Kelly, Neil Edward v The Queen
[1996] FCA 415
•24 MAY 1996
CATCHWORDS
Sentence - appeal against sentence - cumulative term of imprisonment imposed for offences committed while on parole - new non-parole period longer than term imposed by additional head sentence - whether disparity constitutes appealable error - seriousness of offences committed on parole relevant factor in setting any new non-parole period - no error of law.
Parole Act 1976 (ACT), ss7, 22, 24, 25
Omar, Rushton & Thomason (1991) 55 A Crim R 373
Kennett v R, unreported, Court of Criminal Appeal, South Australia, King CJ, Bollen and Prior JJ, 18 February 1992
R v Reed, unreported, Court of Criminal Appeal, South Australia, King CJ, Millhouse and Olsson JJ, 8 December 1993
R v Booth, unreported, Court of Appeal, Queensland, Pincus, McPherson JJA and Demack J, 27 October 1995
R v Glen Morris, unreported, Court of Appeal, Queensland, Fitzgerald P, Pincus JA and Dowsett J, 24 February 1995
On appeal from a Judge of the Supreme Court of the Australian Capital Territory
NEIL EDWARD KELLY v THE QUEEN
No. ACT G71 of 1995
DAVIES, HIGGINS and KIEFEL JJ
CANBERRA
24 MAY 1996
IN THE FEDERAL COURT OF AUSTRALIA )
AUSTRALIAN CAPITAL TERRITORY )
DISTRICT REGISTRY ) No. ACT G71 of 1995
GENERAL DIVISION )
ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN: NEIL EDWARD KELLY
Appellant
AND: THE QUEEN
Respondent
CORAM: DAVIES, HIGGINS and KIEFEL JJ
PLACE: CANBERRA
DATE: 24 MAY 1996
MINUTES OF ORDERS
THE COURT ORDERS THAT:
The appeal be dismissed.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
)
AUSTRALIAN CAPITAL TERRITORY )
)
DISTRICT REGISTRY ) No ACT of 1995
)
GENERAL DIVISION )
ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN
CAPITAL TERRITORY
BETWEEN:NEIL EDWARD KELLY
Applicant
AND:THE QUEEN
Respondent
CORAM: DAVIES, HIGGINS & KIEFEL JJ.
DATE: CANBERRA
PLACE: SYDNEY
REASONS FOR JUDGMENT
Davies J: This is an appeal from a sentence imposed on the appellant by the Chief Justice of the Supreme Court of the Australian Capital Territory. I shall set out only such facts as are necessary to understand the issues.
The appellant had been sentenced to seven years imprisonment with a non-parole period of four years, the sentence dating from 12 May 1989. As a result of subsequent events, including an escape from lawful custody and the commission of
offences whilst on parole, the appellant had come to have a head sentence expiring on 21 February 1997 and a non-parole period expiring on 7 September 1995. By virtue of s.22(2) of the Parole Act 1976 (ACT) ("the Act") and the imposition of a period of imprisonment for an offence committed during parole, the existing parole had been deemed to have been revoked. No further parole had been granted after 7 September 1995.
On 9 November 1995, the appellant came up for sentencing on charges of aggravated burglary, theft and assault occasioning actual bodily harm arising out of a single incident which had occurred on 21 January 1995. The sentencing Judge imposed a further sentence of imprisonment of nine months to be served on the expiration of the existing period of imprisonment and expiring on 21 November 1997.
The Act relevantly provided:-
"7. (1) Subject to subsection (2), where a court sentences a person to a term of imprisonment of not less than 12 months or to terms of imprisonment that, in the aggregate, are not less than 12 months, the court shall fix a period as the period during which the person is not to be eligible to be released on parole in pursuance of this Act.
...
(1) Where a person who is serving a sentence of imprisonment (in this section called `the previous sentence') is sentenced to a further term of imprisonment (in this section called `the further sentence'), subsections 7(1) and 7(2) apply as if the court by which the further sentence is imposed had sentenced the person to imprisonment for a term equal to the aggregate of the terms of the previous sentence and the further sentence.
...
(3) The imposition of the further sentence revokes any non-parole period fixed in respect of the previous sentence.
(4)A non-parole period fixed at the time of the imposition of the further sentence -
(a)shall be taken to have commenced on the date on which the previous sentence was imposed; and
(b)shall not be such as to render the person eligible to be released on parole earlier than would have been the case if the further sentence had not been imposed."
By reason of s.8(3) of the Act, the existing non-parole period was therefore revoked by Miles CJ's order. Section 7(1) of the Act, in association with s.8(1), then required the sentencing Judge to fix a period as the period during which the appellant was not to be eligible to be released on parole in pursuance of the Act.
