Re Auvo Kalevi Paivinen v R [1985] FCA 12; 4 FCR 549 (6 February 1985)

FEDERAL COURT OF AUSTRALIA

Re: AUVO KALEVI PAIVINEN
And: THE QUEEN
No. ACT G33 of 1984
Criminal Law
4 FCR 549

COURT

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY
DISTRICT REGISTRY
GENERAL DIVISION
Bowen C.J.(1), Fox(2) and Blackburn(3) JJ.

CATCHWORDS

Criminal Law - Appeal from sentence - Considerations in fixing non-parole period in A.C.T. - Whether entitlement to reduction in non-parole period under New South Wales legislation to be taken into account.

Removal of Prisoners (Australian Capital Territory) Act 1968 s. 5

Parole Ordinance 1976 (A.C.T.) s. 7

Probation and Parole Act 1983 (N.S.W.) s. 19, s. 25

Probation and Parole Regulation 1984 (N.S.W.) reg. 18

Criminal Law - Sentence - Australian Capital Territory - Parole of prisoners - Fixing of non-parole period - Effect of statutory provisions for remission - Probation and Parole Act 1983 (NSW), ss 19, 25 - Probation and Parole Regulation 1984 (NSW), reg 18 - Parole Ordinance 1976 (ACT), s 7. Held (Blackburn J dissenting), that a judge of the Supreme Court of the Australian Capital Territory in fixing a non-parole period under the Parole Ordinance 1976 (ACT), s 7 is required to determine the minimum period for which the offender should be imprisoned and it would be incorrect to increase the period which he would otherwise have fixed by reason of entitlement to remission under the Probation and Parole Act 1983 (NSW).

Power v. The Queen [1974] HCA 26; (1974) 131 CLR 623; R. v. O'Brien (1984) 2 NSWLR 449; R v. Yates (1985) VR 41; R. v. Brennan (1984) 36 SASR 78, followed.

R. v. Raspovic unreported (Supreme Court ACT, Gallop J, 30 May 1984); R. v. Innes unreported (Supreme Court ACT, Blackburn CJ, 21 August 1983) and R. v. Waghorn unreported (Supreme Court ACT, Kelly J, 28 September 1984), not followed.

The terms of the Parole Ordinance 1976 (ACT), s 7 are set out in the judgment of Bowen CJ at 553.

HEARING

1984, October 29; 1985, February 6. 6:2:1985
APPEAL

Appeal from sentences imposed by the Supreme Court of the Australian Capital Territory (Gallop J).

H D Palmer and G P Walker, for the appellant.

L Morris QC and W Roser, for the respondent.

The Prison Regulations 1968 (NSW), Pt XV provide for remission. The Probation and Parole Act (NSW) 1983, s 25 and the regulations thereunder (reg 18) provide in effect that the non-parole is to be reduced in the same proportion as remission is granted off the head sentence. It is not permissible for a sentencing judge to increase the non-parole so as to avoid the result of the legislation: R. v. O'Brien (1984) 2 NSWLR 449; R. v. Yates (1985) VR 41

The position of Australian Capital Territory prisoners in New South Wales is the same as that of NSW prisoners: Removal of Prisoners Act 1968 (ACT), s 5; Commonwealth Prisoners Act 1967, s 19. It is the intention of the legislature and justice demands that ACT prisoners serving sentences in NSW should be treated the same as NSW prisoners.

L M Morris QC and W Roser, for the respondent.

An appellate court will only interfere with a sentence imposed if it can be shown that the sentencing judge was in error or acted on a wrong principle or misunderstood or wrongly assessed some salient feature of the evidence, and that is not the case in this instance.

Cur adv vult

Solicitors for the appellant: Australian Legal Aid Office.

Solicitors for the respondent: Australian Government Solicitor.
BAG

ORDER

The sentence of twelve years imprisonment be confirmed.

The non-parole period ordered by the trial judge be set aside and in lieu thereof the appellant serve a non-parole period of five years and six months.

Orders accordingly

DECISION

This is an appeal from sentences imposed on Auvo Kalevi Paivinen in the Supreme Court of the Australian Capital Territory on two charges. The first charge was that Mr. Paivinen on 24 November 1983 did wound Mikko Amos Isakka with intent to murder him. The second charge was that Mr. Paivinen maliciously did wound Auvo Kullervo Mustonen with intent thereby to do him grievous bodily harm.

The jury found Mr. Paivinen guilty of each charge. The trial judge sentenced Mr. Paivinen to 12 years imprisonment with hard labour on the first charge and to 3 years imprisonment with hard labour on the second charge, the sentences to be concurrent; and directed that there be a period of 8 years 6 months during which he would not be eligible for parole.

The appeal was brought on two grounds, first that the sentence of 12 years was excessive and, secondly, that the non-parole period of 8 years and 6 months was excessive and that the trial Judge, in sentencing Mr. Paivinen, particularly in fixing the non-parole period, had erred in law in having regard to reductions in the non-parole period that Mr. Paivinen may become entitled to under the Probation and Parole Act 1983 (N.S.W.) and the Regulations made under that Act.

Mr. Paivinen, who was employed as a carpenter by E & R Formwork, was dismissed by a Mr. Pajanti in circumstances which caused some resentment in Mr. Paivinen. Mr. Paivinen went shooting rabbits for some days. When he returned he was drinking for some time with a Mr. Webster at the Canberra Rex Hotel on 24 November 1983. He later on that day proceeded to drive with Mr. Webster to the Ambassador Hotel at Mawson. At some stage Mr. Paivinen opened the boot of his car and took out a .357 revolver covering it with a towel and carried it into the Hotel. He there met and had an argument with Mikko Amos Isakka, who was said to be a partner of Mr. Pajanti in E & R Formwork. Mr. Paivinen raised his gun and at close quarters fired at Mikko Amos Isakka hitting him in the chest. The bullet passed on and hit Auvo Kullervo Mustonen, who was behind Mikko Amos Isakka. Mr. Paivinen moved to leave the hotel but was intercepted by a brother of Mikko Amos Isakka and beaten up. Mikko Amos Isakka and Auvo Kullervo Mustonen were taken to hospital, and underwent surgery. Both recovered.

