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[2002] FCAFC 261
appellant. Appeal allowed; judgment of the Supreme Court set aside; orders nisi for writs of habeas corpus and certiorari discharged and orders absolute set aside; cause remitted to the Supreme Court for...
The Full Court held that when a court sentences a parolee to imprisonment but directs release upon recognizance (a recognizance-release order), that is still a sentence 'to a term of imprisonment' for the purposes of the Parole Act. Therefore the later sentence imposed in October 1999 revoked the earlier parole under the Parole Act, and the Parole Board's subsequent actions were lawful. The Supreme Court's order releasing the respondent was set aside.
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1,677 words · generated 15/07/2026
This Full Court appeal concerned the legal effect of a sentencing order coupled with a direction to release on recognizance (commonly called a 'suspended sentence') and whether such an order revokes an existing parole order under the then Parole Act 1976 (ACT). The respondent, Javier Francisco Gomez, had been sentenced on 31 August 1990 to 10 years' imprisonment with a six year non-parole period and was released on parole on 30 August 1996 [4]. While on parole he committed further offences. On 7 October 1999 the Supreme Court convicted him of two counts of using a false instrument (offences committed on 16 September 1997) and sentenced him to three months' imprisonment but directed release upon his entering into a recognizance of good behaviour for 12 months; another count was adjourned on condition of the same recognizance [5]-[6], [19].
5 cited instruments linked from this judgment.
The Parole Board treated that 7 October 1999 sentence as revoking the original parole under s 22(2) of the Parole Act because the new sentence was imposed for offending committed during the parole period [7], and on 24 November 1999 made a further parole order expressed to commence on 7 October 1999 [8]. Later events led to additional parole orders and revocations, and Gomez was detained following revocation on 27 July 2001 [9]-[12].
The Supreme Court (Higgins J) ruled that the 7 October 1999 sentence did not operate to revoke parole and made orders nisi for writs of habeas corpus and certiorari absolute, discharging the respondent. The Members of the Sentence Administration Board appealed to the Full Court. The Full Court allowed the appeal; it held the 1999 sentence was a sentence to imprisonment and therefore, under s 22(2) of the Parole Act, the original parole was deemed revoked. The Full Court set aside the Supreme Court orders and remitted the cause for execution of its judgment [1]-[3], [15], [25].
The decisive legal issue was statutory construction: whether a court's order under s 403(1)(b) of the Crimes Act 1900 (ACT) (formerly s 556B(1)(b)), that is, sentencing 'to a term of imprisonment' but directing release upon recognizance, constitutes a sentence 'to a term of imprisonment' for the purposes of s 22(2) of the Parole Act. Section 22(2) operates so that if a parolee is sentenced to a term of imprisonment in respect of an offence committed during the parole period, the parole order is deemed revoked [7].
The Full Court read the text of s 403(1)(b) literally. The provision contemplates a court 'sentence the person to a term of imprisonment but direct that the person be released, upon him or her giving a like security ... either forthwith or after he or she has served a specified part of the sentence' [16]. The Court emphasised that the statute does not use the word 'suspended'; rather, it imposes the sentence, and then makes a separate direction to release conditioned on the recognizance. The effect is that the sentence exists and 'takes effect immediately' while the operation of actual imprisonment is deferred, contingent on the offender entering into the recognizance [17]-[19]. If the security is not given, the offender remains in custody until it is given [18].
With that understanding, the Court concluded the October 1999 order was a sentence to imprisonment; because it was imposed for an offence committed during the parole period, it fell within s 22(2) and thus deemed the earlier parole revoked. The Full Court expressly followed and cited Meehan v Lawrence (1974) 22 FLR 296, where similar statutory wording was interpreted to the same effect [20].
The Court therefore allowed the Board's appeal. It also recognised practical administrative consequences (for example, calculating the expiry date of the original 10 year sentence and the need to consider non-parole periods), but it declined to resolve those issues in the appeal and pointed to s 360 of the Crimes Act for calculation of release dates [23]-[24].
Before this Full Court decision, uncertainty could exist as to whether a sentencing court's direction to release on recognizance left the offender effectively without 'a sentence to imprisonment' for collateral statutory consequences. Practitioners and administrators often use the shorthand 'suspended sentence' to describe recognizance-release orders, but that shorthand may obscure statutory interactions.
