WILLIAMS v The State of Western Australia
[2006] WASC 165
WILLIAMS -v- THE STATE OF WESTERN AUSTRALIA [2006] WASC 165
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASC 165 | |
| Case No: | INS:236/1994 | 28 JUNE & 4 AUGUST 2006 | |
| Coram: | HASLUCK J | 4/08/06 | |
| 28 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| A | |||
| PDF Version |
| Parties: | WAYNE JOHN WILLIAMS THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law and procedure Sentencing Power to correct sentence Application pursuant to s 37 of Sentencing Act 1995 (WA) Applicant convicted of wilful murder and sentenced to strict security life imprisonment Amendments to parole provisions Consideration of three sentencing regimes as to setting of minimum term to be served before parole Change in parole provisions between date when offence committed and date when sentence imposed Whether parole provisions form part of sentencing regime Whether change as to length and setting of minimum term amounts to a change in penalty Whether such a change should be characterised as a change in substantive law or as a procedural change Whether applicant had accrued right to parole under regime in force when the offence was committed Held no power to correct sentence in this case where minimum term set by Court corresponded with term set by statute under the regime in force when the offence was committed Whether power to correct extends to imposition of strict security life imprisonment Held no such power in this case where issue addressed in prior appeal and no error demonstrated as to application of parole provisions |
Legislation: | Criminal Code (WA), s 11, s 17A, s 17B, s 282, s 282(a) Criminal Law Amendment Act 1994 (WA), s 24 Interpretation Act 1984 (WA), s 37 Offenders Community Corrections Act 1963 (WA), s 34, s 37A, s 37A(6)(e), s 40D(1), s 40D(2)(b), s 40D(2c) Sentence Administration Act 1995 (WA), s 21 Sentence Administration Act 1999 (WA), s 25 Sentence Administration Act 2003 (WA), s 18 Sentencing (Consequential Provisions) Act 1995 (WA), s 26 Sentencing Act 1995 (WA), s 6, s 7, s9 (4),s 10, s37, s 90, s 91 |
Case References: | R v Melville (2003) 27 WAR 224 Richardson v Brennan [1966] WAR 159 Roberts v The Queen [2003] WASCA 237; (2003) 28 WAR 381 Rodway v The Queen (1990) 169 CLR 515; (1990) 92 ALR 385 Thompson v The Queen [1999] WASCA 266 Williams v The Queen (1995) 15 WAR 559 Williams v The Queen (1996) 17 WAR 17 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Criminal law and procedure - Sentencing - Power to correct sentence - Application pursuant to s 37 of Sentencing Act 1995 (WA) - Applicant convicted of wilful murder and sentenced to strict security life imprisonment - Amendments to parole provisions - Consideration of three sentencing regimes as to setting of minimum term to be served before parole - Change in parole provisions between date when offence committed and date when sentence imposed - Whether parole provisions form part of sentencing regime - Whether change as to length and setting of minimum term amounts to a change in penalty - Whether such a change should be characterised as a change in substantive law or as a procedural change - Whether applicant had accrued right to parole under regime in force when the offence was committed - Held no power to correct sentence in this case where minimum term set by Court corresponded with term set by statute under the regime in force when the offence was committed - Whether power to correct extends to imposition of strict security life
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imprisonment - Held no such power in this case where issue addressed in prior appeal and no error demonstrated as to application of parole provisions
Legislation:
Criminal Code (WA), s 11, s 17A, s 17B, s 282, s 282(a)
Criminal Law Amendment Act 1994 (WA), s 24
Interpretation Act 1984 (WA), s 37
Offenders Community Corrections Act 1963 (WA), s 34, s 37A, s 37A(6)(e), s 40D(1), s 40D(2)(b), s 40D(2c)
Sentence Administration Act 1995 (WA), s 21
Sentence Administration Act 1999 (WA), s 25
Sentence Administration Act 2003 (WA), s 18
Sentencing (Consequential Provisions) Act 1995 (WA), s 26
Sentencing Act 1995 (WA), s 6, s 7, s9 (4),s 10, s37, s 90, s 91
Result:
Application dismissed
Category: A
Representation:
Counsel:
Applicant : In person
Respondent : Mr D A Lima
Solicitors:
Applicant : In person
Respondent : State Director of Public Prosecutions
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Case(s) referred to in judgment(s):
R v Melville (2003) 27 WAR 224
Richardson v Brennan [1966] WAR 159
Roberts v The Queen [2003] WASCA 237; (2003) 28 WAR 381
Rodway v The Queen (1990) 169 CLR 515; (1990) 92 ALR 385
Thompson v The Queen [1999] WASCA 266
Williams v The Queen (1995) 15 WAR 559
Williams v The Queen (1996) 17 WAR 17
Case(s) also cited:
Nil
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- HASLUCK J:
Introduction
1 The applicant, Wayne John Williams, seeks an order pursuant to s 37 of the Sentencing Act 1995 (WA) providing for the recall of an order imposing sentence upon him. Further, in substitution for the sentence previously imposed, he seeks, in the manner allowed for by s 37 of the Sentencing Act, the imposition of a sentence that is in accordance with written law applicable to the circumstances of his case.
Background
2 The applicant was convicted of wilful murder after a trial in the Supreme Court on 17 March 1995. The subject offence was committed almost 1 year earlier on 20 April 1994. On 20 January 1995, that is, after the commission of the offence but prior to the applicant's conviction at trial, certain changes were made to the sentencing regime applicable to the applicant's case.
3 I will describe the changes made to the sentencing regime in due course. For the time being, it is sufficient to note that soon after completion of the trial, on 1 May 1995, the applicant was sentenced by his Honour Justice Heenan to strict security life imprisonment for the offence of wilful murder with a requirement that he serve a minimum term of 20 years' imprisonment before being eligible for release on parole. The sentence was imposed pursuant to the sentencing regime brought into effect on 20 January 1995.
4 A question has now arisen as to whether the combined effect of various statutory provisions requires that the power to correct a sentence allowed for by s 37 of the Sentencing Act be exercised in the manner contended for by the applicant; that is, that a sentence be imposed in accordance with the law in force on 20 April 1994, being the date when the offence was committed.
Three sentencing regimes
5 Soon after the sentence in the present case was imposed on 1 May 1995, the Sentencing Act 1995 and certain supplementary legislation, being the Criminal Law Amendment Act 1994 (WA), the Sentence Administration Act 1995 (WA), and the Sentencing (Consequential Provisions) Act 1995 (WA), took effect. These statutes came into force on 4 November 1996.