Mr. Paivinen claimed to have no recollection of the events at the Ambassador Hotel. The trial Judge appears to have accepted this evidence saying, when sentencing -

"But the fact that you do not remember what you did surely is due to some alcoholic amnesia."

The main argument on the appeal centred on the use made by the trial Judge of the provisions of the Probation and Parole Act 1983 (N.S.W.) and the Regulations under that Act. This argument raised questions of importance in the administration of the criminal law in the Territory. It will be convenient to deal with it first.

The position prior to the Probation and Parole Act 1983 (N.S.W.) may be stated as follows. Under s. 6 of the Seat of Government Acceptance Act 1909, as amended, and s. 4 of the Seat of Government (Administration) Act 1910, as amended, laws of New South Wales in force in the Territory, so far as applicable, continued in force subject to any Ordinance made by the Governor-General. Pursuant to these provisions the Crimes Act 1900 (N.S.W.) continued to apply in the Territory, subject to some amendments effected by Territory Ordinance from time to time. Since the Territory had no prison, the Commonwealth in reliance upon s. 120 of the Australian Constitution, required the State of New South Wales to accept into its prisons prisoners convicted in the Territory of offences against the Crimes Act as it operated in the Territory.

The Prisons Act 1952 (N.S.W.), as amended, governed the regulation and control of prisons and for the custody of prisoners in New South Wales prisons. The Prison Regulations 1968 made under that Act provided in Part XV for remissions. Regulation 110 provided:

110. Subject to this Part, a convicted prisoner shall be entitled to remission in accordance with the following provisions:-

(a) A convicted prisoner who is serving a sentence period of one month or more, and who is not an habitual criminal, shall be entitled to a remission of one-quarter of the sentence period:

Provided that a convicted prisoner who had, before commencing to serve that sentence period, not been imprisoned, to serve one or more sentences, for a period of three months or more (whether or not that period of three months or more was reduced by any remission or other earlier release) shall be entitled to a remission of one-third of the sentence period.

In this paragraph, "sentence period", in relation to a prisoner who is imprisoned for a period (not being a portion only of a period of imprisonment) during which he is to serve -

(i) only one sentence; or

(ii) more than one sentence, whether cumulatively or

concurrently or both,

means that period without regard to any remission or other earlier release."

Under reg. 111 a prisoner might gain further remission in certain circumstances. In other circumstances, such as escape, the prisoner might forfeit part of his entitlement to remission (regs. 113 and 114).

The Parole of Prisoners Act 1966 (N.S.W.) required the specification of a "non-parole" period by a court sentencing a prisoner where the sentence was for a term of imprisonment of more than 12 months unless the court specifically determined otherwise giving reasons (s. 4). The Act also established a Parole Board to consider release on parole, to make parole orders, and to revoke parole orders.

By the Commonwealth Prisoners Act 1967 (Cth.) provision was made (inter alia) for the case where a court of a State or Territory sentenced a federal offender to a term of imprisonment. It provided in sub-s. 4(1) that the court should or might fix a lesser term of imprisonment during which the federal offender was not to be eligible to be released on parole. Sub-section 4(2) provided:

"In fixing a lesser term of imprisonment in pursuance of the last preceding sub-section, the court shall have regard to the matters to which it would have regard if the law of the State or Territory in which the offender was convicted were applicable."

Provision was made for release by the Governor-General of prisoners on parole (s. 5).

The Removal of Prisoners (Australian Capital Territory) Act 1968 was passed following the raising of doubts as to the authority to remove prisoners convicted in the Territory to a New South Wales gaol. This had formerly been effected under the Removal of Prisoners (Territories) Act 1923, as amended. The Removal of Prisoners (Australian Capital Territory) Act 1968 s. 5 provided as follows:

"5. (1) Where a magistrate or a court has, whether before or after the commencement of this Act, made an order or pronounced a sentence by virtue of which a person is to be, or may be, imprisoned or otherwise held in custody, an authorized person may, by warrant directed to all constables, require them to convey that person in custody from the Territory to such prison in the State as is specified in the warrant and there to deliver him into the custody of the officer in charge of the prison or some other officer doing duty at the prison, and the warrant may be executed by any constable.

(2) Where a person is delivered into custody at a prison in the State in pursuance of a warrant under the last preceding sub-section, the person may, subject to this Act, be detained in that prison or any other prison in the State for so long as his detention or custody is necessary for the execution of the order or sentence by reason of which the warrant was issued.

(3) Subject to the succeeding provisions of this Act, the person may, while so in custody, be dealt with in the like manner, and is subject to the like laws, including laws relating to the reduction or remission of sentences, as if the order or sentence of the magistrate or court by reason of which the warrant was issued had been a like order or sentence made or pronounced under a law in force in the State."

And see the Prisons Act 1952 (N.S.W.), as amended by Act No 42 of 1968, Part IX - "Prisoners Received from the Australian Capital Territory".

The Parole of Prisoners Ordinance 1971 altered the law relating to parole in the Australian Capital Territory. It provided:

"4(1) Where a court sentences an offender to a term of imprisonment of not less than twelve months, the court shall . . . specify a lesser term of imprisonment during which the person so sentenced is not eligible to be released on parole in pursuance of this Ordinance."

