Commonwealth Director of Public Prosecutions v Wallace
[2011] WASC 286
•21 OCTOBER 2011
COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS -v- WALLACE [2011] WASC 286
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2011] WASC 286 | |
| Case No: | MCS:11/2011 | 10 MAY 2011 | |
| Coram: | MARTIN CJ | 21/10/11 | |
| 27 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| A | |||
| PDF Version |
| Parties: | COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS STEPHEN JOHN WALLACE |
Catchwords: | Criminal Law and Procedure Sentencing Application for correction of sentence per s 37 of the Sentencing Act 1995 (WA) Commonwealth prisoner transferred from New South Wales to Western Australia Prisoner released on parole and subsequently sentenced for State offence Parole revoked per s 19AQ of the Crimes Act 1914 (Cth) New non-parole period fixed per s 19AR(3) of the Crimes Act 1914 (Cth) Whether 'street time' to be counted Which State law applicable according to s 19AA(2) of the Crimes Act 1914 (Cth) Whether s 23 of the Transfer of Prisoners Act 1983 (Cth) applicable Effect of s 71 of the Sentence Administration Act 2003 (WA) Refusal to exercise discretion to recall sentence under s 37 of the Sentencing Act 1995 (WA) |
Legislation: | Corrections Act 1986 (Vic), s 77 Crimes Act 1914 (Cth), s 19AA, s 19AS, s 19AA(1), s 19AA(2)(b), s 19AQ, s 19AA(2), s 19AR(3), s 16E, s 19AH, s 19AY, s 19AQ(1), s 19AQ(2), s 19AQ(5) Judiciary Act 1903 (Cth), s 68 Sentence Administration Act 2003 (WA), s 67, s 71, s 71(1) Sentencing Act 1995 (WA), s 37, s 37(1) Transfer of Prisoners Act 1983 (Cth), s 23 |
Case References: | Corruption and Crime Commission v Wallace [2010] WASC 390 Corruption and Crime Commission v Wallace [No 2] [2011] WASC 73 Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 Director of Public Prosecutions (Cth) v WJB [2000] SASC 364; (2000) 78 SASR 44 Mercanti v The Queen [2011] WASCA 120 Putland v The Queen [2004] HCA 8; (2004) 218 CLR 174 Traegar v Pires de Albuquerque (1997) 18 WAR 432 Williams v The King [No 2] (1933) 50 CLR 551 X v The Queen (1993) 69 A Crim R 130 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Applicant
AND
STEPHEN JOHN WALLACE
Respondent
Catchwords:
Criminal Law and Procedure - Sentencing - Application for correction of sentence per s 37 of the Sentencing Act 1995 (WA) - Commonwealth prisoner transferred from New South Wales to Western Australia - Prisoner released on parole and subsequently sentenced for State offence - Parole revoked per s 19AQ of the Crimes Act 1914 (Cth) - New non-parole period fixed per s 19AR(3) of the Crimes Act 1914 (Cth) - Whether 'street time' to be counted - Which State law applicable according to s 19AA(2) of the Crimes Act 1914 (Cth) - Whether s 23 of the Transfer of Prisoners Act 1983 (Cth) applicable - Effect of s 71 of the Sentence Administration Act 2003 (WA) - Refusal to exercise discretion to recall sentence under s 37 of the Sentencing Act 1995 (WA)
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Legislation:
Corrections Act 1986 (Vic), s 77
Crimes Act 1914 (Cth), s 19AA, s 19AS, s 19AA(1), s 19AA(2)(b), s 19AQ, s 19AA(2), s 19AR(3), s 16E, s 19AH, s 19AY, s 19AQ(1), s 19AQ(2), s 19AQ(5)
Judiciary Act 1903 (Cth), s 68
Sentence Administration Act 2003 (WA), s 67, s 71, s 71(1)
Sentencing Act 1995 (WA), s 37, s 37(1)
Transfer of Prisoners Act 1983 (Cth), s 23
Result:
Application dismissed
Category: A
Representation:
Counsel:
Applicant : Mr D W L Renton
Respondent : Mr L M Levy SC
Solicitors:
Applicant : Director of Public Prosecutions (Cth)
Respondent : Alana Padmanabham
Case(s) referred to in judgment(s):
Corruption and Crime Commission v Wallace [2010] WASC 390
Corruption and Crime Commission v Wallace [No 2] [2011] WASC 73
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Director of Public Prosecutions (Cth) v WJB [2000] SASC 364; (2000) 78 SASR 44
Mercanti v The Queen [2011] WASCA 120
Putland v The Queen [2004] HCA 8; (2004) 218 CLR 174
Traegar v Pires de Albuquerque (1997) 18 WAR 432
Williams v The King [No 2] (1933) 50 CLR 551
X v The Queen (1993) 69 A Crim R 130
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- MARTIN CJ:
Introduction
1 The Commonwealth Director of Public Prosecutions (the Commonwealth Director) applies for orders pursuant to s 37 of the Sentencing Act 1995 (WA) recalling an order which I made on 8 March 2011 imposing a sentence of imprisonment upon Stephen John Wallace (the respondent) on the ground that the sentence did not accord with the law. The order which I made came about as a consequence of the conviction and sentence of Mr Wallace for contempt of court, which had the effect of revoking the parole which he had been granted in respect of certain Commonwealth offences. Although the application filed by the Commonwealth Director wrongly states the ground upon which the application is brought, the ground advanced in written submissions and oral argument was to the effect that the warrant which I issued requiring Mr Wallace to serve the remaining term of certain Commonwealth offences of which he had been earlier convicted specified the wrong date for the expiry of that term. This was essentially because at the request of all parties, in the calculation of that term I had treated 'street time', being the time spent by Mr Wallace on parole in respect of the Commonwealth offences prior to his conviction for the offence of contempt of court, as time served in recalculating the time remaining to be served for the Commonwealth offences.
2 It is necessary to set out in some detail the circumstances which give rise to this application in order to identify the issues which must be resolved.
The Commonwealth offences
3 In my reasons given at the time of passing sentence on Mr Wallace, Corruption and Crime Commission v Wallace [No 2] [2011] WASC 73 (Wallace No 2), I described the Commonwealth offences of which he had been convicted, and the sentences imposed in respect of those offences, and the grant of parole in respect of those sentences in the following terms:
In 2000 Mr Wallace was convicted of the offence of importing prohibited imports into Australia, which was the offence of importation of heroin, and also convicted of possessing a falsified foreign passport. On 13 December 2000 in the Melbourne County Court, Mr Wallace was sentenced to 7 years imprisonment for the offence of importation of heroin and for the offence of possessing a falsified foreign passport, a sentence of 3 months to be served concurrently with the period of 7 years, and a non-parole
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- period of 5 years was fixed. The sentencing judge, Holt J, also directed that a period of 200 days that had been spent in custody by Mr Wallace prior to the imposition of sentence be taken into account and deducted administratively from the sentence that he imposed: The Queen v Stephen John Wallace, Melbourne County Court, 13 December 2000 (ts 49).
