The State of Western Australia v Yousuf - [2014] WADC 155

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION: PERTH

CITATION: THE STATE OF WESTERN AUSTRALIA -v- YOUSUF [2014] WADC 155

CORAM: MCCANN DCJ

HEARD: 19 & 26 SEPTEMBER 2014

DELIVERED : 12 NOVEMBER 2014

FILE NO/S: IND 774 of 2014

BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
ALI QUSSAY YOUSUF

Catchwords:

Sentencing - Question of law - Jurisdiction of the court to make a pre-sentence order or impose a conditionally suspended imprisonment order or a suspended imprisonment order when the offender offended whilst on parole

Procedure - Circumstances when Supreme Court authority need not be followed by District Court - Supreme Court decision 'clearly wrong'

Legislation:

Criminal Code 1913 s 87 & s 143
Sentence Administration Act 2003 s 67
Sentencing Act 1995 s 6(4), 33A(2a)(a)(ii)(3), 39(2), 39(3), 76(2), 76(3), 76(4), 77(1), 81(2), 81(3), 81(4), 82(1), 84F, 84L

Result:

Ruling that the court has no jurisdiction to order a pre-sentence order, a conditionally suspended imprisonment order or a suspended imprisonment order

Representation:

Counsel:

The State of Western Australia : Ms H O Milligan
Accused: Ms A M Padmanabham

Solicitors:

The State of Western Australia : State Director of Public Prosecutions
Accused: Brennan & Co

Case(s) referred to in judgment(s):

Chamberlain v R (1983) 46 ALR 493
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321; 175 ALR 315
Etrelezis v The Queen [2001] WASCA 327
Griekspoor v Scott (2000) 23 WAR 530, 119 A Crim R 167; [2000] WASCA 419
Mustac v Medical Board of WA [2007] WASCA 128
R v O'Keefe [1969] 2 QB 29; 53 Cr App Rep 91
The State of Western Australia v Jenkin [2011] WASCA 171

MCCANN DCJ:

Introduction

On 19 September 2014 Mr Yousuf pleaded guilty and was convicted of one count of impersonating a public officer contrary to s 87 of the Criminal Code1913 and one count of attempting to pervert the course of justice contrary to s 143 on 5 July 2013. Those offences carry maximum penalties of imprisonment for 2 years and 7 years respectively.
The facts relating to the offending and matters in mitigation and aggravation will be referred to in my sentencing remarks, which will be given after hearing further submissions from the parties.
On 15 August 2011 Mr Yousuf was sentenced in the District Court to immediate imprisonment for 3 years in relation to a number of offences committed between April and August 2010. He was made eligible for parole and the sentence was backdated to commence on 22 November 2010 (his History for Court says otherwise and is being corrected). He was released to parole by an order made under the Sentence Administration Act 2003 on 23 May 2012. The index offences were thus committed whilst the parole order had a further 140 days to run.
A question of law has arisen as to whether, on the construction of (respectively) s 33A, s 76 and s 81 of the Sentencing Act 1995 (the Act), the court has jurisdiction to place Mr Yousuf on a pre‑sentence order (a PSO), a suspended imprisonment order (an SIO) or a conditionally suspended imprisonment order (a CSI) for the index offences if one of those dispositions is warranted on the merits (as is arguably open).
The question of law arises because the court's jurisdiction to make a PSO or sentence an offender to an SIO or a CSI is conditional (amongst other things) upon the fact that the offender was not subject to a parole order when the relevant offences were committed (see s 33A(2a)(a)(ii), s 76(3)(a) and s 81(3)(a)).

