Henning v The Queen - [2000] WASCA 99

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: HENNING -v- THE QUEEN [2000] WASCA 99

CORAM: WALLWORK J
MURRAY J
SCOTT J

HEARD: 3 FEBRUARY 2000

DELIVERED : 12 APRIL 2000

FILE NO/S: CCA 173 of 1999

BETWEEN: KIMBERLEY HENNING
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Sentencing - Offences of possession of cocaine and heroin with intent to sell or supply - Aggregate term of 11 years imprisonment imposed - Whether order of eligibility for parole covering all offences should be made - Principles governing making of order for some sentences only, discussed

Legislation:

Sentencing Act, 1995 (WA) s 89

Result:

Extension of time to apply for leave to appeal against sentence refused

Representation:

Counsel:

Applicant: Mr T F Percy QC & Mr C P Shanahan
Respondent: Mr M Mischin

Solicitors:

Applicant: Kitto & Kitto
Respondent: State Director of Public Prosecutions

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

Deakin v The Queen (1984) 58 ALJR 367
Gavin v The Queen (1992) 6 WAR 195
R v Gray [1977] VR 225
R v Wongawol (1998) 101 A Crim R 350
Thompson v The Queen (1992) 8 WAR 387

Case(s) also cited:

Bellissimo v The Queen (1996) 84 A Crim R 465
Musarri & Ors v The Queen & Anor [1998] WASCA 312
Power v The Queen [1974] 131 CLR 623
Quach v The Queen [1999] WASCA 210
R v Dao, unreported; CCA SCt of WA; Library No 980619; 29 October 1998
R v Mitchell (1996) 85 A Crim R 308

WALLWORK J: I agree with the reasons for judgment of Murray J. There is nothing I wish to add to those reasons.
MURRAY J: This is an application for an extension of time within which to seek leave to appeal against sentence. On 5 November 1998 the applicant was sentenced by L A Jackson DCJ in the District Court to 8 years imprisonment for an offence of possession of heroin with intent to sell or supply, committed on 7 July 1998. He was sentenced to 3 years imprisonment concurrent for an offence of possession of cocaine with intent to sell or supply committed on the same date and he was sentenced to a further 3 years imprisonment to be served cumulatively for a further offence of possession of heroin with intent to sell or supply committed on 17 August 1998. The aggregate term of imprisonment was therefore one of 11 years and the learned sentencing Judge ordered eligibility for parole with respect to the first two sentences, but not the third.
It is that third sentence which is the subject of the application for leave to appeal which appears to have been filed on 30 August 1999, well out of time. As argued, the application depended upon the sole ground that Jackson DCJ erred in not making an order of eligibility for parole affecting the cumulative sentence of 3 years imprisonment. Given the considerable delay in making the application, exceptional circumstances will need to be shown before the necessary extension of time will be granted, unless to refuse the extension would result in the miscarriage of justice of which the applicant complains being left unaddressed: Gavin v The Queen (1992) 6 WAR 195, 198, 201 ‑ 203.
The application for an extension of time is supported by the applicant's affidavit which explains that he was informed of the 21 day limitation period by his solicitors in a letter which he received shortly after the period had expired. An opinion was obtained from counsel upon the prospects of a successful appeal and on 4 December 1998 the applicant attempted to instruct his solicitors to initiate the appeal. They would not accept these instructions without funds being made available. The applicant was unable to obtain legal assistance. By March 1999 he had decided to endeavour to conduct his own appeal. He retrieved his file from the solicitors, but after a short time it was decided that a further legal opinion be obtained, this time from senior counsel. This was an exercise which appears to have been undertaken by the solicitors and counsel without funding. To initiate the appeal the solicitors requested the provision of funds and by mid‑July 1999 $2,000 on account of costs was provided by the applicant's parents. The applicant says that it was not until senior counsel gave a rather more optimistic opinion as to the

prospects of success of an appeal that he was able to persuade his parents to provide funding.

