Little v The State of Western Australia
[2007] WASC 33
•9 FEBRUARY 2007
LITTLE -v- THE STATE OF WESTERN AUSTRALIA [2007] WASC 33
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASC 33 | |
| Case No: | INS:236/1994 | 9 FEBRUARY 2007 | |
| Coram: | HASLUCK J | 8/02/07 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| A | |||
| PDF Version |
| Parties: | ROSS ANDREW LITTLE THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Wilful murder Sentencing Power to correct sentence Application pursuant to s 37 Sentencing Act 1995 (WA) Applicant convicted of wilful murder and sentenced to life imprisonment Mandatory penalty for wilful murder unchanged Amendment to parole provisions between date when offence committed and date when sentence imposed Whether sentencing Judge erred in making a parole order pursuant to sentencing regime in force at time of sentencing instead of regime in place at time offence committed Whether parole provisions form part of sentencing regime Practical effect of proposed correction would result in prospective earlier release date Whether sentence should have been imposed with no orders relating to parole or specific orders Whether right or privilege affected by repeal Held that no accrued right or privilege infringed Application for correction refused |
Legislation: | Criminal Code (WA), s 11, s 282, s 282(a) Criminal Law Amendment Act 1994 (WA) Interpretation Act 1984 (WA), s 37 Offenders Community Corrections Act 1963 (WA), s 34(2)(d), s 37A, s 37A(6)(e), s 40D(2c), s 40D(2d) Sentence Administration Act 1995 (WA) Sentencing (Consequential Provisions) Act 1995 (WA) Sentencing Act 1995 (WA), s 10, s 37(1), s 37(5), s 90(2) |
Case References: | Little v The Queen, unreported; SCt of WA; Library No 970630; 21 November 1997 Siganto (1997) A Crim R 60 Williams v The State of Western Australia [2006] WASC 165 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Criminal law - Wilful murder - Sentencing - Power to correct sentence - Application pursuant to s 37 Sentencing Act 1995 (WA) - Applicant convicted of wilful murder and sentenced to life imprisonment - Mandatory penalty for wilful murder unchanged - Amendment to parole provisions between date when offence committed and date when sentence imposed - Whether sentencing Judge erred in making a parole order pursuant to sentencing regime in force at time of sentencing instead of regime in place at time offence committed - Whether parole provisions form part of sentencing regime - Practical effect of proposed correction would result in prospective earlier release date - Whether sentence should have been imposed with no orders relating to parole or specific orders - Whether right or privilege affected by repeal - Held that no accrued right or privilege infringed - Application for correction refused
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Legislation:
Criminal Code (WA), s 11, s 282, s 282(a)
Criminal Law Amendment Act 1994 (WA)
Interpretation Act 1984 (WA), s 37
Offenders Community Corrections Act 1963 (WA), s 34(2)(d), s 37A, s 37A(6)(e), s 40D(2c), s 40D(2d)
Sentence Administration Act 1995 (WA)
Sentencing (Consequential Provisions) Act 1995 (WA)
Sentencing Act 1995 (WA), s 10, s 37(1), s 37(5), s 90(2)
Result:
Application dismissed
Category: A
Representation:
Counsel:
Applicant : Mr G A Payne
Respondent : Mr M A Holgate
Solicitors:
Applicant : Legal Aid WA
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Little v The Queen, unreported; SCt of WA; Library No 970630; 21 November 1997
Siganto (1997) A Crim R 60
Williams v The State of Western Australia [2006] WASC 165
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- HASLUCK J:
Introduction
1 The applicant, Ross Andrew Little, seeks an order pursuant to s 37 of the Sentencing Act 1995 (WA) providing for the recall and correction of an order imposing sentence upon him.
2 The nature of the relief sought is reflected in his form of application dated 2 January 2007. The application is described in this way:
"The Applicant applies for a correction of his sentence including orders that –
1. The parole order made by his Honour Justice Heenan on 1 May 1995 be quashed.
2. In lieu thereof the Applicant be sentenced to life imprisonment without any order for eligibility for parole.
3. The Parole Board or its successor be directed to consider the Applicant's entitlement to eligibility for parole pursuant to the provisions of section 34 of the Offenders Community Corrections Act 1963 (WA)."
