Burke v The Queen

[1981] HCA 55

HIGH COURT OF AUSTRALIA

Gibbs C.J. , Stephen, Murphy, Aickin and Wilson JJ.

BURKE v. THE QUEEN

(1981) 148 CLR 146

14 October 1981

Criminal Law (N.S.W.)

Criminal Law (N.S.W.)—Sentence—Imprisonment—Release on parole—Revocation of parole—Charge and sentence to further imprisonment during parole period—Date of commencement of second sentence—Whether remission for part of earlier sentence served before release on parole.

Decision

THE COURT delivered the following judgment:-
The Court does not consider that this is a proper case in which to grant special leave to appeal against conviction. So far as sentence is concerned, the applicant, who was convicted on two counts, was sentenced to two years' imprisonment with hard labour on the first count and to ten years' imprisonment with hard labour on the second count. (at p147)

2. In pronouncing judgment, the learned trial judge, his Honour Judge Thorley, said: "This sentence will be served concurrently but will date from the expiration of your existing sentence. I specify a parole period which expires not before 7 December 1988." This Court would not interfere with the length of the sentence imposed by his Honour Judge Thorley. However, it appears that the learned judge, in specifying what he describes as the "parole period", proceeded on what can now be seen to be a misconception. He thought that the existing sentence imposed on the applicant would expire by remission on 7 December 1983, and fixed five years from that date as the date on which the applicant would become eligible for parole. In the light of the decision of this Court in Smith v. Corrective Services Commissioner (N.S.W.) (1980) 147 CLR 135 which had not been given either at the date on which Judge Thorley imposed his sentence or at the date of the judgment of the Court of Criminal Appeal, it now appears that the existing sentence will, subject to good behaviour, expire by remission at an earlier date, namely, 19 May 1980. (at p147)

3. The learned trial judge appears to have related the "parole period", as he called it, to the date on which the remission period in respect of the earlier sentence would have expired and, if that is so, had the decision in Smith v. Corrective Services Commission (N.S.W.) then been available, it appears that he would have fixed 19 May 1985 rather than 7 December 1988, as the date on which the applicant would become eligible for parole. (at p148)

4. The Court has been referred to the observations of Street C.J. in Reg. v. Burr* an unreported decision given on 25 September 1981, in which the Court of Criminal Appeal of New South Wales dealt with the general question that has arisen as a result of the decision in Smith v. Corrective Services Commission (N.S.W.). The Court is in respectful agreement with the observations made by Street C.J. in relation to this question and commends the attitude taken by Mr. Court Q.C. in recommending that the Crown should act in accordance with the suggestions of Street C.J. However, since the present case is before the Court, it seems right in this instance for the Court to deal with the matter, rather than to leave it to the executive to act on the observations of Street C.J. (at p148)

5. Since there appears to be no power under s. 6 of the Criminal Appeal Act 1912 (N.S.W.), as amended, to remit the matter to Judge Thorley, and since Mr. Court suggests no reason why this Court should not dispose of the matter, we propose to vary the minimum period to be served before the applicant becomes eligible for parole, in accordance with what we infer was the intention of Judge Thorley. (at p148)

6. The order of the Court will therefore be: Refuse the application for special leave to appeal against conviction. Extend time to apply for special leave to appeal against sentence, grant special leave to appeal and allow the appeal. In lieu of the order of the Court of Criminal Appeal, grant leave to appeal against sentence, and order that the non-parole period specified in respect of the term of imprisonment imposed by the sentence be varied by substituting "19 May 1985" for "7 December 1988".

*Street C.J. said in Reg. v. Burr:
"The Court has been informed that there are many other cases which could be affected by the decision in Smith v. Corrective Services Commission (1980), 147 C.L.R. 135. These are cases of prisoners who have been released to parole which has subsequently been revoked and in a second sentencing hearing a new non-parole date has been fixed after taking into account the pre-existing remission release date. Looking at the entirety of these cases, the significance in point of law of whether or not the point was taken, or whether or not an appeal is current, should have little practical attraction to the pesons who are affected. There may be difficulties standing in the way of many such persons of bringing any successful appeal.
The effect on many current sentences of the decision in Smith v. Corrective Services Commission is clearly a matter to which the consideration of the executive government should be invited. It is inevitable that in the second sentencing hearing in a case falling within the category to which these observations are directed, relevance would have been attached to the estimated pre-existing remission release date in determining the new non-parole period. (at p149)

Orders

Application for special leave to appeal against conviction refused.

Extend time in which to apply for special leave to appeal against sentence.

Application for special leave to appeal against sentence granted.

Appeal allowed.

Order of the Court of Criminal Appeal of New South Wales set aside and in lieu thereof grant leave to appeal against sentence, and order that the non-parole period specified in respect of the term of imprisonment imposed by the sentence be varied by substituting "19 May 1985" for "7 December 1988".
The time to elapse between the estimated pre-existing remission release date and the newly stated non-parole date is an objective period. As the 'pre-Smith' estimates of pre-existing remission release dates were later than in law they should have been, then there would appear to be a sound basis for commending to the executive government that remedial action be taken by the exercise of the Crown prerogative. This could be achieved by considering the release on licence of the persons affected as at the date when they might have hoped to be considered for parole if the correct remission release date, as known in the light of Smith's Case, had been placed before the sentencing judge.
Release on licence is of course entirely the prerogative of the Crown and falls wholly outside the jurisdiction of this Court. At the same time, a policy of even-handed and consistent treatment of all of the persons affected can, it seems, be achieved by the exercise of the prerogative and consideration of release on licence in anticipation of the consideration of release on parole which would otherwise have to await the expiry of a non-parole date. It should be practicable to approach the granting, as well as the conditioning, of such licences upon precisely the same basis as parole is granted and conditioned."