Magistrates - Appeals and review - Tasmania - Motion to review - Other matters - Review of sentence - Failure to order non-parole period - Error in law - Whether consideration of outcome of appeal against earlier sentence and aggregating non-parole periods amounted to an error in law.

Justices Act 1959 (Tas), s107(1).

Sentencing Act 1997 (Tas), ss17(2), 17(3), 17(3A), 17(6), 94.

Corrections Act 1997 (Tas), ss70, 71.

Corrections Regulations 2008 (Tas), reg22.

Director of Public Prosecutions v Williamson [2013] TASSC 6; Carr v Department of Police and Emergency Management [2009] TASSC 74; Devine v R [2003] TASSC 52; Anthony v Hibble [2004] TASSC 67, considered.

Judgment Number: [2013] TASSC 53

NORTON DUDLEY WILLIAMSON v RICHARD LANE, DANIEL ADAMS, STEPHEN HARPER

1 The applicant has moved pursuant to the Justices Act 1959, s107(1), to review an order of Magistrate S Mollard, made on 2 October 2012, whereby the learned magistrate sentenced the applicant to three months' imprisonment, cumulative to a period of imprisonment of two years' with a non-parole period of 12 months that the applicant was then currently serving. His Honour declined to make a non-parole order for reasons said by him to arise from the fact that the sentence the applicant was already serving had been the subject of an appeal to the Court of Criminal Appeal by the State on the ground of manifest inadequacy.

2 The applicant appeared before the learned magistrate on 6 August 2012 in relation to 14 charges of stealing and one charge of failing to appear. The applicant pleaded guilty to all of the stealing charges, and was found guilty of failing to appear following a defended hearing.

3 The stealing charges all involved "shop-lifting" type offences. The majority of the stolen property was recovered. The charge of failing to appear related to a failure to attend court on 30 January 2012. The applicant had received a police bail notice in respect of the stealing charges, had misplaced the notice and had missed the court date.

4 The applicant was sentenced by the learned magistrate on 2 October 2012 in respect of all matters. The applicant was then serving a sentence of two years' imprisonment imposed in this Court by Porter J on 6 August 2012 in respect of five charges of trafficking in a controlled substance and two charges of dealing with property suspected of being the proceeds of crime. Porter J's sentence was backdated to 23 July 2012 and a non-parole period of 12 months was ordered.

5 During the plea in mitigation before the learned magistrate, then counsel for the applicant told his Honour that the applicant's current release date in respect of the sentence passed by Porter J, was 22 July 2014, his earliest release date with remissions was 22 April 2014, and his earliest parole eligibility date was 22 July 2013. Counsel also indicated that the sentence passed by Porter J was the subject of an appeal by the State on the ground of manifest inadequacy and that the applicant was therefore at risk of having that sentence and those release dates extended.

6 The learned magistrate endorsed the convictions and the sentencing order on the record of proceedings in respect of each of the relevant complaints, and signed the warrant of commitment for the sentence of imprisonment he had imposed in respect of the convictions on 2 October 2012.

7 As at that date the State's appeal against the sentence of Porter J had not been heard or determined. It was ultimately heard on 27 February 2013 and the decision was handed down on 4 July 2013. The appeal was allowed, the applicant's sentence was quashed and he was sentenced to four and a half years' imprisonment with effect from 23 July 2012. It was further ordered that the applicant was not eligible for parole until he had served half of that sentence; see Director of Public Prosecutions v Williamson [2013] TASCCA 6.

8 The learned magistrate made the following observations upon sentencing the applicant:

"You're currently serving a lengthy term of imprisonment; I take that into account. If it were not for that fact the sentence I'm about to pass on you would be longer. The other relevance of the Supreme Court process is the difficulty - there are two difficulties. The first is I don't know how long a sentence to take into account because your sentence is subject to appeal so the only one that I can take into account is the one that you have got.

But the more particular difficulty is in relation to non-parole. You have a 12-month non-parole order that may or may not be upset by the Full Court (sic). In the case of a summary court sentencing somebody to an additional term of imprisonment which is what is about to happen, that summary court would normally have a duty to make a non-parole order of its own or express reasons for not making one.

