Leeth v R [1992] HCA 67; (1992) 67 ALJR 167; (1992) 110 ALR 459 (16 December 1992)

HIGH COURT OF AUSTRALIA

RICHARD SHIERK LEETH (Matter No. B29 of 1989); WILLIAM BRUCE KIRK (Matter No. B31 of 1989); DALE STEWART KIRK (Matter No. B37 of 1989) and PAUL JOSEPH DONOVAN (Matter No. B38 of 1989) v. THE QUEEN
F.C. 92/052
Number of Pages - 3
[1992] HCA 67; (1992) 67 ALJR 167
(1992) 110 ALR 459

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

CATCHWORDS

HEARING

Canberra
16:12:1992

DECISION

MASON C.J., BRENNAN, DEANE, DAWSON, TOOHEY, GAUDRON AND McHUGH JJ. Each of the applicants pleaded guilty to a number of drug offences, including offences under the Customs Act 1901 (Cth), when arraigned before de Jersey J. in the Supreme Court of Queensland on 3 April 1989. His Honour found that the applicants were "major drug operators at an international level ... involved in some way or other in sophisticated drug dealings of mammoth proportions". He imposed sentences of imprisonment in respect of each of the offences to which the respective applicants had pleaded guilty. It is necessary to refer only to the longest term of imprisonment with hard labour imposed on each accused, for his Honour ordered that the shorter terms should be served concurrently with the longest term in each case. The applicant Leeth was sentenced to 25 years, the applicant William Bruce Kirk to 18 years, the applicant Dale Stewart Kirk to 18 years and the applicant Donovan to 20 years. His Honour recommended that Leeth not be considered for parole until he had served 14 years. No recommendation was made in respect of the other applicants. Presumably his Honour assumed that the Corrective Services Act 1988 (Q.) applied to the applicants, so that each of the applicants Kirk, Kirk and Donovan would be eligible for release on parole after serving half of the term of imprisonment to which he had been sentenced (s.166(1)) and the applicant Leeth would be eligible for release on parole after serving the period specified in the recommendation: s.166(3). In imposing these sentences, his Honour said he had considered the sentences imposed in other "arguably comparable drug cases".

2. On appeal to the Court of Criminal Appeal of Queensland, it was held that s.4(1)(b) of the Commonwealth Prisoners Act 1967 (Cth) required the Court to fix non-parole periods in the case of each of the applicants, each being a "federal offender" as defined in that Act. Although the Court of Criminal Appeal left the head sentences undisturbed, it fixed non-parole periods in each case as authorized by s.4(1)(b). The non-parole period was fixed, in the case of Leeth, at 12 1/2 years; in the case of William Bruce Kirk, at 8 1/2 years; in the case of Dale Stewart Kirk, at 8 1/2 years; and, in the case of Donovan, at 9 1/2 years. In fixing the non-parole periods, the Court of Criminal Appeal had regard to sentences imposed in cases in New South Wales which the Court regarded as comparable - in particular, the cases of two prisoners, Cornwell and Bull. Connolly J., who delivered the judgment of the Court, noted that in New South Wales a sentence commences to run from the date when the offender is taken into custody whereas in Queensland a sentence commences to run from the date when the sentence is pronounced. Accordingly, the Court took the non-parole periods fixed in the cases of Cornwell and Bull as benchmarks, but adjusted those periods to take account of the time which the respective applicants had spent in custody before sentencing.

3. In this Court, the applicant Leeth challenged the constitutional validity of s.4(1) of the Commonwealth Prisoners Act and of s.30(1) of the Crimes Legislation Amendment Act (No.2) 1989 (Cth), but the challenge failed: Leeth v. The Commonwealth ((1) [1992] HCA 29; (1992) 174 CLR 455). These applications for special leave to appeal against the judgment of the Court of Criminal Appeal rest on the failure of that Court to take account of what is submitted to be a ground of distinction between the sentences imposed in New South Wales on Cornwell and Bull and the sentences imposed in Queensland on the applicants.

