Hayden v The Queen - [2003] WASCA 210

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: HAYDEN -v- THE QUEEN [2003] WASCA 210

CORAM: ANDERSON J
STEYTLER J
MCKECHNIE J

HEARD: 24 JULY 2003

DELIVERED : 9 SEPTEMBER 2003

FILE NO/S: CCA 249 of 2002

BETWEEN: DAVID PAUL HAYDEN
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal practice and procedure - Sentencing - Order of service of sentences - Effect of concurrent sentences on order of service

Legislation:

Sentence Administration Act 1995 (WA)

Sentencing Act 1995 (WA), s 32

Result:

Appeal dismissed

Category: D

Representation:

Counsel:

Applicant: Mr A E Monisse
Respondent: Mr R E Cock QC

Solicitors:

Applicant: GC & KC Christou
Respondent: State Director of Public Prosecutions

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

Jarvis v The Queen (1993) 20 WAR 201
McLean v The Queen [1999] WASCA 209
Miles v The Queen (1997) 17 WAR 518
R v Roworth [2003] WASCA 120
R v Valentine [2003] WASCA 7
Taylor v The Queen, unreported; CCA SCt of WA; Library No 980152; 6 April 1998

Case(s) also cited:

Chan v The Queen (1989) 38 A Crim R 337
Dinsdale v The Queen (2000) 202 CLR 321
Forbes v The Queen, unreported; CCA SCt of WA; Library No 950226; 20 February 1995
Hayden v The Queen, unreported; CCA SCt of WA; Library No 940441; 24 August 1994
Mill v The Queen (1988) 166 CLR 59
Verschuren v The Queen (1996) 91 A Crim R 1; 17 WAR 467

ANDERSON J: I have read the judgment of McKechnie J and agree with it. There is nothing I wish to add.
STEYTLER J: I have had the advantage of reading the reasons for decision of McKechnie J. I agree with them. There is nothing I wish to add.
MCKECHNIE J: On 4 December 2002 the applicant, having pleaded guilty at the first opportunity, was convicted of one count of armed robbery and one count of burglary. He also acknowledged his guilt in relation to a series of matters brought into the Supreme Court pursuant to the Sentencing Act 1995 (WA) s 32.
The sentencing Judge, Murray J, observing that the applicant would get a very considerable credit for the process of the fast‑track pleas of guilty and the s 32 notice procedure, imposed a term of 5 years imprisonment in respect of the armed robbery; 18 months imprisonment in respect of the burglary, and in respect of the other matters, sentences which ranged from 3 months to 1 year. He ordered that the imprisonment for the burglary be served cumulatively on the armed robbery and structured the other sentences so that they resulted in a cumulative additional sentence of 18 months, to make the total term of imprisonment one of 8 years. He declined to order parole.
The applicant appeals on two grounds. The first is that "the overall sentence of 8 years imprisonment was manifestly excessive in all the circumstances", particularised at the hearing as follows:
"a)The 5 year sentence imposed for the armed robbery conviction;
b)The mitigating factors personal to the applicant, particularly the remorse demonstrated by the applicant through his co‑operation with the Police, in the video record of interview to the victim of the armed robbery, and with his fast track and s 32 pleas;
c)The totality principle, as invoked by the multiplicity of offences and the applicant's 3008 (sic) outstanding parole days."
The second ground Is that "the learned sentencing Judge erred by not making a parole eligibility order." I can briefly dispose of grounds 1(a)

and ground 2. Ground 1(c) raises an interesting question which I will explore in detail.

Sentence of 5 years for armed robbery not excessive

It was argued on the applicant's behalf that the circumstances of the armed robbery were on a par with street mugging.
On 6 August 2002 at about 7 am, the applicant tried to steal a car parked outside a house. He was able to start the car, but not able to steer it as the steering wheel was locked. While he was trying to break the steering lock, the complainant, who was the car's owner, approached the driver's side door and opened it. When she demanded he stop, the applicant threatened to stab her with a knife. She retreated. He drove on a little further with the wheel lock still on, but was arrested by police in a short time.
The range of sentences commonly imposed for a single offence of armed robbery is between 6 to 9 years imprisonment: Miles v The Queen (1997) 17 WAR 518; Taylor v The Queen, unreported; CCA SCt of WA; Library No 980152; 6 April 1998; R v Valentine [2003] WASCA 7; R v Roworth [2003] WASCA 120.
The applicant was aged 45 at the time of the offence and sentence and has regularly offended since 1977. He has neither youth nor prior good character on his side. The trial Judge said:
"So I want to tell you that I think I need to be as lenient in your case as I can be but I struggle with leniency because there's so little that operates in mitigation."
The Judge was prepared to accept the early plea and remorse as mitigating factors. Having regard to the principles relating to the sentence for armed robbery, the fact that the Judge took into account the plea of guilty and remorse and from his comments was plainly aware of the totality of the sentence of 8 years, there is no merit in the submission that a sentence of 5 years imprisonment for armed robbery is manifestly excessive.

