Darren Douglas Powell v Darren Andrew Fitzroy, Ben David Waller and SHAUN PINE
[2012] ACTSC 131
•29 June 2012
DARREN DOUGLAS POWELL v DARREN ANDREW FITZROY, BEN DAVID WALLER and SHAUN PINE
[2012] ACTSC 131 (29 June 2012)
Bail Act 1992 (ACT), s 5(2)
Crimes (Sentence Administration) Act 2005 (ACT), s 149
Crimes (Sentencing) Act 2005, s 36
Magistrates Court Act 1930 (ACT), s 216
Re Osman (2010) 244 FLR 397
Travini v Starczewski (2009) 169 ACTR 1
EX TEMPORE JUDGMENT
No. SCA 16 of 2012
Judge: Refshauge J
Supreme Court of the ACT
Date: 29 June 2012
IN THE SUPREME COURT OF THE )
) No. SCA 16 of 2012
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN: DARREN DOUGLAS POWELL
Appellant
AND: DARREN ANDREW FITZROY
First respondent
BEN DAVID WALLER
Second respondent
SHAUN PINE
Third respondent
ORDER
Judge: Refshauge J
Date: 29 June 2012
Place: Canberra
THE COURT ORDERS THAT:
The bail application be adjourned generally.
The parties be granted liberty to apply on two days notice.
Mr Darren Powell has applied for bail pending the hearing of an appeal from sentences imposed in the ACT Magistrates Court on 8 February 2012. In order to understand the issue before the Court, I need to identify a little history.
On 26 March 2010, Mr Powell was sentenced in this Court to eighteen months imprisonment for the offence of theft, to date from 27 November 2009. A non-parole period of 12 months was set, which would expire on 26 November 2010. On 14 May 2010, he was further sentenced in the ACT Magistrates Court to 12 months imprisonment for the offence of attempted burglary. That sentence of imprisonment was directed to commence on 27 November 2010, that is, the day after the expiry of his non-parole period on the sentence imposed by the Supreme Court. A fresh non-parole period, as required by the legislation, was then set by the Magistrates Court to expire on 26 November 2010.
On 9 November 2010, the ACT Sentence Administration Board directed that Mr Powell be released on 26 November 2010 on parole. On 23 August 2011, the Board cancelled his Parole Order and he was liable then to serve full-time imprisonment until 22 August 2012 unless earlier released to parole. He made a further application and, on 10 January 2012, the Sentence Administration Board directed that he be released on parole on 17 January 2012 and remain on parole, therefore, until 22 August 2012.
He then appeared in the ACT Magistrates Court on 8 February 2012, as I have indicated, on charges of driving whilst disqualified, unlawful possession of stolen property, possessing prohibited substances, possessing a drug of dependence and failing to appear after a bail undertaking. He was sentenced on that occasion to a total period of 12 months imprisonment to commence on 23 August 2012, which would be at the conclusion of his current sentence.
By virtue of s 149 of the Crimes (Sentence Administration) Act 2005 (ACT), Mr Powell’s parole therefore was automatically cancelled, and was revoked, and he was required then to serve the balance of the period of imprisonment together with the additional period of imprisonment imposed by the Magistrates Court.
On 15 February 2012, Mr Powell appealed from the sentences imposed on the grounds that the learned sentencing Magistrate:
a. failed to give sufficient weight to the provisions of s 36 of the Crimes (Sentencing) Act 2005 and assistance provided by the appellant to the police and the DPP in other criminal matters;
b. failed to accept submissions that the appellant had taken steps to address the underlying cause of his problem with illicit drugs;
c. failed to give due consideration to the availability of community-based sentencing options that would assist the appellant in addressing his problems;
d. failed to set a non-parole period;
e. erred in commencing the sentence on 23 August 2012 rather than immediately; and
f. failed to give sufficient weight to the decision of the Sentence Administration Board to grant the appellant parole from 17 January 2012.
A further ground of appeal stated that the sentences and penalties were manifestly excessive in all the circumstances.
