Director of Public Prosecutions (Cth) v W.J.B No. Sccrm-00-175

[2000] SASC 364
DIRECTOR OF PUBLIC PROSECUTIONS (CTH) V W. J.B.

Court of Criminal Appeal: Prior, Debelle and Lander JJ

1................ PRIOR J......................... Leave to appeal should be granted. The proper interpretation of s 19AQ of the Crimes Act 1914 is a matter of principle and general importance properly reviewed by this Court in this case[1].

[1] Everett v The Queen (1994) 181 CLR 295 at 300

I would grant leave to appeal and allow the appeal for the reasons given by Lander J. The respondent is required to serve that part of the sentence he had not served at the time of his release on parole as reduced by the operation of s 19AA(2) of the Crimes Act and s 75 of the Correctional Services Act 1982 (SA) to one year, five months and 11 days. The matter should be remitted to the sentencing judge. I agree with the orders proposed by Lander J.

3................ DEBELLE J..... This is an application for leave to appeal by the Commonwealth Director of Public Prosecutions against a sentence ordered by a judge of this Court on 7 July 2000. The respondent properly conceded that it was appropriate to grant leave to appeal. As will be seen, the issue is one of general importance in relation to the sentencing of prisoners for federal offences. The appeal was immediately argued.

The respondent was convicted, after trial by jury, of the offence of being knowingly concerned in the importation into Australia of a prohibited import, namely, cannabis. The cannabis was of a trafficable quantity of 35 kilograms. He was sentenced to imprisonment for five years 10 months and 21 days with a non-parole period of four years and one month. The sentence commenced on 7 July 2000.
The Director of Public Prosecutions does not challenge the head sentence and in that sense does not challenge the exercise of the sentencing discretion. Instead, he appeals against a ruling made in the course of sentencing the respondent. The ruling was necessary because this offence was committed whilst the respondent was on parole for another offence. The ruling concerned the operation of s 19AQ of the Crimes Act 1914 (Cth). I will come to the terms of s 19AQ in a moment.
The issue arises in this way. On 1 July 1992 the respondent had been convicted in the Melbourne County Court for conspiring to import a prohibited import, namely, cannabis. He was then sentenced to imprisonment for eight years. It was further ordered that he serve a minimum of six years imprisonment. He was subsequently released on parole on 3 April 1997.
The offence for which the respondent was convicted was committed on 30 October 1997, while the respondent was on parole for the conviction on 1 July 1992. It is agreed that, at that time, the unexpired portion of the sentence for which he was on parole was one year five months and 11 days. That is a consequence of the combined operation of s 19AA of the Crimes Act and s 75 of the Correctional Services Act 1982 of this State. The prosecution contended that, by reason of those provisions and s 19AQ, the respondent was liable to serve the unexpired portion of the parole period, that is to say, the agreed period of one year five months and 11 days in addition to the sentence for the offence in October 1997.
Section 19AQ provides:
“(1). Where a person to whom a parole order relates is sentenced to life imprisonment or to a sentence of, or sentences aggregating, more than 3 months in respect of a federal, State or Territory offence committed during the parole period, the parole order is to be taken to have been revoked upon the imposition of the sentence or sentences.
(2)If, at the time of imposition of the sentence or sentences, the federal parole period has already ended, the parole order is to be taken to have been revoked as from the time immediately before the end of the parole period.
(3)... Where a person to whom a licence relates is sentenced to life imprisonment or to a sentence of, or sentences aggregating, more than 3 months in respect of a federal, State or Territory offence committed during the licence period, the licence is to be taken to have been revoked upon the imposition of the sentence or sentences.
(4)If, at the time of imposition of the sentence or sentences, the licence period has already ended, the licence is to be taken to have been revoked as from the time immediately before the end of the licence period.
