Robert Crea v R
[2011] VSC 29
•18 February 2011
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 138 of 2010
| ROBERT CREA (AKA ROBERT CAMILLERI) |
| V |
| THE QUEEN |
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JUDGE: | LASRY J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 December 2010 | |
DATE OF RULING: | 18 February 2011 | |
CASE MAY BE CITED AS: | Robert Crea v R. | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 29 | |
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CRIMINAL LAW – Application for the fixing of a non-parole period – Application pursuant to s 28(8) of the Prisoners (Interstate Transfer) Act 1983 – Circumstances in which non-parole period may be imposed
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr G Hughan | Galbally & O’Bryan |
| For the Respondent | Mr D Brown | Office of Public Prosecutions |
HIS HONOUR:
This is an application pursuant to section 28(8) of the Prisoners (Interstate Transfer) Act 1983 (Vic) for the fixing of a non-parole period in relation to a sentence that was imposed on the applicant in Western Australia by Blaxell J. Prior to 1983 Victoria and other States as well as the Commonwealth, came to an agreement on a uniform system for the transfer of prisoners nationally. The result in each State is a Prisoners (Interstate Transfer) Act and the Victorian Act was passed in 1983. The purpose of the Acts was described by Hope JA in Bermingham v Corrective Services Commission[1] where he said:
The obvious purpose of all these Acts, and in particular of the New South Wales Act, is to make provision for the transfer of prisoners from one participating State to another State, and it does so on terms that they are neither advantaged or disadvantaged by such a transfer. The legislation contemplates the existence of head sentences and minimum terms— and a non-parole period is to be regarded as a minimum term for this purpose: Abdi v Release on Licence Board (1987) 10 NSWLR 294; and its clear purpose is that transferred prisoners will stand in the same position after transfer as they stood before transfer in respect of both sentences and minimum term.
[1](1988) 15 NSWLR 292, 298.
However, since that observation the Victorian Act has been amended to include section 28(8) which may be inconsistent to an extent with His Honour’s general description of that purpose. I will return to this issue.
The circumstances of this case are as follows. On 2 October 2008, the applicant was sentenced in the Supreme Court of Western Australia after he pleaded guilty to armed robbery under the name of Robert Camilleri. The armed robbery occurred on Saturday 31 May 2008 at a Caltex service station in the suburb of Carine and involved the use by the applicant of a 30 centimetre knife and clothing to conceal his identity and yielded him $750 in cash. CCTV footage recorded the offence. Unusually, after he had left the scene, the applicant was pursued by one of the service station attendants who confronted him and demanded some of the money back. The applicant gave back to the attendant some $280.00 of the $750.00 he had stolen.
On the applicant’s arrest on 18 June 2008 he admitted the offence. In addition, he has a long list of prior convictions for armed robbery in Victoria, Western Australia and Queensland. I will return to this matter. Of significance to Blaxell J as the sentencing judge was the fact that this offence was committed two and half weeks after the applicant’s release on parole for an earlier set of offences. Those sentences have been served, the completion of which occurred on 28 April 2010.
Blaxell J sentenced the applicant to be imprisoned for three years and nine months which means that his present release date is in June 2012. Pursuant to section 89 (4) of the Western Australian Sentencing Act 1995 (WA) (which, by an emphasis different from Victorian sentencing legislation, identifies circumstances in which a court may determine not to fix a period to be served before eligibility for parole) his Honour declined to fix any minimum term to be served before eligibility for parole. He reached that conclusion because the applicant has a significant criminal record, the offence was serious and the offence was committed whilst the applicant was on parole. His Honour ordered that the sentence he imposed be concurrent with the sentence the applicant was required to serve as the remainder of his head sentence on having breached his parole. Bearing in mind the circumstances that confronted his Honour, the sentence he imposed was unsurprising and consistent with the circumstances at the time and the law in Western Australia.
Blaxell J noted that the applicant was from Victoria where he had some family support. The applicant was described as being “somewhat isolated” in Western Australia. The commission of the offence was also explained by the applicant on the basis that he had difficulty adjusting to parole in Western Australia because he had lost his employment, any stable accommodation and he had no community or family support. Further, he was suffering financial hardship and had not been able to obtain medication to treat his bi-polar disorder.
