R v TW (No 2)
[2014] ACTCA 37
•12 August 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | R v TW (No 2) |
Citation: | [2014] ACTCA 37 |
Hearing Date(s): | 12 August 2014 |
DecisionDate: Judgment Date: | 12 August 2014 22 August 2014 |
Before: | Refshauge, Penfold and Gilmour JJ |
Decision: | The court orders that the sentences imposed on 17 November 2011 on counts 11 and 12 of the indictment be amended as follows: (a) For the offence of using a carriage service to access child pornography, imprisonment for one year and four months to commence on 18 March 2014 and end on 17 July 2015; (b) For the offence of using a carriage service to distribute child pornography, imprisonment for two years and two months to commence on 18 July 2015 and end on 17 September 2017. |
Category: | Principal Judgment |
Catchwords: | CRIMINAL LAW – Judgment and Punishment – Sentencing proceedings – Court has power to re-open sentencing proceedings to correct an error made in sentencing – Power to re-open applies to both Territory and Commonwealth sentencing proceedings – Composition of the Court does not need to be the same as the Court which imposed the sentence |
Legislation Cited: | Crimes Act 1900 (ACT), Dictionary Criminal Code Act 1995 (Cth) |
Cases Cited: | Achurch v The Queen (2014) 306 ALR 566 |
Parties: | The Queen (Applicant) TW (Respondent) |
Representation: | Counsel Mr J White SC (Applicant) Mr R Davies (Respondent) |
| Solicitors Director of Public Prosecutions (ACT) (Applicant) Legal Aid (ACT) (Respondent) | |
File Number(s): | ACTCA 39 of 2010 |
THE COURT:
On 17 November 2011, this Court, by majority, upheld a Crown appeal against the sentence imposed by Nield AJ on the respondent, TW, for thirteen offences involving acts of indecency with children and producing, possessing and disseminating child pornography. See R v TW (2011) 6 ACTLR 18.
The original sentence totalled seven years’ imprisonment with a non-parole period of four years and six months. This Court increased the sentence and described it as being increased to nine years and seven months with a non-parole period of five years and six months.
The offences of which TW had been convicted included offences against the Crimes Act 1900 (ACT) and also the Criminal Code Act 1995 (Cth), that is, Territory offences and federal offences. As Weinberg JA, with whom Ashley JA agreed, commented in Fasciale v The Queen (2010) 30 VR 643 at 647; [28]:
The question of how to combine sentences for State and Commonwealth offences has, for some years, created difficulties for sentencing judges.
The sentences imposed by this Court following the upholding of the Crown appeal may be summarised as follows:
a. The head sentence for the Territory offences commenced on 18 March 2010 and ceases on 17 March 2016;
b. The non-parole period for the Territory offences commenced on18 March 2010 and ceased on 17 March 2014;
c. The head sentence for the federal offences commences on 18 October 2015 and ceases on 17 October 2019;
d. The non-parole period for the federal offences commenced on 18 March 2014 and ceases on 17 September 2015.
e. The minimum period the respondent would have to serve before becoming eligible for parole is five years and six months, and the maximum period the respondent would have to serve is nine years and seven months.
It is clear that there are difficulties with the sentence as so described. Those difficulties were immediately apparent in the very helpful graphic representation of the relationship between all the sentences that was provided by the appellant’s instructing solicitor, Ms E Beljic. In particular, the non-parole period specified for the federal offences starts before the start of the head sentence for those offences. That non-parole period, indeed, ends on 17 September 2015 but the head sentence starts one month later on 18 October 2015.
