Power v The Queen

[1974] HCA 26

HIGH COURT OF AUSTRALIA

Barwick C.J., McTiernan, Menzies, Stephen and Mason JJ.

POWER v. THE QUEEN.

(1974) 131 CLR 623

2 July 1974

Criminal Law

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."

In support of its approach the Court said (1973) 1 NSWLR, at p 207 :

"If it were intended by the Act to provide for minimum and maximum sentences primarily as punishment, it would be inconsistent with that intention that the maximum sentence could become indeterminate."

and "Another factor to which we would advert is the essential incongruity in a sentencing judge fixing a sentence of imprisonment which in all the circumstances he deems to be appropriate and then at the same time fixing another shorter period of imprisonment which in the same circumstances he deems to be appropriate." (at p626)

4. The Court did, however, recognize that in some cases the non-parole period may be fixed as an appropriate minimum term of imprisonment. Thus it is said (1973) 1 NSWLR, at p 208 :
"However there is no need to exclude the right of a sentencing judge in particular cases to include a punitive or retirbutive element when he fixed the non-parole period. It is undesirable to attempt to lay down in advance the type case in which the reflection of this element will or will not be appropriate, but it may generally be stated that it is more appropriate in a case where there can be felt an especial community need for the expression of revulsion to the crime in respect of which the sentence is being imposed. Acts of violence and acts against person or property which show a betrayal of a position of trust are examples which immediately come to mind." (at p626)

5. It seems, therefore, that, in this view, in some cases which cannot easily be identified, the legislation does require the sentencing judge to take account of the nature and circumstances of the crime, whereas in others it simply requires him to fix the time in which the paroling authority must consider a prisoner's case so that the work of rehabilitation can begin as soon as possible. (at p626)

6. Finally, the Court faced the question why, if a sentence of imprisonment is primarily for rehabilitation, the legislature saw fit to provide for a minimum period at all. The answer given to this question was as follows (13): (1973) 1 NSWLR at p 208

"This question may in our view well be answered by saying that the legislature was recognizing a very important need to retain the place of the sentencing judge in the restructuring by modern legislation of the avenues of punishment, using the latter word in the widest sense."

This answer carries no conviction to our minds. The judge, in fixing a non-parole period, must, we believe, have regard not to the time within which the paroling authority must consider the prisoner's case but to the time for which the prisoner must remain in confinement. The legislature in clear terms (s. 4 in the New South Wales Act and s. 4 in the Ordinance of the Australian Capital Territory) provided that the trial judge should determine that minimum period for which in his judgment, according to accepted principles of sentencing, the prisoner should be imprisoned. Until that time has expired, with one exception in the case of the New South Wales statute, neither the parole board nor the Governor-General, as the case may be, can order that any part of the sentence be served out of confinement. This separation of the functions of the trial judge and that of the parole board is a clearly expressed policy of the legislation. The exception in s. 5 of the New South Wales Act emphasizes that policy in that, in the exceptional case for which the section provides, the reduction of the judicially designated minimum period for confinement is closely regulated. The obligation of the paroling authority to consider the case of a prisoner during that period of punishment is simply to ensure that, if, by the time the non-parole period comes to an end, the circumstances as a whole warrant the release of the prisoner upon parole, that prisoner will not be kept in confinement for a longer period while his case is being considered. (at p627)

7. It is our opinion that the Act as a whole does not convert a sentence of imprisonment from a punishment into an opportunity for rehabilitation. We cannot understand how a sentence of imprisonment, either with or without hard labour, can, however enlightened the prison system is, be regarded as otherwise than a severe punishment for a crime which has been committed and for which the law has provided imprisonment, or imprisonment with hard labour, as the appropriate penalty. It is true that, in following the legislation of other States and enacting the Parole of Prisoners Act 1966, the New South Wales legislature took a large step towards ensuring that a prisoner can, by his own behaviour while a prisoner, secure his release from confinement upon parole without serving the full term to which he has been sentenced, but the encouragement to reform so provided does not and obviously is not intended to take the sting out of imprisonment. To our minds no assistance towards the construction of the Act is to be had by considering the various objects of criminal punishment and by treating the non-parole period as retributive and the remainder of the time served in confinement as a period of rehabilitation. Confinement in a prison serves the same purposes whether before or after the expiration of a non-parole period and, throughout, it is punishment, but punishment directed towards reformation. The only difference between the two periods is that during the former the prisoner cannot be released on the ground that the punishment has served its purpose sufficiently to warrant release from confinement, whereas in the latter he can. 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. (at p628)

8. Nor do we understand how it is said that the fixing of a non-parole period is not concerned with deterring either the prisoner himself or others from crime. Surely the requirement that a prisoner must stay in confinement for some period seen by a judge to be appropriate in all circumstances, would operate more as a deterrent than to allow the prison gates to be opened almost as soon as they have closed, that is, when the paroling authority has had time to consider whether the sentence should be served in confinement. To the extent to which deterrence is an object of imprisonment, then imprisonment without a chance or release for a longer time, rather than for a shorter time, is within that objective. (at p628)

