Bain, Michael Barry v The Queen

[1983] FCA 102

Re: MICHAEL BARRY BAIN
And: THE QUEEN
No. NT G21 of 1981
Customs Act

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Muirhead J.
Toohey J.
Jenkinson J.

CATCHWORDS

Customs Act - import and possession of prohibited drug - whether minimum non-parole period duly proportioned to head sentence and entitlement to remission - purpose of release on parole - severity of sentence - weight given to time spent in custody - imposition of cumulative sentences

Customs Act 1901 (Cth) ss. 233B, 233B(1)(b), 233B(1)(ca)

Commonwealth Prisoners Act 1967 (Cth) ss. 3(2), 4(1)(a), 5, 19

Criminal Law and Procedure Act (N.T.) s.56

Parole of Prisoners Act (N.T.) s.4(3)(a)

Prisons (Correctional Services) Act (N.T.) s.92

HEARING

DARWIN

#DATE 27:5:1983

ORDER

1. The appeal be allowed by substituting for the minimum non-parole period of 3 1/2 years fixed by the Supreme Court of the Northern Territory of Australia a period of 2 1/2 years and that otherwise the appeal be dismissed.

JUDGE1

On 14 September 1981 the appellant was convicted of four offences under the provisions of the Customs Act 1901. The offences were these :

(1) Being knowingly concerned in the importation into Australia of prohibited imports to which s.233B of the Customs Act 1901 applies, contrary to para. 233B(1)(d) of the Act;

(2) Possession without reasonable excuse of prohibited imports to which s.233B of the Customs Act applies, contrary to para. 233B(1)(ca) of the Act;

(3) Importing into Australia prohibited imports to which s.233B of the Customs Act applies, contrary to para. 233B(1)(b) of the Act;

(4) Importing into Australia prohibited imports to which s.233B of the Customs Act applies, contrary to para. 233B(1)(b) of the Act.

All offences related to heroin.

The appellant was sentenced to the following terms of imprisonment :
(i) On count one, 12 months
(ii) On count two, no penalty
(iii) On count three, 18 months
(iv) On count four, 3 years.
The sentences were cumulative one upon the other. No penalty was imposed in respect of count two, the facts giving rise to that conviction being those involved in count one. The learned sentencing judge directed that the appellant not be eligible for parole until he had served 31/2 years of his sentence.

The appellant appeals against those sentences. One ground of appeal was abandoned. Those that remain may be summed up in this way.
1. The court erred in imposing cumulative sentences.
2. The court failed to take sufficient account of the time spent by the appellant in custody before sentence.
3. The court proceeded on an incorrect principle of law in directing that the appellant serve 31/2 years imprisonment before being eligible for parole, in that the date upon which he will be eligible is within 2 months of the date that he would in any event be released after remissions for good behaviour.
4. The sentences and minimum non parole period were manifestly excessive.

In the view of the court it was not shown that his Honour erred in imposing cumulative sentences. While the offences may be seen as part of an overall pattern of behaviour, they were imposed for quite separate transactions, seen by the learned sentencing judge as "the result of careful planning, showing a high degree of sophistication and acting in concert with other people".

The court is not persuaded that his Honour failed to take sufficient account of the time spent by the appellant in custody prior to sentence. The period in question, nearly 7 months, was referred to expressly by his Honour when imposing sentence and there i no reason to think that he failed to give it due weight.

Nor is the court persuaded that the sentences were in all the circumstances manifestly excessive. The total period of 51/2 years, added to which is the period of nearly 7 months spent in custody, may be said to be high when compared with other sentences for somewhat comparable sentences imposed by the Supreme Court of the Northern Territory. But although his Honour was presented with a schedule of sentences imposed by that court since 1 January 1978 relating to the importation or possession of heroin, such a schedule can be no more than a guide since it cannot reflect the many considerations which led to the imposition of the particular sentences and the particular non-parole periods specified. It must be remembered that the fourth count was one attracting a maximum penalty of $100,000 or imprisonment for a period not exceeding 25 years or both. This was because the quantity of heroin in question exceeded the traffickable quantity with the consequences already referred to unless the court was satisfied that the offence was not committed for any purpose related to the sale of or other commercial dealing in those narcotic goods. The appellant did not give evidence with a view to meeting the onus cast upon him and he does not now challenge the conclusion reached by his Honour that he was not satisfied in terms of the relevant provision.

