R v Paivinen [1985] HCA 39; (1985) 158 CLR 489 (18 June 1985)

HIGH COURT OF AUSTRALIA

THE QUEEN v. PAIVINEN [1985] HCA 39; (1985) 158 CLR 489

Criminal Law (A.C.T.)

High Court of Australia
Gibbs C.J.(1), Mason(1), Brennan(1), Deane(1) and Dawson(1) JJ.

CATCHWORDS

Criminal Law (A.C.T.) - Sentence - Reduction or remission of sentence - Australian Capital Territory - "Territory offender" - Imprisonment in New South Wales - Operation of Probation and Parole Act 1983 (N.S.W.) - Commonwealth Prisoners Act 1967 (Cth), s. 19 - Prisoners (Australian Capital Territory) Act 1968 (Cth), s. 5(3).

HEARING

1985, May 14; June 18. 18:6:1985
APPLICATION for special leave to appeal from the Federal Court of Australia.

DECISION

June 18.
THE COURT delivered the following written judgment:-
This is an application by the Crown for special leave to appeal from a Blackburn J. dissenting) which allowed an appeal by the respondent to the extent of reducing the non-parole period fixed by a judge of the Supreme Court of the Australian Capital Territory (Gallop J.) when imposing a sentence of imprisonment on the respondent from eight years six months to five years six months. (at p491)

2. The respondent was convicted on two charges - wounding one Isakka with intent to murder him and maliciously wounding one Mustonen with intent thereby to do him grievous bodily harm. On 1 June 1984 Gallop J. sentenced him to twelve years' imprisonment with hard labour on the first charge and to three years' imprisonment with hard labour on the second charge, the sentences to be concurrent, and directed that there be a period of eight years six months during which he would not be eligible for parole. The respondent appealed against the sentence and the non-parole period. The appeal against the sentence, which was dismissed, was simply on the ground that it was excessive. However, the appeal against the non-parole period was brought on the ground that Gallop J. had erred in law in having regard to reductions in the non-parole period to which it was thought that the respondent might become entitled under the provisions of the Probation and Parole Act 1983 (N.S.W.) ("the N.S.W. Parole Act") and the Regulations made under that Act, and in increasing the length of the non-parole period to counteract the effect of those provisions. There is nothing in the reasons given by Gallop J. when he imposed sentence that suggests that he did proceed in that way. However, two days before the respondent was sentenced, Gallop J. had in another case (Reg. v. Raspovic Supreme Court of the A.C.T.; 30 May 1984; Unreported.) expressed the view that since an offender sentenced in the Australian Capital Territory to imprisonment must serve the sentence in New South Wales, a judge of the Supreme Court of the Australian Capital Territory, when fixing a non-parole period, must take into consideration the provisions of the New South Wales law which require non-parole periods to be reduced. Gallop J. 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." (at

p492)

3. The learned judges of the Full Court of the Federal Court accepted the argument that the sentencing judge originally had in mind a non-parole period of five years six months, that being roughly the period which would be reached by deduction one-third from eight years six months and taking into account the fact that the respondent had spent six months in custody awaiting trial. Their Honours said that they were not bound by the figure of five years six months but regarded it as a proper non-parole period in the circumstances. (at p492)

4. The respondent was rendered liable to undergo his term of imprisonment in the State of New South Wales by the Removal of Prisoners (Australian Capital Territory) Act 1968 (Cth), as amended, and was removed to a prison in that State under the authority of that Act. Section 5(3) of that Act at the material time provided as follows:

"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."

(The sub-section has since been amended, but the amendment is immaterial for present purposes.) The "person" referred to in s. 5(3) is a person delivered into custody at a prison in the State of New South Wales in pursuance of a warrant under s. 5(1). Section 11 of that Act provides, so far as material:

"This Act does not affect -
...
(c) the operation of any other law of the Commonwealth, or
of any law in force in the Territory, relating to the
release of offenders;
..." (at p493)

5. The first question that arises in the present case is whether s. 5(3) of the Removal of Prisoners (Australian Capital Territory) Act has the effect that the respondent, while in custody in New South Wales, is to be dealt with under, or is subject to, the provisions of the N.S.W. Parole Act. By ss. 19 and 20 of the latter Act, a judge, stipendiary magistrate or justice is obliged, on sentencing a person in the circumstances mentioned in those sections, to specify "a period before the expiration of which the person shall not be released on parole pursuant to this Act, except as may be provided otherwise by this Act". Power to fix such a period is given to an appeal court and to the Parole Board in specified circumstances by ss. 22(1)(b) and 23(1). By s. 4(1), in that Act, except in so far as the context or subject-matter otherwise indicates or requires:

"'non-parole period' means a period specified under section 19,
20(1), 22(1)(b) or 23(1)."

