Graham v Lipscombe - [2006] WASC 18

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 Respondent
ROBERT LAMONT
Second Respondent
JULIAN 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
Tysoe v Kennedy [2005] WASC 148

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 parole term imposed previously. That does not mean that offenders who are sentenced to terms of imprisonment for less than 12 months are not considered eligible for parole in any circumstances, simply that the court imposing the sentence may not make a parole eligibility order. It is clear without any doubt that Parliament contemplated that offenders sentenced to terms of imprisonment for less than 12 months should, subject to certain conditions, be eligible for parole. So much appears expressly from s 22 and s 23 of the Sentence Administration Act 2003.
By s 22 of that Act it is provided that Division 4 applies to a prisoner if, and only if, the prisoner is serving one term and that term is less than 12 months and is not a prescribed term or the aggregate of the terms the prisoner is serving or yet to serve is less than 12 months and neither or none of them is a prescribed term. For prisoners subject to short‑term sentences less than 12 months the parole regime is that determined by the Chief Executive Officer under s 23 of the Sentence Administration Act. By that Act a prisoner is eligible to be released on parole when he or she has served one‑half of his or her term. Expressly the CEO may, in the case of a prescribed prisoner, and must, in any other case, make a parole order in respect of a prisoner.
Whether a person is a prescribed prisoner or not depends upon whether he or she comes within the definition of a prescribed prisoner under s 23(1) of the Sentence Administration Act which I need not set out in full. But if a person is such a prescribed prisoner he or she is still eligible to be released on parole after serving one‑half of his or her term of less than 12 months but the question of release remains at the discretion of the CEO who will, no doubt, consider it according to conventional criteria.
I am satisfied that these statutory provisions indicate that eligibility for parole is an important part of the regime of imprisonment and is a very significant consideration which needs to be addressed in the case of every prisoner. For prisoners who are sentenced to terms of 12 months or less the process of consideration of eligibility for parole will not directly be conducted by the court which imposes the term or terms of imprisonment but rather by the CEO under the provisions of s 22 and s 23 of the Sentence Administration Act. For prisoners who are sentenced to terms of imprisonment longer than 12 months, then the question of eligibility for parole will be addressed, specifically, by the court imposing the term of imprisonment under s 89 of the Sentencing Act as already described.
Either way, parole eligibility is and remains an important part of the process of treatment of a prisoner sentenced to serve any fixed term of imprisonment. There is nothing new in the principles which I have just attempted to summarise.
The question of the significance of parole in the sentencing process was examined from a somewhat different perspective by the Court of Criminal Appeal of this Court in 1989. In the case of Shaw v The Queen (1989) 39 A Crim R 343 the court, comprised by Malcolm CJ, Brinsden and Rowland JJ, allowed an appeal from orders imposing sentences without eligibility for parole and, in varying in several ways the sentences imposed, added an order that the prisoner be eligible for parole.
In the judgment of Brinsden J, with whom Malcolm CJ agreed, there is a passage at 347 ‑ 348 which reads as follows:
"As explained in Archibald (unreported, Court of Criminal Appeal, WA, No 182 of 1988 24 February 1989), the question of eligibility for parole must be considered once the sentence of imprisonment, appropriate to the gravity of the offence in the light of the antecedents of the offender, has been determined. It is an incorrect exercise of discretion to fix a sentence less than the gravity of the offence and the antecedents of the prisoner demand, but at the same time, decline to make an order for eligibility even though the antecedents of the prisoner would justify such an order, merely because to do so would result in the prisoner serving a term of imprisonment below what the sentencing Judge thinks should be served."
And, in similar vein, Rowland J said at 351:
"It seems to me that while rehabilitation continues to play a part in the sentencing process, the circumstances that would negate the prospect of rehabilitation by way of supervision in the community, that is parole, would need to be exceptional."
These passages clearly demonstrate to my satisfaction that potential eligibility for parole is regarded as an important, indeed a vital, consideration in the exercise of any sentencing discretion, although many of the details of the eligibility for parole and the timing of parole and its effects are now prescribed by statute rather than by order of the sentencing Judge.
