Prerogative writs - Application for order nisi for writ of certiorari - Determination of earliest date for release on parole - Applicant serving two parole terms ordered to be served cumulatively

Sentencing Act 1995 (WA), s 93(1), s 94(1), s 94(3)

Mr Raymond Warnes : State Solicitor for Western Australia

1 JENKINS J: This is an application for the grant of an order nisi for the issue of a writ of certiorari against the Hon J McGinty and Mr Raymond Warnes. The application has been brought in respect to the respondents on the basis that it is assumed that they are responsible for the determination of the release dates of Mr Duff from prison. It is unnecessary for me to consider whether this assumption is correct. I will assume that it is. On 4 July 2007 I dismissed the application in respect to O'Sullivan DCJ.

2 The test to be applied in deciding whether an order nisi ought to be granted was considered in McKay v Commissioner of Police [2006] WASC 189. Martin CJ said:

There is perhaps some discrepancy of language in the earlier authorities pertaining to the test that must be applied. For my part, I favour the view that the test that must be satisfied before a Judge, such as myself, is justified in granting an order nisi for the issue of prerogative relief, it should be expressed in terms that the applicant must discharge the onus of showing that there is an arguable case which has some prospect of success.

Indeed, I would go further perhaps than some of the earlier authorities and suggest that it would be an inappropriate exercise of the powers conferred upon such a Judge to issue an order nisi unless he or she were satisfied that the arguable case had some reasonable prospect of success. I have a firm view that the public interest requires that the limited resources of the judicial system of this State be deployed only in respect of the resolution of arguments that have at least a reasonable prospect of success, but as I say, that is a view that may not be sanctioned by prior authority and it is not a view which I bring to bear in this particular case. Indeed, for reasons that will I think become apparent, in this particular case I do not think it matters which threshold test is applied. The result is still the same [2] - [3].

3 With respect, I agree with the Chief Justice. However, as in the case of McKay, the outcome of this application does not turn on which test ought to be applied.

4 The background facts are that the applicant, Mr Colin Duff, was sentenced in the District Court on 16 December 2005 for one offence of receiving. At the time the applicant was already serving a sentence of 6 years' imprisonment which was imposed on 18 February 2005. The applicant had been made eligible for parole in respect to the earlier sentence.

5 On 16 December 2005 the applicant was sentenced to a further term of 12 months' imprisonment. It was ordered that this sentence be served cumulatively on the sentence that the applicant was already serving and he was made eligible for parole in respect to the 12 month sentence. Thus, the applicant had an aggregate sentence of 7 years' imprisonment for which he was eligible for parole.

6 Mr Duff believed, on the basis of what he was told by others, not the Judge, that because he had been made eligible for parole on the 12 month sentence he would only have to serve 6 months of that sentence on top of the 4 years' non-parole period on the earlier sentence before becoming eligible for parole.

7 Earlier this year Mr Duff received an individual management plan from the prison authorities which advised him that his earliest date for release was 4 August 2009. This indicated to him, and I think quite rightly, that the prison authorities had determined that he would not be eligible for release until he had served two years less than his total aggregate sentence; that is, 5 years' imprisonment rather than the 4 1/2 years he had understood that he was liable to serve. The prison authorities had determined that he was obliged to serve the full 12 months' imprisonment before he could be made eligible for parole. Mr Duff asserts that this decision is wrong at law.

8 For certiorari to issue, the decision sought to be quashed must have an apparent legal effect upon rights. In the present case I am prepared to proceed on the basis that the prison authorities have made a decision as to Mr Duff's eligibility date for his release, that affects his rights.

9 Another matter to dispose of is the question of delay. An application for certiorari cannot be brought more than six months after the decision said to have been made without leave of the court. The decision sought to be quashed by this application is not the judge's decision but rather the decision of the prison authorities. It is not clear to me when the prison authorities made their decision but if an extension of time is required then I would grant it as Mr Duff made his application in a timely fashion once he became aware of the prison authorities' decision as to his release date.

10 The starting point for a consideration of the merits of the application is the relevant statutory provisions. At the time Mr Duff was sentenced the Sentencing Act 1995 (WA) s 93 (1) stated:

Subject to section 94, a prisoner serving a parole term is eligible to be released on parole

(a) if the term served is 4 years or less when he or she has served one half of the term; or

(b) if the term served is more than 4 years when he or she has served 2 years less than the term.

11 Section 94(1) provided that:

In the case of a prisoner serving 2 or more parole terms

(a) the time 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 (3) or (4) those terms are to be aggregated.

12 Section 94(3) provided that:

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 concurrently with that other term.