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6 It follows that, for present purposes, there are three sentencing regimes to be considered being first, the regime prior to 20 January 1995 (which was in force when the offence was committed); second, the regime after 20 January 1995 (in force when the original sentence was imposed); third, the regime after 4 November 1996 (being essentially the regime in force when the application to recall the subject sentence comes before the Court).
7 I note in passing that the Sentence Administration Act 1995 was later superseded by the Sentence Administration Act 1999 (WA), and that in turn by the Sentence Administration Act 2003 (WA), the latter being the Act presently in force.
8 I note also that I am using the term "sentencing regime" loosely, and simply as an aid to exposition. It will become apparent later that there is an important issue to be resolved as to whether orders concerning parole can properly be characterised as part of the "sentence" imposed by a court, especially with respect to "mandatory punishment" for wilful murder of strict security life imprisonment or life imprisonment.
9 I will address that issue in due course. However, for the moment, while seeking to justify my usage of the term "sentencing regime" as an aid to exposition, and the inclusion within that term of provisions concerning parole, I note (and must keep steadily in mind) that the term "sentence" in s 37 of the Sentencing Act, being the provision relied on by the applicant in the present case, is defined to include "an order in addition to sentence".
Circumstances of the applicant's case
10 In order to understand the applicant's contention (that is, that he should have been sentenced in accordance with the first, not the second, regime), it is necessary to look at the circumstances of the applicant's case and at the provisions of the relevant sentencing regimes. I must remind myself also that soon after the trial the applicant mounted an unsuccessful appeal against his conviction: Williams v The Queen (1995) 15 WAR 559. He then applied for an extension of time with a view to appealing against the sentence imposed upon him.
11 The Court of Criminal Appeal dismissed the applicant's application for an extension of time upon the basis that the appeal against sentence would fail. In the course of dealing with the matter the Court of Criminal appeal undertook a full review of his circumstances and held that the
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- learned trial Judge did not err in imposing a sentence of strict security life imprisonment: Williams v The Queen (1996) 17 WAR 17.
12 I will return to the reasoning of the Court of Criminal Appeal in the second Williams appeal later, and especially the reasoning of Owen J, because the judgments in question bear upon the issues now before me. However, for the moment, I draw upon the reported decisions in summarising the main features of the applicant's case.
13 It seems that for some time prior to April 1994 a man named Little had been associated with the deceased in a relationship that was sometimes friendly and sometimes strained. In the course of a lengthy drinking session at a hotel in Fremantle on 20 April 1994 Little spoke to the applicant about his relationship with the deceased and alleged that the deceased had assaulted him.
14 Little and the applicant were previously unknown to each other but for some reason, which is not entirely clear, the applicant took an interest in the matter and disclosed to Little that he had a pistol in his possession. Arrangements were then made for the applicant to take the deceased to a teller machine under the pretext of obtaining money for a drug deal.
15 In the course of that excursion to the teller machine the applicant fired five shots at the deceased while the latter was in the car being used for the excursion. The applicant fired a further 12 shots as the deceased attempted to run away and killed him. The applicant raised issues of self defence and provocation at the trial, and upon appeal, but without success. Both Little and the applicant were held to be guilty of the crime of wilful murder.
16 The learned sentencing Judge had before him a pre-sentence report and a psychological report and counsel for the applicant made a detailed plea in mitigation. It emerged that the applicant was 31 years of age at the time. His parents had divorced when he was 10 years of age. He left school part way through Year 10, completed an apprenticeship as a carpenter, spent a short time in the Army, and also worked as the manager of a tavern business. At the time of the offence he was unemployed, suffering from depression due to financial losses by members of his family, and had been drinking heavily for some months. Some years earlier he was convicted in the Supreme Court of Victoria for the offence of armed robbery and was sentenced to imprisonment for 6 years with a minimum of 3 years and 6 months.
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17 Section 282 of the Criminal Code prescribes the penalty for wilful murder and murder. By s 282(a) a person who commits the crime of wilful murder is liable to a mandatory punishment of either strict security life imprisonment or life imprisonment.
18 In sentencing the applicant, the learned sentencing Judge gave consideration to matters bearing upon the choice between life imprisonment and strict security life imprisonment including the need to assess the applicant's degree of culpability. His Honour observed that although it is difficult to assess the gravity of any particular case of wilful murder, because all must be grave, in his view this was one of the worst cases. He added that that was not to say that it was the worst case of its type.
19 When the matter came before the Court of Criminal Appeal on the second Williams appeal, Owen J observed at 26 that it was a horrific crime. It was committed by a person who was unknown to the victim and who scarcely knew the person with whom he was associated in the crime. Whatever may have been the relationship between the deceased and Little, the actions of the applicant in taking it upon himself to perpetrate the killing were unjustifiable, inexplicable and reprehensible.
20 The Court of Criminal Appeal was of the view that it was open to the learned sentencing Judge to come to the conclusion that the gravity of the circumstances of the offence alone warranted strict security life imprisonment, and it could not be said that he had erred in exercising his discretion to sentence the applicant to strict security life imprisonment with a minimum term of 20 years before being eligible for release on parole.
21 I note in passing that at all material times, being a facet of the sentencing process that has remained the same throughout each of the three regimes, the description of the penalty for wilful murder contained in s 282 of the Criminal Code has not included any reference to parole. In the course of imposing sentence pursuant to the second regime, the sentencing Judge was required to resort to discrete provisions concerning parole which were contained in another statute. The effect of the relevant provisions was that if a court sentenced a person to strict security life imprisonment for wilful murder it was obliged to set a minimum term of 20 years and not more than 30 years that the person must serve before being eligible for parole. On the other hand, if the court sentenced a person to life imprisonment for wilful murder it was required to set a
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- minimum term of at least 15 and not more than 19 years to be served before parole.
22 I will look at the statutory provisions concerning parole in more detail later, for it is in regard to these provisions that there are certain differences between the three sentencing regimes. However, it is important to understand at the outset, and to emphasise, that the penalty for wilful murder is defined by s 282(a) of the Criminal Code and that provision makes no mention of parole.
The second Williams appeal
23 The ruling in the second Williams appeal was handed down on 26 November 1996, shortly after the commencement of the third regime. Owen J at 21 referred to the fact that the applicant had contended that the sentencing Judge sentenced the applicant according to the wrong statutory regime. This argument was based on the dates on which the Criminal Law Amendment Act and the Sentencing Act came into force and the effect that each of them might or would have had on the sentencing exercise that his Honour had to perform. His Honour noted that "these grounds were expressly abandoned at the hearing of the appeal and there is no need for me to say anything more about them". I will return to that aspect of the matter in due course.