(5)... Where the parole order or licence relating to a person is revoked under subsection (1) or (3), the person becomes liable to serve that part of the sentence or each sentence for a federal offence that the person had not served at the time of his or her release under that order or licence, subject to the operation of subsection 19AA(2) and subject (except in the case of a life sentence) to any further remission or reduction of that sentence.
(6)This section does not apply where the sentence or each sentence referred to in subsection (1) or (3) is a suspended sentence.”
The prosecution contended that the combined effect of s 19AQ(1) and s 19AQ(2) was that the parole order should be deemed to have been revoked as from the time immediately before the end of the parole period, thus triggering the operation of s 19AQ(5). The sentencing judge rejected that submission, saying that, as s 19AQ(5) did not expressly refer to s 19AQ(2), the provisions of s 19AQ(5) did not apply. For the reasons which follow, the sentencing judge has not correctly applied the provisions of s 19AQ.
It is a condition of a parole order made under the Crimes Act that the offender must, during the parole period, be of good behaviour and not violate any law: s 19AN(1)(a). The sanction to ensure compliance with that condition is found in s 19AQ and, in particular, in subsections (1) and (5). The sanction is that the parole period is automatically revoked by s 19AQ(1) if an offence is committed in the parole period and the sentence or sentences total more than three months. Section 19AQ(5) then provides that, if the parole period is revoked, the offender is liable to serve the whole of that part of the sentence not served when the offender was released on parole. The question in this case is whether s 19AQ(5) operates if the parole period has expired at the time of sentencing. That turns on the meaning of s 19AQ(2).
Section 19AQ could have been drafted in clearer terms but, when the section is read as a whole and is placed in its statutory context, it is clear that the intention of s 19AQ(1) and s 19AQ(2) is that where a person is sentenced for an offence committed whilst on parole, the person becomes liable to serve the unexpired portion of the parole period. There are two pre-requisites for the operation of these provisions. The first is that the offence is committed during the parole period. The second is that the sentence for that offending exceeds three months. Section 19AQ(1) operates in those cases where the parole period is still in force. Section 19AQ(2) operates in those cases where the parole period has ended. The same reasoning applies mutatis mutandis to sub-sections 19AQ(3) and (4).
These provisions are necessary because the offending could, of course, occur at any time during the parole period. It may occur at the beginning or towards the end of that period. If it occurred at the end, it might not be possible to deal with the offender before the parole period has expired. Section 19AQ(2) addresses that particular situation and provides that, if the parole period has expired before the offender is sentenced, the parole order is taken to have been revoked immediately before the end of the parole period. Subsection (2) is expressed in terms which make it apparent that it is a deeming provision and, when s 19AQ is considered as a whole, it is apparent that its purpose is to be a deeming provision. It does not itself effect the revocation because that is effected by subsection (1). Instead, it addresses a particular fact situation and deems the time when the revocation should take effect. That conclusion is reinforced by the fact that subsection (2) is expressed in terms which directly refer to “the time of the imposition of the sentence or sentences” referred to in subsection (1).
