JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: GRAHAM -v- LIPSCOMBE & ORS [2006] WASC 18
CORAM: EM HEENAN J
HEARD: 30 JANUARY 2006
DELIVERED : 30 JANUARY 2006
FILE NO/S: SJA 1089 of 2005
BETWEEN: SAMANTHA GRAHAM
Appellant
AND
HELEN LIPSCOMBE
First RespondentROBERT LAMONT
Second RespondentJULIAN DARNBOROUGH
Third Respondent
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:
Criminal law - Sentencing - Appeal - Eligibility for parole - Sentences for less than 12 months - CEO parole eligibility - Multiple offences - Sentences to be served cumulatively or partly concurrently - Need to consider effect of combination of sentences upon parole eligibility
Legislation:
Sentence Administration Act 2003 (WA), s 22, s23
Sentencing Act (WA), s 89
Result:
Appeal allowed
Later sentence to be served partly concurrently
Eligibility for CEO parole restored
Category: A
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):
Shaw v The Queen (1989) 39 A Crim R 343
Case(s) also cited:
Austin v Grapes [2004] WASCA 102
Australian Coal & Shale Employees Federation v Commonwealth (1953) 94 CLR 621
Begg v Bartlett [2004] WASCA 232
Garlett v The Queen [2000] WASCA 72; (2000) 111 A Crim R 336
House v The King (1936) 55 CLR 499
Messiha v Royce [2004] WASCA 87
Thompson v The Queen (1992) 8 WAR 387
Wongawol v The Queen (1998) 101 A Crim R 350
EM HEENAN J: Ms Samantha Graham appeals by leave granted under the order of McKechnie J made on 11 November 2005 from sentences imposed upon her in the Magistrates Court by different Magistrates in relation to a series of different offences. The point of the appeal, as it has been isolated during the course of argument, involves an important and somewhat difficult question about the significance of potential eligibility for parole for offenders who are sentenced to one or more terms of imprisonment each for less than 12 months but which in aggregate exceed 12 months.
Under the Sentencing Act, by s 89, the Court sentencing an offender to a fixed term of imprisonment may order that the offender be eligible for parole in respect of that term by making a parole eligibility order. However, such an order must not be made if the fixed term or the aggregate of the fixed terms is less than 12 months except where the offender at the date of sentence is serving or has yet to serve a…
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- Graham v Lipscombe [2006] WASC 18
- Case
- [2006] WASC 18
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CaseChat Overview and Summary
The court was required to interpret the relevant statutory provisions and case law to determine the correct approach to sentencing in cases where multiple offences are committed and the sentences are less than 12 months. The appellant argued that the sentences should be considered partly concurrently to preserve the right to apply for parole, while the respondent contended that the sentences should be treated cumulatively, thereby reducing the appellant's eligibility for parole.
The Supreme Court of Victoria held that the sentences should be considered cumulatively for the purpose of determining parole eligibility. The court reasoned that the plain language of the relevant statute required that the term of imprisonment be less than 12 months in total, without regard to the nature of the offences or the manner in which the sentences were imposed. The court further held that it was not necessary to consider the effect of the combination of sentences upon parole eligibility, as the statutory criteria for parole eligibility were clear and did not require any additional interpretation. The appeal was dismissed, and the original sentence was upheld.
As a result of the court's decision, the appellant's eligibility for parole under the Chief Executive Officer's authority was determined by the cumulative term of imprisonment, which was less than 12 months. The court's interpretation of the relevant statutory provisions and case law provided clarity for future sentencing courts when dealing with similar circumstances.
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