24 In the second Williams appeal Owen J said at 25 that life imprisonment means "just that: imprisonment for life. It is the most severe penalty available to a sentencing Judge under the criminal law". His Honour went on to say that the Criminal Code does not indicate the difference between life imprisonment and strict security life imprisonment. The difference lies in the time at which the question of release on parole may be considered. But it remains a life sentence and the fact that parole is a possibility does not mean that an offender will be admitted to parole at or shortly after the expiry of the minimum term that has been set, or at any particular time after that or at all. The decision whether to release on parole an offender who is serving a life term under s 282 of the Criminal Code rests entirely with the executive arm of government.
25 In reviewing the principles to be found in the decided cases as to how a sentencing Judge should exercise the discretion to choose between strict security life imprisonment and life imprisonment, Owen J said that the discretion had to be exercised judicially having regard to various factors including the gravity of the offence, the antecedents of the offender and the risk to the community of the offender committing further
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- offences. No one factor has primacy over the other. This approach was later approved by the Court of Criminal Appeal in Roberts v The Queen [2003] WASCA 237; (2003) 28 WAR 381, and especially Steytler J at par 46.
26 I pause here to note that although s 282(a) of the Criminal Code does not provide guidance regarding the principles to be applied in making the choice between the two options (with the result that one must refer to the decided cases) s 91 of the Sentencing Act, under the third regime at the present day, provides that a court that sentences an offender to strict security life imprisonment must set a minimum period of at least 20 and not more than 30 years that the offender must serve before being eligible for release on parole (save for where an order is made that the offender be imprisoned for the whole of his life). This echoes the position established under the second regime, as I indicated in earlier discussion, but is unlike the position under the first regime where the minimum period to be served was set by statute rather than by the Court.
27 Two important consequences seem to flow from Justice Owen's analysis in regard to sentencing offenders pursuant to provisions of the Sentencing Act as at the present day (that is, pursuant to what I have called the third regime).
28 First, as the Court held in the second Williams appeal, the differences between the sentencing principles described in s 6 to s 7 of the Sentencing Act and the discretion to choose between life and strict security life imprisonment in a case of wilful murder suggest that the principles contained in those provisions have no application to the latter discretion.
29 This is because, as Owen J indicated at 25, the general sentencing principles reflected in s 6 to s 7 of the Sentencing Act are designed to ensure that a sentence is commensurate with the seriousness of the offence and that imprisonment is imposed only if the seriousness of the offence justifies it or the need to protect the public requires it. In other words, in most sentencing exercises, the Judge is required to select from a range of non-custodial and custodial options and, with the latter, to nominate the term of imprisonment and to decide whether the offender should be eligible for parole. However, upon a conviction for wilful murder no question arises whether the offence is sufficiently serious to warrant imprisonment because a custodial sentence is mandatory and it must be for life. The sentencing Judge must then make a choice between life imprisonment and strict security life imprisonment.
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30 Here, I digress briefly to note that the sentencing principles reflected in s 6 and s 7 of the Sentencing Act were preceded by s 17A and s 17B of the Criminal Code, being provisions in similar terms. The latter provisions were enacted by amendments to the Criminal Code effected by the Criminal Law Amendment Act 1994 which took effect on 20 January 1995.
31 Put shortly, then, these general sentencing principles can be regarded as a feature of the second and third regimes, but not of the first regime. However, this is immaterial, for, as Owen J indicated, the principles do not apply to the offence of wilful murder because the seriousness of the offence is established by the mandatory punishment of strict security life imprisonment or life imprisonment.
32 Second, it emerges from the second Williams appeal that, in regard to wilful murder and murder, special considerations apply to parole. In cases other than wilful murder and murder the situation will usually be governed by s 89 of the Sentencing Act which provides that a court sentencing an offender to a fixed term may order that the offender be eligible for parole if the term is 12 months or more. The decided cases and related practice suggest that an offender who is eligible for parole after serving a certain portion of a term is likely to obtain it. According to Owen J at 25, where an offender had been made eligible for parole, in the majority of cases, the decision when and if to release the person on parole rested with the Parole Board having regard to s 21 of the Sentence Administration Act 1995.
33 However, as I have indicated, his Honour was of the view that if an offender was serving a sentence of life imprisonment or strict security life imprisonment the decision whether to release on parole rested entirely with the executive arm of government.
34 Under the third or current regime, by s 18 of the Sentence Administration Act 2003 (WA) the obligation of the Parole Board is to submit a report to the relevant Minister and the Governor may then make a parole order. The report must be provided, in a case of murder and wilful murder, at the end of the minimum period set by the Court under s 90 or s 91 of the Sentencing Act as to murder and wilful murder respectively, with subsequent reports being due every three years after that. In preparing a report the Parole Board will obviously be looking at the situation of the offender at the time the report is prepared.
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35 It follows from all of this that at the present day in the case of wilful murder or murder, the task of the sentencing Judge pursuant to s 90 or s 91 of the Sentencing Act is not in any sense to determine eligibility for parole having regard to the usual principles but simply to set a minimum period that the offender must serve before being eligible for release on parole.
36 It will be recalled that in the present case the learned sentencing Judge purported to impose sentence pursuant to the sentencing regime in force on 1 May 1995 shortly after the completion of the trial (that is, under the second regime). The observations of Owen J in the second Williams appeal were for the most part directed to that regime. For the sake of completeness, and in order to provide a fuller understanding of the issues now before the Court, I have added a gloss to Justice Owen's observations by describing the present day or third regime which was brought into effect by the enactment of the Sentencing Act 1995 and the supplementary legislation. It is important to understand, however, that the three sentencing regimes have various features in common including in each case a mandatory punishment for wilful murder of strict security life imprisonment or life imprisonment and with provision for parole.
37 It now becomes necessary to look at the provisions of each regime concerning parole in more detail in order to deal with the application before me.
The first regime
38 Section 37A of Offenders Community Corrections Act 1963 (WA) dealt with parole eligibility under the first regime. By s 37A a court could order that a person sentenced to serve a term of imprisonment be eligible for parole.
39 However, by s 37A(6)(e) of the Offenders Community Corrections Act, a court was not permitted to make an order for eligibility for parole in respect of a penalty of strict security life imprisonment or life imprisonment. In such a case the statute specified the minimum period. Section 40D(1) of the Offenders Community Corrections Act provided that the Governor may by order direct a prisoner undergoing a sentence of strict security life imprisonment or life imprisonment was to be released from prison on parole. By s 40D(2)(b), in the case of a prisoner undergoing a sentence of strict security life imprisonment, an order was not to be made earlier than 20 years after the date when the prisoner was sentenced to strict security life imprisonment.