There has been inordinate delay in this case. While I can understand the difficulty confronting a sentenced prisoner who is without funds, the reasons for the delay given in this case show that the initiation of the application was not pursued with the urgency and vigour which was reasonably to be expected. Unless the substantive point about eligibility for parole which is sought to be raised by the application is found to be good, I would not grant the extension of time.
As to the merits of the application then, the particulars of the ground alleging error in the refusal of eligibility for parole with respect to the particular sentence in question are as follows:
"PARTICULARS
(a)In making an order for eligibility for parole in respect of the offence contained in the first Indictment, his Honour had come to a finding that the Applicant was a person in respect of whom it was appropriate to make an order of eligibility for parole;
(b)The decision to refuse parole on the second Indictment was inconsistent with the exercise of discretion in respect of the first Indictment;
(c)The fact that the offence contained in the second Indictment had been committed whilst on bail did not of itself warrant the refusal of an order for parole;
(d)It was inappropriate to refuse parole in respect of the offence in the second Indictment as a means of further punishing the accused for the fact that the offence had been committed whilst on bail."
It should be understood that the first two sentences to which I have referred above were imposed with respect to offences charged in one indictment, both of which were committed on 7 July 1998. The offence the subject of the appeal was charged in a separate indictment and was committed about six weeks later on 17 August 1998. It appears that with respect to the first two offences the applicant was first brought before the Court of Petty Sessions on 8 July when he was admitted to bail and released. It appears that the applicant was acting as a courier to provide the drugs to a purchaser a little lower down the distribution chain to complete a sale which had already been made. For that service the applicant was to receive $10,000. The quantity, particularly of the heroin, was very substantial.
When the applicant came before the District Court it was upon his committal for sentence after pleas of guilty had been entered in the Court of Petty Sessions pursuant to the process of expedited committal. In the presentation of the plea in mitigation his counsel informed the court that the offence committed on 17 August 1998 was committed for the following reason:
"In this case my specific instructions are that he was put under a high degree of pressure by somebody that he knew ‑ and he is not prepared to tell me any more ‑ that he was required to bring the second quantity of heroin to somebody as a result of losing the first consignment. He is not going to defend this on the basis that he was forced into it under some extraordinary emergency or he was forced to do it. He simply offers that explanation to the court."
Jackson DCJ was unimpressed. His Honour rightly took the view that the commission of the second offence in precisely similar circumstances to the first so shortly afterwards, and while on bail, was "a blatant breach of the law: it is a thumbing of your nose at the laws of society …". His Honour found that the applicant had been involved in drug trafficking for some time. Indeed he had previously been convicted of drug offences. The only mitigation of any substance was to be found in the expedited pleas of guilty.
Upon imposing the first two sentences of imprisonment his Honour ordered eligibility for parole without comment, but upon the imposition of the third sentence, the cumulative term of imprisonment of 3 years, his Honour said:
"So far as that offence is concerned, that as I say having been committed in a most blatant disregard for the law some six weeks after you had been arrested on the first count, I do not think there is anything that triggers parole eligibility. With respect to the second indictment, therefore, you are not eligible for parole."
Eligibility for parole may be ordered under the Sentencing Act 1995 (WA), s 89. The section provides:
"(1)A court sentencing an offender to one or more fixed terms may, if it considers that it is appropriate to do so, order that the offender be eligible for parole by making a parole eligibility order.
(2)In determining whether it is appropriate to make a parole eligibility order, a court may have regard to all or any of the following:
(a)the seriousness and nature of the offence;
(b)the circumstances of the commission of the offence;
(c)the offender's antecedents;
(d)circumstances relevant to the offender or which, in the court's opinion, might be relevant to the offender at the time when the offender would be eligible for release on parole if a parole eligibility order were made;
(e)any other reason the court decides is relevant.
(3)A parole eligibility 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.
(4)A parole eligibility order must not be made in respect of a prescribed term.
(4)If a court decides that an offender is to be eligible for parole in respect of 2 or more of the fixed terms it imposes, it is to make a single parole eligibility order in respect of those terms."
Section 93 and s 94 deal with the consequence, by way of early release, of the making of an order of eligibility for parole. The legislation substantially repeats the provisions of its statutory precursor.
In R v Wongawol (1998) 101 A Crim R 350, 353, 359, this Court held that the principles governing the exercise of the discretion to order eligibility for parole under s 89 were those which had been held to apply to the earlier legislation. Those principles are conveniently stated in the judgment of the Court in Thompson v The Queen (1992) 8 WAR 387 at 395 ‑ 396. I need not repeat in full what was there written, but it is obvious that Jackson DCJ adverted to those principles when he said that he found nothing to trigger parole eligibility with respect to the sentence in question.
As was held in Thompson, following the decision in the High Court in Deakin v The Queen (1984) 58 ALJR 367, "parole serves to mitigate punishment as well as provide an opportunity for rehabilitation". It follows from that statement of the law, and indeed it is obvious in terms of s 89 itself, that it would be an error in the exercise of the discretion to deny eligibility for parole, as particular (d) of the ground of appeal has it, "as a means of further punishing" the offender. That is not at all what parole is about, but I think it is also clear that Jackson DCJ did not refuse eligibility for parole with respect to the offence in question for this reason.
Certainly his Honour had regard to the fact that this offence was committed while the applicant was on bail in respect of the first two offences. He was right to do so, for the reason he gave. It was one of the circumstances surrounding the commission of the offence and it bore upon the proper evaluation of its seriousness and the prospects of the applicant's reformation which, he was asserting, were good. As the Full Court of Victoria put it in R v Gray [1977] VR 225 at 230:
"The real point is that the commission of offences whilst on bail indicates contempt for or disregard of the system of law under which bail was granted to the offender; it suggests that the offender has small regard for the law and little intention of obeying its commands. … Just as conduct subsequent to the commission of the offence which indicates a clear intention to reform is a matter which the offender is entitled to have taken into account in his favour, so also conduct tending in the other direction, ie showing that the offender is unlikely to reform, or has at least not yet reformed, is a matter relevant to the sentencing discretion, if or in so far as it suggests that to extend clemency would serve no useful purpose or that leniency is likely to be abused."
For the same reason, in my view, the fact that the offence was committed while on bail was relevant to the exercise of discretion whether or not to grant eligibility for parole.
Of course, the mere fact that the offence was committed while on bail would not necessarily dictate that the discretion should be exercised to refuse eligibility for parole, but because of the attitude to the law that this circumstance evinced, it was certainly a most important consideration and was properly so regarded by Jackson DCJ. It was a circumstance which ordinarily would militate against the grant of eligibility for parole unless the other circumstances of the case relevant to the exercise of that discretion demonstrated, on the contrary, that eligibility for parole should be granted. The point is, so far as this Court is concerned, that the fact that the offence was committed while on bail and that it was of itself a serious offence of the kind previously committed in respect of which bail was granted, were properly matters to be taken into account in the exercise of the discretion, which cannot therefore be said to have miscarried upon that ground.
The first two particulars of the ground of appeal require notice to be taken of the terms in which the power to make an order of eligibility for parole is conferred by s 89. A number of points may be made. The whole section makes it clear that it is an order made in respect of the particular offender, but the order is nonetheless also made with respect to particular offences. By s 89(2) the court may have regard to the seriousness and nature of the particular offence and the circumstances of its commission as well as to circumstances personal to the offender. Section 89(5) makes it clear that where the order is made with respect to a number of terms of imprisonment, a single parole eligibility order is to be made. But the subsection also makes it abundantly clear that the order need not be made with respect to every term of imprisonment then imposed by the court, because it speaks of the decision that the offender is to be eligible for parole "in respect of 2 or more of the fixed terms it imposes".
It follows that the decision to order eligibility for parole in respect of one or more of the sentences imposed need not, and indeed should not, dictate that the order will be made to apply to all of the sentences imposed. A decision such as that made in this case will be upheld where there is a rational basis relevant to the exercise of the discretion for distinguishing between the various offences before the court. In my opinion, the fact that the third offence was committed while on bail and was an offence of the same type as those previously committed, were sufficient grounds upon which the court might reasonably exercise its discretion to grant eligibility for parole in respect of the earlier offences, but refuse to make such an order in respect of the last offence committed.

