CATCHWORDS Criminal Law and Procedure - application for leave to appeal out of time - non-parole period fixed said to be disproportionate to head sentence. Bain v. R. (1983) 47 ALR 472 - Considered. WESLEY TREVOR JONES Vv. THE QUEEN No. NTG 15 of 1984 Coram: Gallop, Neaves and Beaumont JJ. . ' * Darwin \ Tes 17 August 1984 wa re en ee re ee a en eee a en rr rrr errs IN THE FEDERAL COURT OF AUSTRALIA ) } NORTHERN TERRITORY DISTRICT REGISTRY } No. NTG 15 of 1984 ) ) GENERAL DIVISION ON APPEAL FROM THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA BETWEEN: WESLEY TREVOR JONES Applicant AND: THE QUEEN Respondent ORDER Judges Making Order Gallop, Neaves and Beaumont JJ. Date of Order 17 August 1984. Where Made Darwin. THE COURT ORDERS THAT: (1) The application for leave to appeal be refused. IN THE FEDERAL COURT OF AUSTRALIA ) ) NORTHERN TERRITORY DISTRICT REGISTRY ) No. NTG 15 of 1984 ) ) GENERAL DIVISION ON APPEAL FROM THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA BETWEEN: WESLEY TREVOR JONES Applicant AND: THE QUEEN Respondent CORAM: Gallop, Neaves and Beaumont JJ. DATE: 17 August 1984 REASONS FOR JUDGMENT THE COURT On 11 April 1984, in the Supreme Court of the Northern Territory sitting at Alice Springs, the applicant was arraigned on an indictment charging him with 15 counts of larceny contrary to s.135 of the Criminal Law Consolidation Act 1976 and 9 counts of stealing contrary to s.210 of the Criminal Code Act 1983. On his arraignment, the applicant pleaded guilty to each count. After hearing facts and submissions, the Chief Justice remanded the applicant in custody until 13 April 1984 for sentence. On that day, the Chief Justice sentenced the applicant in respect of the first 15 counts of larceny, contrary to s.135 of the Criminal Law Consolidation Act 1976, to imprisonment for one year and in respect of the 9 counts of stealing, contrary to s.210 of the Criminal Code Act 1983, to imprisonment for 2 years, all sentences to be concurrent. His Honour fixed a non-parole period of 15 months. By Notice of Motion dated 28 May 1984, the applicant applied, pursuant to 0.52, r.15(2), for leave to appeal against the severity of the sentences imposed. The time prescribed for filing and serving a Notice of Appeal to this Court is 21 days from the date when the judgment appealed from was pronounced (0.52, r.15(1)). By definition "judgment" means, inter alia, sentence of a court or judge under appeal. The last day for filing and serving a Notice of Appeal under the Rules was 4 May 1984. Notwithstanding anything in 0.52, r.15(1), the Court or a judge, for special reasons, may at any time give leave to file and serve a Notice of Appeal. The special reasons relied upon by the applicant were deposed to in affidavits setting out the following undisputed facts. After the sentences were imposed on 13 April 1984 the applicant's Alice Springs solicitor, who had appeared for the applicant in the proceedings before the Chief Justice, discussed the sentences with a senior lawyer in the Darwin office of the Australian Legal Aid Office. It was resolved between them that the sentences should be more closely scrutinised with a view to deciding whether the applicant should appeal to this Court. On 17 April 1984, the same solicitor was advised by the gaol authorities in Alice Springs that the applicant wished to see him regarding a possible appeal and accordingly an interview took place on that day in the course of which the applicant instructed his solicitor that he wished to lodge an appeal to this Court. The solicitor was involved virtually full time in court commitments until 4 May 1984 when the time for lodgment of an appeal expired and Easter holidays, the Anzac Day and May Day holidays and a brief period of ill health antruded upon his time to give further consideration to the question whether to lodge an appeal on the applicant's behalf. On 4 May 1984, he discussed the matter with another senior lawyer in the Darwin office of the Australian Legal Aid Office. It was decided to make application for leave to appeal against the sentences pronounced on 13 April 1984. However, due to ongoing court commitments the Alice Springs solicitor did not take instructions from the applicant again until the afternoon of 10 May 1984 when written instructions were obtained to apply for leave to appeal. On 17 May 1984 counsel was briefed to advise and on 22 May 1984 counsel advised that an appeal on the grounds settled by counsel had a very reasonable prospect of success. As indicated earlier, the application for leave to appeal and the supporting affidavits were then filed and served upon the Crown on 28 May 1984, 24 days after the expiration of the time provided by 0.52, r.15(1) (a). When the application came on for hearing we heard counsel's submissions in respect of the application and