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40 Section 34 dealt with the preparation of reports about a prisoner's eligibility for parole. Item 2 in the Table contained in s 34 stated that a prisoner undergoing a sentence of strict security life imprisonment had to be reported upon for the purposes of determining whether parole should be granted 20 years after the prisoner was sentenced. It stated also that reports relating to parole had to be furnished at three year intervals.
41 I pause here to note that if a sentence ought to have been imposed in accordance with the various provisions comprising the first regime as the applicant now contends (as that was the law in force when the offence was committed on 20 April 1994), then, having been convicted of wilful murder, he was liable pursuant to s 282(a) of the Criminal Code to a "mandatory punishment" of strict security life imprisonment or life imprisonment. If it were held by the sentencing Judge in the exercise of his discretion that strict security life imprisonment should be imposed, the court was not required (or even permitted) to fix a minimum term to be served before the offender would be eligible for parole, for the effect of the relevant provisions of the Offenders Community Corrections Act mentioned above was that an order for parole was not to be made earlier by the Governor than 20 years after the date on which the offender was sentenced. A report on his eligibility for parole would be prepared at that time and at three year intervals thereafter.
42 Thus, at a first glance, in the circumstances of the present case, where a 20 year minimum term to be served before parole was prescribed by the Court, albeit pursuant to the second regime, it might be thought that there is little to be gained by the applicant in practical terms in making the present application. However, with a view to ensuring that all his submissions are considered carefully, I must proceed to the second regime.
The second regime
43 At the time of sentencing in the present case, on 1 May 1995, the relevant provision of the Offenders Community Corrections Act 1963 had been amended by the Criminal Law Amendment Act 1994 (WA) which took effect on 20 January 1995 (this being the commencement of what I have called the second regime).
44 The change made by the Criminal Law Amendment Act which is material in this case was the insertion of sub-section (2c) into s 40D of the Offenders Community Corrections Act. That new sub-section stated that a court that sentences a person to strict security life imprisonment for wilful murder must set a minimum of at least 20 years and not more than
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- 30 years that the person must serve before being eligible for release on parole. Item 2 of s 34 of the Offenders Community Corrections Act was also amended.
45 I pause here to say that the respondent by its written submissions suggested that the effect of the latter amendment was to remove the requirement that parole eligibility reports be issued every three years for sentences imposed after 20 January 1995. I am not persuaded to this view because the insertion of a new Item 2 appears to preserve the three year reporting requirement.
46 In essence, the term of imprisonment that an offender sentenced to strict security life imprisonment for wilful murder was required to serve before becoming eligible for parole under the second regime was arguably "upgraded" from 20 years' imprisonment to a possible 20 to 30 years' imprisonment. On the applicant's case, the upgrading requires that consideration be given to the question of correction. Does the upgrading have a bearing upon his entitlement to be sentenced in accordance with the law applicable to his circumstances?
47 Hence, before proceeding to the third regime, it will now be useful to look at some related legislation which addresses the situation when changes to the law are made.
Related legislation
48 As at 1 May 1995 when the sentence was imposed, the second paragraph of s 11 of the Criminal Code provided that if the law in force when the Act or omission occurred differs from that in force at the time of the conviction, the offender cannot be punished to any greater extent than was authorised by the former law and to any greater extent than is authorised by the latter law. That provision was repealed by the Sentencing (Consequential Provisions) Act 1995 upon the coming into force of the third regime on 4 November 1996. It was replaced by s 10 of the Sentencing Act 1995.
49 Section 10 of the Sentencing Act 1995 (which, as I have indicated, forms part of the third regime) provides that, in circumstances where the statutory penalty for an offence changes between the time when the offender committed the offence, and the time when the offender is sentenced for it, the lesser statutory penalty applies for the purposes of sentencing the offender.
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50 The precepts reflected in these provisions are supplemented, and arguably reinforced to some extent in the circumstances of the present case, by s 37 of the Interpretation Act 1984.
51 Section 37(1)(c) of that Act has provided throughout the three regimes that unless a contrary intention appears any right or privilege acquired prior to the repeal of an enactment is not affected by the repeal.
52 Section 37(1)(e) provided during the first and second regimes that subject to s 11 of the Criminal Code the repeal of an enactment was not to affect any penalty incurred or liable to be incurred in respect of an offence committed against that enactment. When the Sentencing (Consequential Provisions) Act 1995 (being No 78 of 1995) took effect on 4 November 1996 upon the institution of the third regime, s 37(1)(e) was amended to include reference not only to s 11 of the Criminal Code but also to the new s 10 of the Sentencing Act 1995, notwithstanding that by s 26 of the Sentencing (Consequential Provisions) Act s 11 was amended by the deletion of the protective clause set out in the second paragraph of the provision in question. This suggests that as to certain offences, such as those committed prior to the third regime, the protective clause in the second paragraph of s 11 of the Criminal Code was to have a continuing effect.
53 This brings me to the third regime.
The third regime
54 The principal features of the third regime will be apparent from earlier discussion. Section 282(a) of the Criminal Code provides that a person who commits the crime of wilful murder is liable to a "mandatory punishment" of strict security life imprisonment or life imprisonment. That provision makes no mention of parole, for that matter is dealt with by other legislation. Moreover, as Owen J noted in the second Williams appeal, life imprisonment means just that: imprisonment for life. In this context, the decision whether to grant parole rests entirely with the executive government, having regard to the legislation bearing upon that aspect of the matter.
55 As I have indicated, prior to the commencement of the third regime, the statutory provisions concerning parole were set out in the Offenders Community Corrections Act 1963. However, that Act was repealed by the Sentencing (Consequential Provisions) Act 1995. This was accompanied by the Sentencing Act 1995 and the Sentence Administration Act 1995 which took effect on 4 November 1996 also.
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56 Part 2 of the Sentencing Act dealt with a number of general matters including the sentencing principles in s 6 and s 7 of the Act I mentioned earlier, and the further principles concerning mitigating factors set out in s 8 of the Act. Section 9(4) of the Act provided that if the statutory penalty for an offence is a mandatory penalty then a court must use the sentencing option required by the statutory penalty notwithstanding the provisions concerning sentencing options set out elsewhere in the Act.
