Nweke v R

Automatic revocation of parole

1. Accordingly, our attention can be confined to the relevant provisions in the form in which they appeared at the time the applicant's parole order is taken to have been revoked (22 March 2019). Under those provisions, federal parole was automatically revoked in cases where two circumstances (occurring at different times) existed. The first was that the new offence was committed while the offender was on parole for a federal offence. The second was that the sentence imposed for the new offence exceeded three months. In such a case, the Act provided that the parole order was taken to have been revoked "upon the imposition of the sentence": s 19AQ(1). The intention of the two conditions is clear; a parole order was only to be revoked automatically where it had been breached by the commission of an offence determined by the court to be of some seriousness. That made sense, especially where the revocation occurred by force of statute, with no evaluative consideration by an independent authority of the circumstances of the offender (or indeed the circumstances of the offence, beyond the fact that it was serious enough to attract a sentence of more than three months).
2. The section also accommodated the complexity that, in some cases, it would not be known whether the parolee was guilty of the new offence until after a trial. One can see for that reason that it would have been unworkable to provide for the automatic revocation of parole at any earlier point in time.
3. However, fixing the automatic revocation of a parole order to the date of imposition of sentence for the new offence entailed a complexity that may have been unforeseen. In many cases (as here), offenders would be sentenced years after being arrested for the new offence. However, the provisions concerning the revocation of parole conferred no discretion on the court to backdate the date on which the offender would begin to serve the unserved part of the outstanding sentence. The recommencement of the outstanding sentence was thus fixed in a way that made it impossible to begin serving the unserved portion of the previous sentence during any period on remand. Section 19AS(1)(d) provided that an offender whose federal parole was automatically revoked under s 19AQ "must begin to serve the unserved part of the outstanding sentence" on the day the new sentence was imposed.
4. That provision has survived the amendments (confusingly, it is now contained in s 19AS(1)(e)). It sits in tension with general sentencing principles which, at least in New South Wales, would ordinarily see the balance of parole served first and usually during the period on remand. Section 19AS(1)(d) (now s 19AS(1)(e)) does not make sense in that context.
5. Furthermore, in cases where the Act applied so as to effect the automatic revocation of parole on the date on which the new sentence was imposed, the court sentencing the offender for the new offence was (and still is) required to perform a task that would ordinarily fall to a parole authority in that event, namely, the calculation of the term of the outstanding sentence the offender had become liable to serve. That was not an express requirement in the previous form of the Act but it was a task the court necessarily had to undertake in order to comply with two further requirements of the Act: the obligation under s 19AR(2)(d) to fix a single new non-parole period in respect of both the new sentence and the outstanding sentence having regard to the total period of imprisonment that the person was liable to serve; and the administrative task of issuing a warrant authorising the detention of the offender for the duration of the unserved part of the outstanding sentence: s 19AS(1)(c). A separate statutory warrant was necessary because the judge passing sentence for the new offence was not sentencing the offender for the previous offence. The offender having been sentenced and subsequently released on parole for the previous offence, a warrant was required to be issued authorising his or her detention for the balance of that sentence. Since it was the decision of the sentencing judge that would determine whether that would happen (that is, the deemed revocation turned on whether the new sentence was more than three months), and absent a federal parole authority, the Act visited upon the court the task of issuing that warrant.

Automatic revocation where the new sentence is imposed after the expiration of the previous parole period

1. A number of issues arose in the present appeal concerning the application of those provisions with significant consequences for the applicant.
2. First, the applicant argued in his sentence appeal that s 19AQ (which effects the automatic revocation of the parole order) had no application in a case such as his where, by the time of the imposition of the new sentence, the parole period had expired. We rejected that argument: primary judgment at [75].

Credit for "clean street time"

