Duff v The State of Western Australia

[2008] WASCA 91

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   DUFF -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 91

CORAM:   STEYTLER P

McLURE JA
MILLER JA

HEARD:   18 APRIL 2008

DELIVERED          :   18 APRIL 2008

PUBLISHED           :  24 APRIL 2008

FILE NO/S:   CACR 112 of 2007

BETWEEN:   COLIN LEE DUFF

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :O'SULLIVAN DCJ

File No  :IND 1598 of 2007

Catchwords:

Criminal law - Appeal against sentence - Totality principle - Relationship with period in prison before becoming eligible for parole - Turns on own facts.

Legislation:

Criminal Code (WA), s 414
Sentence Administration Act 2003 (WA), s 7
Sentencing Act 1995 (WA), s 89, s 93, s 94

Result:

Extension of time to appeal refused

Category:    D

Representation:

Counsel:

Appellant:     Mr S B Watters

Respondent:     Mr S A Vandongen

Solicitors:

Appellant:     Thames Legal

Respondent:     Director of Public Prosecutions (WA)

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

Jarvis v The Queen (1993) 20 WAR 201

Kirby v The Queen [2003] WASCA 239

Moody v French [2008] WASCA 67

1. STEYTLER P:  I agree with McLure JA.

2. McLURE JA: The appellant was convicted on his own plea of guilty of one count of receiving stolen goods contrary to s 414 of the Criminal Code (WA).

3. He was sentenced by O'Sullivan DCJ on 16 December 2005 to 12 months' imprisonment.  Parole eligibility was ordered.  At the time of sentencing, the appellant was serving a total term of imprisonment of 6 years for other offences for which he was also made eligible for parole.  The learned sentencing judge ordered that the term of 12 months' imprisonment for receiving be served cumulatively upon the sentences then being served.

4. The appellant required an extension of time within which to appeal.  He filed his appeal notice on 14 September 2007.  By any measure, the delay is gross.  It was explained by the appellant as arising from inaccurate information provided to him by his legal adviser and prison officers as to the amount of time he would have to serve before becoming eligible for parole.  Notwithstanding that he has provided an adequate explanation for the delay, an extension of time ought not be granted unless there is merit in the appeal. After the hearing, the court refused an extension of time on the basis that the appeal was without merit.  These are my reasons for joining in that decision.

5. There was only one ground of appeal which was in the following terms:

   The learned sentencing judge's discretion miscarried when he ordered that the term of imprisonment he imposed be cumulative upon the sentence already being served, such that the total sentence to be served offended the totality principle:

   Particulars

   1.the sentence imposed was one of 12 months' imprisonment, with eligibility for parole ('the Sentence');

   2.the Sentence was ordered to be cumulative upon a sentence already being served;

   3.the effect of the Sentence is that the Appellant is required to serve an additional 12 months in prison before being eligible for parole, not 6 months as His Honour intended.

1. The sentencing judge's intention is not apparent from the terms in which he expressed his reasons.  He said:

   Here, given the fact that you are a serving prisoner and that you have some years to remain in gaol, totality considerations dictate I think that I cannot impose as long a term of imprisonment upon you as I otherwise would, but nevertheless there should be a term of imprisonment to be served cumulatively upon the terms that you are presently serving so as to reflect the seriousness of your conduct.

   … 

   That term [of 12 months] should be served cumulatively upon any terms that you are presently serving and you should be declared eligible for parole.

2. The appellant points out, correctly, that prior to being sentenced for the offence of receiving, the appellant was eligible for parole after serving 4 years of his 6‑year sentence: s93(1)(b) of the Sentencing Act 1995 (WA).

3. The appellant says further that, as a result of the further sentence of 12 months, the appellant will now become eligible for parole after 5 years notwithstanding that he was made eligible for parole in relation to the sentence of 12 months. That proposition is also correct: s 94(1) and (4) of the Sentencing Act.

4. The appellant's next proposition is that the sentencing judge intended that the appellant only spend an additional 6 months in prison before becoming eligible for parole in relation to the sentence of 12 months. That conclusion is based on an inference drawn from the following: the parole eligibility order relating to the sentence of 12 months has no effect; if the sentencing judge's intention was that the appellant serve an additional 12 months in prison he would not have ordered eligibility for parole; as he ordered eligibility for parole he must have intended the appellant to serve an additional 6 months before becoming eligible for parole. That reasoning assumes the sentencing judge was unaware of the effect of s 93 and s 94 of the Sentencing Act.  There is no basis for that assumption.

5. Moreover, there are other more fundamental objections to the ground advanced by the appellant.  First, the task of the courts under the Sentencing Act is to specify the fixed term to be imposed for the particular offence and determine whether there should be an order for parole eligibility.  It is not appropriate for the court to mould sentences with an

eye on parole eligibility calculations:  Jarvis v The Queen (1993) 20 WAR 201, 208; Kirby v The Queen [2003] WASCA 239 [26]. Secondly, the court is required to make a parole eligibility order unless the court exercises its discretion under s 89(4) of the Sentencing Act not to make such an order:  Moody v French [2008] WASCA 67 [48]. There was no justification for refusing to grant eligibility for parole in this case. Thirdly, it is incorrect to say that the making of the parole eligibility order for the sentence of 12 months has no effect. Eligibility for parole or otherwise affects the order in which sentences are served: s 7 of the Sentence Administration Act 2003 (WA). Finally, totality considerations caused the sentencing judge to reduce the term of imprisonment he would otherwise have imposed for the receiving offence, an approach which is linked with his decision to order total cumulation. There has been no arguable breach of the totality principle. The appeal is without merit.

1. MILLER JA:  I agree with McLure JA.