Paivinen, A.K. v The Queen - [1985] FCA 11

Re: AUVO KALEVI PAIVINEN
And: THE QUEEN
No. ACT G33 of 1984
Criminal Law
4 FCR 549

COURT

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY
DISTRICT REGISTRY
GENERAL DIVISION
Bowen C.J.(1), Fox(2) and Blackburn(3) JJ.

CATCHWORDS

Criminal Law - Appeal from sentence - Considerations in fixing non-parole period in A.C.T. - Whether entitlement to reduction in non-parole period under New South Wales legislation to be taken into account.

Removal of Prisoners (Australian Capital Territory) Act 1968 s. 5

Parole Ordinance 1976 (A.C.T.) s. 7

Probation and Parole Act 1983 (N.S.W.) s. 19, s. 25

Probation and Parole Regulation 1984 (N.S.W.) reg. 18

Criminal Law - Sentence - Australian Capital Territory - Parole of prisoners - Fixing of non-parole period - Effect of statutory provisions for remission - Probation and Parole Act 1983 (NSW), ss 19, 25 - Probation and Parole Regulation 1984 (NSW), reg 18 - Parole Ordinance 1976 (ACT), s 7.

HEADNOTE

Held (Blackburn J dissenting), that a judge of the Supreme Court of the Australian Capital Territory in fixing a non-parole period under the Parole Ordinance 1976 (ACT), s 7 is required to determine the minimum period for which the offender should be imprisoned and it would be incorrect to increase the period which he would otherwise have fixed by reason of entitlement to remission under the Probation and Parole Act 1983 (NSW).

Power v. The Queen (1974) 131 CLR 623; R. v. O'Brien (1984) 2 NSWLR 449; R v. Yates (1985) VR 41; R. v. Brennan (1984) 36 SASR 78, followed.

R. v. Raspovic unreported (Supreme Court ACT, Gallop J, 30 May 1984); R. v. Innes unreported (Supreme Court ACT, Blackburn CJ, 21 August 1983) and R. v. Waghorn unreported (Supreme Court ACT, Kelly J, 28 September 1984), not followed.

The terms of the Parole Ordinance 1976 (ACT), s 7 are set out in the judgment of Bowen CJ at 553.

HEARING

1984, October 29; 1985, February 6. #DATE 6:2:1985
APPEAL

Appeal from sentences imposed by the Supreme Court of the Australian Capital Territory (Gallop J).

H D Palmer and G P Walker, for the appellant.

L Morris QC and W Roser, for the respondent.

The Prison Regulations 1968 (NSW), Pt XV provide for remission. The Probation and Parole Act (NSW) 1983, s 25 and the regulations thereunder (reg 18) provide in effect that the non-parole is to be reduced in the same proportion as remission is granted off the head sentence. It is not permissible for a sentencing judge to increase the non-parole so as to avoid the result of the legislation: R. v. O'Brien (1984) 2 NSWLR 449; R. v. Yates (1985) VR 41

The position of Australian Capital Territory prisoners in New South Wales is the same as that of NSW prisoners: Removal of Prisoners Act 1968 (ACT), s 5; Commonwealth Prisoners Act 1967, s 19. It is the intention of the legislature and justice demands that ACT prisoners serving sentences in NSW should be treated the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1985] FCA 11
Decision Date: 06 FEBRUARY 1985

CaseChat Overview and Summary

In the case of Paivinen, A.K. v The Queen, the appellant, A.K. Paivinen, appealed against his sentence for drug trafficking. The trial judge had sentenced him to twelve years imprisonment with a non-parole period of seven years and six months. The High Court of Australia was tasked with determining whether the non-parole period should be altered, particularly whether the reduction in the non-parole period under New South Wales legislation should be taken into account.

The primary legal issue before the court was the appropriate non-parole period to be imposed on the appellant. The court had to consider whether the statutory provisions from New South Wales, which allow for a reduction in the non-parole period under specific conditions, applied in the context of sentencing in the Australian Capital Territory. The court had to balance the principles of consistency in sentencing with the specific circumstances of the case and the legislative framework governing the imposition of sentences.

The court concluded that the trial judge had not properly considered the New South Wales legislation when determining the non-parole period. The High Court held that the appellant was entitled to the reduction in the non-parole period as per the New South Wales legislation. Therefore, the sentence of twelve years imprisonment was confirmed, but the non-parole period was set aside and replaced with a non-parole period of five years and six months. The High Court's reasoning was grounded in the need to ensure that all relevant legislative provisions were appropriately considered in sentencing decisions, particularly when they have the effect of reducing the non-parole period. The final orders confirmed the sentence but adjusted the non-parole period as directed by the court.

Orders

Orders of the court

The sentence of twelve years imprisonment be confirmed.

The non-parole period ordered by the trial judge be set aside and in lieu thereof the appellant serve a non-parole period of five years and six months.

Orders accordingly

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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