Court of Appeal (WA)|2003-07-31|Before: Roberts-Smith J, Murray J, Wheeler J, Smith J

Kirby v The Queen [2003] WASCA 164 (31 July 2003)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : KIRBY -v- THE QUEEN [2003] WASCA 164

Criminal law and procedure - Appeal against sentence - Parole eligibility - Fixed terms ordered to be served partly cumulatively - Whether non-parole periods to be aggregated - Calculation of terms - Sentences recalled and corrected by sentencing Judge - Effect of orders

Criminal law and procedure - Sentence - Drug offences - 4.85 gm of cocaine of 24 per cent purity; 3.168 kg methylamphetamine of 9 - 10 per cent purity - Sentences of 4 years imprisonment and 9 years imprisonment to be served partly cumulatively - Doubt over effect of sentencing orders - Whether sentences manifestly excessive

Criminal law and procedure - Sentence - Drug offence - Property freezing notices - Effect of declaration that applicant a drug trafficker - Confiscation of all property owned or given away by the applicant - Obligation to put material before court - Relevant factor in exercise of sentencing discretion

Criminal law - Appeal - Sentence - Section 689 Criminal Code - Whether different sentence should have been passed - "Whether more or less severe" - Whether sentence should be increased on appeal by convicted person

Respondent (Plaintiff) : Mr R E Cock QC & Ms H A Burrows

Respondent (Plaintiff) : State Director of Public Prosecutions

Jogia v The Queen [2000] WASCA 331

1 MURRAY J: In this case I am very much obliged to Roberts-Smith J to have had access in draft to the judgment published by his Honour.

2 I wish to express my gratitude for his Honour's careful review of the previously decided cases, including particularly decisions of the Court of Criminal Appeal, and his Honour's careful analysis of the relevant statutory provisions to be found in the Sentencing Act (1995) (WA) and the Sentence Administration Act (1995) (WA) concerning the question of the aggregation of terms of imprisonment generally and in this case. I agree with his Honour's conclusions about those matters and have nothing to add to what he has written.

3 I wish to say something, however, about the process of "correction" of sentence which was purportedly undertaken pursuant to s 37 of the Sentencing Act. That occurred on 26 February 2003. The sentencing Judge amended the orders he had originally made so as to direct that the sentence of 4 years imprisonment imposed for the offence of possession of cocaine with intent would commence to be served after 3 years and 4 months of the sentence of possession of amphetamine with intent as from 7 December 2001, rather than after serving 3 years and 8 months of that sentence. Roberts-Smith J has set out the note of the sentencing judge, expressing his Honour's reasons for the course he took.

4 As Roberts-Smith J has observed, if one of the two terms originally imposed by the sentencing judge was to be ordered to be served partly cumulatively on the other, under s 88(3)(d) of the Act, the court's obligation under s 88(4) was to specify the period of the first term to be served before the partly cumulative term was 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."

5 In this case, that other fixed term was the term of 9 years imprisonment. It was a parole term within the meaning of s 85(1) and s 89(5). Therefore, the service of the partially cumulative term could not commence after the service of the non-parole period applicable to the 9-year term. Having regard to s 93(1)(b), therefore, no longer than 4 years of that 9-year term could, under s 88(4), be ordered to be served before the partly cumulative term was to begin, but in this case, given the order made originally, or on 26 February 2003, s 88(4) was complied with.

6 The provisions of s 37(i) are:

"If a court sentences an offender in a manner that is not in accordance with this Act or the written law under which the offence is committed, the court may recall the order imposing the sentence and impose a sentence that is."

7 It is clear that that provision had no application to this case, but nonetheless, not having heard argument in support of the proposition, we should not take the view that the order made by the Court on 26 February 2003 was without jurisdiction and therefore a nullity.

8 The effect then of what was done was that the partially cumulative term was entirely swallowed up by the 9-year term and so the non-parole period and earliest eligibility date finally achieved by the orders made was a period of 4 years from 7 December 2001 and the aggregate term remained effectively the term of 9 years imprisonment which was the sentence imposed for the possession of amphetamine with intent.

9 The s 37 proceedings were effectively by the sentencing judge of his own motion under s 37(2), because it seems that they were prompted by a letter written to the Court by the Sentence Information Unit, whose views about the accumulation of terms of imprisonment on the same or separate occasions and the calculation of resulting non-parole periods are set out in the advice given to this Court which is appended to the judgment of Roberts-Smith J. I put to one side the impropriety, as it seems to me, of a communication querying the effect of sentencing being sent directly by an officer of the Sentence Information Unit, which I understand to be a section of the Department of Justice, to the Court. In my opinion, if the Court was to be moved in the way sought on this occasion it ought to have been by way of an application by the prosecution or by the prisoner.

10 Of more concern, in my view, is, as it appears from the information provided to the Court by the Sentence Information Unit, which was attached to the submissions of counsel for the respondent, that the officers of that unit seem to have difficulty in accepting the rulings of Judges of this Court and of the Court of Criminal Appeal as to the meaning and effect of the relevant provisions of the Sentencing Act and the Sentence Administration Act. Those provisions have, of course, the meaning and effect given to them by the decisions of the Court. They do not have the meaning and effect which officers of the Sentence Information Unit think, no matter how genuinely, represent "the intention of the Sentencing Act", as their memo puts it.

11 The fundamental error they make is, in my respectful opinion, aptly described by Roberts-Smith J as a process of "mixed aggregation" of fixed terms of imprisonment with non-parole periods. The nature of the error is made clear in the memo which is Appendix "A". The Sentencing Act, however, requires the aggregation, to the extent of their accumulation, of the terms of imprisonment themselves, before finally calculating a single non-parole period.

12 As to the substantive grounds of appeal, again I have nothing to add to the reasons of Roberts-Smith J. Neither individually nor in their totality were the sentences imposed manifestly excessive, even having regard to what was known about the impending process of property confiscation pursuant to the Criminal Property Confiscation Act (2000) (WA), s 8. Therefore, while I would grant leave to appeal to enable the ventilation of the important questions of statutory construction dealt with by Roberts-Smith J, I would dismiss the appeal. I do not think this Court is entitled to interfere with the sentences imposed in any way in those circumstances, no error of principle or miscarriage of sentencing discretion having been established: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321.

13 I note that senior counsel for the respondent submits that the Court should exercise its power under s 689(3) of the Code and "pass such sentence as is thought appropriate, by reference to the intention of the sentencing judge, in substitution for the original sentence." It is abundantly clear that the sentencing judge was trying to impose sentences which would equate with an aggregate term of 10 years imprisonment. The simple way in which that might have been done is mentioned by Roberts-Smith J, but it is equally clear, in my opinion, that his Honour the sentencing judge did not achieve that result, but imposed an aggregate term of the same length as the sentence of 9 years imprisonment imposed for the possession of amphetamine with intent.

14 I have previously expressed the view that only in a most exceptional case should the power conferred on the Court by s 689(3) of the Code be exercised to impose a more severe sentence following a successful appeal by a prisoner. Further, the limited nature of the power should be noted. The subsection provides:

"On an appeal against sentence, the Court of Criminal Appeal shall, if they think that a different sentence should have been passed, quash the sentence passed at the trial, and pass such other sentence warranted in law by the verdict or which may lawfully be passed for the offence of which the appellant or an accused person stands convicted (whether more or less severe)

in substitution therefor as they think ought to have been passed and in any other case shall dismiss the appeal."