His Honour fixed a new non-parole period to expire on 21 December 1996, effectively requiring the appellant to serve a further 13 months 12 days in prison, but to be eligible for parole during the last eleven months of his sentence.
The principal argument put for the appellant was that his Honour erred in imposing this non-parole period when the new head sentence imposed was only of nine months duration. It was submitted that his Honour took into account irrelevant factors or that his discretion miscarried.
However, s.8 of the Act required the trial Judge to fix a non-parole period having regard not only to the charges which were then before the Court but also to the previous crime of sexual intercourse without consent. Section 8 of the Act is explicit in this regard. It does not provide for an addition to be made to the existing non-parole period. It provides that the existing non-parole period is deemed to be revoked and that the sentencing Judge is to impose a non-parole period as if the
sentencing Judge had sentenced the person to imprisonment for a term equal to the aggregate of the terms of the previous sentence and the further sentence. The non-parole period thus fixed is to be taken to have commenced on the date on which the previous sentence was imposed.
It follows that the sentencing Judge was required to have regard to the conviction for sexual intercourse without consent and to impose a new non-parole period in relation to both that conviction and to the further offences with which he dealt.
The sentencing Judge would therefore have it in mind that the appellant had not been reformed by the period of imprisonment that he had served and had committed offences on parole. Although his Honour did not say so, he would have taken into account the fact that the conviction for sexual intercourse without consent was a conviction for a crime of violence and so also were the further crimes. These arose out of the circumstance that the appellant had taken a baseball bat with him with a view to assisting him in the theft of money from the home of a certain person, whom the appellant knew, and that person had suffered some injuries in the scuffle which ensued and from his plunging through a glass window in an endeavour to escape the appellant and his companions.
Having regard to the violence involved in both the earlier and the further crimes and to the fact that the appellant had committed the further offences whilst on parole, I am satisfied that the trial Judge's exercise of discretion was well balanced
and well calculated to achieve the reform and rehabilitation of the appellant, if that were practicable. In my opinion, his Honour's discretion did not miscarry. I see no matter which was taken into account which was irrelevant to the task.
Counsel for the appellant further submitted that there was a disparity between the sentence passed upon the appellant for the further offences and sentences which had been passed upon his associates by another Judge. No challenge was made in this regard to the head sentence but only to the non-parole period. I see no injustice in such disparity as occurred. The appellant was convicted of a more serious offence for it was he who carried the baseball bat at the time of the scuffle and the theft and the appellant's criminal history was much more serious than that of his associates. Moreover, the non-parole period was not imposed for the further offences alone but also in relation to the earlier offence of sexual intercourse without consent.
Thus, the circumstances taken into account in the fixing of the non-parole period were different from those which prevailed in the sentencing of the associates. I should add, lest the contrary be thought, that it seems to me that the sentence imposed by his Honour was a lenient sentence, having regard to all the circumstances.
I have had an opportunity to peruse the reasons for judgment of Higgins J. I agree with them and with the order proposed by his Honour.
I certify that this and the 5 preceding pages
are a true copy of the reasons for judgment herein of
the Honourable Justice Davies.
Associate:
Date: 24 May 1996
IN THE FEDERAL COURT OF AUSTRALIA )
AUSTRALIAN CAPITAL TERRITORY )
DISTRICT REGISTRY ) No. ACT G71 of 1995
GENERAL DIVISION )
ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN: NEIL EDWARD KELLY
Appellant
AND: THE QUEEN
Respondent
CORAM: DAVIES, HIGGINS and KIEFEL JJ
PLACE: CANBERRA
DATE: 24 MAY 1996
REASONS FOR JUDGMENT
HIGGINS J:
The appellant was, on 9 November 1995, sentenced by his Honour, Chief Justice Miles, in respect of a single incident in which, on 21 January 1995, the appellant went with two other men to Ainslie Village. He had armed himself with a baseball bat belonging to one of the other men. He intended to confront a resident of Ainslie Village because of a perceived wrong and, it may be inferred, to steal anything worth taking.
His Honour noted in the course of sentencing, that the victim was struck by the bat. The victim did report being struck and it may be inferred that he was struck by the appellant. However, the victim did not claim that he was struck with the bat. The appellant, without challenge, denied that he had struck the victim with the bat. It is apparent that the victim suffered
further injury when, to escape from the appellant, he decamped through the window of his room. Cannabis belonging to the victim was then stolen by the appellant and those with him.