In Power v The Queen [1974] HCA 26; (1974) 131 C.L.R. 623 the High Court had occasion to consider this section. It held that in fixing the non-parole period the sentencing judge should determine the minimum period for which, according to the accepted principles of sentencing, the offender should be imprisoned.

It was considered (Barwick C.J., Menzies, Stephen and Mason JJ. at p. 629) that the legislative intention to be gathered from the terms of the Act was to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner had served the minimum time that a judge determined justice required that he must serve having regard to all the circumstances of his offence.

The Parole of Prisoners Ordinance 1971 was repealed and replaced by the Parole Ordinance 1976, which is currently in force. This provides in sub-ss. 7(1) and (2) as follows:

"7(1) Subject to sub-section (2), where a court sentences a person to a term of imprisonment of not less than 12 months or to terms of imprisonment that, in the aggregate, are not less than 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 in pursuance of this Ordinance.

(2) Sub-section (1) does not apply -

(a) in the case of a person sentenced to one term of imprisonment - if

that sentence is suspended;

(b) in the case of a person sentenced to 2 or more terms of imprisonment - if both or all of those sentences are suspended;

(c) if the court, having regard to the nature of the offence or offences and the antecedents of the person convicted, considers that the fixing of a non-parole period would be inappropriate;

(d) if the person is sentenced to imprisonment for life.

The Ordinance provides also for the establishment of a Parole Board of the Australian Capital Territory (ss. 9-16) and for release on parole of persons whose non-parole period has expired (ss. 17-24) and for revocation of parole orders (s. 25).

Under these laws, the judges of the Supreme Court of New South Wales and those of the Supreme Court of the Australian Capital Territory have applied similar principles in imposing head sentences and in fixing non-parole periods.

Thus, notwithstanding the creation of an entitlement to remission from the head sentence (subject to the possibility of forfeiture), it was considered that it would be wrong in determining the length of the head sentence to effect any increase in it on that account, although it seems the sentencing judge could take into account the operation and effect of the remission system in relation to his overall approach (R. v Allen (1983) 1 N.S.W.L.R. 219).

Further, in fixing the non-parole period, it was considered that it was wrong in determining the length of the non-parole period, to effect any increase or reduction of it on account of the statutory provisions for remissions in relation to the head sentence. The task to be performed, as was made clear in Power v The Queen (supra), was to determine, according to the accepted principles of sentencing, the minimum period for which the offender should be imprisoned. Nevertheless, it was recognized that there was a practical relationship between the length of head sentence less prospective remissions and the non-parole period and this had to be considered. If remission entitlements were not considered, a non-parole period might be fixed which would be rendered nugatory by the earlier unconditional release of the prisoner on account of remissions and the policy of the legislature to confer on the Parole Board power to impose conditions on the release of prisoners and to supervise those conditions would be defeated (Reg. v Combo (1971) 1 N.S.W.L.R. 703). In the result, non-parole periods have generally been fixed to expire before the date when an offender would by reason of remissions become entitled to unconditional release. In this way a nonsensical situation has been avoided.

A substantial change to the New South Wales system was made by the Probation and Parole Act 1983 (N.S.W.), which replaced the Parole of Prisoners Act 1966 (N.S.W.). Under the Probation and Parole Act 1983 (N.S.W.) a judge when sentencing is required to specify a period before the expiration of which the person shall not be released on parole pursuant to the Act, except as may be otherwise provided by the Act (s. 19). Of significance is s. 25 which provides that in Division 3 - 'Parole' and in any parole order, a reference to a non-parole period, in relation to a prisoner, is a reference to the non-parole period reduced by the period, if any, by which the non-parole period is required to be reduced in relation to the prisoner by or in accordance with the regulations. The Probation and Parole Regulation 1984 (N.S.W.) in reg. 18 provide for an entitlement to a reduction of a non-parole period according to a formula. Under this formula remissions under the head sentence will provide the numerator which, when placed over the nominal sentence as the denominator, will provide the fraction to be used in computing the entitlement to reduction in the non-parole period. As Street C.J. stated in Reg. v O'Brien (Court of Criminal Appeal; 3 May 1984; unreported):

"It can be said that under the new legislation the non-parole period marches, in a proportionate sense, precisely in step with the head sentence".

Because of this it is no longer necessary to have regard to probable remissions in relation to the head sentence when fixing the non-parole period in order to avoid overlap; there will never be an overlap.

However, the provisions raise a new problem. How is a judge to determine a non-parole period in accordance with the principles laid down in Power v The Queen (supra)? Should he determine the non-parole period without regard to the entitlement to reduction given by the Probation and Parole Act and Regulations? Or, should he have regard to that entitlement and adjust the non-parole period in consideration of it?

The Court of Criminal Appeal in New South Wales in Reg. v O'Brien (supra; Street C.J. and Lusher J; Cantor J. dissenting) has held that the sentencing judge must not take into account anticipated reduction entitlements in respect of non-parole periods.

Under corresponding but not identical provisions in Victoria (the Community Welfare Services (Pre-Release Programme) Act 1983 and the Regulations made thereunder) the Victorian Court of Criminal Appeal, sitting as a Bench of five, in The Queen v Yates (25 September 1984 - unreported) arrived at a similar result. It was there said:

"The task of a sentencing judge is to impose the punishment which in all the circumstances he considers to be appropriate to the offence and to the offender. If a judge imposing a custodial sentence were to assume that an offender would probably earn full remissions, he could only give effect to the probability by increasing the length of the term of imprisonment that he would otherwise have imposed. He would then not be imposing "the sentence" which he thought was appropriate, but something more than that. So to act would not only be contrary to principle but also contrary to the clear intention of Parliament. The direction which Parliament gives the Courts is, in effect, to impose a sentence within a prescribed range. It is from the sentence so imposed that the regulations provide that remissions are to be earned and to increase the sentence imposed because those remissions would probably be earned would clearly run counter to the intention of legislation."

In South Australia a corresponding though not identical legislative provision (see the Prisoners Act 1936 S.A., as amended by the Prisons Act Amendment Act (No. 2) 1983) were considered by the South Australian Court of Criminal Appeal in Reg. v Brennan (23 February 1984; unreported). The Court arrived at a similar result.

King C.J. (with whom Walters J. and Maher J. agreed) said:

"To approach the fixation of a non-parole period by first

determining the period to be spent in prison and by then adding 50 per cent or some other proportion to counteract the reduction of the non-parole period by remissions is wrong in principle. It offends against the principle of sentencing laid down in the above cases; it assumes that the law as to good conduct remissions will remain the same for the duration of the sentence; it assumes that the prisoner will receive the maximum remissions for good conduct; it assumes that the conditions of parole fixed by the Board will be acceptable to the prisoner. None of those assumptions is justified. The proper approach under the new provisions, is for the sentencing judge to determine the proportion of the sentence which is to be spent in prison and that which is to be spent on parole. He should fix the non-parole period accordingly, without regard to any reductions which might result from remissions credited to the prisoner."

Recent decisions in the Australian Capital Territory have so far followed a different course.

In Reg. v Raspovic (30 May 1984 - unreported) Gallop J. took the view that a sentencing judge must take into consideration the application of the reduction provisions to non-parole periods under the 1983 New South Wales legislation. He said:

"Subject to good behaviour in prison and acceptance of the conditions of parole imposed by the Parole Board, the prisoner will be released at the expiration of the fixed non-parole period less the prescribed remission for good conduct. The question of what remissions are to be applied is a matter for the New South Wales Department of Corrective Services. This is so because the Australian Capital Territory does not have its own prison system. This change in the remission entitlements in New South Wales clearly calls for a reassessment of the duration of non-parole periods. In considering what proportion of the sentence is to be spent in prison, the court should take into account this new factor, that the non-parole period may be reduced by remissions. Whatever proportion of the sentence is considered, the appropriate period to be served, the new factor will generally mean an increase in the non-parole period fixed, that is, a greater proportion of the sentence than in the past."

In The Queen v Innes (21 August 1983; unreported) Blackburn C.J. referred to the two views held as to the effect of the 1983 New South Wales legislative changes. He said:

"One of those views is that the judge should consider the probable remission which will apply to the non-parole period, and calculate the non-parole period accordingly, so that the accused will actually serve in custody the time that the judge thinks proper. That is the view adopted by Mr. Justice Gallop recently, and it was the view of the judge who was in the minority in a decision of the Court of Criminal Appeal of New South Wales, O'Brien's case.

The other view is that in view of the fact that there are now remissions from the non-parole period, the court should ignore remissions altogether just as it has always done in regard to the head sentence, and simply fix a head sentence and an appropriate non-parole period, and allow the remission regulations to take effect.

I am not sure that it is desirable to say that one or the other of these methods is always right. It may be that sometimes one is right and sometimes the other. It may also be that in practice the result is not going to be very different. But for clarity's sake, let me say that in this case I am adopting the view that Mr. Justice Gallop adopted, the view of Mr. Justice Cantor, who was in the minority in O'Brien's case, and I have calculated a period for the non-parole period which in my opinion will require that the accused, at the time when he is released with remissions, will have served what I think to be a minimum proper time in custody."

In The Queen v Waghorn (28 September 1984; unreported) Kelly J. fixed a non-parole period of 3 years. His Honour referred to the recent amendments to the New South Wales law and indicated that he understood the effect of those amendments to be that Mr. Waghorn would be eligible for parole not later than 2 years hence. He then said:

"In my opinion, Mr. Waghorn ought to serve at least 2 years imprisonment. Accordingly I have fixed a non-parole period which will ensure, so far as is possible, that that will come about. In doing so I believe I am following the spirit of the High Court's judgment in Power v The Queen [1974] HCA 26; (1974) 131 C.L.R. 623. At p. 628, Barwick CJ and Menzies, Stephen and Mason JJ said,

"In a true sense the non-parole period is a minimum period of imprisonment to be served because the sentencing judge considers the crime committed calls for such detention."

That statement was made long before the present New South Wales policy came into effect but in my opinion it should now be read as though there were inserted in it after the word "imprisonment" a phrase such as "after taking into account all expected statutory remissions"."

In the present case, when sentencing Mr. Paivinen, Gallop J. did not expressly refer to his views regarding taking into account the probable reductions in the non-parole period, but there was no suggestion that his view had changed since he expressed it in Reg. v Raspovic only two days before or that he did not apply it.

A judge of the Supreme Court of the Australian Capital Territory in fixing a non-parole period is not acting under the same basic statutory provision as a judge of the Supreme Court of New South Wales. The Territory judge is acting under s. 7 of the Parole Ordinance 1976, which has been set forth above. This requires him to

" . . . fix a period as the period during which the person is not to be eligible to be released on parole in pursuance of this Ordinance".

As has been noted, the High Court in Power v The Queen has interpreted this provision (or rather its predecessor - s. 4 of the Parole of Prisoners Ordinance 1971) as requiring the judge to determine the minimum period for which the offender should be imprisoned. I appreciate the difficulty of a judge faced with the task of determining this minimum period as a real and not unimportant question from the community's point of view, when he is aware that as the law stands, any period which he fixes will be automatically reduced (subject only to possible forfeiture of the entitlement to remission). Nevertheless, I have come to the conclusion that it would be incorrect for a sentencing judge in the Australian Capital Territory to increase the period which he would otherwise have fixed as a non-parole period, by reason of the entitlement to remission (subject to forfeiture). The reasons stated by the Courts of Criminal Appeal of New South Wales, Victoria and South Australia carry conviction to my mind. Furthermore, because Territory prisoners serve their imprisonment in New South Wales there are practical considerations against divergence in treatment of State and Territory offenders on this particular ground.

