Islam v Wasley
[2014] ACTSC 127
•5 June 2014
MIZANUL RAHMAN ISLAM v PAUL HOWARD WASLEY AND DYLAN ROSS [2014] ACTSC 127 (5 June 2014)
APPEAL-GENERAL PRINCIPLES – in general and right of appeal – sentencing – imposition of two non-parole periods – whether appeal can be instituted following events post-dating imposition of sentence – appeal upheld
Crimes (Sentencing) Act 2005 (ACT), ss 61, 65, 66, 74
Magistrates Court Act 1930 (ACT), Pt 3.10
Anderson v The Queen (1997) 92 A Crim R 348
Foote v Dixon (2013) 8 ACTLR 65
Islam v The Queen [2014] ACTCA 2
Mayen v Ryan [2012] ACTSC 172
New South Wales v Kable (2013) 87 ALJR 737
Pantazis v The Queen (2012) 268 FLR 121
R v Babic [1998] 2 VR 79
R v Islam (Unreported, Australian Capital Territory Supreme Court, Gray J, 2 June 2006).
R v Islam (Unreported, Australian Capital Territory Supreme Court, Nield AJ, 26 July 2012).
R v Meyboom (2012) 256 FLR 450
R v Smith (1987) 44 SASR 587
R v WEF [1998] 2 VR 385
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
SCA 40 of 2014
Judges: Refshauge J
Supreme Court of the Australian Capital Territory
Date: 5 June 2014
IN THE SUPREME COURT OF THE )
) No. SCA 40 of 2014
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:MIZANUL RAHMAN ISLAM
Appellant
AND:PAUL HOWARD WASLEY AND DYLAN ROSS
Respondents
ORDER
Judges: Refshauge J
Date: 19 May 2014
Place: Canberra
THE COURT ORDERS THAT:
The time within which Mizanul Rahman Islam may appeal against the sentence imposed by the Magistrates Court on 27 September 2012 be extended to 19 May 2014.
The appeal be upheld.
The non-parole period set by the Magistrates Court on 27 September 2012 be set aside and, in lieu, a non-parole period be set from 12 November 2009 to end on 17 February 2014.
Otherwise the orders of the Magistrates Court be confirmed.
This appeal is brought in unusual circumstances but is, in my view, one that is necessary in the interests of justice.
It arises because of difficulties with the non-parole period set in successive sentences imposed on the appellant, Mizanul Rahman Islam, and how the legislation and the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act), has not provided a simple mechanism for resolving the particular problem.
Setting a non-parole period
Section 65 of the Sentencing Act requires a court, which sentences an offender to a term or two or more terms of imprisonment for one year or longer, to set a non-parole period.
If, however, an offender is sentenced to imprisonment and that offender is already at the time serving a sentence of imprisonment, s 66 of the Sentencing Act applies to require the court, in effect, to re-set the non-parole period. The section is as follows:
(1)This section applies if—
(a)the offender is serving a sentence of imprisonment (the existing sentence); and
(b)the offender is sentenced to a further term of imprisonment (the primary sentence).
(2)Section 65 (Nonparole periods—court to set) applies as if the court that imposes the primary sentence had sentenced the person to imprisonment for a term equal to the total of the terms of the existing sentence and the primary sentence.
(3)The imposition of the primary sentence automatically cancels any nonparole period set for the existing sentence.
(4)Any nonparole period set for the primary sentence must not make the offender eligible to be released on parole earlier than if the primary sentence had not been imposed.
The facts
Mr Islam has a number of offences on his criminal record. For the purpose of these reasons, it is appropriate to refer first to an aggravated robbery that he committed on 21 August 2005 (the first robbery) and for which he was sentenced on 2 June 2006 to a term of imprisonment for four years with a non-parole period of eighteen months to expire on 21 February 2007: R v Islam (Unreported, Australian Capital Territory Supreme Court, Gray J, 2 June 2006).
He was released on parole on that date, but then committed a further aggravated robbery on 1 May 2008 (the second robbery). He pleaded not guilty to that offence and, because of the congestion in the courts at that time and other delays, some of which he himself appears to have caused, his trial before Nield AJ and a jury did not commence until 14 May 2012.
In the meantime, he committed a number of traffic offences on 21 January 2012, including offences of driving as a special driver with the prescribed concentration of alcohol, driving with the prescribed concentration of alcohol as a repeat offender, driving while driver licence suspended as a repeat offender and resisting a public official, namely a police officer.
On 15 May 2012, the jury in his trial returned a verdict of guilty and he was remanded in custody for sentence on 26 July 2012.
