Mansell v The Queen

[2001] WASCA 206

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

CITATION:   MANSELL -v- THE QUEEN [2001] WASCA 206

CORAM:   KENNEDY J

STEYTLER J
MILLER J

HEARD:   11 JUNE 2001

DELIVERED          :   11 JUNE 2001

FILE NO/S:   CCA 10 of 2001

BETWEEN:   LUKE BYRON MANSELL

Applicant

AND

THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Sentencing - Applicant sentenced to two terms of imprisonment each of 4 years on two counts of armed robbery - Sentencing Judge directing that sentence on first count should commence when applicant first taken into custody and that second sentence should commence 1 year after the commencement of the first sentence - Applicant eligible for parole - Effective sentence of 5 years' imprisonment with applicant to serve one-third before becoming eligible for parole

Legislation:

Nil

Result:

Extension of time for leave to appeal dismissed

Representation:

Counsel:

Applicant:     Ms K J Farley

Respondent:     Mr D Dempster

Solicitors:

Applicant:     Unrepresented Criminal Appellants Scheme

Respondent:     State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Nil

1. KENNEDY J:  On 28 April 2000, the applicant was sentenced to a term of imprisonment of 4 years on each of two counts of armed robbery.  His Honour the sentencing Judge directed that the sentence on the first count should commence on 17 January 2000, being the date on which the applicant was first taken into custody, and that the second sentence should commence 1 year after the commencement of the first sentence.

2. Clearly, his Honour had in mind that the end result would be an effective sentence of 5 years' imprisonment, with respect to which the applicant would have to serve one‑third before becoming eligible for parole, that is to say, he would have to serve 20 months before becoming so eligible.

3. Subsequently, the Sentence Information Unit of the Ministry of Justice advised Legal Aid, in effect, that the applicant would have to serve the full year on the first count before the second term commenced, without his Honour's order for eligibility for parole having any impact upon that period and that he would then be required to serve 16 months, being one‑third of the second term, before becoming eligible for parole.

4. On this basis, the applicant sought an extension of time for leave to appeal against his sentence, claiming that the learned sentencing Judge had erred in the structure of the warrant of commitment which resulted in an effective term of imprisonment that was in excess of the term considered appropriate in the learned Judge's sentencing remarks.

5. The Sentence Information Unit has since received advice from the Crown Solicitor indicating that, contrary to its previous advice, the learned sentencing Judge was entirely correct in the view which he had taken.  Accordingly, the applicant's parole eligibility date has been set at 16 September 2001, representing 20 months' imprisonment or one‑third of the effective sentence of 5 years.

6. In these circumstances, it is appropriate simply to dismiss the applicant's application for an extension of time.

7. STEYTLER J:  I agree.

8. MILLER J:  I agree.