Background
3 The applicant was convicted of wilful murder in the Supreme Court of Western Australia at Perth after trial before a jury. The events giving rise to the subject indictment occurred on 20 April 1994 and involved a co-offender by the name of Wayne John Williams who was also convicted of wilful murder at the trial in question. The two co-offenders were convicted on 17 March 1995, being almost 12 months after the subject events, and were sentenced by the trial Judge, His Honour Justice Desmond Heenan a few weeks after the trial on 1 May 1995.
4 Williams was thought to have a higher degree of culpability and was sentenced to a term of strict security life imprisonment. His Honour set a minimum period of 20 years to be served before Williams was to be eligible for release on parole. The applicant, Ross Little, was sentenced to life imprisonment only. He was required to serve a minimum period of 15 years before being eligible for parole.
5 I feel obliged to note at the outset that about six months ago, on 4 August 2006, I delivered a judgment dealing with an application for
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- correction of sentence by Williams that raises essentially the same issues as are raised by the present application: Williams v The State of Western Australia [2006] WASC 165. On that occasion I dismissed the application for correction.
6 I must obviously give separate consideration to the present application, and will certainly do so. Nonetheless, the reality is that in outlining the background to the conviction and the sentencing process including reference to the statutory provisions bearing upon the matters raised by the present application, the Williams judgment is a convenient point of reference. A copy of the Williams judgment was provided to counsel for the applicant well before the hearing of the present application and I have little doubt that both counsel and the applicant himself are fully conversant with the narrative and observations reflected in the judgment because the Williams judgment bears directly upon the present case.
7 Accordingly, in my view, having regard to the long and complicated history of the relevant statutory provisions, it would be unnecessarily prolix for me to repeat everything that was said in the Williams judgment. I am therefore minded to summarise the main features of that judgment, in so far as they bear upon the present application, upon the basis that my summary is to be regarded as being underpinned by the more extensive reasoning set out in that judgment. It is in my mind also that as the Williams judgment is to be brought before the Court of Appeal in the near future it may prove useful to the applicant if he is provided with a shorter form of judgment in a timely manner.
The circumstances
8 It appears from the Williams judgment and from the materials supporting the present application that prior to April 1994 the applicant (Little) had been associated with the deceased man named in the subject indictment in a relationship that was sometimes friendly and sometimes strained. In the course of a lengthy drinking session at a hotel in Fremantle on 20 April 1994 Little spoke to Williams about his relationship with the deceased and alleged that the deceased had assaulted him.
9 Little and Williams were previously unknown to each other but for some reason, which is not entirely clear, Williams took an interest in the matter and disclosed to Little that he had a pistol in his possession. Arrangements were then made for Williams to take the deceased to a teller machine under the pretext of obtaining money for a drug deal.
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10 In the course of that excursion to the teller machine Williams fired five shots at the deceased while the latter was in the car being used for the excursion. Williams fired a further 12 shots as the deceased attempted to run away and killed him. Issues of self-defence and provocation were raised at the trial, and consideration had to be given to the rules of law concerning parties to the offence. However, in the end, both Williams and Little, as I have indicated in earlier discussion, were convicted of wilful murder.
11 I pause to note that as appears from Heenan J's sentencing remarks, the applicant, Ross Little, did not accompany Williams and the deceased to the teller machine. Little remained at the pizza bar where the arrangements had been made. His Honour said this (at 608):
"Applying the jury's verdict to the evidence, I accept that you, Little, were angry with Laing, that you felt aggrieved, hurt and frightened, and that you formed a plan for Williams to threaten Laing and to scare him in order to deter him from engaging in violent or other unacceptable behaviour towards you. Thus it is appropriate to deal with you on the basis that you did not intend that Williams would either kill or do grievous bodily harm to Laing but that, in effect, you engaged Williams to help you knowing that he had a pistol, very likely loaded, and that he was a man who had already made it clear to you that he was prepared to shoot Laing upon your say-so.
On that or some such basis it seems the jury accepted that the killing of Laing was a probable consequence of embarking on that plan. Thus, Little, your culpability is considerably less than that of Williams. As to your antecedents, again there is a difference."