When subsections (1) and (2) of s 19AQ are read together, it is apparent that the intent is to ensure that all persons who offend whilst on parole are treated alike to the intent that all must serve that part of the sentence which has not been served when released on parole. If it were not for subsection (2), those who had offended during the parole period but who were sentenced when the parole period had expired would be in a more advantageous position than those sentenced when the parole period had not expired. Thus, if a person is released on parole for a period of three years and within those three years commits an offence, the intention is that, subject to the qualifications in s 19AQ(5), that person shall be required to serve the whole of that three year parole period notwithstanding that the sentence might have been committed the day following the release on parole or the day before the parole period was due to expire. Any unfairness which might thereby result is capable of being addressed when the non-parole period is fixed pursuant to s 19AR. There is a policy reason which reinforces the above conclusion. If s 19AQ(2) is not a deeming provision to be read in conjunction with s 19AQ(1), persons charged with an offence alleged to have been committed during the parole period would be encouraged to take steps to delay the imposition of a sentence so as to avoid the operation of s 19AQ(1).
For these reasons, the sentencing judge erred as a matter of law in not giving effect to the combined effect of s 19AQ(1), (2) and (5). It was necessary, in the circumstances of this case, for an order to be made pursuant to s 19AQ(5) which in turn refers to s 19AA. As already mentioned, the consequences of s 19AA are that the respondent was by virtue of s 19AQ(5) required to serve a further term of one year five months and 11 days. There is no appeal against the sentence imposed. That sentence should stand and pursuant to of s 19AQ(5) the period of one year five months and 11 days remaining to be served must be added to it. It will then be necessary to fix a new non-parole period pursuant to s 19AR. As s 19AR requires a new non-parole period to be fixed, the Director asked that the matter be remitted to the sentencing judge for that purpose. It is appropriate to adopt that course.
Mr Barrett QC, who appeared for the respondent, sought to avoid this conclusion by calling in aid the principle of statutory interpretation which requires strict construction of a penal statute or of a statute which affects the personal liberty of the subject: see, for example, Smith v Corrective Services Commission (NSW) (1980) 147 CLR 134 at 139. But that principle only applies in the case of ambiguity or doubt. As Walsh J said in Watson v Marshall (1971) 124 CLR 621 at 629, when noting that one must have regard to the warning in McLaughlin v Fosbery (1904) 1 CLR 546 at 559:
“[I]n the interpretation of a Statute affecting personal liberty, supposition as to the intention of the legislature has no place. The function of the Court is limited to interpreting and giving effect to its will as expressed in the Statute.”
To like effect are the remarks of Gibbs J in Beckwith v The Queen (1976) 135 CLR 569 at 576:
“The rule formerly accepted, that statutes creating offences are to be strictly construed, has lost much of its importance in modern times. In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences. The rule is perhaps one of last resort.”
By analogy, this rule should be applied to the construction of a provision concerning a sentence of imprisonment: Lee Vanit v The Queen (1997) 72 ALJR 1 per Kirby J at 13. In other words, one must first apply the ordinary rules of statutory construction. Earlier observations of Kirby J in Lee Vanit v The Queen (supra) at 9, reinforce this conclusion. His Honour pointed out that the task of the court is to give meaning to the purpose of Parliament as expressed in the words which it has chosen. That meaning will be afforded, bearing in mind that the judicial task is to seek out and to declare the preferable construction of the legislation when more than one interpretation competes for acceptance. In this case, the application of those rules discloses the meaning of the section and no ambiguity or doubt remains. The intention of the Parliament is manifest from the terms of s 19AQ when read as a whole and in its statutory context.
For these reasons, I would make orders as follows:
Granting the applicant leave to appeal against the sentence ordered on 7 July 2000.
Allowing the appeal and setting aside the sentence.
Declaring pursuant to s 19AQ(5) that, in addition to the head sentence, the respondent serve that part of the sentence he had not served at the time of his release on parole, namely, one year five months and 11 days.
Remitting the matter to the sentencing judge to fix a new non-parole period.