57 As to parole, s 90(2) of the new Sentencing Act provided that a court that sentences an offender to life imprisonment for wilful murder must set a minimum period of at least 15 and not more than 19 years that the offender must serve before being eligible for release on parole. By s 91(1) a court that sentences an offender to strict security life imprisonment must set a minimum period of at least 20 and not more than 30 years.
58 By s 25 of the Sentence Administration Act the Governor could make a parole order in respect of a prisoner serving strict security life imprisonment but only if the prisoner had served the prescribed minimum period and a report has been given by the Parole Board under s 12 or s 18 of the Act. The effect of those provisions was that in the case of strict security life imprisonment a report was to be provided at the end of the prescribed period and every three years after that, although the Minister could request a report at less than three year intervals.
59 It emerges, then, from a consideration of the various provisions comprising the three sentencing regimes (when they are looked at from the viewpoint of a person serving a sentence of strict security life imprisonment for wilful murder) that the mandatory penalty for wilful murder has remained the same throughout; the lowest possible minimum term before being eligible for parole has remained the same throughout; the first regime differs from the other regimes and is arguably less severe in that the minimum term of 20 years under that regime is prescribed not by the Court but by the legislation and that regime does not allow for a minimum term of up to 30 years.
60 If the first regime can properly be characterised as a less severe sentencing regime, then it might be thought that a plea for relief can be made by a person such as the applicant who committed an offence during the first regime but was sentenced under the second regime. This is because related legislation provides that an offender is not to be prejudicially affected by changes to the sentencing regime which was in force at the time the offence was committed.
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61 All of this prompts me to make two preliminary observations at this point with respect to the application before me.
Preliminary observations
62 First, it is immediately obvious that in circumstances where the sentencing Judge, acting under the second regime, prescribed a minimum term of 20 years, which corresponds to the minimum term prescribed by statute under the first regime, there appears to be little to be gained, in practical terms in a parole order made under the second regime being recalled so that (as I indicated in earlier discussion), the applicant can be sentenced under the first regime. He will still be required to serve a minimum term of 20 years as from the date when the sentence was imposed.
63 This in turn suggests, being a matter confirmed by the applicant's written submissions, that in the end the real object of the exercise is to revisit the issues raised by the applicant in the second Williams appeal many years ago, with a view to persuading the Court that the sentencing Judge erred in dealing with the matter under the second regime. This error, it will be said, means that the sentencing Judge's imposition of a term of strict security life imprisonment should be set aside. This will open the door to a further plea that the sentencing Judge ought to have imposed a term of life imprisonment with a minimum term of less than 20 years to be served before parole; that is, a minimum term within the range 15 to 19 years.
64 Second, the application before me clearly proceeds from the premise that an order concerning parole, even in the context of a "mandatory punishment" for wilful murder of strict security life imprisonment or life imprisonment, should be characterised as an element of the sentence, so that if the first sentencing regime is thought to be less severe than the second regime (for the reasons mentioned earlier) the provisions of the related legislation can be brought into play with a view to reinforcing the applicant's argument that he ought to have been sentenced under the first regime.
65 However, as I indicated at the outset, there is room for debate about this, and although I have been prepared to speak of three sentencing regimes simply as an aid to exposition, and upon the basis that the three regimes can be distinguished from each other by reference to parole provisions, the time has now come to examine that approach in more detail.
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66 On one view of the matter, it might be said that the mandatory penalty for wilful murder does not extend to provisions concerning parole with the result that the penalty has remained the same throughout. There is therefore no basis for contending that the sentencing Judge erred in proceeding under the second sentencing regime (when he ought to have proceeded under the first regime) because, in strict analysis, the supposed differences between the three regimes are simply an illusion. There has ever only been one penalty (that is, a mandatory punishment of strict security life imprisonment or life imprisonment) and thus only one sentencing regime. There are differences concerning parole but they are of no consequence, in strict analysis, because parole orders cannot be regarded as part of the penalty.
67 It will therefore be useful to look now at this aspect of the matter in more detail, because it clearly has a bearing upon the first of my preliminary observations and upon the outcome of the application generally.
The nature of the penalty for wilful murder
68 The penalty or punishment for wilful murder consists essentially of the "mandatory punishment" prescribed by s 282 of the Criminal Code being strict security life imprisonment or life imprisonment. The provision for parole by the fixing of a minimum term in the manner allowed for by each of the three regimes (albeit being fixed by statute under the first regime and by the sentencing Judge under the second and third regimes) can arguably be characterised not as part of the penalty or punishment, although it is a necessary part of the sentencing process, but simply as a collateral right or privilege.
69 On this view of the matter, it might be said that because the penalty or punishment has remained unchanged throughout the three regimes, neither s 11 of the Criminal Code nor s 10 of the Sentencing Act (as supplemented by s 37(1)(e) of the Interpretation Act) have any role to play in the circumstances of the present case. That is because those provisions were designed to ensure that a person cannot be "punished" to any greater extent than was authorised by the law in force when the offence was committed. Here, there has been no change to the punishment. The only change that has occurred (so as to make the second and third regimes arguably more severe than the first regime) concerns the parole provisions.
70 However, even if the matter be viewed in that light, it is important to keep steadily in mind that s 37(1)(c) of the Interpretation Act provides
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- that any right or privilege created prior to the repeal of an enactment is not to be affected by the repeal. That provision purports to protect and preserve accrued rights and privileges. This is a form of protection which could, in a case of wilful murder, arguably be said to extend to the offender's collateral right or privilege concerning parole. Thus, independently of s 11 of the Criminal Code or s 10 of the Sentencing Act, it might be said that the applicant in the present case ought to have been sentenced pursuant to the first regime (being the law in force when the offence was committed).
71 The applicant's submissions proceeded from the premise that the statutory punishment in the present case was arguably increased in range as to a wilful murder offence after the amendments of 20 January 1995 took effect, because the time to be served before becoming eligible for parole was upgraded from 20 years' imprisonment to a possible 20 to 30 years' imprisonment. In other words, it was put to me that because the allowance for parole is a necessary part of the sentencing process, and has practical repercussions, it should be characterised as part of the penalty or punishment.
72 On this scenario, the applicant could arguably be entitled to the benefit of the sentencing provisions that applied prior to the amendments giving rise to the second regime, having regard to what was said in s 11 of the Criminal Code about an offender not being punishable to any greater extent than was authorised by a former law in the event of such a law being repealed; and having regard also to what was said later in much the same terms by s 10 of the Sentencing Act when s 11 of the Criminal Code was repealed.