12 I note in passing that the applicant later appealed against the adequacy of the Judge's direction to the jury concerning his role as an alleged party to the offence but his appeal was dismissed: Little v The Queen, unreported; SCt of WA; Library No 970630; 21 November 1997.
The sentencing process
13 During the course of the sentencing process Heenan J, heard submissions from counsel for the offenders and received pre-sentence reports. As I indicated in earlier discussion, sentencing took place before the trial Judge on 1 May 1995. It is clear from the transcript of the hearing that the conduct of Williams was thought to be especially
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- reprehensible because he had fired the fatal shots and at a man with whom he had no previous connection.
14 Section 282 of the Criminal Code prescribes the penalty for wilful murder. By s 282(a) a person who commits the crime of wilful murder is liable to a mandatory punishment of either strict security life imprisonment or life imprisonment.
15 The transcript of the relevant hearing indicates that as to each of the co-offenders the learned sentencing Judge gave consideration to matters bearing upon the choice between strict security life imprisonment and life imprisonment including the need to assess the offender's degree of culpability.
16 In the end, as mentioned earlier, his Honour sentenced Williams to a term of strict security life imprisonment for the offence of wilful murder with a requirement that he serve a minimum term of 20 years' imprisonment before being eligible for release on parole.
17 His Honour sentenced the applicant, Ross Andrew Little, to a term of life imprisonment and said "I set a minimum term of 15 years which you must serve before being eligible for release of parole".
18 The two men have been serving their custodial terms since that time.
Issues
19 It emerges from the Williams judgment and from the application presently before me that there is an issue to be considered as to whether his Honour erred in making a parole order pursuant to the sentencing regime which was in force on 1 May 1995 at the time the sentence was imposed. The applicant contends, as Williams contended at the hearing of his application a few months ago, that eligibility for parole ought to have been determined by an earlier and different sentencing regime that was in force on 20 April 1994 at the time the subject offence was committed. It is said that the trial Judge erred in that regard and the error should now be corrected pursuant to s 37(1) of the Sentencing Act. It is said that the practical effect of the correction would be that the applicant has a prospect of being released on parole after serving 12 years (that is, on 1 May 2007), being three years earlier than the minimum period of 15 years set by the sentencing Judge.
20 In order to understand the thrust of the applicant's submissions it will now be useful to draw upon the narrative set out in length in the Williams
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- judgment and to summarise the conclusions I arrived at after a full review of the relevant statutory provisions.
The Williams judgment
21 It appears from the Williams judgment that there are three sentencing regimes to be considered being first, the regime prior to 20 January 1995 (which was in force when the offence was committed on 20 April 1994); second, the regime after 20 January 1995 (which was in force when the original sentence was imposed); third, the regime after 4 November 1996 (being essentially the regime in force when the application to recall the subject sentence comes before the Court).
22 I am using the term "sentencing regime" loosely, and simply as an aid to exposition. It will become apparent later that there is an important issue to be resolved as to whether orders concerning parole can properly be characterised as part of the "sentence" imposed by a court, especially with respect to "mandatory punishment" for wilful murder of strict security life imprisonment or life imprisonment.
23 However, I note (and must keep steadily in mind) that the term "sentence" in s 37 of the Sentencing Act, being the provision relied upon by the applicant in the present case, is defined to include "an order in addition to sentence".
The first regime
24 Section 37A of the Offenders Community Corrections Act 1963 (WA) dealt with parole eligibility under the first regime. By s 37A a court could order that a person sentenced to serve a term of imprisonment be eligible for parole.
25 However, by s 37A(6)(e) of that Act a court was not permitted to make an order for eligibility for parole in respect of a penalty of strict security life imprisonment or life imprisonment. In such a case the statute specified the minimum period.
26 The Williams judgment, of course, was concerned principally with provisions applicable to the Williams case; that is, the case of a person convicted of wilful murder who was sentenced to a term of strict security life imprisonment. Accordingly, I add to what was said in the Williams' judgment by noting that s 34(2)(d) and Item 5 of the table forming part of s 34 of the Act requires that a prisoner undergoing a sentence of life imprisonment imposed on or after the commencement date under s 282(a)(ii) or s 282(c)(ii) of the Criminal Code was entitled to have the
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- Parole Board report on his eligibility for parole 12 years after sentencing and every 3 years thereafter.