On 29 October 2009, the applicant was transferred to Victoria and into the custody of Corrections Victoria. As a result of that transfer, the sentence imposed by Blaxell J in the Supreme Court of Western Australia is deemed to be a sentence imposed by this Court pursuant to s 27(1) of the Prisoners (Interstate Transfer) Act 1983 (Vic) (“the Act”). The sentence became what is defined in section 4 of the Act as a “translated sentence”.
As I said earlier, this application is expressed to have been brought based on s 28(8) of the Act which provides:
A non-parole period in respect of a person subject to a translated sentence may be fixed, extended or reduced by the appropriate Victorian court on the application of the person subject to the sentence or the Crown.
The applicant has applied to this Court to impose a non-parole period on his sentence, which would allow him the opportunity to be considered for parole prior to being released in June 2012. Mr Hughan, counsel for the applicant, submitted that the purpose of this application is to ensure that, upon the applicant’s release, there will be some level of supervision by way of parole conditions.
Mr Hughan submitted that a non-parole period should be imposed on the basis that:
(a)as a result of the applicant’s transfer to Victoria, the applicant’s sentence is now deemed to be a sentence of the Victorian Supreme Court;
(b)had the applicant been sentenced in Victoria, a non-parole period would have been imposed at that time; and
(c)it is appropriate to impose a non-parole period given the benefits to the community and to the applicant following his release as a result of the additional supervision of parole conditions, including regular contact with a designated parole officer.
Mr Brown, for the respondent, submitted that this Court does not have the jurisdiction to impose a non‑parole period. The primary basis for that submission is that if I were to make such an order it would effectively be the result of an appeal‑like process or review of the original sentence imposed in Western Australia and that would be contrary to s 28(3) of the Act.[2]
[2]See R v Cook [1996] 2 VR 658.
The first question I must determine is whether, under the Act, this Court has the jurisdiction that the applicant asserts it has. If I determine that I have the jurisdiction, then there is a second and separate question of whether, based on the circumstances of this case I should make such an order and fix a period as sought.
The Prisoners (Interstate Transfer) Act 1983 (Vic)
The initial step is an analysis of the relevant provisions of the Act. The Act is the Victorian version of legislation also in existence in other Australian states, to facilitate the interstate transfer of prisoners. Section 10A sets out the considerations that a Minister must take into account in either approving a transfer of a prisoner from Victoria to another state or, pursuant to section 10, dealing with a request for transfer back to Victoria as was the case with this applicant. Section 10A provides:
In forming an opinion or exercising a discretion under this Part, the Minister may have regard to any one or more of the following—
(a)the welfare of the prisoner concerned;
(b)the administration of justice in this or any other State;
(c)the security and good order of any prison in this or any other State;
(d)the safe custody of the prisoner;
(e)the protection of the community in this or any other State;
(f) any other matter the Minister considers relevant.
The parts of the Act relied on in this application come within Part V of the Act – “Effect of Order of Transfer”. Dealing with transfers to Victoria and deeming the sentence to have been imposed in Victoria, s 27 provides:
(1)Where under an interstate law an order is issued for the transfer to Victoria of a person imprisoned in a participating State and the person is brought into Victoria pursuant to the order, then from the time the person arrives in Victoria—
(a)any State sentence of imprisonment (as defined in the interstate law of the participating State) imposed on the person by a court of the participating State and any sentence of imprisonment deemed by the provision of an interstate law that corresponds to this section to have been imposed by a court of the participating State shall be deemed to have been imposed on the person; and
(b)any direction or order given or made by a court of the participating State with respect to when any such State sentence of imprisonment shall commence shall, so far as practicable, be deemed to have been given or made—
by a corresponding court of Victoria and, except as otherwise provided in this Act, shall be given effect to in Victoria, and the laws of Victoria shall apply, as if such a court had had power to impose the sentence and give or make the direction or order, if any, and did in fact impose the sentence and give or make the direction or order, if any.