In my view the ground of the proposed application for leave to appeal against sentence cannot be sustained and I would therefore refuse the necessary extension of time.
Before leaving this case I cannot but notice, however, that as a result of the number of years involved in the various terms, the outcome of the application for leave to appeal being successful would in one sense be moot. Having regard to the way in which his Honour structured the sentences in question and the extent to which he ordered them to be served concurrently and cumulatively, the result in terms of time served before the applicant became eligible for parole would be the same.
As Jackson DCJ structured the sentences, the 3 year term imposed without eligibility for parole would be served first: Sentence Administration Act 1995 (WA), s 8(1)(a). Under the Sentencing Act, s 95(1), two thirds of that term must be served, a period of 2 years. Upon completion of service of that term the applicant would commence to serve the aggregate term of 8 years imprisonment imposed with respect to the first two offences: Sentence Administration Act, s 8(1)(b). The non‑parole period of that aggregate term is 2 years less than two thirds of the term: Sentencing Act, s 93(1)(b), a period of 3 years and 4 months. So the total time to be served before eligibility for parole is a period of 5 years and 4 months.
If the application for leave to appeal was to succeed the result would be one parole eligibility order in respect of all of the terms of imprisonment imposed, aggregating 11 years: Sentencing Act, s 89(5). Applying the calculation of the non‑parole period required by s 93(1)(b) of that Act to arrive at the term which is 2 years less than two thirds of the 11 year aggregate term, would result again in the applicant being required to serve a period of 5 years and 4 months before becoming eligible for parole.
SCOTT J: I have had the opportunity of reading draft reasons prepared by Murray J. I agree with those reasons and with the conclusion that his Honour's reasons particularly that the extension of time should be refused.
I expressly endorse the observations of Murray J in concluding that, even if the appeal was successful, in the end result the non-parole period to be served by the applicant would be exactly the same as the present sentence. That is, the result of the application of the provisions of the

Sentencing Administration Act 1995 coupled with the provisions of the Sentencing Act 1995 as they apply to the applicant's sentence.

In the end result, to allow this appeal in the manner contended on behalf of the applicant would make little, if any difference, to his sentence. That is a product of the way in which the Sentencing Act 1995 and the Sentencing Administration Act 1995, each of Western Australia, operate in conjunction with one another in the present circumstances.
In the circumstances, therefore, in my opinion, even looked at in the most favourable light for the applicant, there was little merit in the appeal.