13 It is relevant to note that the table following s 94 of the Act purported to give an example of the effect of the imposition of cumulative prison terms of 4 years and 6 years and suggested that the non-parole period for the aggregate sentence of 10 years was five years' imprisonment. That example was inconsistent with the provisions which I have just quoted.

14 Since Mr Duff was sentenced the table following s 94 of the Act has been amended so that it is now clear that the minimum term a prisoner in Mr Duff's position is required to serve is two years less than the aggregate of the accumulated sentences.

15 The provisions and table which were in effect the time Mr Duff was sentenced, were considered by the Court of Appeal in GHS v State of Western Australia [2006] WASCA 42. On the last occasion this matter was before me I went into some detail as to what was said in each of the judgments in that case. I will not repeat what I said on that occasion.

16 It is sufficient for me to say that Malcolm CJ interpreted those provisions to mean that a prisoner serving accumulated terms of imprisonment greater than four years in total was required to serve a minimum term that was two years less than the aggregate of the sentences that the prisoner had been ordered to serve. That is the interpretation of the provisions which the prison authorities have applied to Mr Duff's case.

17 Murray J came to a different view. He came to the view that Mr Duff relies upon; that is, that a prisoner in Mr Duff's position should only be required to serve the accumulated non-parole periods of the individual sentences before becoming eligible for release on parole.

18 On the last occasion I said that the third Judge of the court in GHS did not come to a view of this issue. However, I have had the opportunity to review the decision of the third judge, Pullin J. Although Pullin J was not required, on his analysis, to express a view of this particular issue, it is nevertheless clear from his decision that he was of the same view as that expressed by Malcolm CJ. Pullin J did express the view that the table following s 94 of the Sentencing Act was an error. This view of Pullin J's decision has been confirmed by my reading of a subsequent decision, Cummins v The State of Western Australia [2006] WASCA 201. Cummins is a decision of Roberts-Smith JA upon an application for leave to appeal against a sentence. The very issue which Mr Duff raises today was the proposed ground of appeal to be relied upon by Mr Cummins. Roberts-Smith JA said, in reference to the second sentence, being a sentence of 32 months' imprisonment, imposed upon Mr Cummins:

Following the imposition of the 32 month cumulative sentence on 12 April 2006, the appellant now has a current maximum release date of 12 March 2011 and a parole eligibility date of 12 March 2009.

It is submitted that the effect of the sentence imposed by his Honour has been to increase the appellant's head sentence by 32 months and to move his earliest date of eligibility for parole out by 32 months from 12 July 2006 to 12 March 2009. That submission is correct [30] - [31].

19 Then his Honour, after referring to the table as it then was following s 94, said:

The examples in the table give non-parole periods as one-half of terms or aggregate terms of more than 4 years. This is inconsistent with s 93(1)(b), which states that parole eligibility for terms of more than 4 years arises when the prisoner has served 2 years less than the term. This inconsistency is a result of a late-stage amendment to cl 20 of the Sentencing Legislation Amendment and Repeal Bill during its progress through the Legislative Council. Section 93 as originally contained in cl 20 of the Bill provided for parole eligibility where a prisoner had served one-half of their sentence, regardless of the length of the sentence. The Legislative Council saw fit to modify s 93 to its current form, to ensure that the length of time prisoners spent on parole would not exceed 2 years: see the comments of the Attorney General in 'Hansard', Legislative Assembly, Thursday 26 June 2003, at 9460; referred to in GHS v The State of Western Australia [2006] WASCA 42 per Pullin JA at [98] - [100] [34].

His Honour then considered the position of Mr Cummins and said:

The appellant's sentences are cumulative upon each other. Section 94(4) therefore requires that those terms be aggregated for the purposes of calculating the time of parole eligibility and the parole period under subs (1). Aggregation of the three sentences results in an aggregate of 7 years 2 months. It follows from s 93(1)(b) that the non-parole period that the appellant must serve is 2 years less than this aggregate, namely 5 years 2 months. The appellant has been in custody since 31 January 2004. therefore, pursuant to s 93 and s 94, the appellant will not be eligible for parole until 12 March 2009. This calculation accords with the appellant's submission that, by virtue of the instant sentence being made cumulative on his current sentences, he will effectively serve the whole of the 32 months (see also GHS v The State of Western Australia (supra)) [37].

20 Having regard to the authorities of GHS v The Queen and Cummins v The Queen, I am of the view that the matter that Mr Duff raises in this application has already been decided. The interpretation of the relevant sections of the Sentencing Act that has been applied by the court is that contained in the decision of Malcolm CJ in the case of GHS v The Queen.

21 Consequently, this application does not have any reasonable prospects of success. The applicant has failed to show that there is an arguable case which has some prospect of success, or even an arguable case at all. The application will be dismissed.