Pollitt v The Queen

[1989] HCATrans 168

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl28 of 1988

B e t w e e n -

ROY ANTHONY POLLITT

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

:M.ASON CJ

DEANE J
DAWSON J
GAUDRON J

Pollitt

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 10 AUGUST 1989, AT 10.17 AM

Copyright in the High Court of Australia

C2T 1/1/HS 1 10/8/89

MR J. BASTEN: If the. Court pleases, I appear with my learned

riend, MR T.L. BUDDIN, for the applicant in this

matter. (instructed by W.J. Robinson, Director,

Legal Aid Commission)

MR R.N. HOWIE, QC:  If the Court pleases, I appear with my

learned friend, MR P.G. BERMAN, for the respondent

Crown. (instructed by S.E. O'Connor, Solicitor

for Public Prosecutions)

MASON CJ:	Yes, Mr Basten.
MR BASTEN:	Your Honours, this case, in our submission, raises

a basic principle of whether a sentencing judge can,
when accumulating a head sentence, increase a minimum

term by a greater amount than the increase in the

head sentence. Might I hand up an outline of our

argument in support of our submissions.

MASON CJ:  Thank you. Yes.

MR BASTEN:  Your Honours, the basic proposition on which we

rely is that the specification of a minimum term in

relation to a sentence is an inherent part of the

process of sentencing and that it is inherent in

the concept of a minimum term that it specifies a

lesser period than the full amount of the sentence

and, although the comments were made in different

contexts, we rely on the statements of principle

which are extracted in the written submissions,
statements by this Court, firstly in POWER's case
and simply the principle stated in paragraph 2

of the submissions:

In a true sense the non-parole period

is a minimum period of imprisonment

to be served because the sentencing

judge considers that the crime

committed calls for such detention -

and the further statement from the judgment of

this Court in HOARE's case which appears at page 3:	The length of a non-parole period is
necessarily confined within the period of
the head sentence and there is no question
of transgressing the basic principle that
a term of imprisonment cannot properly exceed that which is justified as
appropriate or proportionate punishment
for the objective offence.

It is our submission that those simple principles

apply whether or not the offence is one which is

committed after the accused has been imprisoned

for other sentences or not.

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MASON CJ:	But it comes back to a question of construction of the statutory provisions, does it not?
MR BASTEN:	It does in part, Your Honour, but we would

say that the PROBATION AND PAROLE ACT of

New South Wales is predicated upon a proper

understanding of general sentencing principles,

we will say that the Act says nothing expressly
in relation to the problem which is presently

raised, although there are parts of the Act

which we say reflect the principle which we

have stated.

Before I come to the Act, Your Honour, could

I just take the Court to the relevant passages

in the judgment below in the application book and

then I will come to the provisions of PROBATION

AND PAROLE ACT. The problem which arises is one

which is only faced when one is accumulating

upon a head sentence. It is a problem which

arises not only in New South Wales, but also under

Queensland and ACT legislation. The incorrect

approach,which .it is respectfully submitted

was adopted by His Honour Judge Nash, is set out

at page 22 of the application book.

At line 9 on that page His Honour indicates

the sentence which is to be imposed and it

accumulates to an aggregate of four years. Pursuant

to the provisions of the New South Wales PRISONS

ACT 1952, it was necessary to accumulate that

sentence, at least in so far as it related to

escapes. He then says at line 13:

It is necessary for me to fix a non-parole period
in respect of the sentences imposed on 9 March

1973 (appeal heard on 18 May 1973),
10 August 1977 (appeal heard on 3 February 1978),

12 May 1978 (appeal heard on 16 March 1979)

and 9 August 1978 together with the sentences

which I have just imposed.

And it is that statement, in our respectful submission, which indicates the incorrect

application of principle adopted by His Honour.

It was not necessary or appropriate for him

to specify a non-parole period in respect of

sentences already imposed. That argument was put

to the Court of Criminal Appeal and is considered

by the Court and rejected at page 44 at line 32

where, after reference to .ALEXANDER's case to which I

may return if necessary in a moment, the Court

says that:

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MR BASTEN (continuing):

the applicant has not made good his challenge

based on the submission that His Honour lacked

the power to specify a non-parole period in

excess of the additional term of four years

imposed by him.

And there is some further consideration of the

Ac~ to which I will come in a momen~ and a reference

at line 30 on page 45 to the terminology used in

section 24(2). Your Honours, I think those

extracts indicate the problem as it was considered

by the courts below. The Act itself, if I may

turn to the PROBATION AND PAROLE ACT 1983, empowers

the -Court to specifiy non-parole periods ~n

sections 19 and 20.

The power granted in section 19 is only

applicable pursuant to paragraph (c) when the
person who is being sentenced is:

not serving another term of imprisonment. That particular provision is, therefore, not

applicable in the present case. One turns to

section 20 (1). which is applicable whenever the

Court is imposing a sentence which is at least

partly cumulative:

(1) Where a person -

(a) was convicted ..... aft the appointed day -

in this case,

(b) is sentenced on or aft 1.at day .....

(c) is, when so sentenced, serving another

term of imprisonment -

to be served,

in circumstances which require the subsequent

term to be served cumulatively upon, or partly

cumulativelyuponand partly concurrently with,

the original term,
the court shall, if the term of imprisonment -

exceeds,

3 years, upon sentencing the person to the

subsequent term, specify a period before the

expiration of which the person shall not be

released on parole pursuant to this Act, except

as may be provided otherwise by this Act.

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That is the power which the Court was exercising

in this case and that provision says nothing

specifically about the length of the non-parole

period where there is an existing term.

(Continued on page 5)

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MR BASTEN (continuing):  Section 24 provides for the

commencement and duration of the term and for

present purposes the relevant provision is

subsection (2) which states that:

A non-parole period specified pursuant

to section 20(1) with respect to an original

term and a subsequent term ..... .

(a) shall commence, or be deemed to have

commenced, as the case may require -

firstly on the day on which the subsequent term 1s

or was imposed or, secondly, and that does not apply
in this case, on an earlier day if the person was

in custody in relation to this offence at an earli

time. There was no earlier day specified and that

is in keeping with the Court of Appeal's decision in

LARKIN. So the circumstances which His Honour

Judge Nash faced were that he was required to impose a cummulative sentence, and he did that. It could

commence, in these circumstances, only upon the day

on which it was imposed.

The terminology of subsection (2) refers to a

period specified with respect to an original term

and a subsequent term. That, in our submission, covers
an ambiguity because, although it is true that the

term is specified with respect to an accumulation of

sentences, it is not necessarily true that that entails

the conclusion that the sentencing judge is

resentencing or respecifying in relation to an

offence which has already been committed and, in

that regard, we say that the terminology of the

subsection is simply indecisive in relation to this
problem.

The other relevant provision of section 24 is subsection (4) which, again, is indecisive so far

as this problem is concerned. It provides that:

A non-parole period may not extend past

the date of the expiration of -

(a) except as provided by paragraph (b),
the term of imprisonment in respect of
which the non-parole period is determined;
or

(b) where the non-parole period is determined
in respect of more than one term of
imprisonment, the term of imprisonment

which last expires.

So that the first subsection clearly envisages the situation of section 19, where there is no other

term of imprisonment which the prisoner is then

serving. Subsection (2) provides that the term of

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the period shall not extend beyond the accumulation
or aggregation of the sentences but does not say
anything, in our submission, with respect to how
the additional part of the non-parole period, or

the deferral of parole eligibility is to be

considered. It is perfectly consistent with that

provision that it should be a period which is less

than the accumulation on the head sentence and,
in our submission, that is the principle which the
Court, in considering such a matter, should apply,
and which the court did not apply in the present case.