Presumably as a result of the jury’s verdict and his remand in custody, the Sentence Administration Board conducted a hearing and, on 17 July 2012, cancelled Mr Islam’s parole. He was then required to serve the balance of his term of imprisonment namely thirty months to 16 January 2015, subject, of course, to any application for parole in the meantime.
On 26 July 2012, Mr Islam was sentenced for the second robbery to a period of five years. The sentencing exercise was complicated because Mr Islam had spent a long time in various forms of detention, including immigration detention, prior to sentencing. Accordingly, the term of imprisonment was set to commence on 4 October 2010 with a non-parole period of three years and nine months to end on 3 July 2014. See R v Islam (Unreported, Australian Capital Territory Supreme Court, Nield AJ, 26 July 2012).
The earlier non-parole period was cancelled by operation of law (s 66(3) of the Sentencing Act) and the newly set non-parole period applied to the sentences for both the first robbery and the second robbery.
Ms Islam, however, appealed to the Court of Appeal by Notice of Appeal dated 14 August 2012 against the sentence imposed by Nield AJ on 26 July 2012.
Despite that, the Magistrates Court proceeded to sentence Mr Islam on 27 September 2012. Presumably neither party drew that Court’s attention to the appeal, nor sought to adjourn the proceedings as a result. The court imposed short periods of imprisonment of two, three and fourth months partially concurrent, totalling six months, to commence on 15 May 2012.
Although the total period did not exceed one year, the provisions of s 66 of the Sentencing Act nevertheless required the Magistrates Court to set a non-parole period, for that period set on 26 July 2012 itself had then been automatically cancelled under s 66(3) of that Act. The Magistrates Court, constrained by s 66(4) of that Act not to set a period less than the period already set, set the period from 4 October 2010 to 3 July 2014, namely that already set by the Supreme Court, as the new non-parole period, even though the sentence it had imposed would have been served in full over eight months earlier.
While there can be no criticism of the Magistrates Court itself, it is curious that Mr Islam’s legal advisors and, perhaps, the prosecution were not alive to the problem that would be caused by the sentencing in that Court when the offences were likely to attract a term of imprisonment, while an appeal was pending with the risk that the problem with which this appeal is concerned would arise. Perhaps his sentencing in that Court should have awaited disposal of the appeal.
The appeal to the Court of Appeal from the sentence for the second robbery was heard on 29 October 2013 and, on 17 February 2014, the Court of Appeal upheld the appeal and re-sentenced Mr Islam, ordering that the sentence of five years’ imprisonment (the length of which it did not disturb) and the non-parole period commence on 12 November 2009. It reduced the non-parole period to end on 17 February 2014. See Islam v The Queen [2014] ACTCA 2.
The problem
The interaction between the sentence of the Magistrates Court and that of the Court of Appeal on re-sentence have posed problems. There seems, at first sight to be two non-parole periods, one ending on 17 February 2014 (Court of Appeal) and one on 3 July 2014 (Magistrates Court). This is clearly not what the Sentencing Act intends. Indeed, it might be suggested that s 66(3) of the Sentencing Act prevents it happening.
Thus, it seems likely that the re-sentencing of Mr Islam by the Court of Appeal activated the operation of s 66(3) of the Sentencing Act, probably cancelling the non-parole period set by the Magistrates Court.
If that were so, there would not be two non-parole periods of differing lengths. Section 66(4) of the Sentencing Act, however, restrains a court from setting a new non-parole period that makes an offender eligible for parole earlier than the existing non-parole period. This would have restrained the Court of Appeal from setting a non-parole period to end earlier than 3 July 2014. That, however, would have rendered the appeal completely futile as the claimed – and accepted – failure to give Mr Islam credit for the time spent in custody was, inter alia, directed at re-setting the non-parole period so that it started earlier and, even if of the same length, ended earlier.
The solution
There is no obvious solution. If, as appears above, s 66(4) of the Sentencing Act makes the non-parole period set by the Court of Appeal a sentence that is contrary to law, the Court of Appeal could, under s 61 of that Act, re-open the proceedings and make a sentence that is in accordance with law.
That, however, would provide no solution as the Court of Appeal would still be constrained under s 66(4) of the Sentencing Act by the period set by the Magistrates Court – even though it was patently obvious that that period was set by the Magistrates Court because of, and entirely dependent upon, the period set by the Supreme Court sentence that the Court of Appeal had now set aside. Nevertheless, the Magistrates Court order was an order that was valid until itself set aside.
