Rasic, Barisa Joseph v The Queen

[1983] FCA 329

Re: BARISA JOSEPH RASIC
And: THE QUEEN
No. ACT G45 of 1983
Criminal law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Woodward J.
Kelly J.
Neaves J.

CATCHWORDS

CRIMINAL LAW - armed robbery - appeal against severity of sentence - matters to be taken into account - fear of criminal creditor - pleas of guilty - no non-parole period set - purposes of parole release.

Parole Ordinance 1976 (A.C.T.) s.7

Removal of Prisoners (Australian Capital Territory) Act 1968 (Cwth) s.4

Prisons Act 1952 (as amended) (NSW) s.41(3), 54(2) and (3), Reg. 110

Parole of Prisoners Act 1966 (as amended) (NSW) s.4

Crimes Act 1900 (as amended) (NSW) s.444

HEARING

CANBERRA

#DATE 11:11:1983

ORDER

1. The appeal be allowed by adding to the sentences imposed by the Supreme Court of the A.C.T. on 13 July 1983 an order that the appellant serve a non-parole period of 3 years 6 months.

2. Otherwise the appeal be dismissed and the sentences affirmed.

JUDGE1

This is an appeal against the severity of sentences imposed in the Supreme Court of the Australian Capital Territory in relation to two instances of armed robbery. As to the first of the two instances, there were three charges of armed robbery and two related charges of assault, all arising from the same set of circumstances.

The previous history of the appellant and the circumstances of these two offences can be conveniently summarised as follows. The appellant was born in 1961, his parents having just arrived in Australia from Yugoslavia. Throughout his childhood they both worked long hours and moved house a number of times. He became very unsettled. Since the age of 13 he has been in frequent trouble with the police, culminating when he was 16 years old in a sentence of six years for armed robbery in company. The offence on this occasion involved a group of youths robbing a service station proprietor in order to obtain money for marijuana. The offence does not seem to have been premeditated for any length of time, but the appellant and another youth were each armed with firearms, said to have been unloaded, and the N.S.W. District Court Judge took a sufficiently serious view of the appellant's conduct and record, in spite of his youth, to impose a six year sentence with a non-parole period of two years and six months.

After serving that period, the appellant was released and managed to avoid trouble with the police - apart from two offences of driving an unregistered vehicle, for each of which he was fined $50 - for a further three years until the commission of these offences at the age of 22.

In the year leading up to these offences, the appellant had become severely addicted to heroin and it seems that he owed several thousand dollars to a dealer, who suggested to him that he should commit a hold-up in order to obtain money to pay his debt. It is alleged that the dealer introduced the appellant to another young man who was prepared to join with him in holding up a small supermarket.

The two men made some preparations the night before the event and, wearing balaclavas, the appellant being armed with a baseball bat and the other man with a rifle, they proceeded to hold up the family who were conducting the supermarket and a customer who happened to be on the premises at the time. In the course of the commission of this offence, the appellant struck one member of the family on her arm with the baseball bat, although the blow does not seem to have been severe. This robbery produced only a small sum of money, about $150, which the two men divided. The appellant did not think it was worthwhile paying any part of his share to the heroin dealer.

Because the heroin dealer had made threats to cut off his hands or put him in a wheelchair if he did not pay the money which he owed, the appellant continued to worry about his situation, and as the deadline which the dealer had given him for payment approached, he decided to undertake another armed robbery, this time by himself.

Accordingly, some three weeks after the first offence, he wrote out a short demand and went into a post office with an old, unserviceable pistol in his hand. He was disguised by a hood, scarf and dark glasses. He demanded money from the postal officer working alone behind the counter and, when this seemed to be ignored, he jumped the counter, took about $1100 and ran out of the premises. He went round the corner, jumped into his mother's car which he had borrowed for the day, and drove off. He was pursued for a time by the officer from the post office who had hailed a passing taxi, but he managed to evade his pursuer.

No doubt realising that he was likely to be traced, he contacted first a drug referral centre, and secondly a Legal Aid Office, by telephone. In each case he made some confession about his crime. The police arrested and interviewed him after he returned to his parents' home later in the day.

The learned sentencing judge sentenced the appellant, who had pleaded guilty to all charges, to an effective total of three years imprisonment for the armed robberies and assaults at the supermarket and to five years imprisonment for the armed robbery at the post office. These sentences were made cumulative and his Honour declined to fix any non-parole period.