Section 25 of that Act provides 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."

Regulation 18 of the Probation and Parole Regulation 1984 (N.S.W.) provides that the period, if any, by which a non-parole period is required to be reduced in relation to a prisoner pursuant to s. 25 of that Act is to be determined in accordance with a formula which is set out in that regulation. Before the effect of the formula is explained, it is necessary to refer to the provisions of the Prisons Act 1952 (N.S.W.), as amended, which deal with remissions of sentences. By s. 41(3) of that Act, prisoners are to be granted remissions of sentences as prescribed by the Regulations under that Act. The relevant regulations are contained in Pt XV of the Prisons Regulations 1968 (N.S.W.). By reg. 110, which appears in that Part, it is provided that subject to that Part a convicted prisoner shall be entitled to remission in accordance with the following provisions, inter alia:

"(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."

The paragraph proceeds to define "sentence period" but the definition is not material for present purposes. Paragraph (b) of reg. 110 deals with the remission to which habitual criminals are entitled. Other regulations in Pt XV make provision for certain other remissions and provide for the forfeiture of remissions in certain cases. The effect of reg. 18 of the Probation and Parole Regulation is to reduce the non-parole period in a way that corresponds to the reduction of the head sentence by way of remissions. Its effect was explained by Street C.J. in Reg. v. O'Brien (1984) 10 A Crim R 390, at p 395, as follows:

"The Probation and Parole Regulation 1984 (N.S.W.), provides
in par. 18 for an entitlement to a reduction of a non-parole
period calculated on a basis proportionately equivalent to the
prisoner's entitlement to remissions under the head sentence.
Expressed in practical terms, if a prisoner's entitlement to
remissions under the head sentence amounts to, say, two-fifths
of the nominal term of the head sentence, then he will be
entitled to have his non-parole period reduced by two-fifths of
its specified length . . .

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." (at p494)

6. It has often been held that a judge in passing sentence should impose the appropriate sentence for the crime and should not impose a longer sentence merely because the offender may possibly earn remissions for good conduct or be released on parole: Reg. v. Maguire; Reg. v. Enos (1956) 40 Cr App R 92; Reg. v. Assa Singh (1965) 2 QB 312; Reg. v. Breckenridge (1966) Qd R 189; Menz and Royce v. The Queen (1967) SASR 329; Reg. v. Gisbourne (1977) Crim LR 490; Jacobson v. Piepers; Ex parte Piepers (1980) Qd R 448; Reg. v. Brennan (1984) 36 SASR 78; Reg. v. Yates [1985] VicRp 3; (1985) VR 41 However, it was held in Reg. v. Combo (1971) 1 NSWLR 703, a case decided under the Parole of Prisoners Act 1966 (N.S.W.), which has since been repealed, that in fixing a non-parole period (but not a sentence) the court ought to take into consideration the likely length of remissions because, if they were not taken into account, the non-parole period might be rendered nugatory by the earlier unconditional release of the prisoner on account of remissions. In a later case, Reg. v. Allen (1983) 1 NSWLR 219, it was held that a sentencing judge is entitled to take into account the operation and effect of the remission system "in his overall approach of the determination of the proper sentence as well as the proper non-parole period" (1983) 1 NSWLR, at p. 221. In the present case, we are not concerned with the questions considered by the two cases last mentioned but it should be observed that it is impossible to reconcile Reg. v. Allen with the established authorities. The question has however arisen under s. 25 of the N.S.W. Parole Act and reg. 18 of the Regulations thereunder whether in passing sentence a trial judge is entitled to take into account the possibility or likelihood that the non-parole period fixed by the judge will be reduced and to add to the period which the judge considers should expire before the prisoner is released on parole a proportion of the period so as to give practical effect to the judge's conclusion as to the earliest time when the prisoner should be released on parole. In Reg. v. O'Brien (1984) 10 ACrimR 390 the majority of the Court of Criminal Appeal of New South Wales answered this question in the negative. (at p495)

