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[2014] WASC 338
Supreme Court of WA
2014-09-25
Beech J
Original judgment source is linked above.
1 This application raises the question of whether a court sentencing an adult who is already under a detention order made under the Young Offenders Act 1994 (WA) has power to order that the term of imprisonment imposed be cumulative on the detention order.
2 For the reasons that follow, in my opinion no such power exists. While I accept that this reflects an unintended legislative gap, I consider that it is a gap that only Parliament can fill.
4 On 19 April 2013, the defendant was sentenced to a term of 3 years' detention, backdated to commence on 5 April 2013.
6 On 1 April 2014, the defendant was at Banksia Hill Detention Centre. On that day, he assaulted a youth custodial officer.
7 On 27 May 2014, the defendant was transferred to Hakea Prison as a remand prisoner. On 3 June 2014, he was transferred to Casuarina Prison.
8 On 15 July 2014, the defendant was sentenced to a term of 1 month imprisonment for the offence of assaulting a public officer committed on 1 April 2014. The magistrate imposed a term of imprisonment of 1 month, expressed to be cumulative on the detention being served by the defendant.[1] The term was said to be taken to have begun on 15 July 2014. An order was made for parole eligibility.
9 On 14 August 2014, the defendant was transferred from Casuarina Prison back to Banksia Hill Detention Centre.
10 The central issue on this application is whether the magistrate had the power to order that the term of imprisonment be cumulative on the period of detention.
11 The plaintiff, the Commissioner for Corrective Services (the Commissioner), is aware of a view expressed by the Chairman of the Supervised Release Review Board to the effect that a court does not have any power to order a period of imprisonment to be cumulative upon a period of detention. The Commissioner is also aware of cases where a sentencing magistrate or judge has imposed a sentence of imprisonment expressed to be cumulative upon a sentence of detention imposed under the Young Offenders Act.
12 In the above circumstances, the plaintiff has applied for a declaration under s 49 of the Sentence Administration Act 2003 (WA), on the basis that a doubt or difficulty has arisen in respect of the sentences imposed upon the defendant.
13 Section 49 of the Sentence Administration Act provides:
(1) If a doubt or difficulty arises to which this section applies and neither this Act nor the Sentencing Act 1995 nor the Sentencing Legislation Amendment and Repeal Act 2003 makes adequate provision for it, the CEO may apply in a summary way to a judge of the Supreme Court for an order resolving the doubt or difficulty.
(2) On such an application the judge may make any order he or she considers just and for that purpose may make a declaration as to
(a) the length of any term, any part of a term, or any parole period; or
(b) any date relevant to a sentence of imprisonment or to the parole or release of a prisoner; or
(c) the manner in which the Board or the CEO is to determine such matters.
(3) This section applies to doubts or difficulties as to
(a) the effect of any sentence of imprisonment, including the date it commences, how it is served in relation to other such sentences, when it ends, and when it has been or has been deemed to have been served; or
(b) any matter relating to parole, including the date when a prisoner is eligible to be released on parole, the parole period applicable in any case and the effect of the suspension or cancellation of parole; or
(c) the term to be served by a prisoner who escapes from lawful custody,
irrespective of when the sentence was imposed.
14 That section has been construed to mean that the CEO can apply under s 49 if the application of the legislative scheme is ambiguous for whatever reason, including ambiguous statutory language or a gap in the legislative scheme.[2]
15 For the reasons below, I am satisfied that the power in s 49 is enlivened. Doubts and difficulties exist in relation to matters referred to in s 49(3)(a) and s 49(3)(b).
16 Resolution of this application requires consideration of provisions of several Acts: the Sentencing Act 1995 (WA), the Sentence Administration Act 2003 (WA) and the Young Offenders Act 1994 (WA). I start with the substantive provision that is to be construed: s 88 of the Sentencing Act.
17 Section 88 of the Sentencing Act empowers a court to make an order for cumulation of sentences. That section provides:
(1) An offender sentenced to a fixed term is to serve that term concurrently with any other fixed term that he or she is serving or has yet to serve, unless the sentencing court makes an order under subsection (3).
(2) An offender sentenced at the one time to one or more fixed terms is to serve those terms concurrently, unless the court makes an order under subsection (3).
(3) 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 concurrently with the other fixed term.
(4) If under subsection (3)(d) a court orders that a term is to be served partly concurrently with another fixed term, the court must specify the period of the other fixed term that is to be served before the partly concurrent 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.
(5) An offender sentenced to life imprisonment is to serve that sentence concurrently with any other term that he or she is serving or has yet to serve.
term means a term of imprisonment imposed on an offender by a court as a sentence, whether a fixed term or life imprisonment, but does not include -
(a) detention under a sentence imposed under section 279(5)(b) of The Criminal Code; or
(b) indefinite imprisonment.
19 The critical issue in this application is whether a detention order under the Young Offenders Act amounts to a 'term', and thus to a 'fixed term', within the definition in s 85(1) when inserted in s 88(3).