The non-parole order that would be made, in your case, would be by adding something like half the sentence that's going to be added to your sentence. Now, I'm not going to do that today because I think that the uncertainty surrounding the Supreme Court situation - and I'm referring to the appeal, is such that if I made a non-parole order of 13 and a half months from the 6th of August which is what I would otherwise be inclined to do, it would be frankly completely meaningless until and unless the situation becomes more clear in relation to what you're facing in the Supreme Court.

So I'm going to decline to make a non-parole order and leave it to you or your legal representative to make an application for such an order at some stage should it become relevant and significant for me to do so. I hope by giving that indication that any prejudice that you might suffer by virtue of my not making the order will be avoided ...

So my conclusion is - and this is a sentence imposed globally on the three complaints including the failure to appear, a sentence of three months' imprisonment cumulative to the sentence that you're currently serving."

9 The notice to review sets out three grounds as follows:

"1 The learned magistrate erred in fact and/or law in declining to order a non-parole period of 1½ months in respect of the sentence imposed in circumstances where:

(a) he was inclined to make a non-parole order of one half of the sentence of imprisonment he imposed upon the Applicant;

(b) he erroneously believed in order to do so he was required to make a non-parole order of 13½ months being the combined total of the non-parole period imposed upon the Applicant by his Honour Justice Porter in the Supreme Court on the 6th day of August 2012 and the minimum non-parole period applicable to the sentence he was then imposing;

(c) he declined to do so as the sentence imposed by his Honour Justice Porter in the Supreme Court on the 6th day of August 2012 was the subject of a Crown appeal against sentence and the non-parole order applicable to that sentence may be upset;

(d) he would leave it to the applicant or his legal representative 'to make an application for such an order at some stage, should it become relevant and significant' for him to make such an order when there was in fact no mechanism by which such an application could be made to the learned magistrate.

1. The learned magistrate erred in law in holding that his discretion to order a non-parole period was hampered by the Crown appeal that was pending in respect of the sentence of imprisonment the applicant was already serving.
2. The learned magistrate erred in law in determining that the making of a non-parole order in respect of the sentence he was imposing on 2 October 2012 required the making of an order that was an aggregate of the non-parole order in respect of the sentence imposed by his Honour Justice Porter in the Supreme Court on the 6th day of August 2012 which the applicant was already serving and the non-parole period in respect of the sentence he was intending to impose."

10 The Sentencing Act 1997, s17, provides as follows:

"17 Court may bar or limit eligibility for parole

(1) This section does not apply to a sentence of imprisonment for the term of an offender's natural life.

(2) A court that imposes a sentence of imprisonment on an offender, either on the conviction of the offender or on the determination of an appeal, or, on appeal, confirms the imposition of such a sentence, may order -

(a) that the offender is not eligible for parole in respect of that sentence; or

(b) that the offender is not eligible for parole in respect of that sentence before the expiration of such period as is specified in the order.

(3) The period specified in an order under subsection (2)(b) is not to be less than one-half of the period of that sentence.

(3A) Where a court imposes a sentence of imprisonment and does not make an order under subsection (2), the offender is not eligible for parole in respect of that sentence.

(4) In exercising its discretion under subsection (2), a court may have regard to such matters as it considers necessary or appropriate and, without limiting the generality of this, may have regard to all or any of the following:

(a) the nature and circumstances of the offence;

(c) any other sentence to which the offender is subject.

(5) An order under subsection (2) forms, for all purposes, part of the sentence to which it relates.

(a) an order has been made under subsection (2)(a); or

is not eligible to be released on parole in respect of his or her sentence.

(7) A court must give reasons for making an order under subsection (2).

(8) If the whole or part of a sentence of imprisonment is suspended, only the operative sentence is to be taken into account for the purposes of this section.

operative sentence means that part of a sentence of imprisonment which has not been suspended."