73 As I indicated in earlier discussion, it might be thought that, even if such an argument be accepted, this will not have any significant effect upon the applicant's situation. He will still be required to serve 20 years before being eligible for parole irrespective of whether the minimum term is prescribed by statute or is set by the sentencing Judge. I will return to this point later. For the moment, I proceed from the premise that the second regime is marginally more severe because it allows for the possibility that a minimum term of more than 20 years might be set by the sentencing Judge. This might possibly have a bearing upon the grant of parole after the minimum period has been served.
74 I must give weight also to the definition of the term "sentence" in s 37(5) of the Sentencing Act, being the provision pursuant to which the present application is brought. Section 37(5) provides that "in this section
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- 'sentence' includes an order in addition to sentence". To my mind, this establishes that the facility to correct a sentence extends to an order concerning parole. However, this does not necessarily resolve the issues thrown up by the circumstances of the present case being; first, whether there was any change in the mandatory punishment for wilful murder between the date when the offence was committed and the date when the sentence was imposed; second, whether the arguably less severe provisions concerning parole allowed for under the first regime can, in the present case, be characterised as a collateral right or privilege which was preserved by the related legislation.
Transcript
75 It is clear from the sentencing transcript dated 1 May 1995, and from the structure of the sentence imposed by the learned sentencing Judge, that the sentencing of the applicant in the present case proceeded pursuant to s 40D(2c) of the Offenders Community Corrections Act, rather than pursuant to Item 2 in the Table contained in s 34 of the Offenders Community Corrections Act. Section 40D(2c) of that Act provided that a court that sentences a person to strict security life imprisonment "must" set a minimum term of at least 20 and not more than 30 years that the person must serve before being eligible for release on parole.
76 In other words, the learned sentencing Judge purported to apply the sentencing regime which was in force on 1 May 1995 (that is, the second regime) being the date when sentence was imposed, rather than applying the earlier sentencing regime which was in force when the offence was committed on 20 April 1994 (that is, the first regime).
77 The applicant has now applied to be sentenced pursuant to the first regime, being the legislation which was in existence prior to 20 January 1995. This is essentially the matter of correction that he seeks to effect pursuant to s 37 of the Sentencing Act.
78 As I have indicated, it appears that a correction of the kind applied for will not in fact alter the applicant's overall sentence of strict security life imprisonment, or the stipulation of a minimum term of 20 years before being eligible for release on parole. However, as indicated by my first preliminary observation, the correction sought by the applicant might possibly open the door to a review of his situation generally. It is for this reason that I must examine his application for a correction of sentence pursuant to s 37 of the Sentencing Act with great care.
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The correction issue
79 It appears that an order of the kind sought by the applicant was made recently by Miller J (on 17 March 2006) in the matter of State of Western Australia v Kurt Russell Seel (INS 71 of 1995) in the Supreme Court of Western Australia. That case was a case of wilful murder. Unlike the present case, a sentence had been imposed not of strict security life imprisonment but life imprisonment. A minimum term of 17 years was set by the sentencing Judge. His Honour Justice Miller noted that in such a case under the earlier regime (the first regime) the statutory penalty was a sentence of life imprisonment in relation to which no minimum term was required to be set and the offender was entitled to have the Parole Board report on his eligibility for parole 12 years after sentencing and every three years thereafter.
80 Accordingly, Justice Miller, having regard to s 10 of the Sentencing Act, allowed the application and proceeded to quash the parole order made by the learned sentencing Judge and in lieu thereof sentenced the offender to life imprisonment but without any order for eligibility for parole. He directed that the Parole Board or its successor consider the offender's entitlement to eligibility for parole pursuant to the provisions of s 34 of the Offenders Community Corrections Act (to the intent that eligibility for parole would be assessed after 12 years).
81 It is immediately obvious that in Seel's case, unlike the present case, the contrast between the requirements of the first regime and those of the second regime was a matter of real significance to the applicant for relief. A minimum term of 17 years was reduced to 12 years. No question arose as to whether an order of strict security life imprisonment should be set aside and replaced by an order of life imprisonment. As I noted in earlier discussion, s 37(5) of the Sentencing Act appears to permit correction of a parole order (if it was not made in accordance with the law under which the offence was committed) upon the basis that it is "an order in addition to sentence". It might also be said that a corrective order was justified by the provisions of the Interpretation Act mentioned earlier concerning the protection of collateral rights and privileges.
82 However, in addition to Seel's case, I must look also at the ruling of the Court of Criminal Appeal in Thompson v The Queen [1999] WASCA 266. In that case the subject offence of wilful murder was committed in 1989. The offender was sentenced in 1999 by which time the Sentencing Act 1995 had taken effect. A sentence of life imprisonment was imposed with a minimum term of 15 years. The appellant contended on appeal that
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- no minimum term should have been fixed (for if the first regime applied a minimum term was to be set by the statute not by the Court). The principal judgment concerning this aspect of the appeal was written by Justice White. His Honour made these observations:
"167 Prior to its repeal by the Sentencing (Consequential Provisions) Act 1995, the second paragraph of s 11 of the Criminal Code provided:
'If the law in force when the act or omission occurred differs from that in force at the time of the conviction, the offender cannot be punished to a greater extent than was authorised by the former law or to any greater extent than is authorised by the latter law.'
168 That provision was replaced by s 10 of the Sentencing Act 1995, which provides:
'If the statutory penalty for an offence changes between the time when the offender committed it and the time when the offender is sentenced for it, the lesser statutory penalty applies for the purpose of sentencing the offender.'
169 The term 'statutory penalty' is defined in s 5 of the Sentencing Act 1995 as "the penalty specified by a written law for the offence". The statutory penalty for the offence of wilful murder, namely strict security life imprisonment or life imprisonment pursuant to s 282 of the Criminal Code has not changed within the relevant periods and remains today as it was when the offence was committed. However, the Offenders Community Corrections Act 1963 was repealed by the Sentencing (Consequential Provisions) Act 1995. By s 90(2) of the Sentencing Act 1995, the court sentencing a prisoner convicted of wilful murder to life imprisonment must fix a minimum term of not less than 15 years (and not more than 19 years) before the offender becomes eligible for parole.
170 The provisions relating to issues of parole do not fall within the definition of "statutory penalty" within the meaning of the Sentencing Act 1995. There are no special transitional provisions in the various sentencing
- Acts which cover the situation in which the appellant finds himself.