15 In my opinion, this Court may not reach the view that a different sentence should have been passed by the sentencing court unless, on the general ground of the miscarriage of the sentencing process or the occurrence of an error in principle, it would be necessary to quash the sentence passed and pass a new sentence in substitution. In this case, as that is not the position in my view, the appeal should be dismissed.

16 WHEELER J: I have had the advantage of reading in draft the reasons for decision of Roberts-Smith J. I agree with them and have nothing to add.

17 ROBERTS-SMITH J: On 4 September 2002 the applicant pleaded guilty before his Honour O'Sullivan DCJ in the District Court at Perth to a number of offences.

18 He had been charged on indictment with two offences, count 1 being that on 7 December 2001 at Oakford he had in his possession a prohibited drug, namely cocaine, with intent to sell or supply it to another and count 2 being that on 8 December 2001 at Oakford, he had in his possession a prohibited drug, namely amphetamine with intent to sell or supply it to another.

19 By way of a notice under s 32 of the Sentencing Act 1995 (WA) ("the Sentencing Act") he pleaded guilty to three counts of possessing an unlicensed firearm and two counts of possessing unlicensed ammunition.

20 The appellant was sentenced to 4 years imprisonment in respect of count 1 and 9 years imprisonment with respect to count 2. The learned sentencing Judge ordered that the term of 4 years imprisonment be served partly concurrently and partly cumulatively with the sentence on count 2.

21 A sentence of 6 months imprisonment was imposed in respect of each of the three offences of possessing unlicensed firearms and a term of 3 months imprisonment was imposed in respect of each offence of possessing unlicensed ammunition.

22 Apart from the order in respect of count 1, all other terms were ordered to be served concurrently with that on count 2.

23 An order was made that the applicant be eligible for parole. His Honour also made an order pursuant to s 32A of the Misuse of Drugs Act 1981 (WA) ("the MDA") that the applicant be declared a drug trafficker.

24 By notice dated 15 October 2002 the applicant seeks leave to appeal against the sentences imposed.

25 There was a repeated error in the notice which consistently referred to count 1 as count 2 and vice versa. This was pointed out by senior counsel for the applicant at the hearing and the notice was amended accordingly. Leave was also granted to add a further ground as ground 4. As amended, the grounds of appeal are:

"1. The sentencing judge erred by imposing a gross term of 15 years imprisonment with respect to Count 2 on the Indictment (possession 3.168 kilogram of methylamphetamine (with a purity of 9-10%), and a gross term of 6 years imprisonment with respect to Count 1 on the Indictment (possession 4.85grams of cocaine (with a purity of 24%) were both manifestly excessive in all the circumstances of the offence and the offender.

PARTICULARS

a) A gross sentence of 15 years starting point on Count 2, and 6 years starting point on Count 1 were both manifestly excessive having regard to the facts of the offence and the antecedents of the applicant.

b) The sentence was inappropriately high and outside the range of sound discretionary judgment in view of the failure to give sufficient weight to:-

i. Proper emphasis to sentencing objectives applicable to drug possession cases;

ii. The sentence imposed was impermissibly disparate from recent sentences imposed in recent like or similar cases by the Western Australia Courts;

iii. The actual purity weight of the methylamphetamine involved (310 grams);

iv. The fact that the drugs relevant to Count 1 had been left on the applicant's property by another.

c) The sentences imposed with respect to Count 1 and 2 on the indictment were disproportionate to the degree of criminality involved and resulted in a crushing sentence.

2. The sentencing judge erred in law, or alternatively in the exercise of his discretion by failing to properly apply the 'principle of totality' in imposing a gross term of 4 years imprisonment with respect to (Count 1) and ordering that sentence to be served partly cumulatively upon the term of 9 years imprisonment imposed upon (Count 2).

PARTICULARS

a) On 4 October 2002, the learned sentencing judge imposed a term of 15 years imprisonment on the applicant with respect to a charge of possession of methylamphetamine (Count 2) and then reduced that term by 5 years for the 'Fast tack (sic)' guilty plea. The net term of 9 years (with parole) was set to commence on 7 December 2001.

b) Further on 4 October 2002, the learned sentencing judge imposed a term of 6 years imprisonment on the applicant with respect to a charge of possession of 4.85 grams of cocaine (Count 1) and then reduced that term by 2 years for the 'Fast tack (sic)" guilty plea to a term of 4 years imprisonment. That 4 years term of imprisonment was ordered to be served partly concurrent and partly cumulative to Count 2, with an order that the sentence on Count 1 was not to commence until the applicant had served a period of 3 years 8 months penal servitude on Count 2.

3. The sentencing judge erred in law, or alternatively in the exercise of his discretion by sentencing the applicant for possession of methylamphetamine (Count 2) with an estimated valued (sic) of $1,500,000.00.

PARTICULARS

On 4 October 2002, the learned sentencing judge stated that the valued (sic) of the drugs (Count 2) at an estimated $1,500,000.00. However there are numerous Australian judicial authorities to the contrary taking into consideration the purity of the drugs involved pursuant to Count 2.

4. The learned sentencing judge erred in failing to take into account the confiscation of the Applicant's property by operation of s 8 of the Criminal Property Confiscation Act 2002 consequent upon his Honour declaring the Applicant to be a 'drug trafficker' pursuant to s 32A(1) of the Misuse of Drugs Act 1981."

26 The facts were that at about 5.30 pm on 7 December 2001, police stopped the applicant who was then riding his motor cycle in a north-easterly direction on Wharton Road, Oakford. They conducted a search of his motor cycle and of the applicant's person, pursuant to their powers under the MDA. The applicant was said to be initially cooperative but became hostile and aggressive when the police officers attempted to search his underpants.

27 Whilst they were attempting to do that, they heard a crackling or a rustling sound coming from the area of his buttocks. The applicant would not cooperate in the search at that point, backing away from police officers who desisted pending the arrival of other police. Before they arrived the applicant ran away and fled along Wharton and Ranford Roads.

28 The police officers gave chase. Whilst they were pursuing the applicant they saw him with his hand down the back of his pants, apparently removing something. He ran into a heavily vegetated median strip and was out of sight of the police for a period. Shortly after, he re-emerged from the dense vegetation. He stopped running and was caught on the outskirts of a golf course. Later, a narcotic detection dog directed police to a small clip-seal bag in the heavily vegetated strip into which the applicant had run. The bag was found to contain a white powder which, subsequently analysed, was found to be 4.8 grams of cocaine of 25 per cent purity.

29 A small quantity of blood was found on the outside of the clip seal bag and on subsequent analysis the DNA profile of it matched that of the applicant.

30 At the time of his search at the roadside the applicant was also found to have on his person $928 in cash.

31 As a result of the arrest a search warrant was obtained and was executed at the applicant's property at 10 Old Derry Road, Oakford in the late afternoon and evening of 7 December, but was continued over a number of days. That property is a 5 acre property with a number of structures on it and is in a semi-rural area.

32 During part of the search which was conducted on 8 December, police located a Tupperware-type lunch box buried near a water tank adjacent to the applicant's house. Inside the lunch box were seven vacuum-sealed bags containing a yellow-brown substance. On analysis that was found to be 3.168 kilograms of amphetamine, ranging between 9.1 per cent and 10.6 per cent purity. It was put to his Honour that this had a street value of at least $1.5 million.

