Oakley v Turner - [2017] WASC 258

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: OAKLEY -v- TURNER [2017] WASC 258

CORAM: HALL J

HEARD: 22 AUGUST 2017

DELIVERED : 22 AUGUST 2017

PUBLISHED : 30 AUGUST 2017

FILE NO/S: SJA 1033 of 2017

BETWEEN: TRENT LAWRENCE OAKLEY
Appellant
AND
LESLIE ROBERT GEORGE TURNER
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE M D WHEELER
File No  :PE 42197 of 2016, PE 47467 of 2016, PE 52261 of 2016, PE 55008 of 2016, PE 55428 of 2016

Catchwords:

Criminal law - Appeal against sentence - Miscalculation of total effective sentence - Failure to consider eligibility for parole - How that failure can now be remedied

Legislation:

Sentencing Act 1995 (WA), s 89

Result:

Appeal allowed
Appellant resentenced

Category: B

Representation:

Counsel:

Appellant: Mr R F Owen
Respondent: Mr L M Fox

Solicitors:

Appellant: Aboriginal Legal Service (WA)
Respondent: Director of Public Prosecutions (WA)

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

Nil
HALL J:
(These reasons were delivered extemporaneously and have been edited from the transcript.)

This is an appeal against sentence.
On 31 January 2017, the appellant appeared before his Honour Magistrate Wheeler in the Perth Magistrates Court to be sentenced for nine offences following his pleas of guilty. Sentences of immediate imprisonment were imposed for five of those offences and fines for the remaining four. The sentences of imprisonment were all ordered to be served concurrently and the total effective sentence was 7 months' imprisonment. His Honour ordered that this sentence be backdated to commence on 29 September 2016, the date when the appellant was taken into custody for those offences.
The convictions caused the appellant to be in breach of a suspended imprisonment order of 8 months' imprisonment that was imposed in the Perth Magistrates Court on 4 May 2016. Magistrate Wheeler was satisfied that it was appropriate to trigger that sentence and order that the 8 months' imprisonment be served. Because an activated sentence of imprisonment cannot be backdated, his Honour ordered that that sentence was to commence from the sentencing day, that is 31 January 2017.
In his sentencing remarks, the magistrate expressed the view that the sentences should be concurrent and that, accordingly, the aggregate sentence was 8 months' imprisonment. However, the different starting dates meant that the resulting sentence was longer than 8 months. In fact, the total aggregate sentence was some 12 months and 2 days.
The Sentencing Act 1995 (WA) at the time of sentencing provided that where the aggregate sentence was less than 12 months, a court could not make a parole eligibility order. Prisoners serving terms of less than 12 months became eligible automatically after serving one‑half of their sentence. Where, however, the sentence was 12 months or longer, eligibility for parole was determined by the court under s 89 of the Sentencing Act.
I should note at this point that the Sentencing Act and the Sentence Administration Act 1995 (WA) have recently been amended such that court ordered eligibility is now required for sentences of 6 months or more. However, a transitional provision in s 129 of the Sentence Administration Act has the effect of continuing the application of the former provisions in respect of a person who was sentenced prior to 1 July 2017, as was the appellant.
The end result is that when the appellant was sentenced on 31 January 2017, the question of his eligibility for parole was one to be determined by the court because his aggregate sentence exceeded 12 months. He did not qualify for short‑term or administrative parole.
The learned magistrate was required to consider how he would exercise the discretion to grant or refuse an order for eligibility for parole. That discretion was to be exercised, having regard to the non‑exclusive criteria in s 89(4) of the Sentencing Act. What in fact happened was that the question of eligibility was not considered at all. It is apparent that this is because the magistrate was under the mistaken impression that the total sentence was under 12 months.
The consequences for the appellant of this error were significant. Rather than a sentence of 8 months with eligibility for parole after 4 months, the appellant received a sentence of just over 12 months with no order for eligibility.
There was an attempt to correct the sentence but it was refused. In doing so, the magistrate said that he had determined that it would not be appropriate to order eligibility for parole because 'most of the sentence imposed was in respect of a pre‑existing sentence'. With great respect, that rationale does not accord with his Honour's sentencing remarks on 31 January when it was clear that he intended to impose an aggregate sentence of 8 months. Further, the fact that an 8‑month suspended sentence had been triggered did not, in itself, justify refusal of an eligibility order.
The ground of appeal is that the magistrate erred in failing to exercise his discretion as to whether a parole eligibility order should be made. The respondent concedes that leave to appeal should be granted and the appeal allowed. That concession is properly made. It is clear that there was a failure to exercise the discretion because there was an error regarding the length of the aggregate term of imprisonment imposed. The question is what should be done.
Having regard to the criteria in s 89(4) of the Sentencing Act, it is submitted that there is no reason to refuse an eligibility order. The respondent accepts this. However, if such an order were now made, it would mean only that the appellant can be considered by the Prisoners Release Board for release on parole. He has already served nearly 11 months of his 12‑month sentence. By the time the Prisoners Release Board could consider his case, it is likely he would have served his full term. Accordingly, an eligibility order could not now achieve justice for the appellant or remedy the fact that he ought to have been eligible to be considered for parole some 5 months ago.
In these circumstances, counsel for the appellant proposes another solution. If the order backdating the 7‑month sentence was effectively revoked and an order made that that sentence be deemed to have commenced on 31 January, then the effect would be that the sentence would then run concurrently with the 8‑month activated suspended sentence.
Whilst this would not alter the fact that the appellant was in custody from 29 September 2016, it would mean that the sentence imposed on him on 31 January 2017 became one of 8 months. As that would make the sentence one of under 12 months at the date it was effective, no eligibility order is required and the appellant is eligible immediately for administrative or short‑term parole. The effect would be that the appellant would be immediately released with a short period of community supervision on parole.
The respondent accepts that in the unusual circumstances of this case, the proposed solution is appropriate. I am also of that view because, firstly, it achieves a result that accords with the magistrate's original expressed intention; secondly, it minimises any further injustice to the appellant; and thirdly, it serves the community interest in allowing the appellant to be released under supervision without further delay. There will be orders accordingly.

Orders

1.Leave to appeal granted,
2.Appeal allowed.
3.Sentences varied by ordering that the sentences of imprisonment imposed on 31 January 2017 be deemed to have commenced on that day.