BRIAN ELLIS, DIRECTOR OF SENTENCE MANAGEMENT DEPARTMENT OF CORRECTIVE SERVICES WESTERN AUSTRALIA

C S BENNETT, ACTING MANAGER SENTENCE INFORMATION UNIT, DEPARTMENT OF CORRECTIVE SERVICES WESTERN AUSTRALIA

Criminal law - Sentences of Imprisonment - Parole terms - Substantial legislative changes to sentencing legislation while terms being served - Subsequent release on parole - Length of terms to be served following cancellation of parole order

Sentencing Administration Act 2003 (WA), s 69, s 71

Sentencing Legislation Amendment and Repeal Act 2003 (WA), First Sch cl 5

Sentencing Act 1995 (WA), s 85(4), s 95

Determination of proper construction of relevant provisions

First Respondent : State Solicitor for Western Australia

Second Respondents : State Solicitor for Western Australia

Third Respondent : State Solicitor for Western Australia

Fourth Respondent : State Solicitor for Western Australia

King v Piper [2004] WASCA 218

Smith v Corrective Services Commission (NSW) [1980] HCA 49; (1980) 147 CLR 134

1 BLAXELL J: Each of the applicants is serving terms of imprisonment which were imposed both before and after the substantial amendments to sentencing legislation in 2003. They claim that the Department of Corrective Services has erred in its interpretation of the current legislation and miscalculated the dates on which their terms of imprisonment will come to an end.

2 Accordingly, they have applied under Rules of the Supreme Court 1971 (WA) O 58 r 11 for a determination as to the proper construction of the relevant statutory provisions and a declaration as to the dates on which each of them is entitled to be released.

3 The essential issue to be determined is whether or not the time that each applicant is still to serve in respect of parole terms imposed prior to the amendments should be reduced by a one-third 'remission' in circumstances where there was a release on parole but the parole order was cancelled.

4 I have been provided with an affidavit from a Sentence Information officer with the Sentence Information Unit of the Department of Corrective Services. That affidavit shows that Mr Hiron is presently in custody as a result of the following matters:

- 23 December 2002: Mr Hiron was sentenced to nine parole terms (seven of which were current and two cumulative) totalling 4 years' imprisonment backdated to commence on 30 November 2002.

- 23 June 2003: Following a prison charge there was a disposition resulting in 14 days' loss of remission.

- 30 August 2004: 26 warrants of commitment in respect of unpaid fines required Mr Hiron to be imprisoned for 89 days cumulative.

- 13 March 2006: Mr Hiron was released to parole under parole order made on 9 March 2006.

- 8 September 2006: The parole order was suspended (at which time Mr Hiron was in custody on remand on other charges).

- 23 December 2006: The suspension of the parole order was cancelled and Mr Hiron was re-released to parole.

- 14 September 2007: Mr Hiron was taken into custody as a result of the parole order being suspended once again.

- 15 December 2007: Mr Hiron was re-released to parole following a cancellation of the suspension.

- 22 February 2008: Mr Hiron was returned to custody following cancellation of the parole order.

- 14 March 2008: Mr Hiron was sentenced to three parole terms (concurrent with each other but cumulative on other terms) totalling 4 months' imprisonment.

- 13 May 2008: Mr Hiron was released on parole under a second parole order.

- 16 March 2009: Mr Hiron was returned to custody following suspension of the second parole order.

- 23 March 2009: Mr Hiron was sentenced to three parole terms (concurrent with each other but cumulative on other terms) totalling 6 months' 1 day imprisonment.

5 On the basis of this information, the Department has calculated that Mr Hiron is entitled to be released from imprisonment on 23 September 2012.

6 The affidavit from the Sentencing Information officer also establishes the following history in respect of Mr Hebron:

- 21 December 2000: Mr Hebron was sentenced to six parole terms (six of which were concurrent and one cumulative) totalling 4 years' imprisonment backdated to commence on 19 November 2000.

- 19 September 2001: The disposition of three prison charges resulted in a total of 28 days' loss of remission.

- 17 April 2002: Mr Hebron was released on parole.