Section 74 of the Sentencing Act permits a court which amends a sentence, whether on appeal or otherwise, to make certain amendments to any other sentence that has been imposed by a court. It, too, constrains the court under s 74(5) of that Act by prohibiting it from amending the term of a sentence or, particularly, the non-parole period. Thus, the Court of Appeal could not have amended the sentence, and particularly the non-parole period set in it, imposed by the Magistrates Court.
The solution to what is clearly an injustice appears to be to permit Mr Islam under Pt 3.10 of the Magistrates Court Act 1930 (ACT) to appeal out of time from the sentences imposed by the Magistrates Court. The ground would be that the sentences were manifestly excessive and that events have rendered them unjust. He has done that.
Jurisdiction
Such appeals are regulated by Pt 3.10.2 of the Magistrates Court Act.
The question, however, is whether the occurrence of an event well after the imposition of the sentence may support an appeal on the ground of manifest excess or injustice.
In R v Babic [1998] 2 VR 79 at 80-1, Brooking JA, with whom Winneke P and Ashley AJA agreed, analysed the authorities or the issue and said
The present case concerns evidence of events after sentence. Evidence of an event occurring after sentence which is said to make the sentence passed excessive will not be received, the correct analysis being, in my view, not that the evidence will not be received as a matter of discretion, but that it will not be received because it is not admissible.
The suggestion that some subsequent event has made a sentence, appropriate when passed, excessive is a matter for consideration by the Executive in the exercise of the prerogative of mercy, not by an appellate court: R v Munday (1981) 2 NSWLR 177 at 178; R v Cartwright (1997) 17 NSWLR 243 at 257 per Hunt and Badgery-Parker, JJ; R v Many (1990) 51 A Crim R 54 at 61-2; R v Maslen & Shaw (1995) 79 A Crim R 199 at 206-7.
His Honour went on, however, to consider cases where such evidence might, despite this approach, be admissible, relevant and even determinative. His Honour said
These authorities recognise, as did two early decisions of the Court of Criminal Appeal in England (R v Green (1918) 13 Cr App R 200 and R v Ferrua (1919) 14 Cr App R 39) that where it is sought to establish that the sentence was excessive evidence of events occurring after sentence may be received by an appellate court in the exercise of its discretion in appropriate circumstances if those events may be said to be relevant, not, so to speak, in themselves, but for the light which they throw on the circumstances which existed at the time of sentence. So in Ferrua evidence from a warder of what had taken place after sentence showed how infirm the prisoner had already been at the time of sentence and in Smith the fresh evidence showed the extent and implications of the AIDS condition from which the appellant was already suffering at the time of sentence. A similar case is R v Bailey (1988) 35 A Crim R 458.
The decision most often cited in Victoria on the reception of evidence of events occurring after sentence in support of an application for leave to appeal is that of the Court of Criminal Appeal in R v Eliasen (1991) 53 A Crim R 391. That too was a case of AIDS, where the applicant was sentenced before the results of testing for AIDS were known and after sentence those results showed that at the time of sentence he was suffering from the disease. Crockett, J, speaking in effect for the Court, endorsed the view taken by the Court of Criminal Appeal of South Australia in Smith that when a sentence is attacked as excessive it is permissible to have regard to events occurring after sentencing for the purpose of showing the true significance of facts which were in existence at the time of sentence.
As Winneke P, with whom Charles JA and Hampel A-JA agreed, said in R v WEF [1998] 2 VR 385 at 388-9
... this court has recognised that there is a rare exception to this otherwise fundamental rule. The court will receive evidence of events occurring after sentence, in appropriate circumstances, if those events can be said to be relevant, not so much per se, but because they threw a different light on circumstances which existed at the time of the sentence.
To the same effect was what was said by the Western Australian Court of Appeal in Anderson v The Queen (1997) 92 A Crim R 348 at 349-59 and the South Australian Court of Criminal Appeal in R v Smith (1987) 44 SASR 587 at 588.
See, more recently, Pantazis v The Queen (2012) 268 FLR 121 at 150-1; [112].
The question then is whether the decision of the Court of Appeal, which clearly post-dates the sentence imposed by the Magistrates Court, fits within this exception. It is, of course, different in nature to the discovery of an illness present at the time of the sentence, such as AIDS, but which was not then diagnosed or the seriousness or effects of which were not then appreciated.
Here, however, there was an appeal by Mr Islam to the Court of Appeal that was current at the time the Magistrates Court sentenced him and the appeal was in respect of the sentence that the Magistrates Court, in any sentence of imprisonment it imposed, would affect by virtue of s 66(3) of the Sentencing Act.
