King v Alan Piper, Director General of the Department of Justice Western Australia
[2004] WASC 190
KING -v- ALAN PIPER, DIRECTOR GENERAL OF THE DEPARTMENT OF JUSTICE WESTERN AUSTRALIA [2004] WASC 190
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASC 190 | |
| Case No: | CIV:1952/2004 | 27 AUGUST 2004 | |
| Coram: | BARKER J | 2/09/04 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Application referred to Full Court for determination | ||
| B | |||
| PDF Version |
| Parties: | RODNEY NATHAN KING ALAN PIPER, DIRECTOR GENERAL OF THE DEPARTMENT OF JUSTICE WESTERN AUSTRALIA |
Catchwords: | Habeas corpus Application for order for respondent to show cause Section 95(2) Sentencing Act 1995 (WA) Prisoner's right of discharge and release |
Legislation: | Prisons Act 1981 (WA), s 16, s 17, s 29 Rules of the Supreme Court 1971 (WA), O 57 r 2(1) Sentence Administration Act 1995 (WA), s 3, s 4(1), s 36, s 37, s 42, s 43(3), s 69(1), s 71 Sentencing Act 1995 (WA), s 85(1), s 95 Supreme Court Act 1935 (WA), s 58(1)(d) |
Case References: | Nil Coyne v Acting Director-General Corrective Services (1988) 37 A Crim R 279 Dien v Manager of the Immigration Detention Centre at Port Hedland (1993) 115 FLR 416 In re Williams (1934) 51 CLR 545 R v Canning Vale Prisoner Superintendent; Ex parte Landry, unreported; FCt SCt of WA; Library No 7453; 23 December 1988 R v Governor of Brixton Prison; Ex parte Ahsan [1969] 2 QB 222 Re Featherstone (1953) 37 Cr App Rep 146 Ruvinovski v R [2000] WASCA 398; (2000) 116 A Crim R 131 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Applicant
AND
ALAN PIPER, DIRECTOR GENERAL OF THE DEPARTMENT OF JUSTICE WESTERN AUSTRALIA
Respondent
Catchwords:
Habeas corpus - Application for order for respondent to show cause - Section 95(2) Sentencing Act 1995 (WA) - Prisoner's right of discharge and release
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Legislation:
Prisons Act 1981 (WA), s 16, s 17, s 29
Rules of the Supreme Court 1971 (WA), O 57 r 2(1)
Sentence Administration Act 1995 (WA), s 3, s 4(1), s 36, s 37, s 42, s 43(3), s 69(1), s 71
Sentencing Act 1995 (WA), s 85(1), s 95
Supreme Court Act 1935 (WA), s 58(1)(d)
Result:
Application referred to Full Court for determination
Category: B
Representation:
Counsel:
Applicant : In person
Respondent : Ms J C Pritchard
Solicitors:
Applicant : In person
Respondent : State Solicitor
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Coyne v Acting Director-General Corrective Services (1988) 37 A Crim R 279
Dien v Manager of the Immigration Detention Centre at Port Hedland (1993) 115 FLR 416
In re Williams (1934) 51 CLR 545
R v Canning Vale Prisoner Superintendent; Ex parte Landry, unreported; FCt SCt of WA; Library No 7453; 23 December 1988
R v Governor of Brixton Prison; Ex parte Ahsan [1969] 2 QB 222
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Re Featherstone (1953) 37 Cr App Rep 146
Ruvinovski v R [2000] WASCA 398; (2000) 116 A Crim R 131
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- BARKER J:
Introduction
1 The applicant is currently a prisoner held at Acacia Prison. The respondent is ultimately responsible for maintaining the prisoner in custody. The applicant says he must be released from custody because he has served two-thirds of the term of imprisonment to which he was resentenced by the Court of Criminal Appeal on 29 June 2001, and s 95(2) of the Sentencing Act1995 (WA) requires his release. He seeks an order that the respondent show cause why a writ of habeas corpus should not issue to secure his release.
2 The application first came before me on an ex parte basis on 12 August 2004. I then required the application and the affidavit of the applicant supporting it to be given to the respondent and adjourned the further hearing of the application until 27 August 2004. On 27 August 2004, the applicant, who has at all material times appeared in person on his application, and the respondent, who appeared through counsel, addressed me on the merits of the application and whether or not an order to show cause should be made.
