Robert Clive Watts v The Queen

[1985] FCA 302

Re: ROBERT CLIVE WATTS
And: THE QUEEN
No. ACT G346 of 1984
Criminal Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
McGregor J.
Lockhart J.
Kelly J.

CATCHWORDS

Criminal law - appeal from sentence - whether sentencing Judge erred in having regard to remissions of the non-parole period to which the appellant may become entitled under the Probation and Parole Act 1983 (N.S.W.) and regulations thereunder (if applicable to the A.C.T.)

Probation and Parole Act 1983 (N.S.W.)

HEARING

CANBERRA
#DATE 27:3:1985

ORDER

1. The appeal be allowed.

2. The sentence of three years imprisonment with hard labour be confirmed.

3. There be substituted a non-parole period of ten months for the non-parole period of fifteen months fixed by the Supreme Court of the Australian Capital Territory.
   
   NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

ROBERT CLIVE WATTS (appellant) has appealed against a sentence imposed upon him by a Judge of the Supreme Court of the Australian Capital Territory on 6 December 1984 in respect of an offence, shortly put, that between 22 October 1980 and 30 March 1982 in this Territory, he did fraudulently convert to his own use certain property, viz. monies to the total value of $2,262.50.

It appears that the appellant was arraigned on this charge on 3 December 1984 and pleaded not guilty. On the third day of his trial he changed his plea to guilty.

His Honour imposed on the appellant a sentence of three years' imprisonment with hard labour. Having regard to the matters which he referred to in his Reasons for sentence he fixed a non-parole period of 15 months.

In this appeal there is no argument offered to suggest that the head sentence is other than a correct assessment of an appropriate penalty. However, the point at issue is in respect of the non-parole period. It has been submitted on behalf of the appellant that his Honour arrived at the period of 15 months by reason of his view as to the effect of legislation including the Probation and Parole Act 1983 (N.S.W.) and the Probation and Parole Regulations 1984 (N.S.W.). This legislation, it is said, governed the regulation and control of prisons in and for the State of New South Wales and the custody of prisoners there detained. Since this Territory has no prison, the Commonwealth, in reliance upon s. 120 of the Constitution, has required the State of New South Wales to accept into its prisons persons convicted and sentenced in this Territory of offences against the provisions of criminal legislation here. By reason of legislative provisions including those referred to above, which are set out in some detail in a decision of Paivinen v. The Queen given by a Full Court of this Court on 6 February 1985 (unreported), it would appear that a non-parole period which is imposed by a Judge of the Supreme Court of the Australian Capital Territory in passing sentence will be affected by New South Wales legislation, such legislation operating upon the period which the Judge of the Supreme Court has fixed.

As I have followed the argument it is common ground or not contested that the trial Judge would himself have imposed a non-parole period of ten months except for the view he had as to the effect on that period of remissions to be available in New South Wales pursuant to the legislation to which I have referred.

His Honour's approach in this regard has not been accepted by the Full Court of this Court in the decision of Paivinen, to which I have earlier referred. Speaking for myself, I regard it as unfortunate that a judge of the Supreme Court of the Australian Capital Territory who gives attention to evidence, including evidence of an accused person, may not fix a non-parole period which he may then expect to be implemented. However, it is, in my view, inappropriate that this Court should in this appeal add to the debate on the matter. The judgment of the Full Court in Paivinen, should, I consider, be followed and implemented by the Federal Court resolving the same point unless and until the Paivinen decision is overruled. We are told that that case will be the subject of an application for special leave to appeal to the High Court in April 1985. The parties before us today have not requested that we should await the resolution of that application by the High Court. In my view, as it is before us, we should proceed to deal with this matter.

Accordingly, to give effect to the Paivinen judgment, in my view, we should uphold the appeal so far as it refers to the period of 15 months' non-parole period, substituting therefor a period of ten months. In that regard it follows the appeal should be upheld.

The Orders I propose are -

1. The appeal be upheld.
2. The sentence of three years' imprisonment with hard labour be confirmed.
3. For the non-parole period of fifteen months there be substituted a non-parole period of ten months.