The aggregate sentence of 8 years was appropriate

There is no complaint as such about the length of terms imposed in respect of the burglary offences or the other offences. It is submitted the multiplicity of offences were committed over a 4 month period. The Judge was required to review the aggregate and consider whether it was just and appropriate when considering the totality of the criminal behaviour.
Although the offences took place over a 4 month period, they were, to a large degree, separate offences meriting separate punishment. In addition to the armed robbery and burglary, the applicant pleaded guilty to possession of a smoking utensil, four stealing offences, two offences of stealing a motor vehicle, two assaults occasioning bodily harm, attempted fraud and a wilful damage. The sentences, together with the sentence for burglary, increased the applicant's aggregate sentence by 3 years. Such a sentence, for the criminal conduct it represents, is moderate. When considered with the sentence for armed robbery, I am unable to conclude that the aggregate sentence of 8 years is so disproportionate to the totality of the criminal conduct as to manifest error.
I would not allow the appeal on ground 1(a) and (b).

Refusal to order parole

The applicant's past performance on parole was relevant. The present offences were all committed while the applicant was subject to a current parole order imposed on 20 June 2001. The applicant re‑offended within 9 months of that order. He had breached his remaining parole orders which were subsequently cancelled, by way of re‑offending, in 1994, 1997 and 2000. He successfully completed a parole order in 1986 and a work release order in 1992.
The indications are that he will remain at risk to himself and the community until he seriously addresses his problematic substance abuse.
The Judge correctly set out the test for making a parole eligibility order but could find no grounds to make such an order.
The decision not to order parole was a matter for the Judge's discretion and I am unable to say that the discretion in any way miscarried.

The totality principle as invoked by the applicant's outstanding 3,018 parole days

I turn now to consider the ground upon which I would grant leave to appeal. It arises this way. The applicant appeared in court on 7 August 2002. It appears that a bail application may have been made, but in any event bail was refused on that day and he was remanded in custody until sentenced.
Counsel advised the Judge that the parole days yet to be served, because the applicant had breached his parole, numbered 3,008. Counsel for the respondent on appeal advised that the correct figure should be 3,018 days and I have adopted that figure. Nothing turns on the difference for the purposes of the appeal. These days yet to be served are colloquially known as "days owed the Parole Board" and I shall use that phrase.
It is clear what the Judge intended. In the course of discussion with Crown counsel about whether the sentence should be backdated, the Judge said:
"It's really a question of whether one allows the sentence that one must impose to swallow at least a portion of those previously unserved terms or terms in respect of which something is unserved. That would seem to me to be a kindness, a leniency which could be shown to this offender."
In the course of his sentencing remarks he said:
"… The sentences I impose will then commence to be immediately served, as they have been on that order, from 6 August. My hope is that they will substantially swallow and dispose of previous terms but, as I say, there may still be a parole capacity at the end of that route."
Clearly, the Judge intended the sentences he imposed should be served concurrently with the 3,018 days which were owed to the Parole Board. The question which arises for determination is whether the Judge's intention was effective or whether, contrary to that intention, the effect of the sentence he imposed is that the days owed do not begin being served until the expiration of the fixed portion of the sentences.