Your Honours, in support of that submission may

I turn briefly to some authorities in the Court of the earlier part of the argument and the authorities

are ones which appear to be the only ones where this

particular problem has been considered either in

New South Wales or in other States and they are a

only three weeks before the present decision in	series of recent cases, the first of which was decided decision decided on 1 September 1988 where the
court for whom Mr Justice Roden spoke considered the appropriateness of a trial judge's conduct in
withholding a non-parole period pursuant to
section 21 of the Act, a power which was
undoubtedly provided by the Act, in circumstances where the withholding resulted in a deferral of
parole eligibility beyond the period of the
extension of the head sentence. At page 4,
the first full paragraph, the court concludes:

(Continued on page 8)

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1:1R BASTEN (continuing):

In the assessment that I have made of the

situation, and having regard to the provisions

of s.21 ..... the material before
his Honour did not warrant the withholding
of a non-parole perio~ particularly when
regard is had to the effect that the

withholding of a non-parole period will

have - - -

McHUGH J:  I am sorry, Mr Basten, which case are we dealing

with?

1:1R BASTEN:  MATTHEWS.

MASON CJ: It is not on page 4.

GAUDRON J: Garry Matthews? Are there two?

1:1R BASTEN: I am sorry? A David Matthews.

McHUGH J: No, this is Garry Matthews.

1:1R BASTEN:	The date is not 1 September 1988?
MASON CJ:	No, it is 19 October.
1:1R BASTEN:	The one I was referring to was on the list, I

think, Your Honours. But, perhaps if I could just

read the passage. I do not have enough copies to

hand up.

MASON CJ: Yes.

1:1R BASTEN:	His Honour held, at page 4, that it was not appropriate to decline to specify a period; and I
quote:

particularly when regard is had to the effect

of the withholding of a non-parole period

will have in the light of the previous sentence to which the applicant was subject.

And then at page 5 point 8, the court said

this:

I have already said that I am of the view that a non-parole period ought to have been

specified. In conjunction with a head

sentence which effectively adds three years

to the existing head sentence, I would not
regard it as appropriate for a non-parole

period to be specifiedwhichwould have the

effect of deferring the parole eligibility

date by more than three years.

DEANE J:	Mr Basten, is the factual basis of this case that
your non-parole period keeps running all the time
you are out having escaped from gaol?

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:MR BASTEN:	No, Your Honour,	the non-parole period will not

run during a period when the sentence is not running.

I am sorry, I perhaps should have taken the Court

to that material.

DEANE J: As I read the facts, I got the impression that he had

escaped from gaol and been in Victoria for two-and-a-

half years and that that was why his non-parole

period had expired.

:MR BASTEN:  May I take the Court to page 35 of the application

book which may assist in this regard. He had

escaped; he had actually been serving a sentence in

Victoria for most of the time to which Your Honour

refers, and was then transferred back to New South

Wales. The situation, set out in the letter at

page 35, indicates that, in paragraph one, the circumstances of the sentence existing prior to

Judge Nash imposing a new sentence on 18 September.

Your Honours will see in (c) that the non-parole period was nominally to expire in January 1988, as

reduced in accordance with the statutory scheme.	It
had, in fact, expired on 3 December 1983.

DEANE J:	Which was before he escaped?
MR BASTEN:	Which was before he escaped, Your Honour.

DEANE J: That answers my question, thank you.

MR BASTEN:  Yes, and that appears from the next page where

there is a chronology set out. So that when he was

brought back into custody, and was sentenced on this

matter, his previous non~parole period had expired

and His Honour took account of the reduction which gave rise to that result, and properly so, despite O'BRIEN's case, in our submission.

(Continued on page 10)

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MR BASTEN (continuing):  The figures on that page also

indicate the discrepancies referred to in the
written submissions between the four-year

additional head sentence and the nine-year

increase in the minimum term.

Your Honours, the second authority I was seeking to take the Court to was the decision in

BEARD of 9 November 1988. That is available to

the Court. It is the second in a line of four

authorities which are to similar effect, REG V

DONALD BEARD. The relevant consideration in that

case - the circumstances were similar to MATTHEWS -

at page 2, half-way down the page His Honour has

referred to the fact that there was an additional

two years put on the head sentence, that the
ref~sal to specify a non-parole period deferred
parole eligibility for nine years and notes at
about point 4 to 5:

What was assessed as additional criminality warranting the imposition of a further two

years imprisonment, had the effect of
delaying by more than nine years the earliest

date on which the applicant might be released.

His Honour then refers to the decision in MATTHEWS's

case and applies that decision to ensure that the

deferral of eligibility did not go beyond the two year

addition to the head sentence.

The third of the authorities in the line

is that of REG V BAKHOS - it is unreported -

24 February 1989, again a decision of the Court

of Criminal Appeal, again declining to specify

a non-parole period and the relevant statement of

principle appears at page 3, commencing at point 7.

The Court says:

When his Honour declined to specify

a non-parole period, the effect was to defer

the applicant's earliest possible release

date (disregarding remissions) to the end
of the total head term, that is to
21st October, 1996. In consequence, for

what his Honour assessed as criminality

warranting a sentence of four years, four years was added to the head sentence, but the earliest possible release date was

deferred ..... for a period in excess of eight

years. That brought about a result very

similar to that which was considered in this

court in RV MATTHEWS.

His Honour refers to BEARD, and MATTHEWS and MA.RTIN.

Then, at the bottom of the page His Honour says:

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When those matters have been considered for the stated purposes, I am of the view

that as a general rule the prisoner's parole

eligibility date ought not to be deferred,

when he is re-sentenced, for a period any

longer than the new head sentence imposed

upon him. I state that as what I believe

to be a rule of general but not necessarily

universal application. I have previously

observed that a head sentence may be reduced

by application of the principle of totality.

That would certainly ;?nn:ide a case in which

the parole eligiblity, or earliest possible

release date could properly be deferred by

more than the extension to the head sentence.

At the bottom of page 5 His Honour says, at point 8:

I say that because it seems to me that such

an order can smack of re-sentencing for the

earlier offences, or pre-empting the

discretion of the Parole Board.

MASON CJ:  Were these authorities called to the attention

of the Court of Criminal Appeal in the present case?

MR BASTEN:  Your Honour, MATTHEWS's case was 20 days prior

to this decision and I am not sure if it was

decided prior to the hearing in the Court of

Criminal Appeal. The other cases are all statements of authority subsequent to the decission in POLLITT.

(Continued on page 12)

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MR BASTEN (continuing): And finally a decision of April

this year in BAKER' s case, in which a court,

presided over by Mr Justice Samuels, again

followed the principles which had been laid down

in the earlier line of authorities, it was both

a sentence and a conviction appeal, the relevant

passages in relation to the sentence appeal,

colillllence at the bottom of page 6. His Honour

assesses the increase in the sentence and says

in the middle of page 7:

In consequence the difference between the date

upon which the original non-parole period would

have expired and the date upon which the

aggregate term would expire, amounts to about
ten years, which is three years in excess of

the head sentence imposed by Judge Staunton.

His Honour refers to BAIRD, which I think should

be BEARD, and notes at the bottom of the page:

the judge should take care to see that the

further period which the accused will have to

serve does not exceed the second head sentence.

