Yost v The Queen

[2012] VSCA 181

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0001

DION YOST	Appellant
	v
THE QUEEN	Respondent

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JUDGES	MAXWELL P, NEAVE and OSBORN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	2 August 2012
DATE OF ORDERS	2 August 2012
DATE OF JUDGMENT	10 August 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 181
JUDGMENT APPEALED FROM	R v Yost (Unreported, County Court of Victoria, Judge Chettle, 28 October 2011)

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CRIMINAL LAW − Appeal − Sentence – Non-parole period – Appellant serving sentence of life imprisonment − Released on parole − Subsequent offence − Carrying firearm as prohibited person − Breach of parole − Parole cancelled − Sentence of three years’ imprisonment − No non-parole period fixed − Whether trial judge erred in declining to fix non-parole period – Crown concession − Appeal allowed − Appellant resentenced to three years’ imprisonment, with a non-parole period of two years − R v Chamberlain [2001] VSCA 159 applied – Sentencing Act1991, ss 11, 13, 15, 16.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr D A Dann	Haines & Polites
For the Respondent	Mr P B Kidd SC	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P
NEAVE JA
OSBORN JA:

Summary

1. Section 11(1) of the Sentencing Act 1991 (the ‘Act’) requires that a non-parole period be fixed whenever a sentence of two years’ imprisonment or more is imposed, except where the sentencing judge considers that either:

(a)       the nature of the offence;  or

(b)      the past history of the offender,

makes the fixing of such a period ‘inappropriate’. The language of s 11(1) is exhaustive. Unless one or other of the specified matters makes it ‘inappropriate’ to fix a non-parole period, the judge is bound to fix one.

1. In the present case, the judge concluded that it was inappropriate to fix a non-parole period. As will appear, however, that decision was based on the fact that the appellant (‘DY’) was serving a life sentence, having had his parole cancelled. As the Crown properly conceded on the appeal, that was an irrelevant consideration. DY’s imprisonment status was not a matter which the judge was authorised to consider under s 11(1).

1. There had been debate on the plea about ss 15 and 16 of the Act, which respectively deal with the order of service of sentences and the question whether sentences are to be served concurrently or cumulatively. Those issues are likewise irrelevant to the limited discretion conferred by s 11(1) to decline to fix a non-parole period.

1. Understandably, no application was made for the Court of Appeal to fix a non-parole period under s 13(1). In a case such as the present, where a sentencing judge exercises the s 11(1) discretion unfavourably to the person being sentenced, there is no ‘failure’ to fix a non-parole period within the meaning of s 13(1).[1]

   [1]Section 13(1) provides that the ‘failure’ of a sentencing court to fix a non-parole period under s 11 does not invalidate the sentence, but that the Court of Appeal can fix a non-parole period on application of the offender. In R v Heazlewood [1999] 1 VR 172, the sentencing judge declined to fix a non-parole period because it was inappropriate, and it was held that s 13 did not apply. By contrast, in R v Arnold [1999] 1 VR 179, where the judge had simply failed to consider fixing a non-parole period under s 11(2), it was held that s 13 applied. See also R v Sener [1998] 3 VR 749, where the failure to fix a non-parole period was dealt with as an appeal against sentence, but no reference was made to the power under s 13. The authorities are discussed in R v Droste [2009] VSCA 102, [70]−[79].

1. At the conclusion of the appeal hearing, we allowed the appeal and resentenced DY to three years’ imprisonment.  We fixed a non-parole period of two years.  This was the period which the sentencing judge said he would have set as the non-parole period but for his conclusion that it was inappropriate to fix one.  These are our reasons for making those orders.

Sentencing at first instance

1. DY appeals against a sentence of three years’ imprisonment imposed on him following his plea of guilty in the County Court to the offence of carrying a firearm as a prohibited person (charge 1) and the summary offence of possessing cartridge ammunition without a licence (charge 2).[2]   As noted earlier, the judge declined to fix a non-parole period.  DY was granted leave to appeal on the sole ground that ‘the learned sentencing judge failed to impose a non-parole period’.

   [2]A fine of $2000 was imposed for that offence.  DY does not appeal against that sentence.

1. In 1998, DY was convicted in the Supreme Court of the Northern Territory on five counts of attempted murder.  Four of the victims of the offences were police officers.  He was sentenced to life imprisonment with a non-parole period of 12 years for the attempted murder offences.  The offences to which he pleaded guilty in the County Court were committed after he had been released on parole for the attempted murder offences, having served approximately 12 years and two months of his life sentence.  His parole was cancelled by the Northern Territory Parole Board on 8 June 2011, five days after his arrest for the Victorian firearms offences. 

1. As noted earlier, s 11(1) requires a court when sentencing an offender to imprisonment for a period of two years or more to fix a non-parole period ‘unless it considers that the nature of the offence or the past history of the offender make the fixing of such a period inappropriate’. DY contended that the judge had wrongly considered that ss 15 and 16 of the Act precluded him from fixing a non-parole period under s 11, even if he were disposed to do so, and that this Court must therefore re-sentence DY. DY did not seek any change to the head sentence.

