Van Der GUGTEN v McLennan

[1999] WASCA 313

VAN DER GUGTEN -v- McLENNAN [1999] WASCA 313

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[1999] WASCA 313
Case No:	SJA:1129/1999	Heard:	7 SEPTEMBER 1999
Coram:	HEENAN J	Delivered:	7/09/99
No of pages:	5	Judgment Part:	1 of 1
Result:	Appeal dismissed
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Parties:	JOHN RICHARD VAN DER GUGTEN CRAIG McLENNAN
Catchwords:	Criminal law Sentencing Parole eligibility order Fixed terms of imprisonment imposed by different courts of Petty Sessions Aggregate of 14 months Court imposing second sentence not empowered to order eligibility for parole
Legislation:	Sentencing Act 1995 s 89
Case References:	Nil House v The King (1936) 55 CLR 499 Thompson v R (1992) 8 WAR 387 Wongawol v R (1998) 101 A Crim R 350 Young v Dockery, unreported; SCt of WA (McKechnie J); Library No 990144; 17 March 1999

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : VAN DER GUGTEN -v- McLENNAN [1999] WASCA 313 CORAM : HEENAN J HEARD : 7 SEPTEMBER 1999 DELIVERED : 7 SEPTEMBER 1999 FILE NO/S : SJA 1129 of 1999 BETWEEN : JOHN RICHARD VAN DER GUGTEN

Appellant

AND

CRAIG McLENNAN
Respondent

Catchwords:

Criminal law - Sentencing - Parole eligibility order - Fixed terms of imprisonment imposed by different courts of Petty Sessions - Aggregate of 14 months - Court imposing second sentence not empowered to order eligibility for parole

Legislation:

Sentencing Act 1995 s 89

Result:

Appeal dismissed

(Page 2)

Representation:

Counsel:

Appellant : Mr S J Jones
Respondent : Ms C L Bathurst

Solicitors:

Appellant : Director of Legal Aid
Respondent : State Crown Solicitor

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

Case(s) also cited:

House v The King (1936) 55 CLR 499
Thompson v R (1992) 8 WAR 387
Wongawol v R (1998) 101 A Crim R 350
Young v Dockery, unreported; SCt of WA (McKechnie J); Library No 990144; 17 March 1999

(Page 3)

1 HEENAN J : This appeal raises a short point. The appellant asks the Court to vary a sentence of imprisonment imposed upon him by including an order that he be eligible for parole.

2 On 9 April 1999 in the Court of Petty Sessions at Armadale the appellant was sentenced to imprisonment for six months after he had been convicted of driving a motor vehicle whilst under suspension. On 12 April in the Court of Petty Sessions at Perth he was sentenced in relation to a number of offences, including another of driving a motor vehicle whilst under suspension and one of making a false statement in order to obtain bail. The learned Magistrate in that Court imposed a term of six months imprisonment for the driving offence and two months imprisonment for the offence of making a false statement. He ordered that those terms take effect cumulatively upon each other and upon the sentence which had been imposed three days before and he made no order as to eligibility for parole.

3 On the latter occasion counsel for the appellant had informed the learned Magistrate that his client was 24-years-old, that he had a de facto wife and three children aged 5 years, 3 years and 7 months respectively and that his wife was 2½ months pregnant, the appellant being the sole breadwinner in the household. After his Worship had made it clear that he intended to impose further imprisonment, counsel for the appellant submitted that an order as to eligibility for parole should be made, arguing that an overall sentence of 14 months imprisonment might have a crushing effect upon his client. In refusing to make the order sought his Worship said:

"In November 1995 he was imprisoned for 15 months. I don't know if he was released on parole on that occasion. It seems to me that [the appellant] is just a consistent offender -- persistent offender -- and I'm not going to make you eligible for parole. …"

On behalf of the appellant it is said that the learned Magistrate erred in law by failing to consider the issue of parole eligibility properly or at all.

4 Counsel for the respondent argued that s 89(3) of the Sentencing Act 1995 prevented the learned Magistrate from making such an order in the circumstances of this case. The subsection reads as follows:

"A parole eligibility order must not be made if the fixed term or the aggregate of the fixed terms is less than 12 months, except

(Page 4)

where the offender, at the date of sentence, is serving or has yet to serve a parole term imposed previously."

Counsel submitted that the above provisions relate to the imposition of fixed terms made on the one occasion and do not relate to the aggregation of fixed terms imposed on separate occasions.

5 In my opinion the submission made on behalf of the respondent is supported by consideration of the overall provisions of the section. Subsection (3) should not be viewed in isolation. In particular, it should be viewed together with subsection (1) and subsection (5). Subsection (1) reads as follows:

"A court sentencing an offender to one or more fixed terms may, if it considers that it is appropriate to do so, order that the offender be eligible for parole by making a parole eligibility order."

In my opinion "the fixed term" and "the fixed terms" mentioned in subsection (3) refer to the "one or more fixed terms" mentioned in subsection (1). Those subsections, in my view, contemplate a sentence which is imposed at the one time in relation to "one or more fixed terms". That interpretation is borne out, I believe, by the provisions of subsection (5) which reads as follows:

"If a court decides that an offender is to be eligible for parole in respect of 2 or more of the fixed terms it imposes, it is to make a single parole eligibility order in respect of those terms."

Application of subsection (5) would be very difficult unless subsection (1) is interpreted as counsel for the respondent contends. Otherwise a Magistrate could make an order in respect of a term or terms of imprisonment imposed by another Magistrate on a different day and in another court, a situation which would pose considerable practical difficulties, particularly if the earlier sentence had been imposed months or even weeks - rather than days - before the later.

6 For such reasons I conclude that as a matter of law it was not open to the learned Magistrate who dealt with the appellant on 12 April 1999 to make an order as to his eligibility for parole.

7 Even if that conclusion were wrong, it seems to me that the learned Magistrate was quite right in refusing to make the order in question. Despite the youth of the appellant, his family commitments and the fortuitous separation of the sentences by only a few days, the past record

(Page 5)

of the appellant was such that the imposition of 8 months imprisonment cumulative upon the earlier term of 6 months was by no means severe. Bearing in mind that the overall imprisonment was only two months in excess of the minimum period fixed by s 89(3) to qualify for an eligibility order, the making of such an order would be of little practical advantage to the appellant, to those concerned with the administration of the criminal justice system or to the community at large.

8 In my opinion the appeal should be dismissed.