This sentence, in all its detail, is therefore to be regarded as a sentence imposed by this Court including the decision not to impose a non-parole period.
For the respondent, Mr Brown submitted that this provision requires the Supreme Court of Victoria to give effect to the sentence imposed by the Supreme Court of Western Australia in its original terms, including by not imposing a non-parole period where no such condition was originally imposed pursuant to the Sentencing Act 1995 (WA).
As I noted earlier, s 27(1) of the Act provides that where a person imprisoned in another State is transferred to serve the remainder of their sentence in Victoria, the sentence imposed by a court of that “participating State”, in this case Western Australia, shall be deemed to be imposed by a corresponding Victorian court, in this case the Supreme Court of Victoria.
Section 28 of the Act is central to this application. Section 28(1) deals specifically with non-parole periods in the following terms:
Where under a law of a participating State there has been fixed by a court in respect of a translated sentence a non-parole period (being a shorter period than the translated sentence), during which non-parole period the person subject to the sentence is not eligible to be released on parole, then, except as otherwise provided in this Act, that non-parole period shall be deemed likewise to have been fixed by the corresponding court of Victoria.
For the respondent, Mr Brown argued that under this section if a non-parole period is deemed to have been fixed by a Victorian court then it cannot be the position that some time after a transfer, a Trial Division judge in this Court could review the length of that period under section 28(8) of the Act. I will return to deal with this submission shortly.
The remaining two sub-sections of s 28 that are important to this application are, first, s 28(3) which provides that:
Nothing in this Act operates to permit in Victoria any appeal against or review of any conviction, judgment, sentence or non-parole period made, imposed or fixed in relation to a person by a court of a participating State.
Next is s 28(8) on which this application relies and which provides that:
A non-parole period in respect of a person subject to a translated sentence may be fixed, extended or reduced by the appropriate Victorian court on the application of the person subject to the sentence or the Crown.
On the face of it, s 28(8) appears to permit either the Crown or the person serving the translated sentence to apply to, among other things, fix a non-parole period. The section appears to mean that if the translated sentence has not included a non-parole period, one can be fixed. If it does include a non-parole period, then that period may be extended or reduced. A question in this case is whether that step could be taken in this case without infringing s 28(3). In my opinion it can. Section 28(3) only comes into effect if the correctness of the original sentence is in some way in issue.
The question was dealt with to an extent by the Victorian Court of Appeal in R v Cook.[3] That case also involved a sentence imposed in Western Australia. Cook was serving a sentence of 6 years and 7 months in Western Australia when he was transferred back to Victoria on the application of the Victorian Attorney General to be dealt with for a culpable driving offence that he had committed in this State. In relation to the Western Australian sentence, pursuant to the relevant legislation, it was directed in that State that he not be eligible for parole on any of those sentences.
[3][1996] 2 VR 658.
Later, when being sentenced in Victoria by the trial judge dealing with the culpable driving matter, the judge had misapprehended the likely date of Cook’s release and thus made the sentence he was imposing cumulative upon that translated sentence. The difficulty was that because Cook was no longer serving his sentence in Western Australia he lost the benefit of remissions for which he would have been eligible had he remained in that State. In the Victorian Court of Appeal, it was submitted on his behalf that, in fact, that result meant that the culpable driving sentence in Victoria should have been wholly concurrent with the translated sentence. The Court of Appeal agreed to an extent, making all but 7 months of the sentence of 3 years with a minimum of 2 years, concurrent with the translated sentence.
Thus the argument in Cook was not whether the Court of Appeal should fix a minimum term for the translated sentence but rather the means by which he should gain at least some of the benefit of remissions lost by virtue of his transfer to Victoria. It was in that context that context that the Court (per Winneke P., Callaway JA and Hampel AJA) said:
A non-parole period could not be fixed in respect of the Western Australian sentence because the Western Australian courts have directed that there is to be no parole in relation to what have become the translated sentences. No Victorian court is entitled to modify that express direction of the Western Australian court, or, indeed, to alter its effect. We refer to s 28(3) of the Prisoners (Interstate Transfer) Act of 1983. Because we believe that that is the clear effect of that section, we need not stay to consider the true meaning of s28(8) of the same Act.[4]
[4]R v Cook [1996] 2 VR 658, 661.