3 The respondent contends through counsel that the applicant has no present right to be released from custody. She contends on behalf of the respondent that s 95(2) of the Sentencing Act1995, while it is relevant to some prisoners, has no application in the circumstances of the applicant.
4 It is contended by the respondent and accepted by the applicant that the Sentencing Act1995 and the Sentence Administration Act1995 (WA) are relevant to the consideration of the applicant's application, notwithstanding that each has in large been part been superseded by later sentencing legislation. For the purposes of this application, I also accept this is so. For present purposes, I need not set out the legislative history between the making of the 1995 legislation and the enactment of the Sentencing Act2003 (WA) and the Sentence Administration Act2003 (WA) that supports the respondent's contention.
A prisoner's right to discharge and release under s 95
5 Section 95 of the Sentencing Act1995 is the focus of both the applicant's and the respondent's attention. The applicant sees it as the statutory basis for the "remission" of his sentence. The respondent points out, correctly, that it does not expressly deal with "remission", although it
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- may have a similar effect. Section 95 provides a prisoner with a right of discharge and release in prescribed circumstances. It provides:
"(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 Act1995, 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 Act1995, must be released then."
Relevance of s 95(2)
7 The applicant was initially sentenced on 8 February 2000 to a term of imprisonment of 7 years for the offence of aggravated burglary and a term of imprisonment of 3 years for the offence of deprivation of liberty, to be served concurrently. Eligibility for parole was refused. Following an appeal to the Court of Criminal Appeal, that sentence was varied and the Court ordered that the term of 7 years' imprisonment be substituted to a total of 8 years' imprisonment, to be backdated to 18 November 1998. In addition, the Court ordered that the applicant be eligible for parole.
8 As a result, at material times the applicant was, for the purposes of s 95 of the Sentencing Act1995, a "prisoner serving a fixed term" where the fixed term was a "parole term" as defined. Consequently, s 95(1) of that Act was not at any material time relevant to his circumstances, but s 95(2) was.
9 Thus, if, following his resentencing in the Court of Criminal Appeal, the applicant had at no time been released on parole, notwithstanding his eligibility for parole, before he had served two-thirds of the 8-year term of imprisonment, he would have been discharged from that sentence when he had served two-thirds of the term and, by the terms of s 95(2), "released then".
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10 The applicant says that, because he has in fact served two-thirds of the term set by the Court of Criminal Appeal, he "must be released" now.
11 However, the respondent contends that, because the applicant was, during the course of his fixed parole term, not only eligible for parole, but also at one point released from custody pursuant to a parole order, he is incapable of satisfying the precondition for release under s 95(2) that he "has not been released on parole before he or she has served two-thirds of the term".
Applicant's parole history
12 As a matter of fact, the undisputed evidence is that the applicant was released from prison on parole on 22 May 2002. However, an order suspending this early release order was issued by the CEO on 24 October 2002, and the applicant was returned to prison on 1 November 2002. The Parole Board then issued an order cancelling the suspension order on 28 November 2002. This took effect from 2 December 2002. But on 27 December 2002 the parole order was suspended again. The applicant was then returned to prison on 27 December 2002. Finally, on 21 January 2003, the Parole Board made an order cancelling the parole order altogether. The power of the CEO or the Parole Board to suspend or amend, suspend or cancel parole during a parole period is to be found respectively in ss 36 and 37 of the Sentence Administration Act1995.
13 Notwithstanding that a parole order may be cancelled by the Parole Board, by s 42 of the Sentence Administration Act1995 the Board may subsequently restore the cancelled parole order or make another parole order in respect of the prisoner. If the Board restores a cancelled parole order, the cancellation has no further effect and the prisoner is to resume being on parole as if the parole order had not been cancelled (s 43(3)). Following the decision of the Parole Board on 21 January 2003 to cancel the applicant's parole order, the applicant applied to the Board to restore the cancelled parole order. On 29 January 2004, the Board again denied the applicant release on parole.
Section 95(2) and s 71(1) of the Sentence Administration Act 1995
14 Section 71(1) of the Sentence Administration Act1995 states the effect of cancellation of a parole order in these terms:
"If an early release order [which includes a parole order], other than a WRO [which is not presently relevant], in respect of a prisoner serving a fixed term is cancelled after the prisoner is
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- released under the order, 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."