The legislation

Section 39(2) of the Act provides a hierarchy of sentencing options which are available to a court, commencing with the imposition of unconditional release (par (a)) and concluding with an SIO (par f), a CSI (par g) and immediate imprisonment (par h).
Section 39(3) provides that:
A court must not use a sentencing option in subsection (2) unless satisfied, having regard to Division 1 of Part 2, that it is not appropriate to use any of the options listed before that option.
Division 1 of pt 2 sets out a number of sentencing principles relating to the determination of the sentence for an offence, including the seriousness of the offence, the prescribed statutory penalty, aggravating factors, mitigating factors and other matters.
Section 6(4) is contained with div 1 of pt 2 and provides that:
A court must not impose a sentence of imprisonment on an offender unless it decides that –
(a)the seriousness of the offence is such that only imprisonment can be justified; or
(b)the protection of the community requires it.
The power to place an offender on a PSO is conferred by s 33A of the Act which provides, by s 33A(2) and (3) that:
(2a)This section does not apply if a court is sentencing an offender for one or more offences that were committed –
(a)while the offender was the subject to –
…
(ii)a parole order, or re-entry release order, made under the Sentence Administration Act 2003,
for another offence; or
(b)during the suspension period of a suspended term of imprisonment imposed for another offence.
(3)If this section applies, the court may make a PSO in respect of the offender if it considers:
(a)that the seriousness of the imprisonable offence or offences warrants the imposition of a term of imprisonment under Part 13; and
(b)that a PSO would allow the offender to address his or her criminal behaviour and any factors which contributed to the behaviour; and
(c)that if the offender were to comply with the PSO the court might not impose a term of imprisonment under Part 13 for the offence or offences.
The nature of a PSO is set out in s 33B. Section 33C provides for the adjournment of the sentencing to a fixed day, and for interim reviews, to facilitate the monitoring of the matters set out in s 33(3)(b) and (c). The court may grant the offender bail (s 33C(6)). Sections 33D to 33H provide for the imposition of supervision, programme and curfew requirements.
The power to suspend a sentence of imprisonment is provided for in s 76 and the power to suspend with conditions is provided for in s 81. Both provisions provide, by s 76(2) and s 81 (2), that an SIO or a CSI 'is not to be imposed unless imprisonment for a term or terms equal to that suspended would, if it were not possible to suspend the imprisonment, be appropriate in all the circumstances'.
Section 76(3) and s 81 (3) provide in each case that an order is not to be made if:
(a)the offence was committed when the offender was subject to an early release order; or
(b)the offender is serving or is yet to serve a term of imprisonment that is not suspended.
By s 76(4) (b) and s 81 (4)(b), an early release order means (relevantly) a parole order or re‑entry release order made under the Sentence Administration Act 2003.
Pursuant to s 77(1), an offender sentenced to an SIO is not to serve any part of the imprisonment that is suspended unless during the suspension period he or she commits an offence (in Western Australia or elsewhere) for which the statutory penalty is, or includes, imprisonment and the court makes an order under s 80.
Pursuant to s 82(1), an offender sentenced to a CSI is not to serve any part of the imprisonment that is suspended unless a court makes an order under s 84F or s 84L, which (respectively) are enlivened if the offender has been convicted (in Western Australia or elsewhere) of an offence the statutory penalty for which is or includes imprisonment and the offence was committed during the suspension period of the CSI, or the offender unreasonably breached a condition of the CSI.

