R v Members of the Sentence Administration Board of the Australian Capital Territory constituted by: Professor David Hambly, Pamela Burton and John Hyndes; ex parte Javier Francisco Gomez [2001] ACTSC 119 (7 December 2001)

Last Updated: 19 March 2002

THE QUEEN v MEMBERS OF THE SENTENCE ADMINISTRATION BOARD OF THE AUSTRALIAN CAPITAL TERRITORY CONSTITUTED BY: PROFESSOR DAVID HAMBLY, PAMELA BURTON AND JOHN HYNDES; EX PARTE JAVIER FRANCISCO GOMEZ [2001] ACTSC 119 (7 December 2001)

CATCHWORDS

WRITS - habeas corpus and certiorari - parole order deemed to be revoked by virtue of suspended sentence of imprisonment imposed by Court in respect of offence committed by parolee during parole period - application for habeas corpus by parolee - Court ordered Parole Board to show cause why decision to revoke parole order should not be set aside - whether parole order revoked by suspended sentence - it is not - decisions to issue and/or revoke all subsequent parole orders relating to the parolee set aside.

CRIMINAL LAW - parole - suspended sentence of imprisonment - nature of - a sentence "pronounced but not imposed" - whether a suspended sentence is "a term of imprisonment" for the purposes of s 22(2) Parole Act 1976 - it is not - imposition of suspended sentence did not revoke parole order - decisions of the Parole Board to issue and revoke all subsequent parole orders relating to the parolee set aside.

CRIMINAL LAW - arrest - powers of - s 349Y Crimes Act 1900 enables a police officer to arrest a parolee whose parole has been revoked but who had not been detained.

Parole Act 1976, ss 7, 8, 22, 23, 25

Crimes Act 1900, ss 349Y, 556B, 556C

Rehabilitation of Offenders (Interim) Act 2001, s 61

Meehan v Lawrence (1974) 22 FLR 296

Weetra v Beshara (1987) 46 SASR 484; 88 FLR 446; 29 A Crim R 407

R v Davey [1980] FCA 134; (1980) 50 FLR 57; 2 A Crim R 254

Cooper v O'Brien [1992] NTSC 94; (1992) 111 FLR 55

Michael v Police (1993) 67 A Crim R 521

No. SC 767 of 2001

Judge: Higgins J

Supreme Court of the ACT

Date: 7 December 2001

IN THE SUPREME COURT OF THE )

) No. SC 767 of 2001

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: THE QUEEN

Plaintiff

AND: MEMBERS OF THE SENTENCE ADMINISTRATION BOARD OF THE AUSTRALIAN CAPITAL TERRITORY CONSTITUTED BY: PROFESSOR DAVID HAMBLY, PAMELA BURTON AND JOHN HYNDES

Defendants

EX PARTE JAVIER FRANCISCO GOMEZ

JUDGMENT

Judge: Higgins J

Date: 7 December 2001

Place: Canberra

THE COURT DIRECTS THAT:

Pursuant to the application for a writ of habeas corpus, I find that:

1. The suspended sentence imposed on 7 October 1999 did not revoke the parole order made on 15 August 1996.

IT IS THEREFORE DECLARED THAT:

2. The parole order made on 30 August 1996 continued until its expiry on 30 August 2000.

3. I set aside the decisions of the Parole Board of the Australian Capital Territory (as it then was) to issue and revoke all subsequent parole orders.

1. This is the return of an order nisi for a writ of certiorari to quash the declaration by the Parole Board of the Australian Capital Territory (as it then was) made on 23 November 1999 that the parole order made by the Board on 15 August 1996 was revoked.

2. It is conceded that if there had been no valid revocation of that order it would be regarded as having continued in force until its expiry by effluction of time on 30 August 2000.

3. The relevant factual background was not in dispute. On 31 August 1990, the applicant was sentenced by Gallop J to a term, in the aggregate, of 10 years imprisonment from that date for various drug and dishonesty offences. A non-parole period of six years was fixed, to expire on 30 August 1996.

4. The parole order of 15 August 1996 authorized the release of the applicant on parole as from 30 August 1996. The parole period was declared to expire on 30 August 2000. The parole order was subject to a number of express conditions including, relevantly, that the applicant would:

"(1) be of good behaviour and not violate any law.