The relevant legislation

The relevant portion of the Sentencing Act 1995 (WA) is to be found in Part 13 - "Imprisonment". Section 85 gives a number of definitions including "fixed term" which means a term that is not a life term. All the applicant's sentences, both those imposed by the Judge and those imposed previously, were fixed term sentences.
A "parole term" means "a term to which a parole eligibility order applies".
"'Term' means a term of imprisonment imposed on an offender by a court as a sentence, whether a fixed term or a life term, …"
Section 85(2) provides:
"(2)For the purposes of this Part and Parts 11 and of the Sentence Administration Act 1995, the aggregate of 2 or more fixed terms is the total effective period of imprisonment imposed on the offender having regard to whether the fixed terms are to be served concurrently or cumulatively or partly cumulatively."
Under Division 2 entitled "Imposing Imprisonment":
88.Concurrent, cumulative or partly cumulative terms
(1)An offender sentenced to a fixed term is to serve that term concurrently with any other fixed term that he or she is serving or has yet to serve, unless the sentencing court makes an order under subsection (3).
(2)An offender sentenced at the one time to one or more fixed terms is to serve those terms concurrently, unless the court makes an order under subsection (3).
(3)If at the time an offender is sentenced to a fixed term
(a)the offender is serving or has yet to serve another fixed term imposed previously; or
(b)the offender is then also sentenced to serve another fixed term,
the sentencing court may order that -
(c)the fixed term is to be served cumulatively on the other fixed term; or
(d)the fixed term is to be served partly cumulatively on the other fixed term.
(4)If under subsection (3)(d) a court orders that a term is to be served partly cumulatively on another fixed term, the court must specify the period of the other fixed term that is to be served before the partly cumulative 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.
(5)An offender sentenced to a life term is to serve that term concurrently with any other term that he or she is serving or has yet to serve."
Section 95 reads:
"95. Release from a fixed term (not a prescribed term)
(1)A prisoner serving a fixed term that is neither a prescribed term nor a parole term is discharged from that sentence when he or she has served two thirds of the term and, subject to Division 2 of Part 2 of the Sentence Administration Act 1995, must be released then.
(2)If a prisoner serving a parole term has not been released on parole before he or she has served two thirds of the term, then the prisoner is discharged from that sentence when he or she has served two thirds of the term and, subject to Division 2 of Part 2 of the Sentence Administration Act 1995, must be released then."
Under the Sentence Administration Act 1995, Part 2 is entitled "GENERAL MATTERS ABOUT PEOPLE IN CUSTODY". Division 2 provides:
"7. When a term begins
(1)Unless this section provides otherwise or an order is made under section 87 (d) or 88 (3) of the Sentencing Act 1995, a term, other than indefinite imprisonment, begins on the day it is imposed, or if the prisoner is not then in custody, on the day he or she is arrested under a warrant issued in respect of the sentence.
(2)If a term is cumulative on one or more other terms then that term begins on the earliest date on which the prisoner could be released in relation to the last to be served of those other terms, whether or not the release would otherwise be under -
(a)a parole order; or
(b)a recognizance release order, or a parole order, made under the Crimes Act 1914 of the Commonwealth.
8.Order of service of fixed terms
(1)A prisoner sentenced to serve 2 or more fixed terms is to serve those terms in this order:
(a)firstly, those that are not parole terms are to be served according to whether they are concurrent or cumulative with one another;
(b)secondly, the non-parole periods of those that are parole terms are to be served according to whether those parole terms are concurrent or cumulative with one another;
(c)thirdly, unless and until released on parole, the balance of any parole terms after the end of any non-parole periods are to be served according to whether they are concurrent or cumulative with one another.
(2)If while serving a fixed term a prisoner is sentenced to serve another fixed term, other than a fixed term ordered to be served partly cumulatively on another term, service of the former is suspended if necessary so that the terms can then be served in the order required by subsection (1).
(3)In this section -
'fixed term' includes a period of imprisonment ordered under section 58 or 59 of the Sentencing Act 1995;
'non-parole period', in relation to a parole term, means the period that under section 93 of the Sentencing Act 1995 the prisoner has to serve before he or she is eligible to be released on parole."
It is a condition of every parole order that if a prisoner commits an offence and is sentenced to imprisonment, the parole order shall be cancelled: Sentence Administration Act s 30(2)(a), s 70(1)(a). The effect of cancellation is that the prisoner is then liable to resume serving the fixed term in custody and is not entitled to be released until he or she has served the whole of that term, although another early release order may be made at any time: s 71(1), (6).
I return to s 8 of the Sentence Administration Act. The apparent difficulty in construing the section arises by the use of the expression "order of service of sentences". Properly understood, this is a different concept from a court order that sentences be served cumulatively or partly cumulatively or, by order or operation of the Sentencing Act, concurrently. So much is reflected in the terms of s 8 which provide for an order of service according to whether terms are concurrent or cumulative and reflects the general discretion in respect of fixed terms given to a Judge under the Sentencing Act s 88.
Section 8 of the Sentence Administration Act is an administrative provision not intended to interfere with the judicial discretion to order cumulative sentences. The fact that sentences are served in a particular order does not in truth refer to their concurrency or cumulation at all. It is merely to determine the order of service for the purposes of release. I shall use an example. Suppose a person was sentenced to a fixed term of 5 years imprisonment with no parole eligibility order. They would be eligible for release at the expiration of 40 months, being two‑thirds of the term of 5 years. (I have ignored possible earlier release dates for work release). Suppose also at the time or before or after they were sentenced to a term of imprisonment of 6 years with a parole eligibility order. The prisoner would become eligible for parole after service of 24 months of that sentence.
Assume that the sentences are to be served concurrently either by order or by the operation of s 88 of the Sentencing Act. Because s 8 of the Sentence Administration Act prescribes the order in which the sentences are to be served, the prisoner would have to serve 40 months of the term of 5 years and is discharged from that sentence and must be released unless required to be kept in custody in respect of another matter: Sentencing Act s 95; Sentence Administration Act s 11.
Because the prisoner in the hypothetical example became eligible for release on parole some 16 months earlier, parole could nonetheless not be granted because the prisoner was serving the balance of the 5 year sentence which ranked first in order. In this example it is important to know the order in which sentences are served so that it can be ascertained if the prisoner has served the entire non‑parole sentence of 5 years and so to know that the prisoner may not be released on parole after 24 months, because the 5 year sentence is served in order before the concurrent 6 year sentence.
Counsel for the applicant placed considerable reliance upon McLean v The Queen [1999] WASCA 209. In that case the offender received an effective sentence of 6 years imprisonment without eligibility for parole. The appeal insofar as it related to the length of the sentence and the parole eligibility order was dismissed. However, an adjustment was made because the sentencing Judge had failed to take into account some 1,773 days of imprisonment in respect of outstanding parole. Ipp J (Wallwork and Parker JJ agreeing) delivered the principal judgment. The precise issue in McLean was whether a sentencing Judge could take into account the outstanding parole days because the Parole Board could at any time release the prisoner on parole again in respect of those 1,773 days. Ipp J (with great respect) correctly held that if a prisoner commits an offence while on parole, then if the prisoner is sentenced to imprisonment for that offence, the parole order is automatically cancelled by force of the statute and the offender is obliged to serve the outstanding parole days. I would add that the sentence is not then a sentence with a parole term. The term of the sentence is the total number of days owed to the Parole Board. The point to be emphasised is that the obligation to serve the outstanding parole days arises immediately upon the sentencing to imprisonment for the new offence and does not depend upon any discretion by the Parole Board. It is a statutory consequence that follows. Ipp J applied Jarvis v The Queen (1993) 20 WAR 201 (Ipp and Murray JJ, Anderson J dissenting) to hold that the possibility the Parole Board might release the offender on parole is irrelevant in the sentencing process. In McLean, Ipp J came to the view that there was an error in the sentencing process resulting from the omission to take into account the 1,773 outstanding parole days and he concluded at [28] that even though the individual sentences imposed were not in themselves excessive and it was appropriate in principle for the sentences in respect of the first and second counts to be cumulative, nevertheless when regard is had to the 1,773 days yet to be served by the applicant the totality principle required some further amelioration of the sentences. As a result he reduced the overall sentence to one of 5 years.