There is no appeal against the three year sentence for the first group of offences, but the second sentence and the totality of the sentences are challenged in a number of ways which we shall deal with in convenient order. The first of these was

"that his Honour erred in failing to give any or any sufficient weight to evidence that the appellant was motivated by fear at the time of committing the offence for which he was sentenced".

We do not believe that this ground of appeal can be sustained, even accepting as we do that the appellant did have some genuine fear that he might be subjected to violence by the heroin dealer. We cannot accept that that is a circumstance which ought to incline a sentencing judge to leniency.

At a time when drug-related offences are causing so much concern in the community, and placing so many shop-keepers and others at risk of personal violence, the courts cannot allow any belief to be encouraged that threats by a drug supplier can be relied upon in mitigation of the offence. It is likely that many drug users are, or will become, indebted to their suppliers, and will have pressure of one sort or another put upon them to commit crime in order to repay the debt and pursue their habit. It seems to us that the courts must do what they can, within reasonable limits, to ensure that drug users in that position will be more afraid of the legal consequences of their crime than of any action which could be taken by the drug supplier. It is only in such circumstances that the user will be encouraged either to go to the police for assistance or, at least, to take whatever steps are necessary to avoid the supplier.

If a case could be imagined in which the will of the offender had been so overborne by violence or threats of violence from a drug supplier that the offender might attract some sympathy from the court, this is not such a case. The evidence suggests that the appellant fell in quite readily with the suggestion of the supplier as to how he could obtain the money he required. His previous offence at the age of 16 indicates a general willingness to engage in such conduct. Although the threats made to him were colourful, there is not much evidence that they were accompanied by any comparable show of violence, although he did say that the supplier once "threw a couple of punches" at him and caused his nose to bleed; and on another occasion some men carrying baseball bats inquired for him at his girl-friend's house. It may also be of some significance that, of the $1100 which he stole from the post office, he only handed over $900 to the agent of his supplier, and used the balance to purchase heroin shortly before his arrest.

The next grounds of appeal relied on by the appellant were

(a) "that the sentence imposed by his Honour in relation to the assault and robbery of (the post office employee) was manifestly excessive" and

(b) "that an excessive disparity exists between the sentences imposed for the offences which occurred at (the supermarket) and the sentence imposed for (the robbery at the post office)."

Again we are satisfied that there is no substance in these related grounds of appeal. Bearing in mind the prevalence of the offence of armed robbery in the community today, the maximum sentence of 14 years provided for such offences, and the need to deter persons who may consider this a simple solution for their financial problems, we believe that a sentence of five years for a second offender cannot be said to be beyond the range reasonably open to the sentencing judge. We say this in spite of the fact that the weapon used could not be fired, the person held up does not seem to have been unduly disturbed by the incident, and there was an amateurish aspect to the offence in the use of the appellant's mother's car as a getaway vehicle. Although, at first sight, five years may seem to be severe by comparison with the total sentence of three years imposed for the earlier offences, we cannot say that the disparity is unreasonable bearing in mind that the second offence was carried out entirely on the appellant's own initiative, and with ample opportunity to consider what he was doing.

Another ground of appeal was that

"his Honour failed properly to exercise his discretion in ordering that the sentence in respect of the assault and robbery of (the post office employee) be served cumulatively with respect to the other sentences imposed by his Honour."

Insofar as this ground alleges that the two offences were related, and should have resulted in the sentences being made wholly or partly concurrent because they arose from the same transaction, the submission cannot be accepted. The two offences were over three weeks apart in time, and were carried out in company on the first occasion and alone on the second occasion. The only connecting link was that they were both undertaken for the purpose of obtaining money to repay a drug dealer. In our view it was entirely appropriate that the sentences be made cumulative, provided only that the resulting sentence was not unduly severe when looked at in its totality. We think the total sentence of eight years for the two related offences is towards the upper end of the appropriate scale for offences of this type which are not accompanied by great risk of serious injury to victims or passers-by and are not carried out in a planned proffessional manner. However, particularly bearing in mind the appellant's previous conviction, we are quite unable to say that this total sentence is excessive.

The next ground of appeal was that

"his Honour failed to give due weight to the facts that the appellant confessed to the police, that he pleaded guilty and that he expressed remorse in respect of the offences."

