Court of Appeal (WA)|2003-10-10|Before: Malcolm CJ

Kirby v The Queen [2003] WASCA 239 (10 October 2003)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : KIRBY -v- THE QUEEN [2003] WASCA 239

Criminal law and procedure - Sentencing - Parole eligibility - Fixed terms ordered to be served cumulatively - Aggregation of terms - Calculation of earliest release dates - Parity - Disparity arising from respective dates of release

Langridge v The Queen (1996) 17 WAR 346

Mill v The Queen (1988) 166 CLR 59

Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295

Storey v The Queen [1998] 1 VR 359

1 MALCOLM CJ: This was an application for leave to appeal against conviction and sentence. In the result, the application for leave to appeal against conviction was abandoned. As to the application for leave to appeal against sentence, I have had the advantage of reading the reasons for judgment to be published by Anderson and McLure JJ. I agree with those reasons and the order proposed, namely, that the applicant be granted leave to appeal but that the appeal should be dismissed. In particular, with due respect to the remarks made obiter by Murray J in Pinkstone v The Queen [2003] WASCA 66 at [109] - [111]; and Kirby v The Queen [2003] WASCA 164 at [11], I share the doubt expressed by Anderson and McLure JJ that there is any room in s 94 of the Sentencing Act 1995 for the concept of "partial aggregation" in the case of partly cumulative terms of imprisonment. I share the prima facie view which has been expressed by their Honours.

2 ANDERSON & MCLURE JJ: This matter started as an application for leave to appeal against conviction and sentence. The application for leave to appeal against conviction has been discontinued and we heard argument only in respect to the application for leave to appeal against sentence.

3 We preface this judgment with the observation that, since the matter was argued on 15 August 2003, the Sentence Administration Act 1995 has been repealed, the Sentence Administration Act 2003 has been proclaimed and extensive amendments have been made to the Sentencing Act 1995. These provisions were proclaimed to come into operation on 31 August 2003. We do not consider that they affect the questions which arise in this case. The issues raised in the grounds of appeal fall to be considered in the context of the sentencing laws as they stood at the time the sentence in question was passed. The position might be different if this Court was disposed to set aside that sentence and re-sentence the applicant but, for the reasons set out below, we are not persuaded that this Court should do so.

4 The sentence in question was imposed in the District Court on 22 November 2002 for possession of methylamphetamine with intent to sell or supply. The applicant had been convicted on 15 November 2002 after trial before Wisbey DCJ and a jury. He was at that time already serving a sentence of 9 years which had been pronounced by O'Sullivan DCJ in the District Court on 4 October 2002 in respect of other drug offences. That sentence was an aggregate of two sentences passed by O'Sullivan DCJ in a sentencing exercise in which the Judge made it clear that he intended the aggregate to be 10 years. It turned out to be

9 years by force of certain provisions in the Sentencing Act 1995 as they applied to the sentencing structure devised by his Honour. The applicant appealed against that sentence but his appeal was dismissed: Kirby v The Queen (supra).

5 Returning to the second sentence, Wisbey DCJ said that the appropriate sentence for the offence tried before him was 9 years but in light of the fact that the applicant was already serving what he thought was a 10 year sentence, and in order to accommodate the totality principle, the Judge said he would impose a sentence of 4 years 6 months cumulative on the existing sentence.

6 By the first ground of appeal the applicant pleads that the sentence of 4 years 6 months was "manifestly excessive" but this ground of appeal was not pursued as a separate ground. It was not abandoned but counsel for the applicant, Mr Shirrefs SC, relied on it only to the extent that it supplemented ground 2, which raised the principle of totality in the context of parole release dates. The argument proceeded along these lines. It is wrong to try to accommodate the totality principle by passing individual sentences which are not appropriate for the offences in question. The correct approach is to pass appropriate individual sentences and achieve an appropriate overall term by making orders for concurrency or cumulation or a mixture of both: Pearce v The Queen (1998) 194 CLR 610 at [45] per McHugh, Hayne and Callinan JJ. Therefore, it was argued, accepting that 9 years was the proper sentence for the offence but recognising that principles of totality demanded that no more than 4 years 6 months of this should be added to the first sentence, the correct approach was to pass a sentence of 9 years and order that it be served partly cumulatively on the first sentence. Adoption of this approach, so it was argued, is mandated by Pearce.

