Mercanti v The Queen
[2011] WASCA 120
•23 MAY 2011
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: MERCANTI -v- THE QUEEN [2011] WASCA 120
CORAM: McLURE P
BUSS JA
HALL J
HEARD: 9 MAY 2011
DELIVERED : 23 MAY 2011
FILE NO/S: CACR 33 of 2011
BETWEEN: TROY DESMOND MERCANTI
Appellant
AND
THE QUEEN
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :FENBURY DCJ
File No :IND 1017 of 2010
Catchwords:
Appeal - Commonwealth offence - Whether a Federal sentence can be cumulative upon State sentence - No hiatus between sentences - Need to set commencement date for Federal sentence - Backdating of Federal sentences
Legislation:
Australian Crime Commission Act 2002 (Cth), s 30(2)(b)
Crimes Act 1914 (Cth), 16(1), s 16E , s 19(1)(b), s 20(1)(b)
Crimes Legislation Amendment Act (No2) 1989 (Cth)
Criminal Appeals Act 2004 (WA), s 41(1)
Criminal Code (WA) s 297
Sentencing Act 1995 (WA), s 37, s 87
Result:
Appeal allowed
Category: B
Representation:
Counsel:
Appellant: Mr L M Levy SC
Respondent: Mr A L Troy
Solicitors:
Appellant: Alana Padmanabham
Respondent: Director of Public Prosecutions (Cth)
Case(s) referred to in judgment(s):
Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; (1993) 177 CLR 485, 492
Kidd v The Queen [1972] VR 728
MacCormack v The Queen [2005] QSC 49; (2005) 196 FLR 13
The Queen v Daswani [2005] QCA 167; (2005) 53 ACSR 675
The Queen v Dobie [2004] QCA 140; [2004] 2 Qd R 537
The Queen v O'Brien (1991) 57 A Crim R 80
McLURE P: I agree with Hall J.
BUSS JA: I agree with Hall J.
HALL J: This is an appeal against a sentence imposed in the District Court for Commonwealth offences. The appeal is directed to the terms of the sentence imposed. In particular as to whether the sentence complied with the requirements of the Crimes Act 1914 (Cth).
On 21 December 2010 the appellant was sentenced to 12 months' imprisonment on each of ten counts of refusing to answer a question that he was required to answer contrary to s 30(2)(b) of the Australian Crime Commission Act 2002 (Cth). Each of those sentences was ordered to be served concurrently. A single recognisance release order pursuant to s 20(1)(b) of the Crimes Act was made that provided that the appellant was to be released after serving four months of the sentence upon entering into a recognisance in the sum of $4,000 to be of good behaviour for 2 years.
At the time of sentencing the appellant was serving a sentence for a State offence of causing grievous bodily harm contrary to s 297 of the Criminal Code (WA). That sentence was one of 2 years 4 months' imprisonment with eligibility for parole and was imposed on 9 December 2008. The State sentence had been backdated to 3 December 2008 and the appellant was first eligible to apply for parole on 31 January 2010. On or about that date the appellant applied for parole but the application was refused by the Prisoners Review Board. The appellant was, therefore, serving the balance of the State sentence at the time he came to be sentenced for the federal offences.
In sentencing the appellant the sentencing judge said that it was his intention to impose a sentence for the federal offences that was cumulative upon the State sentence. He was advised by counsel appearing for the appellant, with whom counsel for the Commonwealth agreed on this point, that the effect of s 19(1)(b) of the Crimes Act was that he was obliged to set a commencement date for the federal sentence and that the date could be no later than the earliest release date on the State sentence. He was advised that that date was 31 January 2010, some 11 months earlier than the sentencing date.
Notwithstanding that the pre‑release period of four months would have been completely served prior to the sentencing date if it was ordered to have commenced on 31 January 2010, it was suggested to his Honour
that the cumulative effect he intended would still be achieved. This was said to be because there would be a shunting effect; that is, that the federal sentence would be served first and the State sentence would be suspended until that sentence was completed and would then be resumed. On this basis, his Honour ordered that the federal sentence was to commence on 31 January 2010.
