R v Paivinen [1985] HCA 39

High Court of Australia Gibbs C.J. Mason, Brennan, Deane and Dawson JJ. R v Paivinen [1985] HCA 39

ORDER Special leave to appeal refused.

Cur. adv. vult.

June 18 Gibbs C.J., Mason, Brennan, Deane and Dawson JJ.

The Court delivered the following written judgment:—

This is an application by the Crown for special leave to appeal from a decision of the Full Court of the Federal Court (Bowen C.J. and Fox J.; 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.

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 [1] ) 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: