King v Piper
[2004] WASCA 218
•29 SEPTEMBER 2004
KING -v- ALAN PIPER, DIRECTOR GENERAL, DEPARTMENT OF JUSTICE WA [2004] WASCA 218
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 218 | |
| Case No: | CIV:1952/2004 | 20 SEPTEMBER 2004 | |
| Coram: | MURRAY J TEMPLEMAN J MILLER J | 29/09/04 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| A | |||
| PDF Version |
| Parties: | RODNEY NATHAN KING ALAN PIPER, DIRECTOR GENERAL, DEPARTMENT OF JUSTICE WA |
Catchwords: | Habeas corpus Application by prisoner Whether prisoner held unlawfully in custody following his discharge from sentence Parole term Prisoner released on parole Parole order cancelled Prisoner again committed to prison under warrant |
Legislation: | Criminal Procedure Rules 2000 (WA), r 68 Interpretation Act 1984 (WA), s 18 Sentence Administration Act (1995) (WA) s 42, s 71 Sentencing Act 1995 (WA), s 85, s 95 Sentencing Legislation Amendment and Repeal Act 2003 (WA), s 22, s 29, Sch 1 cl 5(2), cl 9 |
Case References: | Dien v Manager, Immigration Detention Centre, Port Hedland (1993) 115 FLR 416 McGillivray v Piper, CEO, Ministry of Justice [2000] WASCA 245 Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 Commonwealth v Baume (1905) 2 CLR 405 Court, In re (1871) 2 QSCR 171 Gibbs v State of NSW (1990) 21 NSWLR 416 Hayden v R [2003] WASCA 210 Ireland v R [2000] WASCA 312 Kelleher v Parole Board (NSW) (1984) 156 CLR 364 Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672 McLean v R [1999] WASCA 209 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 R v Acting Governor of Her Majesty's Prison, Pentridge; ex parte Butterly (1974) VR 634 R v Canning Vale Superintendent & Anor; ex parte Landry, unreported; FCt SCt of WA; 23 December 1988 R v Governor of Blundeston Prison; ex parte Gaffney [1982] 1 WLR 696 R v Governor of Brixton Prison; ex parte Ahsan [1969] 2 QB 222 Refrigerated Express Lines (Australasia) Pty Ltd v Australian Meat and Livestock Corporation & Ors (1980) 29 ALR 333 Reid v Hughes (1982) 29 SASR 207 Roser v R (2001) 24 WAR 254 Smith v Corrective Service Commissioner of (NSW) (1980) 147 CLR 134 Smith v Queensland Community Corrections Board (2002) 1 Qd R 448 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- TEMPLEMAN J
MILLER J
- Applicant
AND
ALAN PIPER, DIRECTOR GENERAL, DEPARTMENT OF JUSTICE WA
Respondent
Catchwords:
Habeas corpus - Application by prisoner - Whether prisoner held unlawfully in custody following his discharge from sentence - Parole term - Prisoner released on parole - Parole order cancelled - Prisoner again committed to prison under warrant
Legislation:
Criminal Procedure Rules 2000 (WA), r 68
Interpretation Act 1984 (WA), s 18
Sentence Administration Act (1995) (WA) s 42, s 71
(Page 2)
Sentencing Act 1995 (WA), s 85, s 95
Sentencing Legislation Amendment and Repeal Act 2003 (WA), s 22, s 29, Sch 1 cl 5(2), cl 9
Result:
Application dismissed
Category: A
Representation:
Counsel:
Applicant : Dr J T Schoombee
Respondent : Ms J C Pritchard
Solicitors:
Applicant : Law Access
Respondent : State Solicitor
Case(s) referred to in judgment(s):
Dien v Manager, Immigration Detention Centre, Port Hedland (1993) 115 FLR 416
McGillivray v Piper, CEO, Ministry of Justice [2000] WASCA 245
Case(s) also cited:
Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1
Commonwealth v Baume (1905) 2 CLR 405
Court, In re (1871) 2 QSCR 171
Gibbs v State of NSW (1990) 21 NSWLR 416
Hayden v R [2003] WASCA 210
Ireland v R [2000] WASCA 312
Kelleher v Parole Board (NSW) (1984) 156 CLR 364
(Page 3)
Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672
McLean v R [1999] WASCA 209
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
R v Acting Governor of Her Majesty's Prison, Pentridge; ex parte Butterly (1974) VR 634
R v Canning Vale Superintendent & Anor; ex parte Landry, unreported; FCt SCt of WA; 23 December 1988
R v Governor of Blundeston Prison; ex parte Gaffney [1982] 1 WLR 696
R v Governor of Brixton Prison; ex parte Ahsan [1969] 2 QB 222
Refrigerated Express Lines (Australasia) Pty Ltd v Australian Meat and Livestock Corporation & Ors (1980) 29 ALR 333
Reid v Hughes (1982) 29 SASR 207
Roser v R (2001) 24 WAR 254
Smith v Corrective Service Commissioner of (NSW) (1980) 147 CLR 134
Smith v Queensland Community Corrections Board (2002) 1 Qd R 448
(Page 4)
1 JUDGMENT OF THE COURT: The applicant was convicted of offences of aggravated burglary and deprivation of liberty, both committed on 21 November 1998. He was sentenced to imprisonment on 8 February 2000. Upon his appeal against conviction and sentence the appeal against conviction was dismissed, but leave to appeal against the sentence was granted and the sentences imposed upon him were varied. The final outcome was a sentence of 8 years imprisonment for the offence of aggravated burglary and a sentence of 3 years imprisonment for the deprivation of liberty, the sentences to be served concurrently, backdated to 18 November 1998, with eligibility for parole.