On the top of the next page His Honour continues:

In this case it does and, as the Crown has very fairly conceded, the mode of sentence in the present case runs counter to what

seems to be accepted as guiding authority.

I should perhaps express the caveat that

some judges have said that this principle

is not to be regarded as intractable; but
for myself I am of the opinion that it should

be applied in the present case.

Now, in our submission, apart from the question of

exceptions, which are referred to by Mr Justice Roden,

in BAKHOS, the principle has been applied consistently
in all those cases where it has been considered, and

it is consistent with the conceptual understanding

of specifying a minimum term. In relation to the principal of totality, it does not appear that it

arose in the present case. Presumably, what

His Honour had in mind was that a judge might say,

"It is appropriate that I sentence you to a further seven years. If I were to do so, the burden of the total sentence imposed on you would be crushing,

therefore I will reduce it to four years. Nevertheless,

had I sentenced you to seven years, I would have

increased your non-parole period by five.	I still
intend to do that.n

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In our submission, although it does not arise in the present case, that is inconsistent with

principle and is not a necessary exception. There

is no reason, in our submission, why the non-parole

period should exceed what, in all the circumstances,

is the proper increase in the head sentence.

Certainly that matter did not arise in the present

case. There was no attempt by His Honour

Judge Nash to consider that principle of totality.

Your Honours, it is recognised in the written

submissions that there are authorities in the

Court of Criminal Appeal which produce results

which are inconsistent with the principle we have

just.:enunciated,however it does not appear in any

of the cases that there was any consideration of
the matters which are now raised, and in all
cases the court seems to have looked at the matter

purely on the basis of severity. It is submitted

that the Act recognises the principle, in that

there is no power to extend a non-parole period,

where the head sentence is not at least partly

cumulative, and for the reasons I have given,

the Act appears also to reco~nise, in section 24(2)

when specifytng·a commencement date, that

the non-parole period, at least if it is with
respect of one sentence, cannot exceed the term

of imprisonment.

The term "term of imprisonment" is of course

a generic term which covers a number of sentences

and it is submitted that there is nothing
inconsistent with saying that the term specified

may be with respect to a number of terms of

imprisonment, without altering the sentencing

principles upon which the case is based.	Those
are the submissions for the applicant.

(Continued on page 14)

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DAWSON J: Mr Basten, just before you sit down: the purpose

of fixing a minimum term is to fix the period of the

term of imprisonment which the prisoner actually has
to undergo and therefore it is done in relation to,

in the ordinary case, the maximum term - the term.

What ia it done in relation to in the case of

accumulated sentences, the total term or the head

sentence?

MR BASTEN:  May I answer that in two ways, Your Honour. The

considerations which the sentencing judge may take into account may well relate to prior offences and the present offence and would include the sentences

which have already been imposed. That would be

true, I suppose, whether or not the new sentence

were to be cumulative. If the new sentence is cumulative

the minimum term specified is still one, taking into

account antecedents, which is an additional minimum

term which should be served in relation to the new

offences, the offences for which he is now being

sentenced.

DAWSON J:  But it is a minimum term in relation to a maximum

term and the maximum term is the total accumulated

amount, is it not?

MR BASTEN:  Well, the difficulty with looking at it that way,

Your Honour, is this, that it may be coincidental

whether or not the previous sentence periods have

expired at the time he is sentenced. He should not

be subject to the double jeapardy of having an

increase in deferral of parole eligibility because

he is still serving head sentences from previous

offences. That, in our submission, would be
inappropriate. It amounts to telling the parole board

that they are no longer allowed to release this man

at a time when they would otherwise have been allowed

to release him not simply because of the new sentence

but also because of a sentence which must be served

in relation to earlier offences. It is inconsistent

in principle, in my submission, to say that one is

fixing a term in respect of the aggregate of the head

sentences when one is only, in fact, looking at a

patticular offence.

DAWSON J:	But is that right? That is what is troubling me. What the Act says - and I may be wrong in putting it
this way. Once you get to this situation you find
that the man, let us say, has to undergo a maximum
sentence - aggregated sentence of 30 years. Now, the
Act says you look at the minimum sentence in the light of that and any other minimum sentence might be clearly inappropriate and you say taking all the circumstances into account, well, 20 years is the
appropriate amount, and that is all that you have to do. The only limit that the Act imposes is that you
cannot go beyond the actual aggregate.

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MR BASTEN:  I accept that in the express terms of the Act

that is so. I accept that the limitation for which

I am arguing is not contained in the express terminology

of the Act. It is a principle which is recongized in

some Acts and is specified in those precise terms in

South Australia, I think. In this case the limit I am arguing for does not occur in those terms. It is a

matter of sentencing principle on which I base the

argument.

But, Your Honour, in saying that one looks at

the aggregate sentence including the sentences which,
of course, have been imposed is necessary in order
to understand what the effect will be upon the future
custodial term of the prisoner but if, in fact, a
prior sentencing judge has given the prisoner 20 years
with a non-parole period which is relatively short,

say, five or six years, there is no reason, in my

submission, why, having served that five or six years,

the prisoner should then be subject to serving a

further period which cannot really be related to the

second defence, namely, one for which he gets four

years.

DAWSON J:  But that is to look at the non-parole period as

being in the nature of punishment in the same way as

the maximum term as punishment. I know it has been

said it is punishment and clearly it is.

MR BASTEN:  Yes, in POWER's case - - -

DAWSON J:  But it serves other purposes. I mean, I have

always had difficulty with this concept, I must confess.

(Continued on page 16)

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MR BASTEN: Well, I suppose the answer, Your Honour, is

that POWER's case does say precisely that, and

that one must look at the minimum term in terms

of punishment. There is the logical difficulty,

perhaps, in one sense - - -

DAWSON J: That you think of an appropriate term and think of

another, yes.

MR BASTEN:  That is right, yes. That was an approach which

was said to be inappropriate in POWER, and that

there was no difficulty and, I suppose in one sense

it is quite true,there is no difficulty in

imagining a period during which the person may not

be released and a period during which he may but will

not necessarily be released, and that is what POWER's

case requires. There is no doubt that the first term

is,in a very real sense, a punishment because he

simply cannot be released during that period and there

is an element of double jeopardy, in my submission,

if that period is, in effect, increased, and once one
decides, as His Honour Justice Roden says, that for the
new offence the criminality requires a sentence of fou~

years, it is inappropriate then to specify a minimum

term which is longer than that period.

DEANE J:  What if he had been on parole when he committed these

further offences? What would be the position there?

That he return. to gaol and would forfeit his

release on parole? Would a new non-parole period be

fixed for the earlier offences.

MR BASTEN:  No, Your Honour, he would simply return to gaol and

would be eligible for parole at any time thereafter.

DEANE J:	I see.
MR BASTEN:	And that, in fact was the circumstance which arose,

I think, in at least three of the four cases to which
I took the Court because they were not escapes, they

were other breaches of parole.	The man goes back and
the parole board can reconsider him at any time and

is quite likely to do so after a short period.

DEANE J: Well, does that mean that apart from being sentenced for

subsequent offences, which is what we are concerned

with, once a non-parole period expires there is no

way that a new non-parole period can be fixed?

MR BASTEN:  Not in relation to the original sentences, no,

Your Honour, and, indeed, it may well be that if there

are further offences committed the Court will
specify a concurrent sentence to date from the date of

sentence, and possibly not specify a non-parole period.