1. However, we identified a separate error in the application of that section concerning the calculation of the term of the outstanding sentence the applicant became liable to serve and, in particular, his entitlement to credit for "clean street time" (a matter now addressed more clearly in the amendments).
2. Contrary to what the sentencing judge was told, the application of s 19AQ(5) was subject to the operation of s 19AA(2), which meant that, as the applicant was being sentenced in New South Wales, he was entitled to credit for the period between his release on parole and the commission of the new offence. The result was that, whereas the sentencing judge was given to understand that the applicant was liable to serve an outstanding 3 years and 6 months of his earlier sentence, in fact there were only 12 months and 2 days remaining to be served.
3. Our reasons for reaching that conclusion are explained in the primary judgment at [76]-[82]. The correctness of our conclusion is supported by two additional materials not drawn to this Court's attention by the parties: the decision of Martin CJ in Commonwealth Director of Public Prosecutions v Wallace [2011] WASC 286; (2011) 213 A Crim R 420 and the terms of the 2006 ALRC Report (cited above) at [24.24]-[24.32]. Indeed, that is also the position stated in the Commonwealth Director of Public Prosecutions' own document, "Sentencing of Federal Offenders in Australia: a guide for practitioners" (1st ed, 2018) which stated at [624(p)]: "Sections 19AA(2) and 19AQ of the Crimes Act 1914 (Cth) provide for the allowance for 'street time' on federal parole if the State or Territory law provides for this. However, where the breach is federal offending, in sentencing the court must have regard to 'street time' where State/Territory law does not provide for that allowance, in fixing a new NPP where the new aggregate head sentence is more than 3 years or RRO where the new aggregate head sentence is 3 years or less."
4. Contrary to the first sentence in that statement, the sentencing judge was told that s 19AA had no relevance in the present case.

