FEDERAL COURT OF AUSTRALIA Members of the Sentence Administration Board of the Australian Capital Territory v Gomez [2002] FCAFC 261 CRIMINAL LAW – sentencing – parole – whether sentence by order and direction for conditional release under s 556B(1)(b) of Crimes Act 1900 (ACT) deemed to revoke parole under s 22(2) of the Parole Act 1987 (ACT) – nature of sentence – whether sentence "suspended". Parole Act 1976 (ACT), s 22, s 23 Rehabilitation of Offenders (Interim) Act 2001 (ACT), s 111 Crimes Act 1900 (ACT), s 360, s 403 Crimes Act 1914 (Cth) Meehan v Lawrence (1974) 22 FLR 296 MEMBERS OF THE SENTENCE ADMINISTRATION BOARD OF THE AUSTRALIAN CAPITAL TERRITORY v JAVIER FRANCISCO GOMEZ A2 of 2002 MILES, O'LOUGHLIN and DOWSETT JJ 27 AUGUST 2002 CANBERRA IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY A2 OF 2002 DISTRICT REGISTRY ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: MEMBERS OF THE SENTENCE ADMINISTRATION BOARD OF THE AUSTRALIAN CAPITAL TERRITORY APPELLANT AND: JAVIER FRANCISCO GOMEZ RESPONDENT JUDGES: MILES, O'LOUGHLIN and DOWSETT JJ DATE OF ORDER: 15 MAY 2002 DATE OF JUDGMENT: 27 AUGUST 2002 WHERE MADE: CANBERRA THE COURT ORDERS THAT: 1. The appeal be allowed and the judgment of the Supreme Court be set aside. 2. The orders nisi for issue of writs of habeas corpus and certiorari be discharged and orders absolute be set aside. 3. The cause be remitted to the Supreme Court for execution of the judgment of the Court. 4. There be no order for the costs of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY A2 OF 2002 ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: MEMBERS OF THE SENTENCE ADMINISTRATION BOARD OF THE AUSTRALIAN CAPITAL TERRITORY APPELLANT AND: JAVIER FRANCISCO GOMEZ RESPONDENT JUDGES: MILES, O'LOUGHLIN and DOWSETT JJ DATE OF ORDER: 15 MAY 2002 DATE OF JUDGMENT: 27 AUGUST 2002 PLACE: CANBERRA REASONS FOR JUDGMENT THE COURT 1 This is an appeal from a judgment of the Supreme Court of the Australian Capital Territory (Higgins J) given on 7 December 2001 by which orders nisi for the issue of writs of habeas corpus and certiorari against the Parole Board of the Australian Capital Territory (as it then was) were made absolute and by which certain decisions of the Parole Board were set aside. 2 On 15 May 2002 this Court allowed the appeal and said that reasons would be given later. These are the reasons. 3 The appeal was concerned with the operation of parole under the Parole Act 1976 (ACT)(the former Act) repealed by s 111 of the Rehabilitation of Offenders (Interim) Act 2001 (ACT) (the Rehabilitation of Offenders Act), which came into force on 10 September 2001. Under the Rehabilitation of Offenders Act the Parole Board under the former Act effectively became the Sentencing Administration Board. 4 On 31 August 1990, the Supreme Court sentenced the respondent to a term of 10 years imprisonment for various property offences and possession of heroin. The Supreme Court fixed a non-parole period of six years before the expiry of which the respondent was not eligible for release on parole. The respondent was released on parole on 30 August 1996 pursuant to order of the Parole Board on that day (the original parole order). At the time of his release he continued to be under sentence. The term of that sentence was then due to expire on 30 August 2000. 5 On 7 October 1999, the respondent was convicted after trial in the Supreme Court of two offences of using a false instrument, charged on the ninth and tenth counts of the indictment. These offences were committed on 16 September 1997 during the parole period. The sentencing judge proceeded to sentence the respondent in the following terms: "[The respondent] will be sentenced to three months' imprisonment 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; that recognizance to be in the sum of $500. It is a condition of that recognizance that he pay a penalty of $500 and further pay compensation to Diners Club in the sum of $99.20. I will not attempt to split it between the two. So far as the second count is concerned – that is the 10th count on the indictment – there will be a conviction recorded, and I will defer sentence on that count on [the respondent] entering into the recognizance referred to on the 9th count, and direct that he be released forthwith accordingly." 6 The respondent entered into the recognizance on the same day and, it appears, was released on that same day. 7 On 23 November 1999, whilst the respondent was still at large, the Parole Board issued or purported to issue a notice stating that the parole order of 30 August 1996 had been revoked by s 22(2) of the former Act. That section provided as follows: "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 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." 8 On 24 November 1999, the Parole Board made or purported to make a further parole order in terms almost identical with those of the original parole order, but expressed to commence on 7 October 1999 and expire on 6 October 2003, since the time previously spent on parole did not count towards serving the remainder of the 10 year sentence of imprisonment imposed on 31 August 1990. The respondent remained under sentence but at large. 