The Full Court clarified that a recognizance-release order under s 403(1)(b) is properly characterised as a sentence to imprisonment which may, in operation, be stayed or deferred by the recognizance; that characterisation matters because other statutes, such as the Parole Act, look to the existence of a sentence. As a result, sentencing courts, defence counsel, parole boards and administrators must treat recognizance-release orders as creating sentences for the purposes of other statutes that are triggered by the imposition of sentence.
This decision therefore affirms that collateral statutory consequences which depend on the imposition of a sentence to imprisonment will attach to an order under s 403(1)(b), notwithstanding that the offender is immediately released on recognizance.
Paragraph 16: The Court sets out s 403(1)(b). Plain English: The statute allows a court to impose imprisonment but also, in the same order, direct that the offender be released if they give a recognizance. The statute frames the order as both a sentence and a direction to release.
Paragraph 17: "It is not the sentence which is suspended ... The sentence takes effect immediately but the liability ... to serve the sentence ... may be regarded as suspended if and when the offender enters into the recognizance." Plain English: The court is saying that the legal fact of 'you are sentenced' exists from the time of the order; what is postponed is putting that sentence into physical effect, and that postponement depends on the offender giving the recognizance.
Paragraph 18: "If ... the offender does not give the security ... the offender remains in custody ..." Plain English: If the offender fails to meet the condition for release, the sentence is not merely theoretical; it is enforced physically by imprisonment.
Paragraph 20 (quoting Meehan): The Court adopts prior authority describing such an order as a sentence whose immediate operation is suspended. Plain English: This is not a new idea; courts have previously treated recognizance-release orders as sentences which are held in abeyance so long as the recognizance conditions are observed.
Paragraph 7: The statutory revocation mechanism in the Parole Act. Plain English: If you are on parole and you are later sentenced to imprisonment for an offence committed during the parole, the parole is treated as revoked.
This precedent is engaged whenever:
Under those circumstances, the sentencing order is a sentence to imprisonment in law and will trigger the deemed revocation feature of s 22(2) of the Parole Act. Practitioners should note that the timing of the offence (must be during the parole period) and the legal form of the sentence (s 403(1)(b) style recognizance-release order) are the key ingredients.
The decision also has bearing where courts use the phrase 'suspended sentence' in other contexts; the reasoning warns that labels do not determine legal effect if the statutory wording imposes a sentence.
This judgment itself is the authoritative Full Court decision on these facts and the statutory provisions as they stood. The judgment cites Meehan v Lawrence as prior authority and follows it [20]. The present reasons do not discuss subsequent judicial treatment because it is the appellate determination; the judgment does not report later citations within it. Users seeking post-2002 treatment will need to check subsequent case law and legislative amendments for later developments. The Full Court's interpretation, grounded in statutory language and precedent, is binding on lower courts within the Court's jurisdiction unless and until departed from by a higher court or legislative change.
The Full Court left practical and consequential questions open, noting them as administrative difficulties rather than legal faults to be resolved in this appeal:
Calculation of custody and release dates: The Court observed there will be difficulties in calculating the expiry of the original ten year sentence because, strictly speaking, the respondent should not have been at large between 7 October and 23 November 1999 if the sentence was operative from 7 October; the Court referred to s 360 of the Crimes Act as the mechanism to be used for such calculations but did not decide the precise application in this case [23]-[24].
Fresh non-parole period: The Court noted that if parole is deemed revoked by the new sentence, the sentencing judge should have fixed a fresh non-parole period under s 23 of the Parole Act; the Court did not decide how that should be done retrospectively or how administrative practice should regularise such situations [23].
Interaction with deferred sentences and recognizance terms: The judgment leaves open detailed questions about how recognizance conditions imposed for one offence interact with later breaches or with other offences committed during parole but not clearly linked to the recognizance period [9], [23].
Administrative notice versus formal order: The Court treated the Parole Board's 23 November 1999 notice as an administrative record appropriate to effect subsequent parole ordering but did not need to explore whether any formal steps were deficient [22].
