Williams v The State of Western Australia
[2007] WASCA 88
•13 MARCH 2007
WILLIAMS -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 88
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASCA 88 | |
| THE COURT OF APPEAL (WA) | 02/05/2007 | ||
| Case No: | CACR:115/2006 | 13 MARCH 2007 | |
| Coram: | STEYTLER P WHEELER JA BUSS JA | 12/03/07 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Appeal and application for leave dismissed | ||
| B | |||
| PDF Version |
| Parties: | WAYNE JOHN WILLIAMS THE STATE OF WESTERN AUSTRALIA ROSS ANDREW LITTLE |
Catchwords: | Criminal law and procedure Sentencing Parole regime altered between date of offence and date of sentence |
Legislation: | Criminal Code (WA), s 11 (former) Criminal Law Amendment Act 1994 (WA) Interpretation Act 1984 (WA), s 37 Offenders Community Corrections Act 1963 (WA), s 34, s 37A(6)(e), s 40D(2c), s 40D(2d), s 40D(2f) Sentencing Act 1995 (WA), s 37 |
Case References: | Williams v The Queen (1995) 15 WAR 559 Williams v The Queen (1996) 17 WAR 17 Williams v The State of Western Australia [2006] WASC 165 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : WILLIAMS -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 88 CORAM : STEYTLER P
- WHEELER JA
BUSS JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
(Page 2)
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : HASLUCK J
File No : INS 236 of 1994
Catchwords:
Criminal law and procedure - Sentencing - Parole regime altered between date of offence and date of sentence
Legislation:
Criminal Code (WA), s 11 (former)
Criminal Law Amendment Act 1994 (WA)
Interpretation Act 1984 (WA), s 37
Offenders Community Corrections Act 1963 (WA), s 34, s 37A(6)(e), s 40D(2c), s 40D(2d), s 40D(2f)
Sentencing Act 1995 (WA), s 37
Result:
Appeal and application for leave dismissed
Category: B
Representation:
CACR 115 of 2006
Counsel:
Appellant : In person
Respondent : Mr S Vandongen
Solicitors:
Appellant : In person
Respondent : State Director of Public Prosecutions
CACR 17 of 2007
Counsel:
Appellant : Mr S B Watters
Respondent : Mr S Vandongen
Solicitors:
Appellant : Thames Legal
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Williams v The Queen (1995) 15 WAR 559
Williams v The Queen (1996) 17 WAR 17
Williams v The State of Western Australia [2006] WASC 165
(Page 4)
1 JUDGMENT OF THE COURT: These applications were dismissed by the Court on 13 March 2007. Because the statutory context is clear, we are able to explain very briefly why we did so.
2 The two appellants were co-accused in relation to the murder of one Mr Laing on 20 April 1994. Both were convicted of wilful murder and were sentenced by Heenan J on 1 May 1995. In respect of Mr Little, it was conceded by his counsel at the time that, if he was sentenced to life imprisonment, the minimum period which could be fixed before his eligibility for release on parole was 15 years. He was sentenced to life imprisonment, with a minimum term of 15 years fixed as the period which he must serve before being eligible for release on parole. So far as Mr Williams was concerned, he was sentenced to strict security life imprisonment, and a minimum period of 20 years was fixed before which he would be eligible for release on parole.
3 There had been a change in the legislative provisions concerning release on parole of offenders convicted of wilful murder, in the period between the commission of the offence and the sentencing of the two appellants. The Offenders Community Corrections Act 1963 (WA) (the 1963 Act), at the time of the offence, prohibited a court from making a parole eligibility order in respect of either strict security life imprisonment, or life imprisonment.
4 The 1963 Act provided that, in the case of persons serving a sentence of life imprisonment, a mandatory report was required at least every three years after the expiration of a period of 12 years' imprisonment. That is, in the absence of an order of strict security life imprisonment, the minimum period of imprisonment to be served was 12 years. By the Criminal Law Amendment Act 1994 (WA) (the 1994 amendments), which came into operation on 20 January 1995, s 40D(2d) of the 1963 Act was amended to provide that a court imposing life imprisonment for wilful murder must set a parole eligibility date at the expiration of a period of between 15 and 19 years' imprisonment.
5 So far as strict security life imprisonment was concerned, the 1963 Act required a mandatory report at least every three years after the expiration of a period of 20 years' imprisonment, in the ordinary case. It provided that the Governor could not release a person serving such a sentence before 20 years of it had been served. Following the 1994 amendments, s 40D(2c) of the 1963 Act provided that a court imposing strict security life imprisonment was to set a parole eligibility date after the expiration of between 20 and 30 years, unless the Court specifically
(Page 5)
- ordered there should be no parole. The mandatory report was required every three years after the expiration of the minimum term set by the Court.
6 The practical effect of all of this was that the 1994 amendments created a regime in which it was open to the Court to impose upon offenders convicted of wilful murder non-parole periods which were longer than the minimum periods provided for under the 1963 Act.
7 Mr Williams appealed his conviction in August 1995, but that appeal was dismissed: Williams v The Queen (1995) 15 WAR 559. He appealed his sentence of a strict security life imprisonment, although he abandoned the point presently in issue, and was refused leave by the Court of Criminal Appeal in 1996: Williams v The Queen (1996) 17 WAR 17. On 22 May 2006, Mr Williams filed an application with the Supreme Court requesting, pursuant to s 37 of the Sentencing Act 1995 (WA), that the order of Heenan J made on 1 May 1995 be recalled and that he be re-sentenced according to law. That application was dismissed by Hasluck J on 4 August 2006: Williams v The State of Western Australia [2006] WASC 165. On 25 August 2006, Mr Williams lodged a notice of appeal against that decision.
