R v Jacques Maiorana Scc [1986] ACTSC 35 (23 May 1986)

SUPREME COURT OF THE ACT

THE QUEEN v. JACQUES MAIORANA
S.C.C. Nos. 2-11 of 1986
Criminal Law and Procedure

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Miles C.J.(1)

CATCHWORDS

Criminal Law and Procedure - sentencing - offender currently serving sentence imposed by NSW Court - Transfer of Prisoners Act 1983 (Commonwealth) - transferred sentences - principles applicable to aggregation of sentences.

Criminal Law and Procedure - sentencing - sentencing for "stale" offences - offences under consideration linked with offences for which sentences currently being served - principles applicable.

Criminal Law and Procedure - sentencing - fixing of non-parole period in relation to transferred sentences - whether ACT Court recognises expiry of non-parole period fixed by NSW Court by operation of remissions under NSW law.

R v. Longford (1970) 71 SR 288

R v. Todd (1982) 2 NSWLR 517

R v. Holder (1983) 3 NSWLR 245

Murrell v. R (1985) 58 ALR 203 at p 207

R v. Paivinen (1985) 60 ALR 155

R v. Bennett (1985) 1 NSWLR 410

HEARING

CANBERRA
23:5:1986

ORDER

In relation to the charge of being in possession of property stolen outside the Australian Capital Territory Jacques Maiorana be sentenced to a period of three years imprisonment, such sentence to commence at the expiration of the sentence or sentences which he is now serving. On all other charges Jacques Maiorana be sentenced to one year imprisonment on each charge, each sentence to be concurrent with each other and concurrent with the first sentence which has been pronounced.

A non-parole period to expire on 23 May 1987 is fixed.

DECISION

On 21 January 1986 Jacques Maiorana pleaded guilty before a Magistrate under s.90A of the Magistrates Court Ordinance 1930 to a single charge of possessing property stolen outside the Australian Capital Territory and to nine further charges of breaking, entering and stealing. He continued his pleas of guilty in this Court on 19 May 1986.

2. All offences carry a maximum sentence of 10 years imprisonment.

3. The offence of possession of property stolen outside the Australian Captial Territory occurred when the offender, in Sydney on 30 November 1983, took possession from a friend of a Holden Station Sedan which he knew to have been stolen. He drove the car to Canberra and sold it to a firm of car wreckers, receiving a cheque for $400. The true value of the car was $5,800. The wreckers promptly notified the police and payment was stopped on the cheque. At the time of the offence the offender was on parole from New South Wales. He was charged and released on bail. Whilst on bail the remaining offences with which I am now concerned were committed.

4. The remaining offences were burglaries committed between 23 December 1983 and 10 February 1984 upon residential premises in the Weston Creek area. The method of operation in each case was similar. The offender would gain entry to the premises through an open or partly open window whilst the occupants were away and remove therefrom various items, chiefly jewellery. The property stolen was taken to Sydney and exchanged for heroin or sold in order to purchase heroin. The total value of the property stolen was some $45,000. It is clear that the offences were committed in order to finance a heroin addiction. It is also clear in my view that the offender is an experienced burglar who knew what he was looking for, where to find it and how to get rid of it to his advantage. Mr. Maiorana was co-operative with the police officers when eventually after his arrest in New South Wales in March 1984 he was shown a number of crime reports relating to the offences charged and identified himself as the person responsible. He has pleaded guilty and I am prepared to conclude that he is not entirely lacking in remorse or contrition. On the other hand, he declined to assist the police with information regarding the source of heroin in Sydney and did not proffer any information whereby any of the stolen items could be recovered.