19.............. LANDER J....... This is an application for leave to appeal by the Commonwealth Director of Public Prosecutions against a sentence imposed by a Judge of this Court on 7 July 2000.

The respondent was convicted, after trial by jury, of the offence of being knowingly concerned in the importation of a prohibited import, being a quantity of cannabis of 35 kilograms, being not less than a trafficable quantity.
He was sentenced to imprisonment for five years ten months and 21 days with a non parole period of four years and one month, all to commence from 7 July 2000.
The Director of Public Prosecutions does not seek leave to challenge the sentence which was imposed for the particular offence but rather to a decision made by the sentencing Judge in relation to a previous conviction.
The respondent was convicted on 1 July 1992 of conspiracy to import a prohibited substance, again cannabis. On that occasion he was sentenced to be imprisoned for eight years and it was ordered that he serve a minimum of six years.
This offence for which he was sentenced by the sentencing Judge occurred on 30 October 1997.
It was submitted to the sentencing Judge that because of the provisions of the Crimes Act 1914 (Cth) there was an unexpired period of the previous sentence of one year five months and 11 days which because of the provisions of the Crimes Act would now have to be served: s 19AQ.
Section 19AQ provides:
“(1). Where a person to whom a parole order relates is sentenced to life imprisonment or to a sentence of, or sentences aggregating, more than 3 months in respect of a federal, State or Territory offence committed during the parole period, the parole order is to be taken to have been revoked upon the imposition of the sentence or sentences.
(2)If, at the time of imposition of the sentence or sentences, the federal parole period has already ended, the parole order is to be taken to have been revoked as from the time immediately before the end of the parole period.
(3)... Where a person to whom a licence relates is sentenced to life imprisonment or to a sentence of, or sentences aggregating, more than 3 months in respect of a federal, State or Territory offence committed during the licence period, the licence is to be taken to have been revoked upon the imposition of the sentence or sentences.
(4)If, at the time of imposition of the sentence or sentences, the licence period has already ended, the licence is to be taken to have been revoked as from the time immediately before the end of the licence period.
(5)... Where the parole order or licence relating to a person is revoked under subsection (1) or (3), the person becomes liable to serve that part of the sentence or each sentence for a federal offence that the person had not served at the time of his or her release under that order or licence, subject to the operation of subsection 19AA (2) and subject (except in the case of a life sentence) to any further remission or reduction of that sentence.
(6)This section does not apply where the sentence or each sentence referred to in subsection (1) or (3) is a suspended sentence.”
The sentencing Judge rejected that submission. He concluded that the respondent was on parole on the time but the provisions of s 19AQ(5) did not extend to the respondent to require him to serve that sentence.
It is from that order that the Director of Public Prosecutions seeks leave to appeal.
In my opinion leave should be granted. The provisions of s 19AQ of the Crimes Act are important and are raised for consideration in this matter. Indeed Mr Barrett QC, who appeared for the respondent, did not oppose a grant of leave.
The sentencing Judge described the failure of s 19AQ(5) to refer to subsections (2) and (4) as giving rise to “a clear lacuna in sub-s. (5)”.
The construction afforded subsection (5) by the sentencing Judge means that any person, whose parole period has expired at the time of sentence but who was in breach of the parole order by the commission of an offence for which that person is imprisoned for more than three months, escapes the consequences of that breach.
Such a result is unsatisfactory. It would mean that, whether a person becomes answerable for the breach of their parole order, in the circumstances predicated in s 19AQ, would depend upon not whether there was in fact a breach, which should be the only test, but when it is that they come to be sentenced for the offence which constituted the breach.
Of course, a penal statute must be construed strictly and in favour of the subject if the language of the statute, after close examination, remains ambiguous or doubtful; Beckwith v The Queen (1976) 135 CLR 569 at 576. However that does not mean that the ordinary principles of construction do not apply or that the penal statute should be given a construction which would lead to unfairness. In this case if the construction arrived at by the sentencing Judge is right it would be unfair to those who breached their parole and who are immediately sentenced to be imprisoned for more than three months compared with those who breached their parole but managed to avoid the sentencing process until the non-parole period had expired.
In my opinion if a person breached a parole order in the circumstances envisaged in s 19AQ(1) by being sentenced to imprisonment for more than three months in respect of the type of offence mentioned in the sub-section, the parole order is taken to have been revoked “upon the imposition of the sentence or sentences”. Subsection (1) provides the only circumstances which trigger the revocation of the parole order.
Two things are necessary to trigger the revocation of the parole order. First, the parolee must be sentenced to a sentence of imprisonment for more than three months in respect of a federal, State or Territory offence. Secondly, the offence must be committed during the parole period.
If both things happen then the parole order is taken to have been revoked at the time of imposition of the sentence or sentences.
Subsection (2) provides that, if at the time of the imposition of the sentence the parole period has already ended, then the parole order is deemed to be taken to have been revoked as from the time immediately before the end of the parole period.
Subsection (2) only refers to the circumstances where the imposition of the sentence occurs after the parole period has expired and in those circumstances deems the revocation to have occurred immediately before the end of the parole period.
Subsection (5) refers only to subsections (1) and (3), but in my opinion needs only to refer to those subsections, because only subsection (1) triggers the revocation of the parole order and only subsection (3) triggers the revocation of the licence. Subsection (2) can never, by itself, trigger the revocation of the parole order, because it refers to only one aspect of the two elements which need to be satisfied before the parole order is taken to have been revoked. The same is true of subsection (4) in respect of the licence.