For the benefit of making the decision I must make in this case it is unfortunate that the Court of Appeal did not “stay to consider” section 28(8). The Crown Prosecutor, Mr Brown, relies on this passage in opposing the application. He submitted that their Honours’ language was clear as to section 28(3) and therefore it would not be open for me to fix a non-parole period in this application. Mr Hughan, for the applicant, submitted that, first, this was an ex tempore judgment and, second, the Court’s observations about imposing a non-parole period are obiter dictum and were not the subject of any careful analysis. I will return to state my conclusion about the effect of Cook shortly.
On the basis, if accepted, that the decision in Cook in relation to section 28(3) would prevent an application such as the present one succeeding, the question remains: in what circumstances may section 28(8) be given effect?
In endeavouring to answer that question, it was submitted on behalf of the applicant that s 28(8) of the Act is a legislative response to the judgment of Gray J at first instance, and the Full Court on appeal (per Young CJ, McGarvie & Ormiston JJ), in Porter v R[5]. As I understand it, Mr Brown for the respondent agrees with that proposition. Having been sentenced to life imprisonment for murder in Queensland in 1981, Porter was transferred to Victoria in 1985 under the Act as it then stood. Section 28(8) of the Act had not been enacted.
[5][1990] VR 897.
After commencing to serve his life sentence in a Victorian prison, Porter made an application under s 18A of the Penalties and Sentences Act 1985 which permitted this Court to fix a minimum term in cases where an accused had been sentenced to either death with the sentence later commuted to life imprisonment, or life imprisonment, for murder. In Porter’s application, there was a debate before Gray J of the kind that had occurred before me. The Crown contended that there was no statutory warrant for the fixing of a minimum term under the Act as it stood and his Honour, and later the Full Court, agreed.
Gray J said, in relation to the Act as it then stood:
To construe the Act as giving a court of the transferee State judicial power to interfere with the original sentence would require the clearest language. As I have said, no such language is to be found in the Prisoners (Interstate Transfer) Act.
I do not consider that this court has any power to make the order sought.[6]
The Full Court adopted his Honour’s approach.
[6]Porter v R [1990] VR 897, 900.
Section 28(8) of the Act was one of a number of amendments inserted by Corrections (Prison Management and Prisoners) Act 1991 that came into effect on 1 October 1991. It is to be noted that in his submissions, Mr Brown argued that the policy of the Act was that, apart from the familial and other benefits of transfer, a prisoner should not be better off as a result of the transfer. In other words less time in custody is not the intended consequence. However if section 28(8) is a legislative response to the decision of this Court in Porter and if Porter were now being decided a non parole period would have been fixed, then Porter would have been better off for his transfer as a result of the intention of the Victorian Parliament.
On one view however, the significant difference between Porter – in which situation s 28(8) would now empower this Court to fix a minimum term – and this case, is as follows. In Porter the Queensland Supreme Court, imposing the life sentence it did, had no discretion but to do so under the Queensland Criminal Code. It was not open to the judge to impose other than life imprisonment or to fix a minimum term. In the case before me, the option to fix a minimum term was open but, as I have noted, the sentencing judge determined not to, pursuant to the Western Australian Sentencing Act.
In endeavouring to rationalise the co-existence of s 28(3) and s 28(8) of the Act, it might therefore be argued that s 28(8) will only be brought into effect in circumstances where the discretion which a judge in my position is being asked to exercise was not open to the original sentencing judge as, for example, in Porter. However, s 28(8) is not only concerned with the fixing of a non-parole period. It also provides for extensions or reductions of such periods which, in my opinion, means that even where the issue has been raised before a sentencing judge in another State and determined adversely to the prisoner, a translated sentence may still be varied in those respects under s 28(8) when the prisoner has been transferred to Victoria.