5. Mr. Maiorana has a long and involved criminal history of which evidence was given and which I do not intend to repeat in full. In 1978 sentence was deferred on two occasions in New South Wales for offences of burglary and using heroin. In the following year he was sentenced to a total of two and a half years penal servitude for three offences of burglary in New South Wales to date from 8 July 1979. A non-parole period was fixed. I am not aware of its length. I am told that he was released on parole on 29 August 1980, parole being revoked at a later date of which I am unaware, when he was arrested for the commission of further offences. In any event he was subsequently on 29 October 1981 sentenced to a total of four years penal servitude in New South Wales, that period to commence at the end of the sentence he was then serving. A non-parole period was fixed to expire on 15 January 1983. He was released on or about that date and was at large until taken into custody on 5 December 1983 for the offence of having property in possession stolen outside the Australian Capital Territory, the first of those to which I have above referred. He was released on bail in relation to that offence two days later, failed to answer bail on a later occasion and was subsequently taken into custody. I am not sure whether he was taken into custody for failing to answer bail or for breach of parole conditions. In any event, I am told that on 14 March 1984 the offender was once again in custody in New South Wales serving the unexpired portion of the sentences in respect of which parole had been granted. Subsequently in the Newtown Court of Petty Sessions on 24 April 1984 he was fined for an offence of using heroin and on 25 June 1984 was sentenced by his Honour Judge Muir in the New South Wales District Court at Sydney for a variety of offences. It is necessary to look at these with some little care. The offences and the dates upon which they were committed were as follows:

1. Culpable driving causing grievous bodily harm 10 March

1984.

2. Breaking, entering and stealing, 25 February 1984.

3. Stealing in a dwelling 13 March 1984.

4. Possessing property stolen outside the State, 10 March
1984.

5. Receiving, 28 December 1983.

6. It is sufficient to say that the effect of the sentence handed down by his Honour Judge Muir was that the offender received a total period of five years penal servitude to commence at the expiration of the sentence he was then serving and in respect of which parole had been revoked. A new non-parole period was fixed to expire on 14 March 1988.

7. I have been informed by counsel for the prosecution that enquiry from the Corrective Services authorities in New South Wales reveals that, in accordance with the remission system in that State, the non-parole period fixed by his Honour to expire on 14 March 1988 has in fact expired by way of remissions, and so expired on 4 January 1986. The Parole Board of New South Wales, however, so I am informed, has deferred making a decision as to whether the offender should be released to parole until the determination of the matters now before me.

8. The case is therefore unusual and perhaps unprecedented in that the offender comes to this Territory and before this Court as a prisoner in custody under sentence from a New South Wales Court. Normally a person sentenced to imprisonment in a State or Territory is required to serve out the term of imprisonment imposed before he may be removed to another State or Territory, usually by extradition order executed at the time when he would be otherwise due for release, to face criminal charges in that other State or Territory. Because the criminal justice systems and the penal systems in the individual States and Territories are confined within their territorial borders, it has been held by the Court of Criminal Appeal in New South Wales that a New South Wales Court could not order a prison sentence to commence at the expiration of a sentence imposed by a Court in this Territory: R v. Longford (1970) 71 SR 288. Since that time the position has been altered by the Transfer of Prisoners Act 1983 (Commonwealth) and supplementary legislation in the Australian States. Briefly, that legislation makes provision for the transfer of a serving prisoner from one State or Territory to another State or Territory for the purpose of being tried and sentenced for a crime alleged in that other State or Territory. In particular sections 18 and 19 of the Commonwealth Act make provision for transferred sentences and the fixing of non-parole periods in the receiving State or Territory as follows:

Transferred sentences

"18(1)Where a prisoner upon whom a sentence of
imprisonment for an offence against a law
of a Territory has been imposed is
transferred, in pursuance of a transfer
order, to a State or Territory, any law of
the Commonwealth (including this section)
applies, and the provisions of any law of
that State or Territory and the provisions
of the State transfer law of any other
State apply, in relation to that sentence
on and after the transfer of that prisoner
as if that sentence had been imposed upon
the prisoner under, and for an offence
against, a law of the State or Territory to
which he is transferred.

(2) Where a prisoner upon whom a sentence of
imprisonment for an offence against a law
of a State has been imposed is transferred,
in pursuance of a transfer order or a State
order of transfer or both, to a Territory,
any law of the Commonwealth (including this
section) applies, and the provisions of any
law of that Territory apply, in relation to
that sentence on and after the transfer of
that prisoner as if that sentence had been
imposed upon the prisoner under, and for an
offence against, the law of that Territory.