Practitioners should therefore treat the Full Court's holding as definitive on the core question of statutory effect but be alert to unresolved implementation issues. Where consequences for sentence computation, non-parole periods, or parole administration are material, parties should expect these to require specific submissions and potentially further adjudication or administrative correction under the applicable sentencing and correction statutes, using the processes identified by the Court (including s 360 of the Crimes Act).
THE COURT 1 This is an appeal from a judgment of the Supreme Court of the Australian Capital Territory (Higgins J) given on 7 December 2001 by which orders nisi for the issue of writs of habeas corpus and certiorari against the Parole Board of the Australian Capital Territory (as it then was) were made absolute and by which certain decisions of the Parole Board were set aside. 2 On 15 May 2002 this Court allowed the appeal and said that reasons would be given later. These are the reasons. 3 The appeal was concerned with the operation of parole under the Parole Act 1976 (ACT)(the former Act) repealed by s 111 of the Rehabilitation of Offenders (Interim) Act 2001 (ACT) (the Rehabilitation of Offenders Act), which came into force on 10 September 2001. Under the Rehabilitation of Offenders Act the Parole Board under the former Act effectively became the Sentencing Administration Board. 4 On 31 August 1990, the Supreme Court sentenced the respondent to a term of 10 years imprisonment for various property offences and possession of heroin. The Supreme Court fixed a non-parole period of six years before the expiry of which the respondent was not eligible for release on parole. The respondent was released on parole on 30 August 1996 pursuant to order of the Parole Board on that day (the original parole order). At the time of his release he continued to be under sentence. The term of that sentence was then due to expire on 30 August 2000. 5 On 7 October 1999, the respondent was convicted after trial in the Supreme Court of two offences of using a false instrument, charged on the ninth and tenth counts of the indictment. These offences were committed on 16 September 1997 during the parole period. The sentencing judge proceeded to sentence the respondent in the following terms: "[The respondent] will be sentenced to three months' imprisonment but I suspend that sentence forthwith upon him entering into a recognizance to be of good behaviour for a period of 12 months from this date; that recognizance to be in the sum of $500. It is a condition of that recognizance that he pay a penalty of $500 and further pay compensation to Diners Club in the sum of $99.20. I will not attempt to split it between the two. So far as the second count is concerned - that is the 10th count on the indictment - there will be a conviction recorded, and I will defer sentence on that count on [the respondent] entering into the recognizance referred to on the 9th count, and direct that he be released forthwith accordingly." 6 The respondent entered into the recognizance on the same day and, it appears, was released on that same day. 7 On 23 November 1999, whilst the respondent was still at large, the Parole Board issued or purported to issue a notice stating that the parole order of 30 August 1996 had been revoked by s 22(2) of the former Act. That section provided as follows: "Where the person to whom a parole order relates is sentenced to a term of imprisonment in respect of an offence (including an offence against a law of the Commonwealth or of a State or another Territory) committed during the parole period, the parole order shall be deemed to have been revoked and, if the parole period has already expired, to have been revoked immediately before the expiration of the parole period." 8 On 24 November 1999, the Parole Board made or purported to make a further parole order in terms almost identical with those of the original parole order, but expressed to commence on 7 October 1999 and expire on 6 October 2003, since the time previously spent on parole did not count towards serving the remainder of the 10 year sentence of imprisonment imposed on 31 August 1990. The respondent remained under sentence but at large. 9 On or before 17 October 2000, the respondent pleaded guilty in the ACT Magistrates Court to a charge of possession of heroin. On that date, the Parole Board revoked the further parole order of 24 November 1999, relying on the admitted possession of heroin as a breach of that further parole order. The respondent was returned to custody in consequence of the revocation of that further parole order. On 15 November 2000, whilst the respondent remained in custody under sentence, the ACT Magistrates Court deferred passing sentence on the charge of possession of heroin. The date on which the offence charged occurred does not emerge from the material in the appeal nor is there anything to indicate whether the possession of heroin was a breach of the recognizance entered into on 7 October 1999. 10 On 23 January 2001 the Parole Board had made a further parole order (the latest parole order) expressed to expire on 17 October 2004 for the reason referred to in [8] above. On 13 February 2001 the respondent was again released on parole. 11 On 23 July 2001 the respondent was arrested for alleged breaches of parole. On 27 July 2001 the Parole Board found those breaches proved and revoked the latest parole order. 12 The respondent remained in custody pursuant to the revocation of parole on 27 July 2001 until 7 December 2001, the date of the orders absolute in the Supreme Court. 13 The orders for issue of writs of habeas corpus and certiorari were made as a consequence of a ruling of law by the Supreme Court that the sentence of three months imprisonment imposed on 7 October 1999 did not operate to revoke the respondent's parole. On that ruling it followed, as the Supreme Court further ruled, that the decisions of the Board ever since were vitiated by errors of law. It further followed, as the Supreme Court appears to have further ruled, that the term of imprisonment of ten years imposed on 31 August 1990 would have expired before 30 August 2000 or at the latest on a date prior to the date of hearing in the Supreme Court. Accordingly, the orders nisi were made absolute, and the respondent was discharged from custody. 