There is no lacuna in my opinion in the legislation. Subsection (2) must be read as complimentary to subsection (1) and in those circumstances there needs to be no reference in s 19AQ to subsection (2). Again the same is true of subsections (4) and (3).
The same result can be arrived at by the following approach. Section 19AQ(1) operates according to its terms. It operates without any need to refer to the rest of the section if, during the parole period, a person to whom a parole order relates is sentenced to more than three months in respect of the type of offence mentioned in the subsection. In those circumstances the parole order is taken to have been revoked upon the imposition of the sentence. No more is necessary. However if at the time of the imposition of the sentence the parole period has already ended, subsection (2) deems the parole order to be taken to have been revoked as from the time immediately before the end of the parole period.
That is to treat subsection (2) as merely a deeming provision in circumstances where subsection (1) operates in its own terms.
Upon that construction again subsection (5) does not need to refer to subsection (2) because it only operates in conjunction with subsection (1).
It follows that I must respectfully disagree with the sentencing Judge. Section 19AQ(5) operates in circumstances when at the time of the imposition of the sentence the parole period has already ended.
Where the parole order is revoked under subsection (1) the person becomes liable to serve that part of the sentence not served at the time of the release under the parole order. On the face of it s 19AQ requires a person who has been released under a parole order to serve the whole of the time not served at the time of that release if that person’s parole order is revoked under s 19AQ.
However s 19AQ is subject to s 19AA and in particular subsection 19AA(2).
Section 19AA provides:
“(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 sentence; 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)... 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.”

The effect of s 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 subsection (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 a 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 the 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 subsections (1) and (2) of s 19AA to a federal sentence.
There is in fact such an enactment. Section 75 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.
(1a)Subsection (1) applies notwithstanding that, at the time of conviction of the person or of the revocation of the suspended sentence, the parole may have expired or been discharged.
(2)... Where a person referred to in subsection (1) 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 s 75(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 s 75 is picked up by s 19AA(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 s 75 therefore applies to any calculation of that part of the federal sentence remaining to be served at the time of the revocation of the federal offender’s parole order.
In those circumstances the period to be served by the respondent in this case is, as has been claimed by the appellant, one year five months and 11 days.
It follows from my reasons that the sentencing Judge should have concluded that the respondent became liable to serve that sentence of one year five months and 11 days. It further follows that that sentence had to be taken into account in the fixing of a single new non parole period; s 19AR of the Crimes Act.
Both the appellant and respondent were agreed that, if this Court concluded that the sentencing Judge had erred in failing to have regard to that part of the outstanding sentence in respect of the 1992 conviction, the matter should be remitted to the sentencing Judge for his further consideration and the fixing of a new parole period in respect of the new sentence, being the outstanding sentence and the sentence imposed by the sentencing Judge.
It seems to me that that is the appropriate procedure. The sentencing Judge, who was of course the trial Judge, would be in possession of information not known to this Court and the fixing of the new non parole period should be a matter for him.
I would therefore allow the appeal.
I propose the following orders:
1Leave to the applicant to appeal against the sentence imposed on 7 July 2000.

2 The appeal is allowed and the sentence set aside.

3The matter is remitted to the sentencing Judge for sentence having regard to the fact that in addition to any sentence to be imposed in respect of the offence committed on 30 October 1997 the respondent is liable to serve a sentence of one year five months and 11 days being the balance of the sentence of imprisonment imposed on 1 July 1992 which he had not served at the time of his release on parole as reduced by the operation of s 19AA(2) of the Crimes Act and s 75 of the Correctional Services Act.

[2000] SASC 364

3 November 2000