The appellant was subsequently charged with aggravated burglary, theft and assault occasioning actual bodily harm. The injuries referred to were classified by his Honour as "minor injuries".
Whilst the co-offenders admitted their guilt, the appellant denied involvement. The co-offenders cooperated with police and agreed to give evidence against the appellant.
No doubt, as a result of that circumstance, the appellant changed his plea. The other offenders, younger than the appellant, were dealt with by the imposition of non-custodial sentences. Their situation, both as to antecedents and participation, differed materially from that of the appellant. There was a substantial discount in sentence given to the co-offenders by reason of their promised cooperation in relation to the appellant's then anticipated trial. As it transpired, consequent upon the appellant's changed plea, that cooperation did not need to be given.
His Honour came to the view that only a custodial sentence was appropriate. That sentence was, in his Honour's opinion, constrained towards leniency by the fact that the sentences imposed on the co-offenders were, relatively speaking, "very lenient".
The appellant was sentenced to nine months imprisonment. That sentence was imposed in respect of each of the three counts concurrently.
On the hearing of this appeal, the appellant, while still contending that the sentence imposed was excessive, submitted only that the non-parole period set by his Honour was excessively long. The other objections mooted by the Notice of Appeal were abandoned.
The question of a non-parole period and the date of commencement of the sentences themselves had been complicated by the fact that when the offences were committed, the appellant was on parole.
In 1989, the appellant was sentenced to a term of imprisonment, increased on appeal by the Crown to seven years, to date from 12 May 1989. A non-parole period of four years was set. The head sentence was, with remissions, to expire on 12 May 1995.
However, the appellant, during the course of the head sentence and before he obtained parole, committed an offence of escaping from lawful custody. As a result, the non-parole period was extended from 12 May 1993 to 22 January 1994 and the head sentence to 11 May 1996. A parole order was granted to the appellant on 7 April 1994.
Had the appellant not so behaved on parole so as to attract a further sentence of imprisonment, he might have served out the remainder of his head sentence whilst on parole, see s24(2)(b) Parole Act 1976 (ACT) (Parole Act). However, the appellant did not refrain from further criminal conduct.
On 14 June 1995, the appellant was sentenced by Magistrate Ward to nine months imprisonment in respect of offences committed on 31 August 1994 and 20 January 1995.
That sentence was backdated so as to expire on 24 October 1995.
The result of the imposition of that sentence was that the parole order was deemed to have been revoked as from 14 June 1995, whichever was earlier, see s22(2) Parole Act.
On 14 June 1995, therefore, the appellant became liable to serve the remainder of his unexpired head sentence.
That led to him being eligible, his Worship was informed, for release about 11 May 1996 after account was taken of the deferral of release date to add to the previous release date, the time spent at liberty on parole, see s25(e) Parole Act. That was about six and a half months after the sentences imposed by his Worship were to expire. However, his Worship did not consider that he was required to set a new non-parole period.
On appeal, by decision delivered 30 October 1995, I concluded that his Worship had been obliged to consider re-setting a non-parole period. It was clear his Worship had not adverted to that obligation. It was his stated expectation that the appellant was to serve a further six months only by reason of the sentence he had imposed.
I, therefore, varied the sentence his Worship had imposed so as to set a non-parole period expiring 7 September 1995, thus fulfilling the expectation his Worship had expressed in his sentencing remarks.
Nevertheless, by reason of these matters which were then pending before the Chief Justice, no parole order was made by the Parole Board. That was to have been expected in any event.
The sentence which was imposed by the Chief Justice on 9 November 1995 was nine months imprisonment and was set so as to commence at the expiration of the appellant's current sentence.
His Honour was informed and accepted that the appellant's head sentence would, as at 9 November 1995, expire on 21 February 1997. That is a different date from that assumed by Magistrate Ward. However, for the purposes of this appeal, it is assumed that the date his Honour was given was the more accurate.
The sentence imposed by his Honour, therefore, would have extended the expiry date of the head sentence which the appellant had to complete, to 21 November 1997.
His Honour then reset the non-parole period as required by s7(1) Parole Act, so that the same would expire on 21 December 1996.
Had the non-parole period been extended for a period of nine months from the expiration of the previous non-parole period, the appellant would be eligible for consideration for parole on and from 7 June 1996. Had the period been extended for nine months from sentence, the eligibility date would have been 9 August 1996.
By reason of his Honour's order there is a period of four and a half months, approximately, beyond 9 August 1996 which the appellant will now have to serve before being eligible for parole.
The appellant's complaint now is as to the disparity between the additional head sentence and the additional non-parole period.