20 The defined words 'term' and 'fixed term' are used in other sections within pt 13 of the Sentencing Act.
21 Section 89 provides that a court sentencing an offender to a fixed term may order that the offender be eligible for parole in respect of that term by making a parole eligibility order.
22 Section 93 governs the timing of release when a person is serving a parole term. A parole term is a term to which a parole eligibility order applies.
23 Section 94 applies to a prisoner who is serving two or more parole terms. In essence, it governs how the time when the prisoner is eligible to be released on parole and the parole period are to be calculated. Section 94(1) to s 94(4) provide as follows:
(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 (3) or (4) those terms are to be aggregated.
(2) If under this section the matters referred to in subsection (1) are not to be calculated by reference to the aggregate of 2 or more parole terms, the matters are to be calculated in respect of each of the 2 or more parole terms separately.
(3) 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.
(4) 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
(a) it is to be served concurrently with that other term or partly concurrently with it; or
(b) the other term was imposed before the commencement of Part 2 Division 4 of the Sentencing Legislation Amendment and Repeal Act 2003.
24 The Sentence Administration Act is to be read with the Sentencing Act.[3] Expressions in the Sentence Administration Act have the same definitions as in the Sentencing Act, in particular in pt 13 of the Sentencing Act, unless otherwise defined in the Sentence Administration Act.[4]
25 Section 6 of the Sentence Administration Act provides:
(1) Unless this section provides otherwise or an order is made under section 87(d) or 88(3) of the Sentencing Act 1995, a term, other than indefinite imprisonment, begins on the day it is imposed, or if the prisoner is not then in custody, on the day he or she is arrested under a warrant issued in respect of the sentence.
(2) If a term is cumulative on one or more other terms then that term begins on the earliest date on which the prisoner could be released in relation to the last to be served of those other terms, whether or not the release would otherwise be under
(a) a parole order; or
(b) a recognizance release order, or a parole order, made under the Crimes Act 1914 of the Commonwealth.
26 Section 7(2) of the Sentence Administration Act provides:
(2) A prisoner who has 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, partly concurrent or cumulative with one another;
(b) secondly, subject to sections 94 and 95A of the Sentencing Act 1995 and subsection (3), the nonparole periods of those that are parole terms are to be served according to whether those parole terms are concurrent, partly concurrent or cumulative with one another;
(c) thirdly, subject to sections 94 and 95A of the Sentencing Act 1995 and subsection (3), unless and until released on parole, the balance of any parole terms after the end of any non-parole periods are to be served
(i) cumulatively if the terms are cumulative;
(ii) concurrently if the terms are concurrent or partly concurrent.
27 Subsection (4) provides that if while serving a fixed term a prisoner is sentenced to serve another fixed term, other than a fixed term order to be served partly concurrently with another term, service of the former is suspended if necessary so that the terms can then be served in the order required by subsection (2).
28 Division 8 of pt 7 of the Young Offenders Act deals with custodial sentences. In that division, a clear distinction is drawn between imposing a term of imprisonment under pt 13 of the Sentencing Act and sentencing an offender to detention. By s 118(1), if the statutory penalty for an offence includes imprisonment and the court dealing with the offender decides to impose a custodial sentence, the court may impose a term of imprisonment under pt 13 of the Sentencing Act, or may sentence the offender to a term of detention. A young person is to serve a term of imprisonment in a detention centre and not a prison, unless a direction is made under s 118(4) or s 178.
29 If the court sentences the offender to a term of imprisonment, the Sentencing Act and the Sentence Administration Act, with any necessary changes, apply to and in respect of the sentence imposed.[5]
30 Section 121 deals with the minimum period before a young person can be released from detention. The effect of the section is that an offender must remain in custody for 50% of the term unless, in relation to a sentence of detention of more than 12 months, the court sets a different minimum period.
31 Section 122(1) provides:
When, on the same occasion, a court imposes 2 or more sentences of detention that the offender is required to commence serving at different times, the sentences are to be regarded, for the purposes of section 121, as one sentence for a term commencing when the offender is first required to commence serving one of the sentences and ending upon the expiry of the sentence that is last to expire.
32 Section 123 relates to the determination of the earliest release day and the order of service of multiple sentences for detention for an offender who is serving a sentence of detention cumulatively on another sentence of detention. The section is in the following terms:
(1) This section applies if a sentence of detention imposed on a person (the second sentence) is to be served cumulatively upon another sentence of detention (the first sentence) and section 122 does not provide for one earliest release day for both sentences.
(2) In determining whether a person has been in custody under a sentence for the minimum period required before the offender can be released, time served in custody after the second sentence is imposed counts -
(a) if the earliest release day for the first sentence has not been reached, as service under that sentence until the earliest release day for that sentence is reached;
(b) after the earliest release day for the first sentence has been or is reached, as service under the second sentence until the earliest release day for the second sentence is reached.
(3) Once the earliest release day has been reached for each sentence for which there is an earliest release day, time served in custody counts as service under the first sentence until that sentence has been served, so far as it is required to be, and after that, as service under the second sentence until that sentence has been served, so far as it is required to be.
