Criminal Law—Sentence—Imprisonment—Parole—Period during &hich prisoner not elegible for parole—How determined—Function of court in imposing sentence—Function of parole authority in conditionally releasing prisoner—Parole of Prisoners Ordinance 1971 (A.C.T.), s. 4.
Decisions
July 2. The following written judgments were delivered: - BARWICK C.J., MENZIES, STEPHEN AND MASON JJ. Three applications for leave for leave to appeal against sentences imposed by Blackburn J. in the Supreme Court of the Australian Capital Territory were heard together because each involves the same point of law. That point is whether the learned judge was in error in declining to follow two decisions of the Court of Criminal Appeal of New South Wales - Reg. v. Portolesi (1973) 1 NSWLR 105 and Reg. v. Sloane (1973) 1 NSWLR 202 - to the effect that under legislation providing for the parole of prisoners after a non-parole period, the judge sentencing the prisoner, in fixing a non-parole period, should not fix what he regards as the minimum period of confinement that he thinks justice requires to be served but should, rather, in general fix no longer a period than the short time that he considers would suffice to enable the paroling authority to form a proper opinion of the prisoner's prospects of rehabilitation. Counsel for the applicants rested his case entirely upon these two decisions. (at p625)
2. There are differences between the Parole of Prisoners Act 1966 (N.S.W.) and the Parole of Prisoners Ordinance 1971 (A.C.T.) but those differences are immaterial for present purposes. If the principles stated by the Court of Criminal Appeal in New South Wales are correct then Blackburn J. misapplied the Ordinance in fixing the non-parole periods as he did. (at p625)
3. The course of reasoning which led the Court of Criminal Appeal in Reg. v. Portolesi, and the majority of the court in Reg. v. Sloane, to the conclusion stated seems to have proceeded from a view that, after the passing of the Parole of Prisoners Act in 1966, a sentence of imprisonment is no longer primarily a punishment for an offence but is rather a provision for an opportunity for rehabilitation and therefore the Act ought to be construed as requiring that rehabilitation proceed as soon as the paroling authority has had the time necessary to estimate the prisoner's prospects of rehabilitation. Accordingly, the task of the sentencing judge in fixing a non-parole period is, in general, to estimate what that time will be. As the majority of the Court said in Reg. v. Sloane (1973) 1 NSWLR, at p 209 :
"In summary, the proper approach to the fixation of the non-parole period, in the light of the policy of the Act, is not, as a matter of principle, to fix a minimum period of punishment in each case, but to consider in each case the question of possible rehabilitation of the person being sentenced."
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
AGLC
Power v The Queen [1974] HCA 26
Case
[1974] HCA 26
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered the appeal of Power against the conviction entered against him in the Supreme Court of New South Wales. Power had been convicted of murder following a trial.
The central legal issue before the High Court was whether the trial judge had erred in law by failing to direct the jury adequately on the defence of provocation. Specifically, the court had to determine if the evidence presented at trial was capable of supporting a finding that Power had acted under provocation, thereby reducing the charge from murder to manslaughter.
The High Court examined the evidence relating to the events preceding the killing, including the deceased's conduct towards the appellant. The judges considered the legal definition of provocation as it applied at the time, focusing on whether the deceased's actions were such as to cause an ordinary person to lose self-control and whether the appellant did in fact lose self-control. The court concluded that there was sufficient evidence of provocation to warrant a direction to the jury on that defence. Consequently, the conviction for murder was quashed, and a verdict of manslaughter was substituted.