In our opinion little weight can be given to these matters in the present case. It seems that the appellant only confessed to the second offence in the face of strong evidence of his involvment. It is not clear in what circumstances he then confessed to the earlier offences at the supermarket, but one thing which is clear, and was conceded by his counsel, is that he has prevaricated, both to the police and in the Supreme Court, about the identity of the person who had supplied him with drugs. This was perhaps the most important question, from the community's viewpoint, on which he was questioned by the police, and so it cannot be said that he made completely frank statements to the police and gave them all possible assistance in their inquiries. Neither does it appear that the appellant has shown any more remorse than would be felt by most criminals following arrest. Indeed in sentencing the appellant his Honour said

"I do not accept any remorse now being expressed by the accused and on his behalf. From his demeanour in this court during his evidence and indeed, sitting in court, I doubt whether he has any remorse for what he did at all."

His Honour was in a much better position to judge the genuineness of the appellant's remorse than we are.

We think that some allowance should be made in a case such as this for the appellant's plea of guilty to all charges. It is in the interest of the community to encourage accused persons who know they are guilty to admit that guilt rather than put the community to the cost of a trial. However, we take the view that only a little weight should be given to this consideration when it is unaccompanied by genuine contrition or full co-operation in police inquiries (see generally The Queen v Shannon 1979 21 SASR 442). Making due allowance for the pleas of guilty, we still do not consider the sentence of eight years is excessive.

The final ground of appeal was that

"his Honour erred in declining to set a non-parole period."

This is the aspect of the appeal which has caused us most concern. In our view the policy of the relevant legislation (the Parole Ordinance 1976 (A.C.T.)) calls for the setting of a non-parole period in all relevant cases unless it would be inappropriate to do so. The presumption is in favour of such a period being fixed. We think it is important that the parole authorities should generally have the ability to reward prisoners whoe have indiated, while serving their sentences, that there are reasonable prospects that they will not offend again. We think it is also in the interests of both the community and the offender that when he first returns to society after a substantial period in prison he has the benefit of guidance from parole officers for some period of time.

In the present case the accused would be released after just under five years with the benefit of relevant remissions (a matter we refer to at the end of these reasons). In our view the policy of the parole legislation would be observed, and the community at least as well protected, if the accused were to serve a somewhat shorter period in prison and then be subject to supervision on parole for all or most of the balance of his sentence.

In sentencing the appellant his Honour said

". . . you have breached recognizances given to you by courts on not less than four occasions. I think it is more than four occasions. These offences were committed while you were on parole for an offence of armed robbery. I have reached the view that having regard to the offences and your antecedents, it is inappropriate to fix a non-parole period."

We think, with respect, that his Honour erred in apparently disregarding the age of the accused (14, 15 and 19 when he was breaching recognizances and just 22 when these offences were committed), and the fact that he had substantially observed his former parole for a period of three years and broken it largely because of a drug habit of twelve months standing. We believe that, given the support which his family are prepared to offer him, there is a reasonable prospect that if the appellant can keep away from drugs after serving his prison sentence he may not again come before the courts for any serious offence. We think it is too early in his life for the courts, in effect, to give him up as a lost cause, and that it would be better that he have the support contemplated by the parole system when he returns to the community.

Believing, as we do, that it is in the community's interest to give the accused one last substantial chance to avoid a lifetime of crime and punishment, we think that there should be a significant difference between the period the appellant would serve with benefit of full remissions and the non-parole period we fix. On the other hand the appellant must be left in no doubt about the seriousness with which we regard his conduct. We propose to fix a non-parole period of three years six months.

In taking this course we believe we are applying the general principles laid down by the High Court in Power v The Queen (1974) 131 CLR 623 where, at p.629, Barwick C.J., Menzies, Stephen and Mason JJ. referred, in their joint judgment, to the legislative intention

"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 requies that he must serve having regard to all the circumstances of his offence."

We further believe we are following the spirit of earlier decisions of the Full Court of this Court in Rich and Bourke v The Queen (unreported; 7 September 1981) and Bain v The Queen (unreported; 27 May 1983) and we respectfully adopt what was said in those cases, particularly in the following passages. In Rich and Bourke, Muirhead, Keely and Fisher JJ. said,

"The parole scheme may be said to have several objectives. But undoubtedly one aim is to safeguard the community by ensuring that prisoners upon release will be subject to supervision and returned to life in the community with some prospects of successful intergration within that community. The extent to which each prisoner will require supervision or rehabilitation will depend on the individual and his problems, the nature of his offence and indeed the period that has been spent in custody. When a person has a particular problem be it alcoholism or drug addiction it is important that efforts be made to assist him . . ."

and later,

". . . we consider it important that the Parole Board should have the opportunity to consider the release of these appellants well before the expiration of their sentences."