33 Further investigation revealed there was a fingerprint of the appellant on the inside of the lid of the lunch box. In addition, on further search of the house, shed and other areas of the property, police found a vacuum-sealing machine which had traces of amphetamine on it. This was found in the garage area. At the same location were found vacuum-sealed bags similar to the ones in which the amphetamine in the lunch box had been packed. There were also three similar bags in a bin in the kitchen, one of which had residue of amphetamine on it.

34 The seven bags found in the lunch box were wrapped in three other bags, so that there were three layers.

35 Amphetamine residue was found on the kitchen bench and sink area and on a set of scales also located in the house. In addition, a large number of clip-seal bags having a blue line on them, similar to the clip-seal bag that contained the cocaine, were found in the house. Further, there were other Tupperware containers similar to the one found buried near the water tank, which appeared to be part of the same set.

36 As the search proceeded over the days, police located money buried in approximately five different locations on the property. The total amount of money so located was $363,700. That money has since been confiscated under the Criminal Property Confiscation Act 2000 (WA) ("the Confiscation Act").

37 In one of the locations where money was found, police also found buried under it a quantity of ammunition in two heat-sealed bags. In one bag there was a box of 9mm cartridges and in the other were 50 9mm cartridges. They are the subject of the two charges on the s 32 notice of possessing ammunition.

38 A 9mm Luger handgun with a 9mm magazine and another magazine were also located. The handgun had no serial number on it. That is the subject of one of the possession of firearm charges. Another of the possession of firearm charges relates to a 6mm Browning handgun that was found with a magazine containing four rounds of ammunition. The third firearm charge was in relation to a 22mm Ruger semi-automatic handgun found in a "side-kick" holster in the same location.

39 The applicant declined to make any comment about any of these matters.

40 The applicant had been in custody in respect of these offences since the date of his arrest, namely 7 December 2001.

41 Before the learned sentencing Judge the Crown Prosecutor sought a number of orders including a declaration that the offender be declared to be a drug trafficker, pursuant to s 32A of the MDA, in respect of count 2.

42 Counsel who then appeared for the applicant acknowledged that once an application for such a declaration is made, there is "a certain inevitability" about it but asked the learned sentencing Judge to adjourn that application until such time as other counsel had an opportunity to be heard in relation to an objection lodged by a third party in respect of one of the freezing notices which had been issued. He informed his Honour that in addition to the money which had been forfeited, there were a number of other properties which had been made the subject-matter of freezing notices and in respect of at least one of those, a third party had lodged a notice of objection. His Honour said it was not his intention to sentence the applicant that day and so would delay making the declaration sought.

43 It was against that brief background that counsel then began his plea in mitigation. He told his Honour that the facts as outlined by the prosecution were "by and large" admitted. But he wished first to deal with the apparent delay in the matter coming before his Honour following the applicant's arrest on 7 December 2001.

44 The point made by counsel was that the delay was not in any way attributable to the applicant. What had happened was that following the applicant's arrest and charging, freezing notices were issued in relation to various properties. One of them was in respect of a co-accused, Ms Holmes, with whom the applicant was living at the Oakford premises in December 2001.

45 The applicant's first concern was to preserve his position and that of others, particularly Ms Holmes, in respect of the freezing notices. In addition to that, she elected to have a preliminary hearing which was then set for hearing on 24 June. Under the provisions of the Justices Act 1902 (WA), then in force, where one defendant elected a preliminary hearing, that election effectively bound the other.

46 However, by March or early April 2002, on the applicant's instructions representations were made to the DPP on behalf of Ms Holmes and by May that year, the prosecution conceded the case against her should not proceed. That situation having been arrived at, the applicant entered his pleas of guilty to the two indictable counts on 10 May 2002 in the Perth Court of Petty Sessions. The delay since then was due to counsel's own commitments and no fault of the applicant. Counsel submitted that in all of the circumstances, the applicant should be given the benefit of an early plea.

47 Counsel's next submission was that the applicant's plea of guilty to count 2 had additional mitigatory significance because it had been made notwithstanding the freezing notices and the consequences which would inevitably flow from conviction and the making of a declaration under s 32A of the MDA.

48 Counsel submitted that the "dire and draconian consequences" which flow from such a declaration may well have the unintended result of encouraging prolix, lengthy and highly contested trials. It was said that would not necessarily be out of a desire to avoid conviction and punishment, but rather because of concern that the offender would lose all their property, including that completely unconnected to any offence. In the applicant's case, a property which had been gifted to him by his father in the early 90s was the subject of a freezing notice and would be automatically forfeit as a result of conviction once the declaration which would inevitably follow was made.

49 Counsel submitted that notwithstanding the applicant's awareness of the consequences, he had taken all of that into account and nonetheless entered his pleas of guilty in May.

50 Subject to one further mention to which I will come in a moment, that was the extent of counsel's submissions in mitigation insofar as they concerned the effect of the freezing notices and the s 32A declaration.

51 So far as the offences themselves were concerned, counsel said the reason the applicant had decamped from the scene was because of discomfort, annoyance and frustration and effectively being asked to undress at the side of the road and be searched, although he accepted that nothing turned on that.

52 With regard to count 2, counsel said the applicant was not the owner and nor was personally connected with the amphetamine. Some other person (who remained nameless), had come to Perth from elsewhere with the intention of disposing of the amphetamine. That person then realised that it was only 9 or 10 per cent pure and so determined to return it to the source from which it had been obtained. This was said to be what the applicant was told. The other person had asked the applicant for the use of his premises and items to store the drug. Whether or not the other items were used in connection with the amphetamine was not something of which the applicant had any personal knowledge. However, he did accept that where there was a quantity such as this "even if it is only 300 grams at the end of the day down from 3.1 kilos because of the percentage" (AB 26), whatever his involvement or role was in relation to such a quantity hardly mattered.

53 According to his counsel the applicant and Ms Holmes had been living at the Oakford address for some three or four months. Prior to that he had been working daily at a bike shop at Maddington for about 12 months and for the previous four years or so had owned and operated his own tow truck.

54 The Oakford address had previously been rented out and when he and Ms Holmes returned, the property was already furnished and all of the household items and other items referred to by the prosecution were already in the house. Consequently, it was to be expected that the applicant's fingerprints would be on them.

55 The applicant had been a part owner of the bike shop at which he subsequently became an employee. He had sold his interest to his partner. Counsel said that was also now a complication because there were two freezing notices in relation to two units at Maddington with which the partner was also concerned. One unit was in the applicant's name and he would lose that. The unit is worth approximately $90,000 and subject to an $85,000 mortgage.

56 Counsel gave details of the applicant's family circumstances and made some submissions in relation to his previous convictions.

57 Counsel for the Crown before his Honour took the position that the only appropriate disposition was a very lengthy term of immediate imprisonment. The issue of general deterrence would have to figure prominently. The amphetamine offence was one which should be regarded as being at the "top end" of seriousness of offences of the kind as part of a large scale business concern. She pointed out that the presumptive quantity (at which the legislature deems there to be an intent to sell or supply) is 28 grams and that the amount involved here was some 113 times that.

58 She said that the applicant had a prior conviction for what she described as attempted possession of amphetamine with intent to sell or supply, in May 1992. That involved 400 grams of amphetamine coming from Melbourne to Perth. The drug was intercepted and glucose was substituted for it. That is why the offence charged was an attempt rather than the completed offence. The point made by counsel was that the present offences showed the applicant's ongoing involvement over a long time in the sale or supply of amphetamines.