2 The applicant was committed to prison to serve the aggregate term of 8 years. The formal authority for his detention was the certificate of the Registrar of the Court, recording the final outcome of the proceedings in the Court of Criminal Appeal, which to the extent recorded therein varied the original warrant of commitment following the sentencing proceedings: Criminal Procedure Rules 2000, r 68.
3 Under the Sentencing Act 1995 (WA) (the SA), s 93(1)(b), the applicant became eligible for release on parole after he had served 2 years less than two-thirds of the term of 8 years. He had therefore to serve 3 years and 4 months from 18 November 1998. That gave an eligibility date of 17 March 2002.
4 On 22 May 2002 he was released on parole for a period expiring on 18 March 2004. There appears therefore to have been a deferral of the making of the parole order under the Sentence Administration Act 1995 (WA), (the SAA), s 26. By SAA s 28 the Board was not precluded from subsequently making a parole order and did so. Under SAA s 22 the parole period is to be the lesser of two periods described by the section. The first is that beginning on the release date and ending when two-thirds of the parole term have elapsed. Alternatively, a calculation may be made which may produce a lesser term. There is no need to refer to those provisions here. It is sufficient to note that, consistently with SA s 93, the parole period cannot exceed 2 years. In this case, as has been seen, the period was somewhat shorter.
5 The applicant did not complete service of the period of parole. On 24 October 2002 the Parole Board suspended the parole order under SAA s 37. It issued a warrant of commitment: SAA s 72. The warrant was executed and the applicant was arrested on 1 November 2002. It is sufficient for present purposes to note that under those circumstances the
(Page 5)
- period of 8 days during which the applicant was at large following the issue of the arrest warrant did not count as service of his sentence.
6 On 28 November 2002 the Parole Board ordered the cancellation of the suspension and amended the parole order: SAA s 39(7). The applicant was again released on parole on 2 December 2002, but on this occasion he lasted a very short time only before, on 27 December 2002, the parole order was again suspended by the Board, this time specifically for the applicant's breach of a condition preventing any contact, direct or indirect, with the victim of the original offences, a breach said to have occurred on 26 December 2002. On the same day, 27 December 2002, the applicant was again arrested on the warrant issued by the Board and returned to prison. On 21 January 2003 the parole order was cancelled by the Board.
7 The applicant has remained in prison thereafter. On 29 January 2004 his case was reviewed by the Board, but parole was denied. The effect of the applicant's return to custody, having regard to SAA s 73, is that the date when the applicant served two-thirds of the term imposed upon him expired 8 days after 17 March 2004, ie, 25 March 2004, whereas the term of the sentence itself will not expire until 17 November 2006: SAA s 73.
8 On 11 May 2004 the applicant made an application for habeas corpus. It was heard by Barker J on 27 August 2004. On 2 September 2004 his Honour referred the application to the Full Court for determination.
9 The applicant's contention is that the respondent, the chief executive officer of the responsible department, was obliged to order his release from custody after he had served two-thirds of the term originally imposed upon him. He therefore contends that, as he remains in custody as a sentenced prisoner, his detention is unlawful. The respondent, on the other hand, argues that the proper interpretation of the relevant statutory provisions shows that the applicant's detention is and will continue to be lawful, if he is not again released on parole, until his sentence finally expires on 17 November 2006.
10 There are a number of matters which are not in contention between the parties. In the first place, it is accepted that an application for habeas corpus is an appropriate form of proceeding by which to ventilate the applicant's concerns and correct any error which has occurred, because the substantive matter at issue between the parties, the lawfulness of the applicant's continuing detention in the custody of the respondent, raises a question of law concerning the proper interpretation of the relevant
(Page 6)
- statutory provisions: Dien v Manager, Immigration Detention Centre, Port Hedland (1993) 115 FLR 416.