On 18 February 2011 the Commonwealth DPP brought an application pursuant to s 37 of the Sentencing Act 1995 (WA) for correction of the sentence. It was submitted to the sentencing judge that because the warrant of commitment did not refer to the federal sentence being served cumulatively upon the State sentence it would not have that effect. The prosecution sought that the warrant of commitment be amended by adding after the words '12 months' imprisonment to be released on a recognisance of $4,000 for two years after having served a minimum of 4 months' imprisonment' the words 'cumulatively upon any State sentence of imprisonment currently being served'. No application was made to vary the date of commencement of the federal sentence, which remained as 31 January 2010. Following extended argument his Honour made the amendment sought.
The effect of the amendment was presumed to be to add four months to any sentence the appellant was required to serve for the State offence. Again, it appears to have been assumed that the State sentence could, by some unspecified means, be retrospectively suspended from the date the appellant became eligible for parole and the federal pre‑release period inserted.
The appellant appeals against the amendment made on 18 February 2011. Leave to appeal on the single ground was granted on 4 April 2011. The ground reads as follows:
The learned sentencing judge erred in law by ordering that the sentences he imposed upon the appellant be served 'cumulatively upon any State sentence of imprisonment currently being served' and erroneously directed that the 'warrant of commitment' be amended accordingly in circumstances where he had no power to make the orders in the manner that he did.
In essence, the appellant's argument is that an order that the federal sentence be served cumulatively on the State sentence does not comply with s 19 of the Crimes Act. It is submitted that that section requires the court to order when a federal sentence commences and that requirement is not met by making an order that a federal sentence be served cumulatively upon a State sentence. It is submitted that his Honour was simply required to set the starting date for the federal sentence and no more.
Section 19(1) of the Crimes Act provides as follows:
Where a person who is convicted of a federal offence or federal offences is at the time of that conviction or those convictions, serving, or subject to, one or more federal, State or Territory sentences, the court must, when imposing a federal sentence for that federal offence, or for each of those federal offences, by order direct when the federal sentence commences, but so that:
(a)no federal sentence commences later than the end of the sentences the commencement of which has already been fixed or the last to end of those sentences; and
(b)if a non‑parole period applies in respect of any State or Territory sentences—the first federal sentence to commence after the end of that non‑parole period commences immediately after the end of the period.
The term 'non‑parole period' is defined in s 16(1) of the Crimes Act to mean:
non‑parole period, in relation to a sentence or sentences of imprisonment, means that part of the period of imprisonment for that sentence or those sentences during which the person is not to be released on parole, whether that part of the period is fixed or recommended by a court or fixed by operation of law.
The clear purpose of s 19(1)(b) is to ensure that where a federal sentence is imposed on a person serving a State sentence and it is intended that the federal sentence will be served following the custodial portion of the State sentence, there will be no hiatus between release on the State sentence and the commencement of the federal sentence. Such a hiatus could occur if a federal sentence was ordered to be served on the expiry of a State sentence. If, before such expiry was reached, the offender was released on parole there would be a gap before the federal sentence could commence. This is because an offender released on parole is still serving the balance of that sentence in the community and the sentence would not be completed until the parole period finished. This would result in the unfortunate circumstance of an offender serving the non‑parole period of a State sentence, being released on State parole, and then being returned to custody at the end of that parole period to serve any custodial component required by the federal sentence.
That s 19 was intended to avoid the problem referred to is revealed by considering the legislative history. That section was introduced by the Crimes Legislation Amendment Act (No 2) 1989 (Cth). There had been a previously existing s 19 that was repealed and replaced. The repealed section provided that a court sentencing a federal offender could direct that the sentence commence at the expiry of any State or federal sentence currently being served. This provision resulted in sentences being imposed that suffered from the hiatus problem: Kidd v The Queen [1972] VR 728.
The Explanatory Memorandum for the amendment act stated that:
Subsection (1) applies to situations where a person has been previously sentenced for another offence and is still serving or is subject to federal, State or Territory sentences. It requires a court sentencing a federal offender in those circumstances to direct that the new sentence commence not later than the end of the previous sentence. If the previous sentence is a State or Territory sentence and a non‑parole period applies the court is to direct that the new sentence commence not later than the end of the non‑parole period in respect of the existing sentence. It is intended that this provision enable federal sentences to be served concurrently, partly cumulatively or cumulatively on earlier sentences.