In Bain, Muirhead, Toohey and Jenkinson JJ. referred to Rich and Bourke and said the principles quoted were particularly applicable "where the appellant has no previous convictions and the offences were in large part the result of his heroin addiction". In the present case the appellant committed no serious offence in his first three years after leaving prison at the age of 18 and his heroin addiction obviously played a major role in the offences we are considering.

There is one final matter we should advert to before concluding these reasons. It has not affected our decision in any way, but we believe attention should be drawn to it.

When the learned sentencing judge dealt with the appellant he was conscious of the fact that the appellant would be dealt with by the N.S.W. District Court for the breach of his earlier parole. His Honour said,

"He has thus rendered himself liable in New South Wales to serve the unexpired portion of his six years sentence imposed in 1977; that unexpired portion of his sentence being three and a half years imprisonment. He is facing that anyway."

However his Honour was not able to make any order about the relationship between the sentences he was imposing and the serving of the unexpired portion of the N.S.W. sentence, because no order had yet been made concerning the breach of parole. In the event, the N.S.W. District Court simply ordered the appellant to serve the balance of his sentence and, in the absence of any order to the contrary, this meant that it was to be served concurrently.

The appellant is entitled to the benefit of remissions earned in relation to the two years six months he served before being paroled (see Smith v Corrective Services Commissioner of N.S.W. (1980) 55 ALJR 68). These remissions, we are told, will be subtracted from the concurrent sentences, with the result that, unless released on parole, the accused would serve a substantially shorter sentence because he had broken parole and been returned to prison for it, than he would have served if he had not broken parole. To the extent that the matter is within the control of the Commonwealth, this clearly unintended result should receive the attention of the relevant authorities.

JUDGE2

I have had the advantage of reading the reasons for judgment prepared by Woodward and Neaves JJ. I respectfully concur with those reasons as they relate to all the grounds of appeal save one. As to that, although I agree with the statements of principle set forth in those reasons, I reach the same conclusion by a different route.

The relevant provisions of the Removal of Prisoners (Australian Capital Territory) Act 1968 (Cwth.) (the "Act"), of the Prisons Act 1952 (as amended) (N.S.W.) (the "Prisons Act"), of the Parole of Prisoners Act 1966 (as amended) (N.S.W.) (the "Parole of Prisoners Act"), of the Crimes Act 1900 (as amended) (N.S.W.) in its application to the Australian Capital Territory (the "Crimes Act") and of the Parole Ordinance 1976 (A.C.T.) (the "Ordinance") together with Regulation 110 made under the Prisons Act form the background to that ground of appeal, that the learned sentencing Judge erred in failing to set a non-parole period.

Section 4 of the Act provides as follows:

"(1) Where, under a law as in force in the Territory, a person is to undergo imprisonment or other detention in custody, he is liable to undergo that imprisonment or other detention in the Territory, or, in accordance with this Act, in the State (of New South Wales).

(2) Where a person has, in accordance with a warrant issued under this Act by reason of an order or sentence by virtue of which he is to undergo imprisonment, been placed in custody in a prison in the State, he shall be deemed, so long as he is in custody in the State under this Act in consequence of that warrant, to be undergoing that imprisonment."

Part IX (ss.53-58) of the Prisons Act makes provision for prisoners received from the Australian Capital Territory. So far as is relevant, s.54 provides:-

"(2) The governor of a prison or any other officer doing duty at a prison shall accept custody of any person delivered into his custody by a constable in accordance with a warrant and the person shall thereafter, subject to this Part, be detained in that prison or any other prison in this State for the period, as referred to in the warrant, necessary for the execution of the order or sentence of the court or magistrate so referred to, unless his earlier release is authorized by the exercise of the Royal prerogative of mercy or by reason of the operation of any law of the Commonwealth, or of any law in force in the Territory, relating to the release of offenders.