That would have the effect of deferring reconsideration,

but because of the new offence. The difficult that

His Honour faced in this case, of course, was that he

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did not have that option open because he was

dealing with an escape.

One other point I should perhaps make at this

stage, Your Honours, is that in relation to the

order sought, it is, in our submission, appropriate

that the Court would, consistently with the approach

adopted in DEAKIN'scase, if it were prepared to

intervene, specify a non-parole period itself, being

a period of four years. Might I just had up copies of

DEAKIN, it is not on the list of authorities. It is

reported in (1984) 58 ALJR 367. It is not submitted

on behalf of this applicant that he should receive

a sentence of less than four years. That, in our

submission, would be the maximum appropriate

deferral of parole eligibility, and that, in our

submission, is the period which should have been

imposed and may be imposed by this Court.

GALTIRON J:  The effect of that would be that it would be that three

years additional non-parole period to that which was

in existence prior to 18 September, is that right?

MR BASTEN:	It would be a non-parole period of four years
running from 18 September 1987.

GAUDRON J: Yes, which would not be four years in addition to

the non-parole period expiring on lU January 1988?

MR BASTEN;	No; Yo1_1r Hono'.ir, bec;:i.use that pPriod had already.
indeed, expired once reduced, ~nd hav-;.ng .=-xp1 re:::
is r.o longer rPlevant. The nominal perioJ of that
non-p~role p8ri0 d is no longer Applicable, it having
expired. One simply casts it out of the equation.
DAWSON J:	Mr Basten, can I just ask yo~ on a matter of principle,

what do you say may seem to distort the true function of the non-parole period. Undoubtedly the non-parole period is a period of punishment which the Court

decide the man must undergo in the interests of the

corrnnunity. Nevertheless the maximum term is the

appropriate term of punishment.

MR BASTEN:  Yes.

(Continued on page 18)

C2T9/2/FK	17	10/8/89
Pollitt

DAWSON J:  But the purpose - when one is granted parole it

is, as it were, a concession as against the maximum
term, a concession which is granted unrelated to

the considerations which would motivate the

sentencing judge. Is that not right?

MR BASTEN:  In a sense, though, Your Honour, but not entirely.

The motivating intentions under POWER's case must

have been to prescribe a minimum period during

which he could not be released.

DAWSON J:  In relation to matters which may not activate

the minds of those who decide when to release the person on parole. In fact, they would not be the

same considerations.

MR BASTEN:  They would be the same considerations plus others,

in my submission.

DAWSON J:	Well, you might be right.
MR BASTEN:	They would take into account all the matters

relating to the earlier criminality and his conduct

in gaol, and so on, and so forth, as well, but

under section 26 it should be said that there is a

presumption that he will be granted parole at the

end of that period unless other circumstances suggest

otherwise; so that there is a very real sense in

which, under the present Act, that minimum term is,

indeed, a term which is the likely term to be served.

DAWSON J:  That is true in practice, but all that the

prisoner can say is, "Well, the court has fixed this

as the term which I must serve, but, of course, my

real sentence is the maximum sentence", and why

can a judge, when he looks at the total situation

where there is an aggregation of sentences, including

a new one, not say, "When looking at that total,

in my view the sentence which he must serve, which

the community demands, having regard to the totality of the criminal behaviour, is X, and I am doing that

doing nothing that offends against any principle.	in relation to the aggregate and in so doing I am
The prisoner had no right to be released at any
particular time, other than at the end of the maximum
sentence. At the most he could be granted a
concession" - perhaps that is not the appropriate
word - "but I now think in these circumstances that
concession should be withdrawn"? Indeed, the Act
contemplates that it be withdrawn and a different
concession imposed.

MR BASTEN:  Yes. I am certainly not submitting, Your Honour,

that he does not, and indeed probably must, take

into account the aggregate head sentence in

considering a non-parole period to be specified.

There is no doubt that that is a relevant consideration

C2Tl0/1 /HS	18	10/8/89
Pollitt

and if it is a long period in the future, no doubt

the non-parole period should be a lengthy non-parole
period but it is still subject in principle, in

my submission, to being a minimum term in relation

to that offence and that sentence. The option which

His Honour might have is to refuse to specify a

non-parole period.	He has the power to withhold
that.	One of the very important considerations he

would take into account, though, in withholding is

the effect of deferral of rarole eligibility,

and that is what the cases to which I referred

firstly are concerned 'With because they were such cases,

but it does not mean, in my submission, that because

he still has a long period to serve from his

original sentences, the minimum term is, as it were,

at large, and the minimum term specified can be

a minimum term which exceeds the maximum allowable

in relation to the new head sentence.

DAWSON J:  But, you see, one thing is clear. It is not fixed

in relation to the head sentence.	It is fixed in
relation to the total accumulation	- I would have
though so under the Act.

MR BASTEN:  My submission is that is only a relevant factor

and it is not - I am sorry, Your Honour. It is true

that there is a limiting factor in section 24(4)

which says it must not exceed that accumulation.
In some cases that may, of course, be relevant, where the new non-parole period is merely an extension of an existing one and then the judge

presumably must be careful to fall within that

principle, but there is nothing in section 24(4)

which says that it can extend beyond the additional

head sentence.

DAWSON J:  There is nothing that says it can not. That 1s

the trouble, I think - - -

MR BASTEN:  That is entirely our case, Your Honour.

DAWSON J:  - - - and, of course, it is true that the prisoner

will have a reasonable expectation and that may point

to the way in which the discretion can be

exercised, but to find actual limits there is

difficult.

MR BASTEN:  I agree with that, Your Honour. I do not disagree

with the proposition that the prisoner has an

expectation. The question really is whether or not

it is correct to say, in my submission, that the

sentence and minimum term are being specified with

respect to an aggregation.

C2TlO/2/HS	19	10/8/89
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MR BASTEN (continuing): It is clear that the sentence is

not being specified with respect to the aggregation;

the sentence is with respect to the offence. It

is four years and, in my submission, it is logically

consistent with that that the minimum term in

respect of that sentence is in respect of that

offence and itself must be less than four years.

DAWSON J:  I do not want to prolong the argument, but

it cannot be right because obviously under the

section you would fix, or you may fix, and quite
properly fix, a minimum term which would be

inappropriate for the particular offence which

is being aggregated - the last offence. But you

say it has to be contained within that right up

to that - - -

MR BASTEN: It has to be be contained.

DAWSON J:  But obviously the Act does give a discretion to

impose a greater minimum term than would be

appropriate for the particular offence; indeed,

it requires that.

MR BASTEN: Perhaps I can say two things, Your Honour.

Firstly, it is true in a sense, and the Act

recognizes, that since the new minimum term may expire before the cumulative head sentence ever

cormnences, it must be true to say that that minimum

term is in a sense with respect to both the

existing sentences and the new sentence. But it

does not follow from that that it is specified

in terms of the original offences and the original

sentence.

I think the second point that Your Honour

was putting to me was that in a real sense the

minimum term does relate to the total aggregation

and it just depends in one sense on the wording

of the statute as to whether you read "with respect

to" as anything more than indicating that there

will be an overlap of the periods and, in my

submission, that is not so. But the .other point

is perhaps that a four-year minimum term would

not normally be proportional to a four-year

sentence. If that is the point that Your Honour

was making in relation to saying that the
proportionality would not exist in that case,

that is so. All I say in that regard is that

in one sense that expresses an intention to
withhold a non-parole period in relation to the
new sentence. That, however, would not be an

appropriate order to make because of the existence

of the lengthy head sentence upon which the

accumulation occurs. Nevertheless, it is not

inconsistent with principle to specify a non-narole

C2Tll/l/JM	20	10/8/89
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period to prevent that unfortunate result hapuening as long as that period does not

exceed the new head sentence, although it may

be the same as it and thus would not normally

be an appropriate proportion were it seen alone.