- 171 In Siganto v R (1998) 73 ALJR 162 at 165, the High Court (Gleeson CJ Gummow, Hayne and Callinan JJ) said, in relation to the Sentencing Act of the Northern Territory:
'The Act was intended to apply to offenders being sentenced for offences committed before the commencement of the Act. Giving effect to that intention produces the result that people who had previously offended but had not yet been sentenced would be treated differently from people who had previously offended and had been sentenced. That is not relevantly inequality before the law. It is a consequence of a change in the law. The circumstances which, in a given case, meant that an offender came under the new regime would vary greatly. The Legislative Assembly could have enacted transitional provisions to cover such cases, but it did not do so and this failure to do so must (in the light of the transitional provisions that were made) be taken to be deliberate.'
172 In the Northern Territory Act, there was express provision in s 58(1) that the abolition of remissions was to be taken into account when sentencing an offender to a term of imprisonment of less than 12 months. While there is no equivalent provision in the Sentencing Act 1995, there is no reason to suppose that the omission of a relevant transitional provision in that Act was other than deliberate.
173 In the circumstances, I am of the opinion that the learned trial Judge was obliged, by the terms of s 90(2) of the Sentencing Act 1995 to impose a minimum term of 15 years before the applicant will be eligible to be considered for parole.
174 For the aforegoing reasons, I would dismiss both the appeal against conviction and the application for leave to appeal against sentence."
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83 One point of difference between Thompson's case and the present case is that in the former case sentence was imposed under the third regime. When the sentence was imposed in the present case under the second regime s 11 of the Criminal Code was still in force. Section 11 of the Criminal Code does not use the key words "statutory penalty". It speaks only of a case where the law "differs" from that in force previously. It says that the offender cannot be "punished" to any greater extent than was authorised by the former law.
84 I pause to say that little appears to turn on this, for it has been held that punishment can be equated to penalty and the proper construction of s 11 of the Criminal Code is essentially the same as the replacement provision contained in s 10 of the Sentencing Act: Richardson v Brennan [1966] WAR 159 at 160; R v Melville (2003) 27 WAR 224 at par 117.
85 However, as a matter of greater significance, I note that the reasoning in Thompson's case did not make allowance for the effect of s 37(1)(c) of the Interpretation Act, which, as in the case of a transitional provision, seeks to preserve accrued rights or privileges along the lines indicated by me in earlier discussion. Moreover, Thompson's case did not involve an application to correct a sentence with the result that White J did not give consideration to the special or expanded meaning of the term "sentence" contained in s 37(5) of the Sentencing Act.
86 Nonetheless, notwithstanding these points of difference, Thompson's case does address the issues I referred to earlier, namely, whether the penalty or punishment for wilful murder encompasses the statutory requirements concerning parole, and whether s 11 of the Criminal Code and s 10 of the Sentencing Act, have any part to play in the present case, bearing in mind that the penalty or punishment for wilful murder has remained unchanged throughout.
87 I consider that as a single Judge, pursuant to the usual rules of precedent, I am obliged to follow the ruling of the Court of Criminal Appeal in Thompson's case. Further, and in any event, it will be apparent by now that it reflects my own view of the matter. I consider that in the present case the mandatory punishment for wilful murder did not change with the result that the applicant is not at liberty to rely upon provisions such as s 11 of the Criminal Code (under the second regime) or s 10 of the Sentencing Act (under the third regime) in asserting that a correction of his sentence is required on the ground that (as allowed for by those provisions) a person cannot be punished to any greater extent than was authorised by the law in force when the offence is committed.
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88 That is because the mandatory punishment or penalty does not include any related order concerning parole, and thus it is immaterial that the parole provisions may have been "upgraded" or become more stringent since the offence was committed. To my mind, the expanded definition of the term "sentence" in s 37(5) of the Sentencing Act does not bear upon or alter this conclusion, because it does not purport to amend the penalty for wilful murder, either expressly or by implication, or to address the meaning of the term generally.
89 However, it follows from earlier discussion that the facility allowed for by s 37(5) to correct orders in addition to sentence may have a bearing upon a further question raised by the present application.
90 I noted in earlier discussion that s 37(1)(c) of the Interpretation Act provides that any right or privilege existing prior to the repeal of a written law is not affected by the repeal. This suggests that the applicant ought to receive the benefit of the less severe parole requirements of the first regime, being the law in force when the offence was committed. It follows from what I have said that I do not see Thompson's case as having direct application to this aspect of the present case, because this issue was not considered by the Court of Criminal Appeal. The definition of s 37(5) of the Sentencing Act is broad enough to permit correction of a parole order, even though, as indicated by Thompson's case, a parole order, in strict analysis, does not form part of the penalty.
91 An issue therefore arises as to whether I should follow the approach indicated in Seel and make an order for correction of the parole order pursuant to s 37 of the Sentencing Act upon the basis that the applicant's eligibility for parole is to be determined in accordance with the parole requirements of the first regime.
92 In other words, it might be said that the applicant should be sentenced to a term of strict security life imprisonment as from 1 May 1995 with a direction that eligibility for parole is to be determined and dealt with pursuant to s 37A(6)(e) and s 40D(2)(b) of the Offenders Community Corrections Act (being the law in force under the first regime). The effect of this would be that the offender would be subject to a term of strict security life imprisonment as from 1 May 1995 (when the sentence was imposed) with a minimum term being set by the statute, not by the Court (that is, he would be eligible for parole initially upon the expiration of a term of 20 years from the commencement of the term and with provision for review at three year intervals thereafter).
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93 In the end, however, in the circumstances of the present case, I am not persuaded that the line I have just described is the correct approach.
94 The law in force on 1 May 1995 under the second regime, being the moment at which the sentencing Judge was required to impose the mandatory punishment and deal with the matter of parole, was set out in s 282(1) of the Criminal Code and s 40D(2c) of the Offenders Community Corrections Act. The latter provision positively obliged the sentencing Judge to exercise the power conferred upon him; that is, a court that sentences a person to strict security life imprisonment "must" set a minimum term of at least 20 years and not more than 30 years.
95 In exercising the power to fix a minimum term it was important that the power was not exercised in a way that increased the minimum term of 20 years provided for under the first regime (as the law in force when the offence was committed), for s 37(1)(c) of the Interpretation Act provides that the repeal of a written law does not affect any right or privilege accrued prior to the repeal. However, I cannot see that s 37(1)(c) of the Interpretation Act can be used to negate or stand in the way of the exercise of the prescribed statutory power in circumstances where the power could be, and in fact was, exercised in a manner that did not actually affect or reduce the applicant's entitlement. The minimum term of 20 years set by the sentencing Judge pursuant to the statutory power vested in him under the second regime corresponded and gave effect to the applicant's entitlement to a minimum term of 20 years under the first regime.