In addition, I am of the view that s 28(3) of the Act is not an obstacle, given that interpretation. That section prevents an appeal or review of the sentence imposed in Western Australia. But if I were to now a fix a non-parole period in respect of this application before me, it would be no more than that. It would not represent an appeal or review of the original sentence but rather an application of my discretion under s 28(8) to the facts as they presently stand and the law in Victoria.
In relation to the judgment of the Court of Appeal in Cook, I agree with Mr Hughan that what is said by their Honours about the fixing of non-parole periods is obiter. The issue before me was not determined by the Court. With the greatest of respect to their Honours, it is simply not correct that no Victorian Court is entitled to modify the effect of the original sentence. If that were true then there could no role for s 28(8) of the Act as it is formulated.
To some extent I am fortified in my view by the recent judgment of the High Court in Bakewell v The Queen[7] though a quite different issue was being decided. In that case Bakewell was found guilty of murder in the Northern Territory and sentenced to life imprisonment. Life imprisonment was mandatory and no minimum term could be fixed.
[7][2009] HCA 24.
Fifteen years later the Northern Territory Sentencing Act was amended by the Sentencing (Crime of Murder) and Parole Reform Act 2003 (NT) (“the Reform Act”) to permit the fixing of a minimum term and it statutorily presumed a minimum term of 20 years for sentences such as Bakewell’s. Provision was also made in the Reform Act for the Director of Public Prosecutions to apply to the Supreme Court to revoke the non-parole period or apply for a longer non-parole period. Eight months before Bakewell’s non-parole period of 20 years was due to expire, the Director applied for revocation of that period and sought the fixing of a 25 year non-parole period. The judge hearing the application considered he was bound to fix such a period but His Honour’s judgment was followed by a successful appeal to the Court of Criminal Appeal which found that the judge was not bound and had a discretion in the matter.
In 2008, pursuant to an amending Act,[8] the Director made a second application for revocation and extension, by which time the respondent Bakewell had been transferred to South Australia pursuant to the South Australian and Northern Territory Prisoners (Interstate Transfer) Acts. Questions were referred for the consideration of the Full Court of the Supreme Court of the Northern Territory which were then subject of appeal to the High Court.
[8]Sentencing (Crime of Murder) and Parole Reform Amendment Act 2008 (NT).
The “determinative question” in the opinion of the High Court was whether the Supreme Court of the Northern Territory could revoke a non-parole period after the prisoner had been transferred to South Australia under the Prisoners (Interstate Transfer) Act NT.
The High Court concluded that section 19 of the Reform Act which permitted applications to be made to revoke and lengthen the non-parole periods did not apply to Bakewell as he was, in all respects, a South Australian prisoner and, therefore, no order fixing a new non-parole period could be made by the Supreme Court of the Northern Territory. As a result of the Transfer Acts of both the Northern Territory and South Australia, the High Court concluded that from the time Bakewell arrived in South Australia the original sentences imposed on him ceased to have effect in the Northern Territory. His head sentence was deemed to have been imposed by the Supreme Court of South Australia and the 20 year non-parole period was deemed to have been fixed by that same Court.
In the course of the judgment, the Court considered section 28(7) of the South Australian Transfer Act which is identical in its terms to section 28(8) of the Victorian Act. The High Court considered this section for the purpose of concluding that the kind of application being pursued by the Northern Territory Director was not within the contemplation of the section. The Court noted that the “custodial disposition of a prisoner who has been transferred is thereafter committed to the receiving jurisdiction.”[9] Their Honours observed that “once the sentence has been set it is that sentence which will be served in the receiving jurisdiction.”[10]
[9]At para [28] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel & Bell JJ.
[10]Ibid.