11 The Corrections Act 1997, ss70 and 71, provide as follows:

Subject to section 71, a prisoner is not to be released on parole before the completion of -

(a) the non-parole period applicable to the prisoner's sentence; or

(b) a continuous period of imprisonment of 6 months -

whichever is the greater, unless, in the opinion of the Board, there are exceptional circumstances warranting the earlier release on parole of the prisoner.

71 Prisoner subject to more than one non-parole period or other minimum term

(a) a sentence of imprisonment to which a non-parole period is applicable or in respect of which the prisoner is ineligible for parole by operation of section 17(3A) of the Sentencing Act 1997; or

(b) a sentence of imprisonment to which an order under section 17(2)(a) of the Sentencing Act 1997 is applicable;

minimum term, in relation to a designated sentence, means -

(a) in the case of a sentence to which a non-parole period is applicable, that non-parole period; or

(2) If, at any time, a person is subject to 2 or more designated sentences -

(a) the minimum terms relating to those designated sentences, subject to subsections (3) and (4), are to be cumulative upon, or concurrent with, each other in like manner as the sentences to which they relate; and

(b) the completion by a person of the non-parole period applicable to a sentence to which the person is subject is not to be taken into account for the purposes of section 70 if, at the time of completion of that non-parole period, the person has not completed the minimum term relating to any other designated sentence to which the person is subject.

(3) For the purposes of subsection (2), if, at any time, a person is subject to 2 or more sentences that are to be served concurrently, being sentences to each of which, but for this subsection, a non-parole period would be applicable under section 68, those sentences are to be taken to be collectively subject to a single non-parole period.

(4) The single non-parole period referred to in subsection (3) is to be ascertained in accordance with section 68 as if the sentences to which the person is subject comprised a single sentence of imprisonment for a period equal to the total period of imprisonment to which the person is sentenced as a result of those sentences being served concurrently.

(5) If, under subsection (2), the minimum term in relation to a designated sentence is cumulative upon the minimum term in relation to another such sentence, the later minimum term is to be taken to commence upon the expiration of the earlier minimum term, notwithstanding that the earlier sentence has not been completed."

12 Regulation 22 of the Corrections Regulations 2008, provides as follows:

(1) For the purpose of section 86 of the Act, a remission of the whole or any part of a prisoner's sentence is not to -

(a) exceed 3 months if the period of imprisonment to which the remission relates is imposed after 1 January 1994; and

(b) exceed one-third of the total period of imprisonment to which a prisoner is sentenced; and

(c) operate so as to reduce the total period of imprisonment served by a prisoner to less than 3 months.

(2) Remission of sentence is not to be granted to a prisoner who is -

(a) convicted of escape or attempted escape in respect of that part of the prisoner's sentence served up to and including the day on which the escape or attempted escape was made; or

(b) sentenced to a total period of imprisonment of 3 months or less.

(3) The Director is not to grant a remission of sentence to a prisoner if that remission would operate to reduce the total period of imprisonment served by the prisoner in respect of that sentence to a period that is shorter than any non-parole period specified in an order made in respect of that prisoner under section 17(2)(b) of the Sentencing Act 1997."

13 Counsel for the applicant, Ms Cuthbertson, submitted that the combined effect of the provisions set out above is as follows:

• a person is not eligible for parole unless an order for parole eligibility is made by the court imposing the period of imprisonment; Sentencing Act s17(2), (3A) and (6);
• a court is able to specify a non-parole period in respect of a sentence but is not able to impose a non-parole period in respect of the aggregate of two or more separate sentences; Sentencing Act s17(2)(b) and (3); and see Carr v Department of Police and Emergency Management [2009] TASSC 74, per Blow J at [8];
• the minimum non-parole period that may be imposed is one-half of the period of the sentence; Sentencing Act s17(3);
• a person is not eligible to be released on parole until they have served the non-parole period applicable to their sentence or a continuous period of imprisonment for six months, whichever is greater, Corrections Act, s70;
• where a single period of imprisonment is concerned, the combined effect of s70 of the Corrections Act and reg22 of the Corrections Regulations 2008 is that where a sentence of less than nine months is imposed, "there is no occasion for a sentencing court to contemplate fixing a parole eligibility period", see Devine v R [2003] TASSC 52, per Evans J at [24];
• where two or more cumulative sentences are involved, the minimum terms (either the sentence itself or the non-parole period imposed) related to those sentences operate cumulatively to each other and must be served before a person is eligible to be released on parole; Corrections Act s71(1), (2) and (5);
• the minimum six months' period required to be served prior to release on parole relates to the continuous period of imprisonment served by a person, not each individual sentence of imprisonment imposed upon the person; Corrections Act, s70(b), and see Devine v R (supra) per Slicer J at [13];
• a court is therefore empowered and has occasion to impose a non-parole period in respect of a sentence of imprisonment of nine months or less where the person is then serving another period of imprisonment;
• a non-parole period so imposed may be as little as half the sentence and less than six months; see for example the substituted sentence imposed by Blow J (as he then was) in Anthony v Hibble [2004] TASSC 67 at [9].

