Begg v Bartlett

[2004] WASCA 232

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   BEGG -v- BARTLETT [2004] WASCA 232

CORAM:   BARKER J

HEARD:   2 SEPTEMBER 2004

DELIVERED          :   15 OCTOBER 2004

FILE NO/S:   SJA 1017 of 2004

MATTER                :Justices Act 1902 (WA)

and

Application for the Correction of Sentence for Complaint Nos MH 3107­8 of 2003 in the Court of Petty Sessions at Mandurah

BETWEEN:   ROY McLENNAN BEGG

Appellant

AND

TODD DAMIEN BARTLETT
Respondent

ON APPEAL FROM:

Jurisdiction              :  COURT OF PETTY SESSIONS

Coram   :MR R LAWRENCE SM

File Number            :  MH 3107-8 of 2003

Catchwords:

Appeal against making of parole eligibility order - Application of s 89 of the Sentencing Act 1995 (WA) - Turns on own facts

Legislation:

Sentencing Act 1995 (WA), s 6(2)(b), s 85, s 89

Result:

Appeal allowed

Category:    B

Representation:

Counsel:

Appellant:     Mr S M Murphy

Respondent:     In person

Solicitors:

Appellant:     State Solicitor

Respondent:     In person

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Mill v R (1988) 166 CLR 59

Newcastle City Council v GIO General Ltd (1997) 149 ALR 623

Thompson v R (1992) 8 WAR 387

Wongawol v R (1998) 101 A Crim R 350

BARKER J: 

Introduction

1. On 5 January 2004, the respondent was convicted by a Magistrate in a Court of Petty Sessions, on complaints numbered 4091 ‑ 3 of 2003.  On complaint number 4091/03, driving under the influence, the respondent was sentenced to 6 months' imprisonment (backdated to 8 December 2003) and was disqualified from holding or obtaining a motor driver's licence for life (concurrent).  On complaint number 4092/03, being the owner of a vehicle drove the vehicle while there was not a valid licence granted or issued for the vehicle, the respondent was fined $100 and ordered to pay $38 costs.  On complaint number 4093/03, driving without a licence, the respondent was sentenced to 3 months' imprisonment (concurrent and backdated to 8 December 2003) and was disqualified from holding or obtaining a motor driver's licence for 9 months (cumulative).

2. Two days later, on 7 January 2004, the respondent again appeared in a Court of Petty Sessions and was convicted on complaints numbered MH 3107 ‑ 8.  On complaint number MH 3107/03, driving without a licence, the respondent was sentenced to 9 months' imprisonment (concurrent) and was disqualified from holding or obtaining a motor driver's licence for 18 months (cumulative).  On complaint number MH 3108/03, driving under the influence, the respondent was sentenced to 9 months' imprisonment (cumulative on the 6 months' imprisonment imposed on 5 January 2004) and was disqualified from holding or obtaining a motor driver's licence for life.  The Magistrate also made an order that the respondent be eligible for parole.

3. When sentence was passed on 7 January, the Magistrate made the following comments:

   "I am satisfied that you should be sentenced to 9 months imprisonment with respect to each [of offences MH 3107/03 and MH 3108/03].  And I am satisfied that in relation to the driving under the influence … that that should be cumulative upon that [sentence] which you are currently serving.  You are disqualified for life on that charge and you are disqualified for 18 months cumulative on the driving under suspension charge.

   In relation to the totality sentence, that is you will now be sentenced to 15 months imprisonment because of personal circumstances, that is you are relatively a young person, and it is my view that you should be eligible for parole." (Emphasis supplied)

4. On 2 September 2004, I granted the appellant leave to appeal against the Magistrate's decision to make the parole eligibility order on the ground that the Magistrate did not have the power to make the order under s 89(1) and (2) of the Sentencing Act1995 (WA).

Parole eligibility

1. Sections 89(1) and (2) of the Sentencing Act 1995 relevantly provide:

   "(1)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.

   (2)A parole eligibility order must not be made if the fixed term or the aggregate of the fixed terms is less than 12 months, except where the offender, at the date of the sentence, is serving or has yet to serve a parole term imposed previously."

2. Section 85 of the Act defines "parole term" as meaning a term to which a parole eligibility order applies, and "parole eligibility order" as meaning an order under s 89 of the Act.

3. It appears from the Magistrate's sentencing comments on 7 January 2004, that he came to the conclusion that the respondent could be made eligible for parole under s 89(1) and (2) because the aggregate of the fixed terms of imprisonment imposed on 5 January (6 months) and on 7 January 2004 (9 months) was 15 months, being a term not less than 12 months.

4. When the Magistrate sentenced the respondent on 7 January 2004, it, no doubt, seemed fair to him to take into account, for the purposes of s 89(1) and (2), the fixed terms of imprisonment imposed by the Court of Petty Sessions two days earlier, on 5 January 2004. The three offences of which the respondent had been convicted on 5 January were all driving‑related offences, as were the two offences for which the Magistrate sentenced the respondent on 7 January 2004. If all five offences had been the subject of sentencing in the one court on either 5 January or 7 January 2004, the sentencing Magistrate would have been entitled under s 89(1) and (2) to aggregate the fixed terms, determine that they were not less than 12 months and order that the respondent be eligible for parole, if such an order seemed appropriate.