The provision that regulates the relationship between the sentences imposed at the one sitting for Territory and federal offences in these circumstances is s 19(3) of the Crimes Act 1914 (Cth) (Commonwealth Crimes Act) which provides
(3) Where:
(a)a person is convicted of a federal offence or offences, and a State or Territory offence or offences, at the same sitting; and
(b)the person is sentenced to imprisonment for more than one of the offences;
the court must, by order, direct when each federal sentence commences but so that:
(c)no federal sentence commences later than the end of the sentences the commencement of which has already been fixed or the last to end of those sentences; and
(d)if a non-parole period applies in respect of any State or Territory sentences – the first federal sentence to commence after the end of that non-parole period commences immediately after the end of the period.
As can be seen, the sentence for the first federal offence commences after the end of the non-parole period for the Territory offences: the Territory non-parole period ended on 17 March 2014 but the sentence for the Commonwealth offences commences on 18 October 2015.
It would seem that the sentence is contrary to law where a non-parole period pre-dates the period of the sentence. Standing alone, the mere stating of that proposition shows it to be so. The nature of a non-parole period is that it is the period of the head sentence during which the offender may not be released. This is made clear in the description of the two periods, the non-parole period and the parole period, by Barwick CJ, Menzies, Stephen and Mason JJ in Power v The Queen (1974) 131 CLR 623 at 628
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.
(Emphasis added)
Indeed, that is now to be seen in the legislation, which, in s 16 of the Commonwealth Crimes Act, defines a non-parole period as follows
“non-parole period”, in relation to a sentence or sentences of imprisonment, means that part of the period of imprisonment for that sentence or those sentences during which the person is not to be released on parole, whether that part of the period is fixed or recommended by a court or fixed by operation of law.
It is, accordingly, clear that to set a non-parole for a period during which the offender is not serving the term of imprisonment to which the non-parole period relates results in a sentence that is not in accordance with the law.
In this case, were the Court simply to direct that the non-parole period commence at the start of the head sentence for the federal offences, this would then cause the sentence to breach the provisions of s 19(3)(d) of the Commonwealth Crimes Act, thus further creating a sentence that is not in accordance with the law.
The question is what can be done about the error. Section 61 of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act) permits a sentencing court to re-open the sentencing proceedings when a sentence imposed is contrary to law. In particular, s 61(3) provides
(3)The court may reopen the proceeding (on the application of a party to the proceeding, or on its own initiative) and may, after giving the parties an opportunity to be heard, do either or both of the following:
(a)make a sentence-related order that is in accordance with law;
(b)amend any relevant finding of guilt, conviction, sentence or order.
This, of course, applies directly to sentences imposed for Territory offences. There is no equivalent provision in Commonwealth law regulating the re-opening of sentencing for federal offences. Section 19AH of the Commonwealth Crimes Act relevantly provides
Failure to fix non-parole period or make recognizance release order
(1)Where a court fails to fix, or properly to fix, a non-parole period, or to make, or properly to make, a recognizance release order, under this Act:
(a)that failure does not affect the validity of any sentence imposed on a person; and
(b)the court must, at any time, on application by the Attorney-General, the Director of Public Prosecutions or the person, by order, set aside any non-parole period or recognizance release order that was not properly fixed or made and fix a non-parole period or make a recognizance release order under this Act.
While the relationship between the head sentence and the non-parole period of the sentence for the federal offences imposed on TW bespeaks of error, a re-fixing of the non-parole period to start at the same time as the sentence of imprisonment will not resolve the problem for it will not address the breach of s 19(3)(d) of the Commonwealth Crimes Act that would then result. Thus, s 19AH cannot provide a solution to the error.
This Court, when exercising its jurisdiction to sentence for federal offences, is exercising jurisdiction given under s 68 of the Judiciary Act 1903 (Cth), which relevantly provides
(1) The laws of a State or Territory respecting the arrest and custody of offenders or persons charged with offences, and the procedure for:
(a) their summary conviction; and
(b) their examination and commitment for trial on indictment; and
(c) their trial and conviction on indictment; and
(d) the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith;
and for holding accused persons to bail, shall, subject to this section, apply and be applied so far as they are applicable to persons who are charged with offences against the laws of the Commonwealth in respect of whom jurisdiction is conferred on the several courts of that State or Territory by this section.