- 18 March 2003: Mr Hebron was arrested and returned to custody as a result of the parole order having been suspended on 21 October 2002 and cancelled on 16 January 2003.

- 22 April 2003: Warrants of commitment for non-payment of fines resulting in a total of 7 days' imprisonment to be served cumulatively.

- 18 July 2003: Mr Hebron was sentenced to 29 parole terms (27 concurrent and two cumulative) totalling 4 years' imprisonment to be served cumulatively on the existing terms.

- 21 July 2003: Mr Hebron was sentenced to five non-parole terms (all concurrent) for a total of 2 months' imprisonment.

- 23 January 2004: Mr Hebron was sentenced for an aggravated prison offence to a non-parole term of 1 month's imprisonment to be served cumulatively with other sentences.

- 30 April 2004: Mr Hebron was sentenced to three parole terms (all concurrent) totalling 12 months' imprisonment.

- 15 November 2004: The disposition of a prison offence resulted in 7 days' concurrent imprisonment.

- 16 December 2004: Mr Hebron was released on parole under a second parole order.

- 3 May 2005: The second parole order was suspended (Mr Hebron then being in custody on another charge).

- 1 August 2005: Mr Hebron was sentenced to a parole term of 16 months' imprisonment backdated to 23 April 2005 and to be served concurrently with other sentences.

- 17 March 2006: Released to parole under third parole order.

- 5 July 2006: Mr Hebron was arrested and returned to custody as a result of the third parole order being suspended on 21 April and cancelled on 1 June 2006.

- 6 November 2006: Released to parole under fourth parole order.

- 14 March 2007: Mr Hebron was arrested and returned to custody as a result of the fourth parole order being cancelled on 21 January 2007.

- 1 June 2007: Mr Hebron was sentenced to four parole terms (three concurrent and one cumulative) totalling 1 year's imprisonment.

- 14 January 2008: Released to parole under fifth parole order.

- 22 September 2008: The fifth parole order was suspended.

- 8 October 2008: Mr Hebron was sentenced to three parole terms (two cumulative and one concurrent) totalling 1 year 6 months' imprisonment.

- 18 January 2010: Mr Hebron was sentenced to a parole term of 12 months' imprisonment to be served concurrently with all other sentences.

7 On the basis of this information, the Department has calculated that the date on which Mr Hebron is entitled to released from imprisonment is 14 December 2012.

The legislation that applies to each applicant

8 The relevant legislative amendments were effected by the Sentencing Legislation Amendment and Repeal Act 2003 (WA) (SLARA 2003) which (for present purposes) came into operation on 31 August 2003. Consistent with the statutory terminology I will refer to the legislation that applied before and after 31 August 2003 as 'the old provisions' and 'the new provisions' respectively.

9 As at 31 August 2003, each applicant was serving numerous 'parole terms' as defined in s 5(1) of the Sentencing Act 1995 (WA) (SA). Those parole terms became the subject of suspended and/or cancelled parole orders after 31 August 2003. In these circumstances, the transitional provisions in SLARA 2003 Sch 1 determine the extent to which the old provisions and the new provisions have application to those parole terms. In this regard, cl 5 of Sch 1 provides:

1. Sentences of imprisonment imposed before commencement

(1) If immediately before commencement a person is subject to a fixed term that is not a parole term and to which the old provisions apply, then on and after commencement the old provisions continue to apply to that term and to the release of the person in respect of that term.

(2) If immediately before commencement a person is subject to a parole term to which the old provisions apply, then on and after commencement -

(a) the old provisions apply for the purpose of calculating -

(i) when the person is eligible to be released on parole;

(iii) when the person is discharged from the sentence and must be released;

(b) the new provisions apply for the purpose of determining whether the person is to be released on parole;

(c) if the person is to be released on parole, the release is to be by means of a parole order made under Part 3 of the Sentence Administration Act 2003 and for that purpose -

(i) the parole period in the order is to be the parole period calculated under the old provisions; and

(ii) the supervised period for the order is to be the same as the parole period;

(d) if the person is released on parole, the Sentence Administration Act 2003 applies to and in respect of the person and the order except to the extent that paragraph (a) or (c) provides otherwise.

