Regina v Saba

[2001] NSWCCA 9

Reported Decision: 120 A Crim R 355

New South Wales

Court of Criminal Appeal

CITATION:	Regina v Saba [2001] NSWCCA 9
FILE NUMBER(S):	CCA 60112/99
HEARING DATE(S):	13 March 2000; 11 December 2000
JUDGMENT DATE:	22 February 2001
PARTIES :	Regina v James John Jamil Saba
JUDGMENT OF:	Simpson J at 1; Smart AJ at 2

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/51/0191
LOWER COURT JUDICIAL OFFICER :	Ducker DCJ

COUNSEL :	(A) Applicant in Person (C) C Maxwell QC
SOLICITORS:	(A) -- (C) S E O'Connor
CATCHWORDS:	Application of totality principle where accused dealt with in different States - Reduction of NSW sentence to give effect to Queensland practice.
LEGISLATION CITED:	Parole Orders (Transfer) Act 1983 (NSW) Parole Orders (Transfer) Act 1984 (Queensland) Queensland Corrective Services Act 1988 Corrective Services Act 1998 (Queensland)
CASES CITED:	R v Todd [1982] 2 NSWLR 517 at 519-520 Mili v The Queen (1988) 166 CLR 59
DECISION:	Correct sentence is fixed term of imprisonment of 2 years and 3 months in lieu of sentence comprising a minimum term of 3 years and 6 months and an additional term of 18 months. The reason for using a fixed term is because of the imprisonment to follow in Queensland.

IN THE COURT OF
CRIMINAL APPEAL


CCA 060112/99

SIMPSON J

SMART AJ

Thursday, 22 February 2001

REGINA v JAMES JOHN JAMIL SABA

JUDGMENT

1   SIMPSON J : I concurred in the orders made on 11 December 2000 and I concur in the reasons for those orders now given by Smart AJ.

2   SMART AJ: At the conclusion of the hearing on 11 December 2000 the Court granted Mr Saba leave to appeal against the sentences imposed by Judge Ducker in respect of counts 1, 3, 4, 5, 6, 9, 10, 11, 12, 13 and 15 (break, enter and steal) and count 2 (break and enter with intent to commit a felony (steal). The court ordered that the appeals be allowed on these counts and the sentences quashed. In lieu of the sentences imposed Mr Saba was sentenced on each of these counts to a fixed term of 2 years 3 months imprisonment to start on 17 September 1998 and to end on 16 December 2000. The reason for the fixed terms was that the balance of the earlier sentences imposed by Judge Kirkham was to be served in Queensland. The Court further ordered that in respect of counts 7 and 8 (receiving) and count 14 (possess housebreaking implements) on which sentences of fixed terms of one year commencing on 17 September 1998 were imposed, the appeals against sentence be dismissed. Reasons were to be given later. I now do so.

3   Mr Saba sought leave to appeal against the severity of the sentences imposed by Judge Ducker in respect of ten offences of break enter and steal, one of break and enter with intent to commit a felony (steal), two of receiving and one of possessing house breaking implements.

4   On each of the break enter and steal offences and that of break and enter with intent, he was sentenced to a minimum term of three years six months to start on 17 September 1998 and to expire on 16 March 2002, with an additional term of one year six months.

5   On each of the other offences he was sentenced to a fixed term of one year to commence on 17 September 1998 and to expire on 16 September 1999.

6 The difficulties in this case arise out of the transfer of the applicant to Queensland to serve the balance of his parole in respect of some earlier sentences imposed in New South Wales and the operation of the Parole Orders (Transfer) Act 1983 (NSW) and the Parole Orders (Transfer) Act 1984 (Qld). As a consequence the applicant is in jeopardy of having to serve much longer in prison than Judge Ducker intended.

7   At the time of the commission of the offences (13 August 1998 - 17 September 1998), the applicant was on parole. He had been released on parole on 27 March 1998 having been sentenced in respect of other offences in June 1994 by Judge Kirkham to a minimum term of four years expiring on 27 March 1998, and an additional term of three years. He was serving the additional term at the time of his arrest for the later offences on 17 September 1998.

