Murray v State of Tasmania
[2020] TASSC 1
•13 February 2020
[2020] TASSC 1
COURT: SUPREME COURT OF TASMANIA
CITATION: Murray v State of Tasmania [2020] TASSC 1
PARTIES: MURRAY, Troy Wayne
v
STATE OF TASMANIA
FILE NO: 3157/2019
DELIVERED ON: 13 February 2020
DELIVERED AT: Launceston
HEARING DATE: 12 February 2020
JUDGMENT OF: Pearce J
CATCHWORDS:
Criminal law – Sentence – Sentencing orders – Non-parole period or minimum term – Tasmania – Separate parole order required for each sentence of imprisonment.
Sentencing Act 1997 (Tas), s 17.
Corrections Act 1997 (Tas), ss 70, 71.
Carr v Department of Police and Emergency Management [2009] TASSC 74; Director of Public Prosecutions v Eldayar [2016] TASCCA 16; Freeman v Moore [2018] TASSC 36, applied.
Evans v Job [2018] TASFC 3, referred to.
Aust Dig Criminal Law [3379]
REPRESENTATION:
Counsel:
Applicant: L Flanagan
Respondent: S Nicholson
Solicitors:
Applicant: Legal Aid Commission of Tasmania
Respondent: Director of Public Prosecutions
Judgment Number: [2020] TASSC 1
Number of paragraphs: 14
Serial No 1/2020
File No 3157/2019
TROY WAYNE MURRAY v STATE OF TASMANIA
REASONS FOR JUDGMENT PEARCE J
13 February 2020
This motion to review challenges the form of a sentencing order made by a magistrate, Mr S Brown, on 13 February 2019. His Honour sentenced the applicant for multiple driving offences. He ordered that the applicant serve four separate terms of imprisonment and activated a suspended sentence. The result was imposition of a total effective term of imprisonment of 21 months from 1 October 2018, the date the applicant had been taken into custody. His Honour then made a single order about parole eligibility. He ordered that the applicant not be eligible for parole until he had served 15 months of the total effective term. There is no challenge to the individual head sentences, the total term or the parole ineligibility period. It is not contended that it was wrong for the magistrate to activate the suspended sentence. However, this motion is brought because the applicant contends that it was an error to impose a single parole ineligibility period in respect of two or more sentences. For the reasons which follow, the applicant's contention is correct and the motion must be allowed. The respondent does not submit to the contrary. It is asserted that the form of the order affects the applicant's entitlement to remissions under the Corrections Act 1997. It is not necessary, for the purposes of this motion, to determine whether that assertion is correct.
The motion to review was not filed and served until 4 December 2019, more than nine months outside the time for appeal imposed by the Justices Act 1959, s 107(3). Application is made under s 107(6) for an extension of the time. The respondent does not oppose the extension. It is appropriate that it be granted. The significance of the form of the sentencing order, and the perceived difficulty it created, did not become apparent until the applicant had served enough of the sentence so that the question of the possible grant of remissions arose. No-one is prejudiced by the delay, and the motion to review discloses an error which should be corrected.
The applicant pleaded guilty to three counts of evading police contrary to the Police Powers (Vehicle Interception) Act 2000, s 11A(2A), and one count of driving while disqualified contrary to the Vehicle and Traffic Act 1999, s 13(1). Commission of those offences constituted a breach of a suspended sentence imposed on the applicant by a magistrate on 17 August 2017 for a very large number of summary offences across many complaints. For those offences the applicant was sentenced to imprisonment for ten months, five months of which was suspended for two years.
When a court finds a person guilty of an offence, it may make one of the sentencing orders listed in the Sentencing Act 1997, s 7. In most cases, a sentencing court has power to impose a single sentence for more than one offence: Sentencing Act, s 11. However, in the case of the offence of evading police under the Police Powers (Vehicle Interception) Act, s 11A(3C) of that Act requires a sentencing court to impose a separate sentence for each such offence. As a result, his Honour was required to impose a separate sentence for each count of evading police and for the remaining charge of driving while disqualified. His Honour also, under s 27(4B) of the Sentencing Act, allowed an application dated 28 December 2018 to activate the five month suspended term and ordered the applicant to serve that term from 1 October 2018. On one count of evading police, the applicant was sentenced to a cumulative term of imprisonment of six months. On the second count of evading police he was sentenced to a six month cumulative term. On the third count of evading police he was sentenced to a four month cumulative term. On the single count of driving while disqualified, his Honour sentenced the applicant to imprisonment for three months, but ordered that term to be served concurrently with the activated suspended sentence. At the conclusion of the process his Honour calculated the total effect of the concurrent and cumulative sentences he had imposed. As I have already pointed out, that resulted in a total effective term of 21 months from 1 October 2018. His Honour then made a single order that the applicant not be eligible for parole until he had served 15 months of that term. Some related sentencing orders were made, including orders of disqualification from driving and an order imposing a special penalty. On one complaint the applicant pleaded guilty to failing to comply with the duties of a driver involved in a crash contrary to the Road Rules 2009, r 287. On that count his Honour simply recorded a conviction. None of those related sentencing orders are subject to challenge.