proceeded to hear submissions relative to the substance of the appeal if leave were to be granted. If leave to appeal is granted, the grounds of appeal proposed to be relied upon by the applicant are: "BA. The learned sentencing Judge erred in law in fixing a non-parole period of 15 months on a head sentence of 24 months in that the non-parole period too closely approximated the date of the appellant's re release from custody after the granting of normal remissions on the head sentence. B. The learned sentencing Judge erred in law in the fixing of the non-parole period in that it offered the appellant no incentive; or any adequate incentive (sic), to apply for parole release." In short, it was submitted on behalf of the applicant that the sentencing discretion had miscarried because the non-parole period of 15 months before which the applicant will not become eligible for parole approximates too closely to the time at which the applicant may be expected to be released from prison by the operation of the usual remissions provided by s.92(1) of the Prisons (Correctional Services) Act and Determination No. 5 made thereunder. Section 92(1) provides that the Minister may make a determination specifying the amount of remission which may be granted to a prisoner and the circumstances in which that remission may be granted. It is unnecessary to set out the terms of Determination No. 5 dated 3 June 1981. It is sufficient to note that the Maximum amount of remission that may be granted in respect of a term of imprisonment being served by a prisoner who has been industrious and of good conduct shall not exceed 1/3 of the maximum length of the sentence. Accordingly, 1f the applicant is industrious and of good conduct while serving the term of imprisonment imposed, he may expect to receive a remission of 8 months on the concurrent head sentences of 2 years. He will also be eligible to be released upon parole at the expiration of 15 months of those sentences pursuant to s.5(2) of the Parole of [risoners Act 1980. The first 15 offences contrary to s.135 of the Criminal Law Consolidation Act were committed between 3 October and 30 November 1983. The second group of 9 offences were committed between 2 February 1984 and 23 February 1984. The short facts of the offences are that the applicant stole repeatedly quantities of copper wire from the Mereenie Pumping Station which is located on the Stuart Highway south of Alice Springs near Roe Creek. His method of operation was to drive to the depot at about 8.00 pm, enter the yard through a cyclone fence at the rear of the yard and then proceed to the front of the yard where the cable was located on drums. Using a hacksaw he cut off lengths of cable that could be conveniently carried back to his motor vehicle and placed them in the boot of his vehicle. He then proceeded to another location near Roe Creek and stripped the insulation from the cable either by cutting it off or burning it and then loaded the stripped copper wire back into his vehicle and sold it to a metal yard in Alice Springs as scrap metal. By that method the applicant stole some 1200 metres of insulated cable valued at $8,272. The owner of the copper cable became aware that the cable was being removed in large quantities and caused the cable to be removed to a depot in the township of Alice Springs itself. Undeterred by the change of location the applicant then committed the second series of offences in much the same manner as when the cable was located at the Mereenie depot. He gained access to the premises through a hole in the fence, cut off lengths of cable and took them to another location where he stripped the insulation by one or other of the methods described and sold the cable to the same metal yard. By this method the applicant stole 3050 metres of cable valued at $32,667.50. When approached by police on 24 February 1984 the applicant admitted selling cable to the metal yard, but stated that he had found it near a track off the South Stuart Highway. In the second and third records of interview he disclosed the true facts. The only metal recovered was 307 kilograms shortly before the applicant was arrested. Having been stripped of its unsulation the recovered material was of little use to the owner. The applicant received approximately $5,500 from the sale of all the scrap metal. In passing sentence the Chief Justice said that he had@ taken into account that the applicant had pleaded guilty, that after an initial foolish and quite hopeless false story he had been co-operative with the police, that 1t would have been difficult for the police to prove the case against him without his assistance and that it would have been impossible for them to work out the details. He also said that he had taken into account the fact that the offences were easily committed and should