27 In essence, then, if it were held by the sentencing Judge in the exercise of his discretion that life imprisonment should be imposed the Court was not permitted to fix a minimum term to be served before the offender would be eligible for parole, for the effect of the provisions just mentioned was that an order for parole was not to be made by the Governor earlier than 12 years after the date on which the offender was sentenced.
The second regime
28 At the time of sentencing in the present case, on 1 May 1995, the relevant provision of the Offenders Community Corrections Act 1963 had been amended by the Criminal Law Amendment Act 1994 (WA) which took effect on 20 January 1995.
29 The Williams judgment focused upon the introduction of sub-section (2c) into s 40D of the Offenders Community Corrections Act whereby a court sentencing a person to strict security life imprisonment for wilful murder was required to set a minimum of at least 20 years and not more than 30 years that the person must serve before being eligible for release on parole.
30 I add to the Williams judgment by noting, having regard to the circumstances of the present case, that s 40D(2d) was also added to the Offenders Community Corrections Act. This had the effect of requiring a court sentencing a person to life imprisonment for wilful murder to set a minimum term of at least 15 and not more than 19 years that the person must serve before being eligible for release on parole.
31 In other words, unlike the position under the first regime, the sentencing Judge was now both permitted and required to fix a minimum term to be served before an offender convicted of wilful murder would be eligible for parole. As to a person sentenced to life imprisonment such as the applicant Little, the minimum term was to be of at least 15 years (being 3 years more than the possible minimum of 12 years allowed for under the first regime).
The third regime
32 The Offenders Community Corrections Act 1963 was repealed by the Sentencing (Consequential Provisions) Act 1995 (WA). This was
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- accompanied by the Sentencing Act 1995 (WA) and the Sentence Administration Act 1995 (WA) which took effect on 4 November 1996.
33 As to parole, s 90(2) of the new Sentencing Act provided that a court that sentences an offender to life imprisonment for wilful murder must set a minimum period of at least 15 and not more than 19 years that the offender must serve before being eligible for release on parole.
34 As I noted in the Williams judgment, it emerges from a consideration of the three so-called sentencing regimes (when they are looked at from the viewpoint of a person such as Williams serving a sentence of strict security life imprisonment for wilful murder or from the viewpoint of a person such as Little serving a sentence of life imprisonment for wilful murder) that the mandatory penalty for wilful murder has remained the same throughout.
35 I noted also as to an offender such as Williams serving a sentence of strict security life imprisonment the lowest possible minimum term before being eligible for parole has remained the same throughout. However, the first regime differs from the other regimes and is arguably less severe in that the minimum term of 20 years under that regime is prescribed not by the Court but by the legislation and that regime does not allow for a minimum term of up to 30 years.
36 However, as a matter not addressed in the Williams judgment, I must observe that for an offender such as Little serving a term of life imprisonment the lowest possible minimum term before being eligible for parole is of a lesser order under the first regime, which allows for a possible minimum term of 12 years, when compared to the position under the second regime which requires that eligibility for parole is to be set by the Court with a minimum period being specified by the Court of at least 15 and not more than 19 years.
37 It is therefore a matter of importance to the applicant in the present case (Little) as to whether his situation is or ought to have been dealt with under the first regime.
38 The thrust of the applicant's case on the application for correction before me, is that, when the applicant (Little) was sentenced to life imprisonment for the offence of wilful murder, there ought to have been no orders relating to parole under the first parole regime, allowing the first regime to run its course, rather than making specific orders under the second parole regime.
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39 There are apparently two limbs to the applicant's argument. The first limb asserts that pursuant to the then s 11 of the Criminal Code (since replaced by s 10 of the Sentencing Act (1995)) the applicant ought to have the benefit of whichever regime is the most favourable to him. The second limb of the argument concerns the application of s 37 of the Interpretation Act 1984 (WA) to the position in which the applicant finds himself.