33 Section 46A of the Young Offenders Act provides that, to the extent that that Act does not provide for a matter that is provided for in the Sentencing Act, the latter Act applies to the sentencing of a young person (with an exception in relation to pt 5 of the Sentencing Act, which is immaterial in this case).
34 Section 50B applies when a person is found guilty of an offence committed when under 18, and is 18 years or older at the time of sentencing.
(2) Subject to the Sentencing Act 1995 the court dealing with the offender must dispose of the matter by sentencing the offender under that Act, and that Act and the Sentence Administration Act 2003 apply to and in respect of the sentence imposed.
36 Part 8 of the Young Offenders Act governs supervised release orders in relation to detention.
37 A supervised release order cannot be made before the earliest release date, calculated in accordance with s 121, has been reached: s 133(1)(b).
38 A supervised release order runs until the end of the term for which the offender would be liable to be detained if no supervised release order was made: s 134.
39 Section 135 provides:
(1) A supervised release order may relate to more than one sentence, in which case the order runs for as long as the offender would be liable to be detained if there were no supervised release order.
(2) The order can only be made if the earliest release day for each sentence to which the order relates has been reached.
In broad summary, the search is for the intention of Parliament expressed and embodied in the legislation. The starting point is the text of the statute. The text is the surest guide to legislative intention. The language of the statute should be interpreted taking into account its context, including any general purpose or policy of the relevant provisions that may be discerned. The consequences of an interpretation, and any perceived improbability of result, may be capable of assisting in choosing between constructional choices that are open on the language of the statute. The statute should be construed as a whole.
In Commissioner of Taxation v Consolidated Media Holdings Ltd, French CJ, Hayne, Crennan, Bell and Gageler JJ emphasised the centrality of the text in statutory construction:
'This court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text [Alcan (NT) Alumina Pty Ltd v Cmr of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at 46 [47]; [2009] HCA 41]. So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself.'
Martin CJ recently made observations to like effect in The Wilderness Society of WA (Inc) v Minister for Environment.
A legislative purpose, discerned from the text and extrinsic material, assists in choosing between constructional choices that are open on the language of the statute; it cannot sustain a construction that is not available as a meaning of the language of the text.
The application of the rules of construction involves the identification of a statutory purpose, which may appear from an express statement in the relevant statute, by inference from its terms and by appropriate reference to extrinsic materials. The purpose of a statute is not something which exists outside the statute. It resides in its text and structure, albeit it may be identified by reference to rules of construction. (footnotes omitted)
41 In some cases, the courts have read a legislative provision as if it contained additional words or it omitted words. Three conditions, identified by Lord Diplock in Wentworth Securities Ltd v Jones,[8] are relevant to whether that is appropriate:
(1) the court must be able to identify the precise purpose of the provision(s) in question;
(2) the court must be satisfied that the drafter and Parliament inadvertently overlooked an eventuality that must be dealt with if the provision is to achieve its purpose; and
(3) the court must be abundantly sure of the substance of the words that Parliament would have used had the deficiency been detected before enactment.[9]
42 In Taylor v The Owners Strata Plan No 11564[10] French CJ, Crennan and Bell JJ said:
The question whether the court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgment of matters of degree. That judgment is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision. It is answered against a construction that fills 'gaps disclosed in legislation' or makes an insertion which is 'too big, or too much at variance with the language in fact used by the legislature'. (footnotes omitted)
43 Satisfaction of these three conditions is not, in itself, sufficient to sustain reading additional words into a provision. The task remains one of construction of the words the legislature has enacted. Any modified meaning must be consistent with the language in fact used by the legislature.[11] If the legislature 'uses language which covers only one state of affairs, a court cannot legitimately construe the words of the section in a tortured or unrealistic manner to cover another set of circumstances'.[12]
44 Even when Lord Diplock's three conditions are met, 'the court may be inhibited from interpreting a provision in accordance with what it is satisfied with the underlying intention of Parliament: the alteration of the language of the provision may be too farreaching'.[13]
45 This suggests that, in the end, the three conditions may be in the nature of guidelines to be considered in the process of statutory construction in accordance with conventional construction techniques, giving appropriate weight to text, context, object and consequences.
46 Statutory texts enacted by the same legislature are to be construed so far as possible to operate in harmony and not in conflict.[14]
47 In Trajkoski v Director of Public Prosecutions (WA),[15] Buss JA explained the approach to be taken in construing multiple statutory enactments:
(a) where two or more statutory enactments comprise an overlapping legislative scheme, the enactments should be construed accordingly; and
(b) the court should endeavour to construe interrelated statutes so as to produce a rational, sensible, efficient and just operation, in preference to an inefficient, conflicting or unjust operation.