(5) not engage in employment which is not approved by your parole officer.

(7f) you must not enter any employment, in a capacity which provides financial services, without informing the employer of your conviction of use false instrument."

5. The applicant apparently served out his parole period satisfactorily until 7 October 1999.

6. On that day, the applicant appeared before me for sentence on two counts involving the dishonest use of a credit card. On the first count I recorded a conviction and sentenced the applicant to 3 month's imprisonment. I continued:

" . . . but I suspend that sentence forthwith upon him entering into a recognizance to be of good behaviour for a period of 12 months from this date."

7. There were other conditions not now relevant. On the second count there was a deferred sentence but a conviction was recorded.

8. It was the understanding of both the prosecution and defence, and I was so informed, that a suspended sentence of imprisonment would not automatically revoke the existing parole order.

9. That advice was consistent with the advice offered by Mr Refshauge, ACT Director of Public Prosecutions, to the Parole Board by letter dated 25 November 1999, not in relation to this applicant but in relation to another offender. The DPP noted that the Parole Board had expressed the view, based on the decision of Meehan v Lawrence (1974) 22 FLR 296, that even a suspended sentence of imprisonment automatically would revoke a parole order. The DPP responded:

"The problem I have with this view is that there is no authority in this Territory to support Meehan's case. I can only indicate to you that my experience has been that generally sentencing tribunals in this Territory are not of the view that a suspended sentence automatically revokes any current parole. It cannot be, for example, that the judge in this particular case intended that the ultimate result from what he clearly wanted to be a term which was not activated immediately would be the exact opposite of what he ordered. I agree that if the current provisions of the Parole Act are read literally then the imposition of a suspended sentence would mean that [the offender's] parole was automatically revoked on [date]. I am not of the view however, that they should be read literally, rather I am of the view that the relevant provisions of the Parole Act are machinery so that when a prisoner receives an immediate term any current parole is revoked."

10. The DPP, therefore, declined to seek a warrant for the return of the offender to custody.

11. The Secretary to the Parole Board, by minute dated 14 October 1999, also sought advice from the ACT Government Solicitor on the issue, noting, however, that if a parolee was given a suspended sentence:

"There is no defined mechanism to bring the parolee back into custody."

12. On 22 October 1999, the ACT Government Solicitor advised, contrary to the DPP view:

"The fact that a person is on parole having been released from prison for one offence, does not affect the fact that they have been tried for another offence and the judge has seen fit to impose a sentence of a term of imprisonment, albeit one that is only threatened."

13. Reliance was placed upon Meehan v Lawrence (supra). It was suggested that the Parole Board be represented at any sentencing of parolees and that s 25 of the Parole Act 1976 ("Parole Act") might be used to take a sentenced parolee into custody.

14. It was acknowledged that this might not be practicable.

15. On 28 October 1999, the ACT Government Solicitor gave advice concerning whether a sentenced parolee, released on a suspended sentence of imprisonment, could be considered a "prisoner unlawfully at large" within the meaning of s 349Y of the Crimes Act 1900 ("Crimes Act"). Whilst acknowledging that possibility, the ACT Government Solicitor pointed out that if the advice he had given was wrong, the parolee would have been unlawfully apprehended. He recommended that the matter be brought before a judge of this Court for a ruling.

16. That did not happen.

17. The Board met on 3 November 1999 to discuss the consequences of the applicant's convictions of 7 October 1999. It resolved that the applicant was to be considered "a prisoner at large" and that the DPP be informed that the Parole Board considered that automatic revocation of parole occurred with all sentences of imprisonment whether served or not. (ie "suspended sentences; retrospective sentences; or sentences to the rising of the Court")

18. The Secretary wrote to the DPP on 8 November 1999 advising that the Board was seeking a warrant to return the applicant to prison. The applicant's parole officer, on 12 November 1999, wrote to the Board strongly advising against that course.

19. As a result, on 17 November 1999, the Board resolved to issue a fresh parole order. A notice dated 23 November 1999 was created recording the revocation of the parole order of 15 August 1996.

20. On 24 November 1999, a fresh parole order was issued similar to the order previously issued (it had been amended in minor respects during 1998).