There is no provision in the Parole Act which requires the new non-parole period (being a period later than any previously set) to be restricted in duration to the additional period which the new head sentence adds to the previous sentence.
Formally, the non-parole period his Honour set commences 12 May 1989, the date of the commencement of the previous but uncompleted sentence. The effect is to extend the expiry date of the non-parole period from 7 September 1995 to 21 December 1996.
Between 7 September 1995 and 9 November 1995, the Parole Board would have been unlikely to grant a parole order because of these matters then pending.
There is not, so far as I am aware, any generally accepted principle which sets any limit to the effective extension of a non-parole period when an offender already on parole is sentenced to a further term of imprisonment.
There are reported cases where offenders have been sentenced for offences committed whilst on parole. In Omar, Rushton and Thomason (1991) 55 A Crim R 373, the offender, Omar, had, on 7 June 1987, been sentenced to six and a half years imprisonment. He was released on parole on 2 June 1989. That period was less than originally set because of remissions earned.
He then committed further serious offences whilst on parole.
Sentences of imprisonment in respect of those offences were imposed on 26 March 1991. The unexpired residue of Omar's first sentence was then calculated as being one year nine months. The new sentence was five and a half years, set so as to extend the
expiry date of the new head sentence to seven years three months from the date the new sentences were imposed. A period of eight years six months, commencing 17 June 1987, was set as the new non-parole period. It was expressed so as to expire at midnight on 16 December 1995.
As at 26 March 1991, the non-parole period was extended by four years and nine months (less ten or 11 days). The head sentence was extended by five years six months. This sentence, therefore, whilst extending both the head sentence and the non-parole period, did not extend the latter more than the former.
On appeal, however, it appeared that his Honour had been misinformed. Only 16 days of head sentence after remissions had remained unexpired as against the one year nine months assumed.
It was noted that the intended non-parole period was approximately two-thirds of the eight year period intended as the effective head sentence from 30 August 1990 when Omar had been taken into custody.
The appeal court, in any event, increased that sentence by two years to ten, so that the head sentence would expire on 29 August 2000. The non-parole period was increased commensurately, so as to expire on 17 August 1997. Thus the additional time to be served was not increased by a term greater than that of the new sentence.
I have endeavoured to locate other examples of the sentencing of errant parolees.
In Kennett v R, unreported Court of Criminal Appeal, South Australia, King CJ, Bollen and Prior JJ, 18 February 1992, the offender, by committing a further offence, rendered himself liable to serve the unexpired term of one year four months and eight days. The new term had to commence at the expiry of that term. There had been a period in custody prior to sentence. A new head sentence and non-parole period were set, the new period being nine months from sentence, less than the unexpired sentence, and less than one-third of the total head sentence from the date of sentencing.
In R v Reed, unreported, Court of Criminal Appeal, South Australia, King CJ, Millhouse and Olsson JJ, 8 December 1993, an offender, whilst on parole, was sentenced for an offence committed whilst on parole. He was on parole in respect of a ten year sentence imposed on 23 November 1987. The non-parole period was seven years. The adjusted and further sentences maintained for him a right to be considered for parole so as to leave a similar period as before on parole. The new sentences did not increase the non-parole period by any factor greater than the additional sentence.
Of some assistance is the matter R v Booth, unreported, Court of Appeal, Queensland, Pincus, McPherson JJA, Demack J, 27 October 1995. In that case, it was suggested by the Crown that sentences
for armed robbery should have been cumulative on sentences then being served. The armed robberies were committed by the offender whilst he was on parole. The offender's criminal history was,
Early 1988 - 4 months
Later 1988 - 12 months
1989 - 3 months and 6 months
1991 - 6 years
1992 - Further 4 months
June 1993 - Parole
Feb to August 1994 - Commission of relevant offences
For the latter offences he was sentenced to eight years from 8 September 1994 to 8 September 2002. Parole was recommended only after 30 June 1998.
The trial judge had been told, incorrectly, that the existing sentences would expire on 21 April 1997, thus the new sentences added five years four months to the head sentence.
The head sentence initially imposed was due to an incorrect calculation of the original release date effectively lengthened by only four years. On appeal the sentences were increased so as to expire on 8 June 2004. The non-parole recommendation was extended until 30 June 2000, being deferred by a further two years. The original sentence, when correctly calculated, would have expired on 8 April 1999.
That sentence then effectively had a similar effect to that imposed by the Chief Justice in this case. The effect of it was that the existing sentence was to be served in full and only during part, though a major part, of the new sentence would the appellant become eligible for parole.