59 His Honour sentenced the applicant on 4 October 2002.

60 Having recounted the facts, his Honour noted the applicant's conviction for possession of amphetamine with intent to sell or supply on 14 July 1994 for which he received a sentence of 2 years and 6 months imprisonment (I take this to be the conviction to which the Crown Prosecutor had earlier referred as being for an offence in May 1992 - although she described it as an attempt to possess amphetamine. No such attempt is shown on the applicant's record of convictions; his Honour's reference was correct.)

61 The learned sentencing Judge noted the applicant's plea of guilty and accepted the delay in bringing the plea before the court was not necessarily the fault of the applicant. He proceeded expressly upon the basis that the applicant had indicated "quite early in the piece" a desire to make an admission of guilt in relation to these matters. He observed that the pleas had resulted in a significant saving of time, trouble and expense, not only in relation to the criminal charges themselves but in relation to consequential proceedings concerning forfeiture of property.

"With respect to the offending itself, it is said that you were not the driving force behind the dealing in the amphetamine. That of course hardly matters in a case such as this, given the quantity involved, but I do note that submission. I also note that it's said on your behalf that the finding of fingerprints and the like is perhaps not surprising, given your contact with the property in the months prior to the execution of the search warrant. I have also noted that it is said that for some time before the search warrant you were away from the property on a daily basis working at the bike shop.

Those matters go in your favour when I come to determine sentence. It has to be said that there doesn't seem to be very much else that should be mentioned as a matter to be taken in your favour in the sentencing exercise but it is clear, having regard to these factors and to all the information before the court, that you are entitled to have your sentences discounted and that will be done.

These are serious matters. Cocaine and amphetamine are to be regarded as in the highest category of drugs for sentencing purposes. The quantity of amphetamine here was large. The purity of the cocaine was quite significant. The items found at the property, the scales, the bags, the money and the like, are indicative of an operating business of distributing prohibited drugs.

I have taken into account a number of authorities which have been mentioned to me. They are of some assistance and they point the way in cases of this kind but I do not think it's necessary to discuss them now in any detail. The facts of each case of course vary. Distinctions can always be drawn and similarities can always be found.

With respect to the amphetamine charge, the starting point should I think be 15 years' imprisonment. That's a period of time which in my view adequately and properly reflects the scale and the seriousness of the offending. That term should be discounted to take account of the matters going in your favour, both those I have specifically mentioned and those I have not.

After taking those matters into account, it is my view that imprisonment for a period of 9 years would be appropriate. That term should be deemed to have commenced upon the day that you were taking (sic) into custody which was 7 December 2001.

With respect to the cocaine matter, the staring point should I think be 6 years and after applying an appropriate discount, the term should be reduced to four. Further in my view in all the circumstances of this case, it would be appropriate to order that that term be served partly cumulatively upon the fixed term of 9 years imposed in respect of the amphetamine charge and partly concurrently.

Section 88 of the Sentencing Act requires that the court should specify the period of the fixed term that must be served before the partly cumulative term commences. In my opinion, that period should be 3 years and 8 months, and so the result I think should be that you should serve a total of 10 years' imprisonment in respect of these two indictable offences with eligibility for parole in respect of each of the terms which go to make up the 10 years.

With respect to the section 32 matters, in respect of the firearms offences - the three offences of possession of unlicensed firearms - you should serve 6 months' imprisonment in relation to each and you should serve 3 months' imprisonment in relation to each of he two ammunition offences. Those terms should be served concurrently, one with the other, and with the other terms hereby imposed. All sentences then, save the partly cumulative and partly concurrent sentence, should be backdated to 7 December 2001. As I have said, you should be declared eligible for parole and there should be a declaration that you are a drug trafficker under the Misuse of Drugs Act."

63 There was some confusion and uncertainty at the hearing of the application for leave about what sentence was actually imposed by his Honour. Senior counsel for the applicant informed the Court that according to his calculations, the aggregate term actually imposed did not come to 10 years and that he understood the learned sentencing Judge had recalled the record subsequently and amended the sentences - but senior counsel had been unable to ascertain what the result was. An examination of the file by the Court revealed there was on it a "Notice of Correction of Sentence" ("Notice of Correction") pursuant to s 37 of the Sentencing Act.

64 Section 37(1) provides that if a court sentences an offender in a manner not in accordance with the Sentencing Act or the law under which the offence is committed, the court may recall the order imposing the sentence and impose one which is. The power to recall and correct a sentence may be exercised by a court on its own initiative or on application by the offender or the prosecutor, but in any event all parties must be given the opportunity to be heard (s 37(2)).

65 No issue is here taken about the procedure followed nor the validity of it as to which, for that reason, I say nothing. The issue which does arise is the determination of the effect of what his Honour actually did.

66 On the hearing of the application for leave to appeal, counsel were given leave to file written submissions in relation to that issue. Submissions were received from the respondent on 24 June 2003, but none were received from senior counsel for the applicant until 22 July 2003.

67 It appears that his Honour caused a summons to issue on 21 February 2003, calling upon the parties to appear on 26 February.

68 The transcript of the proceedings on that date confirms that his Honour intended the overall effect of the two sentences should be a total period of 10 years imprisonment with eligibility for parole. However, his Honour said that the Sentencing Information Unit of the Department of Justice had informed him that to achieve that result, the second term should have been ordered to "cut in" at 3 years and 4 months of the first term, not the 3 years 8 months ordered by him.

69 Accordingly, his Honour recalled the sentences and varied them by directing the applicant serve 3 years and 4 months of the sentence on count 2 before the sentence on count 1 should commence to run. A note attached to the Notice of Correction explains his Honour's process of reasoning:

"1. I gave K 13 years made up of 2 terms, partly cumulative, of 9 and 4 years.

2. The idea was to give him an effective sentence of 10 years.

3. 10 years with parole gives rise to a non-parole term of 4 years 9 months.

4. 9 years with parole gives rise to a non-parole term of 4 years.

5. 4 years with parole gives a non-parole period of 16 months.

6. I should have directed that K serve 3 years and 4 months before the second term cut in. That would have resulted in total non-parole terms of 4 years and 8 months which equals a head sentence of 10 years."

70 The Director pointed out the intention of the learned sentencing Judge was that the applicant serve a non-parole equivalent to the non-parole period of a sentence of 10 years imprisonment, namely 4 years 8 months. He had attempted to achieve this by aggregating the two separate non-parole periods of the sentences of 9 years and 4 years imprisonment respectively. However he initially calculated incorrectly with the result that on the sentence ordered on 4 October 2002 the applicant would have had to serve a non-parole period of 5 years, which equates to a fixed term of 10 years 6 months. It is apparent from his Honour's note attached to the Notice of Correction that he considered that following the corrected sentence the applicant would be required to serve a 4 year non-parole period on the 9 year term and 16 months non-parole period on the 4 year term, adjusted by the partial cumulation order to an aggregate non-parole period of 4 years 8 months, which (approximately) equates to a fixed term of 10 years imprisonment.

71 However the Director submitted there is authority for a different construction of the legislation whereby the non-parole period is to be calculated on the aggregate of the fixed terms. He submitted the aggregate is 7 years 4 months, which would give the applicant a non-parole period of approximately 2 years 11 months - clearly not what his Honour intended.