The feature of the present appeals which in my view require this appeal to be allowed is that a combination of factors has, for all practical purposes, excluded the possibility of consideration being given to the eligibility of the appellant for parole. Instead, this feature has had the unexpected effect of excluding any possibility of eligibility for parole.
This is a result which was not contended for by the prosecuting authorities when Ms Graham was being sentenced, a consideration that was not addressed by the learned Magistrates who imposed the sentences, because of course parole eligibility was not a factor which either of them could address. No basis has been suggested upon which a conclusion could justifiably be drawn that this offender should never be eligible for parole.
The facts of what has happened in these cases can be shortly described. On 29 April 2004 at the Armadale Magistrates Court the appellant was sentenced by his Honour Mr Malley, Stipendiary Magistrate, to an effective total term of imprisonment of 10 months and one day. The head sentences comprising that total were as follows: (a) a term of six months and one day's imprisonment for one count of breaching a violence restraining order being a breach of a suspended sentence imposed for that offence, that is prosecution notice number AR1294/05; and (b) a term of four months' imprisonment to be served cumulatively upon that sentence for a count of breaching a violence restraining order, prosecution notice number AR2211/04.
On the same day, and before the same Magistrate, the appellant was sentenced to the following terms of imprisonment and fines for various charges. I will list in each case the charge and the penalty which was concurrent in each case:
(a)breach of bail, one month's imprisonment;
(b)assault, one month and one day's imprisonment;
(c)breach of bail, one month's imprisonment;
(d)stealing, $50 fine;
(e)breach of restraining order, one month's imprisonment;
(f)damage, one month's imprisonment;
(g)stealing, $50 fine;
(h)stealing, $50 fine;
(i)stealing, $50 fine;
(j)stealing, $50 fine;
(k)stealing, $50 fine.
Also on 29 April 2005 the appellant was sentenced to the following concurrent terms of imprisonment, the sentences being the imposition, in each case, of a suspended sentence, and again I will list the charges and penalties:
(a)breach of bail, four months' imprisonment;
(b)breach of restraining order, four months' imprisonment;
(c)breach of restraining order, four months' imprisonment;
(d)breach of restraining order, four months' imprisonment.
Because the cumulative total of all the sentences for which immediate imprisonment was ordered was less than 12 months, the appellant was not eligible for parole under s 89 of the Sentencing Act and consequently no order for parole eligibility was made. Nevertheless, for reasons which I have already described, she became entitled to CEO parole eligibility by virtue of s 22 and s 23 of the Sentence Administration Act and, in that case, would have been granted parole after serving half the total sentence, that is, after serving five months and half a day.
The sentences imposed on 29 April 2005 were directed by the learned Magistrate to take effect from 15 April 2005, so this would have meant that, if nothing else had intervened, she would have become eligible for CEO parole, which the CEO was obliged to grant, on or about 14 September 2005.
The complicating factor is that later, on 15 July 2005, the appellant was sentenced by his Honour Mr Tarr SM to a term of two months' imprisonment in respect of a charge of assault, prosecution notice number 5341/05, and this was to be served cumulatively on the sentences then being served. A reading of the learned Magistrate's reasons for decision clearly demonstrates that his Honour rejected the possibility that that later sentence might be served concurrently with the earlier sentences, having in mind that if that were to be done, there would in effect be no punishment at all for that crime of assault.
Had that July sentence stood alone, the appellant would have become eligible for CEO parole after serving half that sentence by reason of s 23 of the Sentence Administration Act. But, because, being assault, this rendered her a prescribed prisoner, there was no obligation upon the CEO to grant parole release after service of half the sentence but such a decision remained open at the discretion of the CEO and would no doubt have been taken having regard to proper principles.
Despite this and the policy which I have discerned in the legislation and in the authorities of preserving eligibility for parole for offenders, except in cases where, for exceptional reasons, a judicial decision is taken to exclude eligibility for parole under s 89 of the Sentencing Act, what has happened is that Ms Graham's aggregate sentences have now totalled 12 months and one day; that is, over 12 months, and the possibility of release on parole under a CEO order within s 22 and s 23 of the Sentencing Administration Act has disappeared. Not only has that prospect disappeared, but there was never an opportunity for the learned Magistrate who imposed the second sentence to give any consideration to imposing, himself, a parole eligibility order, because of the constraints of s 89 of the Sentencing Act.