96 Moreover, s 37(1)(c) of the Interpretation Act operates essentially to preserve accrued rights and does not preserve a right to a particular mode of procedure. To my mind, even if it be thought that parole provisions are so directly related to the liberty of the subject that they should be characterised as substantive (and thus accrued) rights, the change effected by the second regime as to the precise manner in which the minimum period was to be set should be characterised as a procedural change. The usual rule is that a procedural matter of this kind must be determined in accordance with the law in force when the trial is held and the sentence imposed. This confirms that the minimum term was properly set pursuant to the second regime: Rodway v The Queen (1990) 169 CLR 515; (1990) 92 ALR 385.
97 It follows that, in my view, as to the aspect of this matter also, I am not persuaded that there is any error to be corrected pursuant to s 37 of the Sentencing Act. The sentencing Judge was expressly required by the
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- operative statutory provision under the second regime to set a minimum term and he did so. In fact, the term of 20 years set by the Judge did not affect or reduce any collateral right or privilege vested in the applicant under the first regime. This conclusion is consistent with the ruling in Thompson's case which, held that the sentencing Judge was required to perform the statutory duty imposed upon him (in that case under the third regime) of setting a minimum term, notwithstanding that such a duty did not exist under the law in force when the offence was committed.
The life imprisonment issue
98 This brings me finally to the matter of greatest importance to the applicant. The written materials and submissions relied upon by the applicant led to the proposition that, in giving consideration to the application for correction, the Court should also revisit the question of whether the learned sentencing Judge erred in imposing a sentence of strict security life imprisonment. Further, it was said that the Court should now hold that the applicant should be sentenced to a term of life imprisonment only.
99 The applicant put the matter in this way at par 33 of his application:
"33. It is submitted that the court should quash the parole order made by the honourable Justice Heenan on the 1st May 1995 and in lieu sentence the Applicant to the most appropriate option of life imprisonment without any order for eligibility for parole and direct the Parole Board or its successor consider his entitlement to eligibility for parole pursuant to the provisions of within the Offenders Community Corrections Act 1963 s34 and s37."
100 Put shortly, the applicant's plea was that in proceeding, incorrectly, pursuant to the second regime, the learned sentencing Judge received, and inevitably considered, submissions to the effect that a minimum period of 30 years should be served before eligibility for parole owing to the gravity of the offence. It is said that submissions of this kind were bound to have had a prejudicial effect.
101 It is said further by the applicant that the allegedly prejudicial submissions would not have been made or considered if the sentencing Judge had proceeded correctly pursuant to the first regime which allowed only for a minimum period of 20 years. When the matter is viewed in this light, the applicant contended, it becomes clear that if the original sentence is to be recalled and corrected, then the justice of the situation
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- requires that the entire sentence be reconsidered including the question of whether the sentence to be imposed should be strict security life imprisonment or life imprisonment.
Conclusion
102 Various matters weigh against the applicant's endeavour to "correct" the sentence imposed upon him of strict security life imprisonment.
103 First, it follows from the reasoning in Thompson's case, which I am obliged to follow, that in the context of a conviction for wilful murder, the sentencing Judge was entitled to proceed upon the basis that the "mandatory punishment" did not include provision for parole. That was a collateral matter covered by other legislation. I am therefore obliged to conclude, and have concluded, that there is no basis upon which the prescribed penalty, which allows for a choice to be made between strict security life imprisonment and life imprisonment, and which remained unchanged throughout, can be corrected. The essential elements of the sentencing process were complied with because the mandatory term was imposed and the choice between the two alternatives was made.
104 I have held also that in the circumstances of the present case there is no matter requiring correction as to the setting of a minimum term of 20 years by the sentencing Judge under the second regime.
105 In the absence of any matter requiring correction, it follows that s 37 cannot be used as an avenue to open up a review of the applicant's situation generally.
106 Second, if it be said, having regard to the broad definition of "sentence" in s 37(5) of the Sentencing Act, which extends to orders in addition to what would otherwise be regarded as the sentence in strict analysis, that the exercise of the discretion to choose between the two forms of life imprisonment miscarried, because the sentencing Judge erred in assuming that the parole provisions of the second regime applied, I consider that, in any event, I am bound by the ruling of the Court of Criminal Appeal in the second Williams appeal.
107 In that appeal the question of which option was to apply (strict security life imprisonment or life imprisonment) was raised directly. The question of whether the discretion was exercised properly was dealt with by the Court of Criminal Appeal. The Court held that the learned Judge did not err in imposing a sentence of strict security life imprisonment. Quite clearly, I am bound by that determination. Moreover, it seems that
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- in the course of debate some reference was made to differences between the first and second regimes, but that did not affect the outcome.
108 It emerges from my lengthy narrative and analysis that there appears to be no persuasive basis upon which the earlier ruling can be set aside. In the end, there is scarcely any difference between the result available under the first regime and the result arrived at under the second regime. Thus, even if it be thought that eligibility for parole should have been determined pursuant to the first regime, it cannot be thought that this affected or was likely to affect any determination as to whether strict security life imprisonment should be imposed in circumstances where a minimum period of 20 years was destined to be set under either of the two regimes. There are no indications that in determining which was the appropriate option the sentencing Judge was influenced by submissions concerning the minimum period or that he took extraneous considerations into account. It is significant that these matters were raised but not pressed on appeal.
109 Third, although this aspect of the matter has not been fully argued, I am of the view that the power to correct in s 37 of the Sentencing Act is limited to matters of correction and does not extend to an issue of this kind which must be raised on appeal (as in fact it was). Accordingly, I am of the view that I do not have jurisdiction to respond to such an approach. A determination that an issue connected with sentencing of an offender should be corrected cannot be regarded as opening the door to debate about matters that should properly be dealt with by an appeal against the sentence imposed.
110 For all these reasons, I conclude that it is not open to me to quash the order for strict security life imprisonment by purporting to correct the same pursuant to s 37 of the Sentencing Act. If the applicant wishes to pursue this matter he may do so by mounting an appeal to the Court of Criminal Appeal. I remind him that a Notice of Appeal against this ruling must be lodged within 21 days. The relevant procedures are prescribed by the Criminal Appeals Act 2004 (WA).
Summary
111 The application for correction of sentence pursuant to s 37 of the Sentencing Act 1995 will be dismissed. I will hear from the parties as to whether any further orders or directions are required.
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