Sentencing structure skewed by s 19AS

1. The second issue was that, as explained in our primary judgment at [137]-[140], the structure of the sentence that would ordinarily be imposed in accordance with accepted sentencing principles was skewed by the application of s 19AS. This is the issue as to which we invited further submissions. In matters involving parole in New South Wales, the parole board ordinarily acts promptly to revoke the parole order (if considered appropriate) upon the person's arrest for a new serious offence. That permits the person to begin to serve out the balance of parole at around the time of his or her arrest for the new offence. Depending on the degree of accumulation or concurrency allowed, the sentencing court can then take the orthodox course of backdating the commencement date of the new sentence to some point during the balance of the previous sentence giving allowance for any time spent in custody solely on remand.
2. However, as already noted, s 19AS(1)(d) directed that the person "must begin to serve the unserved part of the outstanding sentence or of the first to be served of the outstanding sentences on the day that the new sentence is, or the new sentences are, imposed". The result was that a sentence that complied with the mandate of s 19AS would likely distort either the established principles it ought to have reflected or the structure of the sentence itself.
3. The 2018 version of the Director's "Sentencing of Federal Offenders in Australia: a guide for practitioners" at [624(l)] replicated the anomaly, citing ss 19AQ and 19AS(1)(d) to support the assertion that "the whole of the unserved federal balance falls to be served first", without addressing the status of any period on remand between arrest and sentence (that version of the guide has since been updated).
4. In his supplementary submissions, the applicant submitted that the application of s 19AS "appears to arise where the new federal sentence is being imposed during the parole period of the previous sentence and the warrant of detention is required as the offender is still on parole". The submission implicitly reprised the argument we rejected in our primary judgment (referred to at [13] above). Section 19AQ made provision for the (deemed) revocation of federal parole even after the parole period had already ended, if that was the position at the time the new sentence was imposed. Section 19AS provided that the court "must" issue a warrant in any case where parole was automatically revoked. In our view, reading those provisions together, it is clear that the warrant required to be issued under s 19AS was required for the purpose of authorising the general manager of the prison to detain the person in accordance with the earlier sentence (with credit for clean street time).
5. However, it is correct (as the applicant in substance contends) that on any view the previous sentence has now been served in full and there is no occasion for the issue of a warrant.
6. The sentencing court did not in fact issue a warrant of detention as required by s 19AS(1)(c). The warrant in the appeal books is not in the form required by the Crimes Regulations 2019 (Cth) Sch 1 Form 2 but instead commanded the general manager of the prison to receive and imprison the offender "in accordance with the imprisonment imposed by the court" on 22 March 2019. In fairness, it should be noted that the sentencing judge's attention was not drawn to s 19AS. Indeed, it was submitted by the Commonwealth Director of Public Prosecutions that his Honour should "fix the start date for the outstanding sentence of three years and six months from 30 April 2014" (the date of arrest). The submission subverted the operation of the Act in a number of ways. As already noted, the term was wrong (three years and six months was the full parole period with no deduction for clean street time; the correct term of the outstanding sentence was a period of 12 months and 2 days). The start date was also wrong (s 19AS(1)(d) provided that the offender "must begin to serve the unserved part of the outstanding sentence" on the day the new sentence is imposed). Finally, the submission ignored the automatic application of s 19AQ(1) and instead invited the judge to "sentence" the offender for an offence for which he had already been sentenced (an error we repeated in the orders foreshadowed in the primary judgment). As already explained, the sentencing judge's judicial function was confined to fixing a new single non-parole period for both sentences. Section 19AR(1) provided, where parole was automatically revoked under s 19AQ, that: the court imposing the new sentence or sentences must fix a single new non-parole period in respect of the new sentence or sentences and the outstanding sentence or sentences having regard to the total period of imprisonment that the person is liable to serve.
7. The Court was required to issue the warrant of detention but that is an administrative function.
8. In any event, proceeding in accordance with the submissions put to him by the Commonwealth Director of Public Prosecutions, the sentencing judge purported to revoke the parole order (that in fact occurred automatically by force of the statute) and to "sentence" the offender to the outstanding term (whereas all that was required was for a warrant to issue).
9. However, even though no warrant was issued, the position now is that the applicant is taken by force of the statute to have served the whole of the outstanding sentence and it simply remains for this Court to re-sentence him for the new offence. That follows from the fact that, by force of s 19AQ, the parole order was automatically revoked on 22 March 2019 upon the passing of the new sentence at first instance. The supplementary submissions of the Commonwealth Director of Public Prosecutions accepted that the effect of s 19AS(1)(d) is that the applicant was required to begin to serve the outstanding sentence from that date. As the outstanding sentence, properly calculated, was 12 months and 2 days, the effect of s 19AS as it stood at the relevant time is that the sentence had been fully served by 24 March 2020.
10. Accordingly, it is not necessary for this Court to make orders dealing with the previous sentence at all. In our primary judgment, we indicated that we proposed to resentence the applicant for the new offence to a term of imprisonment of 13 years 3 months. We proposed that the new sentence would be accumulated by 6 months on the previous sentence and so would commence on 30 October 2014 and expire on 29 January 2028. We proposed a single new non-parole period in respect of the new sentence and the outstanding sentence of 8 years and 6 months which (subject to the issue we raised) we would have commenced on 30 April 2014 (the date of arrest). The applicant would on that basis be eligible for parole on 29 October 2022.
11. With the previous sentence out of the picture, it is not necessary for this Court to fix a "single new non-parole period" as would otherwise have been required by s 19AR(2)(d). The appropriate course then is simply to impose the sentence indicated, maintaining the notional accumulation of 6 months by commencing the sentence 6 months later than the date of arrest (30 October 2014) and fixing a non-parole period of 8 years also commencing on 30 October 2014. The applicant will therefore still be eligible for parole on 29 October 2022, as foreshadowed in our primary judgment.
12. Although the solution in this case is accordingly simpler than we anticipated, it may nonetheless be helpful, since we have taken the time to consider the issue, to indicate our understanding as to how the sentence might properly have been structured if it was being imposed at first instance when the outstanding sentence was still in play. The sentencing task on that premise faced the following difficulty.
13. The applicant was arrested on 30 April 2014. The new sentence was passed almost five years later, on 22 March 2019. By force of s 19AS, the applicant could not begin to serve the relatively short unserved part of the outstanding sentence until that date and the sentencing judge was required by s 19AR(1) to fix a single new non-parole period in respect of both the outstanding sentence and the new sentence.