If a sentence is indeterminate and involving detention at Her Majesty’s pleasure or that of a Governor of a transferring jurisdiction, it is the “institutions” of the receiving jurisdiction that will determine the prisoner’s release. Further the prerogative of mercy of the receiving jurisdiction may be exercised.[11] The Court then referred to section 28(7) of the South Australian Act and said:
The construction and application of s 28(7) in particular circumstances has been understood as presenting some difficult questions. It is not necessary to examine those questions in this matter. It is enough to observe that s 28(7) is consistent with curial decisions of issues about eligibility for parole subsequent to the final determination of sentence by the courts of the transferring jurisdiction being confided to the courts of South Australia. As was said in the Second Reading Speech for the Bill by which s 28(7) was introduced into the SA Transfer Act, the purpose of the provision was to place a prisoner transferred from interstate in the same position as a South Australian prisoner in relation to the fixing, extending or reducing of a non-parole period. In this respect, s 28(7) is consistent with the other provisions of s 28 that have been mentioned. And neither s 28(7) nor any of the other provisions of s 28 is consistent with giving the reference in either Act to review of a sentence a meaning that encompasses the proceedings instituted by the Director under s 19 of the 2003 Reform Act. [12] (emphasis added, citations omitted).
[11]The equivalents of ss 28(4) and 28(5) of the Victorian Act.
[12]Bakewell v R [2009] HCA 24, [30]-[32] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel & Bell JJ.
At some stage the “difficult questions” of construction and application of the section may need to be dealt with at an appellate level. The issues were not decided by the Court of Appeal in Cook and the High Court did not feel the need to deal with them in Bakewell. In a footnote to the passage I have just quoted from Bakewell, and with particular reference to the “difficult questions”, mention was made of the judgment of the South Australian Court of Criminal Appeal in Romeo[13]. In that case the South Australian Court of Criminal Appeal sanctioned the use of section 28(7) of the South Australian Transfer Act to extend the non-parole period of a translated sentence to the disadvantage of the prisoner in what could only be described as unusual circumstances. Whilst on the face of it, that judgment lends some support for the view I have taken in this case (albeit with a different result), the better view may be that the reasoning of the Court is substantially confined to the facts of that case.
[13](1996) 89 A Crim R 149.
In his judgment Nyland J[14] said the wording of section 28(7) was “curious”[15] but concluded it was a section drafted in wide terms to deal with anything that could not be dealt with under section 32(3) of the South Australian Criminal Law (Sentencing) Act which dealt with the fixing of minimum terms. The trial judge’s review and extension of the non-parole period was found to be valid.
[14]With whom Doyle CJ and Prior J agreed.
[15]Romeo (1996) 89 A Crim R 149, 152.
In my opinion, the plain meaning of section 28(8) of the Act is that a person in the position of the applicant is entitled to make the application he has made and this Court does have jurisdiction to entertain it. This is not a re-consideration, review or re-examination of the sentence imposed by Blaxell J such as to infringe section 28(3) of the Act. No submission was made to me that Blaxell J was in some way in error in imposing the sentence that he did.
Exercising the discretion to set a non-parole period
Having determined that it is open to me to fix a non parole period, the next question to be answered is whether I should do so. In support of doing so, Mr Hughan for the applicant relied on several factors. First, the provisions affecting the fixing of non-parole periods in Victoria and Western Australia are different. Second, the difference in personal circumstances of the applicant when sentenced as opposed to his present position. Third, there is a benefit to the community in a period of parole for the applicant where he is both supported and supervised before he is left to his own devices.
Different sentencing regimes
Mr Hughan submitted that the different emphasis in the Western Australian and Victorian sentencing regimes on imposing a non-parole period is a key difference that I should consider in determining whether to impose a non-parole period under the Act.
He set out the four factors in s 89(4) of the Sentencing Act 1995 (WA) that provide a wide judicial discretion in imposing a non-parole period in that State, and submitted that the difference in approach to sentencing warrants setting a non-parole period where none was initially imposed. Section 89(4) states that,
A court may decide not to make a parole eligibility order in respect of a fixed term imposed on an offender if the court considers that the offender should not be eligible for parole because of at least two of the following four factors:
(i)the offence is serious;
(ii)the offender has a significant criminal record;
(iii)the offender when released from custody under a release order made previously, did not comply with the order; and
(iv)any other reason the court considers relevant.
By comparison, s 11 of the Sentencing Act 1991 (Vic) states that if an offender is sentenced for the term of his or her natural life or a term of two years or more;
the court must, as part of the sentence, fix a period during which the offender is not eligible to be released on parole unless it considers that the nature of the offence or the past history of the offender make the fixing of such a period inappropriate [emphasis added].