(3) Subject to the provisions of the Commonwealth Act, a person referred to in subsection (2), until he is released from custody or delivered into the custody of a constable in accordance with a warrant, may be dealt with in the like manner, and is subject to the like laws, as if the order or sentence of the court or magistrate in respect of the person had been a like order or sentence made or pronounced under a law in force in this State."

Section 41(3) of the Prisons Act provides as follows:-

"(3) Prisoners shall be granted remission of sentences as prescribed by regulations under this Act.

Such regulations may include provisions for or with respect to -

(a) the circumstances in which and the conditions (including conditions as to conduct, industry and behaviour) subject to which such remissions may be granted;

(b) the period in respect of which such remissions may be granted;

(c) the forfeiture of entitlement to remissions, by reference to any periods for which prisoners have been confined to cell pursuant to section 23A or 24 or to any matters or things prescribed or as the Commission may determine;

(d) the procedures and methods of calculation of remissions.

The determination as to remission to be granted under the foregoing provisions shall be made by the Commission and shall be final and without appeal."

Regulation 110 of the Regulations made under the Prisons Act reads as follows:-

"110. Subject to this Part, a convicted prisoner shall be entitled to remission in accordance with the following provisions:-

(a) A convicted prisoner who is serving a sentence period of one month or more, and who is not an habitual criminal, shall be entitled to a remission of one-quarter of the sentence period:

Provided that a convicted prisoner who had, before commencing to serve that sentence period, not been imprisoned, to serve one or more sentences, for a period of three months or more (whether or not that period of three months or more was reduced by any remission or other earlier release) shall be entitled to a remission of one-third of the sentence period.

In this paragraph, 'sentence period', in relation to a prisoner who is imprisoned for a period (not being a portion only of a period of imprisonment) during which he is to serve -

(i) only one sentence; or

(ii) more than one sentence, whether cumulatively or concurrently or both,

means that period without regard to any remission or other earlier release."

At the time sentence was passed on the appellant, s.444 of the Crimes Act provided:-

"(1) Where a person is convicted of any offence and at the time of passing sentence the term of any sentence previously passed on him, whether of penal servitude, or imprisonment, is unexpired, the Judge may direct that the sentence for the offence of which such person then stands convicted shall commence at a future day to be named by the Judge, and to be within, or at the expiration of the period of such unexpired sentence.

(2) Where no such direction is given the sentences shall be concurrent."

The relevant part of s.7 of the Ordinance provides that -

"(1) Subject to sub-section (2), where a court sentences a person to a term of imprisonment of not less than 12 months or to terms of imprisonment that, in the aggregate, are not less than 12 months, the court shall fix a period as the period during which the person is not to be eligible to be released on parole in pursuance of this Ordinance.

(2) Sub-section (1) does not apply - . . .

(c) if the court, having regard to the nature of the offence or offences and the antecedents of the person convicted, considers that the fixing of a non-parole period would be inappropriate; . . . "

From evidence tendered by leave before this Court, it appears that the appellant's parole upon which he was released in February 1982 following his conviction in the Wollongong District Court on 31 August 1977 has been revoked. Before his release on parole the appellant had served 924 days of the six years imprisonment to which he had been sentenced by the District Court. Following the revocation of his parole by the New South Wales Parole Board he was entitled to be credited with remissions referable to those 924 days against the balance of his sentence of six years. Smith v. Corrective Services Commissioner of New South Wales, (1981) 55 A.L.J.R. 68. Because he had not previously been sentenced to more than three months imprisonment he had become entitled to a remission of one third (308 days). He had also earned a further remission of 78 days.

The effective term of eight years (2918 days) imprisonment imposed by the learned sentencing Judge would, in ordinary circumstances, attract one-quarter remission (729 days) since the appellant is a convicted prisoner who had, before commencing to serve the sentences under consideration, been imprisoned for a period of three months or more. By the combined operation of s.5(3) of the Act and s.54(3) of the Prisons Act, the appellant is to be treated by the New South Wales Prison authorities as a prisoner who had been sentenced to a term of imprisonment in excess of three months.

The appellant is to serve the balance of his New South Wales sentence concurrently with the sentences under consideration. See s.444(1) and (2) of the Crimes Act 1900 as amended (N.S.W.). Assuming that he does not behave so as to cause loss of remissions, his total actual sentence is calculated by adding the 924 days already served to the 2918 days ordered by the learned sentencing Judge and subtracting the sum of the total remissions (1115 (729 + 308 + 78) days) and the 924 days already served to reach a nett figure of 1803 days or just under five years. He may well earn additional remissions of the kind represented by the 78 days referred to above.