14 It is common ground that the only question for determination on this appeal is whether the sentence of three years imprisonment imposed on 7 October 1999 should have been deemed to revoke the parole order of 31 August 1990 pursuant to s 22(2) of the former Act. It is also common ground that if the Parole Board was correct in considering that the sentence was deemed to have revoked the parole, the subsequent decisions made and the steps taken by the Parole Board in relation to the respondent's parole were lawful. 15 Contrary to the conclusion reached by the Supreme Court, we are of the view that the sentence of three months' imprisonment imposed on 31 August 1990 fell within s 22(2) of the former Act and that the respondent's parole was thereby deemed to have been revoked. 16 The sentence of three months' imprisonment, said to be "suspended", was imposed by way of an order under s 403(1) (formerly s 556B(1)) of the Crimes Act 1900 (ACT) (the Crimes Act) of the Territory. The terms of the subsection are critical. They are: "(1) Subject to this section, where a person is convicted of an offence against the law of the Territory, the court by which he or she is convicted may, if it thinks fit, by order- (a) release the person without passing sentence upon him or her upon his or her giving security, with or without sureties, by recognisance or otherwise, to the satisfaction of the court that- (i) he or she will be of good behaviour for such period as the court specifies in the order; and (ii) he or she will, during the period so specified, comply with such conditions (if any) as the court thinks fit to specify in the order, which conditions may include- (A) the condition that the offender will, during the period so specified, be subject to the supervision on probation under a person, for the time being appointed in accordance with the order; and (B)the condition that the offender will obey all reasonable directions of a person so appointed; and (C) the condition that the offender will comply with an order made pursuant to section 437; and (iii) he or she will pay to the Territory such penalty (if any) as the court specifies in the order on or before a date specified in the order or by specified instalments as provided in the order; or (b) sentence the person to a term of imprisonment but direct that the person be released, upon him or her giving a like security to that referred to in paragraph (a), either forthwith or after he or she has served a specified part of the sentence imposed upon him or her." 17 Thus whilst it may be common and convenient to refer to a sentence imposed by way of an order under s 403(1)(b) (formerly s 566B(1)(b)) as a "suspended" sentence, the term is somewhat misleading. It is not the sentence which is suspended by the making of the order under s 403(1)(b). The sentence takes effect immediately but the liability of the offender to serve the sentence by way of actual imprisonment may be regarded as suspended if and when the offender enters into the recognizance authorised by the direction for release made as part of the order. The effect of the order and direction is that, notwithstanding the sentence, the offender is to be released upon giving security, with or without sureties, by recognizance or otherwise, to the satisfaction of the court, that he or she will be of good behaviour for such period as the court specifies and that he or she will during the period specified comply with any other conditions specified in the order. Once the person has given the security to the satisfaction of the court, the person is to be released, according to the terms of the direction, either forthwith or after he or she has served a specified part of the sentence. 18 If, for whatever reason, the offender does not give the security to the satisfaction of the court (which security in the present case was to be by way of recognizance) the offender remains in custody until the security is given. Until the security is given the offender is not eligible for release in accordance with the direction. Only after the offender has given the security to the satisfaction of the court is he or she to be released, either forthwith or after serving a specified part of the sentence as directed. 19 In the present case, the respondent entered into the recognizance on the day the sentence was imposed, namely, 7 October 1999 and, from what we were told, was at large from then until taken into custody on 24 November 1999 to serve the remainder of the existing ten year sentence. 20 In our view, the words of s 403(1)(b) are plain. We agree with the judgment and the reasons of Forster J in Meehan v Lawrence (1974) 22 FLR 296 in which legislation of the Northern Territory similar to s 403(1)(b) was considered. His Honour said at 297:
"It seems to me that on its face the sentence is one of imprisonment which, for reasons which are not now relevant, had its immediate operation suspended and which, if the defendant observed the terms of his recognizance, would cease to have any effect at all at the end of that term but which, if the defendant committed a breach of the terms of his recognizance, would come wholly or partially into effect. When fixing a sentence and using the provisions of the Criminal Law (Conditional Release of Offenders) Ordinance 1971, the form of words habitually used by me is 'the sentence of the court is that you be imprisoned with hard labour for ... months but I direct that you be released pursuant to the Criminal Law (Conditional Release of Offenders) Ordinance forthwith upon your entering into your own recognizance in the sum of ... dollars to be of good behaviour for ... years.' I am informed that in the present case the learned magistrate used a similar form of words."