...
Subsections 19(1) and (3) are intended to address a legal problem that arises on sentencing if there are also State or Territory sentences and the person has a State or Territory non‑parole period. Unless a cumulative federal sentence commences during or at the end of the non‑parole period, there is a gap between the person's eligibility to be released on State or Territory parole and the commencement of the federal sentence eg State sentence of 6 years with a non‑parole period of 3 years. If a federal sentence of 2 years is made cumulative on the 6 year sentence the person may be released on State parole after 3 years and then at the end of the State parole period be required to return to prison to serve the federal sentence. Courts have criticised such sentence structures. A similar provision to this proposed section is in s 4(5) of the [Commonwealth Prisoners] Act. It is intended that this provision enable federal sentences to be served concurrently, partly cumulatively or cumulatively with other sentences imposed at the same sittings.
The potential problem of a hiatus arises because it cannot be known prior to the earliest release date on a State sentence whether an offender, who is eligible to be considered for parole, will in fact be granted parole. That would suggest that the requirement under s 19(1)(b) is one that will arise where an offender is to be sentenced for federal offences when they are serving a State sentence but are yet to reach their earliest release date.
In The Queen v Dobie [2004] QCA 140; [2004] 2 Qd R 537 the Queensland Court of Appeal held that s 19(1)(b) had no application where an offender fell to be sentenced for federal offences when serving a State sentence if the non‑parole period had passed. Davies JA noted that s 19(1)(b) speaks in the present tense: 'applies'. He said that for this reason it required for its operation the existence of a non‑parole period applying in respect of a State or territory sentence at the time when a federal sentence is imposed. (See also MacCormack v The Queen [2005] QSC 49; (2005) 196 FLR 13).
The appellant submitted that Dobie should not be followed. It was suggested that the interpretation taken in that case did not reflect the words of the section. The decision of an intermediate court of appeal of another jurisdiction in regard to the interpretation of a law applying nationally should be followed unless it is shown to be plainly wrong: Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; (1993) 177 CLR 485, 492. It is particularly desirable that there be consistency in respect of such legislation. It has not been demonstrated that Dobie is plainly wrong. In any event, in my view, the interpretation of s 19(1)(b) expounded in Dobie appears to be correct and is consistent with the purpose of that sub‑section.
In those circumstances, the sentencing judge was not obliged to set the earliest release date on the State sentence as the date of commencement of the federal sentence. Indeed, to do so in circumstances where that date had passed, served no obvious purpose.
There is another reason why an order that the federal sentence commence on 31 January 2010 was not appropriate. As mentioned, that date had long passed by the time the offender came to be sentenced for the federal offences. The effect of setting 31 January 2010 as the commencement date of the federal sentence was to backdate that sentence.
The power of a sentencing court to backdate a federal sentence arises as a result of s 16E of the Crimes Act which applies State laws in that regard to federal sentences in this State. Section 16E provides as follows:
Commencement of sentences
(1)Subject to subsections (2) and (3), the law of a State or Territory relating to the commencement of sentences and of non‑parole periods applies to a person who is sentenced in that State or Territory for a federal offence in the same way as it applies to a person who is sentenced in that State or Territory for a State or Territory offence.
(2)Where the law of a State or Territory has the effect that a sentence imposed on a person for an offence against the law of that State or Territory or a non‑parole period fixed in respect of that sentence:
(a)may be reduced by the period that the person has been in custody for the offence; or
(b)is to commence on the day on which the person was taken into custody for the offence;
the law applies in the same way to a federal sentence imposed on a person in that State or Territory or to a non‑parole period fixed in respect of that sentence.
(3)Where the law of a State or Territory does not have the effect mentioned in subsection (2), a court (including a federal court) in that State or Territory that imposes a federal sentence on a person or fixes a non‑parole period in respect of such a sentence must take into account any period that the person has spent in custody in relation to the offence concerned.