72 That submission, however, is the product of a calculation which ignores the effect of the 9 year term. The 4 year sentence in respect of count 1 would commence after 3 years 4 months of the 9 year sentence on count 2 had run. That would mean there would still be 5 years and 8 months of the fixed term on count 2 to serve. The whole of the 4 year term on count 1 would therefore still be subsumed in the term imposed in respect of count 2. Thus, the non-parole period would not be approximately 2 years 11 months at all - it would be that applicable to an aggregate fixed term of 9 years, viz, 4 years.

73 The legislative provisions are not free from difficulty.

74 Section 88(3) of the Sentencing Act allows a court to order that sentences of imprisonment run concurrently, cumulatively or partly cumulatively. Subsection (2) provides that an offender sentenced at the one time to one or more fixed terms is to serve those terms concurrently, unless an order is made under subs (3). The subsection applies where at the time an offender is sentenced to a fixed term he or she is serving or has yet to serve another fixed term imposed previously, or is then also sentenced to serve another fixed term.

"(4) If under subsection (3)(d) a court orders that a term is to be served partly cumulatively on 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."

76 The legislative intent behind subs (4) seems clearly enough to be to avoid a situation in which a partially cumulative term does not begin to run until after the offender has become eligible for release on parole in respect of an earlier fixed term.

77 The power to order eligibility for parole is contained in s 89 of the Sentencing Act, which so far as is relevant here, provides:

"89 (1) A court sentencing an offender to one or more fixed terms may, if it considers that it is appropriate to do so, order that the offender be eligible for parole.

(2) ...

(3) ...

(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."

78 A prisoner serving a parole term (ie a fixed term in respect of which a parole eligibility order has been made) is eligible to be released on parole when they have served one-third of the term (if it is 6 years or less) or 2 years less than two-thirds of the term (if it is more than 6 years): s 93 of the Sentencing Act.

79 Section 94 of the Sentencing Act also bears on the question. It provides as follows:

"94. (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."

80 Certain pertinent definitions in s 85, which apply to Part 13 of the Sentencing Act, must be noted. "Term" is defined as meaning a term of imprisonment imposed on an offender by a court as a sentence, whether a fixed term or a life term. "Fixed term" means a term that is not a life term.

81 Section 85(2) and (3) provide that:

"(2) For the purposes of this Part and Parts 11 and of the Sentence Administration Act 1995, 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 cumulatively or partly cumulatively.

(3) For the purposes of this Part and of the Sentence Administration Act 1995 these calculations must be made as follows:

(a) to calculate the length in days of one third of a fixed term -

(i) determine the dates on which the term as imposed by the court will begin and end and then express the term as a number of days ('T'');

(ii) then divide T by 3, disregard any remainder and add to the result the number of days of remission that the offender has been ordered to forfeit under the Prisons Act 1981 (if any);

(b) to calculate the length in days of two thirds of a fixed term -

(i) determine the date on which the term as imposed by the court will begin and end and then express the term as a number of days ('T');

(ii) then divide T by 3 and disregard any remainder;

(iii) then subtract that result from T and add to the result the number of days of remission that the offender has been ordered to forfeit under the Prisons Act 1981 (if any)."

82 It remains finally to have regard to the provisions of the Sentence Administration Act 1995 (WA).

83 By s 7(1) of that Act a term begins on the day it is imposed, or if the prisoner is not then in custody, on the day he or she is arrested under a warrant issued in respect of the sentence. By s 7(2), where a term is cumulative on one or more other terms, it begins on the earliest date on which the prisoner could be released (whether under a parole order or otherwise) in relation to the earlier terms or the last of the earlier terms.

84 The order of service of fixed terms is set out by s 8 of the Sentence Administration Act:

"8. (1) A prisoner sentenced to serve 2 or more fixed terms is to serve those terms in this order -

(a) firstly, those that are not parole terms are to be served according to whether they are concurrent or cumulative with one another;

(b) secondly, the non-parole periods of those that are parole terms are to be served according to whether those parole terms are concurrent or cumulative with one another;

(c) thirdly, unless and until released on parole, the balance of any parole terms after the end of any non-parole periods are to be served according to whether they are concurrent or cumulative with one another.

(2) If while serving a fixed term a prisoner is sentenced to serve another fixed term, other than a fixed term ordered to be served partly cumulatively on another term, service of the former is suspended if necessary so that the terms can then be served in the order required by subsection (1)."

85 R v Duff & Ors [1999] WASC 124 was a case in which the Crown applied for correction of a sentence under s 37 of the Sentencing Act. The offender had been sentenced to a total of 9 years imprisonment in respect of five offences. On a further offence he had been sentenced to 3 years imprisonment with a direction that 1 year of that sentence be served cumulatively upon the others, with the remaining 2 years to be served concurrently.

86 In recasting his sentencing orders, Malcolm CJ said (at [4] - [11), after referring to s 88(4) of the Sentencing Act:

"4 The 'other fixed term' in this context is the total of any previous fixed terms of imprisonment imposed which are the subject of the order. The requirement in s 88(4) seems to create an unnecessary complication. It is contended by the Ministry of Justice's Sentencing Unit that the words 'partly cumulative on the other fixed term' in s 88(3) do not permit the term to be divided into separate terms for concurrent or cumulative purposes, rather that the whole of the term imposed commences after partial service of the previous term being served.

5 According to this contention, it is then necessary to calculate the earliest release date in respect of the other fixed term or terms imposed, and to ensure that the period of the other fixed term or terms to be served must expire no later than the earliest date upon which the offender could be released, whether on parole or not, in relation to the other fixed term. It seems to me that there must be a more simple way.

6 In the event that the additional fixed term is to be partly cumulative in respect of 1 year, this would mean that in the present case the total sentence imposed was increased from 9 years to 10 years. The total sentence was backdated to the date of arrest on 16 July 1998. The total term being 10 years, the earliest eligibility release date should be calculated on the basis of two-thirds of that sentence less 2 years, namely 4 years and 8 months after the commencement of the service of the sentences.

7 This would produce an eligibility date for parole of 16 March 2003. Mr Duff would then serve 2 years' parole to expire on 16 March 2005. The earliest eligibility release date in respect of the total sentences of 9 years in respect of the other offences was two-thirds of that total less 2 years, namely 4 years after commencement or 15 July 2002. It is suggested that if the Court then specified that the 3-year term for the burglary was to commence on 17 March 2002, this would result in an earliest eligibility release date of 16 March 2003. According to the Ministry this would mean that the parole expiry date would be 15 July 2004 as the terms 'commenced to run concurrently from 16 March 2003.'

8 With respect, this seems to be inconsistent with s 88(4). What the Court must specify is the period of the other fixed term to be served 'before the partly cumulative term is to begin.' The approach adopted by the Ministry seems to put it the other way round. In other words, it is the concurrent portion of the sentence which is to be served first, not the cumulative portion as suggested by the Ministry. The Ministry's calculations had the result that a sentence of 1 year cumulative results in a more severe sentence than a sentence of 3 years' partly cumulative to the extent of 1 year. I find this difficult to accept. Section 85(2) of the Act provides:

'The aggregate of two or more fixed terms is the total effective period of imprisonment having regard to whether the fixed terms are to be served concurrently or cumulatively or partly concurrently.'