8 On 2 January 2007, Mr Little also sought an order pursuant to s 37 of the Sentencing Act 1995 that the sentence imposed upon him be recalled and corrected. That application was heard by Hasluck J on 9 February 2007, and dismissed by his Honour on the same day. By a notice of appeal dated 27 February 2007, Mr Little sought to appeal that decision.
9 Mr Williams was granted leave to appeal from the decision of Hasluck J on 6 November 2006, while so far as Mr Little was concerned, his leave application was referred to the Court of Appeal on 28 February 2007. Technically, therefore, the Court was hearing on 13 March the appeal of Mr Williams and the application for leave of Mr Little. Both raised the same issues, and they were dealt with together. Technically, the order announced at the conclusion of that hearing, that "each application for review is dismissed", was incorrect; rather, the effect of the Court's decision was, and the formal orders should be, that Mr Little be refused leave to appeal and that Mr Williams' appeal be dismissed.
10 The reasons in each case for dismissing the application and the appeal are the same, and the two matters can now be dealt with together in these reasons. The arguments of each appellant before Hasluck J turned upon two issues. First, each appellant asserted that pursuant to the then
(Page 6)
- s 11 of the Criminal Code (WA) (since replaced by s 10 of the Sentencing Act 1995) each should have had the benefit of whichever regime was the more favourable to him, and it was asserted that the 1963 Act, which was in force at the date of the offence, was the more favourable. Section 11 of the Criminal Code had provided that if the law in force when the act or omission occurred differed from that in force at the time of conviction, the offender could not be punished "to a greater extent" than was authorised under the former law or to any greater extent than authorised under the latter law. Section 10 of the Sentencing Act now provides, somewhat more clearly, but to the same effect, that if the statutory penalty for an offence changes between the time of commission of the offence and the time of sentencing, the lesser statutory penalty applies for the purpose of sentencing.
11 The second limb of the appellants' argument concerned the application of s 37 of the Interpretation Act 1984 (WA) which provides that a repeal of an enactment does not, unless the contrary intention appears, "affect any right, interest, title, power or privilege created, acquired, accrued, established or exercisable … existing prior to the repeal".
12 It is not necessary to deal with either of the two submissions just mentioned. They concern statutory provisions of general effect, each of which will be capable of being applied in the absence of express statutory provision to the contrary. At the time at which the appellants were sentenced, however, there was an express statutory provision which required that the 1994 amendments be applied to them. That provision was not drawn to the attention of Hasluck J. However, the respondent relied upon it at the hearing before us.
13 On 1 May 1995, when both appellants were sentenced, there had been inserted in the 1963 Act the following provisions:
"40D …
(2c) A court that sentences a person to strict security life imprisonment must, if it does not make an order under subsection (2a), 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.
(2d) A court that sentences a person to life imprisonment for wilful murder must set a
- minimum term of at least 15 and not more than 19 years that the person must serve before being eligible for release on parole.
- (2e) …
(2f) Subsections (2c) to (2e) apply in respect of a person irrespective of whether the offence concerned was committed before, on or after the commencement of the 1994 Act [emphasis supplied]."
14 The 1994 amendments defined "commencement of the 1994 Act" as the day of commencement of Pt 6 of the Criminal Law Amendment Act 1994. Part 6 of that Act came into force on 20 January 1995.
15 In our view, s 40D(2f) makes the position clear beyond argument. In the case of sentences of life imprisonment for wilful murder, whatever the requirements of s 11 of the Criminal Code or s 37 of the Interpretation Act might otherwise have been, Parliament specifically provided that all persons who were sentenced by a court to life imprisonment for wilful murder would be subject, from 20 January 1995, to the new regime.
16 Confirming what is in any event a very clear legislative intention, we note that the amendments to the 1963 Act effected by the 1994 amendments included the addition of item 7a in the table to s 34 of the 1963 Act. It referred to a prisoner undergoing a sentence of life imprisonment in respect of an offence of wilful murder that was "imposed on or after the commencement of the [1994 amendments]" and provided that such a prisoner was to be reported on at the "date of the expiration of the minimum term set by the court under s 40D(2d)" [emphasis supplied].
17 Mr Williams contended that s 40D(2f) of the 1963 Act was beyond power because the 1994 amendments which introduced that section did not amend or repeal s 37A(6)(e) of the Act, which then provided that the Court could not make an order that a convicted person be eligible for parole in a case in which strict security life imprisonment or life imprisonment had been ordered. That section only fell away when the 1963 Act was repealed by the Sentencing Act 1995 (WA). However, when the 1994 amendments to the 1963 Act came into effect, s 37A(6)(e) had to be read together with s 40D. Plainly, the setting of a minimum term pursuant to s 40D(2c) and (2d) was not regarded, for the purposes of the 1963 Act as amended, as amounting to an order under s 37A(1) of that
(Page 8)
- Act declaring that a convicted person be eligible for parole. There is consequently no substance to this contention.
18 For completeness, we would add that there was a question before Heenan J concerning whether an issue of the kind raised by the appellants was one with which s 37 of the Sentencing Act 1995 authorised the Court to deal. It was not necessary for us either to hear argument in relation to that question, or to determine it.
3
5