Eligibility for parole is provided for by both the Sentencing Act and the Corrections Act. The combined operation of the provisions was helpfully summarised by Estcourt J in Williamson v Lane [2013] TASSC 53, 24 Tas R 258. As was pointed out by Brett J in Evans v Job [2018] TASFC 3 at [50], the Acts together form part of a wider interconnecting scheme of legislation in respect of sentencing. They relate to the same subject-matter and there are many examples of interaction between their respective operations. Accordingly, the Acts should, if possible, be construed in a way that is consistent and gives the scheme harmonious operation. The term "sentence" is not defined in either Act. However, in both Acts, the terms "sentence" and "a sentence of imprisonment" are used in the singular, and refer to individual sentencing orders of the Court.
The Sentencing Act, s 8, refers to "a term of imprisonment". Section 11 permits a court sentencing an offender for more than one offence to impose a separate sentence for all or some of those offences, or a separate sentence for each offence. A court imposing "a sentence of imprisonment" may make an order permitting eligibility for parole: s 17(2). The court may order that the offender is not eligible for parole in respect of "that sentence": s 17(2)(a), or it may order that the offender is not eligible for parole in respect of "that sentence" before the expiration of such period as is specified in the order: s 17(2)(b). The period specified in an order under subs (2)(b) is not to be less than one-half of the period of "that sentence": s 17(3). Where a court imposes a sentence of imprisonment and does not make an order under subs (2), the offender is not eligible for parole in respect of "that sentence": s 17(3A) and (6).
The Corrections Act affects the operation of the Sentencing Act. In the Corrections Act, s 68 provides for a statutory non-parole period in respect of a "sentence of imprisonment". Subject to the Parole Board being satisfied of exceptional circumstances, a prisoner is not to be released on parole before the completion of the non-parole period applicable to the prisoner's sentence, or a continuous period of imprisonment of six months, whichever is the greater: s 70. In the case of two or more cumulative sentences of imprisonment, each containing non-parole periods, the non-parole periods operate cumulatively: s 71.
The language and scheme of both the Sentencing Act and the Corrections Act make clear that a parole order is to be made for each order imposing a term of imprisonment. In Evans v Job, the Full Court considered the construction of the Corrections Act, s 86, and the Corrections Regulations 2008, reg 22, which provide for the grant of remissions to a prisoner. The question was whether, according to the proper construction of those provisions, and where a prisoner is serving multiple sentences, the power of the Director of Corrective Services to grant a remission attaches to each separate sentence a prisoner is serving or to the total term the prisoner is to serve. Brett J wrote the lead judgment of the majority. At [52] his Honour explained:
"The use of the word 'sentence' by reference to the individual sentencing orders of the sentencing court, is consistent with the use of the term throughout the balance of the Sentencing Act and the Corrections Act. For example, ss 14 and 15 of the Sentencing Act deal with the commencement date of individual sentences and the relationship between various sentences, including those imposed at the same time, by reference to their respective commencement dates. Section 17 provides that a court that imposes a sentence of imprisonment on an offender may order that the offender is not eligible for parole in respect of that sentence before the expiration of a specified period. As Blow J (as he then was) pointed out in Carr v Department of Police and Emergency Management [2009] TASSC 74:
'That provision empowers a judge or magistrate to specify a non-parole period in respect of a sentence. But it does not empower a judge or magistrate to impose a non-parole period in respect of the aggregate of two separate sentences.'
His Honour held that a magistrate did not have power to impose a single non-parole period in circumstances where the magistrate, at the same hearing, had activated a suspended sentence, and imposed a cumulative sentence in respect of different offences. The magistrate was only empowered to impose a separate non-parole period in respect of each sentence."
There is one judicial expression of opinion in this State that a magistrate has power to make a single order permitting parole in relation to more than one sentence of imprisonment. In Lavell v McKenna [2017] TASSC 10, Blow CJ was persuaded to that position by reason of the operation of the Acts Interpretation Act 1931, s 24(d), which provides that "words in the singular should include the plural". However, as his Honour subsequently recognised, the conclusion stated in that case was contrary to authority. The interpretation provision should not override the clear ordinary meaning of the legislation and the intent of the scheme of related legislation. In Freeman v Moore [2018] TASSC 36, his Honour stated at [23]:
"It has been held in a number of cases that when a judicial officer imposes and/or activates a number of sentences of imprisonment, the Sentencing Act does not permit that judicial officer to impose a single non-parole period in relation to more than one sentence: Carr v Department of Police and Emergency Management [2009] TASSC 74 at [5]; Williamson v Lane [2013] TASSC 53, 24 Tas R 258 at [15]-[24]; Street v Tasmania Police [2016] TASSC 52; Director of Public Prosecutions v Eldayar [2016] TASCCA 16 at [14]. To my embarrassment, I note that I expressed the opposite view in Lavell v McKenna [2017] TASSC 10 at [3] when I should have followed what the Court of Criminal Appeal said in Eldayar. "
In Carr v Department of Police and Emergency Management [2009] TASSC 74 Blow J (as he then was) stated, at [8]:
"One of the new grounds added today was that the learned magistrate erred in imposing a non-parole period of 12 months in respect of two separate sentences. The power to make an order permitting parole is conferred by the Sentencing Act, s17. Under s17(2)(e), a court that imposes a sentence of imprisonment may order that the offender is not eligible for parole in respect of that sentence before the expiration of such period as is specified in the order. That provision empowers a judge or magistrate to specify a non-parole period in respect of a sentence. But it does not empower a judge or magistrate to impose a non-parole period in respect of the aggregate of two separate sentences. That is plainly what the learned magistrate purported to do, or attempted to do, or meant to do, on 12 May. He did not have the power to do that. That ground of appeal is made out."