On 17 August 2004 Mr Wallace was convicted, also in the Melbourne County Court, for being knowingly concerned in the importation of a prohibited import, again heroin, and he was for that offence sentenced to a period of 8 years cumulative upon the period of 7 years previously imposed, giving rise to a total head sentence of 15 years. The sentencing judge on that occasion set a new non-parole period of 7 years 6 months which was to commence on 13 December 2000. The net effect therefore of those sentences was that Mr Wallace was eligible for parole in 2007 and his head sentence expired on 26 May 2015, that being the period which is 15 years from the date on which he was sentenced on 13 December 2000 after deduction of the period of 200 days spent in custody.
Mr Wallace was given parole under s 19AL(2) of the Crimes Act by an order made on 18 July 2007 that Mr Wallace be released to parole on 1 November 2007. The offence of contempt of the Commission which in turn was dealt with as contempt of the court was committed by Mr Wallace on 11 November 2010, which is a little over three years after he had been released to parole and which was after the expiry of the supervision period of the parole on 1 November 2010. However, it was prior to the expiry of the total parole period which was to occur on 1 November 2012 [14] - [16].
The conviction for contempt of court
4 On 13 December 2010, Mr Wallace was tried and convicted by me of contempt of court as a result of his failure to answer questions relevant to an investigation that the Corruption and Crime Commission had required him to answer on 11 November 2010: see Corruption and Crime Commission v Wallace [2010] WASC 390. Following that conviction, I remanded Mr Wallace in custody pending a further hearing in respect of the sentence to be imposed as a consequence of his conviction.
The sentence hearing
5 Section 19AQ of the Crimes Act 1914 (Cth) provides that where a person is sentenced to a period of imprisonment of more than 3 months in respect of an offence committed during the period that person was on parole for a Commonwealth offence, the parole is taken to have been revoked upon the imposition of the sentence.
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6 Because of the impact which a sentence of more than 3 months imprisonment would have upon the parole which had been granted to Mr Wallace in respect of the Commonwealth offences to which I have referred, I directed that the Commonwealth Director be given notice of Mr Wallace's conviction and of the date fixed for the sentence hearing in order that the Commonwealth Director could appear through counsel if he thought fit. The Director took up that opportunity, and was represented by counsel at the sentence hearing.
7 Prior to that hearing the court was provided with a copy of a letter dated 19 January 2011 from an officer of the Federal Offenders Unit (Criminal Justice Division) of the Attorney General's department of the Commonwealth to an officer of the Corruption and Crime Commission. The letter dealt with various issues arising under the Crimes Act in the event that Mr Wallace was sentenced to a term of imprisonment of more than 3 months for the offence of contempt of court. The letter deals with clean street time in the following terms:
Clean street time
In some States and Territories, a parolee who has breached parole may have the 'clean street time' served prior to his or her breach deducted from the outstanding sentence. Section 19AA(2) of the Crimes Act picks up State and Territory legislation relating to 'clean street time' provisions.
As Mr Wallace was originally sentenced in Victoria but was transferred to WA under the Transfer of Prisoners Act 1983 and released on parole in Western Australia, the Department sought legal advice to clarify which State's 'clean street time' provisions would apply to Mr Wallace. The AGS advice states that in determining the period left to serve on the original sentence, a person's movement after transfer and release does not affect the applicable law for section 19AA(2) purposes. In Mr Wallace's case, section 19AA(2) picks up the relevant Victorian legislation.
Victoria does not have street time remissions. However, the Victorian Adult Parole Board has a discretion to credit State offenders with some of the time spent on parole as if it were time served. Subsections 77(7) and 77(7A) of the Corrections Act 1986 (Vic) state that:
(7) If a prisoner's parole is cancelled or deemed to be cancelled -
(a) the original warrant to imprison or other authority for the person's imprisonment is to be regarded as again in force; and
(b) any period during which the parole order was in force is not to be regarded as time served in respect of the prison sentence unless subsection (7A) applies.
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- (7A) The Board may direct that some or all of the period during which a parole order that has been cancelled, or deemed to be cancelled, was in force is to be regarded as time served in respect of the prison sentence.
However, that discretion does not apply in Mr Wallace's case because the Victorian Board has no authority over Mr Wallace's federal sentence. Moreover, the Department has been advised that this credit is rarely granted, and would not be granted if the parolee has committed a serious offence, an offence related to the original offending, or the parolee has not been of good conduct while on parole.
8 I digress to make two observations about this portion of the letter. First, the clear thrust of the advice given is to the effect that Mr Wallace should not be given credit for 'clean street time' during the period he was on parole, in respect of the recalculation of the remaining period of the Commonwealth sentences to be served in the event that his Commonwealth parole is cancelled as a consequence of the imposition of a sentence of more than 3 months imprisonment.
9 Second, no reasoning is provided for the assertion that 'section 19AA(2) picks up the relevant Victorian legislation' other than to ascribe that view to the Australian Government Solicitor.
10 In another portion of the letter, under the heading 'Outstanding sentence', the author wrote:
The outstanding balance of a federal sentence is the period between the date that the new sentence is imposed and the expiry of the original sentence. Although Mr Wallace's parole order expires on 1 November 2012, the Australian Government Solicitor (AGS) has advised that the balance of the federal sentence is to be calculated as the entirety of the sentence remaining to be served, which in Mr Wallace's case is until 26 May 2015. Therefore, Mr Wallace will be liable for the entire outstanding parole balance of 2,764 days, or seven years, six months and 26 days, expiring on 26 May 2015.
11 This portion of the letter is, on its face, nonsensical. The letter describes 'the entire outstanding parole balance' to be 7 years, 6 months and 26 days although the parole order was to expire on 1 November 2012 (a remaining period of less than 2 years). The 'outstanding parole balance' presumably should be taken to be a reference to the part of the sentences which remained to be served at the time Mr Wallace was first released on parole. More significantly, the imposition of liability for a further period of 7 years, 6 months and 26 days would result in the issue of a warrant for imprisonment expiring in July 2018, not May 2015, if calculated from the
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- date Mr Wallace was taken into custody following his conviction (13 December 2010).