14. That combination of circumstances made it impossible to reconcile any sentence with all of the applicable principles of sentencing. In accordance with ordinary sentencing principles and the apparent intention of the relevant provisions of the Crimes Act 1914, it was appropriate for the new sentence to be accumulated to some degree on the outstanding sentence. However, it was also appropriate for the new sentence to be backdated to make allowance for the lengthy period of pre-sentence custody. As noted in the Director's supplementary submissions, the combined effect of s 16E of the Crimes Act 1914 and s 47 of the Crimes (Sentencing Procedure) Act 1999 (NSW) is that, although the starting point is to fix a sentence to commence on the day on which it is imposed, the Court is permitted to give effect to the long-accepted principle of making allowance for time on remand. The Director noted that s 19AS(1)(d) was concerned only with the commencement point of the outstanding sentence and accepted that it would not preclude the Court from backdating the sentence for the new offence to take account of pre-sentence custody. In the present case it would be most unjust not to give the applicant credit for a substantial portion of his pre-sentence custody. On that basis, the outstanding sentence would sit in the middle of any new sentence and the only way to provide for any accumulation would be to expand the term of the new sentence. But that would contravene the common law principle of proportionality reflected in s 16A(1) of the Crimes Act 1914.
15. In her supplementary submissions, the Commonwealth Director of Public Prosecutions suggested a number of alternative proposals to address those difficulties while maintaining a sentence for the new offence of 13 years and 3 months as proposed in our primary judgment.
16. The first was to backdate the new sentence to the date of arrest (instead of 6 months later) while maintaining the single non-parole period of 8 years and 6 months. However, the Director noted that this would in turn reduce the total effective sentence by six months and distort the ratio between the non-parole period and the total sentence.
17. The second proposal sought to address that problem by shortening the non-parole period so as to maintain the ratio originally intended. However, the Director noted that this would reduce the time to be spent in custody (by four months) and would also mean that the total sentence reflected no additional term for the outstanding sentence. Accepting those difficulties, the Director did not put this forward as the preferred solution.
18. The third proposal was to adopt the structure of the sentence imposed in similar circumstances in R v Hughes [2020] NSWDC 98. In that case, the Commonwealth Director of Public Prosecutions urged the sentencing judge (Mahony SC DCJ) to fix the new sentence to commence on the date of imposition but to reduce its term to reflect pre-sentence custody. His Honour recorded the submission as follows at [86]-[87]: "The Crown submitted that the Court would not exercise its power to commence the sentences on [the date of arrest] as the balance of parole to be served would then become wholly concurrent with the new sentences for Counts 1 and 2. This would amount to a misapplication of the principle of totality because Counts 1 and 2 constituted wholly distinct and separate criminal offending, their criminality could not be adequately comprehended by combining the sentences with the outstanding parole and because the offender commenced the offending about two months and one week into his parole period of 18 months. The Crown considered that the offender was entitled to the benefit of his pre‑sentence custody being a period of 151 days but submitted that this should be taken into account by ordering that the sentences be reduced by that period. That is, that the total effective sentence be reduced by a period of 151 days."
19. Mahony SC DCJ noted that the resulting sentence was "more than somewhat artificial" but acceded to it as the Director's preferred course on the grounds argued: at [144].
20. In the present case, the effect of adopting that approach would have been that, while the applicant would in fact have spent the intended time in custody and the intended time on parole, the sentence for a serious drug offence would have been recorded as one of approximately 8 years and 4 months with a non-parole period of approximately 3 years and 1 month.
21. The Director conceded that this approach is "by no means ideal" but put it forward as the preferable solution because it would result in the applicant serving no more or less time in custody than intended by the Court and would ensure that "part of the time actually served in custody is solely referable to the outstanding sentence by preserving the partial accumulation of the sentence". The Director emphasised the need for the Court, if that approach were adopted, to state its reasons for not backdating the sentence so as to explain the apparent inadequacy of the sentence.
22. Without intending any criticism of Mahony SC DCJ, who undertook a careful and considered analysis of the issue before acceding to the submission put by the Commonwealth Director of Public Prosecutions, the Hughes solution, while complying with s 19AS, gives rise to other distortions. The most significant distortion is the complete inadequacy of the recorded new sentence, which would seem to subvert the requirement of s 16A(1) of the Crimes Act 1914. Further, the non-parole period imposed on the Hughes approach would reflect a complete distortion of orthodox principle.
23. That is not to say that the Hughes approach is wrong. It may well be an acceptable way of addressing the conundrum explained above. It gives credit for pre-sentence custody in a way that preserves a distinct recognition of the outstanding sentence at the expense of imposing a proportionate sentence for the new offence. However, it would equally be open to give credit for pre-sentence custody in a way that preserved the requirement to impose a proportionate sentence for the new offence at the expense of preserving a distinct recognition of the outstanding sentence. On that alternative approach, the outstanding sentence would be recognised in the fact that the new sentenced was backdated not to the date of arrest but to a later date. The sentencing judge would specify the unserved part of the outstanding sentence (giving credit for clean street time); issue a warrant accordingly; identify the notional period of accumulation of the new sentence on the outstanding sentence and proceed to impose the new sentence backdated to the degree appropriate to reflect pre-sentence custody less any period of notional accumulation on the outstanding sentence.
24. Neither approach is wholly satisfactory and neither is wrong. So long as there is a transparent process of reasoning and the structure of the sentences is not distorted so as to exceed or fall short of what would otherwise have been imposed as the appropriate sentence, sentencing judges can only do their best with the inconsistent constraints imposed. Where an order for parole is revoked under the provisions of Subdivision B of Division 5, it is not possible to impose a sentence that does not involve some distortion of the common law and statutory principles that govern the sentencing task.

Orders

1. For those reasons, we make the following orders: 1. Quash the sentences imposed on 22 March 2019 and in lieu therefor: 2. For the offence of conspiring with persons unknown between 27 March 2014 and 30 April 2014 to import a commercial quantity of the border controlled substance cocaine, sentence the applicant to a term of imprisonment for 13 years and 3 months commencing on 30 October 2014 and expiring on 29 January 2028. 3. Fix a non-parole period of 8 years commencing on 30 October 2014 and expiring on 29 October 2022, on which date the applicant will become eligible for release to parole.

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