The State of Western Australia v Seel
[2007] WASCA 271
•4 DECEMBER 2007
THE STATE OF WESTERN AUSTRALIA -v- SEEL [2007] WASCA 271
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASCA 271 | |
| THE COURT OF APPEAL (WA) | 10/12/2007 | ||
| Case No: | CACR:139/2007 | 4 DECEMBER 2007 | |
| Coram: | STEYTLER P PULLIN JA BEECH AJA | 3/12/07 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Orders of primary judge set aside | ||
| B | |||
| PDF Version |
| Parties: | THE STATE OF WESTERN AUSTRALIA KURT RUSSELL SEEL |
Catchwords: | Criminal law and procedure State application for extension of time in which to appeal Respondent sentenced to life imprisonment Amendment to legislation governing eligibility for parole before respondent sentenced Respondent correctly sentenced under amended legislation Correction made in error Substantial delay Prejudice to respondent |
Legislation: | Criminal Appeals Act 2004 (WA), s 31(5) Offenders Community Corrections Act 1963 (WA), s 34, s 40D Sentencing Act 1995 (WA), s 37 |
Case References: | Allpass (1993) 72 A Crim R 561 GAS v The Queen [2004] HCA 22; (2004) 217 CLR 198 R v Clarke [1996] 2 VR 520 The State of Western Australia v Houston [2005] WASCA 167 Thompson v The Queen [1999] WASCA 266 Williams v State of Western Australia [2007] WASCA 88 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : THE STATE OF WESTERN AUSTRALIA -v- SEEL [2007] WASCA 271 CORAM : STEYTLER P
- PULLIN JA
BEECH AJA
- Appellant
AND
KURT RUSSELL SEEL
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : MILLER J
File No : INS 71 of 1995
Catchwords:
Criminal law and procedure - State application for extension of time in which to appeal - Respondent sentenced to life imprisonment - Amendment to legislation
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governing eligibility for parole before respondent sentenced - Respondent correctly sentenced under amended legislation - Correction made in error - Substantial delay - Prejudice to respondent
Legislation:
Criminal Appeals Act 2004 (WA), s 31(5)
Offenders Community Corrections Act 1963 (WA), s 34, s 40D
Sentencing Act 1995 (WA), s 37
Result:
Appeal allowed
Orders of primary judge set aside
Category: B
Representation:
Counsel:
Appellant : Mr R E Cock QC & Mr L M Fox
Respondent : Ms B J Lonsdale
Solicitors:
Appellant : Director of Public Prosecutions (WA)
Respondent : Belinda Jane Lonsdale
Case(s) referred to in judgment(s):
Allpass (1993) 72 A Crim R 561
GAS v The Queen [2004] HCA 22; (2004) 217 CLR 198
R v Clarke [1996] 2 VR 520
The State of Western Australia v Houston [2005] WASCA 167
Thompson v The Queen [1999] WASCA 266
Williams v State of Western Australia [2007] WASCA 88
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1 STEYTLER P: On 8 November 1994 the respondent wilfully murdered Christopher Norvilas. He was convicted of the wilful murder on 27 September 1995. On 21 November 1995 he was sentenced to life imprisonment with a minimum term of 17 years' imprisonment before being eligible for parole. At the time of the commission of the offence the issue of parole eligibility was governed by s 34 of the Offenders Community Corrections Act 1963 (WA), to which I shall refer as the Community Corrections Act.
2 The effect of that Act, insofar as it is presently relevant, was that it prohibited a person who was sentenced to life imprisonment being released on parole for a period of at least 12 years. Although no parole eligibility order was made by the sentencing judge, the legislation required that there be a mandatory report in this respect after the expiration of a 12-year period and, if parole was not then granted, other reports would follow at three year intervals until such time (if at all) as parole was granted.
3 The Community Corrections Act was amended with effect from 20 January 1995 by the Criminal Law Amendment Act 1994 (WA). The amendments required that a court imposing life imprisonment for a wilful murder should set a parole eligibility date at the expiration of a period of between 15 and 19 years' imprisonment.