11 Further, as this Court held in that case, if, at the conclusion of the proceedings, corrective action is required in relation to the applicant's custody, the Court does not ordinarily delay to issue the writ of habeas corpus and require the return under it to the Court of the formal process, in this case the warrant, by which the detention is arguably authorised. If the Court reaches a final conclusion it will simply declare the custody to be lawful or unlawful and perhaps make any orders for the release of the applicant which may be thought to be required. Often the Court need do no more than make its declaration, relying upon the respondent to move promptly to release the applicant, if required. It is accepted that that would be sufficient in this case.
12 The Court did not make a declaration immediately upon the conclusion of the proceedings because the applicant wished to hand up, and the Court received, some written submissions which he had personally prepared. He took that course although the Court had had the benefit of full argument and submissions by counsel appearing pro bono, as was the applicant's instructing solicitor. The applicant's submissions added nothing which had not been the subject of submissions by counsel and, although we reserved liberty to counsel for the respondent to file any responsive document which was thought to be necessary, counsel advised that there was nothing further that she wished to place before the Court.
13 We turn to the substantive question raised in the application. In the circumstances of this case was the applicant discharged from the sentence of 8 years imprisonment so as to be entitled to be released when he had served two-thirds of the term? The answer to the question turns on the proper interpretation of provisions of the SA and SAA. They are to be read together: SAA s 3. The two Acts were enacted on the same date, both having been assented to on 16 January 1996. The SA was Act No 76 of 1995. The SAA was Act No 77 of 1995. The effect of s 3 of the SAA was discussed in McGillivray v Piper, CEO, Ministry of Justice [2000] WASCA 245, per Anderson J, with whom Kennedy ACJ and Wallwork J agreed, at [24] – [27]. As will appear, there is, in our view, no conflict or inconsistency between the provisions which require to be construed in this case. There is no need therefore to consider how any such conflict is to be resolved as a matter of statutory interpretation.
14 The provisions in question do not now exist, generally speaking, following very substantial amendments to the sentencing system made by
(Page 7)
- the Sentencing Legislation Amendment and Repeal Act 2003. That Act made profound amendments to the process of sentencing offenders to imprisonment and to the content of such sentences. Amendments were made to the SA. The SAA was repealed. At the same time, the Sentence Administration Act 2003 was enacted. The changes became operative on various dates by proclamation. Relevantly, however, they became operative on 31 August 2003.
15 For present purposes, it is sufficient to note that the Amendment and Repeal Act, s 22 and Sch 1 of that Act – the transitional provisions – cl 5(2)(a) provides:
"(2) If immediately before commencement a person is subject to a parole term to which the old provisions apply, then on and after commencement –
(a) the old provisions apply for the purpose of calculating –
(i) when the person is eligible to be released on parole;
(ii) the parole period for the person; and
(iii) when the person is discharged from the sentence and must be released; …"
17 To understand the provision quoted above it is necessary to know that in this case "commencement", by cl 1(1) of Sch 1, means 31 August 2003. The "old provisions" are, again as defined by cl 1(1), the SA and the SAA – the 1995 Acts, as they were before the Amendment and Repeal Act. Having regard to the definitions contained in SA s 85(1), the term of 8 years imprisonment imposed on the applicant was a "parole term". The effect of cl 5(2)(a) is that because the applicant was subject to a parole term to which the SA and SA applied immediately before the Amendment and Repeal Act came into operation, the SA, as it was before it was amended, and the SAA, as it was before it was repealed, continue to apply for the purpose of calculating when the applicant is discharged from the sentence and must be released.
(Page 8)
18 It is further relevant to note that by the Amendment and Repeal Act, s 29, and Sch 1 cl 9, a warrant issued under the SAA before it was repealed and in force immediately before that repeal "remains in force despite the repeal of the repealed Act." The applicant was subject to such a warrant upon the cancellation of his parole and, in addition, there was the warrant originally issued when the applicant was sentenced, the terms of which were varied by the certificate of the Registrar following the decision of the Court of Criminal Appeal. These documents in their terms provide the formal authority for the applicant's detention and make that imprisonment lawful unless it is the case that by reference to the applicable legislation he was, in March 2004, discharged from the sentence and therefore entitled to be released by force of law.
19 The term of 8 years is a "fixed term" as defined by SA, s 85(1). Section 85(4) provides:
"(4) In this Part and in the Sentence Administration Act 1995, the end of a fixed term is when the term as imposed by the court ends, and it does not matter if the prisoner is or may be released (under an early release order or otherwise) before then, or if the term is or may be taken to have been served before then."