48 That approach has particular significance when the bills for the Acts are introduced together and assented to on the same day.[16]
49 The legislative provisions relevant to this application engage these principles. The Sentencing Act and the Sentence Administration Act are to be read together.[17] These Acts are, in substance, part of a legislative package introduced and enacted at the same time.[18] The Sentence Administration Act 2003 replaced the Sentence Administration Act 1995. The Young Offenders Act was described by the Attorney General in the Second Reading Speech for the Sentencing Act as part of earlier legislative reforms that the Sentencing Act and Sentence Administration Act complement.[19]
50 A definition is not to be construed in isolation from the operative provision(s) in which the definition is used. Rather, the operative provision is to be read by inserting the definition into the provision, and the provision then construed.[20]
51 On the submissions of the parties, there are three possible constructions relating to the powers of a court sentencing an adult who is already under a detention order made under the Young Offenders Act:
(1) the sentencing court has power under s 88(3) of the Sentencing Act to order that the term of imprisonment then to be imposed be cumulative on the detention order;
(2) the sentencing court has no power under s 88(3), but has a power to order cumulation under the common law, such power not being excluded by the Sentencing Act; or
(3) if neither (1) or (2) is established, the court has no power to order cumulation of the term of imprisonment.
52 At the hearing, senior counsel for the Commissioner said that the Commissioner was neutral between the possible constructions. In the written submissions, the Commissioner sought to articulate the arguments available to support each position, in order to assist the court to resolve the constructional difficulty that arises.
53 The defendant submits that the court has no power to order cumulation of a term of imprisonment on a detention order. Given that counsel for the defendant adopted that position, the Commissioner's oral submissions were directed to advancing the arguments in support of the contrary contention, that power to order cumulation exists.
54 The Commissioner's submissions identified persuasive arguments for construing s 88(3) of the Sentencing Act widely, so as to encompass a power to order imprisonment cumulative on detention. Those arguments include textual considerations, matters of legislative history, the absence of express conferral of power to cumulate sentences of detention in the Young Offenders Act, and the unlikelihood that Parliament would have intended that there be no power to order cumulation in the circumstances. I will consider these arguments in more detail, before explaining my conclusion that, on consideration of the legislative scheme as a whole, the language of part of the relevant legislative scheme is intractably inconsistent with a wide construction of s 88(3).
The arguments for a wide construction of s 88(3) of the Sentencing Act
55 I begin with the text of the relevant provisions. The task is to insert the definition of 'term' into the defined words 'fixed term' in s 88(3), and then to construe s 88(3). The argument for a wide construction of s 88(3) relies on a wide interpretation of the definition of 'term', so as to encompass a sentence of detention. The language of the definition of 'term' in s 85 is that it 'means a term of imprisonment imposed on an offender by a court as a sentence...'. Plainly, the definition of 'term' encompasses a term of imprisonment under pt 13 of the Sentencing Act. The question is whether it is limited to that.
56 The Sentencing Act provides for the imposition of sentences of imprisonment under pt 13. The Sentencing Act has very broad application to all persons convicted of an offence, subject only to the exceptions in s 3(2) and s 3(3) of the Sentencing Act. Section 3(2) makes the application of the Sentencing Act subject to s 46 and s 46A of the Young Offenders Act in the case of a person who is a young person as defined in that Act.
57 The Young Offenders Act allows for imprisonment under the Sentencing Act, or for a detention order. The Young Offenders Act creates a dichotomy between a term of imprisonment and a sentence of detention.
58 Section 88(3) of the Sentencing Act does not refer, in terms, to detention orders. The absence of reference to detention is not necessarily decisive. The question is the weight to be given to that in construing the language of s 85 and s 88 of the Sentencing Act. As the Commissioner submits, as a matter of ordinary language, a period of involuntary detention in a youth detention centre is capable of being encompassed within the words 'term of imprisonment'. One available meaning of a 'term of imprisonment' is a period of time in involuntary custody as a punishment for an offence. That meaning encompasses both imprisonment under pt 13 of the Sentencing Act, and detention under the Young Offenders Act.
59 Further, the Commissioner points to the language of the express exclusion of detention under a sentence imposed under s 279(5)(b) of the Criminal Code (WA) from the definition of 'term'. The Commissioner submits, correctly, that if term of imprisonment within the meaning of the definition of 'term' encompassed only imprisonment under pt 13, there would have been no need to exclude detention under a sentence imposed under s 279(5)(b). On the other hand, the weight to be given to that consideration must take into account that something may be excluded out of an abundance of caution.
60 Next, the Commissioner points to the legislative history. I accept the Commissioner's submission that there is longstanding statutory and common law power to impose cumulative sentences. At common law, there is a power to make a term of imprisonment cumulative.[21]
61 In Western Australia, s 20 of the Criminal Code as originally enacted, and until it was repealed on 4 November 1996, provided, in effect, a power to order that sentences involving deprivation of liberty take effect cumulatively. Thus, s 20 encompassed orders that a sentence of imprisonment be served cumulatively upon a sentence of detention; that terms of imprisonment be served cumulatively; and that sentences of detention be served cumulatively.