(3)In the application-

(a)of any law of the Commonwealth (including
this section) and of the provisions of any
law of a State or Territory in relation to
a transferred Territory sentence of a
prisoner; or

(b)of any law of the Commonwealth (including
this section) and of the provisions of any
law of a Territory in relation to a
transferred State sentence of a prisoner,
any period of imprisonment served by the
prisoner in respect of the sentence of
imprisonment to which the transferred
sentence is attributable has the effect
that it would have if the prisoner had
served it in respect of the transferred
sentence.

Transferred sentences - non-parole periods

19(1) Where a prisoner upon whom a sentence or
sentences of imprisonment has or have been
imposed under, and for an offence or
offences against, a law of a Territory,
being a sentence or sentences in respect of
which a minimum term of imprisonment has
been fixed, is transferred, in pursuance of
a transfer order, to a State or Territory,
then, in the application of the provisions
of the law of that State or Territory
relating to the fixing of minimum terms of
imprisonment, those provisions have effect
upon his being so transferred as if, in
lieu of any minimum term of imprisonment
that would or might have been fixed by or
under those provisions in relation to the
transferred sentence or the transferred
sentences, there had been fixed the
first-mentioned minimum term of
imprisonment.

(2)Where a prisoner upon whom a sentence or
sentences of imprisonment has or have been
imposed under, and for an offence or
offences against, a law of a State, being a
sentence or sentences in respect of which a
minimum term of imprisonment has been
fixed, is transferred, in pursuance of a
transfer order or a State order of transfer
or both, to a Territory, then, in the
application of the provisions of the law of
that Territory relating to the fixing of
minimum terms of imprisonment, those
provisions have effect upon his being so
transferred as if, in lieu of any minimum
term of imprisonment that would or might
have been fixed by or under those
provisions in relation to the transferred
State sentence or the transferred State
sentences, there had been fixed the
first-mentioned minimum term of
imprisonment."

9. The effect of the legislation in the instant case is that Mr. Maiorana is to be dealt with as if the sentences imposed by his Honour Judge Muir on 25 June 1984 were sentences imposed upon him under and for offences against the law of this Territory. That means for all practical purposes that the sentences now being served are to be treated as sentences of this Court.

10. I turn now to the facts personal to the offender. He was born in Nice, France on 19 January 1951 and after the death of his parents, came to Australia at the age of 18 years with his brother. He was already at that stage a qualified ceramic tiler and followed that occupation in Australia with his brother for some time. He was married in this country, but the marriage ended in divorce in about 1977. After that he became involved with a young woman who, I am told, introduced him to the use of heroin. This quickly developed into an addiction and I am quite convinced that the sad criminal history which commenced in 1978 is closely allied to Mr. Maiorana's heroin addiction. On those occasions in the past when he has been released on parole, he has not been able to resist indulging that addiction and this has inevitably led to other criminal activity. He said in evidence that at the time of the offences under consideration the purchase of heroin was costing him upwards of $600 a day, and this is consistent with the rest of the material before me. That material includes a report from the Secretary of the New South Wales Parole Board supporting Mr. Maiorana's contention that he has used his time in prison constructively and has a genuine intention to try to lead a law-abiding life upon his release from prison. He claims that he has rid himself of his heroin addiction whilst in custody at the Malabar Training Centre. That is a minimum security prison and he has worked there in charge of a team of prisoners who work in building trades. The threat of a deportation order in late 1983 did not assist the chances of Mr. Maiorana's rehabilitation at that stage when he was on parole and he offers it as an explanation in part at least of his further resorting to heroin and of the bout of offences which followed, some of which are presently before me. The deportation order has since been revoked. A report from a Probation and Parole Officer states that Mr. Maiorana's attitude towards discipline and work is outstanding and that it is accepted that he is sincere in expressing his desire to conform to lawful community life upon his eventual release. However the report expresses caution about excessive optimism whilst at the same time suggesting that a substantial lengthening of any prison sentence may well be counter-productive.