4. The suggested ground of distinction arises from the differing regimes which, at the relevant times, governed the period which a prisoner was required to serve before being eligible for release on parole. In the case of prisoners incarcerated in Queensland, no remissions were allowed from the non-parole periods recommended by a court under the Corrective Services Act or fixed by a court under the Commonwealth Prisoners Act. In the case of prisoners incarcerated in New South Wales, on the other hand, non-parole periods fixed by a court under Div.2 of Pt 3 of the Probation and Parole Act 1983 (N.S.W.) were subject to remissions calculated as prescribed by par.18 of the Probation and Parole Regulation 1984 ("the Regulation") or, after its amendment as from 1 July 1987 ((2) Consequent on the coming into force of the Prisons (Further Amendment) Act 1986 (N.S.W.)), remissions available ((3) The benefit of remissions under the original regulation was preserved with qualifications by Sched.1 of the Prisons (Further Amendment) Act. A new regime was subsequently introduced by the Sentencing Act 1989 (N.S.W.)) by grant of the Corrective Services Commission of New South Wales pursuant to Pt 11 of the Prisons Act 1952 (N.S.W.) or the prerogative of mercy. The New South Wales provisions relating to remissions allowed against non-parole periods were applicable to federal prisoners: s.19 of the Commonwealth Prisoners Act. Cornwell and Bull were federal prisoners and, by reason of the remissions available, could become eligible for release on parole after a period much shorter than that fixed by the Supreme Court of New South Wales: in the case of Cornwell, after 8 1/2 years instead of the 14-year non-parole period fixed by the Court; in the case of Bull, after 7 1/2 years instead of the 11-year non-parole period fixed by the Court. It was submitted that the Court of Criminal Appeal misdirected itself in treating the non-parole periods fixed by the Supreme Court in the cases of Cornwell and Bull as benchmarks against which to determine the appropriate non-parole periods in the applicants' respective cases.

5. At the outset the submission encounters the objection that, even if Cornwell and Bull's cases ought not to have been treated as comparable, it does not follow that the non-parole periods fixed in the cases of the applicants were inappropriate. However that may be, the submission that the absence of a remission regime in Queensland similar to the remission regime in New South Wales denied the comparability of the sentences imposed on Cornwell and Bull cannot be accepted.

6. The view taken by the courts in New South Wales was that, in general, the availability of remissions under par.18 of the Regulation ought not be taken into account in determining the non-parole period: Reg. v. O'Brien ((4) (1984) 10 A Crim R 390). In Reg. v. Paivinen ((5) [1985] HCA 39; (1985) 158 CLR 489, at pp 495-496, 498) this Court noted that a majority of the Full Court of the Federal Court had taken the same view but this Court did not find it necessary to determine the correctness of that view. Subsequently, a similar question was considered in Hoare v. The Queen ((6) [1989] HCA 33; (1989) 167 CLR 348, at pp 356-360) in reference to a South Australian provision ((7) Criminal Law Consolidation Act 1935 (S.A.), s.302) which directed the Court to have regard to the fact that remissions could be credited against the non-parole period. It was held that that provision should not be construed as authorizing the Court to increase the period which would otherwise be fixed as an appropriate period ((8) (1989) 167 CLR, at p 365). There is no reason to think that the Court in the cases of Cornwell and Bull, in the absence of special circumstances of the kind discussed in Hoare, had regard to the provisions of par.18 of the Regulation or fixed a non-parole period greater than that which was appropriate in the circumstances revealed in those cases.

7. Both in New South Wales and in Queensland, a court fixing a non-parole period in respect of a federal offender under s.4(1) of the Commonwealth Prisoners Act was required to fix the "minimum period of imprisonment to be served because ... the crime committed calls for such detention": Power v. The Queen ((9) [1974] HCA 26; (1974) 131 CLR 623, at p 628). Section 4(2) required the sentencing court to fix that period having "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". In Queensland, there was no occasion to consider the possible abbreviation by executive action of the non-parole period. In New South Wales, the remissions allowable against the non-parole period were not to be regarded. If the cases of Cornwell and Bull were otherwise comparable with the cases of the applicants, it would have been erroneous for the Court of Criminal Appeal to treat the judicial fixing of a non-parole period in the cases of Cornwell and Bull as being affected by the remissions regime applicable in New South Wales. If the courts of both States were not entitled to have regard to the possibility of remissions, there was no reason why the sentences imposed in New South Wales in otherwise comparable cases could not be used by the Court of Criminal Appeal of Queensland as benchmarks in fixing the non-parole periods in the sentencing of the applicants.

8. It follows that there was no error of principle affecting the decision of the Court of Criminal Appeal. The applications for special leave to appeal should be refused.

ORDER

Applications for special leave to appeal refused.