McHUGH J:  Mr Basten, the judge sentenced this prisoner

on 18 September 1987. If the original non-parole

periods were due to expire on 20 September 1987,

would he have had power to make the orders which

he did?

MR BASTEN:  No, Your Honour, not in our submission. He

would have had power to extend the non-parole

period by four years and one day, but not by

nine years. We would still say the same

principle would apply.

McHUGH J: Section 24(2)(b) enables the judge, does it not -

provides for rescission?

MR BASTEN:  Yes. That provides for the judge to set

a non-parole period in substitution for.

McHUGH J: Yes. In the illustration I gave the Act would

seem to empower the judge to do what he did,

apart from what you might say, as a matter of

discretion.

MR BASTEN: Apart from what we might say about the

underlying sentencing principles, Your Honour?

McHUGH J: Yes.

MR BASTEN: 

In relation to subsection (b), it is a power

which is very wise to have in the Act because -
Your Honour's example may not be the best one

to illustrate it, but if there were a 10-year
non-parole period which had commenced seven years
before which had three years to run at the time of
sentence, to impose another non-parole period

from that date without making it in substitution

for the other one might give rise to difficult calculations as to which expired first. So it

would be appropriate for the judge to make an

order in substitution so that the authorities

knew there was only one non-parole period running
and that was the one upon which they would base

their calculations.  But that is not so obvious,

perhaps, in a non-parole period which is about

to expire anyway.

(Continued on page 22)

C2Tll/2/JM	21	10/8/89
Pollitt

McHUGH J:  Can I just ask you this or would you explain

this to me:· if the judge - you say the maximum

non-parole period the judge could possibly give him

is four years, is that right?

MR BASTEN: That is so, yes.

McHUGH J:  And that would commence, what, from 18 September

1987?

MR BASTEN:  Yes, Your Honour, it would have to. There is no

statutory discretion.

McHUGH J:  Yes. But the sentence in respect of that four-year

period would not commence until a subsequent date.

MR BASTEN:	Yes.
McHUGH J: It seems a bit odd	if you are specifying a non-parole

period on 18 September	1987 for four years in respect
of a sentence which is	not to commence until some time
in the future.

MR BASTEN:  That is so, Your Honour, but on any reading of the

Act that must be what you are doing because under

section 20(1) you are specifying a period when sentencing

the prisoner in relation to that offence.

McHUGH J: Yes, except in the case of cumulative sentences

though you are looking at the totality of the whole

thing, are you not?

MR BASTEN:  You are looking at the totality - - -

McHUGH J: You are treating them as one sentence, in effect.

MR BASTEN:  I do not think that is the correct way to -

it depends for what purpose you look at it, Your Honour. It is certainly true - if one has to impose a cumulative

sentence, in determining the head sentence the only

reason for which you would look at the totality is to

see if there is a crushing burden imposed and

therefore, according to the principle of totality,

the head sentence should be reduced.

In relation to the further non-parole period,

it is important to look at whether or not there is a

significant aggregation on what is already existing

in order to perhaps decide that withholding a non-parole

period which might otherwise be appropriate is not.

And, thirdly, one looks at the totality in order to

determine what non-parole period should be specified

once one has decided to do that. We say that that

final exercise is still subject to the principle that

the minimum term is in relation to the offence of

escape and must in principle be no more than the head

sentence for that offence.

C2Tl2/l/PLC	22	10/8/89
Pollitt

DEANE J:  Mr Basten, how would your argument apply if the

court had refused to fix a non-parole period in

terms of the earlier sentence?

MR BASTEN:  There would be no difference in the application,

Your Honour. If the court had failed to fix a

non-parole period - sorry, may I go back a stage.

That does not, I should add, place any bar upon the

court specifying a non-parole period in relation to

the present sentence. Section 20(1) says that.

DEANE J:  But what I had in mind is that the earlier court

in refusing to fix a non-parole period had indicated

that it thought if circumstances did not change

the prisoner should serve the whole of the sentence.

Well now, does not your argument mean that the subsequent

court can only fix a non-parole period of the term of

the subsequent sentence?

MR BASTEN:  No, Your Honour, it can only defer parole

eligibility for the term of the subsequent sentence.

DEANE J:  But presume that the subsequent court did wish to

fix a non-parole period.

MR BASTEN:  Yes. If it did, then - well, it could specify

a non-parole period which would allow the prisoner

to be considered earlier than would otherwise have
been the case. If it had prescribed a nine-year period

in those circumstances, for the first time the prisoner

would be eligible for parole after nine years.

DEANE J:  But assume he is serving five years under a sentence

in respect of which the court has refused to fix a

non-parole period, as a matter of logic, a subsequent

court sentencing him to a cumulative four years

might well say, "I will fix a non-parole period. You

are going to have to serve three years under that

five-year existing thing and we will add two" which

would make him better off on one approach but on

your approach, if it be a matter of "cannot" rather

than "should not" that would not be open. (Continued on page 24)

C2Tl2/2/PLC	23	10/8/89
Pollitt

MR BASTEN:  Well, looking at the upper limit, Your Honour,

if he had five years still to serve of the original
sentence and was given four years on top of that,
in our submission, the minimum term could extend
the existing ineligibility for a period of up to

four years which gets very close to the total

head sentence.

Looking at it the other way, in my submission

there would be no lower limit on the non-parole

period which could be specified in relation to the
new sentence and taking into account that the
aggregate produced a head sentence of nine years

to go.

DEANE J: Well, take it five years and one year. It would

be rather strange if the only way -

MR BASTEN:  Perhaps more than one year, Your Honour, because

it produces problems - well, no, I suppose it does

not. There is still a three year period, yes, sorry. But, in that case, there is a six year

period to go. The parole eligibility will still

be actually decreased if the non-parole period

is less than five years.

DEANE J:	But does not your argument require that the judge
sentencing for the one year must fix a non-parole period of less than one year?
MR BASTEN:	Only in relation to that offence, Your Honour.

He can take into account on our argument the fact

that the person is not eligible for parole at that
time and can extend that ineligibility by a period

of up to one year.

DEANE J:	So, he could fix a non-parole period?
MR BASTEN:	Of five and a half years.
DEANE J:

Even though the only sentence he was imposing was

one year.

MR BASTEN:  Yes, If one looks at it in terms of the effect

on parole eligibility, that would be open and, in

my submission, that would be appropriate, yes,

Your Honour.

DEANE J: Well, now, if that be so, must not your argument

ultimately come down to "should not"?

MR BASTEN: Well, if what Your Honour is saying is that in

relation to the one year sentence, he is in effect

imposing a non-parole period of excess of one year,

that may well be so but, in my submission, that is

a most unrealistic example, in one sense, but, in

C2T13/l/SH	10/8/89
Pollitt

principle, that is not what is happening. In

principle - and it may be wrong for another reason

and the Crown might object - he is resentencing the

prisoner in relation to the original sentence - not

something to which he would object because he obtains

a benefit but there may be a very real problem with

him specifying a non-parole period which is, in

effect, a resentencing in relation to the earlier

sentence.

DEANE J:	But then, if that were so, it would mean he could not impose a non-parole period at all, on your
argument.