10 It is also relevant to note that by cl 9 of the transitional provisions, a warrant of commitment that issued under the old provisions remains in force despite the repeal of those provisions. Accordingly, and in respect of each of the applicants, SLARA 2003 has the following effect:

(1) The old provisions determine the date when each term of imprisonment imposed prior to 31 August 2003 (has, or) will come to an end - cl 5(2)(a)(iii).

(2) The new provisions determine the date when each term of imprisonment imposed after 31 August 2003 (has, or) will come to an end.

(3) The Sentencing Administration Act 2003 (SAA 2003) applies to the release of each applicant on parole after 31 August 2003, and therefore governs the consequences of the subsequent cancellations of their parole orders - cl 5(2)(d).

11 In determining when each parole term imposed prior to 31 August 2003 has, or will, come to an end, it is important to note that SA s 85(4) in the old provisions was as follows:

(4) In this Part and in the Sentence Administration Act 1995, the end of a fixed term is when the term as imposed by the court ends, and it does not matter if the prisoner is or may be released (under an early release order or otherwise) before then, or if the term is or may be taken to have been served before then.

12 (SA s 85(4) in the new provisions is to similar effect.)

13 It is also important to note that under the old provisions, SA s 95 provided for an early discharge and release from sentence with the consequence that most prisoners enjoyed a one-third 'remission':

1. Release from a fixed term (not a prescribed term)

(1) A prisoner serving a fixed term that is neither a prescribed term nor a parole term is discharged from that sentence when he or she has served two thirds of the term and, subject to Division 2 of Part 2 of the Sentence Administration Act 1995, must be released then.

(2) If a prisoner serving a parole term has not been released on parole before he or she has served two thirds of the term, then the prisoner is discharged from that sentence when he or she has served two thirds of the term and, subject to Division 2 of Part 2 of the Sentence Administration Act 1995, must be released.

14 However, not all prisoners serving parole terms received a one-third remission off sentence. This was because the Sentencing Administration Act 1995 (WA) (SAA 1995) s 71(1)) provided:

(1) If an early release order, other than a WRO, in respect of a prisoner serving a fixed term is cancelled after the prisoner is released under the order, the prisoner is then liable to resume serving the fixed term in custody and is not entitled to be released until he or she has served the whole of that term. (emphasis added)

15 Each of the applicants was released to parole after 31 August 2003 in respect of parole terms that had been imposed prior to that date. Their parole orders (or 'early release orders') were later cancelled. Consequently, SAA 2003 s 69 has had the following effect:

(1) If an early release order in respect of a prisoner serving a fixed term is cancelled after the prisoner is released under the order, the prisoner is then liable to resume serving the fixed term in custody and, subject to subsection (1b), is not entitled to be released until he or she has served the whole of that term.

(1a) Subsection (1b) applies to a prisoner who resumes serving a fixed term in custody under subsection (1) if -

(a) the early release order was an RRO; and

(b) the fixed term is not a parole term and was imposed on or before 30 August 2003.

(1b) Subject to Part 2 Division 2, a prisoner to whom this subsection applies is entitled to be released when he or she has served two-thirds of the fixed term. (emphasis added)

16 Nevertheless, each applicant is entitled to be credited with 'clean street time' for the period between each release on parole and the subsequent suspension or cancellation of the parole order. In this regard SAA 2003 s 71 provides:

(1) Subject to subsection (2), if an early release order in respect of a prisoner serving a fixed term is cancelled after the prisoner is released under the order -

(a) the period beginning on the day when the prisoner was released under the order and ending on the day when the order is cancelled counts as time served in respect of the fixed term; and

(b) the period (if any) beginning on the day when the order is cancelled and ending on the day when the prisoner concerned is returned to custody does not count as time served in respect of the fixed term.

(2) If an early release order in respect of a prisoner serving a fixed term is suspended and, without the suspension ceasing, is subsequently cancelled, then -

(a) the period beginning on the day when the prisoner was released under the order and ending on the day when the order is suspended counts as time served in respect of the fixed term;

(b) the period (if any) beginning on the day when the order is suspended and ending on the day when the prisoner is returned to custody does not count as time served in respect of the fixed term.