His Honour adopted the same approach as a member of the Court of Criminal Appeal in Director of Public Prosecutions v Eldayar [2016] TASCCA 16. In that case the Court allowed a Crown appeal on the ground that the sentence imposed at first instance was manifestly inadequate. When re-sentencing the respondent his Honour stated, at [14]:
"In my view, the learned sentencing judge should have specified separate non-parole periods in respect of the activated suspended sentence and the new sentence. His Honour was exercising the power conferred by s 17(2)(b) of the Sentencing Act, which provides that a court that imposes a sentence of imprisonment 'may order ... that the offender is not eligible for parole in respect of that sentence before the expiration of such period as is specified in the order'. That provision applies to activated suspended sentences by virtue of s 27(6A)(b). In my view it should not be interpreted as empowering a court to impose a single parole ineligibility period in respect of two or more sentences: Carr v Department of Police and Emergency Management [2009] TASSC 74 at [8]."
The correctness of the proposition enunciated in Carr, Eldayar and Freeman is reinforced by the reasoning of the Full Court in Evans v Job. In this case, the learned magistrate made a single non-parole order across multiple sentences. With respect, it was an error for him to have done so. The motion to review must be allowed. I will re-sentence the applicant. Because the applicant does not challenge the activation of the suspended sentence, the terms of the head sentences or the total non-parole order, it is only necessary for me make parole orders for each sentence so as to produce the same effective result. I have not been asked to take into account any matter, relevant to sentencing, which has occurred since the original sentencing order was made.
I make the following orders:
(a)the time limited for filing and service of the motion to review is extended until 4 December 2019;
(b)the motion to review is allowed;
(c)the order made on 13 February 2019 that the applicant not be eligible for parole until serving a term of imprisonment of 15 months is quashed;
(d)the order activating the five month term of imprisonment suspended on 17 August 2017 is varied by adding an order that the applicant not be eligible for parole until having served four months of that term;
(e)the order on count 1 on complaint 33583/2018 that the applicant serve a cumulative term of imprisonment of six months is varied by adding an order that the applicant not be eligible for parole until having served four months of that term;
(f)the order on count 1 on complaint 33585/2018 that the applicant serve a cumulative term of imprisonment of six months is varied by adding an order that the applicant not be eligible for parole until having served four months of that term;
(g)the order on count 2 on complaint 35061/2018 that the applicant serve a term of imprisonment of four months is varied by adding an order that the applicant not be eligible for parole until having served three months of that term;
(h)the order on count 1 on complaint 33584/2018 that the applicant serve a term of imprisonment concurrently with the term imposed on the activated suspended sentence is varied by adding an order that the applicant is not eligible for parole in respect to that sentence.
For the purposes of s 92A of the Sentencing Act, I specify:
(a)the terms of imprisonment that are being imposed or confirmed are:
(i) five months commencing 1 October 2018 on the application dated 28 December 2018 to activate the suspended sentence imposed on 17 August 2017. For that sentence the applicant is not eligible for parole until having served four months of that term;
(ii) six months imposed on count 1 on complaint 33583/2018. For that sentence the applicant is not eligible for parole until having served four months of that term;
(iii) six months imposed on count 1 on complaint 33585/2018. For that sentence the applicant is not eligible for parole until having served four months of that term;
(iv) four months imposed on count 2 on complaint 35061/2018. For that sentence the applicant is not eligible for parole until having served three months of that term; and
(v) three months imposed on count 1 on complaint 33584/2018. For that sentence the applicant is not eligible for parole.
(b)the activated suspended sentence, and the sentences imposed on complaints 33583/2018, 33585/2018 and 35061/2018 are to be served cumulatively;
(c)the sentence imposed on complaint 33584/2018 is to be served concurrently with the activated suspended sentence;
(d)the total period that the applicant is liable to serve for all of those sentences of imprisonment is 21 months from 1 October 2018;
(e)the total period, in relation to the sentences, before the expiration of which the applicant is not eligible for parole, is 15 months from 1 October 2018.
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