Mr Powell applied for bail and, on 2 March 2012, Burns J refused that bail on the basis that he was a sentenced prisoner and therefore not eligible for bail. Bail cannot be granted on one charge if the person cannot be released because on other charges he or she remains in custody: s 5(2) Bail Act 1992 (ACT).
An issue has arisen as to whether the lodging of the Notice of Appeal changes that situation. The Notice of Appeal does, by virtue of s 216 of the Magistrates Court Act 1930 (ACT), stay the proceedings in respect of the matter that is the subject of the appeal. Here, Mr Powell, however, has only appealed against the sentence and so he is not serving the sentence that was imposed on 8 February 2012 at this stage.
That may mean that, on the hearing of the appeal, some adjustment will have to be made as is common practice to take account of his changed status in respect of the matters dealt with by the Magistrates Court. His appeal did not, however, challenge the conviction and it was the conviction rather than the sentence that caused the revocation of his parole.
There seems to be uncertainty about that and, in a letter that was received by Mr Powell, the Sentence Administration section of ACT Corrective Services stated that
[p]ursuant to s 216(1) of the Magistrates Court Act 1930 if an appeal has been duly instituted, the enforcement or execution of the decision, conviction or ordered sentence or penalty appealed form [sic] is stayed until the appeal is concluded or is abandoned or discontinued. This means that the sentence and automatic revocation of your parole order imposed on 8 February 2012 is in effect stayed until the ACT Supreme Court finalises the matter.
Mr Powell has now further applied for parole. There should be no impediment for the application for parole because the sentence that he is serving following the decision of the Magistrates Court is stayed and therefore he would be entitled to bail pending the hearing of the appeal: Re Osman (2010) 244 FLR 397.
I am told by his counsel that the Sentence Administration Board has taken the view that as the revocation of the parole as set out in the letter from which I have quoted has been stayed, he cannot be considered by the parole board for further parole.
Regrettably, I have to say that that decision is wrong. It is clear, in my view, that the appeal does not affect the conviction and it is the conviction which has revoked his parole and not the sentence that has been imposed: Travini v Starczewski (2009) 169 ACTR 1. That was in the context of a case where the question of what was a penalty and what amounted to a penalty was under consideration. In that case, I considered the question of the jurisdiction of this Court in relation to certain appeals, namely, those consequent upon the finding of guilt which disqualified a person who was convicted of certain driving offences from holding a license for a certain period by statutory remit.
I referred to that situation where statutorily imposed matters occurred and whether they were penalties. I said, at 7; [20]:
There are examples of legislative provisions where a conviction results in legislatively imposed consequences which could not be properly included as a sentence or penalty. For example, where an offender subject to a parole order is convicted of certain offences against a territory law, the parole order is automatically revoked and the court is required to order that the offender be placed in custody: ss 149, 161 of the Crimes (Sentence Administration) Act 2005 (ACT). Neither the legislative cancellation nor the consequential court order could properly be characterised as sentences or penalties which could on appeal against sentence be disturbed.
I continue to maintain that view, and nothing has been put before me to the contrary. Indeed, both counsel have submitted that that is the correct view, namely, that once the conviction has been entered, the parole order is revoked and appeal against sentence does not disturb the revocation of the parole order.
Accordingly, in my view, Mr Powell would be eligible to apply for parole so far as the parole order is concerned because it was revoked and therefore he is properly serving his sentence pursuant to that revocation. He is, therefore, subject to the other rules and regulations and provisions relating to the application for a grant of parole, eligible to apply to the Sentence Administration for parole.
He will remain, then, as a remand prisoner in respect of the sentences the subject of the Magistrates Court order on 8 February 2012, and would have to apply for bail for that purpose should parole be granted.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 6 August 2012
Counsel for the Crown: Mr A Webb
Solicitor for the Crown: ACT Director of Public Prosecutions
Counsel for the defendant: Mr M Kamarul
Solicitor for the defendant: Legal Aid ACT
Date of hearing: 29 June 2012
Date of judgment: 29 June 2012
20
2
4