to make the declaration sought. The application was not made for the correction of a sentence under the Sentencing Act, s 37. After hearing argument I declined to make the direction in the specific terms sought. It was therefore unnecessary to authoritatively decide the jurisdictional question, but of course, under the Supreme Court Act 1935, s 25(6) the Court has the power to make binding declarations of right without the grant of any consequential relief and I was prepared, had it been necessary, to take the view that the applicant could ask as of right for a declaration as to his eligibility for release on parole pursuant to sentences imposed upon him in respect of which such an order of eligibility for parole had been made.
3 Putting that question to one side, therefore, these are my reasons for decision in respect of the question raised by the applicant.
4 The matter arises in the following manner. On 31 October 2000 the applicant was sentenced to 6 years imprisonment with parole eligibility for an offence of armed robbery in company. The sentence was backdated to 8 March 2000. On 5 June 2001 he was sentenced in the District Court to terms of imprisonment for a number of offences. On one indictment there were five offences of stealing a motor vehicle and one offence of stealing a motor vehicle aggravated by reckless driving. For each of the five offences of stealing a motor vehicle he was sentenced to 12 months imprisonment. For the aggravated offence of that kind he was sentenced to 18 months imprisonment. He was sentenced to 12 months imprisonment for an offence of stealing from the person and a sentence of 12 months imprisonment was imposed upon him for an offence of robbery. A separate indictment contained an offence of stealing a motor vehicle and two counts of aggravated burglary. For this particular theft of a motor vehicle he was sentenced to 2 years imprisonment and for each of the aggravated burglary offences he was sentenced to 2 1/2 years imprisonment.
5 The Judge permitted those sentences to be served concurrently, except that he ordered cumulative service upon the other terms of the 21/2 year sentences imposed for the aggravated burglaries. That gave an aggregate term of 4 years imprisonment and the court made a parole eligibility order in respect of those terms under the Sentencing Act, s 89(5). All of the sentences imposed on 5 June 2001 were ordered to be served cumulatively upon the sentence imposed on 31 October 2000. The aggregate term of imprisonment with parole eligibility was therefore a period of 10 years imprisonment, under the Sentencing Act, s 85(2).
6 Each of the sentences imposed was a "fixed term" within the meaning of s 85(1) and each was a "parole term" as defined by that subsection, being, in each case, "a term to which a parole eligibility order applies".
7 The provisions governing when a prisoner is to be released from imprisonment are those contained in the Sentencing Act, Pt 13 Div 3, as well as various provisions of the Sentence Administration Act 1995 (WA). The key section of the Sentencing Act is s 93 which provides:
"(1) Subject to section 94, a prisoner serving a parole term is eligible to be release on parole -
(a) if the term is 6 years or less - when he or she has served one third of the term; or
(b) if the term is more than 6 years - when he or she has served 2 years less than two thirds of the term.
(2) Any order for the release of a prisoner to whom this section applies must be made in accordance with Part 3 of the Sentence Administration Act 1995."
8 The applicant acknowledges that he is serving parole terms. He says that when he was sentenced with effect from 8 March 2000 in this Court to a term of 6 years imprisonment, s 93(1)(a) was to be applied and would produce an eligibility date for parole after serving one-third of the term, a period of 2 years. The applicant accepts that when an effective aggregate of 4 years imprisonment cumulative upon the earlier term was later imposed upon him, it was right to aggregate those terms, but, he says, in relation to the aggregate of those terms, his eligibility to be released on parole was again the product of the application of s 93(1)(a) and, in respect of those terms, he would become eligible for release on parole after serving one-third of them, a period of 1 year and 4 months. He acknowledges that those sentences must then be aggregated with the 6 year term previously imposed and argues that the effect of so doing is to produce an aggregate period which must be served before eligibility for parole which is the sum of the period of 2 years and 1 year and 4 months. Hence the form in which the declaration is sought.
9 In my opinion, this approach is erroneous. The crucial point to be fixed is, as s 93(1) puts it, the time when the prisoner is eligible to be released on parole. Until then, the prisoner is serving what is described by the Sentence Administration Act, s 8(3) as the "non-parole period" being "the period that under s 93 of the Sentencing Act 1995 the prisoner has to serve before he or she is eligible to be released on parole."
"(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 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."
11 It is to be noted that where there is an aggregation of parole terms, by s 94(5) the aggregate is treated as one parole term for the purpose of the application of the Sentencing Act and the Sentence Administration Act. The critical provisions for present purposes are, of course, s 94(1) and (3) and, in my opinion, the effect of those provisions is clear. Following the sentencing of the applicant on 5 June 2001 he was serving a parole term which was the aggregate of a number of parole terms. The length of that total term that he was then serving was to be calculated by aggregating the terms to the extent that they were ordered to be served cumulatively; hence the aggregate parole term of 10 years imprisonment. The calculation of the eligibility date was therefore to be made by applying s 93(1)(b). Two-thirds of the term of 10 years is 6 years and 8 months. The earliest eligibility date for the applicant to be released on parole was therefore 2 years less than that period, a period of 4 years and 8 months calculated from 8 March 2000. That period would expire on 8 November 2004, on my calculations.
12 The result is, I suppose, that the non-parole period of 2 years applicable to the sentence of 6 years imprisonment would be regarded as being provisionally calculated subject to the aggregation required, to the extent that it was required, upon the imposition of further parole terms during the course of the service of the first sentence. The aggregation process demanded by the Act requires the calculation to be made upon a basis that takes into account all parole terms, aggregated to the extent required, which the prisoner is serving and will have been serving at the time when he becomes eligible to be released on parole.
13 The scheme of the Sentencing Act is clear. For a prisoner who is released on parole while serving a sentence or sentences aggregating 6 years or more, the period of service on parole will be a maximum of 2 years, whether the prisoner is released upon the eligibility date or whether his release is deferred and a parole order is not made until after that date. The parole period is calculated under s 22 of the Sentence Administration Act, which itself is subject to s 94 of the Sentencing Act and hence to the process of aggregation and to the definition of a parole term provided by s 94(5). I need not set out here the terms of s 22. As I understand its effect, the parole period cannot be longer than 2 years and cannot extend after the two-thirds point of the parole term has been reached. That is an operation consistent with s 95 of the Sentencing Act which secures a one-third remission of all fixed terms.
14 In my opinion, the construction of the legislation which I have set out is consistent with what was written by Templeman J in Anglesey v The Queen [2002] WASCA 194 at [3] and what I wrote in Pinkstone v The Queen [2003] WASCA 66, with the agreement of Wheeler J and, on this point, with the agreement of Rolfe AJ, at [109] - [111]. It was for these reasons that I dismissed the application.
# Downey
The Queen \[2003\] WASC 129