1. The judge gave the following reasons for concluding that it would be inappropriate to fix a minimum term under s 11:

I therefore have to sentence you, having regard to principles of totality and the provisions of ss 11, 15 and 16 of the Sentencing Act1991. … I am obliged, normally under s 11, to fix a non-parole period for any sentence I were to impose on you if it was to exceed two years because that section says the court must fix a non-parole period unless the court considers the nature of the offence or the past history of the offender make the fixing of such a period inappropriate. In this case your past history is highly relevant and in addition because you are serving a life sentence in my view it is inappropriate to fix a minimum term as sanctioned by s 11 of the Sentencing Act1991.

I must not and I do not have regard to any prospects you may have of being re-paroled in the future. I sentence you on the basis that you will be in prison for life. The learned prosecutor informed me the Parole Board has indicated they would have regard to any sentence I impose in considering if and when they re-parole you. However, in my view such an approach appears to be contrary to the provisions of both s 15 and s 16(3B) of the Sentencing Act 1991.  That however is a matter for the Parole Board and not a matter for me.[3]

Mr Jackson who appeared on your behalf at your plea submitted that I should just impose a head and minimum sentence as I would but for your cancelled parole. As I have said I believe it is inappropriate to fix a minimum term in this case pursuant to s 11 of the Sentencing Act1991.  I will, however, give an indication of what such a minimum term would have been had it not been for the particular circumstances in this case.  I am not setting a minimum just giving an indication of what it would have been so that that is on record should the Parole Board see any relevance in it.[4]

…

I do not believe that I should, as I said, set a non-parole period given your history and your current life sentencing.  However, as I said I am prepared to indicate that I would have set a non-parole period of two years and three months had you not been currently serving a period of life with no minimum.[5]

[3]R v Yost (Unreported, County Court of Victoria, Judge Chettle, 28 October 2011), [11].

[4]Ibid [10]–[12] (emphasis added).

[5]Ibid [26] (emphasis added).

1. Although his Honour referred to s 11 and to DY’s past history of offending, he appears to have treated the fact that DY was serving a life sentence as precluding him from fixing a non-parole period under s 11. At the commencement of the hearing, senior counsel for the Crown conceded that this circumstance was irrelevant to the s 11(1) discretion. Counsel drew attention to the decision of this Court in R v Chamberlain.[6]  In that case, the appellant had been sentenced to life imprisonment for murder and attempted murder.  After he was released on parole, he committed trafficking, firearms and theft offences, some of which occurred after his parole on the murder offences was cancelled. 

   [6][2001] VSCA 159 (‘Chamberlain’).

1. The judge held that, because the appellant had been sentenced to life imprisonment, a non-parole period should not be fixed in relation to the sentences imposed for the offences occurring after he was released on parole.  Charles JA, with whom Brooking and Chernov JJA agreed, said that this constituted sentencing error:[7]

Although the offences were serious, I should not have thought that there was anything in their nature to make inappropriate the fixing of such a period. The appellant's past history is a different question but it was not, I think, relied on by his Honour as a consideration under s 11(1)(b).

There is nothing in the legislation to suggest that an offender the subject of a life sentence who has served his minimum term in respect of that sentence and commits further offences should not have the benefit of a non-parole period being fixed in respect of those offences. The purposes and benefits of fixing a non-parole period[8] would seem to apply just as much in the case of an offender the subject of a life sentence who has served his minimum term in respect of that sentence. An example of the imposition of a non-parole period upon an offender already serving a sentence of life imprisonment who commits a later offence is R v Jolly.[9]

[7]Ibid [16]−[17].

[8]See, for example, Bugmyv The Queen (1990) 169 CLR 525, 538;  R v Mulvale (Unreported, Court of Appeal, 20 February 1996).

[9][1982] VR 46.

1. We considered that the Crown’s concession was correct. The judge would have been entitled to take account of DY’s prior offending and his breach of parole − as aspects of his ‘past history’ − but the fact that he was serving a life sentence was an irrelevant consideration under s 11(1).

1. The Crown also conceded that the Court should fix a non-parole period of two years, which was the minimum term which the judge indicated he would otherwise have imposed. 

1. The second proposed ground of appeal was that the sentencing judge erred in failing to order that the sentence he imposed be served concurrently with the life sentence.  Leave was refused on this ground.  DY elected to renew his application on that ground.

1. Like the judge who heard the initial leave application, we consider that it was unnecessary for his Honour to make such an order.  In Chamberlain, this Court said:[10]

It is well-established that once a prisoner has been sentenced to life imprisonment, any later offence can only be served concurrently because of the nature of a life sentence;  Foy;[11] R v Jolly[12] and Taikmaskis.[13]

It follows that the effect of the order we made is that the sentences will be served concurrently. 

[10][2001] VSCA 159, [15].

[11](1962) 46 CrAppR 290.

[12][1982] VR 46.

[13](1986) 19 A Crim R 383.

1. Section 15 of the Act describes the order in which sentences will be served when an offender has been sentenced to several terms of imprisonment. It appears that, by virtue of ss 27 and 28 of the Prisoners (Interstate Transfer) Act 1983, this section applies to the term of life imprisonment imposed by the Supreme Court of the Northern Territory.  The non-parole period which we fixed will be served first.  Then, unless and until he is released on parole, DY will serve the balance of the sentence imposed for the firearms offence (s 15(1)(c)).