The parties' contentions

The State contends that pursuant to s 33A(2a)(a)(ii), s 76(3)(a) or s 81(3)(a) a sentence of immediate imprisonment is the only disposition which is available or suitable at law in a case in which a PSO, SIO, or CSI is warranted on the merit, but is precluded for want of jurisdiction because the offender was subject to a parole order when he offended.
Ms Milligan submitted that this construction is supported by the majority judgment of the High Court in Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321; 175 ALR 315. In that case Kirby J (Gaudron, Gummow JJ agreeing) held that a suspended sentence is a 'sentence of imprisonment' and that a '2‑step' process must be followed in determining whether a suspended sentence is warranted on the merits. The first step requires a determination to be made that a 'sentence of imprisonment' (s 39(2)(h)) is warranted. The second step requires a determination to be made as to whether the sentence may be suspended.
Ms Milligan submitted accordingly that, in the absence of any jurisdiction to make a suspended sentence (a fortiori, a PSO), immediate imprisonment (par (h)) must become the sentence having regard to s 6(4) and s 39(3) which predicate (respectively) that 'only imprisonment can be justified' and 'it is not appropriate to use any of the [non‑custodial] options'.
Ms Padmanabham contends that, having regard to the hierarchical approach mandated by s 6(4) and s 39(3), an offender cannot be sentenced to a term of immediate imprisonment (par (h)) if a suspended sentence (a fortiori, a PSO) is warranted on the merits and, therefore, the court must make a lesser order such as an intensive supervision order (par (e)) if a PSO, SIO or CSI is precluded on jurisdictional grounds.
Ms Padmanabham relied on Griekspoor v Scott (2000) 23 WAR 530, 119 A Crim R 167; [2000] WASCA 419, which was a single judge appeal from a sentence of the Court of Petty Sessions. The case raised a number of issues. Relevantly, the court (Roberts‑Smith J) held that the sentence at first instance of immediate imprisonment should be overturned. His Honour was minded to re‑sentence the offender to an SIO. However, such an order was precluded by s 76(3)(a). Counsel for the respondent (ie, the prosecutor) submitted that the court must therefore sentence the offender to the term of immediate imprisonment which would otherwise have been suspended.
His Honour rejected that submission and held (at [101]) that Dinsdale mandated the hierarchical approach whereby the court was required 'to consider the imposition of a suspended term of imprisonment before considering the imposition of an immediate term'. His Honour said [102]:
It would follow that a determination that a suspended term of imprisonment would be appropriate and proportionate here necessarily involved a conclusion that an immediate term of imprisonment would be excessive. And so it is necessary to look to an option less severe than immediate imprisonment.
In the result, his Honour actually decided that the imposition of a substantial fine combined with a work and development order under s 57A of the Act would have substantially the same effect as an SIO. He therefore fined the appellant $4,000 and made a work and development order.
For the following reasons, and with very great respect to Roberts‑Smith J, I am of the opinion that the State's contention is clearly correct and that I should not follow Griekspoor.

