Trivett v Jeffrey

[2003] WASCA 151

TRIVETT & ORS -v- JEFFREY [2003] WASCA 151

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WASCA 151
Case No:	SJA:1006/2003	Heard:	15 JULY 2003
Coram:	MILLER J	Delivered:	15/07/03
No of pages:	6	Judgment Part:	1 of 1
Result:	Appeal allowed Suspended sentences of imprisonment set aside Matter remitted to Court of Petty Sessions for rehearing according to law
Category:	A
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Parties:	PETER TIM TRIVETT JAMES GERARD MADDEN STEVEN WILLIAM HAYWARD CHRISTOPHER NIGEL PAGE BRETT ALLAN JEFFREY
Catchwords:	Criminal law Sentence Offender on parole Whether suspended sentence open Error on the part of Magistrate in imposing suspended sentence
Legislation:	Sentencing Act 1995, s 39(2)(f), s 76(3)(b), s 89(6) Sentence Administration Act 1995, s 30(4), s 74(1), s 74(2)
Case References:	Nil Dinsdale v R (2000) 202 CLR 321 Everett & Anor v R (1994) 181 CLR 295 House v The King (1936) 55 CLR 499 Lowndes v R (199) 195 CLR 665

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : TRIVETT & ORS -v- JEFFREY [2003] WASCA 151 CORAM : MILLER J HEARD : 15 JULY 2003 DELIVERED : 15 JULY 2003 FILE NO/S : SJA 1006 of 2003 BETWEEN : PETER TIM TRIVETT

JAMES GERARD MADDEN
STEVEN WILLIAM HAYWARD
CHRISTOPHER NIGEL PAGE
Appellants

AND

BRETT ALLAN JEFFREY
Respondent

Catchwords:

Criminal law - Sentence - Offender on parole - Whether suspended sentence open - Error on the part of Magistrate in imposing suspended sentence

Legislation:

Sentencing Act 1995, s 39(2)(f), s 76(3)(b), s 89(6)

Sentence Administration Act 1995, s 30(4), s 74(1), s 74(2)

Result:

Appeal allowed

Suspended sentences of imprisonment set aside


(Page 2)

Matter remitted to Court of Petty Sessions for rehearing according to law

Category: A

Representation:

Counsel:

Appellants : Ms M Huntly
Respondent : Ms J T Fisher

Solicitors:

Appellants : State Director of Public Prosecutions
Respondent : Justine Fisher

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

Nil

Case(s) also cited:

Dinsdale v R (2000) 202 CLR 321
Everett & Anor v R (1994) 181 CLR 295
House v The King (1936) 55 CLR 499
Lowndes v R (199) 195 CLR 665

(Page 3)

1 MILLER J: The respondent has a substantial record of convictions for criminal offences. He faced the Court of Petty Sessions, Perth on 14 June 2002 on two counts of possession of a prohibited drug, one count of receiving and 11 counts of fraud. He was sentenced to imprisonment for 15 months, suspended for a period of 2 years, on one count of receiving and nine counts of fraud, and was otherwise placed on community-based orders and an intensive supervision order in relation to the balance of the charges he faced.

2 The respondent was back before the Court of Petty Sessions on 19 December 2002 when he was convicted after his pleas of guilty on one count of receiving, 11 counts of stealing and counts of driving without a valid motor driver's licence, wilfully misleading a police officer, possession of a prohibited drug and aggravated burglary. In addition, he pleaded guilty to breaching a community-based order and intensive supervision order, and the suspended sentence imposed in the Court of Petty Sessions on 14 June 2002.

3 The matter was dealt with by Mr R Burton SM who ordered the provision of a pre-sentence report and remanded the respondent to 9 January 2003 for sentence. At the time of his appearance before Mr Burton SM on 19 December 2002, the respondent was the subject of a parole order, having been released to parole on 20 November 2002 with a parole expiry date of 19 September 2003. The respondent's release on that parole order was pursuant to the provisions of Pt 3 of the Sentence Administration Act 1995. Significantly, s 30(4) of the Sentence Administration Act1995 provides that a prisoner who was released under a parole order is "nevertheless still subject to the sentence or sentences of imprisonment to which the parole order relates".