15 The respondent contends that the words in s 95(2) the Sentencing Act1995, especially when read with s 71(1) of the SentenceAdministration Act 1995, plainly and unambiguously mean that if a prisoner has been released at any time before the time two-thirds of the term has been served, the right of discharge and release in s 95(2) is inapplicable to the circumstances of that prisoner. Counsel for the respondent submits that, because of this clear meaning, it is unnecessary for the Court to consider the legislative policy that may underlie s 95(2).
16 However, the applicant contends that the words actually used in s 95(2) should not be interpreted in the way the respondent contends for. He contends, in effect, that, properly construed, the words "has not been released on parole before he or she has served two thirds of the term" direct attention to the prisoner's custodial state at the time he or she has served two-thirds of the term, with the effect that it matters not that a prisoner has, prior to the serving of two-thirds of the term, previously been released on parole so long as the prisoner is not on parole at that point in time. Further, the applicant contends that it is also immaterial in that event that an earlier parole may have been cancelled prior to the serving of the two-thirds of the term. The applicant contends the critical point is whether or not the prisoner is on parole at the time he or she has served two-thirds of the term.
17 By contrast, the respondent responds that it does not matter when the earlier release on parole occurred. If there was an earlier release on parole, the precondition to release contained in s 95(2) cannot be satisfied and the right that a prisoner would ordinarily have upon serving two-thirds of a term does not exist is such a case.
18 The respondent contends that, if the applicant's contention were right, then the effect of cancellation of a parole order as specified in s 71(1) of the Sentence Administration Act1995 would be meaningless and a prisoner whose parole order had been cancelled at any time would not be bound to serve "the whole of that term", as required by that subsection.
Harmonisation of the sentencing legislation
19 On the face of it, there is nothing in either the Sentencing Act1995 or the Sentence Administration Act1995 which harmonises the two pieces of
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- legislation or suggests a particular rule for dealing with any apparent conflict between provisions of the two Acts. However, s 3 of the Sentence Administration Act1995 provides that "this Act is to be read with the Sentencing Act1995". This suggests perhaps that the Sentencing Act1995 is the "lead Act". Further, by s 4(1) of the Sentence Administration Act1995, if not defined in that Act, words and phrases in the Act have the same definitions as in the Sentencing Act1995 and, in particular, Pt 13 of that Act.
The competing interpretations
20 While the respondent contends that the meaning of s 95(2) of the Sentencing Act1995 is clear and has no ambiguity, I am not confidently able to agree with that submission. It seems to me that it is equally arguable, in the context and as a matter of grammatical construct, that the expression, "If a prisoner serving a parole term has not been released on parole before he or she has served two-thirds of the term" speaks to the time at which a prisoner has just finished serving two-thirds of the term and does not mean, in effect, "has not been released at any time before he or she has served tho thirds of the term". If that is also right, then the appropriate focus is on that time and the question then is whether the prisoner at that time "has been released" on parole. If that is right, then it is immaterial that a prisoner at some earlier time had been released on parole if he or she is not on parole at the time he or she has served two-thirds of the term.
21 In that context, there is nothing in s 71(1) of the Sentence Administration Act1995 that expressly removes the right of a prisoner to be released in accordance with the terms of s 95(2) of the Sentencing Act1995. Given that s 3 of the Sentence Administration Act1995 requires that Act to be read with the Sentencing Act1995, it might indeed be argued with some justification that s 71(1) of the former is not intended to detract from the right of discharge and release a prisoner has under s 95(2) of the latter. In other words, there seems to me to be a reasonable argument that the requirement in s 71(1) of the Sentence Administration Act1995 that, following cancellation of a parole order, the prisoner is not entitled to be released until he or she has served the whole of that term, is subject to the right of discharge and release created by s 95(2) of the Sentencing Act1995.
22 In my view, if the applicant's contentions are to be rejected, it must be because the terms of the Sentencing Act1995 and the Sentence Administration Act1995, when construed as a whole, suggest that the
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- intention of the Parliament, when it created the s 95(2) right of discharge and release, was that a prisoner who had been released on parole at any time before the expiration of two-thirds of the fixed term, should not have the benefit of that right. Where a prisoner is on parole at the time two-thirds of a term expires, one can understand that this is so, otherwise the parole order would simply fall away. However, where the prisoner has been on parole, but is no longer on parole when two-thirds of the term expires, it is perhaps more difficult to understand why the right of discharge and release then ceases to be relevant.