4 More than 10 years after he had been sentenced, the respondent brought an application under s 37 of the Sentencing Act 1995 (WA) to correct his sentence. Section 37(1) of that Act provides that:
If a court sentences an offender in a manner that is not in accordance with the Sentencing Act or the written law under which the offence is committed, the court may recall the order imposing the sentence and impose a sentence that is [in accordance with the act or with the other law].
5 That application was heard by Miller J. Submissions were made on behalf of the respondent to the effect that, because the offence had been committed prior to the operation of the 1994 amendments, the issue of parole should have been governed by the Community Corrections Act as it stood before those amendments took effect. The then counsel for the appellant agreed with that contention and consequently did not oppose the application. Not surprisingly, in those circumstances, Miller J allowed the application. He quashed the parole order that had originally been made and sentenced the appellant, in lieu, to life imprisonment without any order for eligibility for parole. He directed the Prisoners Review Board to
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- consider the respondent's entitlement to eligibility for parole pursuant to the provisions of s 34 of the Community Corrections Act prior to its amendment.
6 At the time of the hearing before Miller J neither party had seemingly noticed the provisions of s 40D(2)(f) of the Community Corrections Act, also introduced by the 1995 amendments. That section provided that the provisions introduced in the new parole regime applied in respect of a person irrespective of whether the offence was committed before, on or after the commencement of the 1994 Act. Consequently, the respondent was rightly sentenced under the new regime. That this is the clear effect of the amending provisions has been confirmed by this court in Williams v State of Western Australia [2007] WASCA 88.
7 All of this is common cause between the parties for the purposes of today's application, which is one brought by the State for leave to appeal against the decision of Miller J. The sole issue between the parties is whether or not this court should grant leave in all of the circumstances.
8 In order to bring this application, the State requires a substantial extension of time. Section 10(3) of the Criminal Appeals Act 2004 (WA) provides that:
An appeal against a decision cannot be commenced later than 28 days after the date of the decision unless the Supreme Court orders otherwise.
- Miller J gave his decision on 17 March 2006. The appellant lodged its appeal notice only on 25 October 2007, more than 18 months out of time.
9 The explanation for the delay is less than satisfactory. It is provided in an affidavit sworn on behalf of the appellant by Mr Lindsay Fox on 25 October 2007. Mr Fox has said that it was not until the decision in Thompson v The Queen [1999] WASCA 266 was brought to his attention on 27 June 2006 that he became aware that there was authority that suggested that the concession made by the appellant before Miller J had been incorrect. He also says, in his affidavit, that the issue was only the subject of a definitive ruling once this court had given its decision in Williams, on 2 May 2007.
10 However, the appellant did nothing until 18 July 2007, when it filed an application to set aside the decision of Miller J pursuant to s 37 of the Sentencing Act. That application was listed for directions on 23 October 2007. On the afternoon prior to the directions hearing the appellant reconsidered the matter and concluded that its application was inappropriate and that the more appropriate application was one for leave
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- to appeal to this court. The application under s 37 of the Sentencing Act was consequently dismissed by consent on 23 October 2007. The appeal notice was filed on 25 October 2007.
11 Counsel for the respondent contends that the delay has been so long, and the explanation for it so unsatisfactory, that the extension of time should be refused. She also points to the principles relating to State or Crown appeals. These have been summarised by this court in The State of Western Australia v Houston [2005] WASCA 167 [52] - [54]. It is unnecessary to repeat what was there said save to mention that it is settled that an appeal by the State should be brought only in an exceptional case and that an appellate court has an overriding discretion which might lead it to decline to intervene even it comes to the conclusion that error has been shown: GAS v The Queen [2004] HCA 22; (2004) 217 CLR 198 [17]. There is also authority for the proposition that the conduct of the State at the original sentencing proceedings may be a matter of significance: Allpass (1993) 72 A Crim R 561, 562 - 563; R v Clarke [1996] 2 VR 520, 522 and GAS [17].
12 In this case the delay is ascribable to the fault of the State. It has led to a continuing expectation on the part of the respondent that he would be eligible for parole as from late November this year. In an affidavit sworn by him on 28 November 2007 the respondent has said that, since Miller J made the order to which I have referred, he has been more focused upon his future than at any other time during his sentence.