JUDGE2

This appeal was brought on two grounds which are really one, namely, that, in sentencing the appellant, the learned sentencing Judge erred in law in having regard to remissions of the non-parole period to which the appellant may become entitled under the Probation and Parole Act 1983 (N.S.W.) and the regulations made under that Act.

The appellant was a police officer in the police force of the Australian Capital Territory and, later, of the Australian Federal Police. In the course of his duties he was required to receive from persons, in respect of whom warrants had been issued, payments of sums of money in order to acquit those warrants.

During his trial the appellant pleaded guilty to the charge that he fraudulently converted to his own use property of the Commonwealth, namely, moneys to the value of $2,262.50 received by him in the course of his duties. The appellant has no previous convictions. He is married with two children.

The sentencing Judge considered that there was a probability of the appellant's rehabilitation and fixed a shorter non-parole period than he otherwise would have fixed. It seems clear to me, and the contrary was not suggested by counsel for the Crown, that his Honour determined the non-parole period by adding to the period which he otherwise would have fixed a further period which he thought would counteract the effect of regulation 18 of the Probation and Parole Regulations 1984 (N.S.W.). Regulation 18 was made pursuant to s. 25 of the Probation and Parole Act 1983 (N.S.W.) which states:

"s. 25 In this Division, and in any parole order a reference to a non-parole period in relation to a prisoner is a reference to the non-parole period reduced by the period, if any, by which the non-parole period is required to be reduced in relation to the prisoner by or in accordance with the regulations."

The question in this appeal is whether the sentencing Judge was correct in making the upward adjustment to which I have referred. This question was considered by a Full Court of this Court, differently constituted in Paivinen v. R; also an appeal from sentences imposed by the Supreme Court of the Australian Capital Territory. The Full Court gave judgment on 6 February 1985 and held by a majority (Bowen C.J. and Fox J.; Blackburn J. dissenting) that it is impermissible for a sentencing Judge in the Australian Capital Territory to increase the non-parole period by reason of the entitlement to remissions.

A similar result was arrived at in relation to corresponding, although not identical, provisions in South Australia by the Court of Criminal Appeal in R. v. Brennan (1984) 36 S.A.S.R. 78, by the Court of Criminal Appeal in New South Wales in R. v. O'Brien (1984) 2 N.S.W.L.R. 449 and by the Victorian Court of Criminal Appeal sitting a bench of five judges in R. v. Yates (1985) V.R. 41.

Application for special leave to appeal from the judgment of the Full Court of this Court in Paivinen has been filed with the High Court and we have been informed that it is listed for hearing next month. However, the parties to this appeal are entitled to have the appeal determined by this Court, notwithstanding the pending application for special leave to appeal to the High Court in the Paivinen Case. In my opinion, the appropriate course for this Court to take is to follow Paivinen. It follows that the appeal must be allowed.

This leaves for our consideration the length of the non-parole period fixed by the sentencing Judge.

In view of my conclusion that this Court should follow Paivinen it follows that it is not permissible for a sentencing Judge in fixing a non-parole period to adjust it upwards in order to counter the effect of the Probation and Parole Act 1983 (N.S.W.) and regulations. Consequently this Court must interfere with the exercise of the sentencing Judge's discretion in order to fix what, in this Court's view, is an appropriate non-parole period, applying the principles approved in Paivinen.

It was submitted by counsel for the appellant that the non-parole period should be reduced to ten months. He submitted that this was the period the sentencing Judge would have imposed but for the view he took of the effect of the availability of remissions in New South Wales. This submission was not challenged by counsel for the Crown. I consider that the submission is correct and that the proper non-parole period to be fixed in this case is ten months.

I would allow the appeal, confirm the head sentence and order that the non-parole period ordered by the sentencing Judge be set aside and in lieu thereof that the appellant should serve a non-parole period of ten months.

JUDGE3

I agree that the appeal should be allowed. I agree in the orders proposed by his Honour the learned presiding Judge and with his reasons. I agree also with the reasons of Lockhart J.