9. The inconsistency that has been found between treating the non-parole period as fixing a minimum period of confinement and the circumstance that the prisoner may be released from confinement after the expiry of that period without serving the full sentence is not, we think, well-based. For the purpose of showing such an inconsistency, the non-parole period is treated as a minimum sentence and the full sentence is regarded as an indeterminate sentence. We think nothing is to be gained by regarding the power of the paroling authority to release from prison as converting the full sentence into an indeterminate sentence. To interfere with that sentence is not within the authority of the paroling authority. Its authority is to release the prisoner conditionally from confinement in accordance with the sentence imposed upon him. The sentence stands and during its term the prisoner is simply released upon conditional parole. Indeed, we think it is a misnomer to refer to a minimum sentence and a maximum sentence. In truth there is but one sentence, that imposed by the trial judge, which cannot be altered by the paroling authority. (at p629)

10. To read the legislation in the way we have suggested fulfils the legislative intention to be gathered from the terms of the Act, i.e. to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence. (at p629)

11. It is also to be observed that legislation like the Parole of Prisoners Act 1966 (N.S.W.) has been in force in other States for years. See Crimes Act 1958 (Vict.), ss. 534-537A; Offenders Probation and Parole Act 1963-1969 (W.A.), ss. 37-41. Nowhere else has the limitation recently adopted by the Court of Criminal Appeal in New South Wales been adopted as the proper construction of the legislation. The new-found limitation upon the function of the sentencing judge is, in our opinion, unsound and would require not the exercise of a judicial discretion but the making of an administrative guess. That this was intended is unlikely and there is nothing in the language of the Act to warrant its adoption. It may, of course, be readily granted that in fixing the non-parole period a judge will give weight to his estimate of the capacity of the prisoner for reformation. The Act leaves the fixing of the period to the judge and so long as he proceeds judicially his discretion is not subject to any predetermined limitation. If, in a particular case, the discretion miscarries it can, in accordance with well-established principles, be corrected upon appeal. (at p629)

12. Had the New South Wales legislature intended to achieve the effect suggested by the Court of Criminal Appeal, it could have easily done so. For example, in both South Australia and Queensland, the power to determine how much of a sentence of imprisonment shall be served by a prisoner, has been given almost entirely to the paroling authorities: Prisons Act 1936-1969 (S.A.), s. 42; Offenders Probation and Parole Act 1959-1971 (Q.), s. 32. In these States the courts are not obliged to fix any non-parole period (although they may do so if they wish) and, unless the court fixes a non-parole period, the paroling authorities may release a prisoner - in South Australia, at any time after the imprisonment has commenced; in Queensland, at any time after half the term of imprisonment has been served. In these States, the legislature has made the power of a court to fix a non-parole period to operate as a restriction upon the paroling authorities, whereas in New South Wales the legislature has made a fixing of a non-parole period afford the occasion for the operation of the paroling authorities. (at p630)

13. We consider that Blackburn J. was right in declining to accept the principles stated in Reg. v. Portolesi (1973) 1 NSWLR 105 and Reg. v. Sloane (1973) 1 NSWLR 202 ; that the true principles to be observed in fixing a non-parole period are as we have stated them; and that, although leave to appeal should be granted in each case, the appeal should be dismissed. (at p630)

14. Counsel for the applicants did suggest that this Court might interfere with the sentence passed and the non-parole periods fixed by the learned trial judge, particularly in relation to Power, even if it found no error in the learned judge's non-acceptance of Reg. v. Portolesi and Reg. v. Sloane. Counsel, however, quite correctly realized that he could point to no such error of principle of the trial judge in imposing the sentence and in determining the non-parole period as would warrant the interference of this Court. (at p630)

MCTIERNAN J. These applicants for leave to appeal are made pursuant to the Australian Capital Territory Supreme Court Act 1933-1971 (Cth). s. 52(d). Each application is made in respect of a sentence of imprisonment passed by the Court of the Territory. Blackburn J. The applicants were prosecuted by indictment for assault on three persons; each assault being a crime under the Crimes Act, 1900 (N.S.W.) in its application to the Territory by s. 6 of the Seat of Government Acceptance Act 1909-1938 (Cth). The material sections fo the Crimes Act are ss. 59 and 61. They read thus:
"s. 59 Whosoever assaults any person, and thereby occasions actual bodily harm, shall be liable to penal servitude for five years.
s. 61 Whosoever assaults any person, although not occasioning actual bodily harm, shall be liable to imprisonment for two years . . . ." By the first and second counts of the indictment, the prosecution allege that each of the present applicants committed assaults occasioning actual bodily harm against the person named in each count. By the third count the prosecution alleged that each applicant committed the crime of common assault against a third person. The jury convicted the applicants J. A. Lyons and P. Selenski on the first and second counts, and convicted these two applicants and J. W. Power, the other applicant, on the third count. The crimes of which the applicants were convicted were committed in a brawl at a hotel on 8th July 1973. (at p631)