11. Counsel for the prisoner has asked me to adopt the approach of the New South Wales Court of Criminal Appeal expressed in R v. Todd (1982) 2 NSWLR 517 in that the offences now under consideration occurred a considerable time ago and that "sentencing for a stale crime long after the committing of the offences calls for a considerable measure of understanding and flexibility of approach". In that case Street C.J. said at page 519-520:

"Where there has been a lengthy postponement,
whether due to an interstate sentence or
otherwise, fairness to the prisoner requires
weight to be given to the progress of his
rehabilitation during the term of his earlier
sentence, to the circumstance that he has been
left in a state of uncertain suspense as to what
will happen to him when in due course he comes up
for sentence on the subsequent occasion, and to
the fact that sentencing for a stale crime, long
after the committing of the offences, calls for a
considerable measure of understanding and
flexibility of approach - passage of time between
offence and sentence, when lengthy, will often
lead to considerations of fairness to the prisoner
in his present situation playing a dominant role
in the determination of what should be done in the
matter of sentence; at times this can require what
might otherwise be a quite undue degree of
leniency being extended to the prisoner."

12. In the present case I have been told and I accept that Mr. Maiorana made application on 15 February 1985 for his transfer to the Australian Capital Territory from the New South Wales prison system under the Removal of Prisoners Act 1983, not long after that Act first came into operation. An order that he be so transferred was not made until 8 November 1985 and he did not come before this Court for sentence until 19 May 1986. Any delay is not attributable to fault or neglect on his part.

13. Nevertheless, I think that what is relevant for the purpose of sentencing in the present matter is not so much the staleness of the offences but the fact that they were committed clearly as part and parcel of a series of offences committed in late 1983 and early 1984 whilst the offender was travelling back and forth from Sydney to Canberra in order to indulge his heroin addiction. It is significant in my view that all the offences in respect of which the offender was sentenced by Judge Muir on 25 June 1984 were part of the same series of offences with which I have to deal. The sentence for receiving in New South Wales arose out of the same facts as the charge now before me of being in possession of property stolen outside the Australian Capital Territory. But for the jurisdictional limitations arising out of the Australian political geography Mr. Maiorana could have been sentenced in June 1984 for the whole of that series of offences. If the offender had been sentenced for the whole of that series, I think it likely that he would not have received a total of more than eight years imprisonment. As it was, he received in total a custodial sentence of five years. It is appropriate, therefore, in my view that a further three years be added to the sentence that he is now serving. The provisions of s. 18 of the Removal of Prisoners Act 1983 remove the constraints of R v. Longford (above) and provide the means whereby this Court can give effect in the instant case to what has been regarded as a proper practice, namely that where a prisoner already serving a sentence is to be sentenced to a cumulative term for a further offence, the sentence for the further offence should be expressed so as to commence at the expiration of the sentence currently being served: R v. Holder (1983) 3 NSWLR 245.

14. The approach that I have taken in this case is similar to that of Fox J. with whom Bowen C.J. agreed in Murrell v. R (1985) 58 ALR 203 at p 207 where his Honour, after referring to the delay between the time of the offences and the time of sentence, part at least of which was brought about by serving a sentence in New South Wales, said as follows:

"Counsel for the appellant has referred us to what
was said in R v. Todd (1982) NSWLR 517 (especially
at pp 519-21) and submits, in effect, that the
fact that the motor car offence and the sacrilege
offences occurred in different jurisdictions (one
in New South Wales, the other in the Australian
Capital Territory) has unfairly resulted in a
longer total period of imprisonment being
ordered. He submits that if the sacrilege
offences had been before the District Court Judge,
the total period of imprisonment ordered, and the
non-parole period, would probably not have been
increased greatly as a result, and certainly not
by the periods of imprisonment recently imposed.
The submission, as I understand, would comprehend
the extra offences which were taken into account
under s. 448 (see s. 447B of the New South Wales
Crimes Act 1900). He puts similarly the converse
situation, that of all offences being dealt with
in the Australian Capital Territory. It is
submitted, in short, that the accused would not,
in either situation, have been sentenced to
imprisonment for a total of nine and a half
years. There are obvious limitations to the
application of the principle invoked but, in my
view, there is substance in it in the present
case. The learned judge said he took account of
the passages in R v. Todd, supra, in favour of the
appellant, but he must have given no weight to
them; without taking them into account the
sentences he imposed could not, in my opinion,
have been greater.

15. The remaining matter that needs to be referred to is the fixing of a non-parole period. Section 19 of the Removal of Prisoners Act 1983 in effect brings into operation for the purposes of this case the Parole Ordinance of 1976 and in particular s. 8. I am required by s. 8(1) to fix a period as the period during which the offender is not eligible to be released on parole having regard to the aggregate of the terms of the sentence the offender is presently serving and the further sentence which I am about to hand down. According to s. 8(4)(b) the non-parole period which I must fix shall not be such as to render the offender eligible to be released on parole earlier than would have been the case if the further sentence had not been imposed. I have been told that his current head sentence is expected to expire by way of remission on 4 January 1988. The head sentence that I am about to impose therefore will not, on present calculation, commence until then. I take into account that, but for the present outstanding matters, the appellant was eligible to be released on parole in New South Wales in January 1986. The non-parole period fixed by Judge Muir to expire on 14 March 1988, as I have said, expired by way of remissions on 4 January 1986 according to New South Wales law whilst the offender was in custody in New South Wales pursuant to the sentence of a New South Wales Court. If the offender had been serving a sentence imposed by a court of this Territory the non-parole period would not have been reduced by remissions: R v. Paivinen (1985) 60 ALR 155. However, contrary to the submission put on behalf of the prosecution, I think that the effect of s. 19 of the Transfer of Prisoners Act 1983 (Commonwealth) is not to set aside the expiry of the non-parole period in New South Wales so that for the purpose of sentencing in this Court the offender should be regarded as still in custody awaiting the expiry of the non-parole period fixed by Judge Muir to expire, without regard to remissions, on 14 March 1988. In my view, Mr. Maiorana was immediately before his transfer to this Territory a prisoner whose non-parole period has expired but who remained in custody awaiting a decision from the parole authority. To take the view that the non-parole period has by virtue of the Removal of Prisoners Act 1983 not expired and will not expire until 14 March 1988 would have the effect of postponing the date of eligibility for parole to a date later than the expected date of expiry of the current head sentence. I think that the Commonwealth Parliament did not intend that result when it enacted the Transfer of Prisoners Act 1983, an Act which is concerned to bring some measure of logic and consistency into the difficult area of inter-State and inter-Territorial sentencing. If there were any doubt about the legislature's intention, it would have to be resolved in favour of the personal freedom of the offender. In all the circumstances, I deem it appropriate to fix a non-parole period which will expire one year from today, that is to say on 23 May 1987.

16. I should say that my brief reference to the application of the provisions of the Transfer of Prisoners Act 1983 may appear to be in conflict with the decision of the New South Wales Court of Criminal Appeal in R v Bennett (1985) 1 NSWLR 410. That decision, however, was concerned with the state of the law prior to the operation of the Transfer of Prisoners Act and with the construction of a section of the Crimes Act of New South Wales which is not in force in this Territory.

17. If that decision needs to be reconciled with the current statutory law in this Territory the exercise must await a further occasion.

18. Jacques Maiorana, in relation to the charge of being in possession of property stolen outside the Australian Capital Territory I sentence you to a period of three years imprisonment, such sentence to commence at the expiration of the sentence or sentences which you are now serving. On all other charges I sentence you to one year imprisonment on each charge, each sentence to be concurrent with each other and concurrent with the first sentence which I have pronounced.

19. I fix a non-parole period to expire on 23 May 1987.