His Honour continued at 298: "…It is, of course, true that the sentence did not immediately result in imprisonment but it seems to me that this does not alter the essential character of it. If the learned magistrate wished simply to release the defendant upon a bond he could have done so by using the procedure under s 5(1)(a)." 21 In our view, the character of the sentence is made clear if the sentencing judge or magistrate uses the words of the section itself, as suggested by Forster J. It may be confusing to use words such as "the sentence is suspended". It may be correct to regard the liability of the offender to serve the sentence by way of actual imprisonment as "suspended" until the expiry of the period of the recognizance. However, the term "suspended" is nowhere to be found in s 403(1)(b). We note that the Crimes Act 1914 (Cth) uses the term "recognizance release order" in relation to similar provisions, a term which is more accurate than "suspended sentence". 22 Another issue raised during the appeal was about the effect of the notice given by the Parole Board on 23 November 2000 which, on one view, purported to revoke the respondent's parole. However, that notice did not purport to notify the respondent of any order made by the Parole Board. It appears to have served the useful purpose of recording the revocation of parole by the sentence of 7 October 1999 and in consequence the revised expected date of expiry of the ten year sentence. It also provided a formal basis for the Board acting on the following day to make a further parole order. 23 We were told that procedural and administrative difficulties will arise in the event of a finding that the sentence of 7 October 1999 revoked the original parole order. One such difficulty is in relation to calculation of the expiry of the sentence, since it appears that the respondent should not have been at large between 7 October and 23 November 1999. Another difficulty is that the sentencing judge should have calculated a fresh non-parole period under s 23 of the former Act. 24 We find it unnecessary to express an opinion about these matters except to draw attention to s 360 (formerly s 451) of the Crimes Actwhich needs to be applied for the purpose of calculating the eventual date of release of the respondent. We also observe that the respondent was the applicant in an allied application for leave to appeal against the severity of the sentence of three months imprisonment imposed on 7 October 1999 (A63/01) and that application is the subject of a further judgment of the Court to be given this day. 25 Accordingly, the appeal was allowed and the judgment of the Supreme Court was set aside. The Court discharged the orders nisi for issue of writs of habeas corpus and certiorari and set aside the orders absolute. The cause was remitted to the Supreme Court for execution of the judgment of the Court. 26 We gave leave for any application for costs to be made by written submissions within seven days. None was received and no order is made for the costs of the appeal. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court. Associate: Dated: 27 August 2002 Counsel for the appellant: Mr C Erskine Solicitor for the appellant: ACT Government Solicitor Counsel for the respondent: Mr R Livingston Solicitor for the respondent: Legal Aid Office (ACT) Date of hearing: 15 May 2002 Date of order: 15 May 2002 Date of Judgment: 27 August 2002
of the Australian Capital Territory
Gomez
(1974) 22 FLR 296
Appeal allowed; judgment of the Supreme Court set aside; orders nisi for writs of habeas corpus and certiorari discharged and orders absolute set aside; cause remitted to the Supreme Court for execution of the Court's judgment; no order as to costs of appeal [1], [25].