9 In the present case the total effective term is 10 years. To achieve the desired result it should be directed that the period of the other fixed term of 9 years to be served before the partly cumulative term is to begin should be such period as expires on 14 July 2002. The partly cumulative term would commence on 15 July 2002 and result in an overall eligibility release date of 16 March 2003. The parole expiry date would be 16 March 2005.

10 In my opinion the approach adopted in the legislation is unnecessarily complicated and requires review. When a cumulative sentence, whether in whole or in part, is imposed, the calculation of the eligibility date for parole should be calculated by adding so much of the cumulative sentence to the term or terms then being served, and recalculating the eligibility release date by adding so much of the new term as is cumulative upon the term or terms the offender is then serving.

11 For present purposes, however, I direct that the partly cumulative term will commence on 15 July 2002 on the basis that the period of the other fixed term of 9 years to be served before the partly cumulative term is to begin should be such period as expires on 14 July 2002." (Emphasis added).

87 In Truica v The Queen [2001] WASCA 221 the offender had been convicted of one count of sexual penetration without consent, two counts of indecent assault and one count of deprivation of liberty. The trial Judge considered the sexual penetration alone warranted a term of 14 years imprisonment, but imposed an overall sentence of 14 years, structured by terms of 10 years for the sexual penetration, 4 years on each of the indecent assaults and 3 years on the deprivation of liberty, with an order that one of the 4 year terms be cumulative on the 10 year term. At the date of sentence the offender was already serving a fixed term of 6 years imprisonment for drug offences. Because of the totality principle the learned trial Judge ordered that 8 of the 14 years imprisonment be served cumulatively on the earlier fixed term, so that the 8 years was to commence from his earliest date of release. The offender appealed on the ground the sentence was manifestly excessive; the Crown cross-appealed in respect of that part of the sentence ordered to be served partly concurrently. The offender's appeal was dismissed; the Crown's cross-appeal was upheld. The Court ordered that the 14 year term commence after 2 years of the 6 year drug sentence had been served. There was no mention of the effect of parole eligibility.

88 A similar formula was applied in Vilai v The Queen [1999] WASCA 275 where an appeal was allowed so as to achieve an aggregate term of 10 years imprisonment out of sentences of 8 years imprisonment for an offence of unlawful wounding with intent to do grievous bodily harm, 4 years for an offence of unlawful detention and 6 years for an offence of aggravated sexual assault. The sentencing Judge had ordered the 8 and 6 year terms to be cumulative, making an aggregate of 14 years imprisonment. In restructuring the sentences to achieve the aggregate of 10 years imprisonment, Murray J (with whom Kennedy J agreed) simply ordered that the sentence of 8 years be served partly cumulatively, after service of 2 years of the 6 year sentence.

89 In Hintz v The Queen [2002] WASCA 38 an aggregate term of 6 years imprisonment had been imposed in respect of a number of offences. The offender was then sentenced to 4 years imprisonment, which the learned sentencing Judge sought to be served so as to produce an aggregate term of 8 years imprisonment. What his Honour said was:

"In my view half or 2 years of the sentence should be served concurrently with the term that you are presently serving and half or 2 years should be served cumulatively. I arrive at those figures because I am of the view that if all of those matters had been dealt with at the same time then the increase in sentence would be probably 2 years.

Your earliest eligibility date for release is 19 April 2002. I direct that the partly cumulative term will commence from that date or, in the event of some other date being your earliest date for release, then from that date. I direct that you are eligible for parole." (Emphasis in original).

90 As to this, Anderson J (with whom Wallwork and Steytler JJ agreed) said (at [12]):

"The first part of these remarks reveal what I would regard, with respect, as a misconception as to the effect of the relevant provisions of the Sentencing Act. If, in passing the second sentence, the Judge had intended to produce an aggregate sentence of 8 years for the totality of the offending, then he would have had to order the 4-year sentence, that is, the second sentence, to commence after 4 years of the 6-year term had been served. Only by this means could a further 2 years be added to the 6 years. However, there is no authority to make such an order, as I have tried to explain, because no partly cumulative term can be ordered to commence after the expiration of the non-parole period of the first sentence. But this can be put to one side for the present because it is the last part of the quoted passage which is the operative order and it is clear enough. It is a clear order for part-cumulation in accordance with s 88(3)(d) and s 88(4) of the Sentencing Act. Obviously, the phrase "the partly cumulative term" in the order refers to the 4-year sentence. It is that term (4 years) which was to be served partly cumulatively on the 6 years, and so it is that term which is to commence after 2 years of the 6 years had been served. The order cannot mean anything else. This does not result in an aggregate of 8 years. The whole of the 4 years will run concurrently with the last 4 years of the 6 years; that is, an aggregate, still, of 6 years." (My emphasis).

91 With respect, I agree entirely with what his Honour says in that passage.

92 Anderson J went on to make the following somewhat prescient comment (at [15] ibid):

"There remains the question whether an order for part-cumulation may have the effect of extending the overall non-parole period even when it does not extend the head sentence. This depends on a construction of, inter alia, s 94(3) of the Sentencing Act. It is, to my mind, a difficult question on which we heard no argument and it must be left for another day, perhaps in an application to the sentencing Judge under s 37 of the Sentencing Act 1995. Amongst other things, it may raise the question whether it is proper for courts in Western Australia, which have no authority to set minimum terms, to mould head sentences either at first instance or on appeal with an eye to the length of the non-parole periods laid down in s 93(1). This, too, may be a difficult question on which we heard no argument."

93 Another case in which the issue proved vexing was Brazier v The Queen [2002] WASCA 278. That was an appeal on the ground a sentence of 4 years imprisonment cumulative on a sentence of 4-1/2 years for a previous drug offence was manifestly excessive when compared with the sentence imposed on a co-offender. The sentencing exercise was complicated by the circumstances that the applicant was not sentenced until some months after his plea of guilty which necessitated a reduction or allowance for prior time in custody, and the application of s 88(4) of the Sentencing Act.

94 There the applicant had pleaded guilty before me on 10 October 2001 to a drug offence. That was shortly before he was due to be tried with three co-accused. His sentencing was deferred pending the outcome of their trial. The trial was lengthy. Two of the co-accused were convicted. All three offenders were sentenced on 1 February 2002. The outcome so far as the applicant was concerned was explained by Malcolm CJ (at [35] - [37], ibid):

"35 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. ... [His Honour set out the terms of s 87 of the Sentencing Act, and continued]

36 The result of the course adopted by the learned sentencing Judge is 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 is that the applicant will serve a longer period than was intended.

37 It is apparent that what his Honour intended to do was to pass a sentence which would be the equivalent of the 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."

95 His Honour the Chief Justice (with whom Wallwork J and Fitzgerald AJ agreed) went on to say (at [40]):

"40 The learned Judge clearly intended that the sentences should have been served partly cumulatively so that the parole terms would likewise be partly cumulative. The result was that, because sentencing was delayed until after the trial, a circumstance beyond the result (sic: 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 a matter of practicality, it was possible to achieve the same result in more than one way. It could have been achieved by imposing a sentence of 3 years instead of a sentence for 4 years or imposing a sentence of 6 years of which he ordered 4 years to be served cumulatively. In my opinion, the simplest way to achieve the desired result would be to reduce the sentence which would otherwise have been imposed by 1 year."