23 On the face of it, a prisoner serving a parole term who is released on parole under a parole order which is later suspended, or even later suspended and later again reinstated by revocation of the suspension, might also be said not to satisfy the precondition in s 95(2), even though that parole order was not subsequently cancelled by the Parole Board. However, the respondent says the answer to this possibility lies in s 69(1) of the Sentence Administration Act1995 that, in contrast to 71(1), specifies the effect of suspension in these terms:
"If an early release order in respect of a prisoner serving a fixed term is suspended, the prisoner is then liable to resume serving the fixed term in custody and, unless the suspension ceases or the early release order is cancelled, is to be released in accordance with s 95 of the Sentencing Act1995."
24 This provision provides support for the view that Parliament did not intend the right provided by s 95(2) of the Sentencing Act1995 to be available where a parole order is cancelled. However, the terms of s 69(1) do not necessarily compel this conclusion. They may be said only to speak to the circumstances in which a prisoner is to be released when an early release order such as a parole order is suspended and remains suspended - that is to say, where the suspension does not cease or the order is not cancelled. It does not expressly speak to the circumstances where an early release order such as a parole order is, in fact, cancelled.
Tentative conclusion
25 On the face of the legislation - the Sentence Administration Act1995 and the Sentencing Act1995 - no clear purpose for the right of discharge and release contained in s 95(2) of the Sentencing Act1995 is stated. The question remains: if it is plain that the right is available to a prisoner who was not released on parole at any time before two-thirds of his or her term was served, what is it in the terms of the legislation that plainly and unambiguously removes the right of a prisoner in the applicant's position
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- to be denied the benefit of the same right? While it might be contended that a prisoner who has breached a parole order such that the Parole Board considers the order should be cancelled should thereby lose the right of discharge and release given under the Act, that legislative intention or policy requirement is not easily divined, in my view, from the terms of the legislation, notwithstanding the terms of ss 69(1) and 71(1) of the Sentence Administration Act 1995.
26 In this regard, it is interesting to note that, by letter dated 2 February 2004, soon after he was denied release on parole by the Parole Board, the applicant asked the chairman and members of the Parole Board this question:
"8. By what specific section under the Sentence Administration Act 1995, has the Board removed my remission?"
- and that by letter dated 24 February 2004, K Ryan A/Assistant Secretary of the Parole Board, advised the applicant in these terms:
"8. Your remission is not affected by the decision of the Board."
28 What is clear, as the respondent correctly submits, is that the word "remission" is not used in s 95 or in any other provision of the currently relevant sentencing legislation. While a section such as s 29 of the Prisons Act 1981 (WA) (now repealed) formerly provided for a statutory "remission" of a prisoner's sentence, there is no exact equivalent to that provision in the currently relevant sentencing legislation. However, there is some reason to think that the right to discharge and release afforded in the circumstances of s 95(2) of the Sentencing Act1995 (and later similar provisions) is still colloquially referred to as a right to "remission" by both prisoners and some relevant authorities alike.
29 The most then that can be said is that the concept of "remission" is a colloquial one still used by some in the context of the currently relevant sentencing legislation before the Court on this application. Used colloquially - if not precisely - it is probably correctly used, given that the
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- word "remission" is defined by the Shorter Oxford Dictionary (5th ed) to mean relevantly: "The action of giving up or reducing a … punishment etc". It is clear that the applicant in his submissions on this application believes the right he claims pursuant to s 95(2) of the Sentencing Act1995 is in the nature of "remission" of his sentence.
30 That suggests, at the very least, that when he wrote to the Parole Board and used the word "remission", he was referring to the right to discharge and release he believes he had at all material times and has pursuant to s 95(2) of the Sentencing Act1995. There is perhaps some reason to think that the Parole Board in responding to his question used the word "remission" with the same understanding. Nonetheless, how the Parole Board meant to be understood when it used the word "remission" does not bind the respondent on this application, however interesting it is that the Parole Board itself seems to have believed that there is some right to "remission" that the applicant has not lost notwithstanding the cancellation of the parole order made by the Parole Board on 23 January 2003 and its subsequent refusal to grant the applicant parole in January 2004.
31 In all these circumstances, I consider the applicant has raised a serious issue concerning his entitlement to be released from prison by force of s 95(2) of the Sentencing Act1995.