have been detected and stopped quite early in the course of events. His Honour also took into account that the applicant was only 23 years of age, having been born on 9 October 1960, and that he had no prior convictions. His Honour also referred to his excellent work record, but, having considered all submissions that were put on the applicant's behalf, deemed that the repetitive nature of the offences was such that leniency in the form of a suspended sentence was not appropriate. His Honour proceeded to sentence the applicant accordingly. It is to be noted that whereas under s.135 of the Criminal Law Consolidation Act 1976 the maximum penalty for the crime of simple larceny, of which the applicant was convicted and sentenced as set out in the first 15 counts in the indictment, was 2 years' imprisonment with hard labour, the crime of stealing under s.210 of the Criminal Code Act 1983, of which the applicant was convicted and sentenced as set out in the last 9 counts in the indictment, provides a maximum penalty of 7 years' imprisonment. Counsel for the applicant relied upon two decisions of this Court. In Rich and Bourke v. R. (unreported decision delivered 7 September 1981) the appellants were arraigned and pleaded guilty to an offence of being in possession without reasonable excuse of heroin, a prohibited import to which s.233B of the Customs Act applied, such heroin being reasonably suspected of having been imported into Australia in contravention of the Customs Act. Each appellant was sentenced to imprisonment with hard labour for 8 years with a non-parole period of 5 years. The appellants appealed against the severity of the sentences and a Full Court of this Court varied the sentences imposed by deleting the non-parole period specified by the sentencing judge and substituting, in the case of one appellant, a non-parole period of 3 years 6 months, and in the case of the other, a non-parole period of 3 years. In the course of its jozunt judgment, the Full Court, after referring to the principles upon which this Court will determine appeals against sentence, observed that, although the head sentences were severe, no erroneous exercise of the sentencing discretion in that respect had been demonstrated. It then referred to the non-parole period being open to review upon appeal to this Court (R. v. Tait and Bartley (1979) 24 ALR 473 at 486; Brodie v. R. (1977-78) 16 ALR 88 and Anderson ve. R. (1978) 19 ALR 212 per Smithers J. at 218) and said in relation to the parole scheme in the Northern Territory: "The parole scheme may be said to have several objectives. But undoubtedly one aim is to safeguard the community by ensuring that prisoners upon release will be subject to supervision and returned to life in the community with some prospects of successful integration within that community. The extent to which each prisoner will require supervision or rehabilitation will depend on the individual and his problems, the nature of his offence and indeed the period that has been spent in custody." In that case, the prisoners, if they gained full entitlements to remission for good behaviour, would have been very close to release after serving 5 years of their sentences, being the non-parole period specified. The Court said that there would be little, if any, incentive for a prisoner in such circumstances to apply for parole release in view of the sanctions he would face if he offended again, a situation which was not in the community interest. The Court considered it important that the Parole Board should have the opportunity to consider the release of the appellants in that matter well before the expiration of their sentences. It noted that it was entirely for the Parole Board to make the ultimate decision but 1t was the opportunity for release, not the likelihood of release, that was the important matter. The Court considered that the long non-parole periods specified were not duly proportioned to the head sentences and that they should be reduced. The reductions were substantial - 18 months and 2 years respectively. In Bain v. R. (1983) 47 ALR 472, a differently constituted Full Court of this Court adhered to the principles expressed in Rich and Bourke v. R. (supra) and reduced a non-parole period imposed by the Supreme Court of the Northern Territory so as to achieve what it regarded as a duly proportioned sentence. In that case the appellant had been convicted of 4 offences against the Customs Act and sentenced to 3 periods of imprisonment cumulatively, which aggregated 5 years 6 months. The sentencing judge had directed that the appellant not be eligible for parole until he had served 34 years of his sentence. The Court referred to the functions of the parole system as considered in Rich and Bourke v. R. (supra) and observed that for the minimum non-parole period to serve