In the case of R v Glen Morris, unreported, Court of Appeal, Queensland, Fitzgerald P, Pincus JA and Dowsett J, 24 February 1995, the applicant had been sentenced to three years imprisonment on 9 August 1991. On 6 March 1992 he had been sentenced to a further six months imprisonment. On 7 May 1993 he was released on parole. The parole period was to expire on 9 February 1995.
By reason of conviction of further offences, the applicant became liable to serve the 21 months of his original sentence which remained unexpired. The Corrections Board could, by order, have remitted some or all of that existing sentence.
The sentencing Judge sought to add six months to the time the applicant had to serve. He imposed a sentence of two years and three months. He recommended parole after two years. That would, unless part of the 21 months was remitted, have resulted in parole only three months before expiration of the sentences imposed.
Pincus JA, commenting on the effect of this sentence, noted that,
... to a substantial extent the applicant will be paying, one could say, the balance of the price for the offences he committed in 1991.
This comment seems to me to have application to the situation which faced the appellant when he was sentenced by the Chief Justice.
By reason of the offences committed on parole, the appellant became liable to serve the balance of his sentence for sexual intercourse without consent. That was 16 months and 12 days. The further sentence imposed by the Chief Justice was nine months. This increased the sentence to be served to 25 months and 12 days. The non-parole period the Chief Justice set was a period of 13 months and 12 days, thus leaving a further 12 months to be served during which the appellant would be eligible for parole.
The discretion given to his Honour under the Parole Act required him to assume that he was then imposing the original and additional sentence and to then set a non-parole period, having regard to the time already served by the appellant.
Having regard to the totality of the circumstances, there seems no reason why his Honour, in setting a non-parole period, should not have required the appellant to serve all or most of the remainder of his original sentence. That does not seem to me to be manifestly excessive having regard to the seriousness of the breach of parole and the previous breach of parole. It was, in my view, an appropriate course to add the further sentence to the unexpired existing sentence. It was not an error, in my opinion, for his Honour to have required the appellant to serve, not only the nine months then imposed, but also part of the original sentence then unexpired.
I would dismiss the appeal.
I certify that this and the twelve (12) preceding pages are a true copy of the Reasons for Judgment herein of his Honour Justice Higgins.
Associate:
Date: 24 May 1996
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY
DISTRICT REGISTRY
GENERAL DIVISION No. ACT G 71 of 1995
On appeal from a Judge of the Supreme Court of the Australian Capital Territory
BETWEEN:NEIL EDWARD KELLY
Appellant
AND: THE QUEEN
Respondent
CORAM:Davies, Higgins, Kiefel JJ
PLACE: Canberra
DATE:24 May 1996
REASONS FOR JUDGMENT
KIEFEL J:
I have had the advantage of reading the judgment of Higgins J and agree that the Appeal should be dismissed for the reasons given. I wish to add only these few comments.
The non-parole period set by his Honour extended beyond the further term of nine months imprisonment imposed and cannot be regarded as flowing only from these offences but from what is now considered necessary to be served with respect to the earlier sentence. The Court of Appeal of the Supreme Court of Queensland (Pincus JA and Dowsett J) in The Queen v Morris (unreported, 24 February 1995) upheld a sentence which, it was acknowledged, had a similar effect. And there seems to me to be no reason in principle why such a re-adjustment would not be within the discretion of the sentencing judge at least where facts which are brought forward on the later sentence permit or oblige a different view to be taken with respect to the minimum term to be
served. In Morris the applicant, by reference to the conduct surrounding the later offences, was regarded as "a persistent offender whose conduct required sharp correction". In the present case, whilst his Honour did not elaborate upon the course chosen, the background to and circumstances of the offences committed in January 1995 for which the appellant was then being sentenced could be viewed as a continuation of a pattern of conduct involving violence, alcohol and drugs and therefore as affecting his eligibility for parole with respect to the earlier offences. And, whilst there was material before his Honour which might have been regarded as offering some hope for rehabilitation, it could not be said that his Honour failed to take that factor into account.
The appeal should be dismissed.
I certify that this and the preceding page is a true copy of the reasons for judgment of the Honourable Justice Kiefel.
Associate
Date:24 May 1996
Counsel and Solicitor
for the appellant: Mr M Helman
Counsel and Solicitors
for the respondents: Mr T Buddin instructed by Director Public Prosecutions for the Australian Capital Territory
Date of Hearing: 12 April 1996
Place of Hearing Canberra
Date of Judgment: 24 May 1996
Place of Judgment: Canberra
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