5. The difficulty, however, is that the five offences were not the subject of sentencing in the one court at the one time.  Rather, three were dealt with by way of conviction and sentence in a Court of Petty Sessions on 5 January and the other two were dealt with by way of conviction and sentence on 7 January in another Court of Petty Sessions. 

6. The appellant submits that, properly construed, the power under s 89(1) to make an order that an offender be eligible for parole, as affected by s 89(2), only permits the Court sentencing an offender on a particular occasion to take into account and aggregate a number of fixed terms if the fixed terms are those proposed by that Court in the course of sentencing the offender for offences of which that Court has just convicted the offender. Thus, the appellant says it is not possible for a Court sentencing an offender for particular offences to take into account fixed terms imposed by another Court on an earlier occasion, as the Magistrate did on 7 January in this case.

7. While, as I have suggested, one can understand, in circumstances such as those involving the respondent, that the Magistrate might have considered it fair to aggregate the fixed terms of the five driving‑related sentences where the sentences were imposed within two days of each other, the question would arise, if such a process of aggregation were open to a Court, whether it would also be open to a Court, in sentencing an offender to a fixed term, to take into account any number of earlier sentences of fixed terms that the offender may be serving at the time of sentencing. This prospect requires a close examination of the terms of s 89(1) and (2) to ascertain exactly what a Court is empowered to do in particular circumstances.

8. Section 89(1) empowers a Court to make an order that an offender be eligible for parole in circumstances where the Court is "sentencing an offender to a fixed term". Two things should be noticed about this provision: first, it speaks to the act of "sentencing an offender"; secondly, it refers to the singular - "fixed term".

9. However, s 89(2) also speaks to the power of the Court to make a parole eligibility order. It provides that such an order should not be made "if the fixed term or the aggregate of the fixed terms" is less than 12 months, except in the other circumstance mentioned. Section 89(2) thereby assumes a power to aggregate fixed terms when exercising the s 89(1) power.

10. Thus, while s 89(1), on the face of it, contemplates that a parole eligibility order may only be made in respect of a single fixed term sentence, s 89(2) implicitly permits the Court "sentencing an offender" to regard the aggregate term of imprisonment if fixed terms are, in fact, imposed by the Court in respect of a number of offences on the same day.

11. It seems to me to follow from the terms of s 89(1) and (2) that it is only where a Court is "sentencing an offender" on a number of offences and imposes more than one fixed term in respect of those offences, that the Court may aggregate those fixed terms for the purpose of determining whether it has the power to make a parole eligibility order. In other words, where a Court is sentencing an offender on one or more offences and imposes more than one fixed term, then it may aggregate the fixed terms and, if the aggregate is not less than 12 months, the Court may make an order that the offender be eligible for parole under s 89(1).

12. It follows that what a Court cannot do when sentencing on one or more offences is take into account fixed terms for which the offender was earlier sentenced by another Court, which the offender is still serving.

13. This means that, in the particular circumstances of this case, it was not open to the Magistrate on 7 January 2004 to aggregate the fixed term he then imposed with the fixed term imposed by the Court on 5 January for the purpose of deciding whether a parole eligibility order could be made under s 89(1).

Conclusion and order

1. Because the fixed terms of imprisonment imposed by the Magistrate on 7 January 2004 did not exceed 12 months, it was not open to the Magistrate to make a parole eligibility order in respect of those sentences.  The Magistrate erred in taking into account the sentence of a 6‑month fixed term of imprisonment imposed by the Court on 5 January 2004 and aggregating it with the fixed term he imposed on 7 January in order to find that in aggregate the fixed terms were not less than 12 months.

2. For the sake of completeness, I should add that neither of the exceptions provided for in s 89(2) existed in the respondent's case. On 7 January 2004 the respondent was serving a fixed term of imprisonment of 6 months, imposed on 5 January and backdated to 8 December 2003. The respondent was not eligible for parole in respect of this term of imprisonment. Consequently, the fixed term of 6 months' imprisonment the respondent was serving on 7 January when he was sentenced in respect of complaints MH 3107/03 and MH 3108/03 was not a "parole term" for the purposes of s 89(2) of the Act. Additionally, the respondent did not have "yet to serve a parole term imposed previously".

3. I should note that I do not consider that my decision affects the applicability of the "totality principle" of sentencing referred to in s 6(2)(b) of the Sentencing Act1995.  It remains open to the Court in an appropriate case to take into account the sentence imposed in relation to a prior offence in determining sentence, as well as the fact that in some cases, such as the present, it may not be open to the Court to make a parole eligibility order if a fixed term sentence of less than 12 months' imprisonment is imposed.

4. I would allow the appeal.  I will hear from counsel and the respondent as to what orders are now appropriate.