It is in these circumstances that Ms Graham has been granted leave to appeal from all the decisions sentencing her to terms of imprisonment on the single ground that there has been a miscarriage of justice in the sentences without any error of law being made by the Magistrates. That situation comes about because, on the application for leave to appeal, it was decided (indeed, there seems to have been no real controversy about the point) that the various sentences imposed by his Honour Mr Malley on 29 April 2005 resulting in an aggregate term of fixed imprisonment of 10 months and one day could not be shown to be erroneous, either individually or in combination.
Similarly, the view was taken by his Honour when granting leave to appeal - it is not now challenged, indeed it was never challenged - that the sentence of two months' imprisonment cumulative upon the earlier sentences imposed by his Honour Mr Tarr on 15 July 2005 was not erroneous either. Yet, as I have endeavoured to explain, the consequence of the combination of the two sentences has been to eliminate any question of eligibility for parole.
I am satisfied that that must be regarded as an unintended consequence by the sentencing magistrates and by Parliament. Indeed, the whole notion seems to be repugnant to the principles unanimously accepted by the Court of Criminal Appeal in Shaw's case (supra), from which passages have already been cited.
As observed by McKechnie J when granting leave to appeal in this case, there can sometimes be miscarriages of justice notwithstanding that no clear or discernible error of law has occurred at any step of the process leading to the order or to the sentence which has been imposed. I certainly accept that that can be said of the present case. However, the need to recognise and to preserve the possibility of eligibility for parole appears to me to be a requirement in the sentencing process, however and whenever exercised, whether by a judicial officer imposing a sentence of 12 months or more, or when imposing a sentence of less than 12 months leading to eligibility for short‑term parole release under the CEO program under s 22 and s 23 of the Sentencing Act.
Submissions have been made to me on behalf of the respondent that it would not have been appropriate for his Honour Mr Tarr when sentencing the appellant on 15 July 2005 to take into account the effect of parole eligibility on the appellant, and Shaw v The Queen (supra) is advanced as support for that submission.
I accept the principle, which was certainly recognised in Shaw, that a head sentence should not be extended or reduced because of the potential effect of parole, if granted, but I am by no means convinced that that undoubted conclusion supports the corollary that no regard of any kind should be had to the effect which any particular sentence may have upon parole eligibility. This case is a demonstration of how unintended consequences can result if parole eligibility is not adverted to.
I am satisfied that in this case when the appellant came to be sentenced by his Honour Mr Tarr on 15 July 2005 it was appropriate that there should be a term of two months' imprisonment for the offence of which she was convicted and that, in order to ensure that tangible punishment was imposed, that it should be cumulative upon the consequences of the earlier sentences of imprisonment which the appellant was then serving.
However, I do not accept that it was right in this case, or justifiable as a general proposition, that a cumulative sentence should be imposed in a manner which would have the effect of denying all eligibility for parole, certainly not in an instance where there had been no submissions made to the court about the unsuitability or ineligibility of the applicant for parole. The result which the learned Magistrate apparently desired to achieve; namely, of ensuring that there was incremental punishment resulting from the second sentence, could certainly have been achieved if the sentence had been imposed in a manner which would have added to the term the appellant was required to serve under the 29 April 2005 sentences but, at the same time, preserved eligibility for parole.
There is provision in s 88 of the Sentencing Act for terms of imprisonment to be made concurrent, cumulative or partly cumulative. Subsection 88(4) provides:
"If under subsection (3)(d) a court orders that a term is to be served partly concurrently with another fixed term, the court must specify the period of the other fixed term that is to be served before the partly concurrent term is to begin, but that period must not extend beyond the earliest date on which the offender could be released (whether on parole or not) in relation to the other fixed term."
This is a further example of legislative recognition of the need to preserve the possibility of eligibility for parole because of the direction that a partly concurrent term cannot be ordered to commence at any date later than the time upon which the offender could become eligible for parole under the earlier sentence. Put in that way this is another exemplification of the principles which I have so far recognised in the legislation which I have canvassed and in the decision in Shaw's case itself. It follows that the latest date upon which a partly concurrent sentence for the July 2005 orders could have commenced was the day upon which Ms Graham would have become eligible for release on parole under the April 2005 sentences.