21. The effect of the new order, if valid, was to extend the expiry date of the head sentence to 6 October 2003.

22. The applicant was not advised of the above proceedings following 7 October 1999, nor of the making of the new parole order, though it was mentioned to him by his parole officer at some later date.

23. Subsequently, on 10 October 2000, again in the absence of the applicant, the Board noted a report that the applicant had pleaded guilty to a charge of possessing heroin. He had yet to be sentenced. The Board resolved to proceed to obtain a warrant to bring the applicant before a meeting of the Board to consider this apparent breach of the conditions of parole.

24. Given that the applicant was not then in custody, it is surprising that the Board did not proceed by way of a direction for him to attend. That would have avoided an unnecessary period in custody before the Board decided whether or not to revoke the parole order. However, a warrant was issued on 13 October 2000.

25. The Board met on 17 October 2000. The parole order was revoked, the Board stating it would review his situation depending on the sentence imposed. The plea of guilty was not the only breach of parole conditions alleged.

26. Others related to obtaining employment without the leave of his parole officer, "providing financial services" without informing the employer of his convictions, relapsing into heroin use and travelling interstate without permission to obtain heroin.

27. Whether the alleged breach of parole conditions were all found proved is not apparent from the minutes of the Board, but none of them seemed to be contested so far as the facts relied on to constitute the breaches were concerned. I would only comment that it was at least arguable that some of the facts relied on did not constitute a breach of the particular parole conditions relied on but it is unnecessary to further consider that issue. Revocation, if there was a valid parole order then in existence, was clearly an option open to the Board.

28. The applicant was kept in prison then until 13 February 2001 when he was released pursuant to a fresh parole order dated 23 January 2001. It was noted in that order that the head sentence would now expire on 17 October 2004.

29. A "breach report" was submitted on 26 June 2001. It alleged a breach of conditions (5) (unapproved employment), (7e) (owning, leasing or managing a business without informing the employer of prior relevant convictions) and (7g) (entering into employment in a capacity which provides financial services without so informing the employer).

30. On 23 July 2001 a warrant was issued alleging only on a breach of condition (5).

31. Pursuant to that warrant, the applicant was arrested and held in custody until 27 July 2001 when the Board, after hearing from the applicant and his counsel, Mr Livingstone (who represents the applicant in these proceedings), resolved to revoke the parole order of 23 January 2001.

32. The applicant has been in custody since then.

33. At the hearing, the applicant conceded that he had not received prior permission from "his" parole officer before taking a clerical position at a gymnastics club. However, he did inform the "duty officer" of his intentions. The "duty officer" is a parole officer assigned to deal with parolees in the absence of "their" parole officer. He informed "his" parole officer some weeks later but the job had by then terminated. He conceded he could have been more diligent in advising "his" parole officer of the employment he had accepted.

34. The Board found condition (5) breached (though it made no finding as to condition (7)). It indicated that a fresh order would be considered in 6 months time. By that time, it was noted, the head sentence would not expire until 29 March 2005.

35. It is arguable that the notification to the duty officer in fact satisfied condition (5) but it is unnecessary to consider the revocation order of 27 July 2001 at this time.

36. A further issue was raised as to whether the time spent in custody awaiting the Board's decision would count towards the sentence remaining. It does not seem that it does, which suggests that warrants to apprehend parolees the subject of breach allegations should issue more sparingly.

37. On 27 November 2001, the applicant was brought before me on an application for a writ of habeas corpus, challenging the legality of his detention as a sentenced prisoner. I issued an order nisi for a writ of certiorari to quash what was then considered to be a decision to revoke parole made by the Board on 24 November 1999.

38. It now appears that the Board did not make a decision but simply took the view that the sentence imposed by me on 7 October 1999, albeit unintentionally, had automatically revoked the then existing parole order.

39. It is that issue which now falls for decision. Mr Erskine, for the respondent, concedes that if the view taken by the Board was wrong there is not, and has not since 30 August 2000 been, a valid parole order in force relating to the applicant. Since that time there has been no parole order for the Board to revoke.

Arguments of Counsel

40. The argument of counsel reflected the disputation that had been engaged in between the ACT Government Solicitor and the DPP. Whatever may have been the assumption of sentencing judges and magistrates, it is common ground that there is no direct authority on the issue in this Territory.