Further, the non-parole period for the length of which, by s 66(4) of the Sentencing Act, the Magistrates Court was itself constrained when setting, as it had to, a fresh non-parole period, might be said not to have been properly or finally set until the appeal has been decided. When, as here, the non-parole period is to be reduced and was reduced, the original sentence can be seen to have been manifestly excessive not through any failure of the Magistrates Court at the time, but by virtue of subsequent events which threw proper light on the non-parole period that limited the sentence to be imposed by the Magistrates Court.
The appeal
As a result, Mr Islam has sought leave to extend the time within which to appeal from the sentences of imprisonment imposed by the Magistrates Court on 27 September 2012. He then sought to appeal on the ground that, as a result of the decision of the Court of Appeal, those sentences are unjust and manifestly excessive.
An application for leave to extend time to appeal should explain the delay and identify prospects of success. See R v Meyboom (2012) 256 FLR 450 and Mayen v Ryan [2012] ACTSC 172.
The explanation for the delay is that Mr Islam’s appeal to the Court of Appeal was not heard and determined until 17 February 2014, before which there was no actual, though contingent, ground to appeal from the sentence of the Magistrates Court, and he did not appreciate until it was raised by the careful officers of the Sentence Administration Board that there was a problem and that it may have to be resolved by an appeal.
For the reasons set out above, the appeal must succeed, as the only basis for the setting of the non-parole period by the Magistrates Court, namely the non-parole period set by the Supreme Court, has now been shown to be wrong by the Court of Appeal’s re-sentencing.
It is very clear that the Magistrates Court set the non-parole period it did because of the non-parole period in the sentence the subject of the decision by the Court of Appeal. A change in that should certainly, in those circumstances, require alteration of the non-parole period set by the Magistrates Court.
Very properly, the Director of Public Prosecutions has consented to the extension of time and to the appeal being upheld. Ms Islam’s legal representatives, who appear, in the best traditions of the profession, to be acting pro bono to resolve the matter have acted with commendable promptitude to have this matter heard and determined.
For the reasons advanced earlier, the non-parole period set by the Magistrates Court on 27 September 2012 must be set aside and a new non-parole period from 12 November 2009 to 17 February 2014 must be set.
Again, very properly, the Director of Public Prosecutions co-operated in having the matter dealt with expeditiously and consented to the upholding of the appeal. Appellable error was identified so it was appropriate to uphold the appeal in those circumstances. See Foote v Dixon (2013) 8 ACTLR 65.
Will the upholding of the appeal create a problem?
It is important when attempting to rectify a problem to ensure that that haste or lack of care do not result in other problems arising. Unforeseen consequences can be problematic.
It seems to me that, insofar as the upholding of the appeal in this case may amount to a re-sentencing and activate s 66(3) of the Sentencing Act, that is not a problem because the period to be set will now coincide with that set by the Court of Appeal, namely, a non-parole period from 12 November 2009 to 17 February 2014.
It may be argued that, because the decision of the Court of Appeal, when made, appeared to be contrary to law, it is somehow invalid or provisional. It is clear that this is not correct. As a decision of a superior court of record, it is valid until set aside, as was recently confirmed by the High Court in New South Wales v Kable (2013) 87 ALJR 737 at 746; [32]-[34].
If, then, the decision I now make by upholding this appeal, and therefore re-sentencing Mr Islam, brings into operation s 66(3) of the Sentencing Act, that creates no difficulty either, for the re-setting of the non-parole period to end on 17 February 2014 will comply then with s 66(4) of that Act, bringing both orders into line and achieving the result sought.
Disposition
On 19 May 2014, I made the necessary orders and said I would give my reasons later. These are my reasons.
I thank counsel and their instructors for the prompt, co-operative and effective contribution to rectifying the problem. That was important in this case, for I understand that the Sentence Administration Board proposed or had decided to grant Mr Islam parole from the day after I upheld the appeal.
It would be helpful were the problem that this case has highlighted to be addressed by the legislature, too. That could, presumably, be achieved by addressing the issue through amendment to s 74 of the Sentencing Act to permit an appellate court which amends a sentence that has been affected by s 66 of that Act to make any appropriate amendments to that sentence occasioned by its decision, even if that means re-setting a non-parole period that is shorter than the extant one. I trust my remarks will be brought to the attention of the appropriate authorities.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.
Associate:
Date: 5 June 2014
Counsel for the Appellant: Mr K Archer
Solicitor for the Appellant: Paul Edmonds Solicitor
Counsel for the Respondent: Ms M Jones
Solicitor for the Respondent: ACT Director of Public Prosecutions
Date of hearing: 19 May 2014
Date of judgment: 5 June 2014
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