8   This application for leave to appeal first came on for hearing on 13 March 2000. It was adjourned part heard until 17 March 2000 when the court delivered an interim judgment pointing out the questions of complexity and difficulty which arose. It noted that the applicant appeared to have a substantial case on the merits. The court suggested that the Legal Aid Commission might re-consider its decision to refuse legal aid. It did so but refused to grant legal aid acting on the advice of counsel from the Public Defender's Office that the application for leave to appeal against sentence had no reasonable prospects of success.

9   A salient feature of the sentencing proceedings was that the applicant was entitled to considerable leniency because the authorities would not have been able to prosecute many of the offences without his assistance. They would not have known who committed the offences.

10  Judge Ducker assessed the criminality of the applicant and all the circumstances and determined that a further total period in gaol of three and a half years (minimum term) and an additional term of one and a half years was the correct sentence. Judge Ducker envisaged that that sentence would subsume the outstanding parole period. Indeed, Judge Ducker said:

"I revoke his parole as from 17 September 1998. His balance of parole will therefore be subsumed in the present sentences."

11 Judge Ducker was told by the Public Defender who appeared for the applicant on his sentencing that the applicant's parole had been transferred from New South Wales to Queensland. The statement in para 7 of the interim judgment to the contrary is incorrect. However, the judge was told by counsel that he could revoke the applicant's New South Wales parole and it was suggested that his parole should be revoked as from 17 September 1998. The judge was not taken to the relevant legislation nor told that he could not revoke the applicant's parole. By virtue of s 10(1) of the Parole Orders (Transfer) Act 1983 (NSW), the parole order ceases to be in force in New South Wales as from the date of its registration in Queensland, on 3 September 1998. It follows that Judge Ducker had no power to revoke the parole order.

12   S 10 of the Parole Orders (Transfer) Act 1984 (Queensland) provides:


"(1) Subject to this section while a parole order...is registered under this Act, the laws of this State apply in relation to the parole order and the parolee.

(2) Where a parole order registered under this Act was made under a law of another State or of a Territory, subsection(1) has effect as if


(a) each sentence of imprisonment to which the parolee was subject immediately before the making of the parole order had been imposed by a court of competent jurisdiction of this State,

(b) each period of imprisonment served by the parolee for the purpose of such a sentence had been served for the purpose of a sentence imposed by a court of competent jurisdiction of this State, and

(c) the parole order had been validly made by the Queensland Community Corrections Board and was in force under the Corrective Services Act 1988."

13 Upon the applicant being sentenced, his parole was ipso facto cancelled. S 187 of the Queensland Corrective Services Act 1988 provides

"(1) where a prisoner who has been released on parole is sentenced to another term of imprisonment upon conviction for an offence committed in Queensland or elsewhere during the parole period, the prisoner's parole shall ipso facto be cancelled whether or not the parole period has expired."

14   S 190 (1) and (2) of the Queensland Corrective Services Act 1988 provide

"(1) upon cancellation of a prisoner's parole the original warrant of commitment or other authority for the imprisonment or detention shall again be in force and no part of the time between the prisoner's release on parole and the prisoner recommencing to serve the unexpired portion of the prisoner's term of imprisonment or detention other than the period (if any) during which the prisoner was kept in custody consequent upon the prisoner's parole being suspended, shall be regarded as time served in respect of that term.

(2) the Queensland Community Corrections Board may, where a prisoner's parole has been cancelled, by order direct that the prisoner serve such part only of the unexpired portion of the term of imprisonment or detention imposed on the prisoner as is specified in the order and where the prisoner has in accordance with any law applicable to the term of imprisonment or detention imposed on the prisoner served the part so specified, the prisoner shall be deemed to have served that term and shall be wholly discharged therefrom."

15  The Queensland Community Corrections Board has advised in its letter of 25 February 2000 to Mr Saba

"...there is a warrant by Board for apprehension still current in Queensland and it is the intention of the Board that you be extradited at the expiry of your New South Wales sentence to serve the balance of your parole order.”

The Board has power to issue such a warrant under s 188 of the Corrective Services Act 1998 (Queensland) '.

16  S 10(3) of the Parole Orders (Transfer) Act 1984 (Queensland) provides

"where a parole order registered under this Act is cancelled under the Offenders Probation and Parole Act 1980 or the Corrective Services Act 1988 the parolee shall be liable to serve a period of imprisonment equal to the period for which the parolee was liable on the date on which he or she was released on parole under the order to be imprisoned".