Making the necessary calculations on the calendar, that appears to be about the 14 September 2005 or very close to that date. Had the sentences of 15 July 2005 been ordered to be served partly concurrently with the earlier sentences, the latest date which could have been chosen would have been 14 September 2005. The two months' sentence imposed cumulatively would begin then. The effect of that, if it had been done, would have been to preserve the discretion of the CEO to consider and grant parole under s 23 even for a prescribed prisoner as Ms Graham then was, without eliminating the prospects of parole altogether.
That is the order which I consider should have been made in July 2005 consistent with the principles which I have been examining. Therefore, I am inclined to the view that inadvertently, because it was not recognised by anybody dealing with the issue, there was an error in the sentencing process on 15 July 2005, by failing to take into account the combined effects of both sets of imprisonment upon eligibility for parole. To say it is an error implies no criticism against the learned Magistrate or counsel involved in the case because the point is both abstruse and relatively novel.

The only other comparable example of this problem arising can be found in the decision of McKechnie J in Tysoe v Kennedy [2005] WASC 148 on 22 June 2005 where a similar combination or aggregation of sentences, each less than 12 months, produced the effect of denying the several judicial officers imposing the sentences the opportunity to order parole eligibility under the Sentencing Act, but in aggregate, also prevented the CEO from granting eligibility for parole under the Sentence Administration Act. In that case, the solution adopted by McKechnie J was slightly different. In that case his Honour directed that the various terms of imprisonment for less than 12 months should, to a considerable degree, be aggregated, resulting in a head sentence of 23 months' imprisonment. His Honour then made a parole eligibility order in respect of that head sentence under the Sentencing Act, s 89.
In this case I consider that the interests of justice require that this appeal be allowed but without varying any of the individual terms of imprisonment which were imposed in the Magistrates Court. Instead, I shall direct that the term of imprisonment of two months cumulative imposed by his Honour Mr Tarr on 15 July 2005 should be served partly cumulatively and partly concurrently with the earlier sentences and that it should begin from 14 September 2005.
The effect of those orders is that the aggregate term of imprisonment will be, at the most, something in the order of 10 months. Consequently, the full discretion of the CEO under s 23 of the Sentence Administration Act will be preserved. This means that it is likely that Ms Graham would have become eligible for parole in about mid‑October 2005 and, if a positive decision about her suitability for parole had then been made, she would have then been released on parole.
Ms Graham in fact remained in prison under these combined sentences until she was granted bail pending this appeal on 14 November 2005. She has consequently spent a longer period in imprisonment than might otherwise have been experienced.
It is not possible for me to order Ms Graham's release on parole because that is a decision which Parliament has placed in the hands of the CEO; however, the probabilities of her being granted parole seem to me to be so promising that I consider that it is undesirable that bail should immediately be revoked for no better reason than sending her back to prison to allow that process of evaluation of suitability for parole to be undertaken. More so is this the case in the light of the fact that Ms Graham is presently at Armadale Hospital undergoing psychiatric treatment for a condition which, apparently, is improving so much so that a rapprochement has occurred between herself and her mother, one of the protected persons under the violence restraining order, which prompted some of these sentences. This recovery has resulted in Ms Graham being in a sufficiently stable condition to attend this courtroom and sit patiently throughout the proceedings this afternoon.
Accordingly, I will refrain from making any orders on this appeal today but will adjourn the case until 9 February 2006 when I am listed to deal with another criminal matter in this Court. I will renew Ms Graham's bail until 9 February 2006 and I express the hope, indeed the expectation, that it may be possible for the question of parole suitability to be considered by the CEO between now and then, especially having regard to the very peculiar circumstances which in this case have resulted in Ms Graham serving a period of imprisonment longer than appears to have been required had this rare, but important, difficulty been recognised at the time of the July 2005 sentence. So the only order today will be that these proceedings are adjourned until 9 February 2006 and that bail is renewed until that date. Copies of these reasons will be made available to the parties and to their solicitors as soon as the transcript service allows that to be done and I ask that that task be given priority. Those will be the orders.

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

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)