Both parties to this application agreed that, had the applicant been sentenced in Victoria, a non‑parole period would have been fixed as part of that sentence. However that issue is not straightforward because an important reason why Blaxell J declined to fix a non-parole period was because this offence was committed whilst the applicant was on parole for the earlier offence. In the peculiar circumstances of this application, Mr Hughan concedes that in the exercise of any discretion that I might exercise, that is a relevant factor.
As I have earlier described, the applicant has a very bad record. In Victoria, from four court appearances, the applicant has convictions for the use of cannabis but, significantly in June 2004, convictions in the County Court for armed robbery and theft from a motor vehicle which resulted in almost three years imprisonment with a non-parole period of 12 months. In Queensland, in June 2002, he has convictions for robbery with violence and associated offences for which he was sentenced to five years with post-release eligibility after two years. In Western Australia, from separate court appearances, he has convictions in 2005 and 2008 for armed robbery. It was submitted by Mr Hughan that when released in May 2008 on parole for the last offences short of this one, the applicant was bereft of accommodation or any financial, emotional or medicinal support and so this offence occurred.
New context in support of a non-parole period
Mr Hughan submitted that the context in Western Australia in which the applicant’s sentence was imposed is entirely different to the situation that the applicant will be in upon release in Victoria. In particular, the applicant appears to have strong family support in Victoria, as set out in the affidavit sworn by his mother, Renate Maria Crea, on 8 December 2010.
In her affidavit, Mrs Crea said that the applicant has been invited to live with her and her husband on release, and that she and her husband support him despite his history of offending. If I were to grant this application and the applicant was released on parole, Mrs Crea has undertaken to contact the applicant’s parole officer or the police “if she was to notice any of Robert’s old habits re-surfacing”. The applicant’s parents have offered to provide him with a car and they have kept his licence current for him while he has been in prison. They have also told the applicant that they will support and assist him on an ongoing basis, on the condition that he continue his treatment and medication.
This support is important and is likely to be of great assistance to the applicant when he is released, whether that is on parole or upon his release at the conclusion of his sentence.
In addition, I was provided with a psychological evaluation of the applicant undertaken in November 2010 at Port Phillip Prison by Dr Simon Kennedy. It appears that the applicant has been provisionally diagnosed with bi-polar disorder and is apparently taking medication for that disorder. That condition is consequently stable. Dr Kennedy suggests that the risk of the applicant re-offending is reduced in Victoria because, among other things, his family would be able to assist in co-ordinating his psychiatric treatment and support him.
Conclusion
For the reasons set out above, I consider that this court does have jurisdiction to set a non-parole period in respect of this translated sentence and I do propose to fix such a period. I specifically indicate that my conclusion about whether to exercise the discretion, that I have concluded is open to me, to fix a non-parole period is based on the circumstances before me. Nothing about my reasoning represents any criticism or review of the decision by Blaxell J in Western Australia not to fix a minimum term when he sentenced the applicant in 2008. His Honour and I are in different regimes and I am at a different stage of the process so far as the applicant is concerned. I do not consider that giving effect to section 28(8) of the Act by applying the plain meaning of the section undermines the policy of the legislation as counsel for the respondent has submitted. Upon careful examination, sections 28(3) and 28(8) are compatible in the circumstances of this case.
The circumstances of the applicant now that he is in Victoria are significantly different from those he had to deal with in Western Australia. He has family support and assistance with his psychiatric disorder. For the period of his parole he will be under the supervision of the Parole Board and, as I am sure he understands, if he breaches his parole then there will be a very strong risk that he will be required to serve the balance of his sentence. The community have a significant interest in the rehabilitation of the applicant and, in my view, a period of parole will assist the achievement of that.
Therefore as a result of the differences in sentencing regimes, the changed personal circumstances of the applicant having been transferred to serve his sentence in Victoria and the desirability of aiding his rehabilitation, I will now fix a non‑parole period of three years. The intended result is that the applicant will be eligible to apply for parole in September of 2011.
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