I turn now to the question whether the head sentence or the non-parole period fixed by the trial Judge in the present case was excessive. Sitting in the appellate jurisdiction this Court does not interfere with a sentence merely because the judges constituting the appeal bench would themselves have imposed a less or different sentence or because they think the sentence is too severe. Stating the well known principles in a summary way, the Court will interfere only if it is shown that the sentencing judge was acting on a wrong principle or in misunderstanding or in wrongly assessing some salient feature of the evidence. The error may appear in what the sentencing judge said in the proceedings, or the sentence itself may be so excessive or inadequate as to manifest such error. (See R. v Tait and Bartley (1979) 24 A.L.R. 473 and R. v Kovac (1977) 15 A.L.R. 637).

In addressing us on the head sentence, Counsel for Mr. Paivinen did not call our attention to any particular error on the part of the sentencing judge. The main thrust of his submission was that the same judge shortly before sentencing Mr. Paivinen had sentenced one Raspovic to 10 years with a non-parole period of 7 years in circumstances where Mr. Raspovic had fired a double-barrelled shotgun - almost at point blank range - at his wife in the living room of their home in Canberra with the result that his wife's legs were shattered and had eventually to be amputated. He contrasted that case where the victim became an invalid for life with the case of Mr. Paivinen where the principal victim received severe injuries and was hospitalized and received treatment but made a full recovery. He referred also to other factors affecting Mr. Paivinen which appear in the remarks of the sentencing judge which are quoted in the reasons for judgment of Fox J. and submitted that these factors showed that the sentence was excessive. Counsel suggested that the sentencing discretion had miscarried. It is apparent that the sentencing judge had these matters in mind. The sentence does appear to be at the upper end of the range. However, I am not persuaded that his discretion did miscarry.

This leaves for separate consideration the length of the non-parole period fixed by the sentencing judge. In view of my conclusion that it would be wrong in fixing a non-parole period to adjust it upwards to counter the effect of the Probation and Parole Act 1983 (N.S.W.), this is an exercise of discretion with which we should interfere in order to fix what in our view would be a proper period, if the principles set forth above are applied.

It was submitted by Counsel that the non-parole period should be reduced to five and a half years. He submitted that this was the figure the sentencing Judge originally had in mind. He further submitted that his Honour was obviously thinking in terms of one-half the head sentence less six months spent in custody awaiting trial. He asserted that the non-parole period of eight and a half years was arrived at by a base figure of five and a half years being added to by making calculations based upon the Probation and Parole Act 1983 (N.S.W.). We were not referred to any record or transcript disclosing this reasoning. However, five and a half years is roughly the period which would be reached by deducting one-third from eight and a half years and these submissions of Counsel were not challenged by Counsel for the Crown. I consider they should be accepted as a correct analysis of the course followed by the sentencing Judge.

This, of course, does not mean that this Court is bound in any way by the suggested figure of five and a half years, but it is proper to take it into account. Indeed, my own view is that a proper non-parole period for Mr. Paivinen in the circumstances would be five and a half years.

In my opinion, the appeal should be upheld to the extent of substituting a non-parole period of five and a half years instead of the eight and a half years fixed by the trial Judge. The head sentence of 12 years should be confirmed.

The appellant was found guilty on two charges, one of wounding Mikko Isakka with intent to murder him, the other of maliciously wounding Auvo Mustonen with intent to do him grievous bodily harm.

The judge from whom this appeal comes sentenced the appellant to twelve years imprisonment on the first-mentioned charge and to three years imprisonment on the other charge, the sentences to be served concurrently. His Honour fixed a non-parole period of eight years six months.

There seems no doubt that the non-parole period was determined by adding to the period which would otherwise have been fixed an amount estimated to counteract the effect of reg. 18 of the Probation and Parole Regulations 1984 (N.S.W.). This regulation was made pursuant to s. 25 of the Probation and Parole Act 1983 (N.S.W.) which is as follows:

"25. In this Division and in any parole order, a reference to a non-parole period, in relation to a prisoner, is a reference to the non-parole period reduced by the period, if any, by which the non-parole period is required to be reduced in relation to the prisoner by or in accordance with the regulations."

The effect of reg. 18 is to provide for a reduction in non-parole periods, as determined by the courts, by an amount which, in general, corresponds proportionately with the remissions applicable to head sentences under the Prisons Regulations 1968 (N.S.W.). The exact amount of the reduction of head sentence and non-parole periods depends on the behaviour in prison of the convicted person, and a number of other elements occurring, or which may occur, after sentence.

The first question in this case is whether his Honour was correct in making the upward adjustment to which I have referred. In my view he was not. It is accepted that the regulation is made applicable by the general terms of s. 5(3) of the Removal of Prisoners (Australian Capital Territory) Act 1968 (see also s. 4(2) of the Commonwealth Prisoners Act 1967). It seems to me to be plain that the regulation is intended to operate on non-parole periods as they are fixed by courts, according to the principles which courts apply and have applied in fixing them. A statement by a court of a non-parole period is a statement by it as to the minimum time which should elapse before there is eligibility for parole.

It is of course an unsatisfactory result. The courts have attempted, generally with success, to cope with the situation in which the sentences they declare are subsequently reduced by an amount determined by or under regulation, or, in some cases, simply by executive action. The principal function of a non-parole period, as is acknowledged in all the relevant legislation, is to fix the minimum period of imprisonment that the sentenced person should actually serve. This is done after the hearing of all relevant evidence, and with due consideration of what is best to be done in the interests of the community, and of the individual. The credibility of the judicial system, and its efficacy in relation to criminal matters must suffer severely from the fact that both parts of a prison sentence, solemnly and publicly pronounced by a court to have one result, nevertheless have another.

