DOWNEY -v- THE QUEEN [2003] WASC 129

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WASC 129
Published:	27/06/2003
Case No:	MC:61/2002	Heard:	26 JUNE 2003
Coram:	MURRAY J	Delivered:	26/06/03
No of pages:	7	Judgment Part:	1 of 1
Result:	Declaration refused
Category:	A
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Parties:	MICHAEL PHILLIP DOWNEY THE QUEEN
Catchwords:	Criminal law and procedure Application for declaration as to eligibility for parole Calculation dependent upon aggregation of parole terms
Legislation:	Sentencing Act 1995 (WA), s 85(1), s93, s 94 Sentence Administration Act 1995 (WA) s 8, s 22
Case References:	Anglesey v The Queen [2002] WASCA 194 Pinkstone v The Queen [2003] WASCA 66 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : DOWNEY -v- THE QUEEN [2003] WASC 129 CORAM : MURRAY J HEARD : 26 JUNE 2003 DELIVERED : 26 JUNE 2003 PUBLISHED : 27 JUNE 2003 FILE NO/S : MC 61 of 2002 BETWEEN : MICHAEL PHILLIP DOWNEY

Applicant

AND

THE QUEEN

Respondent

Catchwords:

Criminal law and procedure - Application for declaration as to eligibility for parole - Calculation dependent upon aggregation of parole terms

Legislation:

Sentencing Act 1995 (WA), s 85(1), s93, s 94

Sentence Administration Act 1995 (WA) s 8, s 22

Result:

Declaration refused

(Page 2)

Category: A

Representation:

Counsel:

Applicant : Mr B Hanbury

Respondent : Ms K E McDonald

Solicitors:

Applicant : Beau Hanbury

Respondent : State Crown Solicitor

Case(s) referred to in judgment(s):

Anglesey v The Queen [2002] WASCA 194
Pinkstone v The Queen [2003] WASCA 66

Case(s) also cited:

Nil

(Page 3)

1 MURRAY J: This was an application for a declaration that on the proper construction of the relevant provisions of the Sentencing Act 1995 (WA) and the Sentence Administration Act 1995 (WA) the applicant would be eligible for release on parole after serving a term of 3 years and 4 months imprisonment from 8 March 2000. If that were right, the applicant's eligibility date would be 8 July 2003.

2 Neither party made any submissions as to the source of the Court's power to make such a declaration. Counsel for the respondent did not suggest, however, that the Court lacked the power to make the declaration sought. The application was not made for the correction of a sentence under the Sentencing Act, s 37. After hearing argument I declined to make the direction in the specific terms sought. It was therefore unnecessary to authoritatively decide the jurisdictional question, but of course, under the Supreme Court Act 1935, s 25(6) the Court has the power to make binding declarations of right without the grant of any consequential relief and I was prepared, had it been necessary, to take the view that the applicant could ask as of right for a declaration as to his eligibility for release on parole pursuant to sentences imposed upon him in respect of which such an order of eligibility for parole had been made.

3 Putting that question to one side, therefore, these…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Downey v The Queen

Details

AGLC: Downey v The Queen [2003] WASC 129
Case: [2003] WASC 129
Decision Date

CaseChat Overview and Summary

In the Supreme Court of Western Australia, Michael Phillip Downey applied for a declaration regarding his eligibility for parole under the Sentencing Act 1995 (WA) and the Sentence Administration Act 1995 (WA). Downey contended that he would be eligible for parole after serving a term of 3 years and 4 months, calculated from 8 March 2000, which would make his eligibility date 8 July 2003. The legal issues before the court involved the interpretation of the relevant provisions of these Acts, particularly concerning the calculation of parole eligibility when multiple sentences are aggregated.

The court considered the applicant's arguments and the statutory framework governing parole eligibility. Downey had been sentenced to a 6-year term in October 2000 and additional terms in June 2001, which were to be served concurrently except for specific cumulative terms. The court examined the provisions of sections 93 and 94 of the Sentencing Act and section 8 of the Sentence Administration Act. It determined that the applicant's approach to calculating his parole eligibility was incorrect, as the aggregate parole term of 10 years required the application of section 93(1)(b), resulting in an eligibility date of 8 November 2004.

The court's reasoning was based on the statutory requirement to aggregate parole terms when multiple sentences are involved. The aggregation process determined the length of the total term being served, which then dictated the eligibility date for parole. The court concluded that the statutory scheme required the calculation of parole eligibility based on the aggregated term, ensuring consistency and compliance with the legislative intent. The court dismissed Downey's application for a declaration.

Orders