12 The submissions put at the sentence hearing on 8 March 2011 suggest that the letter to which I have referred led Senior Counsel for Mr Wallace (Mr Levy SC) to believe that the imposition of a sentence of imprisonment of more than 3 months would result in the cancellation of Mr Wallace's parole, and the issue of a warrant requiring that he serve a further period of about 7½ years in respect of the Commonwealth offences.
13 During the hearing I called for submissions from counsel representing the Commonwealth Director, and pointed out the confusion evident in the letter from the Attorney General's department. I referred specifically to that portion of the letter which referred to Mr Wallace being required to serve an outstanding period of 7 years, 6 months and 26 days which was contradicted by the assertion that the term would expire on 26 May 2015, after which the following interchange took place with counsel for the Commonwealth Director:
OWEN, MR: … Mr Wallace is open to serve the remainder, the balance of the federal sentence until 26 May 2015.
MARTIN CJ: But that's not seven years and six months and 26 days, that's four years.
OWEN, MR: Your Honour, this letter has been accompanied by the Australian Government Solicitor's advice to the Attorney-General's Department, and their advice is that Mr Wallace would be open to serve until 26 May 2015.
MARTIN CJ: So if I issue another warrant it should only go to 26 May 2015.
OWEN, MR: Yes, your Honour.
MARTIN CJ: Why? I don't understand that. That's contrary to Mr Levy's understanding of the legislation. I just don't understand that and I don't know how the period of 26 May 2015 was arrived at.
14 Counsel for the Commonwealth Director then illustrated to me how the term expiring on 26 May 2015 arose from the combination of the sentences for the two Commonwealth offences after allowance for 200 days served prior to the imposition of sentence on the first offence, which was directed to be treated as part of the sentence for that offence pursuant to s 16E of the Crimes Act by the sentencing judge.
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15 The following interchange then took place:
MARTIN CJ: But now we go on to what I think is the harder question, and that is the letter says that he shouldn't get a credit for clean street time but then talks about the warrant being issued to expire on 26 May 2015. I just don't understand that. It appears to be contradictory.
OWEN, MR: Yes, your Honour. Perhaps Mr Renton could assist your Honour.
[Mr Renton appeared for the Corruption and Crime Commission]
MARTIN CJ: Yes. Mr Renton, can you help me understand that?
RENTON, MR: I can, your Honour. The time that Mr Wallace spent on parole would have counted if the Victorian legislation made allowances for street time, but it does not.
MARTIN CJ: Yes.
RENTON, MR: So effectively the full balance of the parole period, seven and a half years, is what was liable to be served.
MARTIN CJ: So then I should issue a warrant for seven and a half years from now, which would be sometime in 2018.
RENTON, MR: No, because the original sentence was due to expire on 26 May 2015.
MARTIN CJ: Well, then he has been given credit for clean street time.
RENTON, MR: Effectively he has, but it's not open, with respect to your Honour, to increase the sentence beyond the seven and a half years that was originally imposed. The question now becomes one for your Honour of what minimum term to set in all the circumstances…
…
MARTIN CJ: Well, I still don't understand, because credit for clean street time under the Sentence Administration Act effectively means the period spent on parole is to be treated as a period spent in custody.
RENTON, MR: Effectively.
MARTIN CJ: What you're saying to me is that, contrary to what the letter says, he is effectively to be treated as having spent all the three and a half years he was on parole as if he was in custody.
RENTON, MR: Not all of it because your Honour has a discretion in terms of setting, firstly, a nonparole period, whether your Honour is minded to do that, or alternatively how long that period should be, and if
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- one considers the situation that might have existed had Mr Wallace not been released on parole, he would have then been liable to serve such portion of that sentence expiring in May 2015 as was needed to be served subject to the delegation of the attorney-general releasing him…
16 Understandably, I had great difficulty understanding that submission. I indicated that and invited submissions from counsel for Mr Wallace after which the following interchange took place:
MARTIN CJ: I can't follow it, but if both the counsel for the Commission and counsel for the Commonwealth say that I can only issue a warrant to 26 May 2015, you don't want to be heard to argue against that?
LEVY, MR: I do not want to be heard to argue against that, your Honour, because that would be substantially less than seven and a half years required to be served.
MARTIN CJ: Well, there's no discretion involved in the issue of the warrant. The law is what it is. The warrant that I issue will either be wrong or it will be right. There's no discretionary element. The only discretionary element is in the nonparole period.
LEVY, MR: Yes, that's right.
MARTIN CJ: Perhaps I just need to go back and ensure from counsel for the Commonwealth that they are telling me that the warrant should be issued for the period 26 May 2015.
…
MARTIN CJ: Mr Owen, is that the position of the Commonwealth, that the period - assuming that I sentence for three months or more, that I should then issue a warrant, as it were, re-invoking the original sentence but only up to 26 May 2015?
OWEN, MR: Yes, your Honour, that would be the Commonwealth position. Yes.
MARTIN CJ: Well, I don't understand it in terms of the letter, but if that's the position, that's what I should do.
OWEN, MR: Yes.
17 I then proceeded to pass sentence (see Wallace No 2). In the course of passing sentence, I observed that I was proposing to impose a sentence of more than 3 months imprisonment, and referred to the consequences of the imposition of such a sentence in relation to the Commonwealth offences, in these terms:
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- The consequence of the imposition of such a sentence is that the parole that Mr Wallace was granted in 2007 is automatically revoked upon the imposition of the sentence that I propose to impose today. Two questions then arise. The first is the period for which Mr Wallace remains liable to serve the sentences that were imposed for the two offences to which I have referred, and the second question is whether I should impose a non-parole period in place of that which was imposed by the Melbourne County Court in 2004, per s 19AR of the Crimes Act, and if so, what that period should be.
On the first question, that is the period for which the warrant should be issued in respect of the outstanding period to be served in respect of the Commonwealth offences, each of counsel for the Commission and counsel for the Commonwealth submit that the warrant should be issued for the remaining period of the head sentence without regard to the events that have occurred with respect to the grant of parole and his subsequent conviction, that is, for the period extending up to and including 26 May 2015.