41. Mr Erskine relies on the literal meaning of s 22 of the Parole Act (as it was at all relevant times for the purposes of these proceedings). That view is supported by Meehan v Lawrence (supra).

42. Mr Livingstone supports the DPP's view that s 22 is clearly not intended to convey that meaning.

The true construction of s 22

43. Sub-section 22(2) is the relevant provision:

"Where the person to whom a parole order relates is sentenced to a term of imprisonment in respect of an offence (including an offence against a law of the Commonwealth or of a State or of another Territory) committed during the parole period, the parole order shall be deemed to have been revoked and, if the parole period has already expired, to have been revoked immediately before the expiration, of the parole period."

44. The consequences of such a revocation is that, subject to the issue of a further parole order (s 23), the parolee becomes immediately liable to serve the balance then unexpired of the original sentence (s 24). Under the Parole Act "street time" does not count at all. Thus the applicant had his parole order been validly revoked, was liable to serve the balance of his 10 year sentence (4 years) as if it commenced from the date of revocation. That provision has the effect of extending the expiry of the sentence the least for those who commit a breach of parole early in the parole period rather than towards its expiry. That anomaly is avoided in New South Wales where "street time" is counted towards expiry of the sentence.

45. It is of interest to note the terms of s 25. It empowers the apprehension of a person on parole:

"(2) Where a judge of the Supreme Court is satisfied by information on oath that a person has failed to comply with a condition of a parole order, the judge may issue a warrant for the apprehension of the person and for the bringing of the person before the Board." (emphasis added).

46. Subsection 25(3) confers a similar power if "there are reasonable grounds for believing that a person will not comply" with any such condition.

47. The consequences of the appearance of the parolee before the Board is that:

"(7) Where a person who has been apprehended under a warrant issued under this section is brought before the Board, the Board may:

(a) revoke the parole in relation to that person;

(b) vary the parole order in relation to that person; or

(c) direct that the person be released from custody.

(8) Where a parole order is revoked, the person to whom the order related shall, unless he or she is again released on parole, be liable to be detained in prison for a period equal to the period for which he or she was liable, on the date on which he or she was released on parole under the revoked order, to be detained in prison."

48. That provision has no application to a person whose parole order is revoked pursuant to s 22(2). It is significant that there is no provision in the Act authorising the apprehension of a parolee to whom that sub-section applies.

Does s 22 of the Parole Act require revocation of the parole order of 15 August 1996?

49. The sentence imposed on the applicant on 7 October 1999 was imposed pursuant to s 556B Crimes Act. That provides, relevantly:

"(1) Subject to this section, where a person is convicted of an offence against the law of the Territory, the court by which he or she is convicted may, if it thinks fit, by order-

(b) sentence the person to a term of imprisonment but direct that the person be released . . . either forthwith or after he or she has served a specified part of the sentence imposed upon him or her."

50. If the person is released forthwith then no part of the sentence of imprisonment will be served. If the person is released after serving a portion of the sentence, the remainder of it will not be served. If the conditions of the release are breached then s 556C applies. The sentencing court may:

"(4)(e) in a case where the person having been sentenced, was released forthwith or after he or she had served a specified part of the sentence imposed on him or her - commit the person to prison to undergo imprisonment for such term, being a term not exceeding the sentence or balance of that sentence, as the case requires, or make any order (including an order under section 556B(1)) which the court would, if he or she had then and there been sentenced for the offence of which he or she was originally charged, be empowered to make."

51. The question is whether, following the release of the person given a suspended sentence, the period of imprisonment then not required to be served is "a term of imprisonment" for the purposes of s 22(2) of the Parole Act.

52. A sentence such as was imposed on the applicant on 7 October 1999 is referred to as a "suspended" sentence of imprisonment, though in terms of s 556B it is an order for immediate conditional release after the imposition of a term of imprisonment.

53. However, as the Full Court of the Supreme Court of South Australia in Weetra v Beshara (1987) 46 SASR 484; 88 FLR 446; 29 A Crim R 407, noted the two forms of the order made are analogous. Indeed, the common form of the sentence pursuant to s 556B(1)(b) refers expressly to suspending the term of imprisonment referred to therein.