14 Counsel for the respondent, Mr Nicholson, made no submissions.

15 Counsel for the applicant is quite correct, in my view, in her submission that the learned magistrate ought not to have been concerned with aggregating the non-parole period imposed by Porter J of 12 months and any non-parole period that the learned magistrate himself was concerned to impose. There is no warrant in law or logic for considering such a course.

16 In Carr v Department of Police and Emergency Management (supra), Blow J said at [8]:

"The power to make an order permitting parole is conferred by the Sentencing Act, s17. Under s17(2)(e), a court that imposes a sentence of imprisonment may order that the offender is not eligible for parole in respect of that sentence before the expiration of such period as is specified in the order. That provision empowers a judge or magistrate to specify a non-parole period in respect of a sentence. But it does not empower a judge or magistrate to impose a non-parole period in respect of the aggregate of two separate sentences. That is plainly what the learned magistrate purported to do, or attempted to do, or meant to do, on 12 May. He did not have the power to do that. That ground of appeal is made out."

17 The learned magistrate was well able to achieve the result he desired by imposing a non-parole period of half of the three months' sentence he was about to impose. In failing to do so he added a full three months, not just to the applicant's existing sentence but also to his existing non-parole period.

18 In Devine v R (supra), Evans J, at [23] - [24], observed as follows:

"23 With effect from 1 October 2002, the Sentencing Act 1997, s17, was amended by the Sentencing Amendment Act 2002 with the result that the position now is that in the absence of a court order specifying that a prisoner is eligible for parole after serving a specified period of the sentence (which period cannot be less than the greater of six months or one-half of the period of the sentence), the prisoner is not eligible to be released on parole.

24 As prisoners are not to be released on parole before the completion of a continuous period of six months' imprisonment (Corrections Act 1997, s70(b)), and they are eligible for a remission of up to three months from their sentence, then, except in the case of a cumulative sentence, there is no occasion for a sentencing court to contemplate fixing a parole eligibility period when imposing a sentence of less than nine months." (Emphasis added.)

19 In the case of a cumulative sentence, any "minimum term" will, by operation of the Corrections Act, s71(2)(a) and (5), be cumulative with the minimum term on the other earlier sentence or sentences imposed, and the later minimum term will commence on the expiration of the earlier minimum term, notwithstanding that the earlier sentence has not been completed.

20 In Devine v R at [13], Slicer J set out the history of the Corrections Act, s71, as follows:

"In 1987 (Act 7 of 1987), the Parole Act was amended to permit a court to order that a person not be eligible for parole at all or become eligible only after the expiration of a stated period. In 1989, (Act 100 of 1989), Parliament further amended the legislation to correct an anomaly whereby prisoners subject to cumulative sentences were not treated the same as those serving a single, but identical, sentence. That correction was maintained in the provisions of the Corrections Act 1997, s71. The intention of the amendment was stated by the then Attorney-General in his Second Reading Speech of 30 November 1989 to be:

'Quite clearly the anomaly discovered in Part IIIA of the Parole Act causes injustices. This can be shown by the following example: a prisoner who receives four cumulative sentences of six months each is not entitled to parole and must serve his full sentence, whereas a prisoner who receives one sentence of two years or two cumulative sentences of twelve months is eligible for parole after completing one half of that sentence.