62 The Commissioner also submits that s 123 assumes, but does not confer, a power of a court to order cumulation of sentences of detention. When the Young Offenders Act was enacted on 13 March 1995, s 20 of the Criminal Code applied, supplying the source of power to order cumulation.
63 In summary, before the introduction of the Sentencing Act, courts had full powers to order cumulation of sentences of detention, imprisonment or both.
64 Section 20 of the Criminal Code was repealed as part of the legislative package that introduced the Sentencing Act.[22]
65 The Commissioner submits that in those circumstances, it is unlikely that Parliament would have intended to remove the power to order cumulation of a term of imprisonment on a sentence of detention. Certainly, there is nothing in the Sentencing Act, or its context, to indicate an intention to narrow the court's sentencing powers in this or any other respect. In the Second Reading Speech, the Attorney General described the package of Bills as relevantly, consolidating existing sentencing provisions and providing an increased range of sentencing options.[23] In the Second Reading Speech for the Sentencing (Consequential Provisions) Act 1995, the Attorney General said that the Bill repeals 'those parts of the Criminal Code which contained provisions now provided for in the Sentencing Bill'.[24]
66 However, caution is needed in approaching the question of Parliamentary intention in this way. While I am satisfied that, in enacting s 88(3) of the Sentencing Act and repealing s 20 of the Criminal Code, Parliament did not make a conscious choice to remove the power which then existed to order cumulation of a term of imprisonment on a sentence of detention, in my view that is not the crucial question. Rather, the intention of Parliament, in the relevant sense, is to be found in the legislation it enacted, construed in the light of its purpose and context.
67 The Commissioner also points to the absence of a provision expressly empowering an order that one sentence of detention be cumulative on another sentence of detention, submitting that that supports the wider reading of s 88(3) of the Sentencing Act. That power existed, through s 20 of the Criminal Code, when the Young Offenders Act was enacted.
68 I accept, as do all the parties to this application, that, one way or another, a court has power to order that a sentence of detention be cumulative on another sentence of detention. Section 123 regulates how cumulative sentences are served. In these circumstances a construction of the statutory scheme that meant that there is now no power to order that a sentence of detention be cumulative on another detention would not reflect the evident intention of Parliament.
69 There are three potential sources of a power to order cumulation of sentences of detention: s 88(3) of the Sentencing Act; s 123 of the Young Offenders Act; and the common law.
70 Power to make sentences of detention cumulative on each other could be found in s 123 of the Young Offenders Act. However, that would involve construing that section as having changed its effect in this respect when the Sentencing Act was enacted and s 20 of the Criminal Code was repealed. This may be thought to be unusual,[25] but this consideration is not of determinative significance.
71 Alternatively, power to make sentences of detention cumulative on each other may be found in the common law. The Sentencing Act is not a code. It is not intended to be exhaustive of the powers and principles applicable to sentencing. Common law sentencing principles are intended to continue to apply unless expressly or impliedly excluded.[26] For example, neither parity nor general deterrence is referred to in the Sentencing Act, but it is well established that they apply to sentencing in a Western Australian court.[27]
72 As I have said, at common law a sentencing court has power to make a term of imprisonment cumulative. Absent a contrary statutory intention, the same is true of a court ordering a sentence of detention.
73 There is nothing in the Young Offenders Act which indicates an intention to exclude a common law power of cumulating sentences of detention. Section 123 of the Young Offenders Act clearly contemplates that sentences of detention may be ordered to be served cumulatively. It does not identify the source of the power. There would be nothing inconsistent with s 123, or other provisions of the Young Offenders Act, in the court having power at common law to order that sentences of detention be served cumulatively.
74 The third possibility is that s 88(3) of the Sentencing Act was intended to replace s 20 of the Criminal Code and, like the latter section, to encompass sentences of detention.
75 In my view, given the availability of alternative sources of power to order cumulation of one sentence of detention on another, the absence of any other express power to do so provides only very limited support for the wider construction of s 88(3).
76 Finally, the Commissioner submits that a construction of the legislation so that there is no power to order cumulation is unlikely to have been intended by Parliament. As Blue J said in R, JM v Police[28], if courts had no power to impose cumulative sentences in these circumstances, there would be very little discouragement to a person who is in detention from committing a second lesser offence on the basis that the sentence for the second offence could not be made cumulative upon the sentence being served. I accept that this is a relevant consideration in favour of a wide reading of s 88(3).
77 In my view, consideration of pt 13 of the Sentencing Act as a whole militates against the wider construction of s 88(3).
79 In looking at pt 13 outside of s 88, I cannot identify any provision where 'term' and 'fixed term' should be construed as encompassing a sentence of detention under the Young Offenders Act. In short, that is because other provisions in pt 13 of the Sentencing Act operate in a sphere covered by a provision of the Young Offenders Act, or are irrelevant to detention under the Young Offenders Act.
80 Section 86 of the Sentencing Act precludes a sentence of 6 months or less, with specified exceptions. The application of that section to a young person is excluded by s 118(2) of the Young Offenders Act.
