Kirby v The Queen

[2004] HCATrans 416

[2004] HCATrans 416

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P88 of 2003

B e t w e e n -

LENNARD MARK KIRBY

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON WEDNESDAY, 27 OCTOBER 2004, AT 2.55 PM

Copyright in the High Court of Australia

MR G.W. MASSEY:   May it please your Honours, I appear on behalf of the applicant.  (instructed by Holborn Lenhoff Massey)

MR K.P. BATES:   If your Honours please, with my learned junior, MS N.A. LOCKWOOD, I appear for the respondent.  (instructed by Director of Public Prosecutions (Western Australia))

GLEESON CJ:   We seem to have lost somebody, Mr Massey.

MR MASSEY:   I think we have, your Honours.

GLEESON CJ:   That happens.

GUMMOW J:   And that loss, your opportunity.

MR MASSEY:   Your Honours, this application raises really the question of the extent to which a sentencing judge is required to consider the effect of sentencing legislation on the sentence imposed.  It is submitted at the very least a sentencing judge when passing sentence is required to ensure that the orders he or she makes are capable of achieving their purpose so as, one, to prevent injustice, as well as, secondly, ensuring that the intention of the Parliament is not undermined. 

It is submitted that an order granting parole eligibility is part of the sentence imposed.  In R v Shrestha (1990) 173 CLR 48 at 60 their Honours Justices Brennan and McHugh said:

it is desirable to recall that an eligibility‑for‑parole order is part of a sentence, and the discretion which is exercised in framing an appropriate sentence in a given case calls for an evaluation of all the relevant circumstances and a consideration of all the sentencing options which are available to the sentencing judge.

One of the principal purposes for which parole eligibility is granted is to mitigate punishment in favour of rehabilitation through conditional freedom.  An authority for that proposition is found in Power v The Queen (1974) 131 CLR 623.

In this case, your Honours, the applicant was granted parole eligibility, but because of the manner in which the sentence was structured in relation to the sentence already being served – and he had received, as your Honours would be aware, a term of 9 years imprisonment in respect of another matter – the operation of the relevant sentencing legislation, the order ultimately was futile.  This results in a position where the applicant himself is in no better position than he would have been if he had not received parole in the first place.  In fact, there is an argument to say that he is, in fact, in a worse position because ‑ ‑ ‑

GLEESON CJ:   What do you say should have been done?

MR MASSEY:   Well, the term could have been partly concurrent with the existing term, which would have then had the effect ultimately of at least making the parole order mean something and not rendering it futile.  The futility of the order that was actually made was accepted by the court below at paragraph 23 of the judgment, which is at pages 55 and 56 of the application book.  The way in which it was futile is explained really in the judgment itself at that paragraph, but the ultimate effect was that the applicant, having received an order for parole eligibility, still serves a term of imprisonment, a custodial term of 7 years, and he had not received that ‑ ‑ ‑

GLEESON CJ:   I may have misunderstood the reasoning, but did not the Court of Criminal Appeal take the view that he could not reasonably have been given any less than he got?

MR MASSEY:   I did not read that in the judgment.  The error that is complained of is at paragraph 26 of the judgment, which is at page 56 and 57.

GLEESON CJ:   Just a moment.  Do you contradict what is said in the first sentence of paragraph 26?

MR MASSEY:   Not necessarily in the first sentence, but what is said in the paragraph as a whole is, in effect, that they – well, it is said in the second part of the paragraph:

It is not appropriate for the court to mould sentences with an eye on parole eligibility calculations or to make such calculations for itself before passing sentence.

What we say about the overall effect of that paragraph is that it contains an erroneous statement of principle for future sentencing because – and this is contained in the summary of argument at paragraph ‑ ‑ ‑

GLEESON CJ:   I do not know whether it applied in this State, but it seems to be a re-running of the old, old argument in other jurisdictions about whether courts, when sentencing offenders, should have one eye on the remissions system that used to operate before truth in sentencing legislation came in, and the courts repeatedly said, as a matter of principle, no.

MR MASSEY:   For example, in Hoare, I think, the Court said that one would not look at the eligibility for parole when considering whether to increase the head sentence.  In the materials that your Honours have before you, at page 353 over to 354 of the judgment in Hoare, it sets out the proposition which I understand your Honour to be making, that:

It is well settled as a matter of principle that the existence of a remissions system . . . is not, of itself, a circumstance justifying an increase in the head sentence.

But what is complained of here is not that that proposition is wrong.  What is said is that the court below, in assessing the rule, the general principle in Hoare, misstated it because what was then said at page 355 of the judgment in Hoare was to say that:

That is not to say that, in the absence of some statutory provision such as s. 302 –

dealing in that case –

a sentencing judge could take no account at all of the availability (or unavailability) of remissions in determining the appropriate sentence in all the circumstances of the particular case.

What we distil from the proposition in paragraph 26 of the judgment, the proposition that is complained of, is that the court seems to be saying that it is not permissible to consider the effect of the legislation on the sentence at all.  We say it is because, in effect, what happens with – as evidenced in this case really, is that at the end of the day you run the risk that the effect of the general principle of the legislation is rendered futile, as occurred here.  As we say in the outline, parole is there to provide for mitigation of punishment.  Here the parole eligibility order does not do that.  The effect of the legislation is rendered futile.

We say, as a general principle of sentencing, that the court ought to be aware of the effect of the sentencing legislation on the sentence imposed.  If the court does not turn its mind to that, then it falls into error.  That is the principle, in effect, that we say enlivens the grant of special leave.  The statement of principle that is contained in the judgment at paragraph 26 contains an erroneous statement and has an implication for future sentencing, as well as the – what we say in the outline, that we talk of a substantial miscarriage of justice.  If your Honours please, unless there is any other matters that ‑ ‑ ‑

GLEESON CJ:   Thank you, Mr Massey.