The relevant State legislation in regard to the backdating of sentences provision is s 87 of the Sentencing Act. Section 87 provides as follows:
Taking time on remand into account
If when an offender is being sentenced to imprisonment for an offence -
(a)he or she has previously spent time in custody in respect of that offence and for no other reason (other than a warrant of commitment issued under the Fines, Penalties and Infringement Notices Enforcement Act 1994); and
(b)the sentencing court decides that that time should be taken into account,
the court may take that time into account -
(c)if it imposes a fixed term, by reducing that term by an appropriate period; or
(d)by ordering that the term it imposes is to be taken to have begun on a specified day being the day when that custody began or on some later date that is not later than the date of the sentence.
As a consequence of s 87 it is possible to backdate a federal sentence in this State where time has been spent in custody for the federal offences which are the subject of that sentence. No time in custody had been spent in respect of the federal offences in this case as at the sentencing date.
Furthermore, the time spent in custody following 31 January 2010 had been served as part of the unrelated State sentence. The nature of that time in custody could not possibly change its character as a result of sentences that were not imposed until December of that year. To purport to make an order backdating a federal sentence in these circumstances was only productive of confusion.
As to the amendment to the warrant of commitment made on 18 February 2011, the respondent concedes that the sentencing judge erred in directing that the federal sentence be served cumulatively on the State sentence. This concession is based upon The Queen v O'Brien (1991) 57 A Crim R 80 (cited with approval in The Queen v Daswani [2005] QCA 167; (2005) 53 ACSR 675 in which the Victorian Court of Criminal Appeal determined that a sentence imposed under the Crimes Act cannot be ordered to be cumulative upon a State sentence, although the same effect can be achieved by the sentencing court fixing the commencement date of the sentence under s 19.
I note that whilst that concession is now made it was at the instance of the prosecution that reference to the federal sentence being served cumulatively was included in the warrant of commitment. Nonetheless, the respondent now submits that the appeal should be allowed but that this court on re‑sentencing should impose the same sentences imposed by the sentencing judge but set as the commencement date the date on which the appellant would be released after the expiry of the whole of the State sentence. The effect of this, it is said, is to achieve the intention of the sentencing judge by adding four months to the sentence that the appellant is to serve before being released.
In order to comply with s 19(1) it is necessary to direct when the federal sentence will commence. An order that a sentence be served cumulatively does not achieve this. In the present case a commencement date for the federal sentence was set for a date that it was not open, for the reasons I have given, to set it. Thus the flaw in the sentence is not merely that the federal sentence was ordered to be served cumulatively, but that this was done in circumstances where no proper commencement date for the federal sentence was specified.
It should be noted that whilst there were errors in the approach taken by the sentencing judge he was led into those errors by counsel who appeared before him. Sentencing for federal offences is notoriously difficult particularly where there are a combination of State and federal sentences. His Honour was not referred to Dobie nor was it explained how a federal sentence, set to commence some 11 months earlier, could result in a four month increase in the total sentence to be served. The impact of s 16E was not referred to, nor any basis advanced for the power to backdate a federal sentence.
For the reasons I have given I would allow the appeal. When re‑sentencing following a successful appeal, this court has the power to order that any new sentence be taken to have effect on an earlier date: s 41(1) Criminal Appeals Act 2004 (WA). The position now is that the appellant has served the whole of his State sentence, which expired on 3 April 2011. In these circumstances an order setting 3 April 2011 as the commencement date of the federal sentence would achieve the cumulative effect intended by the sentencing judge.
Having considered all of the relevant factors as referred to by the sentencing judge, I am of the view that the sentence of 12 months with a pre‑release period of 4 months was an appropriate sentence and that it should be served in addition to any State sentence. The only difference is that I would order that the commencement date be the date on which the State sentence expired, namely 3 April 2011.
I would make the following orders:
1.the appeal be allowed;
2.the sentence imposed on 21 December 2010 and amended on 18 February 2011 be set aside; and
3.in lieu thereof the appellant be sentenced to 12 months' imprisonment on each count and the commencement date for all of those sentences be 3 April 2011 and that the appellant is to be released after serving 4 months upon entering into a recognisance in the sum of $4,000 to be of good behaviour for two years.
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