81 Section 87 of the Sentencing Act makes provision for taking into account time previously spent in custody. Section 119 of the Young Offenders Act makes like provision.
82 Section 89 of the Sentencing Act empowers a court to order that the offender be eligible for parole. A person sentenced to detention is not to be made eligible for parole; rather they can be released under a supervised release order under pt 8 of the Young Offenders Act.
83 Section 93 of the Sentencing Act governs the earliest date on which a prisoner serving a parole term is eligible to be released on parole. Again, that has no application to an offender sentenced to detention. For such an offender, the minimum period before the offender can be released on a supervised release order is governed by s 121 of the Young Offenders Act.
84 Section 94 of the Sentencing Act makes provision for aggregation of two or more parole terms in certain circumstances. Section 122 of the Young Offenders Act makes (more limited) provision for aggregation of sentences of detention in certain circumstances.
85 The upshot is that there is nothing in the balance of pt 13 to support the adoption of the wider definition of 'term' and 'fixed term' when those words are inserted in other sections, apart from s 88, within pt 13. To the contrary, when those words are inserted in, for example, s 87 and s 89, they should not be given the wider meaning as encompassing sentences of detention.
87 In my view, the language and structure of the machinery provisions, by which orders for cumulation are given effect in a way that accommodates the prospect of early release on supervised release or parole, creates a fatal obstacle to the wide reading of s 88(3) of the Sentencing Act.
88 The Young Offenders Act on the one hand, and the Sentencing Act and Sentence Administration Act on the other hand, create distinct, comprehensive and internally coherent schemes providing for:
(a) a minimum period to be served before release, on supervised release or parole as the case may be;
(b) the aggregation of multiple sentences, whether of imprisonment or detention; and
(c) the order in which multiple sentences are served, taking into account the rules for early release through supervised release or parole as the case may be.
89 These provisions seem to me to be an element of the statutory scheme of which s 88 of the Sentencing Act is an integral part. The provisions in the Sentencing Act and Sentence Administration Act give effect to and provide for the working out of orders for cumulation.
90 In that light, in assessing whether the wide construction of s 88(3) is to be adopted, attention should be directed to the operation of these provisions of the Sentencing Act and Sentence Administration Act if that wide construction of s 88(3) is adopted.
91 On a wide construction of s 88(3), under which a detention order is a 'term', s 6(2) of the Sentence Administration Act would operate to mean that the term of imprisonment begins on the earliest date on which the prisoner could be released under the detention order. The general language of s 6(2) would accommodate the situation in which the earlier 'term' was a detention order. It would not matter that the release was not under a parole order. That is clear from the words 'whether or not' in s 6(2).
92 Thus a wide construction of s 88(3) does not give rise to any difficulties on the question of when the term of imprisonment begins.
93 However, significant difficulties arise in relation to the question of the order of service of the term of imprisonment and the order of detention.
94 Section 7 governs the order of service of two or more fixed terms. On the wide construction, the earlier detention order and the subsequent term of imprisonment are both fixed terms. Section 7(2)(a) dictates that a prisoner who has to serve two or more fixed terms serves, first, any term that is not a parole term. A parole term is defined as a term to which a parole eligibility order applies. A sentence of detention is not a parole term; a parole eligibility order cannot be made in relation to a sentence of detention. Thus, on a straightforward reading of the language of s 7(2), inserting the relevant definition, the effect of s 7(2)(a) is to require that a prisoner serve the detention order first. That does not accommodate the prospect of early release from detention under a supervised release order. Moreover, that result would be in direct conflict with s 6(2), because s 6(2) says that the sentence of imprisonment commences on the earliest date on which the offender can be released under the sentence of detention.
95 Senior counsel for the Commissioner accepts, rightly in my opinion, that unless this difficulty can be overcome, s 88(3) of the Sentencing Act cannot be read as encompassing sentences of detention.[29]
96 Senior counsel for the Commissioner sought to overcome this difficulty by submitting that s 7(2) could be construed by reading into certain definitions, when used in s 7(2), additional words to accommodate the application of the section to detention. The definition of 'parole term' could be amended to add 'or a sentence of detention'. The definition of 'nonparole period' could be amended by adding 'or, in the case of a term of detention under the Young Offenders Act, the period that the prisoner has to serve before he or she can be released under a supervised release order'. With these insertions, the Commissioner submits s 7 would operate in a coherent and sensible fashion in relation to both sentences of imprisonment with parole, and sentences of detention.
97 For the reasons that follow, I do not accept that s 7 of the Sentence Administration Act can be construed in the way articulated on behalf of the Commissioner.