This is quite clearly an unintended consequence of the 1987 amendments, and there already have been six prisoners whose applications for parole have been refused because they were ineligible due to the operation of section 12D(4).

The Bill overcomes the problem by eliminating from section 12A(1) the notion of the six month minimum in respect of a sentence of imprisonment and amends section 12C(1) so as to impose the six month minimum in relation to the period of imprisonment to which a prisoner is subject whether that period comprises a single sentence of imprisonment or a number of such sentences.

Parole has been accepted in most advanced communities as a valued correctional measure because it offers a hope of possible future early release to a prisoner sentenced to imprisonment. The Bill will ensure that prisoners are not denied the benefits of parole by a technical hitch in the law.'"

21 The net result of the relevant statutory provisions applied to the facts of the applicant's case is that the failure of the learned magistrate to impose a non-parole period means that upon completion of the non-parole period imposed by the Court of Criminal Appeal of 27 months from 23 July 2012, the applicant would then be required to serve the three sentences imposed by the learned magistrate before being eligible for parole.

22 This is doubtless why Evans J in Devine said "except in the case of a cumulative sentence, there is no occasion for a sentencing court to contemplate fixing a parole eligibility period when imposing a sentence of less than nine months". (Emphasis added.)

23 And it is not, of course, the case that the Sentencing Act s70 has the result that a non-parole period cannot be set in respect of a sentence of less than six months' duration. The period of six months specified in s70(b) is merely a reference to a continuous period of imprisonment that must be served before a prisoner is eligible for release on parole.

24 A non-parole period of less than six months may be set where it is appropriate to do so; see Anthony v Hibble (supra) at [6] - [9], where Blow J imposed a sentence of 12 months' imprisonment with three months suspended, and set a non-parole period of four and a half months to be cumulative upon an earlier sentence of Crawford J (as he then was) of five months' imprisonment.

25 The three grounds of appeal can be rolled up into one in my view. The learned magistrate plainly wished to impose a non-parole period of some half of the three months' sentence of imprisonment he was about to impose, but he took the view that he could not do so because he was obliged to impose an aggregate non-parole period covering both the sentence that had been imposed by Porter J and the sentence the learned magistrate was about to impose, and that he could not do that because he could not know whether the sentence imposed by Porter J would be disturbed on appeal.

26 The reality is, in summary, that it would not have been permissible for the learned magistrate to impose an aggregated non-parole period, Anthony v Hibble (supra) at [9]; that his Honour was perfectly able to impose a non-parole period of half of the three months' sentence that he was about to impose, Devine v R (supra) at [23] - [24] per Evans J, and see Anthony v Hibble (supra) at [6] - [9], and that in those circumstances the outcome of the appeal against the adequacy of the sentence passed by Porter J was entirely an irrelevant consideration.

27 It is clear that the learned magistrate erred in law in declining to order a period of parole ineligibility for the reasons he gave and that his discretion thereby miscarried, resulting in a sentence that was unfair and unjust. His Honour unintentionally but irretrievably added one and a half months to the minimum sentence he desired the applicant to actually serve.

28 Although I have reservations as to whether it was an operative error, and as such appealable in itself, the learned magistrate also erred in law in his observation that the applicant, or his legal representative, could make an application to him for a non-parole order, "at some stage should it become relevant and significant for [him] to do so". The Sentencing Act s94 could have no application I apprehend and there is no other statutory provision or relevant mechanism by which such an application could have been made. In my view, the learned magistrate was functus officio once his sentence had been handed down and perfected.

29 With that reservation, I am nonetheless satisfied that the appeal succeeds on all three grounds.

30 In view of the learned magistrate's stated desire as to the length of the appropriate non-parole period I do not see any scope for the operation of the proviso contained in s110(2)(ab) of the Justices Act.

31 In my view it is appropriate to set aside the sentence of three months' imprisonment imposed by the learned magistrate with no order made as to parole eligibility and to substitute a sentence of three months' imprisonment and order that the applicant not be eligible for parole until the expiration of one and a half months of that sentence.

32 I will hear counsel as to any further or other orders sought.