20 Under s 85(1) an "early release order" is a parole order, a home detention order (HDO) or a work release order (WRO) made under the SAA. For present purposes, the important thing to note is that a clear distinction is drawn between the end of the term and the fact that it may have been, or is to be taken to have been, served before then, with the result that at an earlier time the prisoner was discharged from the sentence and entitled to his or her release. In our opinion, the distinction is consistently observed both in Part 13 of the SA, which deals with imprisonment generally, and in the SAA.
21 Where imprisonment is imposed, as these Acts are structured, there are three cases to be provided for in respect of the question when a prisoner serving a fixed term of imprisonment is discharged from the sentence and entitled to be released. The first is when that term is not a parole term. The second is when the term is a parole term, but the prisoner is not released on parole. And the third is this case where the term is a parole term and the prisoner has been released on parole but, for some reason, the parole order has been suspended and/or cancelled and the offender has been returned to prison by warrant.
(Page 9)
22 The first two cases referred to above are provided for in SA, s 95, as follows:
"95 Release from a fixed term (not a prescribed term)
(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 Act 1995, must be released then."
23 A "prescribed term" is defined in s 85(1). Generally speaking it includes a term imposed for a prison offence under the Prisons Act 1981 (WA) and a term imposed for escaping lawful custody. In that case, by SA, s 92, there is no capacity to reduce the term. The SA, s 92, provides that a prisoner serving such a term "is discharged from that sentence at the end of the term" and subject to provisions of the SAA concerned with the necessity otherwise to continue to imprison the offender, he or she "must be released then".
24 It seems to us that the provisions of s 95 are clear. The situation with respect to a parole term, if the offender is never released on parole, is equated with that of the service of a term which is not a parole term. In each case, the prisoner is discharged from the sentence after serving two-thirds of the term and, unless there is any other reason to detain him or her, the prisoner must be released then. In our view, contrary to the argument presented for the applicant, s 95(2) has no application to his case. It is simply expressed in clear language and it means what it says. The simple fact is that the applicant was a person released on parole before he had served two-thirds of the term. The SA has nothing to say about when he might be discharged from the sentence and entitled to be released.
25 The applicant's case is provided for specifically by SAA, s 71(1). That subsection and s 71(2) provide:
"71. Effect of cancellation
(Page 10)
- (1) If an early release order, other than a WRO, in respect of a prisoner serving a fixed term is cancelled after the prisoner is 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.
(2) If a WRO in respect of a prisoner serving a fixed term is cancelled after the prisoner is released under the order, the prisoner is then liable to resume serving the fixed term in custody and is to be released in accordance with section 95 of the Sentencing Act 1995."
26 The distinction between s 71(1) and s 71(2) will be noted. In our opinion, it is deliberate. Cancellation of a WRO does not interfere with the general principle that a prisoner is discharged from his or her sentence and entitled to be released on serving two-thirds of the term, but the provision made by s 71(1) for the case, which is the case of the applicant, where a parole order is cancelled, is quite different. There is no entitlement to release and the applicant's detention remains lawful until he has served the whole of the term. That is subject, however, by s 71(6), to the fact that another parole order may still be made in respect of the applicant.
27 Generally, the Board must make a parole order in respect of a prisoner serving a parole term: SAA s 21. The parole period is calculated under SAA s 22. It may not be a period less than 6 months or more than 2 years. In a case of this kind, as occurred here, having regard to the duration of the term and to the fact that the Board deferred making a parole order for a period: see SAA, s 26 and s 28, the original parole period was somewhat less than 2 years.
28 By SAA s 68, if the parolee successfully complies with the parole order for the parole period that period is taken to be time served in respect of the term to which the parole order relates. By SAA s 74, which expressly does not affect the operation of s 71, the parolee who is released on parole and serves a portion of the sentence in the community, is discharged from the sentence at the end of the parole period, which will generally be when two-thirds of the sentence is reached.
29 The relevant matter, however, is that under the statutory scheme the parole period, under the parole order, governs the termination of the sentence and the discharge of the offender from it.
(Page 11)
30 As we have said, if a parole order is cancelled, as occurred here, there always remains the power to make another parole order. In that event, under SAA, s 42(4):
"(4) If the Board make another parole order in respect of the prisoner, the parole period is the shorter of –
(a) a period equal to the parole period of the cancelled parole order; or
(b) the period beginning on the release date and ending when the prisoner will have served the whole of the term."
32 All of these provisions are written in terms which are consistent with each other. There is no conflict between them. Their effect is that the applicant, not having thus far been again released on parole following the cancellation of the order originally made, remains in lawful custody. The application for habeas corpus is dismissed.
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