MR BASTEN: That may well be so, Your Honour, yes, but that -

DEANE J: Well, would not one strive against the construction

of the section that led to that? As I say, if one

were persuaded by your argument, would it not be a

"should not" in the ordinary case?

MR BASTEN:  That would have to be inconsistent with the argument

I was putting, Your Honour, and perhaps all I can say. is, by way of analogy, that there may be situations

where an accused has a choice of murder and/or

acquittal and one simply cannot, as a matter of law,

say that manslaughter is open and that removes a

benefit which, in one view, is open to the prisoner.

In another sense, it gives him an advantage.

It depends which way one looks at it.

DEANE J:  Thank you.

MASON CJ:  Thank you, Mr Basten. Yes, Mr Howie?

MR HOWIE:  Your Honour, I hand up the copies of the outline.

(Continued on page 26)

C2T13/2/SH	25	10/8/89
Pollitt

1:1ASON CJ:	Yes.
MR HOWIE:	Thank you.  Your Honours, we say that firstly

that - Your Honours will see that there is some

mention of the SENTENCING ACT in that. The

SENTENCING ACT completely changes the whole scheme

of this legislation, in fact the SENTENCING ACT
tends to go towards a version of a dealing with,
or a situation dealing with accumulated
non-parole periods or accumulated sentences and

the non-parole period that follows, in a way which

is more in line with the arguments of the applicant,

but the problem of course, with the SENTENCING ACT

is that it has not connnenced and it has not been

gazetted yet to connnence and we do not know when it

will connnence.

So in the meantime, of course, before it

connnences, this Act is still applying and the

principles. Your Honours, what we contend is that

the only interpretation of section 20 of the

PROBATION AND PAROLE ACT is that the non-parole

period that is specified in relation to a cumulated

sentence is an aggregate non-parole period.

We have, in point 2 of the submissions,

pointed to the relevant sections which we say lead

to that construction. The first is that the

non-parole period cannot be accumulated. It must
take place from the date of sentence and therefore
has to be a non-parole period which is relevant to

the continuing term of imprisonment, which is

flowing from the date of the sentence of the

second accumulated sentence. Secondly, it can

be imposed, notwithstanding that there is no

existing non-parole period, so that in effect the

second judge can give a non-parole period in a

situation where there was not .one before, and we

would say that that is a complete discretion to

do that and in effect section 22 of the Act provides

for that and that if he does that, and specifies a

new non-parole period, where there was not one in
existence, the court can substitute that non-parole

period.

Sorry, if there is a non-parole period in

existence the court can in fact undercut it by

specifying a non-parole period which is shorter

that the existing non-parole period. He can do

that by the section which entitles him to

substitute a non-parole period for one which is

already in existence. Therefore he can undercut

an existing non-parole period. It seems therefore

that the whole section is aimed at giving a

complete discretion to the second sentencing judge

to do anything he likes in relation to an existing

C2Tl4/l/CM	26	10/8/89
Pollitt

non-parole period irrelevant to the term of the

sentence that the prisoner still has to serve

once he gives the accumulated head sentence.

The Court of Criminal Appeal in New South Wales

has always treated this section, apart from the

cases which my learned friend has referred to, and

I will turn to those in a moment but, apart from

those has always construed the se~~iun 20 and similar

section which was in the PAROLE OF PRISONERS ACT,

which is in almost identical terms.

MASON CJ: You base that submission do you on the three cases

that are referred to in paragragh (b)?

J:1R HOWIE:  Yes, Your Honour.

MASON CJ: Well take us to those cases now and can we have

a look at that.

J:1R HOWIE:  CORR is the first one,September 1978, page 2 of that

judgment and right at about point 6 of that page:

(Continued on page 28)

C2Tl4/2/CM	27	10/8/89
Pollitt
MR HOWIE (continuing):

We do not regard that submission as well founded. A Judge's task is specifying a new non-parole period is to fix a minimum period which must be served, bearing in mind all the criminality

reflected in the sentences being served at

the time. He is not limited merely to some

added increment proportional in a relative

sense to the particular new sentence then

being passed.

DAWSON J:	I am sorry, that is page - - -?
MR HOWIE: That	page 2.
MASON CJ:	Second art of the page.
MR HOWIE:	The second paragraph - about half-way down in the

middle of that second paragraph, about point 6 on

the page. So, what it is clearly saying there -

what my learned friend was saying: it does not bear

any relationship at all to the increase of the head

sentence by the second sentencing judge, and he is

not limited to some mathematical equation based upon

it.

Next one is BEST, 2 April 1980. I would point

out, of course, that these cases were in relation

to section 4A of the PAROLE OF PRISONERS ACT which

was the Act which preceded this. That section,

however, is almost identical in terms to section 24(2)

of PROBATION AND PAROLE ACT. I take you to

page 4 of the first new paragraph on that page:

The approach to be taken in a case such as the present in determining what should be

done in relation to a non-parole period is

to start from the position that, after

revocation of the previous parole and the

appellant being taken back into custody he

would remain eligible for reconsideration at
any time by the Parole Board. In the ordinary

course he would be considered for re-parole after such period as the Parole Board might

think appropriate having regard to the breach which had led to the revocation of his parole

and his general subjective circumstances and

prospects.

In passing upon the appellant a cumulative sentence of three and a half years, which is

not, and as we see it could not fairly be,

criticised, it became necessary for the

sentencing Judge to consider the aggregate

term during which the appellant should be

withheld from consideration by the Parole

C2Tl5/l/DR	28	10/8/89
Pollitt

Board in consequence of the totality of his criminality involved in both the crimes for

which sentences were presently being passed

as well as the earlier crime in respect of

which he was serving out an unexpired balance.

In this latter regard it would be relevant to

have well in mind that he had already served

the previously specified non-parole period

and had been released to parole. His

subsequent failure to demonstrate rehabilitation

by conforming to his parole requirements could

be taken to indicate that he should serve some

further time in custody for his previous

offence before being again released to parole.

It would be appropriate, accordingly, for the

second sentencing Judge to take into account

the criminality involved in the previous

offence along with the period which had already

been served in determining the total length of

which he, the man being sentenced, should be
withheld from consideration by the Parole

Board in consequence of the new sentence being

passed upon him.

ALEXANDER is the case which is quoted by the court in POLLITT. The quote appears on page 44 of

the appeal book, at point 5:

"Where a sentence is to be made cumulative

upon a pre-existing sentence and a new

non-parole period is to be specified conrrnencing
from the date of the second sentence, the
sentencing judge is faced with difficulty,
unless he has some information in respect of
remissions that the prisoner could expect to
earn from his pre-existing sentence. It is
only with such information available to him
that if the second sentencing judge can

meaningfully determine that the new non-parole

period should be fixed. The general rule

regarding the inadmissibility of consideration

of remissions will of necessity yield when a

case such as this arises.

(Continued on page 30)

C2T15/2/DR	29	10/8/89
Pollitt

MR HOWIE (continuing):

A further matter which troubled His

Honour was the question of whether in a

case such as this new non-parole period

is to be fixed, only in the light of

the matters relating to the offences coming

forward for sentence or whether the new

non-parole period is to be determined having

regard to the totality of the criminality

of which the prisoner concerned had been

guilty from and including the connnitting

of the offences leading to the pre-existing

sentence. It should be made clear that

it is the totality of the criminality that

must be evaluated. That includes the matters

leading to the pre-existing sentence and

all subsequent events."