54. It is, I consider, important to reflect on the nature and effect of a suspended sentence. In R v Davey [1980] FCA 134; (1980) 50 FLR 57; 2 A Crim R 254, a Full Court of the Federal Court of Australia (Bowen CJ, Muirhead and Evatt JJ) considered a suspended sentence given to an Aboriginal offender by Gallop J (SCNT). The Crown appealed. Muirhead J handed down the principal judgment. At p 65, his Honour said:

"There are occasions when a judge determines he can only extend that protection [of the community] by severe punishment; there are other situations when he will reach the view that probation, suspension of sentence or community work orders are appropriate, not because they will be less unpleasant for the prisoner, but because they may be productive of reformation which offers the greatest protection to society."

And at p 66:

"The Crown also contends that his Honour erred in suspending the operation of the sentence of imprisonment with the result that having entered into the recognizance the respondent was entitled immediately to be at large. The Crown's argument at times seems to have equated release under suspended sentence of imprisonment to simple release under a good behaviour bond where punishment is deemed inappropriate. But before a court reaches the stage of suspending a sentence it must first determine that imprisonment for the offence in question is the appropriate penalty - that other forms of conditional release, fines and the like are not appropriate. But sentence of imprisonment is passed and the person in question may be required to serve such a sentence upon breach of the conditions of release."

55. It will be observed that his Honour expressed the difference between a sentence of imprisonment being made operative and being "passed". The sentence of imprisonment, if suspended, is passed but not then imposed. Nor, insofar as such a sentence is partially suspended, is the suspended portion "imposed" unless, upon breach, that course is taken by the sentencing judge.

56. Nevertheless, as Angel J pointed out in Cooper v O'Brien [1992] NTSC 94; (1992) 111 FLR 55 a suspended sentence, though more severe as a condemnation of the offence in question compared with other forms of conditional release, is more lenient than "a term of imprisonment" which is not suspended.

57. That is not to say that a suspended sentence is a "soft option" and "no deterrent". Olsson J in Michael v Police (1993) 67 A Crim R 521 pointed out, at 524:

"...it is quite incorrect to suggest that a suspended sentence is no deterrent and a soft option ... the imposition of a suspended sentence may in fact be the most effective means of both affording protection to the public by virtue of the very real sanction to ensure future, continuing good behaviour and, at the same time, promoting the rehabilitation of the offender."

58. A suspended sentence does not commit the offender subject to it to prison. It does not sentence the person to imprisonment. Its force lies in the fact that a sentence of imprisonment was pronounced on the offender which might well be actually imposed if the conditions upon which the order for suspension was made are not complied with.

59. Does s 22(2), therefore, apply to a sentence of imprisonment pronounced but not imposed?

60. First, it is obvious that a person to be a parolee must have been a person who, immediately before a parole order is made, or takes effect, was serving a sentence of imprisonment and, further, had completed the non-parole portion of that sentence (see s 20).

61. Section 7 relates to fixing of non-parole periods. Sub-section 7(1) provides:

"Subject to subsection (2), where a court sentences a person to a term of imprisonment of not less that 12 months ... the court shall fix a period as the period during which the person is not to be eligible to be released on parole...."

62. That does not apply to such a sentence if the sentence is suspended (see s 7(2)).

63. Section 8 applies to a person "who is serving a sentence of imprisonment" and who is "sentenced to a further term of imprisonment". Section 7 is declared to apply to that person "as if the court by which the further sentence is imposed had sentenced the person to imprisonment for a term equal to the aggregate of the terms of the previous sentence and the further sentence".

64. It is apparent that s 8 has no application to a further sentence the operation of which is wholly suspended. Subsections 8(3) and (4) are in the following terms:

"(3) The imposition of the further sentence revokes any non-parole period fixed in respect of the previous sentence.

(4) A non-parole period fixed the time of the imposition of the previous sentence-

(a) shall be taken to have commenced on the date on which the previous sentence was imposed; and

(b) shall not be such as to render the person eligible to be released on parole earlier than would have been the case if the further sentence had not been imposed.

65. If the power to refix the non-parole period of a serving prisoner is not activated by a suspended sentence, it is difficult to understand a policy that would automatically revoke a parole order if a parolee is given such a sentence.