any useful function it should not equate or be so close to the period of the head sentence, as reduced by remissions, as to make it unlikely that parole would be sought. Accordingly it reduced the non-parole period from 34 years to 24 years, a reduction of one year. Both cases were, of course, appeals as of right against sentence. In that respect alone, they are distinguishable from the present case, which 1s an application for leave to appeal. In Power v. R. (1974-75) 131 CLR 623 the High Court emphatically rejected the course of reasoning expounded by the Court of Criminal Appeal of New South Wales in R. v. Portolesi (1973) 1 NSWLR 105 and R. v. Sloane (1973) 1 NSWLR 202 which led to the conclusion that a sentence of imprisonment 1s no longer primarily a punishment for an offence but 1s rather a provision for an opportunity for rehabilitation. The High Court held that = =n 10. a judge, in fixing a non-parole period, must have regard, not to the time within which the paroling authority must consider the prisoner's case, but to the time for which the prisoner Must remain in confinement. In discussing the quite distinct functions of the trial judge and the Parole Board, 1t was there held that the obligation of the paroling authority is to consider the case of a prisoner during the period of punishment imposed by the trial judge so as to ensure that, if, by the time the non-parole period comes to an end, the circumstances as a whole warrant the release of the prisoner upon parole, that prisoner will not be kept in confinement for a longer period while his case is being considered. The parole legislation considered by the High Court was said not to convert a sentence of imprisonment from a punishment to an opportunity for rehabilitation. The following classic statement appears at p.628: "Confinement in a prison serves the same purposes whether before or after the expiration of a non-parole period and, throughout, it 1s punishment, but punishment directed towards reformation. The only difference between the two periods 1s that during the former the prisoner cannot be released on the ground that the punishment has served 1ts purpose sufficiently to warrant release from confinement, whereas in the latter he can. 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." Power v. R. was reaffirmed in Deakin v. R. (unreported decision of the High Court delivered 16 May 1984) and Lowe v. R. {unreported decision of the High Court delivered 2 August 1984). In the latter case Dawson J., after referring to Power's case and Deakin's case, observed (at p.21 of the unreported judgment) that, having regard to the purpose to be served by the fixing 1l. of a non-parole period, it 1s obvious that it should not be made disproportionate to the full term. His Honour said that 1t nevertheless remains very much a matter within the discretion of the sentencing judge and a challenge to sentence on the ground that the non-parole period fixed 1s disproportionate to the full term may be contrasted with the error involved ina failure to fix any minimum term at all when the legislation requires 1t, aS in Deakin. R. v. Vella (unreported decision of the Court of Criminal Appeal of New South Wales delivered 3 December 1982) was an appeal against the severity of sentence in which the main ground was directed to the proximity of a non-parole period of 2 years to the likely release date on a head sentence of 4 years. Street C.J., in delivering the judgment of the Court, said that 1t should be made plain that there is no requirement of an actual proportion between a non-parole period and a head sentence but that it is a relevant matter to be looked at and considered if 1t appears that the non-parole period on its face 1s excessive. His Honour said that it was also a relevant matter 1f it can be seen that accrued remissions will result in the expiry of the head sentence prior to the arrival of the non-parole period date, a circumstance which on its face indicates some miscarriage of the sentencing process. "Where however a perfectly proper non-parole period ... has been specified by the sentencing judge, then a proportionality inquiry 1s of little assistance or relevance in the determination of an appeal. The logical flaw in examining proportionality as an end in itself 1s that there is no way of determining, when an apparent disproportion arises, 12. whether the non-parole period is too long or the head sentence is too short." (At p.3). This Court should keep steadfastly in mind the principles upon which it will interfere with the exercise of a sentencing judge's discretion. They were examined and enunciated un Kovac v. R. (1977) 15 ALR 637 and several later cases including R. v. Tait and Bartley (supra) at 476 and R. v. Hall (1979-80) 28 ALR 107 at 113. It is not necessary to repeat what was said in those