It seems to me, nevertheless, that courts are required to follow the established principles governing the amount and nature of punishment, and where imprisonment is involved, the duration of the non-parole period. To start a compensating exercise is to pursue a competition with the legislature, or the executive, or both. It is necessary to decide how long the accused should serve in prison, and, as the complementary consideration, how long a period on parole is desirable. In this latter respect, of course, the decision of the Parole Board is ultimately final.

In relation to this last-mentioned matter, it seems to me that a re-examination of the Parole Ordinance 1976 (A.C.T.) may be necessary in the light of the New South Wales regulation, having in mind that the Ordinance has reference to the period the Court fixes.

In the present case, on the view I have stated, which I understand to be in accord with the decision of the Court of Criminal Appeal in New South Wales (Reg. v. O'Brien, unreported, 3 May 1984; see also The Queen v. Yates, unreported, Victorian Court of Criminal Appeal, 25 September 1984; Reg. v. Brennan, unreported, South Australian Court of Criminal Appeal, 23 February 1984), the learned judge was in error in relation to the non-parole period he fixed.

It is then necessary to turn to the head sentence and see whether this Court, following accepted principles, should reduce it.

The offences were committed on 24 November 1983, and the trial commenced on 14 May 1984, the appellant having been in custody in the meantime. He was thirty-five years of age at the time of commission of the offences, and married but separated from his wife. He was at the time living with his mother. He and his wife have had four children, but one child died in 1983 of cancer when four years old, having had the disease for three years. The appellant did not have a happy upbringing and for most of his adult life has been drinking heavily. He apparently lacked special employment skills and was unemployed for several substantial periods. At the time of the offences he was working for a firm in the building trade, of which Eddie Isakka, a brother or close relative of Mikko Isakka, the victim, was a partner.

A few days before the offences were committed, the appellant thought he had been dismissed from that employment, as being redundant, but on the day in question he collected his pay and, as a result of a conversation with Eddie Isakka, believed that his employment would continue. Mikko Isakka did not know him, and he had not met Mikko Isakka, although, conceivably, he may have associated the name with his employment. He may still have been a harbouring a grudge against his employers. On the day in question he had been drinking a lot, in more than one hotel. He had acquired a revolver, which was of Italian make, but which had the same calibre as the A.C.T. police pistol. He had, he said, used it for rabbit shooting and was anticipating that he might use it for some pig shooting. Normally he carried this in the boot of his car, but at some stage on the evening in question, apparently just before the shot was fired, he brought it into the hotel, concealed in a towel. The accounts as to precisely what happened differ slightly, and I am not in a position to say which was correct. There is evidence from a third party that Mikko Isakka punched or pushed the appellant in an argument, but Mikko Isakka denies this, and gives a different account. I do not know what view of this evidence was taken by the jury, or the judge. What is known to have happened is that, without warning, the appellant shot Mikko Isakka in the chest, at close range. The bullet passed through Mikko Isakka's body, and hit Auvo Mustonen in the back, when he was playing pool a little distance away. They were both taken to hospital, and survived. The appellant was physically attacked in the hotel by relatives of Mikko Isakka, and was himself taken to hospital.

The appellant was interviewed by the police at length on 26 November. He had no recollection of the shooting or events leading up to it. At the time of the shooting he was heavily intoxicated. It is plain that the crimes were unpremeditated, at least until the appellant went for the pistol. The motive for the shooting must be a matter of conjecture. In the course of sentencing the appellant, the learned judge had this to say:

"The crime of malicious wounding with intent to commit murder is just one step down the scale of crimes of violence from murder. It is a very serious crime indeed. I have to impose a sentence which reflects the gravity of the crime. I accept your evidence that you do not remember it now, and that is all the sadder from your point of view because you are going to have to serve a sentence for something that you do not even remember.

I take into account the fact that you are now 36 years of age, that you were 35 at the time of the offences, that you have got no prior convictions - and that is a matter which is very significant in my mind. Also, that you have been in custody since the date of the offences, which is now just on six months. I think, having regard to what you told the welfare officer and what you told Dr Knox, that you sincerely regret the injuries that you have done to those two men, and that is a very important matter also.

It is not as though you are harbouring some continuing resentment towards either of them. I also think that it is relevant to take account of the fact that you did not raise any false issue before the jury in the hope that they might believe some story which did not really accord with the facts and therefore somehow find you not guilty. You have not attempted to deny what you did, nor have you attempted to raise any false issue of fact.

I take account also of the fact that the Isakka family took the law into their own hands to some extent and gave you a pretty severe beating after you had discharged the gun. You have had a pretty bad time over the last few years with the break-up of your marriage and the loss of your daughter in May 1983, and the medical evidence is quite compelling that you were suffering from a depressive sort of illness.

The pity is that you did not realise that, or that somebody did not realise it and get you some medical assistance or some community assistance of some sort. But I am sure that the unhappiness that you have had in the last few years, and the loss of your daughter, and the resort to alcohol has been the real reason for you doing this. I am satisfied that you were fairly well affected by liquor at the time when you did it, and perhaps because you are a fairly experienced drinker you were not exhibiting the true state of your intoxication. Hence, other people did not realise how intoxicated you were. But the fact that you do not remember what you did surely is due to some alcoholic amnesia.

