Jackson v The State of Western Australia
[2008] WASC 162
•8 AUGUST 2008
JACKSON -v- THE STATE OF WESTERN AUSTRALIA [2008] WASC 162
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASC 162 | |
| Case No: | INS:120/2007 | 24 JUNE 2008 | |
| Coram: | McKECHNIE J | 8/08/08 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Sentences corrected Terms to be served partly concurrently Minimum term before parole eligibility unchanged | ||
| D | |||
| PDF Version |
| Parties: | AARON BOBBY JACKSON THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law and procedure Correction of sentence Terms partly concurrent No aggregation of parole terms |
Legislation: | Sentence Administration Act 2003 (WA) s 7(2) Sentencing Act 1995 (WA) s 34(2), s 37, s 85, s 86(3), s 88, s 89, s 93(1), s 94 |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Criminal law and procedure - Correction of sentence - Terms partly concurrent - No aggregation of parole terms
Legislation:
Sentence Administration Act 2003 (WA) s 7(2)
Sentencing Act 1995 (WA) s 34(2), s 37, s 85, s 86(3), s 88, s 89, s 93(1), s 94
Result:
Sentences corrected
Terms to be served partly concurrently
Minimum term before parole eligibility unchanged
(Page 2)
Category: D
Representation:
Counsel:
Applicant : Mr W C MacDonald
Respondent : Mr S M Stocks
Solicitors:
Applicant : Dwyer Durack
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Nil
(Page 3)
1 McKECHNIE J: The offender applies for correction of sentence pursuant to the Sentencing Act 1995 (WA) s 37, a power only to be exercised if a court sentences an offender in a manner not in accordance with the Sentencing Act. There is no clerical mistake: s 37(3).
2 The offender pleaded guilty to four counts of attempted armed robbery and one count of armed robbery.
3 In passing sentence I noted that the first attempted armed robbery was particularly serious, and that four other serious offences were committed while on bail, before proceeding:
I will take into account your age, your plea of guilty, the fact that you haven't previously been sentenced to a term of imprisonment to modify significantly the sentences I might have imposed but on each count you will be sentenced to a term of two years' imprisonment. I direct that counts 2 to 5 be served concurrently with each other but served partly cumulatively on count 1 to commence one year into that sentence so that your total sentence will be one of three years' imprisonment.
I will make a parole eligibility order which means you will serve 18 months of that term if you are suitable for parole and I direct that the sentence take effect from 16 June 2007. (ts 24)
A partly concurrent sentence
4 Part of the sentence was not in accordance with the Sentencing Act and must be corrected. I said that counts 2 to 5 were to be served partly cumulatively on count 1. In fact, under s 89 the second term counts 2 to 5 are to be served partly concurrently with count 1.
5 I doubt there is a practical difference in the end result between a sentence said to be partly cumulative or a sentence said to be partly concurrent. However, I acknowledge the sentence did not precisely follow the terms of the Sentencing Act.
The period before parole eligibility
6 Section 34(2) provides:
If a court sentencing an offender imposes a fixed term (as defined in section 85), the court is to state in open court the minimum period that the offender, as a result of the sentence and the operation of this Act, will serve in custody in respect of the term or, if more than one term is imposed, in respect of the aggregate of the terms.
(Page 4)
- The minimum period stated aloud is therefore part of the sentence. If misstated, it must be corrected. Was it misstated?
7 The offender has received advice from the Sentence Information Unit that according to its calculations parole eligibility does not become available for a period of 2 years; that is, June 2009.
8 The solution proposed by the offender is that I should recall the order and direct that counts 2 to 5 be served partly concurrently with count 1 but commencing 6 months after the commencement of the sentence on count 1.
9 There is an immediate difficulty with this proposal. It would reduce the sentence from 3 years' imprisonment which I determined to be the appropriate sentence for the total offending.
10 As it is an error in principle for a judge to have regard to the minimum period which a person might serve through operation of the Sentencing Act in determining the appropriate head sentence, it would be wrong to decide that a person should spend 18 months in custody and structure a head sentence to achieve that result.