The impact of these provisions on each applicant

17 The effect of the above quoted legislative provisions is very clear, and in my opinion there is no uncertainty as to their proper construction. Relevant to the major issue raised by the applicants, it is SAA 1995 s 71(1) that determines the period still to be served in respect of each 'old' parole term that was the subject of a cancelled parole order. In that regard, s 71(1) required that after each applicant was returned to custody he was to 'resume serving the fixed term' and not be released until he 'has served the whole of that term'.

18 In light of SA s 85(4) in the old provisions: 'the whole of that term' can only refer to the unexpired period up until when 'the term as imposed by the court ends'. This period includes the one-third portion of the term that would otherwise have been remitted if the parole order had not been suspended or cancelled.

19 That the legislation has this effect is confirmed by the decision of the Full Court in King v Piper [2004] WASCA 218 which dealt with the same issue but entirely within the context of the old provisions. King had been released to parole in respect of a fixed term of 8 years' imprisonment, and the parole order had then been cancelled. The court was required to determine whether he was entitled to be discharged from the sentence after serving only two-thirds of the term. At [26] it held that there was no such entitlement to release, and that King's detention remained lawful until he had served the whole of the term.

20 The court in King nevertheless noted that it was possible for there to be another release to parole by a parole order made under SAA 1995 s 71(6). Under the new provisions, the same situation prevails, and each applicant can be re-released on parole if the Prisoners Review Board so decides under SAA 2003 s 72.

21 In fairness to the applicants, and notwithstanding that I consider the legal position to be very clear, I make the following additional comments in relation to their numbered submissions and 'arguments':

(S1) It is not a correct to construe the relevant provisions as meaning that 'the day a parolee walks out the prison gates, he/she has been awarded or granted remission'. Because of the old provisions SAA 1995 s 71(1) and SA s 86(4) and s 95(2), the remission of one-third of a parole term only occurred if there was no release to parole, or if there was a release to parole without the parole order being suspended or cancelled. Because of SLARA 2003 First Sch cl 5 and SAA 2003 s 69, the same situation applies under the new provisions.

(S2) For the reasons I have outlined earlier SAA 2003 s 69 is not ambiguous or obscure in its construction. The authority of Smith v Corrective Services Commission (NSW) [1980] HCA 49; (1980) 147 CLR 134 deals with particular legislative provisions in New South Wales and cannot determine the proper construction of the sentencing legislation in this State.

(S3) The answer to the rhetorical question posed in this submission, is that before a prisoner was released to parole, it was not possible to determine the length of imprisonment that was still to be served. The period left to be served was dependant upon whether or not the parole order was subsequently suspended or cancelled.

(A1-A3) The opinion and correspondence of the Acting Manager of the Sentence Information Unit have no bearing on the proper construction of the relevant statutory provisions or on the outcome of the present application.

(A4 & A5) As noted in this submission, SAA 2003 s 69(1a) and (1b) have the effect that a prisoner subject to a fixed term which is not a parole term and which was imposed before 30 August 2003, is to be released after serving only two-thirds of that term. It is understandable that the applicants consider that their situation is unfair and unjust by comparison. However, the statutory scheme is very clear in its effect and in respect of a parole term where there has been a cancellation of a parole order, the prisoner is obliged to serve the whole of the term. All that can be pointed to by way of any mitigatory effect is that such a prisoner is eligible to re-released on parole under SAA 2003 s 72.

(A6-A8) As already noted, Smith v Corrective Services Commission does not provide any precedent in respect of the legislation in Western Australia. The meaning of the relevant legislation in this State is clear notwithstanding that there is no express provision providing for forfeiture of remission in the event of parole cancellation.

22 In light of the construction of the relevant statutory provisions as found, there is no basis to query the calculations made by the Sentencing Information Unit of the Department of Corrective Services. There is also no reason to query the detailed information in respect of each applicant as set out in the affidavit of the Sentencing Information officer. Accordingly, I find and declare that Mr Hiron and Mr Hebron are entitled to be released from imprisonment on 23 September 2012 and 14 December 2012 respectively. In the meantime, they are each eligible to be re-released on parole pursuant to s 72 of the Sentencing Administration Act 2003.