Well, you have told the welfare people that you are considering your future and you strike me as being a reasonably intelligent man. Therefore the sentence that I should pass upon you should be something which reflects society's attitude to discharging a gun in this way in a hotel, and injuring two men, very nearly killing one of them, but at the same time, I should offer you some inducement or encouragement to take it on the chin, what you have to do, and come out of gaol ready to rehabilitate yourself altogether, and I think you can do it."

As will be seen, the judge found many mitigating circumstances. The offences were unpremeditated and committed while the accused, apart from other emotional factors, was "fairly well affected" by liquor. He plainly had no intention of harming Auvo Mustonen. His amnesia in relation to relevant events is genuine.

I would myself regard the term of imprisonment of twelve years as being in this case about the outside limit for the offence in question. What I find difficult about what was done is what his Honour said in the passage I have quoted about "inducement or encouragement to take it on the chin, what you have to do, and come out of gaol ready to rehabilitate yourself altogether". With a sentence of twelve years and a non-parole period of eight years six months, there would seem to me to be no offer at all to rehabilitate himself, and no ingredient of leniency based on the matters his Honour mentioned. It is to be borne in mind too, that the appellant had already been in gaol for six months. The sentence is almost entirely retributive.

Guided by what his Honour said, I would myself have thought an appropriate sentence would be one of ten years but I am not prepared to dissent from the conclusion that the sentence of twelve years should stand.

The non-parole period should be five and a half years. The appellant may in the event serve in prison only about three years and eight months from the date of sentencing (1 June 1984), but this will be because authority has determined that time in prison should be reduced, subject, of course, to the decision of the Parole Board. I should, however, reiterate in this connection what has been said more than once before, that release on parole is not something in the nature of an amnesty. Parole Boards can, and do, attach conditions to the grant of parole which are often restrictive, but in any case impose requirements of self-control and self-discipline on the individual, which he must observe at risk of being imprisoned for the rest of his term, or until again released on parole.

I would therefore allow the appeal in relation to the non-parole period only and substitute a non-parole period of five and a half years, to be calculated from the date the head sentence became operative.

I gratefully adopt the statement of facts, and of the relevant law, made by the Chief Judge in his reasons for judgment.

The problem created by the statutory provisions now in force in New South Wales (and there are similar provisions in force in Victoria and South Australia) is, so far as I am aware, unique in the history of penal law. Provisions for remission of prison sentences are, of course, of long standing. Generally speaking, these are expressed in terms of a benefit which, subject to the discretion of the prison authorities, the prisoner may confer upon himself, if his behaviour in prison is good. But the law as recently amended in New South Wales is very different. The principle of remission is applied to the non-parole period, and it is applied by making the remission a right which may be taken from the prisoner only in specified circumstances. By the Probation and Parole Act 1983 (N.S.W.) Part III, Division 2, courts are empowered and required to specify non-parole periods. But section 25, which is the first section in Division 3, is as follows:

"In this Division and in any parole order, a reference to a non-parole period, in relation to a prisoner, is a reference to the non-parole period reduced by the period, if any, by which the non parole period is required to be reduced in relation to the prisoner by or in accordance with the regulations."

Section 18 of the Probation and Parole Regulation 1984, made under the Act, provides a mathematical formula for determining the period, if any, by which a non-parole period (i.e. the period specified by the court) is required to be reduced in relation to a prisoner pursuant to section 25 of the Act.

This is what causes me to say that these provisions are different in kind from any which have hitherto applied in penal law. It is contended that their effect in the Territory is that, irrespective of any circumstances peculiar to the accused, or the nature of the crime, or the repentance of the accused, and despite the fact that the judge has a responsibility under the Parole Ordinance 1976, and upon the principle stated by the High Court in Power v. The Queen, to determine the minimum period for which the prisoner should be kept in custody, the period so fixed by the judge is to be reduced by a fixed proportion.

The view of the meaning of this legislation which has commended itself to a majority of the Supreme Court of New South Wales, (and the Supreme Courts of Victoria and South Australia have come to similar conclusions) is that its purpose and effect is simply to effect a proportionate reduction of whatever non-parole period the judge thinks proper; in other words, to substitute, by way of standard mathematical reduction, another non-parole period for the period judicially determined to be the proper one. That construction of the legislation must assume that the judge, in determining the minimum period for which the offender should be imprisoned, according to the accepted principles of sentencing, is to shut his eyes to to the existence and terms of the Regulation. I know of no other judicial decision which is required to be made without regard to an apparently applicable legislative provision.

The consequence of this view is indeed extraordinary. It can no longer be said that the sentence actually served by the prisoner is the result of the application of a rational principle, or a combination of rational principles, of sentencing. The rational principles are applied by the judge, only to be irrationally overturned by the statutory mathematical reduction. So extraordinary is this consequence that there must be a serious doubt whether it is part of the purpose of the legislation.

In this case, counsel for the appellant did not attempt to suggest to us any purpose for the legislation other than that which is a mere paraphrase of the legislation itself, namely that the sentence passed by the Court, whatever it may be, is to be reduced by the appropriate proportion. In another appeal, counsel suggested to us that the purpose of the legislation was to reduce the prison population in the State of New South Wales. For myself, I was not satisfied that there was any material before us on which we could rely to come to the latter conclusion. I am obliged to say that I do not know what the purpose of the legislation was, other than the effect which its terms produce. This, of course, gives no assistance in construing it.