7. In Reg. v. Raspovic Supreme Court of the A.C.T.; 30 May 1984; Unreported. Gallop J. held that the N.S.W. Parole Act applies to offenders convicted in the Australian Capital Territory and in Reg. v. Waghorn Supreme Court of the A.C.T.; 28 September 1984; Unreported. Kelly J. was of the same opinion. Both of those learned judges held that the non-parole period should be increased to take into account the effect of the New South Wales provisions and to give effect to the principle stated in Power v. The Queen [1974] HCA 26; (1974) 131 CLR 623, at p 628, that:

"In a true sense the non-parole period is a minimum period of
imprisonment to be served because the sentencing judge
considers that the crime committed calls for such detention." (at p495)

8. In the present case the majority of the Full Court of the Federal Court also proceeded on the assumption that the N.S.W. Parole Act would apply to reduce the non-parole period fixed to be served by the respondent. They preferred the view taken by the majority in Reg. v. O'Brien to that taken in Reg. v. Raspovic and Reg. v. Waghorn and held that the effect of the New South Wales provisions should not be taken into account by an increase in the non-parole period. Fox J. considered that the result was unsatisfactory and said:

"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."

Blackburn J., who was in the minority, took a different view. He held that the New South Wales regulation did not have any effect on the law of the Australian Capital Territory and that a Territory judge is entitled and indeed bound to treat reg. 18 "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". He summed up his view by saying:

"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."

He accordingly thought that Gallop J. was correct in his method of determining the non-parole period. (at p496)

9. It is, at the outset, necessary to examine the correctness of the fundamental assumption made both by Gallop J. and by the majority of the Full Court of the Federal Court - that the non-parole period of a Territory offender serving a sentence of imprisonment in New South Wales is reduced by the operation of the N.S.W. Parole Act. Clearly the provisions of the N.S.W. Parole Act could not amend a law of the Territory. Equally clearly they were not intended to do so: the terms of the statute show unmistakably that the provisions of s. 25 are intended to apply to non-parole periods fixed under the provisions of the statute itself. It has, however, apparently been assumed that the provisions of s. 5(3) of the Removal of Prisoners (Australian Capital Territory) Act have rendered s. 25 of the N.S.W. Parole Act and reg. 18 of the Regulations thereunder applicable to the non-parole period fixed when an offender against a law of the Territory is sentenced by a judge of the Supreme Court of the Australian Capital Territory. Any such view of the effect of s. 5(3) is erroneous. Section 5(3) has the effect that the offender, while in custody in New South Wales, may "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 by virtue of which he undergoes imprisonment had been made or pronounced under a law in force in New South Wales. The words "be dealt with in the like manner, and is subject to the like laws" would not in themselves render applicable the provisions of any New South Wales statute which effect a reduction of the period of imprisonment which a New South Wales offender is required to serve. The words are inapt to import provisions which affect the length of the period for which the Territorial offender remains in custody. They relate rather to the manner in which the offender may be dealt with while in custody. For example, they would empower the prison authorities to deal with the Territorial prisoner as if he had been sentenced in New South Wales and would render him subject to the laws of New South Wales relating to prison discipline. The scope of the words is extended to include "laws relating to the reduction or remission of sentences". Those words do render a Territorial offender serving a sentence in New South Wales subject to the provisions of s. 4(3) of the Prisons Act 1952 and Pt XV of the Prisons Regulations 1968, which are laws relating to the reduction or remission of sentences. They do not, however, render the provisions of the N.S.W. Parole Act applicable to such an offender. Section 25 of that Act, with which we are directly concerned, does not relate to the reduction or remission of a sentence. It has the effect of reducing the minimum period which the offender must serve in prison before being released on parole, which is quite a different thing. (at p497)