Analysis

The parties' submissions focussed on the construction of s 76, as was the case in Dinsdale since, at the relevant time, there was no provision in the Act for a CSI and a PSO did not arise for consideration in that case.
It is important to bear in mind that a PSO is a different disposition to a CSI and is significantly different from a SIO. For instance, an offender subject to a PSO may be (and usually is) reviewed on a regular basis by the sentencing judge and is given bail which can be quite restrictive in terms of that person's liberty. Also, an offender who is made subject to a PSO has not been sentenced and the court must be of the opinion that immediate imprisonment is not inevitable when the sentencing does occur (see The State of Western Australia v Jenkin [2011] WASCA 171[6]).
Nevertheless, the wordings of s 33A(2a)(a)(ii), s 76(3)(a) and s 81(3)(a) are the same for present purposes. In other words, the particular jurisdictional fact on which the court's discretion to make a PSO, SIO or CSI is enlivened is defined in the same terms. A consistent construction is desirable (and presumed) in such circumstances.
In Dinsdale, the appellant was sentenced in the District Court of this state to an SIO. An appeal by the Crown to the Court of Criminal Appeal was allowed and the SIO cancelled. The offender was thus ordered to serve the term of imprisonment immediately. An appeal to the High Court was unanimously allowed, but the members of the court were divided in relation to the proper approach to, or construction of, s 39. As I have said, the majority held that the two‑step process was appropriate and, with the exception of Griekspoor, that process has been applied since then (see, for example, Etrelezis v The Queen [2001] WASCA 327). The minority (Gleeson CJ and Hayne J) held for the hierarchical approach contended for by Ms Padmanabham.
In his reasons on behalf of the majority Kirby J said as follows [the emphasis and intercalations are mine]:
77.In Western Australia, the 'starting point' for a judicial analysis concerning the availability [ie jurisdiction] and suitability [on the merits] of a suspended sentence of imprisonment is the language of s 39(2) and 76 of the Act. From s 39(2)(f) can be deduced the purpose of parliament to afford 'suspended imprisonment' as an option to be available in an appropriate case. It is there treated as the penultimate punishment in the hierarchy of sentencing options provided, just slightly lower in severity then the imposition of a term of imprisonment to be immediately served. It is to be read with the injunction in s 6(4) restraining the imposition of a sentence of imprisonment and confining it to the punishment of last resort.
78.From s 76, it may be inferred that suspension of imprisonment is only to be available [i.e. within the jurisdiction of the court] where, first, the court has concluded that [a] sentence to a term of imprisonment is warranted and where the court imposes that sentence. Moreover, by s 76(1), it is not to be available where the term of imprisonment imposed, in aggregate terms, is more than five years. Within such limitations, the discretion apparently conferred on the court is expressed in very wide language. By s 76(1), a court 'may order' suspended imprisonment. By s 76(2), it may not do so unless imprisonment for the term or terms equal to that suspended would, if it were not possible to suspend the sentence, be appropriate 'in all of the circumstances'. Plainly, s 76(2) is designed to restrain the imposition of an artificial term of imprisonment inflated with the object of giving an appearance of severe punishment although it is expected that this will not actually be carried into effect.
It is apparent from the passages which I emphasised that his Honour envisaged that, on the construction of the legislation, a sentence of imprisonment cannot be suspended unless and until a sentence to a term of imprisonment is first imposed, and that the term as suspended must be the same term which would otherwise be immediately served. In other words, the term of imprisonment of a sentence of imprisonment (suspended or not) must be the same, the only difference being whether the term is suspended (with or without conditions).
Against this background his Honour continued [79] (emphasis added):
… The starting point, given emphasis by the terms of s 76(2), is the need to recognise that two distinct steps are involved. The first is the primary determination that a sentence of imprisonment, and not some lesser sentence, is called for. The second is the determination that such term of imprisonment should be suspended for a period set by the court. The two steps should not be elided. Unless the first is taken, the second does not arise. It follows that the imposition of a suspended term of imprisonment should not be imposed as a 'soft option' when the court with the responsibility of sentencing is 'not quite certain what to do'.
His Honour continued to address the criteria to be considered in deciding the form of the sentence and said [85]:
Moreover, the scheme of the legislation, and the two steps which s 76(1) and (2) of the Act requires, suggests, as a matter of construction, that the same considerations that are relevant for the imposition of the term of imprisonment must be revisited in determining whether to suspend that term. This means that it is necessary to look again at all the matters relevant to the circumstances of the offence as well as those personal to the offender. … This necessitates the attribution of 'double weight' to all of the factors relevant both to the offence and to the offender – whether aggravating and mitigating – which may influence the decision whether to suspend the term of imprisonment.
His Honour recognised at [74] that this scheme involves a conceptual incongruity which might not be understood by lay‑persons and offenders, who might regard a suspended sentence as not constituting 'much punishment at all'. I respectfully agree. The scheme involves a level of abstraction which is difficult for lay-persons and offenders, most if not all of whom would not regard an SIO as being 'just slightly lower' than a term of imprisonment to be served immediately. Nevertheless, the legal position is clear. As Kirby J said, a suspended sentence is 'just slightly lower in severity than a term of imprisonment to be served immediately'.
So, to sum up, on the authority of Dinsdale the legislation contemplates that a suspended sentence (whether an SIO or CSI) predicates that a sentence of immediate imprisonment is warranted and is imposed, with the ultimate disposition turning on the court's jurisdiction to suspend or defer the sentence and a reconsideration of the same merits‑based criteria that led to that outcome.
I turn now to the construction of s 76(3)(a) and s 81(3)(a). I will deal with s 33A(2a) (a)(ii) separately.
It is the intention of the legislation that sub-section (3) be read in each case with sub-section (2), so that if sub-section (3)(a) applies, there is no jurisdiction to make an SIO or a CSI. The case becomes one in which it is 'not possible to suspend imprisonment' within the meaning of that phrase in sub‑section (2). In other words, the case becomes one in which 'imprisonment for a term or terms equal to that [which would otherwise have been] suspended would … be appropriate in all the circumstances' is warranted. This conclusion ineluctably follows from the majority opinion in Dinsdale.
During the hearing, I was attracted to a different approach, namely that s 76(2) and s 81(2) only relate to the term of an SIO or CSI and have no work to do in terms of the construction of s 76(3) or s 81(3). However, that reasoning is foreclosed by Dinsdale.
The two‑step construction is consistent with the overall legislative scheme. The jurisdictional issue arises when an offender re‑offends whilst on conditional release from prison, and re‑offends in a way which is sufficiently serious to warrant imprisonment on the merits. The legislative scheme prima facie contemplates that such persons will have their early release order automatically cancelled pursuant to s 67 of the Sentence Administration Act. In other words an SIO or CSI will not be open because the offender will be required to resume an earlier term of imprisonment.
I turn now to consider Griekspoor. In strict analysis, pursuant to the doctrine of stare decisis. I am not bound to apply and follow Griekspoor since the Supreme Court does not sit above the District Court in the appellate hierarchy. That is the role of the Court of Appeal. However, it goes without saying that, pursuant to the doctrine of judicial comity, a judge of this court must accord very great weight and respect to a decision of a single judge of the Supreme Court on the same issue of law. In short, I should follow Griekspoor unless I am convinced that it was wrongly decided, in other words, clearly wrong (see Mustac v Medical Board of WA [2007] WASCA 128 [38], [46], Martin CJ; Chamberlain v R (1983) 46 ALR 493).