98 That proposed construction involves a very substantial departure from the language of the relevant legislative provisions. Section 4(1) of the Sentence Administration Act makes the definition of 'parole term' and 'fixed term' in pt 13 of the Sentencing Act applicable to the Sentence Administration Act. Thus, the language of the legislation requires the insertion of the definition of 'fixed term' and 'parole term' into s 7 of the Sentence Administration Act. The proposed construction requires unacceptably radical recasting of the text. This can be seen by setting out the effect of the proposed construction, with the additions shown in bold:
(2) A prisoner who has to serve 2 or more fixed terms is to serve those terms in this order:
(a) firstly, those that are not parole terms or a sentence of detention under the Young Offenders Act are to be served according to whether they are concurrent, partly concurrent or cumulative with one another;
(b) secondly, subject to sections 94 and 95A of the Sentencing Act 1995 and subsection (3), the nonparole periods or, in the case of a sentence of detention under the Young Offenders Act, the period that the offender has to remain in custody before he or she can be released under a supervised release order of those that are parole terms or a sentence of detention under the Young Offenders Act are to be served according to whether those parole terms or a sentence of detention under the Young Offenders Act are concurrent, partly concurrent or cumulative with one another;
(c) thirdly, subject to sections 94 and 95A of the Sentencing Act 1995 and subsection (3), unless and until released on parole, the balance of any parole terms or sentence of detention under the Young Offenders Act after the end of any nonparole periods or, in the case of in the case of a sentence of detention under the Young Offenders Act, the period that the offender has to remain in custody before he or she can be released under a supervised release order are to be served
(i) cumulatively if the terms are cumulative;
(ii) concurrently if the terms are concurrent or partly concurrent.
99 This is reinforced by consideration of multiple sentences of detention. On the proposed construction of s 88(3) of the Sentencing Act and s 7 of the Sentence Administration Act, multiple sentences of detention would engage s 7 of the Sentence Administration Act. But multiple sentences of detention are expressly regulated by s 121, s 122 and s 123 of the Young Offenders Act. It could not have been intended that these are competing regimes for the regulation of multiple sentences of detention. Consequently, senior counsel for the Commissioner was driven to accept that a further exception to the statutory language would need to be implied: that s 7 operates subject to the relevant provisions of the Young Offenders Act.[30]
100 In my view, these considerations demonstrate that s 7 of the Sentence Administration Act cannot be construed in the way proposed, and thus cannot be construed consistently with a wide reading of s 88(3) of the Sentencing Act.
101 I accept that the matters emphasised by the Commissioner provide significant support for a broader reading of s 88 of the Sentencing Act. Nevertheless, in the end, in my opinion that construction requires too substantial a rewriting of s 7 of the Sentence Administration Act. To my mind, the required insertions into s 7 (including terms used in that section and defined elsewhere) involves making 'an insertion that is too big or too much at variance with the language in fact used by the legislature'.[31] The language of s 7, with definitions inserted, 'covers only one state of affairs' and it would not be legitimate to construe the words in 'a tortured and unrealistic manner to cover another set of circumstances'.[32]
102 In my view, to adopt the wider construction of s 88(3) of the Sentencing Act, and the proposed construction of s 7 of the Sentence Administration Act would be for the court to intrude into the legislative function. The legislative scheme has what, I am satisfied, is an unintended gap. Only Parliament can provide a solution to that.
103 While of lesser significance, in my view consideration of the question of aggregation provides further reinforcement for these conclusions. Parliament has made specific provision for accumulation of multiple sentences of imprisonment and for multiple sentences of detention. Section 122 of the Young Offenders Act provides for the aggregation of multiple sentences of detention. Section 94 of the Sentencing Act provides for aggregation of multiple parole terms. The provisions set out detailed rules which are similar but not identical.
104 There is no provision relating to aggregation of a term of imprisonment with a sentence of detention.
105 In the absence of a statutory rule about aggregation, parole and supervised release would, in effect, occur concurrently, notwithstanding an order for cumulation. A person under a cumulative sentence of detention and term of imprisonment could only be released if he or she was given both a supervised release order, permitting the release from detention, and a parole order, permitting release from imprisonment. When and if released, the time spent under both orders would be effectively served concurrently.
106 This would mean that, unlike the express provisions in s 122 of the Young Offenders Act and s 94 of the Sentencing Act, there is no aggregation of a cumulative sentence. That may seem at odds with Parliament's intention, so far as it has been expressed. In any event, whether, and in what circumstances, a parole term and a sentence of detention should be aggregated or served concurrently after release, seems to me a matter in respect of which there are policy choices to be made. Those choices are matters for Parliament. One might have expected to see specific provisions regulating whether and in what circumstances a parole term can be aggregated with a sentence of detention. For these reasons, in my opinion s 88(3) of the Sentencing Act does not encompass sentences of detention.
107 I turn to whether there is power under the common law.
(a) at common law there is a power to order cumulation; and
(b) common law sentencing principles apply unless expressly or impliedly excluded by statute.
109 The question is whether an exercise of common law power to order cumulation of a term of imprisonment can be given effect in a way that accommodates, and is consistent with, the provisions of the Sentencing Act and the Sentence Administration Act.
110 An analysis of when a term of imprisonment, ordered to be cumulative upon the sentence of detention, would begin demonstrates that this is not possible.