I must confess that despite taxing each of counsel for those parties with the reasons for that conclusion, I still do not understand it. However, it is clear that each of those parties submit to me that that is the period for which the warrant must be issued, as counsel for each said in unequivocal terms. It may be that one or other of s 19AA(2) or (3) of the Crimes Act achieves that result together with s 23 of the Transfer of Prisoners Act 1983 (Cth): see X v The Queen (1993) 116 FLR 110, 118 (Murray J). Counsel have submitted that there is no question of discretion involved in fixing the issue of a warrant in relation to the outstanding period to be served in respect of the sentences imposed in the Melbourne County Court, so the warrant will either be correct or incorrect. Given the stance unequivocally adopted by both counsel for the Commission and the Commonwealth, it seems to me to be appropriate to adopt that position and to issue the warrant in respect of the outstanding period of the Commonwealth sentence requiring Mr Wallace to serve the balance of that term which is up to and including 26 May 2015, and I will do so. I note also that this result coincides with the outcome which would ensue if s 71 of the Sentence Administration Act 2003 (WA) applies to the consequences of the revocation of Mr Wallace's parole, which seems to me to be appropriate [26] - [28].
18 I then proceeded to impose a sentence for contempt of court of 2 years imprisonment, backdated to take effect from the date when Mr Wallace was taken into custody on 13 December 2010. I further directed that sentence would be served concurrently with the sentence for the Commonwealth offences, and directed that a warrant be issued requiring the service of those sentences until 26 May 2015. I also set a new non-parole period in respect of those offences, directing that Mr Wallace be eligible for parole under the Commonwealth offences on
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- 13 December 2012 (being the date upon which the sentence which I had imposed for contempt expires).
The section 37 application
19 In the application filed by the Commonwealth Director pursuant to s 37 of the Sentencing Act 1995, the reason for the application is stated in the following terms:
The court sentenced the offender in a manner that was not in accordance with section 19AR(3) of the Crimes Act 1914 (Cth) in that it failed to impose a non parole period in respect of the outstanding sentence.
20 The reason given in the application is nonsense, because I had fixed a new non-parole period pursuant to s 19AR(3) of the Crimes Act. This was acknowledged in the written submissions filed on behalf of the Commonwealth Director in which it was stated that:
No issue is taken with the setting of the new non-parole period.
21 The submissions filed on behalf of the Commonwealth Director went on to make clear that the reason for the application concerned a complete reversal of the position which counsel for the Corruption and Crime Commission (who was now acting for the Commonwealth Director and who signed the submissions) and counsel for the Commonwealth Director had taken at the sentence hearing in relation to clean street time.
22 On that topic, after referring to s 19AA(2) of the Crimes Act, the submissions assert:
As the respondent was originally sentenced in Victoria, the laws of that State apply in determining the extent to which any clean street time is taken to be part of the sentence served.
According to advice received from the Commonwealth Attorney General's Department by letter dated 19 January 2011, the Respondent is not entitled to any credit for clean street time as there was no relevant Victorian law providing for an allowance on that basis. Consequently, subsection 19AA(2) of the Act has no application to the respondent.
23 In the circumstances of the application, reliance upon the obviously flawed letter from the Attorney General's department dated 19 January 2011 was misplaced. Further, the submissions, like the letter, baldly assert that the laws of Victoria apply to determine the question of whether clean street time is to be treated as part of the sentence served without providing any process of reasoning whatever to substantiate that assertion, which was critical to the success of the application. Obviously the
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- purpose of requiring the exchange of written submissions prior to a hearing is to apprise the court and all parties to the proceedings of the propositions that are advanced, and of the process of reasoning which underpins those propositions. Reference to a letter from a government department is an obviously inadequate way of presenting argument to a court, especially when the letter is clearly flawed and relies upon a letter from another department which has never been provided to the court.
24 The written submissions provided on behalf of the Commonwealth Director provided no argument or reasoning whatever in relation to the critical question in this application, which is whether the law of Western Australia relating to 'clean street time' applies in respect of the parole granted to Mr Wallace while imprisoned in Western Australia and which was served by Mr Wallace on parole in Western Australia. Nor was that position advanced in the course of oral argument, nor was the court referred to the reported appellate authority which is directly contrary to the position asserted on behalf of the Commonwealth Director, and in which the Commonwealth Director was a party, and appears to have advanced a proposition which is directly contrary to the position he asserts in this case: see Director of Public Prosecutions (Cth) v WJB [2000] SASC 364; (2000) 78 SASR 44 (DPP v WJB) (see below). The court is entitled to expect greater assistance from public prosecutors like the Commonwealth Director than has been provided in this case, especially given the inconsistency between the positions adopted on behalf of the Commonwealth Director at the time of the sentence hearing and upon this application. Because of the inadequacy of the submissions provided on behalf of the Commonwealth Director, it was necessary to invite the provision of further written submissions justifying the position asserted with respect to the application of Victorian law, and dealing with the decision in DPP v WJB. I will refer to those submissions in due course.
Does s 37 of the Sentencing Act apply?
25 Section 37(1) of the Sentencing Act provides that:
If a court sentences an offender in a manner that is not in accordance with this Act or the written law under which the offence is committed, the court may recall the order imposing the sentence and impose a sentence that is.
26 The first question which must be addressed is whether this section applies to the circumstances of this application, given that it is concerned with sentences imposed in respect of Commonwealth offences. The second question is whether the order which I made directing that a warrant issue requiring Mr Wallace to serve the balance of sentences
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- previously imposed in respect of those offences falls within the scope of the section.
27 Section 68 of the Judiciary Act 1903 (Cth) relevantly provides that the laws of a State or Territory relating to the arrest and custody of offenders or persons charged with offences, and the procedure for their trial and conviction are to apply, so far as they are applicable, to persons who are charged with offences against the laws of the Commonwealth, and confers jurisdiction upon the courts of the States or Territories in relation to those matters. In Williams v The King[No 2] (1933) 50 CLR 551, Dixon J observed that the general policy disclosed by the section was:
[T]o place the administration of the criminal law of the Commonwealth in each State upon the same footing as that of the State and to avoid the establishment of two independent systems of criminal justice (560).
28 In Putland v The Queen [2004] HCA 8; (2004) 218 CLR 174, [4] (Gleeson CJ), [34] (Gummow and Heydon JJ), (Callinan J concurring) the High Court held, by a majority, that s 68 of the Judiciary Act 'picked up' a law of the Northern Territory which related to a particular aspect of sentencing on the basis that Part 1B of the Crimes Act had not covered the field so as to exclude the operation of State or Territory law. In that context, the majority held that State or Territory sentencing laws fell within the scope of s 68.
29 The decision in Putland is authority for the proposition that Part 1B of the Crimes Act does not cover the field in relation to sentencing so as to exclude the application of State laws on that subject which are applied to Commonwealth offences by s 68 of the Judiciary Act. Accordingly, s 37 of the Sentencing Act will apply to sentences imposed in respect of Commonwealth offences unless it is inconsistent with a specific provision of the Crimes Act or unless it can be said to be 'inapplicable' to sentences imposed for Commonwealth offences, so that s 68 of the Judiciary Act does not pick it up.
