Benjamin Tupou KAIAustralian National University Tupou v Michael Lee Parker
[2011] ACTSC 180
BENJAMIN TUPOU KAIANU TUPOU v MICHAEL LEE PARKER & ANOR
[2011] ACTSC 180 (19 September 2011)
EX TEMPORE JUDGMENT
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. SCA 26 of 2011
Judge: Higgins CJ
Supreme Court of the ACT
Date: 19 September 2011
IN THE SUPREME COURT OF THE )
) No. SCA 26 of 2011
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:BENJAMIN TUPOU KAIANU TUPOU (ALSO KNOWN AS SIONE TUPOU PIO)
Appellant
AND:MICHAEL LEE PARKER and GLENN COLIN DAVIES
Respondents
ORDER
Judge: Higgins CJ
Date: 19 September 2011
Place: Canberra
THE COURT ORDERS THAT:
The appeal be upheld.
The appellant be eligible for parole after a period of one month from 19 September 2011.
The sentence of imprisonment be otherwise confirmed.
The appellant, Benjamin Tupou, was sentenced by Magistrate Lalor for an offence involving, in effect, a repetition of the offence for which he had been sentenced by Magistrate Doogan, for which she had given him an eight month prison sentence, suspended upon him entering into a good behaviour order.
The appellant entered into that good behaviour order, but did not comply with it by reason of the second conviction. Magistrate Lalor took account of all the circumstances placed before him in an appropriate way and came to the conclusion that the only just and appropriate sentence was a sentence of six months of imprisonment to be served immediately. That sentence expired on 27 July 2011.
Her Honour Magistrate Doogan would have made the present sentence cumulative upon that, but in so ordering noted that a non-parole period needed to be considered. Her Honour declined to set a non-parole period but regrettably did not set out the reasons for that decision. That is not to say that setting out reasons necessarily would lead to the same conclusion on appeal, but it is useful for a court on appeal to know what the reasons were in order to evaluate whether the reasons betray error or do not.
The question, then, is whether a non-parole period should have been ordered, granted that it is an error not to have expressed reasons for not doing so. In considering that question, there are other matters referred to by Burns J recently in William Arthur v Rachel Batterham [2011] ACTSC 158, which I have read, and I have to say, his Honour’s analysis of the situation there is certainly very instructive.
It fundamentally comes down to this: a period of non-parole to be followed by eligibility for parole enables the person so sentenced to demonstrate to the parole board, if they can, that they are a person who can be released on parole, and it gives them some incentive to conduct themselves in conformity with the conditions of that parole. If they do not do so they are returned to custody and in this Territory there is no credit for what is called “street time”. In other words, the offender has to serve the entire period of parole without re-offending in any way or breaching the terms of the parole order.
It is only under those conditions that the sentence then becomes regarded as served, and his Honour points out the value to the community in providing for that regime rather than a regime where the entire sentence is served but the offender is released without any real intervention, and certainly no subsequent supervision.
I find that consideration persuasive, particularly in this case. Although Mr Tupou has an egregious problem in offending in the way in which his record reveals, he does not seem to have offended in any other relevant way. There is a breach of the peace, for example. I do not know what that relates to, but it does not seem to have led to any criminal charge. His record consists primarily of driving offences, and that is not to diminish those offences at all, because it is a very bad record revealing, as the pre-sentence report has said, a propensity to offend which is certainly alarming.
However it does seem to me that if he is granted a non-parole period it will be up to him to convince the Sentence Administration Board that he can indeed be released on parole and will conform to the conditions of that parole. If he fails to persuade the Sentence Administration Board, he serves the entire sentence. On the other hand if he does so persuade the Board then not only does he have a chance of rehabilitating himself but the community might be spared from further offending by him after a slightly delayed period of time.
For those reasons I propose to uphold the appeal to that extent, and I would impose a non-parole period in this fashion. It is no longer open to impose a non-parole period for the cumulated period of imprisonment. The only period that remains outstanding is that imposed by Magistrate Doogan, and there is no reason why that should not commence as from today, and commencing from today I direct the appellant be eligible for parole after a period of one month from today.
That does not mean he will be granted parole at the expiration of that period, but it does mean that he will be able to apply for it. If he can persuade the Sentence Administration Board that he is a suitable candidate he may even be granted it, but I am sure that there will be quite significant conditions imposed in respect of that.
The appeal is upheld only to that extent. The sentence of imprisonment is otherwise confirmed.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.
Associate:
Date: 4 November 2011
Counsel for the Appellant: Mr A Hopkins
Solicitor for the Appellant: Darryl Perkins Solicitors
Counsel for the Respondent: Ms T Lee
Solicitor for the Respondent: Director of Public Prosecutions for the ACT
Date of hearing: 19 September 2011
Date of judgment: 19 September 2011
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