R v Bechara No. DCCRM-02-618

[2002] SADC 136

R  v  ANTOINE BECHARA
[2002] SADC 136

Acting Judge Wilson
Criminal

Ruling Announced

The Relevant Law

1. The Prisoners (Interstate Transfer) Act 1982 (hereinafter called ‘the Act’) provides for the transfer of prisoners from one State to another or from a State to a Territory or a Territory to a State in the following circumstances:

   (a)when the prisoner requests the transfer and the transfer is for the purposes of the prisoner’s welfare;

   (b)where another State or Territory requests the transfer of the prisoner or the prisoner himself or herself requests a transfer for the purpose of standing trial and being dealt with for offences committed in the other State or Territory; and

   (c)when a prisoner is to be returned to a State or Territory after a trial in certain circumstances.

2. It is now accepted that a purpose of the Act is to ensure that prisoners so transferred are neither advantaged nor disadvantaged by such a transfer (see Bermingham v The Corrective Services Commission of New South Wales (1988) 38 A Crim R 412 per Hope JA at p418; see also Abdi v Release on Licence Board (1987) 10 NSWLR 294 referred to in Bermingham’s case.

3. Section 28 of the Act provides:

   “28(1)Where under a law of a participating State there has been fixed by a court in respect of a translated sentence a minimum term of imprisonment (being a shorter term than the translated sentence), during which minimum term the person subject to the sentence is not eligible to be released on parole, then, except as otherwise provided in this Act, that minimum term shall be deemed likewise to have been fixed by the corresponding court of South Australia as a non-parole period.

   (2)Where a translated sentence or a minimum term deemed under sub-section (1) to have been fixed by a corresponding court of South Australia -

   (a) is varied or quashed on a review by or appeal to a court of the participating State where the sentence or minimum term was imposed or fixed, the sentence or minimum term shall be deemed to have been varied to the same extent, or to have been quashed, by a corresponding court of South Australia; or

   (b) otherwise is varied or ceases to have effect as a result of action taken by any person or authority in that participating State, the sentence or minimum term shall be deemed to have been varied to the same extent, or to have ceased to have effect, as a result of action taken by an appropriate person or authority in South Australia.

   (3)Nothing in this Act operates to permit in South Australia any appeal against or review of any conviction, judgment, sentence or minimum term made, imposed or fixed in relation to a person by a court of a participating State.

   (4)……

   (5)……

   (5a)……

   (6)A person who is subject to a translated sentence -

   (a) shall be deemed to have served in South Australia such period of the translated sentence as, up to the time of his transfer to South Australia, he had served in respect of that sentence in a participating State (including any period deemed by the provision of an interstate law that corresponds to this paragraph to have been served in the participating State and any period spent in custody while being transferred to a prison in South Australia);

   (b) shall, subject to sub-section 6(a), be credited, in respect of the part of the translated sentence served in a participating State, with such entitlements to remission as may be specified in the order of transfer or fixed on the application of the prisoner by the appropriate South Australian court; and

   (c) shall, in accordance with the law of this State, be entitled to earn further entitlements to that remission as from the day of his arrival in South Australia.

   (6a)……

   (7)A non-parole period in respect of a person subject to a translated sentence may be fixed, extended or reduced by the appropriate South Australian court on the application of the person subject to the sentence or the Crown.

   (8)In this section –

   “The appropriate South Australian court”, in relation to a person subject to a translated sentence, means a court that is, in respect to the court by which the sentence was imposed, a corresponding court of South Australia.”

4. Sub-section (1) of section 28 is expressly directed to minimum terms of imprisonment “fixed by a court”. It does not, in its terms, deal expressly with minimum terms of imprisonment fixed by some other means, or according to a statutory formula. A literal construction of that part of the wording of sub-section (1) of section 28 (namely, “fixed by a court”) would, in the event of a transfer of a prisoner, deprive him or her, though having parole eligibility rights by virtue of a statutory scheme, of the benefit of the ancillary provisions relating to translated sentences set out in section 28. That would be an anomalous.