30 There are provisions of the Crimes Act which specifically incorporate State and Territory laws in respect of particular aspects of sentencing - such as s 16E which incorporates those laws insofar as they relate to the commencement of sentences and of non-parole periods. There is also a specific provision (s 19AH) empowering a court to set aside and fix a non-parole period, or to make a recognisance release order if the court failed to make such an order, or failed to do so properly. Another provision (s 19AY) provides a right of appeal from the issue of a
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- warrant following an order revoking parole. However, none of these sections, nor any other that I have been able to identify, is inconsistent with the existence of the general power to correct erroneous sentences conferred by s 37 of the Sentencing Act.
31 Turning then to the question of whether s 37 is 'applicable' (within the meaning of that term in s 68 of the Judiciary Act), the section is, of course, contained within a State Act which is concerned with sentencing for offences contrary to State law. However, that will be the usual characteristic of all laws made applicable to Commonwealth offences by the operation of s 68 of the Judiciary Act. There is nothing in the terms of s 37 itself which would render it inapplicable to sentences imposed in respect of Commonwealth offences.
32 Accordingly, there is nothing to stop the invocation of s 37 in respect of sentences imposed by Western Australian courts following conviction of Commonwealth offences. The section was invoked in respect of a sentence imposed for a Commonwealth offence in Mercanti v The Queen [2011] WASCA 120, and although it seems that no point was taken, there is no suggestion in the decision of the Court of Appeal to the effect that s 37 had no application to sentences imposed in respect of Commonwealth offences.
33 The second question which must be addressed is the question of whether the orders which I made in relation to the Commonwealth offences on 8 March 2011 fall within the scope of the section. That question arises because I did not sentence Mr Wallace for the Commonwealth offences of which he was convicted - rather, I issued a warrant as required by s 19AS of the Crimes Act, directing the detention of Mr Wallace pursuant to the sentences that had been imposed in respect of the Commonwealth offences. Those sentences were imposed by the Melbourne County Court. However, when construing a remedial section such as s 37, no narrow view should be taken of its scope. The obvious purpose of the section is to enable mistakes made in the course of the sentencing process to be corrected without the delay and expense involved in an appeal. The orders which I made on 8 March 2011, following the revocation of Mr Wallace's parole as a consequence of the sentence which I had imposed for contempt of court, fall readily within the natural and ordinary meaning of the terminology used in s 37. The specification of a non-parole period, and the issue of a warrant requiring Mr Wallace to serve the balance of the sentences previously imposed fall quite easily within the normal meaning of the expression 'sentencing'.
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34 Accordingly, I conclude that s 37 of the Sentencing Act is potentially applicable to the circumstances of this case, and would allow me to set aside and correct the orders which I made on 8 March 2011 if I conclude that those orders were not made in accordance with the applicable law.
35 However, even if I was satisfied that the orders which I made did not accord with applicable law, it does not follow that s 37 requires me to set those orders aside. In Traegar v Pires de Albuquerque (1997) 18 WAR 432 (448 - 449), Steytler J (with Heenan and Kennedy JJ concurring) held that the use of the term 'may' in s 37(1) preserves a discretion for the court to determine whether or not an order should be recalled if error is established.
Section 19AA of the Crimes Act
36 Section 19AA of the Crimes Act provides:
19AA Remissions and reductions of sentences
(1) A law of a State or Territory that provides for the remission or reduction of State or Territory sentences (other than such part of the law as relates to the remission or reduction of non-parole periods of imprisonment or of periods of imprisonment equivalent to pre-release periods of imprisonment in respect of recognizance release orders) applies in the same way to the remission or reduction of a federal sentence in a prison of that State or Territory, being a sentence imposed after the commencement of this section.
(2) Where a law of a State or Territory provides that a person is to be taken to be serving a State or Territory sentence during the period from the time of release under a parole order or licence (however called) until the parole order or licence is, or is taken to be, revoked, the law:
(a) is, for the purposes of subsection (1), to be taken to be providing for the remission or reduction of sentences; and
(b) applies to any calculation of the part of a federal sentence remaining to be served at the time of a federal offender’s release under a federal parole order or licence as if the sentence were a State or Territory sentence.
(3) Where a federal offender who is released on parole or licence and whose parole order or licence has subsequently been revoked does not get the benefit of subsection (2) in calculating the part of any federal sentence of imprisonment remaining to be served at the time of release:
- (a) a court fixing a new non-parole period in respect of such a person under section 19AR; or
(b) a prescribed authority fixing a non-parole period in respect of such a person under section 19AW;
must have regard to the period of time spent by the person on parole or licence before that parole order or licence is revoked or is to be taken to have been revoked.
- (4) A law of a State or Territory that provides for the remission or reduction, by reason of industrial action taken by prison warders, of the non-parole period of a State or Territory sentence applies in the same way to the remission or reduction:
(a) of a federal non-parole period to be served in a prison in that State or Territory; and
(b) of a federal pre-release period to be served in that State or Territory.
Clean street time counts as time served
(1) Subject to subsection (2), if an early release order in respect of a prisoner serving a fixed term is cancelled after the prisoner is released under the order -
(a) the period beginning on the day when the prisoner was released under the order and ending on the day when the order is cancelled counts as time served in respect of the fixed term; and
(b) the period (if any) beginning on the day when the order is cancelled and ending on the day when the prisoner concerned is returned to custody does not count as time served in respect of the fixed term.
(2) If an early release order in respect of a prisoner serving a fixed term is suspended and, without the suspension ceasing, is subsequently cancelled, then -
(a) the period beginning on the day when the prisoner was released under the order and ending on the day when the order is suspended counts as time served in respect of the fixed term;
(b) the period (if any) beginning on the day when the order is suspended and ending on the day when the prisoner is
- returned to custody does not count as time served in respect of the fixed term.
- (3) For the purposes of subsection (1), the day when an early release order is cancelled is
(a) if it is cancelled by a decision of the Board - the day of the decision; or
(b) if it is cancelled by virtue of section 67 -
(i) the day when the offence that resulted in the cancellation was committed; or
(ii) if the CEO cannot ascertain the day when that offence was committed — the latest day on which that offence could have been committed, as determined by the CEO.