66. I have already noted that s 25 does not empower the arrest of a parolee whose parole order has been revoked by reason of being sentenced to a term of imprisonment. The assumption is that such a person has been committed to prison, as a result is serving the remainder of his or her sentence and the only issue is whether a new parole order is to be made.

67. It was suggested that s 349Y of the Crimes Act may provide a remedy. It provides:

"(1) A police officer may, without warrant, arrest a person whom the police officer believes on reasonable grounds to be a prisoner unlawfully at large."

A "prisoner unlawfully at large" is defined to mean:

"... a person who is at large (otherwise than because the person has escaped from lawful custody) at a time when the person is required by law to be detained under a law of the Territory, a State or another Territory."

68. It seems to me that there is force in that suggestion. It applies to, for example, a prisoner mistakenly released from prison before his or her term has expired. I see no reason why it would not apply to a parolee whose parole had been validly revoked but who had not been detained to serve the balance of his or her sentence.

69. What then of Meehan v Lawrence (supra)? In that case, Forster J contrasted the Northern Territory equivalents of s 556B(1)(b) (Crimes Act) and s 22(2) (Parole Act). There was a suspended sentence of one month. His Honour noted, at 297:

"It seems to me that on its face the sentence was one of imprisonment which, for reasons which are not now relevant, had its immediate operation suspended and which, if the defendant observed the terms of his recognizance, would cease to have any effect at all at the end of that term but which, if the defendant committed a breach of the terms of his recognizance, would come wholly or partially into effect."

70. With respect to his Honour, it is not a decisive difference. The suspended term does not necessarily come into effect, even partially, on proof of breach of conditions. It is merely raises that as one of a number of sentencing options.

71. It appears that there was a concession by counsel for the parolee that:

"(298) ... if there was not a sentence of imprisonment then there was simply a sentence of release upon a bond."

72. This concession was not, in my view, correct. In each case, of course, there is an immediate release. In each case there is a bond. However, in the case of a suspended sentence there is the additional option on breach of imposing all or part of the suspended sentence.

73. In my view that does, contrary to his Honour's view, alter the essential character of the sentence. In my respectful opinion it is not possible to refer to a suspended sentence of imprisonment as merely "a term of imprisonment". That is to ignore the important fact that the sentence has not been brought in to operation.

74. In any event, it seems to me that the ACT Parole Act is so framed as to exclude from s  22(2), suspended sentences.

75. Whether a retrospective term does not currently fall for determination but is one which activates revocation insofar as that sentence has been brought into operation, albeit retrospectively, there seems no reason why it would not, upon imposition, revoke an existing parole order and require an order to be made under s 8 of the Parole Act. The imposition of the "further sentence" will cause the parolee at that instant to be serving the previous sentence of imprisonment insofar as it remains unexpired.

76. I do not consider a sentence "to the rising of the Court" is a real sentence of imprisonment. It merely discharges the accused with a finding of guilt and releases him or her from the custody of the court.

77. I note that s 61 of the Rehabilitation of Offenders (Interim) Act 2001 now resolves the ambiguity identified under s 22(2) of the Parole Act in favour of excluding suspended sentences of imprisonment as sentences which will automatically revoke a parole order. In my view, it confirms the original legislative intent I have perceived in s 22(2).

78. Accordingly, I direct, pursuant to the application for a writ of habeas corpus, that:

1. The suspended sentence imposed on 7 October 1999 did not revoke the parole order made on 15 August 1996.

2. That parole order continued until its expiry on 30 August 2000.

3. I set aside the decisions of the Parole Board of the Australian Capital Territory (as it then was) to issue and revoke all subsequent parole orders.

79. I will hear the parties as to any further or other orders which may be necessary or desirable.

80. The orders nisi for writs of habeas corpus and of certiorari are to the extent warranted by these reasons made absolute.

I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice

Associate:

Date: 7 December 2001

Counsel for the Sentence Administration Board: Mr C Erskine

Solicitor for the Sentence Administration Board: ACT Government Solicitor

Counsel for Mr Gomez: Mr Livingstone

Solicitor for Mr Gomez: ACT Legal Aid Office

Date of hearing: 4 December 2001

Date of judgment: 7 December 2001