cases. It 1s sufficient to observe that this Court will not interfere with the sentence imposed merely because 1t is of the view that that sentence is insufficient or excessive. It will interfere only if it be shown that the sentencing judge was in error in acting on a wrong principle or 1n 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, generally, Skinner v. R. (1913) 16 CLR 336 at 339-40; R. v. Withers (1925) 25 SR(NSW) 382 at 394; Whittaker v. R. (1928) 41 CLR 230 at 249; Griffiths v. R. (1977) 15 ALR 1 at 15-17). With these principles in mind, we are of the opinion that the sentence under appeal should be looked at as a total sentence. It 18 apparent that the Chief Justice regarded the non-parole period of 15 months as the minimum period which the accused should serve for his sustained criminality in the commission of 24 offences over separate periods of 2 months and 3 weeks. He did not fail to take account of any subjective 13. factors in respect of the applicant. The applicant is not guaranteed his release on completion of that period. It is conditional upon his industry and good behaviour during the period and an order for release on parole by the Parole Board. His entitlement to remission under Determination No. 5 made pursuant to the Prisons (Correctional Services) Act 1980 does not crystallise into an accrued right until the time comes for his release (see Smith v. The Corrective Services Commission (1980) 2 NSWLR 171). Still, it may be seen as a positive entitlement which will, in due course, become a right unless the applicant forfeits all or part of it. Thus, as counsel for the applicant submitted, the structure of the sentence is such that the applicant in all probability will be faced with an election between, on the one hand, applying for parole at the expiration of the non-parole period, and, on the other, serving another month in order to be released at the earned remission date without parole. Two matters arise for consideration in the present application. First, are the reasons the applicant has advanced for his delay sufficient to excuse or, at least, to explain his delay so as to justify allowing him to institute an appeal out of time? Secondly, has the applicant demonstrated that his appeal may have sufficient prospect of success to make 1t just that he should now be allowed to proceed with it? (See Sukarno v. Minister for Immigration and Ethnic Affairs, unreported decision of the Full Court 29 June 1984 at p.2.) As to the first question, it may be accepted that in the circumstances deposed to, the applicant has sufficiently 14. explained the failure to file a Notice of Appeal within time. However, although counsel for the applicant has advanced every argument which could usefully be put in favour of the applicant's case, we do not think that the applicant has made out any case for disturbing the sentence imposed. In our view, no error of principle in the fixation of a minimum term of 15 months has been demonstrated, having regard to the repetitive nature and gravity of the offences. Further, we are not persuaded that the non-parole period fixed is necessarily disproportionate to the head sentence. It was within the range of options available in the exercise of a sound sentencing discretion. It is true that the structure of the sentence provides no great incentive to the applicant to apply for parole. But, in our opinion, the magnitude or otherwise of the incentive to the applicant to apply for parole is necessarily a question of degree about which differing views may be held without, in any case, any error of principle being involved. It goes without saying that the magnitude of any incentive to apply for parole is limited by the term of the head sentence, by reference to which remissions may be earned. Where, as in Rich and Bourke and in Tait and Bartley, relatively long sentences are involved, there is more scope for the provision of a greater incentive to apply for parole. But where, as here, the head sentence is relatively short, the scope for the provision of an incentive to seek parole is necessarily limited; and, even if it were arguable that a greater incentive to apply for parole should have been provided, given the confined scope, 15. in this case, for the provision of any such incentive, it does not follow that any error of principle has been demonstrated. In the result, we are not satisfied that the learned Judge erred in any respect in sentencing the applicant. Thus no "special reasons" of the kind contemplated by 0.52, r.15 exist. Accordingly, it 1s not an appropriate case 1n which to grant leave to appeal. We refuse leave to appeal. I certify that this and the preceding fourteen pages are a true copy of the reasons for judgment of their Honours Gallop, Neaves and Beaumont JJ. DATED: 17 August 1984 are \otamae m4 N Associate