Graham v Lipscombe
[2006] WASC 18 (S)
•30 JANUARY 2006
GRAHAM -v- LIPSCOMBE & ORS [2006] WASC 18 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASC 18 (S) | |
| Case No: | SJA:1089/2005 | 30 JANUARY & 9 FEBRUARY 2006 | |
| Coram: | EM HEENAN J | 30/01/06 | |
| 9/02/06 | |||
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Bail granted pending assessment | ||
| B | |||
| PDF Version |
| Parties: | SAMANTHA GRAHAM HELEN LIPSCOMBE ROBERT LAMONT JULIAN DARNBOROUGH |
Catchwords: | Appeal Sentence Eligibility for parole Process for assessing CEO parole eligibility Bail pending assessment |
Legislation: | Bail Act 1982 (WA) Sentence Administration Act 2003 (WA) Sentencing Act 1995 (WA) |
Case References: | Graham v Lipscombe & Ors [2006] WASC 18 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
CITATION : GRAHAM -v- LIPSCOMBE & ORS
[2006] WASC 18 (S)
CORAM : EM HEENAN J
HEARD : 30 JANUARY & 9 FEBRUARY 2006
DELIVERED : 30 JANUARY 2006
SUPPLEMENTARY
DECISION : 9 FEBRUARY 2006 FILE NO/S : SJA 1089 of 2005 BETWEEN : SAMANTHA GRAHAM
- Appellant
AND
HELEN LIPSCOMBE
First Respondent
ROBERT LAMONT
Second Respondent
JULIAN DARNBOROUGH
Third Respondent
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ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MR W G TARR SM
File No : AR 5341 of 2005
Coram : MR S R MALLEY SM
File No : AR 1294 of 2005, AR 2211 of 2004
Catchwords:
Appeal - Sentence - Eligibility for parole - Process for assessing CEO parole eligibility - Bail pending assessment
Legislation:
Bail Act 1982 (WA)
Sentence Administration Act 2003 (WA)
Sentencing Act 1995 (WA)
Result:
Appeal allowed
Bail granted pending assessment
Category: B
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Representation:
Counsel:
Appellant : Mr M J Aulfrey
First Respondent : Ms F B Seaward
Second Respondent : Ms F B Seaward
Third Respondent : Ms F B Seaward
Solicitors:
Appellant : Ian Hope
First Respondent : State Solicitor for Western Australia
Second Respondent : State Solicitor for Western Australia
Third Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Graham v Lipscombe & Ors [2006] WASC 18
Case(s) also cited:
Nil
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1 EM HEENAN J: This is an adjournment of the hearing of this appeal which I dealt with to a large degree on 30 January 2006 and in respect of which I have already published reasons for decision (Graham v Lipscombe & Ors [2006] WASC 18). At the completion of the hearing on 30 January 2006, I directed that the matter should stand over in order to consider whether or not it would be possible for the assessment of the appellant, by or on behalf of the Chief Executive Officer ("CEO"), to be conducted in order to determine whether she should be granted a discretionary parole under the Sentence Administration Act 2003 (WA) without her being returned to prison.
2 The reason for that concern is that, for the reasons already published, it is evident that, but for the peculiar and unexpected combination of statutory provisions which have resulted unintentionally in the prisoner being ineligible for parole, she would have in all probability been released on parole in mid-October last.
3 Ms Graham in fact has been on bail pending the determination of this appeal since she was released on bail after leave to appeal was granted by McKechnie J on or about 11 November 2005. She has been living in the community, whether or not in strict compliance with the terms of that bail seems doubtful because in recent weeks or months she has been undergoing treatment as a voluntary inpatient at Armadale Hospital. There can be little doubt that the period of treatment at that hospital is salutary and that, while undergoing that treatment, the risk of further offending is much reduced, indeed, perhaps it is on the way to being reduced very substantially. I proceed on the footing, therefore, that had an application for variation of the terms of the bail been made to allow her to reside at Armadale Hospital for the purposes of the continuation of this treatment, the probabilities are overwhelming that it would have been granted.
4 Coming now to the question of the orders to be made on this appeal, counsel for the respondents has submitted that because of the provisions of s 22 of the Sentence Administration Act 2003, the CEO is unable to consider or grant parole under Div IV of the Act unless the prisoner concerned is serving a term of imprisonment for less than 12 months. Her submission points out, quite correctly, that unless and until this appeal is allowed and the aggregate sentence reduced from 12 months and one day to something less, the CEO does not have any of the powers contemplated by Div IV and that those powers will only arise in the event that final orders on the appeal, as proposed, are made. Before then, so the
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- submission goes, no assessment for CEO parole can be attempted nor can parole be granted.