5. Based on the persuasive authority of Bermingham’s case supra and the other authorities discussed and applied therein, I have reached the conclusion that section 28 should be construed with a purposive construction as if the phrase “fixed by a court”, where used in that section, includes the additional words “…or fixed by operation of law by reference to a sentence imposed by a court, with eligibility for parole”, thus achieving the purpose which I am satisfied the draftsman and the legislature intended to achieve. The legislature contemplated, in addition to a head sentence, that there would be a minimum term of imprisonment or a non-parole period - and a period expiring on a parole eligibility date is to be regarded as a minimum term which is deemed to be a non-parole period.  In my judgment “minimum term of imprisonment”, “non-parole period”, and “period prior to parole eligibility” are, in this context, synonymous.

   The Application

6. This application, in its final form, is an oral application pursuant to section 28 (7) of the Act by a person subject to a translated sentence (“the applicant”) to have a non-parole period fixed if one is not deemed to have been fixed (hereinafter called “the first alternative application”) or, if one is deemed to have been fixed, to have his deemed non-parole period reduced by this Court, the “appropriate South Australian court” (hereinafter called “the second alternative application”).

7. This oral application supersedes an earlier written application made pursuant to section 32 (3) of the Criminal Law (Sentencing) Act 1988, which application was misconceived and, after much vacillating by counsel on both sides, was not pursued.

   Determination and Findings

8. I proceed to record my determination and make my findings:

   1.On 28 March 2001 the applicant was sentenced in the District Court of Western Australian to 13 years imprisonment (with eligibility for parole) for selling or supplying heroin to another person, such sentence to commence from 15 March 2001. No non-parole period or minimum sentence or parole eligibility date was formally made, imposed or fixed by the District Court.

   2.On 21 October 2001 the said sentence was reduced by the Court of Criminal Appeal in Western Australia to a sentence of 10 years imprisonment.

   3.By operation of Western Australian law (the Prison Act 1981, the Sentence Administration Act 1995 and the Sentencing Act 1995) the applicant’s parole eligibility date was 13 November 2005. That legislation, together with the Prisoners (Interstate Transfer) Act as analysed above, means that the applicant is deemed to be (and would, in effect, be) subject to a non-parole period or a minimum sentence of 4 years, 7 months and 30 days.

   4.On 29 May 2002, the applicant, as a prisoner and at his request, was transferred pursuant to the Act to South Australia.

   5.Applying the principle laid down in Bermingham’s case supra, I find that, under the said laws of Western Australia, there has been fixed, in the manner contemplated under section 28(1) of the Act, in respect of that translated varied sentence of 10 years imprisonment, a minimum term of imprisonment of 4 years, 7 months and 30 days, during which minimum term the applicant is not eligible to be released on parole.

   6.By virtue of the provisions of section 28(1) and (2) of the Act, I deem that period of 4 years, 7 months and 30 days to have been fixed by this Court, a court corresponding to the District Court of Western Australia, as a non-parole period. That period expires on 13 November 2005. [This disposes of the first alternative application. There is no need for this Court to fix a non-parole period because one is deemed to have been fixed.]

   7.Without seeking or purporting to hear and determine any appeal from such varied sentence or minimum term or to review the sentence or minimum term so deemed to have been fixed as a non-parole period (see section 28(3) of the Act), it is open to me, on the applicant’s application and in the exercise of discretion, to reduce his non-parole period.

   8.Such discretion must be exercised judicially.

   9.It is true that many of the personal circumstances upon which the applicant relies to justify a reduction in his non-parole period were before the Western Australian courts. However, having regard to the hardship to the dependents of the applicant, which continues to be contributed to by his ongoing incarceration, his inability to provide his severely-afflicted wife and his two young children with necessary care, the evidence of remorse not previously in existence, and, significantly, the demand which the circumstances imperatively make for the exercise of mercy, for the sake of the family and in society’s interests, this is one of those special and exceptional cases calling for the exercise of mercy by the reduction of the non-parole period.