2. Before the applicants were sentenced, the trial judge was handed in respect of each applicant a "police report relative to antecedents" of each applicant and a "pre-sentence report" on each applicant prepared by qualified social workers. Thereupon he passed sentence on the applicants. J. A. Lyons was sentenced to thirty months' imprisonment with a "non-parole period" of eighteen months for each conviction of assault occasioning actual bodily harm, and to eighteen months' imprisonment with a twelve months' "non-parole period" for the common assault conviction. P. Selenski was sentenced to thirty months' imprisonment with a "non-parole period" of twelve months for each conviction of assault occasioning actual bodily harm, and to eighteen months' imprisonment with a "non-parole period" of twelve months for the common assault conviction. The sentences for each offence were, in the cases of the applicants Lyons and Selenski to be served concurrently. J. W. Power was sentenced to eighteen months' imprisonment with a "non-parole period" of twelve months for the conviction of common assault. (at p631)

3. On 1st March 1971, "An Ordinance Relating to Sentences of Imprisonment imposed on, and the Release on Parole, of persons convicted of Offences" came into force in the Australian Capital Territory. Section 4(1) of this Ordinance provides:
"Where a court sentences an offender to a term of imprisonment of not less than twelve months, the court shall . . . . specify a lesser term of imprisonment during which the person so sentenced is not to be eligible to be released on parole in pursuance of this Ordinance." (at p631)

4. The Court specified each "non-parole period" mentioned above in the purported pursuance of s. 4(1). (at p631)

5. The grounds upon which leave to appeal is sought in each case are that the respective terms of imprisonment are excessive and the term of imprisonment on parole is also excessive. (at p631)

6. It is said in House's Case (1936) 55 CLR 499, at pp 504-505 :
"the judgment complained of, namely, sentence to a term of imprisonment, depends upon the exercise of a judicial discretion by the court imposing it. The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion . . . . Lord Alverstone L.C.J. said that it must appear that the judge imposing the sentence had proceeded upon wrong principles or given undue weight to some of the facts (R. v. Sidlow (1908) 1 Cr App R 28, at p 29 ). Lord Reading L.C.J. said the court will not interfere because its members would have given a less sentence, but only if the sentence appealed from is manifestly wrong (R. v. Wolff (1914) 10 Cr App R 107 at pp 109-110 ). Lord Hewart L.C.J. has said that the court only interferes on matters of principle and on the ground of substantial miscarriage of justice (R. v. Dunbar (1928) 21 Cr App R 19, at p 20 )." (at p632)

7. Mr Norris, counsel for the applicants, therefore did not press the applications for leave to appeal against the sentences of imprisonment. He sought leave to appeal only against each order of the learned trial judge in so far as it specified a period of imprisonment in each case during which the person sentenced is not eligible to be released on parole: s. 4(1) Parole of Prisoners Ordinance 1971 (A.C.T.). He relied upon the views expressed by the Court of Criminal Appeal of New South Wales in the cases of Reg. v. Portolesi (1973) 1 NSWLR 105 and Reg. v. Sloane (1973) 1 NSWLR 202 , and sought an order substantially reducing the period in which each of the present applicants would be eligible to be released on parole in pursuance of the Ordinance. (at p632)

8. It seems to me that the Court of Criminal Appeal of New South Wales was concerned with principles embodied in the Parole of Prisoners Act, 1966 (N.S.W.). The scheme embodied in the Ordinance is different from that scheme to a large extent. It is clear that in each of the present applications the learned judge considered that it would not be appropriate to release any of the applicants on parole before the expiration of the period which he specified and that in the circumstances of each case a considerable period of punishment by way of incarceration was required. Indeed it is said in Reg. v. Sloane (1973) 1 NSWLR at p 208 "there is no need to exclude the right of a sentencing judge in particular cases to include a punitive or retributive element when he fixed the non-parole period . . . . Acts of violence and acts against person or property which allow a betrayal of a position of trust are examples which immediately come to mind." The present is such a case because the crimes of which the applicants were convicted were crimes of violence. In my opinion no reason has been shown for reviewing the sentences imposed or the non-parole periods specified by the Court. (at p632)

9. I would therefore refuse all these applications for leave to appeal. (at p632)

Orders

Power v. The Queen Special leave to appeal granted.
Appeal dismissed.

Selenski v. The Queen Special leave to appeal granted.
Appeal dismissed.

Lyons v. The Queen Special leave to appeal granted.
Appeal dismissed.