40 The application is opposed by the respondent upon the basis that the mandatory punishment for wilful murder prescribed by s 282 of the Criminal Code has remained the same throughout. It is said that the applicant was therefore sentenced in accordance with the written law under which the offence was committed with the result that the facility for correction allowed for by s 37(1) of the Sentencing Act does not apply.
41 I pause to note that the provision in question reads as follows:
"If a court sentences an offender in a manner that is not in accordance with this Act or the written law under which the offence is committed, the court may recall the order imposing the sentence and impose a sentence that is."
42 I note in passing also that s 37(5) of the Sentencing Act provides:
"In this section - 'sentence' includes an order in addition to sentence."
Further observations
43 In the Williams judgment I gave consideration to a line of argument that the second regime allowed for a more severe form of "punishment" in the case of wilful murder in that the position concerning parole was said to be more severe in that the sentencing Judge could set a minimum term that exceeded the minimum period prescribed by the statutory provisions comprising the first regime. This line of argument was supported by reference to s 11 of the Criminal Code and certain provisions of the Interpretation Act which suggested that where the statutory penalty for an offence is increased after the offence was committed then the lesser statutory penalty applies for the purposes of sentencing the offender.
44 In the end, I concluded in Williams' case (at [87]) that the mandatory penalty for wilful murder had not changed with the result that Williams was not at liberty to rely upon the provisions just mentioned. That was because the mandatory punishment or penalty did not include any related
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- order concerning parole, and thus it was immaterial that the parole provisions might have been "upgraded" or become more stringent since the offence was committed. I held also that the expanded definition of the term "sentence" in s 37(5) of the Sentencing Act did not alter that conclusion, because it did not purport to amend the penalty for murder, either expressly or by implication, or to address the meaning of the term generally.
45 As I have indicated, the applicant in the present case (Little) sought to rely upon the line of argument just mentioned in support of his application for correction. However, I am not persuaded that it was open to him to do so. I am of the view that the reasoning in the Williams judgment concerning this point applies with equal force to an offender sentenced to strict security life imprisonment such as Williams as to an offender sentenced to life imprisonment such as Little. The application for correction cannot succeed pursuant to this line of argument.
46 However, in the Williams judgment, I also looked at s 37(1)(c) of the Interpretation Act which provides that any right or privilege or interest existing prior to the repeal of a written law is not affected by the repeal. This arguably suggested that Williams and the present applicant ought to receive the benefit of the less severe parole requirements of the first regime, being the law in force when the offence was committed. Moreover, the expanded definition of the term "sentence" in s 37(5) of the Sentencing Act appeared to allow for correction of an order concerning parole because the term "sentence" is defined to include "an order in addition to sentence".
47 As to this aspect of the matter I made these observations at [95] - [97] of the Williams judgment:
"95 In exercising the power to fix a minimum term it was important that the power was not exercised in a way that increased the minimum term of 20 years provided for under the first regime (as the law in force when the offence was committed), for s 37(1)(c) of the Interpretation Act provides that the repeal of a written law does not affect any right or privilege accrued prior to the repeal. However, I cannot see that s 37(1)(c) of the Interpretation Act can be used to negate or stand in the way of the exercise of the prescribed statutory power in circumstances where the power could be, and in fact was, exercised in a manner that did not actually affect or
- reduce the applicant's entitlement. The minimum term of 20 years set by the sentencing Judge pursuant to the statutory power vested in him under the second regime corresponded and gave effect to the applicant's entitlement to a minimum term of 20 years under the first regime.
- 96 Moreover, s 37(1)(c) of the Interpretation Act operates essentially to preserve accrued rights and does not preserve a right to a particular mode of procedure. To my mind, even if it be thought that parole provisions are so directly related to the liberty of the subject that they should be characterised as substantive (and thus accrued) rights, the change effected by the second regime as to the precise manner in which the minimum period was to be set should be characterised as a procedural change. The usual rule is that a procedural matter of this kind must be determined in accordance with the law in force when the trial is held and the sentence imposed. This confirms that the minimum term was properly set pursuant to the second regime: Rodway v The Queen (1990) 169 CLR 515; (1990) 92 ALR 385.