   10.In reaching my conclusion in paragraph numbered 9, I have noted, firstly, that on the evidence before me there appear to be some errors in the paragraph headed ‘Background Information’ in the social work report; it should be made clear that, although the applicant’s earliest “release date to parole” in Western Australia or parole eligibility date may have been 13 November 2007, his “release date to parole” in Western Australia following the applicant’s appeal to the Court of Criminal Appeal in Western Australia was 13 November 2005, his head sentence having been reduced by three years; with respect, there appear to be some errors also in the otherwise helpful Parole Board report dated 18 July 2002; the applicant’s amended sentence, after being reduced on appeal, was on the basis that he supplied some heroin (and no cocaine) and received considerably less than $105,000 (approximately $10,000) for the heroin; he was sentenced on the basis that he sold or supplied 95.8 grams of heroin (and not the combined weight of 420.8 grams of heroin).

   I have noted, secondly, that the sentencing remarks (at pp332.9 to 333) disclose the extent to which the sentencing judge, Commissioner Reynolds, purported to take into account the poor state of health of the applicant’s wife (and her parents) and the question of hardship to all the applicant’s dependents, including his children.

   I have noted, thirdly, the contents of the Parole Board report dated 18 July 2002; the reasons for judgment of the Court of Criminal Appeal in Western Australia delivered on 31 October 2001; the medical reports of Dr David Gillis dated 10 January 2001, 26 March 2001, 11 June 2002 and 5 August 2002; the medical report of Dr Umanand Prasad dated 21 June 2002; the letter from Dr Oliver Frank dated 17 June 2002; Ms Helen Weightman’s social work report; the individual management plan (recommended); the case management report; certificates regarding Introduction to Small Business and Cognitive Skills Program; a letter from Mr Tony Ascher, a leading member of the Jewish community, addressed to the presiding judge; a letter dated 27 March 2001 from Mr William Moukachar, the current President of the Lebanese Orthodox Church of South Australia; the sentencing submissions before His Honour Commissioner Reynolds, pp251 to 274; the submissions made to His Honour the Chief Judge on 2 August 2002; the letter dated 30 August 2002 from the applicant’s wife, Amelia Bechara; the letter dated 9 August 2002 from the Manager of F Division at the Yatala Labour Prison; the letter dated 5 September 2002 from Ms Helen Johns, the co-ordinator of the Partners of Prisoners Program at OARS; the Scleroderma Foundation fact sheet; and, of course, I have received (and taken account of) the submissions made to me by counsel.

   I have noted, fourthly, that the calculation of a minimum term, or the equivalent of a non-parole period, in Western Australia is according to a statutory formula. There is apparently no room for the fixing of a non-parole period which represents a lower than usual proportion of a necessarily stern head sentence in a special case in which the interests of justice might require early parole eligibility.

   In South Australia, where there is greater flexibility in the fixing of non-parole periods, such periods may (and sometimes do) represent half, one third, or even one quarter of the head sentence, especially in circumstances where there is, as here, a deteriorating medical condition affecting the applicant’s dependent wife.  It is important, in my judgment, that the applicant, as nearly as possible, be placed in the same position as a South Australian prisoner under like circumstances; this can only be achieved through the “reduction” machinery in section 28(7).

   11.Noting all these matters set out and referred to in paragraph10 above, and emphasising that my experience leads me to conclude that the exercise of mercy in this case will serve the interests of justice - justice to the applicant and his family, as well as justice to the community at large - I, in the exercise of my discretion, reduce the deemed non-parole period by 18 months to a period expiring on 13 May 2004. To reduce it any more than that would constitute a breach of the sentencing principles that apply to the fixing of non-parole periods.  [This disposes of the second alternative application.]

   12.If the applicant’s wife’s prognosis were to change for the worse in the period between now and the date upon which the applicant can apply for parole - 13 May 2004 - then I foresee the necessity for the applicant to apply to the Governor for the exercise of the royal prerogative of mercy in his favour.

   13.I recommend to the Department for Correctional Services that consideration be given to the applicant:

   (1) being placed at a prison relatively close to his wife’s place of residence, allowing for the applicant’s wife and children to visit; and

   (2) being released on pre-release home detention at an appropriately early stage, if he qualifies for such semi-custodial correctional treatment as part of his sentence.