R v Duff & Ors [1999] WASC 124

Sentencing Act 1995 (WA), s37, s85, s88

Commencement date of partially cumulative portion of sentence specified

1 MALCOLM CJ: This is an application by the Crown for correction of a sentence under s 37 of the Sentencing Act 1995 ("the Act"). On 27 October 1998 Brandon McLeod Duff was sentenced with Shannon Lee and Steven Mayes after a plea of guilty in respect of a number of offences. Counts 1 to 5 on the indictment related to offences committed with Shannon Lee and Steven Mayes in respect of which Mr Duff was sentenced to a total of 9 years' imprisonment.

2 There was an offence of aggravated burglary, the subject of count 6, in respect of which Mr Duff was sentenced to imprisonment for 3 years with a direction that 1 year of that sentence be served cumulatively upon the other sentences with the remaining 2 years to be served concurrently. Section 88(3) of the Sentencing Act 1995 provides:

"If at the time an offender is sentenced to a fixed term -

(a) the offender is serving or has yet to serve another fixed term imposed previously; or

(b) the offender is then also sentenced to serve another fixed term,

(c) the fixed term is to be served cumulatively on the other fixed term; or

(d) the fixed term is to be served partly cumulatively on the other fixed term."

3 In this case the order was made was under s 88(3)(d). Section 88(4) provides:

"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."

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.