10. For these reasons the N.S.W. Parole Act has no operation in relation to Territorial offenders. Such offenders are subject to the Parole Ordinance 1976 (A.C.T.) and remain so subject even while serving sentences in New South Wales, since the Removal of Prisoners (Australian Capital Territory) Act does not affect the Parole Ordinance: see s. 11(c) of the Removal of Prisoners (Australian Capital Territory) Act. The Parole Ordinance does not contain any provisions which correspond to those of s. 25 of the N.S.W. Parole Act. (at p497)

11. The Commonwealth Prisoners Act 1967 (Cth) does not affect the present question. By s. 19 of that Act the provisions of a law of a State or Territory "relating to the reduction or remission of sentences or minimum terms of imprisonment" apply to a "federal offender" who is serving a sentence of imprisonment in a State prison in the like manner as those provisions apply in relation to a State offender serving a sentence of imprisonment in that prison. However, that Act draws a distinction between a "federal offender" - which means "a person convicted of an offence against a law of the Commonwealth" - and a "Territory offender" - which means "a person convicted of an offence against a law (not being a law of the Commonwealth) in force in a Territory". The respondent in the present case is a "Territory offender" and not a "federal offender" within the meaning of that statute. (at p498)

12. In these circumstances it is unnecessary to decide whether the majority of the court in Reg. v. O'Brien (1984) 10 ACrimR 390 reached a correct result or to consider whether s. 19 of the Commonwealth Prisoners Act would render the provisions of s. 25 of the N.S.W. Parole Act applicable to federal offenders. (at p498)

13. It inevitably follows from what has been said that Gallop J. was wrong if he increased the period which he ordered that the respondent should serve before becoming eligible for parole for the purpose of counteracting the effect of s. 25 of the N.S.W. Parole Act and reg. 18, since those provisions had no application to the case. The majority of the Full Court of the Federal Court were right in holding that it would be wrong for a judge of the Australian Capital Territory to increase a non-parole period to counteract the effect of the N.S.W. Parole Act - not for the reasons which their Honours gave, but because the Act has no application. Equally, however, Blackburn J. was incorrect in saying that the judges of the Supreme Court of the Australian Capital Territory can have regard to the provisions of the New South Wales legislation as a fact and can take that fact into consideration in fixing a non-parole period. No doubt the existence of that legislation is a fact, but it is an irrelevant fact since the provisions have no application to a sentence imposed in the Australian Capital Territory. (at p498)

14. Finally, we were told that in order to ensure that offenders sentenced in the Territory and offenders sentenced in New South Wales are treated alike in New South Wales prisons, there has been adopted a policy of granting licences under s. 8A of the Removal of Prisoners (Territories) Act 1923 (Cth), as applied by s. 7 of the Removal of Prisoners (Australian Capital Territory) Act, for the purpose of allowing Territory offenders to be released on licence at the time when they would have been released on parole had they been New South Wales prisoners. It is rather surprising (if it is correct) that the executive should pursue a settled policy of releasing on licence prisoners not eligible for parole under the applicable law, and if it is desirable that Territory offenders in New South Wales prisons should be treated in the same way as New South Wales offenders one might have expected that the law would be amended to bring about the necessary uniformity. We have no formal evidence of the policy. However, it is perfectly clear that it would not be right for a judge of the Australian Capital Territory to increase a non-parole period to counteract what might appear to be the policy of the executive to release prisoners on licence. An executive policy, not enjoined by statute, might well be varied in the light of changing circumstances and could not be relied upon as a justification for increasing the length of time which an offender was required to serve in prison before becoming eligible for parole. (at p499)

15. For these reasons, as we have said, the Full Court of the Federal Court was right to interfere with the order made by Gallop J. if in fact his Honour had increased the non-parole period to take account of the New South Wales legislation. It has not been suggested on the part of the Crown that it would be appropriate to grant special leave to appeal simply to consider whether the Full Court of the Federal Court was in error in holding that Gallop J. did take that course or to consider whether the reduced non-parole period which that Court fixed was an appropriate one. (at p499)

16. Special leave to appeal will, therefore, be refused. (at p499)

ORDER

Special leave to appeal refused.