DEANE J:  - Except those cases are not directly

inconsistent with the cases Mr Basten referred

to?

MR HOWIE:	Not really.
DEANE J:	I mean, in none of them was a non-parole period
fixed that exceeded the total term of the new
sentence?

MR HOWIE:  No. In (c) there are cases in which they

have. In each of those cases, unless Your Honours

want me to take you to them the non-parole

periods did exceed the orig_nal - - -

DEANE J:  I would like to see one.

MR HOWIE:  Yes, certainly. The matter of BRAGG, 9 September 1980.

By the way, if I can just take Your Honours to

page 2, where it is said there in the third new

paragraph on that page, at the bottom of the

page:

It is plain enough that a sentencing

judge, where·hepasses a cumulative sentence
and fixes a new non-parole period, is not
limited by the section to ·extending the
non-parole period by an amount equal to
or less than the extension imposed upon

the head sentence.

In that case what happened was that he was sentenced

to two years cumulative before escape and the

non-parole period was extended by two years and

three months.

The case of ROBERTS is another one, on

15 March 1985. I included one before the

C2Tl6/l/JM	30	10/8/89
Pollitt

PROBATION AND PAROLE ACT came in, which is the

one in 1980 which is under section 4A and

ROBERTS is one that came in after the PROBATION

AND PAROLE ACT in 1985. Your Honours will see

just from the headnote, I think, that he was

serving 11 years with a non-parole period of five years. He got a cumulative three years to the head sentence, giving him 14 years and

the non-parole period was extended to 10 years

by five years. So there was a three-year

extension on the head sentence.and a five-year

extension on non-parole period. Your Honours

will see that from the first new paragraph on

page 3:

In respect of this offence,

Judge Ducker passed on the appellant

a sentence of three years, cumulative

upon the eleven years that had been passed

on him in December 1982. His Honour specified

a new non-parole period of ten years,

directed to commence on 8 Decmeber 1982.

He originally had a non-parole period of five years.

GAUDRON J:  Was any point taken on this issue in that

case?

MR HOWIE:  No.

GAUDRON J: It was purely a severity appeal?

MR HOWIE:  Yes, and it was just tended to be· excepted that that was

be done. BAKHOS itself seems to suggest that

it can be done. They say, as one of the examples

is where the totality of the criminality has caused

the additional sentence to be less than would be

required if the sentence was considered by itself.

It is clear that when a judge accumulates a

sentence on a pre-existing sentence he almost

invariably reduces the new sentence from what it

would be worth if it were being served straight

or an extension of an existing term. away when being considered as it is an addition (Continued on page 32)

C2Tl6/2/JM	31	10/8/89
Pollitt

MR HOWIE (continuing):  He looks at the whole sentence which

clear, although His Honour does not say so, that he

this person has left to serve and on the basis of

totality reduces the head sentence accordingly.

was operating on a principle of totality. The

sentence which he gave for the second escape of

three years was a sentence which he said was for an

offence which had not mitigation at all, which

was an offence which carried a maximum of seven

years in relation to a person who had already

escaped and who had two prior existing escapes.

So it is clear that he was undercutting what would

objectively be the appropriate sentences for both

the first escape, which he gave six months, and for

the second escape, which he gave three years, in

view of the fact that he had a very lengthy sentence

still to go before he was going to reach those

sentences.

So it is clear that in those situations, we

would say, and BAKHOS itself realises that that would

be one of the situations in which a non-parole period

could easily extend past the additional, ex~ension of the

additional term by reason of the fact, a reflection

of the fact that the·additional term has itself

been reduced from what was otherwise appropriate

punishment for those particular offences in light

of the whole situation which the prisoner faced.

The last case under (d) is simply a case where

the judge refused a non-parole period for a person
who was facing a new sentence and the Court of

Criminal Appeal upheld that refusal and that is notwithstanding that BAKHOS and those cases had

been, what they were saying about a judge being
very cautious about refusing a non-parole period
in a situation in which a new sentence is being

passed on somebody who has an existing parole

eligibility. We would suggest that - our last

point is that this approach is not inconsistent

with anything in POWER for two reasons; firstly,

because there is only one sentence - as was pointed
out in POWER and also by this Court in LOWE - there

is only one sentence being passed and that is the

original head sentence. The other is a period in

which some mitigation of the severity of the

sentence, some mitigation of the appropriate

punishment can be made to allow for the fact of
rehabilitation and, as was said in POWER too, that
the first sentencing judge makes his evaluation of

the rehabilitation prospects as he sees them at

that particular time.

He cannot look at the fact that the accused

may have been charged with other offences, he

cannot look at the fact that the accused, when he

is sentencing him, may have a predisposition to

C2T17/l/HS	32	10/8/89
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commit further offences or he cannot look at any

sort of preventative detention, whereas the second sentencing judge has before him much more material

than the first sentencing judge had. He has the

fact not only that he has committed another offence

but he can, particularly in this case of POLLITT,
look at the whole circumstances that have occurred

since the first sentencing judge gave a minimum

term which reflected at that stage the valuation

that he had of the rehabilitation prospects of that

person on the material before him at that time and

was, therefore, able to discount the sentence, the

punishment that he should serve by his evaluation

of the rehabilitation pro$pect at that time.

He mitigated, in fixing a non-parole period, the

otherwise appropriate sentence and this now brings about

a re-evaluation, in all the new material, of his

prospects and a re-evalutation of the term that he

must serve in prison both in respect of the original

sentence because of the new material, if you like,

and the second sentence, because that is, in fact, what

to some extent the.parole board would be redoing.

(Continued on page 34)

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Pollitt

MR HOWIE (continuing):  The parole board, in reconsidering

a person who, in Mr Pollitt's case, came in, and

who has, technically - can be released by the

parole board at any time, the parole board would

clearly be,in the exercise of that discretion,

looking at what happened since the second sentencing
judge sentenced him - or the first sentencing judge

sentenced him and the minimum term that he imposed,

and we would say it was far bett.er for the second

sentencing judge to do that in the light of the

new offence - the new material before him, in a judicial

situation. That is the submissions I muld rely on.

MASON CJ: Yes, Mr Basten.

MR BASTEN:  If 1our Honours please, very briefly, two points:

firstly there is, if my friend is correct in stating

the BRAGG and ROBERTS are properly decided, an

inconsistency in the two lines of authority in the

New South Wales Court of Criminal Appeal, which it

would be appropriate for this Court to resolve.

McHUGH J: Well, the argument you have put here today is not quite

the argument that was put on behalf of your client

in the Court of Criminal Appeal, was it?

MR BASTEN:  It is, Your Honour. Mr James appeared in the Court

of Criminal Appeal and the arguments were put in two ways, both in terms of a misapplication of principle

and a lack of power under the statute. In relation to

the lack of power under the statute it is not my

submission that there is any express provision in the

statute which has that result, but rather the fact

that the statute must be predicated upon for sentencing

principles which I enunciated. I was not present in

the Court of Appeal, I have read the written submissions,

I am not sure precisely how the arguments were

elucidated there.

McHUGH J: It does not appear from the judgments though, does it?

MR BASTEN:  No, it does not Your Honour. I accept that, and,

as I say, I have read the written submissions and both

aspects of the point were put.