11 The Sentence Administration Act 2003 (WA) s 7(2) specifies the order of service of fixed terms and the non-parole periods of those that are parole terms are to be served according to whether those parole terms are concurrent, partly concurrent or cumulative with one another.
12 Under the Sentencing Act, in s 85:
'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.
13 Section 89(5):
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. [my emphasis]
14 The effect of a parole eligibility order made in respect of two or more fixed terms whether to be served cumulatively or partly concurrently is subject to s 94.
15 The Sentencing Act s 93(1) provides, relevantly, that subject to s 94 a prisoner serving a parole term is eligible to be released on parole:
(Page 5)
- (a) if the term served is 4 years or less - when he or she has served one-half of the term; or
16 A different formula applies for sentences that, in total, exceed 4 years.
17 Section 94 provides a mechanism for aggregation of parole terms for certain purposes but not when a sentence is to be served partly concurrently:
A parole term imposed at the same time as another parole term is to be aggregated with that other term for the purposes of subsection (1) unless it is to be served partly concurrently with that other term.[my emphasis] (s 94(3))
18 The Sentencing Act has a table showing some examples. One example is:
|
|
1 year of term 1 to be served before term 2 begins. (See s. 88(4)) |
Serve 1 year of term 1. Then begin serving term 2 concurrently with rest of term 1. Non-parole period on term 2 = 4 years. Result: serve 5 years before eligible for parole. If not paroled, serve 7 years. |
19 This result is also achieved if the single parole eligibility order is made in respect of the total effective period of imprisonment; that is, 7 years: s 93(1)(b).
20 Because the sentence, having been corrected, is now a sentence including a term to be served partly concurrently, there is to be no aggregation of parole terms. As a result, the single parole eligibility order will take effect when the offender has served half of the term and is calculated under s 86(3).
21 The Sentencing Act s 89(4) provides:
A court may decide not to make a parole eligibility order in respect of a fixed term imposed on an offender if the court considers that the offender
(Page 6)
- should not be eligible for parole because of at least 2 of the following 4 factors -
(a) the offence is serious;
(b) the offender has a significant criminal record;
(c) the offender, when released from custody under a release order made previously, did not comply with the order;
(d) any other reason the court considers relevant.
22 This is not a provision for the calculation of a parole term. If a person becomes eligible for parole under the first term and has yet to begin the second term there is no bar to release on parole leading to the odd theoretical situation where a person might be released on parole and then, at some time in the future, be called on to serve the next term in custody.
The purpose of the Sentencing Act
23 This preserves the intention of the Sentencing Act. If the offender was given a sentence of 3 years' imprisonment for each offence, ordered to be served concurrently, he would be eligible for parole after 18 months. If he was given a sentence of 18 months for each offence with one offence being ordered to be served wholly cumulatively on another, the total sentence would be one of 3 years' imprisonment and he would be eligible for parole after 18 months.
24 It does not seem logical that when a sentence is partly concurrent an offender should serve a longer period before being eligible for parole. A construction of the Sentencing Act that leads to such a result does not conform to the purpose of parole eligibility and leads to an absurd result.
25 The Sentence Information Unit wrote to the offender's solicitors on 31 March 2008 as follows:
I have studied the documents enclosed with your request, I have found that the presiding Judge erred in his calculation as to when your client could be made eligible for possible release to Parole.
…
In the sentencing process the Judge directed that counts 2 to 5 are to begin after serving 1 year of count 1 (count 1 being the datum sentence). Therefore for the calculation of your client's EED the first year cannot be taken into account for this process. The start date for the second term is therefore 15 June 2008, with half of the 2 year term to be served from that
(Page 7)
- date before becoming eligible for Parole. Your client's EED is therefore 15 June 2009, which is 1 year after the commencement of counts 2 to 5.
26 The error made by the Sentence Information Unit is to ignore the statutory prescription against aggregation of the parole term when sentences are to be served partly concurrently and the fact that the total sentence is subject to a single parole eligibility order.
Conclusion
27 The sentence is corrected by declaring that the sentences on counts 2 to 5 are be served partly concurrently with the sentence on count 1.
28 The minimum period which the offender must serve before being eligible for parole remains 18 months from 16 June 2007.
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