The result in McLean

I turn to the practical result in McLean. The original sentence was one of 6 years of which the offender had to serve 4 years before being released from that sentence: 4 x 365 = 1,460 days.
Days owed to Parole Board   1,773 days
Less  1,460 days
Total     313 days
The Appeal Court's restructured sentence is as follows:
Two‑thirds of 5 years   =   1,216 days.
Days owed the Parole Board   1,773 days
less   1,216 days
Total    557 days
Days to be served under
Original sentence  1,460 days
Those to be served under
Revised sentence  1,216 days
Difference   244 days
The revised sentence was served concurrently with the days owed to the Parole Board. Because the sentence was less than the days owed to the Parole Board, the practical effect of allowing the appeal was that the Parole Board was able to give consideration to re‑releasing McLean on parole 244 days earlier than under the original sentence even though the Board had no obligation to do so.

Resolution of the present case

I now return to the present case. As I have previously remarked, it is clear that the Judge intended the outstanding parole days owed to be served concurrently with the sentence he imposed.
The aggregate sentence was 8 years or 2,922 days, two‑thirds of which is 1,948 days.
Days owed to the Parole Board   3,018 days
Less present sentences:   1,948 days
Balance owed to Parole Board after
service of present sentences  1,070 days
The practical effect is that the sentences imposed by the Judge are entirely swallowed up by the days owed to the Parole Board so that the applicant will reach the point when he is discharged from all the sentences imposed by Murray J, 1,948 days after 6 August 2002. At that point he will be liable to serve 1,070 days still owed to the Parole Board. Although the applicant has no entitlement to early release from that sentence, the Parole Board may at any time exercise its power to release him on parole.
The totality principle has no application because the sentence actually imposed by the Judge does not in any way increase the time liable to be served by the applicant. Furthermore, this Court has no power on this appeal to adjust the number of days owed to the Parole Board.
I would grant leave, but dismiss the appeal.