The Full Courts of the Supreme Courts of New South Wales, Victoria, and South Australia, in considering the new legislation, have all referred to the well established principle that in fixing the head sentence, the sentencing judge should not pay attention to the possibility of remissions for good conduct, and have all tended to apply by analogy this principle to the problem of fixing the non-parole period. With great respect, I am not persuaded that the analogy is appropriate. The purpose of fixing the head sentence is different from the purpose of fixing the non-parole period. The head sentence represents a maximum limit, beyond which the prisoner will certainly be released from custody, because it will be illegal to detain him. The non-parole period represents the minimum limit, before which the prisoner is not to be released from custody. When the judge fixes the head sentence, he does so in the expectation that by good conduct the prisoner may earn the benefit of release at an earlier time. The non-parole period, on the other hand, is supposed to be the period which in the opinion of the Court the prisoner should serve in custody before his good conduct should be allowed to affect the length of his period in custody. In my opinion, the principle that remissions are not taken into consideration when fixing the head sentence is not a convincing justification for the proposition that remissions should not be taken into consideration in fixing the non-parole period.

It was argued for the appellant that the legislation as a whole (Commonwealth, State, and Territory) indicated an intention that Territory and New South Wales prisoners should be treated alike and that it followed that, the Supreme Court of New South Wales having decided as it did decide in O'Brien's case, this Court should decide likewise so as to ensure that that intention be carried out. This argument is in my opinion fallacious. In the first place, it is, to say the least unprecedented to look for a common "intention" in legislation derived from three different sources. In the second place, the argument begs the question. The crucial provision is subsection 5(3) of the Removal of Prisoners (Australian Capital Territory) Act 1968, which provides that a prisoner convicted in the Territory and in custody in New South Wales

"is subject to the like laws . . . as if the order or sentence of the (Territory court) had been a like order or sentence made or pronounced under a law in force in the State."

The effect of that provision is simply that a Territory prisoner whose sentence includes a given non-parole period is entitled to the same remissions as a New South Wales prisoner whose sentence includes a non-parole period of the same length. The subsection has nothing to say on the question of the proper length of a non-parole period for a Territory prisoner.

There is another matter which I believe to be material, though it is not made explicit in the reasoning of the Territory judges whose remarks on sentencing have been cited to this Court, nor was it suggested by counsel for the respondent before us. It might be argued that the problem for a Territory judge is different from the problem for a New South Wales judge, in that the Territory judge is bound to decide on the appropriate non-parole period by reference to s. 7 of the Parole Ordinance 1976 (A.C.T.) and the principle enunciated by the High Court in Power v. The Queen, and that the Territory judge is thus entitled and indeed bound to treat the Regulation recently made under the Probation and Parole Act 1983 of New South Wales simply as a "fact" of the New South Wales corrective system, rather than as part of the law relating to the sentencing process, which is the way in which New South Wales courts are obliged to treat it. This argument, if adopted, would enable a Territory Court to reach the same result, in regard to the proper calculation of the non-parole period, as was reached by Cantor J., the dissenting judge in O'Brien's case, but for a different reason. Cantor J. was, of course, applying New South Wales law. His view was that New South Wales law required him to fix a non-parole period as the minimum period which the prisoner should spend in custody, and to do so by making a mathematical allowance to compensate for the effect of the Regulation. If I may venture a critical comment on the judgment of a New South Wales judge on a matter of New South Wales law, the opinion of Cantor J. seems to me, with great respect, to impute a nonsensical purpose to the legislation with which he was dealing. The implication of his opinion is that the purpose of the legislation was simply to require the application of a mathematical calculation to each non-parole period pronounced by a judge; it was not to have an effect on the actual length of time spent by prisoners in custody before parole. It seems to me, with great respect, that this analysis is sufficient to justify the decision of the Full Court in O'Brien and to demonstrate that the view of Cantor J. was incorrect. It is surely more rational to attribute to the legislation the purpose of making a substantial change in the law rather than a change which inserts (as it were) a mathematical calculation into the process of sentencing, but makes no substantive change in the result. A construction which produces a substantial difference in the time that prisoners spend in custody before parole (however arbitrary, and however destructive of judicial responsibility, and of the principles of sentencing, that construction may be) is to be preferred to a construction which has no effect beyond requiring a little mathematical calculation to reach a result which was formerly reached without it.

But is this reasoning appropriate for application to the law of the Territory? When the Regulation was made under the Probation and Parole Act 1983 (New South Wales), it is difficult to say that such making was an amendment of the law of the Territory. There is no provision in the law applicable to the Territory which says that any part of the law of New South Wales made after 31 December 1910 shall be the law of the Territory. Sub-section 5(3) of the Removal of Prisoner (A.C.T.) Act 1968, quoted above, is quite differently expressed; its effect is that the sentence of the Territory court is deemed to be a sentence of the State court. Yet if this Court says that the principle of O'Brien's case is to be applied by Territory courts in fixing non-parole periods, it will be difficult to say that that Regulation did not effect an amendment to the law of the Territory. In other words, I believe that it is not only possible, but obligatory, for a Territory court to regard the Regulation under the Probation and Parole Act differently from the manner in which a New South Wales court must regard it. In my opinion the correct approach to the problem before us is that the New South Wales Regulation made no difference to the law of the Territory. The legislature of New South Wales has no power to alter the law relating to the determination, by a Territory judge, of a non-parole period in accordance with the law of the Territory. This Court, om this appeal, has to decide a question of the law of the Territory, and no law of the Territory has altered the the state of the law as it was before the making of the New South Wales Regulation. The duty of a Territory court, both before and after the making of that Regulation, is to decide on a non-parole period in accordance with the Parole Ordinance 1976 and the principles laid down by the High Court. In order to do so it must make allowance for the terms of an Act and Regulation which are applied as law in the corrective system of New South Wales, but which in a Territory court are matters of fact.

In my opinion, therefore, the learned judge was correct in his method of determining the non-parole period; but as my brethren think otherwise, I add that if I accepted their view I would agree that the non-parole period should be 5 1/2 years.

On the question whether the learned judge erred in fixing the head sentence at twelve years' imprisonment, I am in agreement with the opinion of the Chief Judge that no such error is apparent.

I would therefore dismiss the appeal.