(2) The several Courts of a State or Territory exercising jurisdiction with respect to:
(a) the summary conviction; or
(b) the examination and commitment for trial on indictment; or
(c) the trial and conviction on indictment;
of offenders or persons charged with offences against the laws of the State or Territory, and with respect to the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith, shall, subject to this section and to section 80 of the Constitution, have the like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth.
In Putland v The Queen (2004) 218 CLR 174 the High Court held that s 61(1)(c) of the Judiciary Act was apt to apply to sentencing procedures in State and Territory legislation. As Gummow and Heydon JJ said (at 187; [32]), by reference to S v Recorder of Manchester [1971] AC 481 at 506:
The expression ‘the trial and conviction on indictment’ has to be read in the light of the primary meaning of the word ‘conviction’. This denotes the judicial determination of a case by a judgment involving two matters, a finding of guilt or acceptance of a plea of guilty followed by sentence.
Section 61 of the Crimes (Sentencing) Act appears in Chapter 4 entitled “Sentencing Procedures Generally”, which Chapter includes general procedural matters such as sentencing considerations, Pre-Sentence Reports, victim impact statements and taking additional offences into account. The very nature of the power under the section is a matter of procedure. Thus, the provision is a procedural law of this Territory and applies to the proceedings by virtue of s 68 of the Judiciary Act. This is reinforced by the approach taken by the High Court in Putland v The Queen and in Achurch v The Queen (2014) 306 ALR 566.
Accordingly, this Court has power to re-open the sentence and correct the error.
The Court was, for the appeal, constituted by Refshauge, Penfold and Lander JJ. Lander J has now retired and so the Court, as constituted for the appeal in 2011, cannot consider this application.
Under the section, however, the application is, in terms, to be made to “the court”. “Court” is defined in the Dictionary to the Crimes (Sentencing) Act as:
Court – if a court has sentenced an offender, made an order or given a direction, means the same court, however constituted.
This means that the actual constitution of the court need not be the same as that which imposed the original sentence. While there is an obvious preference for the Court constituted in the same way as that which imposed the sentence the subject of the application, this is not legally required. See Johnson v Johnson (No 4) (2000) FLC 93-051 at 87,795.
The question, then, is what to do to make the sentence accord with law. It would, in the circumstances, be inappropriate so to alter the sentence as to increase the term either of the head sentence or the non-parole period.
Partial cumulation and concurrency in the fixing of the various sentences imposed following the appeal was clearly done to meet the obligation of the court to respect the principles of totality as set out in Mill v The Queen (1988) 166 CLR 59 and Pearce v The Queen (1998) 194 CLR 610. Thus, there was partial concurrency among the sentences for the federal offences.
The desired result, however, can be achieved by providing for some partial concurrency as between the federal and Territory offences as well.
Thus, if the sentence for the federal offences were to commence at the end of the non-parole period for the Territory offences but the concurrency between them were reduced so as to maintain the same end date for them, this would resolve the error. Counsel for the parties agreed that this was an appropriate resolution for the error. The reduced concurrency among the federal sentences would be compensated for by increased concurrency between the federal sentence and the Territory sentence.
This would be achieved by making the following amendments to the sentences for the first two of the federal offences, counts 11 and 12 on the indictment:
(a) For the offence of using a carriage service to access child pornography, imprisonment for one year and four months to commence on 18 March 2014 and end on 17 July 2015;
(b) For the offence of using a carriage service to distribute child pornography, imprisonment for two years and two months to commence on 18 July 2015 and end on 17 September 2017.
The other sentences and orders would remain undisturbed.
The Court made these orders on 12 August 2014 for the reasons set out above.
| I certify that the preceding twenty-eight [28] numbered paragraphs are a true copy of the Reasons for Judgment of the Court of Appeal. Associate: Date: 22 August 2014 |
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