MR MASSEY:   We otherwise seek to rely on the written materials filed in the summary of argument.

GLEESON CJ:   Yes, Mr Bates.

MR BATES:   If your Honours please.  This application raises issues that are peculiar to the Western Australian sentencing legislation and issues which are of no general application.  Further, it is submitted that the issues arise out of the particular combination of sentences imposed on the applicant and co-offender in this matter and other unrelated matters.  Accordingly, in our submission, this application raises no question of public importance and the interests of the administration of justice, either generally or individually, do not require a grant of special leave.

GLEESON CJ:   Is what happened here that the sentencing judge imposed what otherwise would have been regarded as a perfectly appropriate sentence, but that because of the combined effect of that sentence and a sentence that he was serving in respect of an unrelated offence the consequence was that the specification of a parole eligibility period did not have a practical effect that it would have had otherwise?

MR BATES:   That is correct, your Honour.  There were two anomalies, and they worked in this way.  The applicant was liable to serve the same period of actual imprisonment on the second sentence – that is, 3 years – regardless of whether he was made eligible for parole.  That is because under the sentencing legislation the first sentence of 9 years was aggregated with the second sentence of 4½ years to produce 13½ years, and then a formula was applied which resulted in 7 years imprisonment and an additional 3 years imprisonment of that 7 years happened to be served in respect of the second sentence.  Therefore, in that circumstance the additional sentence of 3 years in respect of the second sentence was the same, regardless or not of whether this particular applicant got parole. 

The other anomaly was that this particular applicant was liable to serve the same period of actual imprisonment on the second sentence – that is, 3 years, or 3 additional years – as his co-offender, who also received a 4½ year sentence, and in circumstances where the co‑offender was not made eligible for parole, whereas this particular applicant was made eligible for parole.  So it worked in this particular way, that both the applicant and the co-offender were sentenced to 4½ years imprisonment.  Whether the applicant was made eligible for parole or not, he had to serve the same additional period of actual imprisonment of 3 years, and that was the same period that the co-offender had to serve, even though the co-offender was not made eligible for parole.

GLEESON CJ:   That was all the consequence of the applicant’s custodial history.

MR BATES:   That is right, and that arose because in the applicant’s case his previous term of 13 years imprisonment was not a parole term and, therefore, he did not aggregate the 13 and the 4½.  If you applied the formula to the 13, applied the formula to the 4½, and the net result was that the co-offender had to serve an additional 3 years imprisonment.

Our submission is that the Court of Criminal Appeal in this State correctly recognise that courts in this State are not directly concerned with parole calculations and that the sentencing procedure in the Sentencing Act is different to the regime that used to exist in this State and which exists in other States, where you have to fix a head sentence and also have to fix a minimum term, and you have to decide, in fixing the minimum term, how long of actual imprisonment is required to be served before you can have conditional release for the purposes of rehabilitation.

Under the local sentencing regime, the task of a sentencing judge is to specify the fixed term to be imposed for the particular offence.  He has regard to the principles set out in our local Sentencing Act.  He has to stipulate its starting date and he also has to determine whether there should be an order for parole eligibility, having regard to the factors in section 89 of the Sentencing Act.

So what we say in this case was the Court of Criminal Appeal were correct in adopting what Justice Roberts‑Smith had said in the earlier Kirby Case and what had been the way that the Sentencing Act works in this State.  If I could just paraphrase the way that it works.  Previously the discretion involved a two-stage process of determining whether the fixing of a minimum term was appropriate and then the second stage was the determination of the length of the minimum term and then under the Sentencing Act – and if an order for parole eligibility is made, then release is governed by a statutory formula. 

The question of eligibility for parole must be considered once the sentence of imprisonment appropriate to the gravity of the offence, in light of the antecedents of the offender, has been determined.  Then section 89, which is the parole provision, contemplates, in addition to the other matters mentioned in that section, some prognosis is then required concerning the circumstances which might exist when the offender would be eligible for release under the statutory formula.

So the purpose of this is to enable some preliminary consideration to be given to the question of whether, in terms of rehabilitation of the offender, he or she is likely to benefit from serving the relevant portion of

the sentence under supervision in the community.  Accordingly, the legislative intent differs from that in Power v The Queen, which was a case which was concerned with fixing a head sentence at a minimum term.  It was different from the intent in Power, which was expressed at 629 of that decision:

to provide for mitigation of the punishment of the prisoner . . . through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence.

GLEESON CJ:   All right, I think we understand that, thank you.

MR BATES:   If your Honour pleases.

GLEESON CJ:   Yes, Mr Massey.

MR MASSEY:   Just briefly, your Honours.  The important principle, as I opened with, in this case is that as a general principle, we say, that a sentencing court should at least have regard to the effect of the legislation.  The statement of principle that is contained in paragraph 26 of the judgement, in our respectful submission, does not ensure that the sentencing judge, when sentencing an offender, ensures that the intention of the legislation, or of the parole order in this case, is not thwarted.  To ignore the effect of the order, to ignore the practical effect in terms of the time in custody spent, we say, thwarts the intent of the legislation and renders the order futile.  If your Honours please.

GLEESON CJ:   In this matter there is not sufficient reason to doubt the correctness of the decision of the Court of Criminal Appeal to warrant a grant of special leave.  The application is dismissed. 

We will adjourn for a short time to reconstitute.

AT 3.12 PM THE MATTER WAS CONCLUDED