111 Section 6 of the Sentence Administration Act governs when a term begins. The general rule, provided for in s 6(1), is that with identified exceptions, a term begins on the day it is imposed. The identified exceptions are:
(a) if s 6(2) provides otherwise;
(b) an order is made under s 87(d) of the Sentencing Act; or
(c) an order is made under s 88(3) of the Sentencing Act.
112 In the situation with which we are concerned, no order can be made under s 88(3) because, by hypothesis, the offender is not serving another fixed term because the sentence of detention is not within the definition of fixed term. Section 87(d) relates to a different situation which is presently immaterial. That leaves only s 6(2).
113 Section 6(2) applies if 'a term is cumulative on one or more other terms'. When it applies, it gives effect to the order for cumulation by providing that the term now imposed begins on the earliest date on which the prisoner could be released in relation to the last to be served of the other terms. By hypothesis, however, in the situation with which we are concerned the term to be imposed is not cumulative on another 'term', because it is cumulative on a sentence of detention, and a sentence of detention is not a term.
116 It is difficult to identify the justification for departing from the statutory direction in the Sentence Administration Act that words and expressions in that Act have the same definitions as in the Sentencing Act. The Commissioner appeared to suggest that the justification lay in finding that Parliament intended not to derogate from the common law power to accumulate and intended to make an exercise of that power effectual. In my view there is no sufficient foundation for such a view of s 6(2). I am satisfied that a common law power to order a term of imprisonment to be cumulative on a sentence of detention is inconsistent with the Sentencing Act and the Sentence Administration Act. Thus, in my opinion, the common law power to order cumulation is impliedly excluded by the Sentencing Act and the Sentence Administration Act.
117 For these reasons, in my opinion, there is no power to order that a term of imprisonment be cumulative on a sentence of detention.
118 The parties agreed that, if I came to that view, the following declarations should be made:
(1) the defendant's sentence of imprisonment commenced on 15 July 2014;
(2) the defendant was eligible for release on parole in respect of the sentence of imprisonment on 29 July 2014;
(3) the sentence of imprisonment ended on 14 August 2014; and
(a) the defendant is eligible for release on a supervised release order in respect of the sentence of detention on 4 October 2014; and
(b) the sentence of detention ends on 4 April 2016.
119 I would make those declarations. I will hear from the parties as to costs.
[1] Affidavit of Mr Bennett, annexure CB2.
[2] Chief Executive Officer of the Department of Corrective Services v Jackson [2009] WASCA 51 [8].
[6] Curtin University of Technology v Woods Bagot Pty Ltd [2012] WASC 449 [34] [41].
[7] Re Cock; Ex parte Diano [2014] WASC 63 [29] [33].
[8] Wentworth Securities Ltd v Jones [1980] AC 74, 105 106.
[9] Inco Europe Ltd v First Choice Distribution [2000] UKHL 15; [2000] 1 WLR 586, 592; Newcastle City Council v GIO General Ltd [1997] HCA 53; (1997) 191 CLR 85, 113; Taylor v The Owners Strata Plan No 11564 [2014] HCA 9; (2014) 88 ALJR 473 [39].
[12] Newcastle City Council (113); Taylor [39].
[14] Commissioner of Police v Eaton [2013] HCA 2 [98].
[15] Trajkoski v Director of Public Prosecutions (WA) [2010] WASCA 119; (2010) 41 WAR 105 [50] [52].
[16] See Pearce DC and Geddes RS, Statutory Interpretation in Australia (7th ed, 2011) [3.39].
[18] Parliamentary Debates, Legislative Assembly, page 4254.
[19] Parliamentary Debates, Legislative Assembly, page 2454.
[20] Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216 [84], [103]; Epic Energy (Pilbara Pipeline) Pty Ltd v Commissioner of State Revenue [2011] WASCA 228; (2011) 43 WAR 186 [62], [150], [218].
[21] R, JM v Police [2012] SASCFC 58 [13], [27], [31] [33], [35]; R v Cutbush (1867) LR 2 QB 379, 382; R v Greenberg (No 2) [1943] 1 KB 381, 383.
[22] Sentencing (Consequential Provisions) Act 1995 (WA), s 26.
[23] Western Australia, Parliamentary Debates, Legislative Assembly, 25 May 1995, 4260.
[24] Western Australia, Parliamentary Debates, Legislative Assembly, 25 May 1995, 4262.
[25] cf R v Lavender [2005] HCA 37; (2005) 222 CLR 67, 80.
[26] Longbottom v The State of Western Australia [2008] WASCA 203; (2008) 38 WAR 396 [33] [34]; The State of Western Australia v Wallam [2008] WASCA 117 (S) [24]; Ward v The State of Western Australia [2011] WASCA 172 [78] [79]; Beins v The State of Western Australia [No 2] [2014] WASCA 54 [45].
[27] See the cases in the preceding footnote.
(2014) 88 ALJR 473
(2010) 41 WAR 105
(2004) 218 CLR 216
(2011) 43 WAR 186
(2008) 38 WAR 396
(2009) 239 CLR 27
(1997) 191 CLR 85
(2005) 222 CLR 67