7 In point of general principle this is correct. However, an overall term of 13 years 6 months (taking that to be the appropriate total punishment) could not have been achieved by making a 9 year sentence partly cumulative with another 9 year sentence. This is because, by force of the Sentencing Act 1995 (WA), the start of a partly cumulative sentence could not be postponed beyond the earliest date of release under the sentence or sentences with which it was to be partly cumulative: Sentencing Act 1995, s 88(4). In the case of a 9 year parole term the earliest release date was 4 years from the start of that sentence, the arithmetic being 9 years times two-thirds less 2 years: s 93(1)(b). Hence where a parole term of 9 years was the sentence being served, the sentence which was to be partly cumulative with it could not be postponed by more than 4 years from the start of the first sentence. Therefore, in the case of two 9 year parole terms, the longest that could have been achieved by an order for part cumulation was 13 years. In this case the Judge decided that the total sentence should be 13 years 6 months. Because that could not be achieved by applying the sentencing method laid down in Pearce it was necessary to depart from the Pearce approach in this case, and the Judge did not err in doing so.

8 Mr Shirrefs SC submitted that the sentencing structure actually adopted by Wisbey DCJ, that is, adding 4 years 6 months to the existing 9 year sentence, produced an unintended consequence, adverse to the applicant in terms of parole eligibility, in that it had the effect of extending the non-parole period by 3 years when adoption of the approach laid down in Pearce would have extended it by only 18 months.

9 We would doubt that this submission can be entertained once it is appreciated that the Pearce approach could not be followed, but anyway we do not quite understand how the result contended for by Mr Shirrefs SC is arrived at.

10 It is as well to set out s 93 and s 94 in full, as they stood at the time when the sentence was pronounced:

"93. When a prisoner is eligible to be released on parole

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

(a) if the term is 6 years or less -- when he or she has served one third of the term; or

(b) if the term is more than 6 years -- when he or she has served 2 years less than two thirds of the term.

(2) Any order for the release of a prisoner to whom this section applies must be made in accordance with Part 3 of the Sentence Administration Act 1995.

94. Aggregation of parole terms for certain purposes

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

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

(b) the parole period for such a prisoner,

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

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

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

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

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

11 As can be seen, s 94 prescribed the method of calculation that was to be followed in the case of a prisoner serving multiple terms, in order to establish the parole release date for that prisoner and to fix his or her parole period. Wholly cumulative parole terms were to be aggregated: s 94(1). This meant that if a sentence of 4 years 6 months with parole was made wholly cumulative on a sentence of 9 years with parole the earliest date of release was to be calculated as if there was a single parole term of 13 years 6 months: s 93(1)(b), s 94(1), s 94(2), s 94(3). The calculation was two-thirds of 13 years 6 months less 2 years ie 7 years. That was this case.

12 We do not see how a sentencing approach in accordance with the principles laid down in Pearce, if available, could have produced a better result for the applicant in terms of parole release. Under the provisions which applied at that time not all terms were to be aggregated for the purpose of parole release date calculations. It was a process to which limitations applied, those limitations being clearly stipulated in s 94(2) and s 94(3). Those sub-sections provided that when a parole term was ordered to be served partly cumulatively upon another parole term, the two were not to be aggregated: c/f Pinkstone v The Queen (supra) per Murray J at [109] - [111]; Kirby v The Queen (supra) per Murray J at [11]. With due respect to the obiter remarks of Murray J in those two cases, we would doubt that there was any room in s 94 for the concept of "partial aggregation" in the case of partly cumulative terms. We would respectfully advance the prima facie view that unless the legislation stipulated that the several sentences were to be the subject of aggregation for the purpose of parole calculations (which it did not), then no aggregation at all was authorised for that purpose; and release dates were to be determined by reference to the order in which sentences were to be served as laid down in the Sentence Administration Act 1995. It would follow from this that if a sentence of 9 years with parole was made partly cumulative with another parole term of 9 years the earliest date of release was to be calculated having regard for s 8(1)(b) of the Sentence Administration Act 1995) not by application of s 93(1)(b) of the Sentencing Act. Section 8(1) of the Sentence Administration Act 1995 provided:

"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."

13 The effect of the sub-section as we would construe it was that the prisoner would serve so much of the non-parole part of the first sentence which preceded the start of the second sentence; then he would serve the non-parole part of the second term. In this case, the applicant would have been required to serve the non-parole period of 4 years of the first sentence and then the non-parole period of the second sentence, also 4 years. He would have been worse off. Instead of a non-parole period of 7 years obtained by aggregation and the application of s 93(1)(b), his non-parole period would have been 8 years.