9 On or before 17 October 2000, the respondent pleaded guilty in the ACT Magistrates Court to a charge of possession of heroin. On that date, the Parole Board revoked the further parole order of 24 November 1999, relying on the admitted possession of heroin as a breach of that further parole order. The respondent was returned to custody in consequence of the revocation of that further parole order. On 15 November 2000, whilst the respondent remained in custody under sentence, the ACT Magistrates Court deferred passing sentence on the charge of possession of heroin. The date on which the offence charged occurred does not emerge from the material in the appeal nor is there anything to indicate whether the possession of heroin was a breach of the recognizance entered into on 7 October 1999. 10 On 23 January 2001 the Parole Board had made a further parole order (the latest parole order) expressed to expire on 17 October 2004 for the reason referred to in [8] above. On 13 February 2001 the respondent was again released on parole. 11 On 23 July 2001 the respondent was arrested for alleged breaches of parole. On 27 July 2001 the Parole Board found those breaches proved and revoked the latest parole order. 12 The respondent remained in custody pursuant to the revocation of parole on 27 July 2001 until 7 December 2001, the date of the orders absolute in the Supreme Court. 13 The orders for issue of writs of habeas corpus and certiorari were made as a consequence of a ruling of law by the Supreme Court that the sentence of three months imprisonment imposed on 7 October 1999 did not operate to revoke the respondent's parole. On that ruling it followed, as the Supreme Court further ruled, that the decisions of the Board ever since were vitiated by errors of law. It further followed, as the Supreme Court appears to have further ruled, that the term of imprisonment of ten years imposed on 31 August 1990 would have expired before 30 August 2000 or at the latest on a date prior to the date of hearing in the Supreme Court. Accordingly, the orders nisi were made absolute, and the respondent was discharged from custody. 14 It is common ground that the only question for determination on this appeal is whether the sentence of three years imprisonment imposed on 7 October 1999 should have been deemed to revoke the parole order of 31 August 1990 pursuant to s 22(2) of the former Act. It is also common ground that if the Parole Board was correct in considering that the sentence was deemed to have revoked the parole, the subsequent decisions made and the steps taken by the Parole Board in relation to the respondent's parole were lawful. 15 Contrary to the conclusion reached by the Supreme Court, we are of the view that the sentence of three months' imprisonment imposed on 31 August 1990 fell within s 22(2) of the former Act and that the respondent's parole was thereby deemed to have been revoked. 16 The sentence of three months' imprisonment, said to be "suspended", was imposed by way of an order under s 403(1) (formerly s 556B(1)) of the Crimes Act 1900 (ACT) (the Crimes Act) of the Territory. The terms of the subsection are critical. They are: "(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- (a) release the person without passing sentence upon him or her upon his or her giving security, with or without sureties, by recognisance or otherwise, to the satisfaction of the court that- (i) he or she will be of good behaviour for such period as the court specifies in the order; and (ii) he or she will, during the period so specified, comply with such conditions (if any) as the court thinks fit to specify in the order, which conditions may include- (A) the condition that the offender will, during the period so specified, be subject to the supervision on probation under a person, for the time being appointed in accordance with the order; and (B)the condition that the offender will obey all reasonable directions of a person so appointed; and (C) the condition that the offender will comply with an order made pursuant to section 437; and (iii) he or she will pay to the Territory such penalty (if any) as the court specifies in the order on or before a date specified in the order or by specified instalments as provided in the order; or (b) sentence the person to a term of imprisonment but direct that the person be released, upon him or her giving a like security to that referred to in paragraph (a), either forthwith or after he or she has served a specified part of the sentence imposed upon him or her." 17 Thus whilst it may be common and convenient to refer to a sentence imposed by way of an order under s 403(1)(b) (formerly s 566B(1)(b)) as a "suspended" sentence, the term is somewhat misleading. It is not the sentence which is suspended by the making of the order under s 403(1)(b). The sentence takes effect immediately but the liability of the offender to serve the sentence by way of actual imprisonment may be regarded as suspended if and when the offender enters into the recognizance authorised by the direction for release made as part of the order. The effect of the order and direction is that, notwithstanding the sentence, the offender is to be released upon giving security, with or without sureties, by recognizance or otherwise, to the satisfaction of the court, that he or she will be of good behaviour for such period as the court specifies and that he or she will during the period specified comply with any other conditions specified in the order. Once the person has given the security to the satisfaction of the court, the person is to be released, according to the terms of the direction, either forthwith or after he or she has served a specified part of the sentence. 