What has caused this court most concern is the fact that the minimum non-parole period fixed by the learned sentencing judge comes into effect only 2 months before the date on which the appellant will, in the ordinary course, be entitled to be released by reason of remissions of sentences.

Section 4(1) of the Commonwealth Prisoners Act 1967 provides, inter alia, that where a court of a Territory sentences a federal offender to a term of imprisonment the court shall apply any law of the Territory prescribing the circumstances in which a minimum non-parole period is to be fixed. Section 5 empowers the Governor-General to direct that a person who is serving a term of imprisonment for an offence against a law of the Commonwealth, in respect of which a minimum term of imprisonment has been fixed, be released from prison on parole at a time after the expiration of that minimum term. Section 3(2) of the Act reads a reference to the Governor-General as a reference to the Governor-General acting with the advice of the Attorney-General. Counsel were unable to tell the court whether in the case of a federal offender (as the appellant is) an application for parole would be dealt with by the Parole Board of the Northern Territory for the purposes of enabling the Attorney-General to advise the Governor-General. But it was accepted that this court should approach the matter on the basis that the Parole Board or some other body or person would entertain an application by the appellant for release on parole to enable s.5 to be given effect to.

Section 19 of that Act provides that the provisions of a law of the Territory relating to the remission of sentences apply in like manner to a federal offender.

In the Northern Territory the remission of sentences is dealt with by ministerial action pursuant to s.92 of the Prisons (Correctional Services) Act or by executive action pursuant to s.56 of the Criminal Law and Procedure Act. Though neither provision specifies any particular formula whereby remissions are calculated, it was accepted by counsel that a remission period of 1/3 is appropriate in the case of the appellant as in the case of other offenders.

In consequence, subject to remission, the appellant will be released after serving 44 months of the terms of imprisonment imposed upon him and he will be eligible for parole after serving 42 months of those terms. In neither case is the period spent in custody before sentence taken into account.

In Rich and Bourke v. R. (unreported decision of the Full Court of the Federal Court delivered on 7 September 1981) Muirhead, Keely and Fisher JJ. considered the function of the parole system, in the course of which their Honours said :

"The parole scheme may be said to have several objectives. But undoubtedly one aim is to safeguard the community by ensuring that prisoners upon release will be subject to supervision and returned to life in the community with some prospects of successful integration within that community.
. . .
There would be little if any incentive for such a prisoner (that is to say a person whose entitlement to remission is very close to release under the parole provisions) to apply for parole release in view of the sanctions he would face if he offended again, a situation which is not in the community interest".

The court stressed the desirability of a non-parole period being duly proportioned to the head sentence and of it not being so close to the remission date as to make it unlikely that a prisoner would seek parole.

This court considers it desirable to adhere to the principles expressed in Rich and Bourke v. R. Those principles are of particular application in the present case where the appellant has no previous convictions and the offences were in large part the result of his heroin addiction.

A court is not required to specify a minimum nonparole period if it "considers that the nature of the offence or offences and the antecedents of the offender do not warrant the specifying of the lesser term of imprisonment" (Parole of Prisoners Act s.4(3)(a)). The learned sentencing judge did impose a lesser term so that it must be assumed that his Honour considered such a course to be warranted. In those circumstances we are of the view that for the minimum non-parole period to serve any useful function it should not equate or be so close to the remission period as to make it unlikely that parole would be sought. In saying that we do not overlook the submission of counsel for the Crown that his Honour was entitled to fix a minimum period which sufficiently reflected his view of the seriousness of the offences.

But we think that such a period must give effect to the place of parole within the sentencing process. It may be thought somewhat unsatisfactory that the fixing of a minimum non-parole period (a judicial act) should be so influenced by the remission period which itself is the result of ministerial or executive action. But the fact is that the remission provisions of the Northern Territory apply to the appellant and his Honour was and this court is obliged to have regard to them. In our view the period prescribed by his Honour does not in the circumstances provide the opportunity for parole enjoined by the legislature.

In the circumstances we are of the view that the appeal should be allowed to the extent that for the minimum non-parole period of 3 1/2 years fixed by the court there should be substituted a period of 2 1/2 years.