14 We recognise that the proper construction of s 94(1), s 94(2), s 94(3) and s 94(5) either as they then stood or as now amended was not fully argued in this appeal. That being so and because it is not necessary to express a concluded view on the correctness or otherwise of the construction preferred by Murray J in the cases mentioned, we will refrain from doing so. It is enough to say that even if the correct construction of s 94 is that partly cumulative sentences could be partially aggregated the result (subject to the limitation in s 88(4)) in this case would still have been an aggregate sentence of 13 years 6 months producing (by application of s 93(1)(b)) a non-parole period of 7 years.

15 To the extent that the second ground of appeal depends upon the proposition that by accumulating 4 years 6 months with the 9 year sentence instead of imposing a 9 year sentence to be served partly cumulatively on the first sentence the Judge passed a sentence with an enlarged non-parole period, we would not uphold the ground of appeal.

16 Another aspect to this ground, which was developed in written submissions and oral argument but not expressed in the ground of appeal itself, is a contention that "in assessing [the overall criminality of the applicant] the learned sentencing Judge was required to consider not only the present matter but the matters that resulted in the applicant's earlier prison sentence. This he failed to do." In our opinion, there is no substance in this contention. In arriving at the sentence which he did, that is, 4 years 6 months cumulative upon the existing sentence the Judge necessarily had to and he obviously did make an evaluation of the applicant's overall criminality.

17 The third and fourth grounds of appeal raise questions of parity.

18 The applicant had stood trial together with Stephen Shane Colman, Paolo Musarri and Justin Paul Vodanovich. The charges against all four men arose out of the same transaction. In brief summary the facts were that on 17 May 2000 Colman had taken possession of a quantity of methylamphetamine acting under the direction of Musarri. Shortly afterwards the applicant contacted Musarri and requested the supply of 6 ounces. Musarri arranged for Vodanovich to collect 6 ounces from Colman and he having done so the applicant, Musarri and Vodanovich met together on 24 May 2000 at commercial premises in Morley where Vodanovich placed the parcel of drugs in the applicant's motor vehicle at the applicant's direction. A short time later the applicant's motor vehicle was stopped by police and searched. The parcel of drugs weighed in at 166 grams of 30 per cent purity. All four men denied any involvement in the transaction.

"In terms of your respective degrees of participation, I consider it is difficult to distinguish between the involvement of Mr Colman, Mr Musarri and Mr Kirby. Each of you was engaged in the procuring of the substance with the intention of its dissemination for financial reward... I think your involvement, Mr Colman, was perhaps slightly below that of Mr Musarri and Mr Kirby in that you were holding the substance for Mr Musarri.

You, Mr Vodanovich, were in a slightly different or better position to the others. You are younger than the other three, were an employee of Mr Musarri and albeit misguidedly, were probably malleable at his direction. Although clearly culpable your degree of participation and the reason for it puts your criminality in a slightly lower level than the others."

20 The Judge then detailed the subjective matters relevant to each offender. In the case of Musarri he thought that a sentence of 9 years' imprisonment was appropriate. However, he noted that Musarri was currently serving a 13 year sentence for other drug offences and he considered the principles of totality would be best served by adding 41/2 years to that sentence. He declined to make an order for parole eligibility. In the case of Vodanovich, he thought that a term of 6 years' imprisonment was appropriate having regard for his lesser role. He noted that Vodanovich was already serving a term of 6 years 3 months' imprisonment for other drug offences and he considered it would be sufficient to add 3 years to that sentence. In the case of Colman, he thought the appropriate term was 7 years' imprisonment and he passed that sentence on Colman, making him eligible for parole. In the case of the applicant, the Judge thought he deserved the same sentence as Musarri, namely 9 years. At that stage it was thought that the applicant was serving a 10 year sentence and in order to accommodate the totality principle the Judge decided to do exactly the same as he had done in Musarri's case, that is, add 4 years 6 months to the sentence already being served by the applicant.