5 The consequence of this, so it is submitted, is that Ms Graham must return to prison in order for her suitability for CEO parole to be assessed and that the indications are that this may take five days or longer. Of course, it is essential that the provisions of the Statute take effect, as they represent the considered judgment of the people of Western Australia speaking through their Parliament, but these are most exceptional circumstances. One also has to consider the social utility and the personal effect upon Ms Graham of interrupting her continuing treatment at Armadale Hospital in order for her to be returned to prison for this process of assessment to be conducted. I do not believe that anybody would think it surprising if I were to conclude that such a process is likely to be disruptive of the treatment, Ms Graham's prospects of recovery, and unlikely, materially, to add in any way to the protection of society. I must turn therefore to consider orders which would implement the statutory policy within the terms of the legislation but which are suitable to the particular circumstances of this unusual case.
6 One possibility is to grant conditional bail, pending the process of assessment of parole notwithstanding that the appeal has concluded. The provisions of the Bail Act 1982 (WA) relating to the grant of bail of a person who has already been convicted are set out in Sch 1, Pt C, cl 4 of the Bail Act 1982. These contemplate that bail can be granted after conviction and envisage three sets of circumstances in which bail, following conviction, might be possible. The first is for a defendant who is in custody waiting to be sentenced. The second is for a defendant who is in custody waiting otherwise to be dealt with for an offence of which he has been convicted, and the third is for a person in custody awaiting the disposal of appeal proceedings. There may be some controversy as to whether there is a real distinction between the first and second of the categories which I have just mentioned, because subpars (a) and (b) of cl 4 appear to treat the paragraph as creating only two categories; the first being a category of defendant who is in custody waiting to be sentenced or otherwise dealt with for an offence of which he has been convicted.
7 Whatever may be the true construction of the clause, bail is not to be granted in the case of a defendant waiting to be sentenced unless there is a strong likelihood the sentencing officer will impose a non-custodial sentence. That is not applicable in this case because custodial sentences have been imposed and have been found to have been properly imposed on this appeal. Indeed, they were not challenged.
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8 In either of the two categories mentioned by the statute, the court is required to consider whether there are exceptional reasons why the defendant should not be kept in custody. It seems to me that I should regard Ms Graham as falling into the category of a defendant who is in custody, but for the grant of bail pending appeal, waiting to be otherwise dealt with for an offence of which she has been convicted and that if there are exceptional reasons why she should not be kept in custody, that she can be granted bail.
9 I have already indicated the reasons which I consider to be exceptional in this case and, therefore, I propose to allow the appeal on terms which I will mention later and which have already been set out in my reasons of 30 January 2006. I will then direct that Ms Graham be released on bail for a period of not longer than three weeks from today in order that she may comply with all the requirements of the CEO in order for her suitability for discretionary CEO parole under the Sentence Administration Act to be assessed.
10 The terms of the bail will substantially be those granted on 19 December 2005, but with the following variations: during this period of not longer than three weeks, she is to reside at Armadale Hospital, there to comply with all directions of the treating medical staff of that facility. While she is at Armadale Hospital, she is to communicate by telephone with an officer of the Armadale police station at a time fixed by the police officer in charge, to report her continued presence at the Armadale Hospital twice a week and that telephone reporting is to be accompanied by telephone confirmation from one of the medical staff or the senior administration staff of that hospital to the police officer confirming the identity of Ms Graham and her presence at the hospital.
11 The period of bail will terminate upon the completion of the process of assessment by the CEO of Ms Graham's suitability for CEO parole. In the event that she is not regarded as suitable for parole at that point, she will be required to surrender to the authorities and return to prison to serve out the balance of her sentence. In the event that she is considered suitable for parole, the terms of the bail will terminate and she will become subject to the terms of any parole order then imposed. Otherwise, I will allow the appeal which has been heard and direct that the sentences imposed by the Magistrates Court on 15 July 2005, that is for a term of two months' imprisonment in respect of the charge of assault, will be served partly cumulatively and partly concurrently with the other sentences of imprisonment which Ms Graham was serving under the order of the Magistrates Court of 29 April 2004, but that the commencement of
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- the later two months' sentence will date from 14 September 2005. The result of this will be that she will be considered eligible for consideration for discretionary CEO parole one month after that date, that is from on or about 14 October 2005. From that date forward she will be eligible to be released on parole at the discretion of the CEO under the Sentencing Act 1995 (WA). Those will be the orders.
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