Referral of issue to the Full Court
32 The question then is how the applicant's application for habeas corpus should now proceed. The applicant has, by an originating motion in this Court, asked for an order that the respondent do show cause before a single Judge why a writ of habeas corpus should not be issued against the respondent. Seaman, Civil Procedure Western Australia, at [57.1.3] observes that O 57 of the Rules of the Supreme Court1971 (WA) pertaining to habeas corpus contemplates that the application may only be made on behalf of the person restrained when he or she is unable to make an affidavit himself of herself. However, Seaman also suggests that the terms of this rule cannot prevent an application being made by a person who does so in his or her own name to inform the Court of the unlawful detention of another. I would go further and suggest that if a person such as applicant considers he or she is being unlawfully held in custody and is able to make an affidavit himself or herself, then they may properly seek an order that a writ of habeas corpus should go in respect of their own person. When it does go, a writ of habeas corpus commands a person in the following terms:
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- "We command you that you have in the Supreme Court the body of [AB] being taken and detained under your custody as is said, together with the day and cause of his being taken and detained, by whatsoever name he may be called therein, that Our said Court may then and there examine and determine whether such cause is legal, and have you there then this writ."
33 I would suggest that, notwithstanding the illustrious history of the writ of habeas corpus in our legal system, there is no particular reason why the applicant cannot, on his own behalf, apply to this Court for a writ of habeas corpus to cause his or her own release from unlawful custody.
34 In any event, on another view, having regard to the terms of s 95(2) which provides that, when its terms are satisfied, a prisoner "must be released", a prisoner in an appropriate case may well be entitled to seek an order nisi for a writ of mandamus requiring his or her release from custody. Alternatively he may be entitled to seek a declaration of the Court as to his rights.
35 This all suggests, in turn, that the Court should not stand on ceremony or be held fast by the technical requirements of the prerogative writs when the liberty of a person is at stake.
36 Accordingly, I do not consider that an application such as that made by the applicant should be delayed by considerations as to whether some other prerogative writ such as mandamus might be more appropriate. Rather, it is more appropriate that there be a definitive ruling on the serious issue raised by the applicant, an issue that may well affect the interests of more persons than just the applicant. In that regard, I am minded to refer the issue to the Full Court for determination.
37 I note that, by O 57 r 2(1), the Court or Judge to whom an application under r 1 is made ex parte may -
(a) make an order forthwith for the writ to issue;
(aa) refuse to make an order for the issue of a writ;
(b) where the application is made to a Judge otherwise than in court, direct that a summons for the writ be issued or that an application be made by originating motion to the Full Court or to a Judge in court;
(c) where the application is made to a Judge in court, adjourn the application so that notice thereof may be given, or
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- direct that application be made by originating motion to the Full Court; or
- (d) where the application is made to the Full Court, adjourn the application so that notice thereof may be given.
38 In this case, when the application first came on before me ex parte in chambers, I adjourned the application so that notice could be given to the respondent. It now seems to me appropriate in light of the argument I have heard that I should direct that the application be referred to the Full Court for determination. Order 57 r 2(1)(c) contemplates that an order might be made directing an application be made by originating motion to the Full Court. There is already before me an originating motion. It seems appropriate that I should simply direct that the application be referred to the Full Court. I note also that by s 58(1)(d) of the Supreme Court Act1935 (WA), the Full Court has the jurisdiction to hear and determine cases, points and questions referred to or reserved by a Judge for consideration and judgment by the Full Court or directed by a Judge to be argued before the Full Court.
39 In all the circumstances, I consider it expedient at this stage of the proceeding, not to issue a writ of habeas corpus requiring the body of the applicant to be brought before the Court, as he proposes in his application, but to direct that this application be argued before the Full Court and determined by that Court. In that way, the Full Court can make a definitive ruling on a serious issue that possibly may have wider ramifications should the applicant's application be upheld.
40 In the meantime, I would not entertain any application from the applicant for bail, but would recommend that the hearing of the matter by the Full Court be at the earliest possible date. This follows because, if the applicant's application is successful, he should not remain in custody any longer than necessary.
Summary and order
41 In summary, I would order that this application be referred to and determined by the Full Court. The issue referred for determination is whether the applicant, being a prisoner serving a parole term who was not in fact on parole at the time he had served two-thirds of his term, but who had prior thereto been on parole under a parole order that had later been cancelled, should be released from prison under s 95(2) of the Sentencing Act 1995.
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42 If the Full Court were to uphold the applicant's application, it would be open to the Full Court, in my view, to grant an appropriate form of relief either in the form of a writ of habeas corpus or writ of mandamus or simply to make a declaration confirming the right of the applicant to be released from prison in the knowledge the respondent would abide the declaration.
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