38 It is unnecessary to determine whether s 77 of the Corrections Act 1986 (Vic)(the relevant portions of which are set out in the extract of the letter from the Attorney General's department which I have set out above), is a law falling within 19AA(2). That is because even if it is such a law, there is no suggestion that the Victorian Adult Parole Board has exercised any power to direct that some or all of Mr Wallace's 'clean street time' be regarded as time served. It is equally unnecessary to decide whether the Victorian Adult Parole Board has such a power in respect of sentences imposed in Victoria for Commonwealth offences.
39 The critical question is not whether the law of Victoria applies to the cancellation of Mr Wallace's parole pursuant to s 19AA(2) (as the Commonwealth Director has asserted), but rather, whether s 71 of the Sentence Administration Act applies following the transfer of Mr Wallace to Western Australia, and the grant of parole to him in Western Australia, and the service of part of that period of parole within Western Australia prior to the automatic revocation of his parole following his conviction and sentence for contempt of court.
40 It may be possible to read s 19AA(2) in different ways. However, its purpose and effect is clear. It was succinctly described by Lander J in DPP v WJB:
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- The effect of section 19AA is to apply any State law which provides for the remission or reduction of a State or Territory sentence to any federal sentence.
The effect of subs (2) of s 19AA is to deem any law of the State, which provides that a person is serving his or her sentence during the period from the time of release under a parole order until the parole order is taken to be revoked, as a law providing for the remission or reduction of sentences, and as such, applies to any calculation of the part of the federal sentence remaining to be served at the time of a federal offender's release under a federal parole order.
If, therefore, any State Act provides that, during the period from the time of release under a parole order until a revocation of the parole order, the person is taken to be serving the sentence of imprisonment then that State act will apply by virtue of the combination of subs (1) and subs (2) of s 19AA to a federal sentence.
There is in fact such an enactment. S75 of the Correctional Services Act 1982 provides:
'(1) Where -
(a) a person is sentenced to imprisonment for an offence committed while on parole and the sentence is not suspended; or
(b) the suspension of a sentence of imprisonment imposed for an offence committed by a person while on parole is revoked,
the person is liable to serve in prison the balance of the sentence, or sentences, of imprisonment in respect of which he or she was on parole, being the balance unexpired as at the day on which the offence was committed.
(2) Where a person referred to in subs(l) is, at the time of conviction or revocation of the suspended sentence, still on parole, the parole is, by virtue of this subsection, cancelled.'
The effect of s75(1), in my opinion, is to deem a person to have served a sentence of imprisonment during the period between the person's release on parole and the revocation of that parole.
It follows therefore that s75 is picked up by s19AA(2), which deems it to be a law which is taken to be providing for the remission or reduction of sentences. As a result thereof s75 therefore applies to any calculation of
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- that part of the federal sentence remaining to be served at the time of the revocation of the federal offender's parole order [48] - [53].
41 The issue in that case arose in relation to a sentence that had been imposed upon the prisoner in the Melbourne County Court following his subsequent conviction and sentence in South Australia. The case therefore bears directly upon the issue which I have to determine.
42 The particular facts of that case were as follows. On 1 July 1992, the prisoner was convicted in the Melbourne County Court for conspiring to import a prohibited import, namely, cannabis. This was, of course, a Commonwealth offence. He was sentenced to imprisonment for 8 years, with a direction that the minimum period to be served prior to eligibility for parole was 6 years. He was subsequently released on parole on 3 April 1997. The reasons of the court do not reveal whether he was released on parole in Victoria, or if he had been transferred to South Australia under the Transfer of Prisoners Act 1983 (Cth) and subsequently released there. At all events, on 7 July 2000, he was sentenced by a Judge of the Supreme Court of South Australia to a further term of imprisonment of 5 years, 10 months and 21 days following his conviction in South Australia of the offence of being knowingly concerned in the importation into Australia of a prohibited import, namely, cannabis. That offence was committed on 30 October 1997, while the prisoner was on parole in respect of the sentence that had been imposed by the Melbourne County Court in relation to his earlier Commonwealth offence.
43 The court unanimously held that the law relating to 'clean street time' which applied for the purpose of calculating the balance of the sentence imposed by the Melbourne County Court which remained to be served was the law of South Australia. Accordingly, the case is directly on point and provides authority which is directly contrary to the position asserted on behalf of the Commonwealth Director in this case. If there was any suggestion on behalf of the Commonwealth Director in that case to the effect that the law of Victoria relating to 'clean street time' applied to the prisoner because he had been sentenced in Victoria, it is not reflected in the reasons of the court. To the contrary, the reasons strongly suggest that it was the Commonwealth Director, who was the appellant, who sought to rely upon and apply the provisions of South Australian law relating to clean street time notwithstanding that the respondent had been sentenced for the relevant Commonwealth offence in Victoria: see DPP v WJB [7] (Debelle J); [25] - [28] (Lander J). It seems reasonable to infer from the reasons given by the court that the position adopted on behalf of the
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- Commonwealth Director in that case obviated any need for the court to enunciate the reasons why the law of South Australia applied, as opposed to the law of Victoria.
44 However, because of the contrary position adopted by the Commonwealth Director in this case, it is necessary to address that question. In addressing that question, the operative terms of s 19AA merit particular attention. Subsection (1) applies the laws of the State or Territory in which the prisoner serves his or her sentence to the remission or reduction of a federal sentence served by that prisoner in a prison of the relevant State or Territory. Subsection (2)(b) applies the law of the State or Territory with respect to deducting clean street time to 'any calculation of the part of a federal sentence remaining to be served at the time of a federal offender's release under a federal parole order … as if the sentence were a State or Territory sentence'.
45 There are a number of observations usefully made about this particular terminology. First, the expression 'at the time of a federal offender's release' describes 'the part of the federal sentence remaining to be served', at the time of release, not the time at which the assessment or calculation is to be made. Plainly, no clean street time will have accrued at the time a federal offender is released on parole. Rather, the temporal focus is upon the balance of the sentence remaining to be served, if and when a federal offender is released on parole. Next, subsection (2)(b) applies to 'any calculation' of the balance of sentence remaining to be served. However, there can be no such balance, nor any calculation to which the subsection could apply unless and until a federal offender has been released on parole.
46 These considerations support the conclusion that the focus of subsection (2) is upon the time a federal offender is released on parole, and applies to any and all calculations of the sentence remaining to be served thereafter. This in turn suggests that the law of the State or Territory to which the subsection refers, is the law in the State or Territory in which the prisoner is serving his or her sentence at the time of release on federal parole, or perhaps the State or Territory in which the prisoner has been on parole with the permission of the relevant Commonwealth authority at the time the calculation falls to be performed. On the facts of this case, it is unnecessary to distinguish between these two scenarios.