21 The parity issues are two fold. In the first place, it is contended that there was no justification for imposing a sentence on the applicant which was 2 years longer than that imposed on Colman. In our opinion, the applicant can have no legitimate sense of grievance arising from this alleged disparity. On the Judge's findings, Colman was acting under the direction of Musarri at all relevant times. Of Colman he said "You were an active participant in the obtaining and holding of the drug for Musarri, knowing that it was intended that he would disseminate it in the community". On this view of the facts, Colman was simply the repository of the bulk lot under Musarri's direction, waiting for instruction from Musarri as to how it should be dealt with. It is plain that the Judge considered that the level of the applicant's criminality was higher than that of Colman. As he said at TS 578 "I am satisfied that like Mr Musarri you were a mid to high level commercial distributor of the drug". To put it shortly, Colman was a go-between whereas the applicant was a commercial dealer. This is a sufficient basis on which to impose a heavier sentence on the applicant.

22 The other contention in support of the parity ground is that a legitimate sense of grievance arises in the applicant because although Musarri was denied eligibility for parole in respect to his second sentence and the applicant was granted eligibility for parole, the applicant received no relative benefit (or any benefit at all) from the order for eligibility for parole.

23 Once again, there are two aspects to this. In the first place, we agree that the parole eligibility order in favour of the applicant was without any tangible benefit to him in the circumstances. A prisoner already serving a parole term of 9 years who was ordered to serve 4 years 6 months cumulative on that 9 year term was eligible to be released after 7 years whether the second sentence was a parole term or not. If the second wholly cumulative sentence was a parole term there would be an aggregation of the two terms producing a notional single term of 13 years 6 months to which s 93(1)(b) would be applied to give a non-parole period of 7 years. If the second wholly cumulative sentence was a finite term (no parole) there would be no aggregation (only parole terms were to be aggregated). The prisoner would have to serve the 4 year non-parole period under the first sentence then two-thirds of the second sentence (s 95(1)) ie, another 3 years - a total of 7 years. So, whether or not he was made eligible for parole in respect of the second wholly cumulative sentence, the non-parole period would be the same.

24 The second aspect is that in the case of both Musarri and the applicant the sentences had an identical effect on their respective release dates notwithstanding that the applicant was sentenced to a parole term and Musarri received a finite or non-parole term.

25 It worked this way. Musarri's cumulative second sentence was not to be aggregated with his existing sentence of 13 years for the purposes of working out an eligibility release date because the second sentence was not a "parole term" within the meaning of s 94(2) and s 94(3). Therefore, in accordance with s 7(2) of the Sentence Administration Act 1995 the second term began to run from the earliest release date in respect of the first term ie, after 6 years 8 months. Then he would be required to serve two-thirds of his second term ie, 3 years. In the result he was (and, we believe, still is) eligible for release 9 years 8 months after the commencement of his first sentence, which represents a postponement of his original release date by 3 years. The applicant's cumulative second sentence must be aggregated with his first sentence in the manner and with the result already set out because it is a parole term and is wholly cumulative: s 94(1), s 94(3). He will be eligible for release 7 years after the commencement of his first sentence and this represents an identical postponement ie, 3 years. Mr Shirrefs SC submitted that this gives rise to an injustice in as much as, between the applicant and Musarri, the applicant is no better off even although he obtained the benefit of parole eligibility.

26 In our opinion, although these anomalies can be recognised, sentences are not required to reflect them and sentences which do not accommodate them do not offend parity principles. Sentencing courts are not required to react to every anomaly that may arise from the provisions of the Sentencing Act concerned with the calculation of parole periods and release dates. As Roberts-Smith J pointed out in Kirby v The Queen (supra) at [113] - [119] courts in this State were not directly concerned with parole period calculations. The primary if not the exclusive task of the courts under the Sentencing Act 1995 was to specify the fixed term proper to be imposed for the particular offence, stipulate its starting date and determine whether there should be an order for parole eligibility. It is not appropriate for the court to mould sentences with an eye on parole eligibility calculations or to make such calculations for itself before passing sentence: 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; R v Archibald (1989) 40 A Crim R 228; R v Swain (1989) 41 A Crim R 214; Wicks v The Queen (1989) 3 WAR 372, 391). See also Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348 especially at 356 - 357.

27 We would not uphold those grounds of appeal which depend upon parity issues.

28 In the result, although we would allow the application for leave to appeal we would dismiss the appeal.

Administration Act 1995

Administration Act 2003

Kirby v The Queen [2003] WASCA 239

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Judgment (52 paragraphs)

Kirby v The Queen [2003] WASCA 239 (10 October 2003)

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