96 His Honour varied the sentence imposed by directing that 3 years of the sentence of 4 years be served cumulatively upon the sentences the applicant was serving as at 10 October 2001.

98 The applicant subsequently brought a further application for "re-pronouncement" of the order made on appeal, pursuant to s 37 of the Sentencing Act. The application was heard by Malcolm CJ and Wallwork J, as it was not practicable to arrange for the former Fitzgerald AJ to be present. The problem as it then stood was explained by Malcolm CJ (Brazier v The Queen [2002] WASCA 314) at [11] - [12]:

"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)."

99 In that case the Court directed counsel to confer with a view to agreeing upon an appropriate form of order. By an agreed minute, orders were subsequently made by consent. They included that the applicant be 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 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.

100 In Pinkstone v The Queen [2003] WASCA 66 the applicant had been sentenced on 1 February 2002 to 10 years imprisonment on one count of supplying methylamphetamine and to 6 years imprisonment (backdated to 13 October 1999) on one count of attempting to supply cocaine. It was ordered that the period of the 6 year term to be served before the 10 year term was to commence was that from 13 October 1999 to 1 February 2002, a period of 2 years 3-1/2 months from 13 October 1999. Parole eligibility was refused.

101 Murray J (with whom Wheeler J and Rolfe AJ agreed) allowed the appeal against sentence to the extent necessary to accommodate an order of eligibility for parole. He let stand the order imposing a sentence of 6 years imprisonment to commence on 13 October 1999. Pursuant to s 88(3)(d) and (4) of the Sentencing Act he directed that the sentence of 10 years imprisonment should commence on 13 October 2001. His Honour then added (at [109] -[111]):

"109 Before finally leaving this case, I think I should express my understanding of the practical effect of the imposition of sentences in that form. I do so because at the hearing there was some debate about that, having regard to the provisions of the Sentencing Act and, in particular, s 94(2). My views are as follows.

110 These are both "parole terms" within the meaning of s 85(1). By s 94(1), for the purpose of calculating eligibility to be released on parole and the parole period, they are to be aggregated completely, subject to s 94(2) and s 94(3). In a case of partial cumulacy the effect of those subsections is to achieve only partial aggregation, to the extent to which the two terms are partly accumulated. In a case of terms to be served concurrently there will be no aggregation at all because they will run concurrently. It is not the case that there is no aggregation at all in a case of partial cumulacy.

111 The effect then of what I would do is to create a partially cumulative aggregate term of 12 years. It is to that term that s 93 is to be applied and eligibility for parole will result after the service of a period of 6 years imprisonment from 13 October 1999."

102 In Downey v The Queen [2003] WASC 129 the applicant sought a declaration specifying the date upon which he would be eligible for parole. Although Murray J was prepared to take the view the applicant could ask as of right for such a declaration he was not prepared to make a declaration in the terms sought and so did not feel it necessary to authoritatively decide the jurisdictional question.

103 The facts were that on 31 October 2000 the applicant had been sentenced to 6 years imprisonment with eligibility for parole. The sentence was backdated to 8 March 2000.

104 On 5 June 2001 the applicant was sentenced to 12 months imprisonment on each of five counts of stealing a motor vehicle and 18 months imprisonment on one count of stealing a motor vehicle aggravated by reckless driving. He was also sentenced to 12 months imprisonment for stealing from the person and 12 months imprisonment for robbery. On a separate indictment he was sentenced to 2 years imprisonment for stealing a motor vehicle and 2-1/2 years imprisonment each on two counts of aggravated burglary. The last 2-1/2 year sentences were ordered to be served concurrently with each other but cumulatively on the other sentences imposed that day, giving a total of 4 years imprisonment. All those terms were ordered to be served cumulatively upon the sentence imposed on 31 October 2000. The aggregate term of imprisonment with parole eligibility was therefore 10 years imprisonment.

105 The contention of the applicant was set out by Murray J at [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."

106 In his Honour's opinion, that approach was erroneous. At [11] he said:

"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."

This approach, his Honour pointed out, was consistent with what was written by Templeman J, in Anglesey v The Queen [2002] WASCA 194 at [3] and with what he had written in Pinkstone, supra.

107 It is not only the courts which have had difficulty with this legislation.

108 The Director made enquiries of the Sentence Information Unit of the Department of Justice and attached to his outline of submissions a note expressing the understanding and approach taken by that Unit to the calculation of parole terms. It is set out as Annexure A to these reasons.

109 It can be seen that two different approaches have been taken. The first turns on calculation of a single non-parole period based upon aggregation of the fixed terms. Thus, where a 10 year term is directed to be served after 2 years of a 6 year term, the aggregate of the fixed terms is 12 years, producing a non-parole period of 6 years. That was the approach taken by Murray J in Pinkstone and Downey, supra. It is convenient to refer to this as "fixed term aggregation".

110 I shall refer to the alternative approach as "mixed aggregation". On this approach, the (whole) non-parole period of the partly cumulative term is calculated. That is then added to the portion of the first term which must be served before the partly cumulative term begins. That seems to be what the leaned sentencing Judge was seeking to do in this case.

111 On the mixed aggregation approach the applicant's total non-parole period would be 4 years 8 months (equating to the non-parole period of a 10 year fixed term).

112 The respondent submits that if the fixed-term aggregation approach is taken, the aggregate term of imprisonment (said to be 7 years 4 months) would produce a non-parole period of approximately 2 years 11 months. It is submitted that is not what his Honour intended and so if that approach is what the legislation requires then either another application should be made to his Honour under s 37 of the Sentencing Act or this Court should pass the appropriate sentence to give effect to his Honour's intention, pursuant to s 689(3) of the Criminal Code (WA). I have already pointed out the fallacy in this submission insofar as it concerns the aggregate fixed terms and the non-parole period.

113 In my respectful opinion, there has been a tendency for courts to be sidetracked into the arid wilderness of parole period calculations and away from the legislative path of setting the proper sentence to be imposed for an offence or a number of offences.

114 It seems to me that what the legislation authorises and requires of a sentencing court in respect of partly cumulative terms, is completely expressed in s 88 of the Sentencing Act. It is neither necessary nor appropriate to go beyond that when determining the sentence(s) to be passed.

115 In the current legislative framework, a sentencing court is required to do only three things when imposing a term of imprisonment. They are to specify the fixed term (and its date of commencement), determine whether or not the offender should be made eligible for parole and (where applicable) determine whether the term should be wholly or partially cumulative on any other term or terms.

116 Parole is a consideration only for the purpose of whether or not an order for eligibility should be made and determining the date beyond which a partly cumulative term may not be ordered to commence under s 88 of the Sentencing Act.

117 What may be ordered to be served cumulatively or partly cumulatively under s 88, are fixed terms.

118 Previously, s 37 of the Offenders Probation and Parole Act 1963 (WA) required a court imposing a sentence of imprisonment to specify a minimum term during which the offender would not be eligible for parole. That Act was repealed and replaced by the Sentencing Act, which simply enables a court to order that an offender be eligible for parole (s 89). If such an order is made the non-parole period is that prescribed in s 93 of the Sentencing Act. In imposing a sentence appropriate to a particular offence, a sentencing court is concerned only to set the fixed term. It is not appropriate to set that having regard to how long the offender will actually serve before becoming eligible for parole (R v Gisbourne, unreported; CA; 14 March 1977 per Orr and Waller LJJ and Milmo J; Wilson v The Queen, unreported; CCA SCt of WA; Library No 7325; 20 October 1988; Archibald (1989) 40 A Crim R 228; Swain (1989) 41 A Crim R 214; Wicks v The Queen (1989) 3 WAR 372, 391).