13 The respondent has taken a number of steps to facilitate his release on parole, including the writing of an extensive parole plan, contacting counselling services and organising interviews with prospective employers. Since he was re-sentenced by Miller J he has moved through the system at an accelerated pace. He has undertaken two psychological assessments, one-on-one counselling sessions and an assessment by a community corrections officer. A report has been prepared in respect of him by the sentence management section at Casuarina Prison.
14 The Prisoners Review Board has met to consider the respondent's case. We have been provided with a letter from that Board informing us that it will be considering recommending the respondent's release on parole on 11 December 2007, on receipt of an updated Community Corrections Officer's report. If a favourable recommendation is made it will be for the Attorney General to decide whether or not to act upon it.
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15 There is considerable force in the submissions that have been advanced on behalf of the respondent. As I have said, the delay is extensive and the reasons for it reflect poorly upon the appellant. Moreover, the appellant's failure to direct the attention of the primary judge to the relevant legislative provisions has contributed, along with the like failure on the part of the appellant's then counsel, to the making of the error which is now the subject of its application for leave to appeal. As I have said, that error has in turn led to the respondent's expectation of early parole, causing him to take all of the steps to which I have referred, and others.
16 Notwithstanding all of this, it seems to me that an extension of time should be granted and that the appellant should have leave to appeal.
17 Miller J had no power to recall and quash the order made by the original sentencing judge on 21 November 1995. I have said that s 37(1) of the Sentencing Act empowers a court to recall an order imposing a sentence only in a case in which the offender was sentenced in a manner that was not in accordance with the Sentencing Act or the written law under which the offence was committed. The section had no application in this case in which the offender was properly sentenced under the then applicable legislation. If this court was not now to intervene to correct this error, that would mean that the respondent would be eligible for parole some five years earlier than the earliest date upon which the sentencing judge considered that to be appropriate. The sentencing judge's decision in that respect was made, after full consideration of all of the circumstances, in the unchallenged exercise of his discretion and in accordance with the procedure and limits laid down by the legislature of this State. Moreover, that very significant alteration in the respondent's sentence would be brought about only because Miller J was led into error by both parties as regards the effect of the applicable legislation. No judge of this, or any, court has formed the opinion that the sentence imposed was in any way deficient. There is no contention that it was.
18 In my opinion it would be an inappropriate exercise of this court's discretion to countenance such a serious interference with a lawfully imposed, and appropriate, sentence only because the error that led to the interference was contributed to by the State and because the State failed, subsequently, to act promptly to have the error corrected. That is so even though the consequence of the State's shortcomings has been that the respondent's hopes have been wrongly raised, and sustained over a long period of time, only to be dashed as a result of this application.
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19 We were also invited by counsel for the respondent to rely upon the provisions of s 31(5)(a) of the Criminal Appeals Act for the purpose of imposing some different sentence than had originally been imposed. That section empowers the Court of Appeal, if it allows an appeal, to set aside the sentence imposed and to impose a new sentence that is either more or less severe. The submission that was made to us was that, in circumstances in which this appellant has, in effect, faced 'double jeopardy' in the sentencing process, we should, if we were to allow the appeal against the sentence imposed by Miller J, impose a sentence that was less severe than that originally imposed.
20 I doubt that s 31(5)(a) was ever intended to be used in the kind of circumstance that has arisen in this case. It seems to me that it was intended to operate in the case of a successful appeal against a sentence originally imposed, rather than in a case involving the correction of an error made by a single judge who has mistakenly varied the sentence originally imposed.
21 I should say in any event that, if the power contended for under s 31(5)(a) is exercisable in a case such as the present, I would decline to exercise it in the exercise of my discretion. That is so for the reasons that I have given in suggesting that it would be an inappropriate exercise of the court's discretion to countenance an erroneous and significant alteration to a sentence lawfully and appropriately imposed.
22 I would consequently grant the application for an extension of time, give leave to appeal and, in circumstances in which the application for leave was ordered to be heard together with the appeal, allow the appeal. I would set aside the orders made by Miller J and restore those made by the original sentencing judge.
23 PULLIN JA: I agree with the President.
24 BEECH AJA: I agree with the President.
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