Griekspoor has been considered in a number of decisions of the Supreme Court, but never on the jurisdictional issue which is before me. It has not been considered by the Court of Appeal. As such, it has not been over‑ruled.
Nevertheless, with very great respect to Roberts-Smith J, I am convinced that the case was wrongly decided in relation to the jurisdictional question. This is apparent from his Honour's reliance (at [81]) upon the judgment of Gleeson CJ and Hayne J in Dinsdale at [15] and of Parker LCJ in R vO'Keefe [1969] 2 QB 29; 53 Cr App Rep 91. His Honour did not refer to the majority judgments in Dinsdale on this point. As a result, he applied the hierarchical approach which was favoured by the minority rather than the two‑step process endorsed by the majority.
During the hearing I raised two other matters.
First, I suggested that the hierarchical construction is supported by s 86 of the Act, which provides that a term of imprisonment must not be imposed for a term of six months or less, that is to say, the jurisdiction to sentence an offender to a term of imprisonment (whether suspended or otherwise) does not arise if in the exercise of its discretion the court resolves that the sentence should be six months or less. The inference is that the court must sentence the offender to a lesser disposition, such as an ISO (par (e)). It could be argued that a similar approach must be taken to the construction of s 76 and s 81. However, s 86 is a standalone provision which only relates to short terms of imprisonment. Further, it is also subject to qualifications in pars (a), (b) and (c). Paragraph (b) provides that s 86 does not apply if the offender 'is already serving or is yet to serve another term', which is the present case. This qualification recognizes that issues of totality, concurrency and accumulation will arise. In that respect any 'days owed' by the offender pursuant to pt 5 of the Sentence Administration Act must be taken into account.
Second, I referred to the aid to statutory construction which provides (or presumes) that the legislature does not make laws which impact on the liberty of the subject without using clear terms. Accordingly, a provision of that nature which is ambiguous or difficult to construe may need to be construed strictly. (See Pearce & Geddes, Statutory Interpretation in Australia 5^th ed [9.8] – [9.10]) However, I place no weight on this reasoning since it did not figure in Dinsdale, notwithstanding the conceptual difficulty of the legislation.
I return now to consider the construction of s 33A(2)(a)(ii).
The legislative intention is clear that the jurisdictional fact is the same as for s 76 and s 81 and a consistent construction should be adopted. Also, the purpose of the jurisdictional threshold is essentially the same, namely the Act predicates that the relevant re‑offending will be sufficiently serious to warrant the offender being automatically returned to prison or obliged to serve all or part of a suspended term of imprisonment for other offending, with the result that a non‑custodial disposition is not suitable for the index offending (ie immediate imprisonment is 'inevitable').
Accordingly, in my opinion s 33A(2)(a)(ii) should be construed as follows. If the jurisdiction to make a PSO has not been enlivened, the court must proceed with the sentencing of the offender unless an adjournment is justified on other grounds. If the court determines that the seriousness of the offending warrants the imposition of a term of imprisonment to be served immediately (par (h)), then the same must be imposed. The sentence cannot be suspended under s 76 or s 81 because there would be no jurisdiction to do so.

Conclusion

I conclude that Mr Yousuf cannot be placed on a PSO, or sentenced to an SIO or CSI and, further, he must be sentenced to a term of imprisonment if such is warranted on the merits. However, issues of totality, concurrency and accumulation must also be considered because of the 'days owed' pursuant to pt 5 of the Sentence Administration Act.
I shall therefore hear further from the parties before proceeding to sentence.