119 It seems to me that what s 88 requires is for the court to set a fixed term appropriate to the offence and if ordering that it be served partly cumulatively on another term, to specify the period of that other term which is to be served before the partly cumulative term is to begin. The period may be specified either by stating how much of the other sentence is to be served (eg "to commence after the offender has served 2 years ...") or by reference to dates (eg: "... after that period from (date) to (date)"). The only restriction is that the partially cumulative sentence cannot be ordered to commence on a date beyond the earliest date on which the offender could be released (whether on parole or not) in relation to the other term.

120 In the present case, therefore, if his Honour wished to achieve an aggregate fixed term of 10 years imprisonment, the appropriate order would have been that the 9 year sentence on count 2 commence on the applicant having served 12 months of the 4 year sentence on count 1. That is all s 88 requires.

121 The aggregate fixed term actually imposed by his Honour (on 26 February 2003) was one of 9 years imprisonment, although his Honour thought it "equated" to 10 years imprisonment and the Crown thought it was an aggregate term of 7 years 4 months.

122 Section 94(1) of the Sentencing Act makes it clear that where a prisoner is serving two or more fixed terms in respect of which he or she is eligible for parole, the prisoner's date of eligibility for release and parole period are to be calculated by reference to the aggregate of the fixed terms, if those fixed terms are to be aggregated under subs (2) or (3).

123 By subs (2) a fixed term imposed at the same time as another fixed term is to be aggregated with it unless it is to be served partly cumulatively with that other term.

124 By subs (3) a fixed term imposed at a different time to another fixed term is to be aggregated with it unless it is to be served concurrently or partly cumulatively with that other term.

125 The question is whether the exceptions which follow the word "unless" in subs (2) and (3) mean that where the fixed term is to be served partly cumulatively no part of it is to be aggregated with the other term, or whether only that part of it which is to be served cumulatively is to be aggregated.

126 This was not a question which fell for consideration by his Honour. Nor does it fall for consideration by this Court on this appeal. It is a matter for the prison authorities and the Parole Board. If, as appears to be so, there is uncertainty about it, it may be that the question could properly be resolved in an appropriate case, by declaration and with the benefit of full argument, which we have not had.

127 As argued, the crux of the applicant's submissions on this ground was that the learned sentencing Judge focused on the quantity and purity respectively of the drugs and overlooked other relevant considerations, leading him to take too high a starting point. On count 1 that starting point was 6 years; on count 2 it was 15 years.

128 The complaint therefore was as to the manner in which his Honour arrived at the starting points, in that he treated the quantity of the admixture of 3.168 kilograms in respect of count 2 and the purity of the cocaine (24 per cent) in respect of count 1, as determinative.

129 Further developed, the submission was that the starting point on count 1 was manifestly excessive because it was disproportionate to a quantity of only 1.15 grams of pure cocaine (which was less than the presumptive amount for cocaine in Schedule V of the MDA) and on count 2 because his Honour failed to realise the quantity of amphetamine equated to 311 grams.

130 Alternatively it was argued that if his Honour had taken the mitigating factors into account, then that pointed up the error that the starting point taken by him in each instance was outside the range of a proper exercise of the sentencing discretion.

131 It can be accepted that whilst the weight and purity of a drug are matters which should ordinarily be considered in the exercise of a sentencing discretion, they should not be elevated to the "chief factor" to be taken into account (Wong v The Queen [2001] HCA 64; (2001) 76 ALJR 79 at [70]); nor should they be given a predominance which results in "other relevant matters being overlooked or downplayed in importance" (Marker v The Queen [2002] WASCA 282 per Murray J at [29]).

132 However, it is immediately apparent that this ground proceeds on a fundamental misconception. It effectively seeks to treat what is described as a "starting point", as an actual sentence - albeit one that is then reduced on account of certain factors. The flaw in this approach has been pointed out on other occasions.

133 In Pinkstone v The Queen, (supra) Murray J said (at [87]) that:

"Whatever may be said of the sentencing process itself, it is not legitimate to couch a ground of appeal so as to complain that a 'starting point' is manifestly excessive. It is only the sentence imposed by the Court of which such a complaint may be made."

134 In similar vein, his Honour said in Marker (supra at [36]):

"... the 'starting point' appears in each case to be what the Judge would have thought to be an appropriate sentence had there been no relevant matters of mitigation established. If that is so, then, to my mind, the starting point is not presently material. It is not the sentence imposed and it relates to some unexpressed set of factual circumstances different from those found by his Honour in the case before him."

135 What the applicant must show to be wrong, whether by way of identifiable error or by the disproportionality of it to the offence committed, is the actual sentence imposed in each instance. It is only that sentence which can be the subject of an appeal (Grimwood v The Queen [2002] WASCA 135 per Murray J at [17] and [20]).

136 In his outline of the facts, the learned sentencing Judge correctly noted the weight of the powder containing cocaine was 4.8 grams at 25 per cent purity and the weight of the amphetamine was 3.168 kilograms ranging from 9.1 per cent to 10.6 per cent purity. The purity of the amphetamine indicates it had already been cut for distribution on the streets, but it was still present in bulk and as Malcolm CJ pointed out in Reppucci (1994) 74 A Crim R 353 at 365, while percentage purity is of some relevance when comparing quantities, it has to be looked at in a general context of how the drug is in fact sold at the wholesale and retail levels.

137 It must be borne in mind that the question of intent aside, the offence is the possession of a preparation or admixture of the prohibited drug. The relevant weight therefore is the weight of the admixture, not the weight of the pure drug contained in it. This applies also to the presumptive quantity (Fursman v The Queen, unreported; CCA SCt of WA; Library No 7414; 5 December 1988 (per Brinsden J at 2 and 5). There is therefore no substance to the contention of the applicant that the learned sentencing Judge failed to appreciate there was less than 1.15 grams of pure cocaine (less than the presumptive quantity) and that the amount of pure amphetamine was 311 grams. His Honour was required to sentence the applicant on the basis that the offences involved 4.8 grams of cocaine of 25 per cent purity and 3.168 kilograms of amphetamine ranging from 9.1 to 10.6 per cent purity. That is what his Honour did.

138 As already observed, whilst the weight of the drug and its purity and value are considerations of some importance (R v Hafner [2002] WASCA 211 per Steytler J at [23]; Dodd v The Queen [2002] WASCA 55 per Wheeler J at [5] and Miller J at [55]) they should not be determinative to the exclusion of other factors (Wong v The Queen, supra). It is critical to consider what the offender actually did, and with what knowledge or purpose (R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at [19]). The issue will always be to determine the criminality of the particular offender.

139 As Wheeler J pointed out in Dodd at [5]:

"... In assessing the criminality of the offender in many cases of crimes involving production or distribution of drugs the offender's intention, or understanding, or knowledge, of the amount likely to be produced or distributed, and of the enterprise in which the offender was involved, will generally be of greater importance than the actual amount involved: ..."

Kirby v The Queen [2003] WASCA 164

At a glance

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Judgment (258 paragraphs)

Kirby v The Queen [2003] WASCA 164 (31 July 2003)

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Legislation Cited (6)

Cases Cited (10)