Because of his breach of parole the appellant will necessarily serve (assuming no loss of remissions) a good deal (386 days) less than would be expected, given a sentence of eight years. This effect may not have been intended by the legislature and may well call for its reconsideration in respect of future cases.

I agree, with respect, that s.7 of the Ordinance calls for the setting of a non-parole period in all relevant cases unless it would be inappropriate to do so and that there is a presumption in favour of such a period being fixed. Indeed, "a prisoner has . . . an express statutory right to have a non-parole period specified", R. v. Mestaghi, (1979) 2 N.S.W.L.R. 68 at p.71 per Street CJ. His Honour, giving the judgment of the New South Wales Court of Criminal Appeal, was considering s.4 of the Parole of Prisoners Act which also provides that a court, judge or justice may refrain from specifying a non-parole period. See also R. v. Stewart, (1981) 7 A.Crim.R. 89. In that case Reynolds JA, referring to the fact that a sentencing judge had refrained from imposing a non-parole period, said at p.91,

"That, of course, involves an enquiry which leads first to a value judgment and ultimately to the exercise of a discretion."

The limits on the power of an appellate court to interfere with the exercise of such a discretion are well known. They are authoritatively set out in Cranssen v. The King, (1936) 55 C.L.R. 509 at pp.519-20.

"The jurisdiction to revise such a discretion must be exercised in accordance with recognized principles. It is not enough that the members of the court would themselves have imposed a less or different sentence, or that they think the sentence over-severe. There must be some reason for regarding the discretion confided to the court of first instance as improperly exercised. This may appear from the circumstances which that court has taken into account. They may include some considerations which ought not to have affected the discretion, or may exclude others which ought to have done so. The court may have mistaken or been misled as to the facts, or an error of law may have been made. Effect may have been given to views or opinions which are extreme or misguided. But it is not necessary that some definite or specific error should be assigned. The nature of the sentence itself, when considered in relation to the offence and the circumstances of the case, may be such as to afford convincing evidence that in some way the exercise of the discretion has been unsound. In short, the principles which guide courts of appeal in dealing with matters resting in the discretion of the court of first instance restrain the intervention of this court to cases where the sentence appears unreasonable, or has not been fixed in the due and proper exercise of the court's authority. Moreover, this court has always recognized that, in appeals from courts of the territories, there may be many matters upon which the court appealed from is in a better position to judge than we can be. It is familiar with the special conditions which obtain in the territory and thus should be better able to estimate the importance of considerations arising out of them, or the significance of facts associated with them."

One's first reaction to the combination of the length of the head sentences and the refusal to fix a non-parole period is that the learned sentencing Judge took a severe view of what was the appropriate course to follow. I am not persuaded that the head sentences were outside the proper exercise of discretion but I think that the failure to fix a non-parole period was.

Had his Honour chosen to fix a non-parole period, it would obviously have been lengthy, having regard to the view he was properly able to and did take of the appellant and of the offences for "in a true sense the non-parole period is the minimum period of imprisonment to be served because the sentencing judge considers that the crime committed calls for such detention". Power v. The Queen, (1974) 131 C.L.R. 623 at p.627 (Barwick CJ, Menzies, Stephen and Mason JJ). But he would also have had to take into account that in fixing a non-parole period regard ought to be had to the remissions of sentence which may be expected in the case under consideration. See R. v. Combo, (1971) 1 N.S.W.L.R. 702, R. v. Humphries, (1971) 1 N.S.W.L.R. 781, R. v. Fury, (1971) 2 N.S.W.L.R. 262 and Anderson v. R., (1977) 19 A.L.R. 212.

As Smithers J said in Anderson's Case at p.218,

". . . in fixing a non-parole period the court ought to take into consideration the likely length of remissions:-

(a) because, if remissions are not taken into account the non-parole period may be rendered nugatory by the earlier unconditional release of the prisoner on account of remissions; and

(b) because it is the policy of the legislature to confer upon the Parole Board power to impose conditions on the release of prisoners and to supervise those conditions."