4 When the respondent came before the learned Magistrate on 9 January 2003 his Worship indicated that he had read all the relevant information contained within the pre-sentence report, references and other materials tendered on his behalf. He asked the prosecuting officer the following question:

"I don't know what to do with this man, sergeant. What do you say? Is it possible I can give him a suspended sentence?"

5 There appears to have been no immediate response from the prosecuting officer, but in the course of argument the prosecutor submitted to the learned Magistrate that it was not possible to give the respondent a suspended sentence whilst he was on parole. This led the

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learned Magistrate to adjourn the matter until the afternoon, at which time there was further discussion in relation to the provisions of the relevant legislation. The learned Magistrate indicated that he was minded to impose suspended terms of imprisonment in relation to some of the offences. He said:

"HIS WORSHIP: Well, I'll do it this way. It's on the transcript and it can go to another -- probably go to another place. I'm going to decide that the illustration I've put up is what it means - because there's ambiguity. And I'm going to leave it as it is.

And that means that no doubt in due course, there'll be an application to correct my sentence. And then we can have the same argument again, or we can have additional arguments - and I'll do it that way.

I see exactly what you're saying, sergeant."

6 His Worship then proceeded to impose suspended sentences of imprisonment in relation to a number of offences, they being:

(i) 2 years' imprisonment suspended for 2 years for receiving (complaint 32227 of 2002);

(ii) 1 month imprisonment suspended for 2 years for each of the stealing offences (complaints 32238-32248 of 2002);

(iii) 12 months' imprisonment suspended for 2 years for driving without a valid motor driver's licence (complaint 32249 of 2002);

(iv) 2 months' imprisonment suspended for 2 years for possession of a prohibited drug (complaint 32251 of 2002);

(v) 12 months' imprisonment suspended for 2 years for burglary (complaint 44005 of 2002);

(vi) 15 months' imprisonment suspended for 2 years for breach of the suspended sentence imposed on 14 June 2002 for one count of receiving and nine counts of fraud (original complaints 17537-17546 of 2002);

7 On 7 February 2003 Pullin J granted to the applicants leave to appeal from the decisions of the learned Magistrate wherein the suspended terms of imprisonment were imposed on the ground that the learned Magistrate erred in law in imposing suspended terms of imprisonment contrary to s 76(3)(b) of the Sentencing Act.
(Page 5)

8 The provisions of s 76(3)(b) of the Sentencing Act provide that suspended imprisonment is not to be imposed if the offender is serving or is yet to serve a term of imprisonment that is not suspended.

9 Section 30(1) of the Sentence Administration Act specifies that a parole order is an order that on a release date specified in the order a prisoner is to be released on parole for a parole period specified in the order if he or she gives certain written undertakings. Section 30(4) provides in clear terms that a prisoner who is released under a parole order is nevertheless still subject to the sentence or sentences of imprisonment to which the parole order relates.

10 A parole order is also encompassed within the definition of early release order. There are provisions in the Sentence Administration Act relating to early release orders. Section 74(1) provides that a person sentenced to imprisonment and released under an early release order remains under and subject to that sentence until discharged from it. Section 74(2) provides that subject to the Part in question, a person sentenced to imprisonment is discharged from the sentence only at the end of the parole period if released under a parole order.

11 The clear effect of the provisions of s 76(3)(b) of the Sentencing Act and s 30(4) and s 74(1) and s 74(2) of the Sentence Administration Act is that an offender who has been released to parole is still serving a term of imprisonment until the parole period has ended and in consequence, cannot receive the benefit of a suspended sentence of imprisonment if convicted and sentenced during the parole period.

12 It follows that in this case the learned Magistrate was clearly in error in imposing suspended sentences of imprisonment in relation to the complaints to which I have referred.

13 In the circumstances the suspended sentences of imprisonment imposed in relation to the complaints to which I have referred must be quashed and those complaints remitted to the Court of Petty Sessions to be dealt with according to law.

14 The formal orders of the Court will be:

(a) The appeals be allowed;

(b) The suspended sentences of imprisonment imposed in relation to complaints 32237-322349, 32252 and 4405 of 1992 and in relation to the breach of suspended sentence relating to complaints 17537-17546 of 2002 be quashed;

(Page 6)

(c) The matters the subject of the lastmentioned complaints be remitted to the Court of Petty Sessions for rehearing according to law.