18 If, for whatever reason, the offender does not give the security to the satisfaction of the court (which security in the present case was to be by way of recognizance) the offender remains in custody until the security is given. Until the security is given the offender is not eligible for release in accordance with the direction. Only after the offender has given the security to the satisfaction of the court is he or she to be released, either forthwith or after serving a specified part of the sentence as directed. 19 In the present case, the respondent entered into the recognizance on the day the sentence was imposed, namely, 7 October 1999 and, from what we were told, was at large from then until taken into custody on 24 November 1999 to serve the remainder of the existing ten year sentence. 20 In our view, the words of s 403(1)(b) are plain. We agree with the judgment and the reasons of Forster J in Meehan v Lawrence (1974) 22 FLR 296 in which legislation of the Northern Territory similar to s 403(1)(b) was considered. His Honour said at 297: "It seems to me that on its face the sentence is 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. When fixing a sentence and using the provisions of the Criminal Law (Conditional Release of Offenders) Ordinance 1971, the form of words habitually used by me is 'the sentence of the court is that you be imprisoned with hard labour for ... months but I direct that you be released pursuant to the Criminal Law (Conditional Release of Offenders) Ordinance forthwith upon your entering into your own recognizance in the sum of ... dollars to be of good behaviour for ... years.' I am informed that in the present case the learned magistrate used a similar form of words." His Honour continued at 298: "…It is, of course, true that the sentence did not immediately result in imprisonment but it seems to me that this does not alter the essential character of it. If the learned magistrate wished simply to release the defendant upon a bond he could have done so by using the procedure under s 5(1)(a)." 21 In our view, the character of the sentence is made clear if the sentencing judge or magistrate uses the words of the section itself, as suggested by Forster J. It may be confusing to use words such as "the sentence is suspended". It may be correct to regard the liability of the offender to serve the sentence by way of actual imprisonment as "suspended" until the expiry of the period of the recognizance. However, the term "suspended" is nowhere to be found in s 403(1)(b). We note that the Crimes Act 1914 (Cth) uses the term "recognizance release order" in relation to similar provisions, a term which is more accurate than "suspended sentence". 22 Another issue raised during the appeal was about the effect of the notice given by the Parole Board on 23 November 2000 which, on one view, purported to revoke the respondent's parole. However, that notice did not purport to notify the respondent of any order made by the Parole Board. It appears to have served the useful purpose of recording the revocation of parole by the sentence of 7 October 1999 and in consequence the revised expected date of expiry of the ten year sentence. It also provided a formal basis for the Board acting on the following day to make a further parole order. 23 We were told that procedural and administrative difficulties will arise in the event of a finding that the sentence of 7 October 1999 revoked the original parole order. One such difficulty is in relation to calculation of the expiry of the sentence, since it appears that the respondent should not have been at large between 7 October and 23 November 1999. Another difficulty is that the sentencing judge should have calculated a fresh non-parole period under s 23 of the former Act. 24 We find it unnecessary to express an opinion about these matters except to draw attention to s 360 (formerly s 451) of the Crimes Actwhich needs to be applied for the purpose of calculating the eventual date of release of the respondent. We also observe that the respondent was the applicant in an allied application for leave to appeal against the severity of the sentence of three months imprisonment imposed on 7 October 1999 (A63/01) and that application is the subject of a further judgment of the Court to be given this day. 25 Accordingly, the appeal was allowed and the judgment of the Supreme Court was set aside. The Court discharged the orders nisi for issue of writs of habeas corpus and certiorari and set aside the orders absolute. The cause was remitted to the Supreme Court for execution of the judgment of the Court. 26 We gave leave for any application for costs to be made by written submissions within seven days. None was received and no order is made for the costs of the appeal. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court. Associate: Dated: 27 August 2002 Counsel for the appellant: Mr C Erskine Solicitor for the appellant: ACT Government Solicitor Counsel for the respondent: Mr R Livingston Solicitor for the respondent: Legal Aid Office (ACT) Date of hearing: 15 May 2002 Date of order: 15 May 2002 Date of Judgment: 27 August 2002