DEANE J:  If one were not persuaded of lack of power, but were

persuaded that in the ordinary case the new non-parole

period should not add more than the sentence being

imposed - if you were to then start looking for

exceptions to the ordinary case, crimes committed while

on ese:.ape from custody for the

earlier offences could on one approach be said to be the very sort of situation where departure from the

prima facie position would be justified -

MR BASTEN:  On one approach, Your Honour, the - - -

C2Tl8/l/FK	34	10/8/89
Pollitt

DEANE J:  - - - in that the fact that their committed while on

escape from custody for the earlier sentence, as it

were, ties the offences together to some extent, but also is unusually relevant to what is an appropriate non-parole period.

MR BASTEN:  That may depend upon the circumstances of the

individual case. There are two aspect, though, to

that, which I do not entirely accept. The first is

that there is a double sentence in any event where

one escapes in the sense that one loses the remissions

which one has earned up to that time, and if one is

serving a lengthy sentence, that is a heinous punishment.

The effect of the loss of remissions on the head

sentence is, of course, to lose the reduction of the

existing minimum term, if there is one in force. So there is that very real immediate punishment.

DEANE J:  I have obviously been obscure. If you are the sentencing

judge and, say, somebody is serving ten years; 5 years to go, non-parole period expired. The first thing you

would say would be, well now, since he escaped from

custody obviously he has no hope of being released on

parole by the parole board for the next 18 months or.

so. Well, all I am putting to you is, if you have got room for an exception from the ordinary approach, that

set of circumstances are probably the obvious ones

where you would make an exception.

(Continued on page 36)

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Pollitt

MR BASTEN:  I am not sure whether I would accept that in

total, Your Honour, because what one is really

doing there is prejudging the approach which
the parole board would likely take and whether

or not it is appropriate - - -

DEANE J: What one is doing is looking at what is the effective

practical position under the existing sentence and

when you come to fix a non-parole period, say, "I

am not really imposing a further non-parole period,

I am imposing a non-parole period in the light of

the obvious practical circumstances".

MR BASTEN: Well, on the basis that that does not amount to

a resentencing and that, of course, was my primary

submission, I would accept that, Your Honour, and

it might be such a circumstance. It arises, in

effect, because the escape sentence has to be

cumulative upon the sentences. Whether or not it

would arise in a particular case may depend upon

pre-existing sentence circumstances. The difficulty

is that where there is a long gap between the

original minimum term and the original head

sentence, one does not know always what the

reason for that was and normally it would have

been because the original sentencing judge thought

it was appropriate to give the person a reasonably

long period at large under supervision.

Now, one gets very close in specifying that that would be an appropriate case to impose an

exception to a general rule if one says that that

is such a case and, again, it would, of course, not

be a general exception, in our submission, and

would not, of necessity apply in this case

but taking the assumption Your Honour makes, that

is as far, I think, as I can take it.

McHUGH J: Mr Basten, assuming that there is no prohibition

in the legislation against doing what the judge did,

what do you say about the statement of principle in

BRAGGS's case, at page 2, at the bottom, that:	Where a head sentence is extended by a given amount, the sentencing judge will normally
require some special factors before extending
the non-parole period by an even greater
period.

Is there anything wrong with that?

MR BASTEN:  No, it is consistent with the approach that

Mr Justice Deane was putting to me; that it is

a matter of general principle rather than a lack

of power.

McHUGH J:  Yes.

C2T19/l/SH	36	10/8/89
Pollitt

MR BASTEN: That is authority for that proposition. It

is worth noting, in my submission - perhaps

Your Honour was noting it - that the paragraph

before that seems to have been addressed

specifically to the lack of a restriction in

the statute and that was what the court was

considering and, of course, my submission is

that one goes behind the statute, as it were,

to find the proper sentencing principles in the

first place.

McHUGH ,J:	Yes.
MR BASTEN:	The statute, of course, in that case was the

1966 Act still and it is consistent with what I

put in relation to the -

McHUGH J: Well, on that approach, in the present case it

comes down to whether or not there were any special

factors.

MR BASTEN:  Yes, well

McHUGH J: What about Mr Howie's point about the fact that

objectively three years for a second escape offence

would seem to indicate that there was a down marking.

MR BASTEN:  I would have thought that was very much within

the range. The maximum is seven years for an

escape. That really requires one to go behind the

circumstances which have been set out in the

judgments of this case. Without taking you to - - -

McHUGH J:  It was the fourth escape, was it not, by this person

all told and two in place; no mitigating circumstances?

MR BASTEN:  Yes. Well, that was said by His Honour but it was

an escape in which he walked out of a police cell

by purporting to be someone he was not and was

then released by the sergeant and His Honour took

a dim view of that, there is no doubt, but when

one compares that with shooting one's way out of

gaol or climbing over walls, it is not of the

worst - - -

McHUGH J:  Yes.

(Continued on•ipage 38)

C2T19/2/SH	37	10/8/89
Pollitt

GAUDRON J:  Mr Basten, can I raise with you a matter that arises

by reference to your remarks to Justice Deane, that

you lose the remission period once you escape.

MR BASTEN:  Yes.

GAUDRON J: Why, then, in this case do we assume,the applicant

not having been released to parole, that we disregard

the 1988 date?

MR BASTEN:  Because one cannot, as I understand it, reinstate

a period which has already expired.	May I explain
it by going back a step?

GAUDRON J:  Does it really expire if you are not released to

parole? I can understand that you describe it as expired if you are released to parole, but if you are not released to parole and there is an escape

and you then lose the benefit of remissions - I

have that difficulty.

MR BASTEN:  Perhaps, Your Honour, one would say it had expired

if one were considered for release for parole but,

might I put it in this way that, it is customary -

and I may have been guilty of this, myself - of

saying that the non-parole period is reduced by

remissions.	I hope I did not say that because
that is not the statutory framework.	The statutory

framework is that the non-parole period is reduced

in accordance with a formula which takes account of

remissions then existing on the head sentence. At the time that it had expired, those remissions had

accrued and had not been lost.

GAUDRON J:  Thank you, that has explained it.

MR BASTEN: Yes, thank you, Your Honour. Might I hand up,

forthe assistan:!e of the Court, copies of the

proper MATTHEWS decision that my instructing

solicitors finally obtained?

MASON CJ: Yes, certainly.

DEANE J: Where is the passage that you wanted us to read?

MR BASTEN: In relation to His Honour Justice - - -

DEANE J: In relation to that which you have only just

handed up.

MR BASTEN: I am sorry. Page 4. At page 4, point 3, where

the withholding was rejected as inappropriate, and
then the passage at page 5, point 8, the last

paragraph over to the next page where the statement

of the principle is set out. Might I add one further

corrrrnent? Mr Buddin reminds me of a matter which

arises in relation to Your Honour Justice McHugh's

question: it is not clear that if the principle of

C2T20/l/DR	38	10/8/89
Pollitt

totality is applied in the way that His Honour

Justice Roden thought it might as by way of

not have an effect on a non-parole period as well.	exception, it is not necessarily clear that that would at a reduction in the head sentence then there is
no reason, in principle, why that should not have an effect on the non-parole period. That certainly
was not considered in this case by the Court of
Criminal Appeal. Thank you, Your Honours.

MASON CJ: Yes, thank you., Mr Basten. The Court will take a

short adjournment in order to consider the course

it will take in this matter.

AT 11.42 AM SHORT ADJOURNMENT

T21	UPON RESUMING AT 11.46 AM:
MASON CJ:  We are not persuaded that there was any error of

principle on the part of the Court of Criminal Appeal

in this case. The application for special leave to

appeal is therefore refused.

AT 11.46 AM THE MATTER WAS ADJOURNED SINE DIE

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Pollitt