17  This complements the provision in s 190(1) of the Queensland Corrective Services Act 1988. As at that date of registration in Queensland the applicant had served portion of the additional term 27 March - 3 September 1998)

18   Both the New South Wales Department of Corrective Services and officers of the Queensland Community Corrections Board take the view that as the parole order has been cancelled and does not exist, and the applicant is in New South Wales, there is no way of transferring his matter and service of the additional term back to New South Wales.

19   After the hearing in Court on 17 March 2000 the Legal Aid Commission for New South Wales wrote to the Queensland Community Corrections Board. It received this reply of 19 May 2000 from the Board:

"It is the Board's view that any matter concerning the sentencing of Mr Saba in New South Wales and any parole period for the fresh charges is a matter for the New South Wales courts. The Board's position is clear and is set out in our letter of 25 February 2000 to Mr Saba is standard policy and the Board does not consider in the circumstances that it should depart from the position set out in that letter."

20   This is a case where there is a need to avoid a serious anomaly. One would arise if as a result of the transfer of the parole order to Queensland and the breach thereof, the applicant ended up spending more than three and a half years in gaol for his offences and breach of parole in New South Wales, subject to it being appropriate to release him on parole at the end of his minimum term.

21 The principle of totality applies where sentences are being served in different states. The court has to look at the overall period of imprisonment which a prisoner is likely to serve. This was recognised by Street CJ in R v Todd [1982] 2 NSWLR 517 AT 519-520. In Mill v The Queen (1988) 166 CLR 59 the High Court, after citing from the judgment of Street CJ, in Todd continued:

"The Chief Justice proceed to make it plain that the pre-existing sentence and the aggregate term which would result from the sentence passed by the second judge were relevant matters necessary to be taken into account by him in determining the head sentence…"

22   Mill was an appeal from the Queensland Court of Criminal Appeal.

23   Street CJ had stressed the need for flexibility of approach and observed that at times the sentence imposed by the second judge can require, because of the principle of totality what might otherwise be a quite undue degree of leniency.

24  In Todd at 521 Moffitt P said:

"The circumstances that one offence is committed in one State and another offence is committed in a different State should not deter the courts of this State, at least so far as administratively possible, from imposing a sentence or from participating in the imposition overall of sentences, including a minimum sentence, which would be imposed, if all the offences were dealt with by one court in this State. The criminality and the other elements which go to determine sentences do not depend upon which side of the border some of the offences are committed. In this case, accordingly, it is appropriate in particular to consider the overall non-parole period appropriate for the offences as a whole."

25 In Mill at 67 the High Court said:

"Without statutory authority, the only course open to the second sentencing court is to adopt a lower head sentence that reflects the long deferment that has taken place during which the offender has been in custody. It is true that the lower head sentence will fail to reflect adequately the seriousness of the crime in respect of which it is imposed. That is unfortunate. However, it is to be preferred to the injustice involved in the imposition of a longer head sentence because of the inadequacy of the law to cope satisfactorily with the intervention of State boundaries."

26   If Judge Ducker had had the power to revoke the parole order and give effect to what he intended no complaint could have been made about the course which he took and the sentences which he imposed. It is apparent that the Queensland Community Corrections Board proposes to require the applicant to serve a substantial part of his parole period of three years. When this is added to the period in custody ending on 27 March 1998, the sentences imposed by Judge Ducker, applying the principle of totality, are manifestly excessive. On the applicant completing his New South Wales sentences he will be extradited to Queensland to serve the balance of his parole period or at least a substantial part of it. It is for this reason that the Court reduced the sentences nces imposed by Judge Ducker

27  In all these circumstances the correct sentence is a fixed term of imprisonment of 2 years 3 months in lieu of the sentence comprising a minimum term of 3 years 6 months and an additional term of 18 months. The reason for using a fixed term is because of the imprisonment to follow in Queensland.

28  The Queensland Community Corrections Board may wish to consider whether in the light of the principle of totality it is fair for Mr Saba to remain in prison serving the balance of his parole period past 16 March 2002, subject to good conduct. The difficulties arising from the transfer of parole orders and State borders should not result in a person spending longer in prison and full weight not being given to the principle of totality. There is the further factor that in New South Wales in was and is the practice for the minimum term or non parole period overlap and subsume the additional term. As all the offences took place in New South Wales the Board may wish to take this factor into account.

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