97 It follows that, in my view, as to the aspect of this matter also, I am not persuaded that there is any error to be corrected pursuant to s 37 of the Sentencing Act. The sentencing Judge was expressly required by the operative statutory provision under the second regime to set a minimum term and he did so. In fact, the term of 20 years set by the Judge did not affect or reduce any collateral right or privilege vested in the applicant under the first regime. This conclusion is consistent with the ruling in Thompson's case which held that the sentencing Judge was required to perform the statutory duty imposed upon him (in that case under the third regime) of setting a minimum term, notwithstanding that such a duty did not exist under the law in force when the offence was committed."
48 It is immediately obvious that the first limb of my reasoning in the Williams judgment concerning this matter does not apply directly to the circumstances of the present application. In essence, I held that in circumstances where the Court had set a minimum term of 20 years under
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- the second regime which corresponded with the minimum available term of that length under the first regime it could not be said that an accrued right or privilege had been infringed. However, that line of reasoning has no application to the circumstances of the present case because it is clear that in the case of an offender such as Little, who received a term of life imprisonment, the possible minimum term of 12 years under the first regime is more favourable to him than the minimum term of 15 years allowed for under the second regime and in fact prescribed by the sentencing Judge in the present case. Accordingly, I must put the conclusion expressed in [95] of the Williams judgment to one side.
49 Nonetheless, I am of the view that the discrete line of reasoning reflected in [96] of the Williams judgment applies directly to the circumstances of the applicant's present case (the Little case). To my mind, the process by which a court determines eligibility for parole must be characterised as a procedural matter and that was to be determined in accordance with the law in force when the trial was held and the sentence imposed; that is, the law under the second regime being the law in force when the sentence was imposed on 1 May 1995. An entirely new procedure as to eligibility for parole had been introduced upon the commencement of the second regime, a significant feature of which was the requirement that a minimum period be set by the Court. The sentencing Judge was obliged to observe the statutory command in that regard in the absence of transitional provisions purporting to preserve the application of the first regime in respect of offences committed prior to the commencement of the second regime.
50 Further, and in any event, I am not persuaded that the possibility of obtaining parole in the manner allowed for under the first regime, which required the intervention of a reporting authority and a decision by the Governor, can properly be characterised as an accrued right, privilege or interest. The decided cases indicate that the provision is not intended to secure abstract rights. The entitlement to parole depends not upon the events giving rise to the conviction to which the parole issue is related but upon a wide array of personal circumstances presented to the sentencing Judge after conviction and in the course of the sentencing process. It is only then that the possibility or privilege of being characterised as being eligible for parole can be said to crystallize.
51 In other words, even if one accepts the argument that parole eligibility is a right or interest or privilege covered by the provision of the Interpretation Act being relied on, it cannot be said to have arisen or accrued at the time the offence was committed. At the time the applicant
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- committed the murder his entitlement to be considered for release on parole had not been created or accrued. In order for such a right to arise, the applicant needed to be indicted, convicted and sentenced. Until someone in the applicant's position is sentenced, they have no right to be considered for parole. Had the applicant been acquitted, it would be specious to talk of the applicant as having lost a right to parole as a consequence of acquittal. It was the act of sentencing the applicant to life imprisonment that gave rise to his right to be considered for parole. In Siganto (1997) A Crim R 60 at 65 the Northern Territory Court of Criminal Appeal said:
"He acquired no right or privilege when he committed the offence. Whether he was to acquire any such right or privilege would only arise after he was convicted and sentenced to a term of imprisonment."
53 For these reasons, then, I am not persuaded that the learned sentencing Judge erred in acting pursuant to the second regime when sentence was imposed and an order concerning parole was made on 1 May 1995. Accordingly, I do not consider that the sentence imposed or the parole order associated with it can be corrected pursuant to s 37(1) of the Sentencing Act.
Summary
54 The application to correct the applicant's sentence in the manner referred to in the application dated 2 January 2007 is dismissed. I will hear from the parties as to whether any further orders or directions are required. Finally, I must add this. I understand that the Williams judgment has been taken on appeal and has been listed for hearing in the near future on the date mentioned to counsel. If this matter is to be appealed also it would be desirable that both matters be heard together which may require that an application to expedite the hearing of this matter be made forthwith.
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