Burke v The Queen [1981] HCA 55

High Court of Australia Gibbs C.J. Stephen, Murphy, Aickin and Wison JJ. Burke v The Queen [1981] HCA 55

ORDER Application for special leave to appeal against conviction refused. Extend time in which to apply for special leave to appeal against sentence. Application for special leave to appeal against sentence granted. Appeal allowed. Order of the Court of Criminal Appeal of New South Wales set aside and in lieu thereof grant leave to appeal against sentence, and order that the non-parole period specified in respect of the term of imprisonment imposed by the sentence be varied by substituting 19 May 1985 for 7 December 1988.

The Court delivered the following judgment:—

Gibbs C.J., Stephen, Murphy, Aickin and Wilson JJ.

The Court does not consider that this is a proper case in which to grant special leave to appeal against conviction. So far as sentence is concerned, the applicant, who was convicted on two counts, was sentenced to two years' imprisonment with hard labour on the first count and to ten years' imprisonment with hard labour on the second count.

In pronouncing judgment, the learned trial judge, his Honour Judge Thorley, said: "This sentence will be served concurrently but will date from the expiration of your existing sentence. I specify a parole period which expires not before 7 December 1988." This Court would not interfere with the length of the sentence imposed by his Honour Judge Thorley. However, it appears that the learned judge, in specifying what he describes as the "parole period", proceeded on what can now be seen to be a misconception. He thought that the existing sentence imposed on the applicant would expire by remission on 7 December 1983, and fixed five years from that date as the date on which the applicant would become eligible for parole. In the light of the decision of this Court in Smith v. Corrective Services Commissioner (N.S.W.) [1] which had not been given either at the date on which Judge Thorley imposed his sentence or at the date of the judgment of the Court of Criminal Appeal, it now appears that the existing sentence will, subject to good behaviour, expire by remission at an earlier date, namely, 19 May 1980.