47 That suggestion is reinforced by the express provisions of subsection (2) which provide that it is to operate through, and by means of subsection (1). That is why subsection (2) expressly provides that a law with respect
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- to the deduction of clean street time is to be taken to be a law providing for the remission or reduction of sentences for the purposes of subsection (1). As I have already noted, it is clear that subsection (1) operates to apply the law of the State or Territory in which the federal prisoner serves his or her sentence. It follows that the relevant State or Territory, for the purposes of identifying a law with respect to clean street time, is the State or Territory in which the prisoner is serving his or her sentence at the time of release to parole, or perhaps the State or Territory in which he or she has served their time on parole.
48 In this case, it is unnecessary to distinguish between these two possibilities because Mr Wallace was serving his sentence in Western Australia at the time he was released to parole and his time spent on parole was all spent in Western Australia. The relevant State, for the purposes of s 19AA(2) is the State of Western Australia, with the result that s 71 of the Sentence Administration Act applies to any and all calculations of that part of Mr Wallace's sentences which remain to be served following his release to parole in 2007.
49 In response to my request for further written submissions from the Commonwealth Director justifying the assertion that the applicable law was the law of Victoria, the Commonwealth Director submitted that this was because of the operation of s 23 of the Transfer of Prisoners Act. It was further submitted that the position taken by the Commonwealth Director in DPP v WJB is to be explained by reason of a failure to take the operation of that section into account, and the decision in that case should be distinguished and not followed for the same reason.
50 However, contrary to these submissions, the conclusion that the law of Western Australia applies to calculate the term remaining to be served by Mr Wallace following the revocation of his parole is strongly reinforced by the terms of s 23 of the Transfer of Prisoners Act. That section provides:
Federal sentences—reductions and remissions
Where a Commonwealth prisoner is transferred, in pursuance of a transfer order, from a State or Territory to another State or Territory, then, in the application of the provisions of the law of that last-mentioned State or Territory by virtue of section 19AA of the Crimes Act 1914, those provisions have effect upon his or her being so transferred as if he or she were entitled, upon his or her so being transferred:
(a) in lieu of any period or periods of reduction or remission of his or her federal sentence to which he or she would otherwise be entitled
- under that law in that application upon being so transferred—to a period or periods of reduction or remission of his or her federal sentence equivalent to the period or periods of reduction or remission of his or her sentence to which he or she was entitled under the law of the first-mentioned State or Territory in its application, by virtue of that section of that Act, immediately before being so transferred; and
- (b) in lieu of any period or periods of reduction or remission of a minimum term of imprisonment fixed under section 19AB, 19AC or 19AR, as the case may be, of that Act in relation to his or her federal sentence to which he or she would otherwise be entitled under that law in that application upon being so transferred—to a period or periods of reduction or remission of that minimum term of imprisonment equivalent to the period or periods of reduction or remission of that minimum term of imprisonment to which he or she was entitled under the law of the first-mentioned State or Territory in its application, by virtue of section 19 of that Act, immediately before being so transferred.
51 The effect of that section was accurately described by Murray J in X v The Queen (1993) 69 A Crim R 130 in the following terms:
As I understand that provision, it would have the effect in this case, upon the transfer of the applicant, of notionally treating as the law of Western Australia those provisions of New South Wales law effecting, by virtue of the Crimes Act (Cth) s 19AA, a reduction or remission of the applicant's sentence. But the statute law of New South Wales which has that effect and is notionally incorporated into Western Australian law for the purposes of s 19AA, is that law which gave him an existing entitlement in that regard at the time immediately before his transfer.
In other words the statutory scheme would appear to be that, there being no Commonwealth law providing for remission or reduction of federal sentences, the State law in that regard in the State or Territory where the Commonwealth prisoner finds himself shall be that which applies. But in the case of a Commonwealth prisoner who transfers from one State or Territory to another, so producing a change in the State law which applies to his or her sentence, that person may not by that process achieve any improvement in the applicable provisions with respect to reduction or remission of sentence and nor on the other hand may that person suffer any worsening of his or her position in that regard merely by the process of transfer.
It is evident I think, from the way in which the Transfer of Prisoners Act, s 23 is worded, that it is concerned with the time of transfer and recognises that it might be the case, if it were not for the provisions of that section, that merely by the process of transfer a change in the applicable law might create an immediately different entitlement. But the section does not otherwise interfere with the operation of the Crimes Act, s 19AA, which
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- after transfer will continue to apply to the case of the particular Commonwealth prisoner, so as to apply to him or her the relevant State law providing for remission or reduction of State sentences in that State where he continues to serve his federal sentence in prison. So it would be the case, as I read that provision, that changes to the relevant law of the second State to which the Commonwealth prisoner has transferred would impact upon his or her sentence and the reduction or remission of sentence applicable to it. That of course would depend upon the terms of the relevant State law and whether or not changes in the law with respect to the reduction or remission of sentence were to operate retrospectively in relation to sentences previously imposed or only prospectively upon sentences subsequently imposed (137 - 138).
52 Because the operative provisions of s 23 are focused upon remissions or reductions earned at the time of transfer, the section has no direct application to the question at issue in this case - namely, the applicability of clean street time provisions following transfer. Indeed, it is unlikely that the section ever would apply, given that the transfer of sentenced prisoners under the Act is only likely to take place while they are in custody, and not after they have been granted parole. However, the significance of the section for present purposes is its specific recognition of the application of s 19AA of the Crimes Act to transferred prisoners, and of the scheme which it imposes consistently with the construction which I would place upon s 19AA. That scheme provides, sensibly, that the law to be applied up to the time of transfer is the law of the State or Territory in which the prisoner is imprisoned, whereas the law to be applied after the time of transfer is the law of the State or Territory to which the prisoner has been transferred.
53 It might also be possible to construe s 19AA(2) as applying the law relating to clean street time in the State or Territory in which the Commonwealth offender is convicted and sentenced to the term of imprisonment which results in the revocation of parole pursuant to s 19AQ of the Crimes Act. Such a construction would focus upon that part of the section which refers to the calculation of the part of a federal sentence remaining to be served. For the purpose of applying laws with respect to 'clean street time', the most significant time at which that calculation will ordinarily be performed is upon the revocation of parole and the issue of a warrant authorising further detention under the original sentence.
54 While I favour an approach to the construction of the section which results in the application of the law of the jurisdiction in which the sentence is served for the reasons I have given, in this case the result of all the constructions to which I have referred would be the same because
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- Mr Wallace was released to parole in Western Australia, served the period of parole prior to his reimprisonment in Western Australia, and was convicted and sentenced in Western Australia to the term of imprisonment which resulted in the revocation of his parole. The only construction of the applicable law which would not have that result is the construction for which the Commonwealth Director contends, namely, the exclusive application of the law relating to clean street time of the State in which Mr Wallace was sentenced for the Commonwealth offences, namely, the State of Victoria. However, I can see no basis for the adoption of that construction.