Revocation of a parole order made under the Ordinance does not necessarily mean, although it may, that the person paroled must serve the whole of the balance of his sentence. See s.25. Nevertheless, it is an "error to regard the (Ordinance) as a 'form of leniency'" (infra). As Smithers J said in Anderson's Case at pp.217-8,

"Revocation may occur upon non-observance of any of the conditions of the parole order. It was largely arising out of comparable provisions of New South Wales law that the Court of Criminal Appeal pointed out in R. v. Humphries (1971) 1 NSWLR 781 at 784, that it is an error to regard the Parole of Prisoners Act as 'a form of leniency'. It said: 'This provision can be more salutary and reformative than leaving the prisoner in the prison where he earns all his remissions and finishes his sentence completely free of any control whatsoever. If on parole he may be told where to live, how to behave, required to keep away from individual hotels, take and keep employment and so forth.' And it is to be observed that, in a sense, the sanction for non-observance of the conditions of a parole order increases in weight as the term of parole continues and the time of ending of the period of the main sentence approaches. Thus a non-observance of the parole conditions in the last year of a three year parole period may well result in the imprisonment of the prisoner for three years during a period extending for two years or more after the prescribed period of the main sentence has expired. And it is a valid observation that the period of conditional freedom on parole is essentially a period of punishment and no light burden to a person attempting to regain a position as a citizen.

It can be seen, therefore, that release on parole is not wholly a privilege to the prisoner. It is an alternative form of punishment involving many restrictions upon and imposing duties on the prisoner, not relieving him of the risk that his total period of imprisonment will yet have to be served, and possibly at a time quite remote from the commission of his crime and extending well after the expiration of the period of the main sentence. It is true that the risk will materialize only upon some fault on his part. That fault may be a breach of some living, reporting, working or other condition of his parole. It may be the commission of an offence.

If the former, return to prison to complete a sentence might seem a heavy sanction. A harsh situation could well be avoided by humane administration of the Parole Ordinance, but according to circumstances, the possibility of having to serve the balance of the sentence may be real. If a new offence is involved he will no doubt have to suffer punishment in respect of that offence, which will be in addition to the balance of that unserved in respect of the old.

It is a serious matter that a prisoner who has served three years in prison and two years satisfactorily on parole should still be subject to this risk of serving imprisonment for another three years."

The considerations just referred to make it plain, in my opinion, that when a young man whose record, even though bad, does not indicate incorrigibility is properly sentenced to a lengthy term of imprisonment, the community's interest may well demand that he continue under the supervision of the Parole Board after his release from detention. Such supervision is a salutary check on his behaviour which would normally operate to the end of his sentence and hence for a considerable period beyond the date when, assuming usual remissions, he would be released from prison, free of all supervisory constraints.

The relevant legislative provisions, the probable number of days remission ordinarily applicable in the appellant's case (given the near certainty of the revocation of his New South Wales parole), the fact that he had previously earned 78 days additional remission and might well have been expected to earn more and the effect of Smith v. Corrective Services Commissioner of New South Wales (supra) do not seem to have been brought to the attention of the learned sentencing Judge. If they had the not inconsiderable yet not great difference between the date of the appellant's release on parole, granted the obviously lengthy non-parole period which he would have fixed, and the date of the appellant's probable release taking all remissions into account would have been apparent. Had that difference been balanced against the benefits to the community and the appellant which supervision under parole might reasonably be expected to provide, I am satisfied that his Honour would have fixed a non-parole period of three and a half to four years. By not doing so he fell into that type of error which, in my opinion, warrants interference by this Court.

I respectfully join in the comments made by Woodward and Neaves JJ on Rich and Bourke v. The Queen (unreported; 7 September 1981) and Bain v. The Queen (unreported; 27 May 1983). However, I would direct attention particularly to that passage in Bain in which Muirhead, Toohey and Jenkinson JJ referred to Rich and Bourke and said that the principles quoted were particularly applicable "where the appellant has no previous convictions and the offences were in large part the result of his heroin addiction". I do not think that that statement was intended to encourage potential offenders to believe that an addiction to heroin offers any excuse for a crime committed under its influence. When it comes to punishment, however, that addiction may be taken into account along with all the other circumstances to be considered properly by a sentencing court.

In the result, I agree with the orders proposed by Woodward and Neaves JJ. In doing so I have taken into account, as did the learned sentencing Judge, the prevalence of the offence of armed robbery in the relatively small community of the Australian Capital Territory.