55 For these reasons I conclude that s 71 of the Sentence Administration Act applies to the calculation of the remainder of that part of the sentences imposed upon Mr Wallace for the Commonwealth offences which he committed following his release to parole in Western Australia in 2007, including the calculation which had to be performed following the cancellation of his parole after he was sentenced to more than 3 months imprisonment on 8 March 2011. The assertion of the Commonwealth Director to the contrary should be rejected.
The street time to be applied in the calculation
56 There is, however, a slight anomaly in the street time to be applied to the calculation of those parts of the Commonwealth sentences imposed upon Mr Wallace which remain to be served as a result of the interplay between the Commonwealth and State legislation to which I have referred. Pursuant to s 19AQ(1) of the Crimes Act, a parole order relating to Commonwealth offences is taken to have been revoked upon the imposition of the sentence which has that consequence, not upon the commission of the offence which gave rise to the relevant sentence. The section also provides that if the parole period has ended at the time the sentence is imposed, the parole order is taken to have been revoked as from the time immediately before the end of the parole period: (s 19AQ(2)). The section further provides that where a parole order is revoked pursuant to its terms, the person becomes liable to serve that part of the sentence which had not been served at the time of his or her release, subject to the operation of s 19AA(2) (s 19AQ(5)). Accordingly, under s 19AQ, no credit is allowed for time served while on parole in the calculation of the period of the sentence remaining to be served after revocation unless the law of a State or Territory having that effect is applied pursuant to s 19AA(2).
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57 I have found that s 71 of the Sentence Administration Act is such a law. Subsection (1) of s 71 provides that where a parole order is cancelled after the prisoner has been released on parole:
The period beginning on the day when the prisoner was released under the order and ending on the day when the order is cancelled counts as time served in respect of the fixed term.
58 Subsection (3) of s 71 provides that for the purposes of subsection (1), the day when a parole order is cancelled is the day when the offence that resulted in cancellation was committed, if the parole order has been cancelled by virtue of s 67 of the Sentence Administration Act, which in turn provides that parole granted under that Act is automatically cancelled in the event of conviction and sentence to any term of imprisonment. Accordingly, under State law, it is only 'clean' street time that is deducted, that is, time served up until the commission of the relevant offence, where parole is cancelled pursuant to the operation of s 67 of the Act. Unlike the South Australian legislation considered in DPP v WJB, this result is achieved by giving credit for all time spent on parole until the order is cancelled, but then providing that an order is cancelled with effect from the date of reoffending.
59 However, Mr Wallace's parole was not cancelled pursuant to the operation of s 67 of the WA State Act. Rather, his parole was revoked as a consequence of the operation of s 19AQ of the Crimes Act which expressly provides that revocation of the Commonwealth parole order takes place on the day of sentence, not the day the relevant offence was committed. It follows that pursuant to s 71(1), the period to be counted as time served is the period commencing from the day he was released on parole, until the day he was sentenced (8 March 2011), and not the period ending on the day upon which he committed the offence for which he was sentenced, namely, 11 November 2010. It follows that the clear and unequivocal language used in the relevant Commonwealth and State legislation results in the slightly different treatment of Mr Wallace as a person who was released to parole in Western Australia in respect of a Commonwealth offence and whose parole has been revoked as a consequence of the imposition of a further sentence of imprisonment, as would have been the case had Mr Wallace been released to parole for an offence against State law. Although this consequence is contrary to the evident legislative policy to which I have referred, it seems to me to be impossible to construe the language of the legislation so as to produce any different result.
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60 However, in the case of Mr Wallace, the practical consequence of this anomaly is not particularly significant. As I have directed that the sentence to be served by Mr Wallace in respect of his conviction for contempt of court take effect from the date he was taken into custody, namely, 13 December 2010, and further directed that this sentence be served concurrently with the sentences he is serving for the Commonwealth offences, it is consistent with that sentencing regime for the period between 13 December 2010 and the time when Mr Wallace was sentenced on 8 March 2011, to be counted as time served in respect of the Commonwealth sentences.
61 Accordingly, the only anomaly is in respect of the period of a little over a month between 11 November and 13 December 2010 which, had Mr Wallace been paroled for a State offence, would not have counted as time served, but has been treated as time served in respect of the Commonwealth sentences in the orders which I have made and the warrant which I issued.
62 Had I come to a different conclusion and construed the legislation to produce the consequence that Mr Wallace should only have received credit for the time he spent on parole up until 11 November 2010, I would not have exercised the power to recall the orders I made and to reissue the warrant under s 37 of the Sentencing Act. Rather, I would have exercised my discretion to decline to recall those orders for the following reasons.
63 First, in the overall scheme of the sentences which have been imposed upon Mr Wallace, the period which would be the subject of any amendment is relatively minor and any adjustment could properly be characterised as 'tinkering' contrary to the principle enunciated in Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321.
64 Second, the Commonwealth Director has never drawn any attention to this particular aspect of the manner in which 'street time' is to be calculated and applied, and it is not at all clear that he would have brought an application for an amendment of the warrant in respect of the relatively minor period which I have identified.
65 Third, as a consequence of the confusion and inconsistency in the approach taken by the Commonwealth Director, Mr Wallace has been exposed to the cost of engaging Senior Counsel to prepare submissions and appear in opposition to the application brought by the Commonwealth Director. No order can be made to compensate Mr Wallace for these costs.
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66 For these various reasons, even if I had come to the view that there had been an error in the calculation of the street time to be applied to the calculation of that part of Mr Wallace's Commonwealth sentences which remain to be served in respect of the period between 11 November and 13 December 2010, I would have declined to recall the orders I made.
67 The Commonwealth Director also raised an issue as to the length of the additional period for which the warrant should be issued if I was to extend it to 2018, having regard to the fact that Mr Wallace's non-parole period was reduced by 24 days by way of remission as a result of industrial action taken while he was imprisoned in Victoria, and the effect of that action under the laws of Victoria. However, that issue only arose if I decided to extend the period of the warrant beyond the date specified at the time Mr Wallace was sentenced for the second Commonwealth offence, which I do not propose to do.
68 For these various reasons, the application by the Commonwealth Director to recall the orders which I made and to amend the warrant which I issued at the time of sentencing Mr Wallace will be dismissed.
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