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Court of Criminal Appeal 22 February 2001

Regina v Saba

[2001] NSWCCA 9

Also reported as 120 A Crim R 355
Theft & property

Citation: Regina v Saba [2001] NSWCCA 9
Court: NSW Court of Criminal Appeal
Date: 22 February 2001
Judge(s): Simpson J; Smart AJ

Background

The appellant was serving a parole period in Queensland, having been transferred there following sentences imposed in New South Wales by Judge Kirkham in 1994. While on that parole, he committed a series of break and enter and related offences in New South Wales between August and September 1998.

Judge Ducker in the District Court sentenced the appellant on the fresh offences, intending to revoke his parole and have the outstanding parole period subsumed within the new sentences. However, because the parole order had already been registered in Queensland, NSW law ceased to govern it and Judge Ducker had no power to revoke it. The parole order was instead governed exclusively by Queensland legislation, which provided for automatic cancellation of parole upon conviction and gave the Queensland Community Corrections Board authority over how any outstanding parole period was to be served.

The practical consequence was that, on completing his NSW sentences, the appellant faced extradition to Queensland to serve a substantial portion of his remaining parole period. This meant the total time he would spend in custody significantly exceeded what Judge Ducker had intended.

  • Whether Judge Ducker had power to revoke the appellant's parole order, given it had been transferred to Queensland
  • Whether the sentences imposed by Judge Ducker were manifestly excessive in light of the additional Queensland imprisonment the appellant would face
  • How the totality principle should be applied when an offender is sentenced in one State but faces further custody in another State arising from an interstate parole transfer

Decision

Smart AJ (with Simpson J concurring) confirmed that Judge Ducker had no power to revoke the parole order. Once registered in Queensland, the parole order ceased to have force in NSW by operation of section 10(1) of the Parole Orders (Transfer) Act 1983 (NSW). Queensland law then applied exclusively, and under section 187 of the Queensland Corrective Services Act 1988, parole was automatically cancelled upon the appellant's conviction. The Queensland Community Corrections Board retained authority over how the outstanding parole period would be served.

The Court found that the Queensland Community Corrections Board intended to require the appellant to serve a substantial part of his remaining parole period following completion of the NSW sentences. When that additional period of Queensland custody was added to the time already served, the sentences imposed by Judge Ducker were manifestly excessive when assessed against the totality principle.

The Court drew on the High Court's reasoning in Mill v The Queen, which recognised that a sentencing court may need to impose a lower head sentence than the offending would otherwise warrant, in order to avoid the injustice that arises when State boundaries prevent a court from giving full effect to its intentions. The Court also noted that NSW practice, unlike Queensland practice, ordinarily provides for the minimum term to overlap and subsume the additional term, which was a further factor pointing toward a reduced sentence.

The Court substituted a fixed term of two years and three months for the minimum term of three years and six months with an additional term of eighteen months that Judge Ducker had imposed. A fixed term (rather than a divided minimum and additional term) was used precisely because further imprisonment in Queensland was to follow.

Orders Made

  • Leave to appeal granted on counts 1, 2, 3, 4, 5, 6, 9, 10, 11, 12, 13 and 15
  • Appeals on those counts allowed; original sentences quashed
  • In lieu of the quashed sentences, a fixed term of 2 years and 3 months imprisonment substituted on each of those counts, commencing 17 September 1998 and expiring 16 December 2000
  • Appeals against sentence on counts 7, 8 and 14 dismissed (fixed terms of one year each, commencing 17 September 1998, confirmed)

Key Takeaways

  • Once a NSW parole order is registered in Queensland under the transfer legislation, NSW courts lose jurisdiction over that order entirely and cannot revoke it. Queensland law governs the parole from the date of registration.
  • The totality principle applies across State boundaries. Where an offender will be required to serve additional time in another State arising from an interstate parole transfer, a NSW sentencing court may need to impose a lower sentence than the offending alone would warrant in order to prevent the total custodial period from becoming unjust.
  • Under section 187 of the Queensland Corrective Services Act 1988, parole is cancelled automatically upon conviction for a further offence, and the Queensland Community Corrections Board determines what portion of the outstanding parole period must be served.
  • A fixed term, rather than a minimum and additional term, may be the appropriate structure where further imprisonment in another jurisdiction is to follow completion of the NSW sentence.
  • The Court of Criminal Appeal noted that differences in sentencing practice between NSW and Queensland (particularly regarding how additional terms are treated) are a legitimate factor in calibrating the length of the NSW sentence when the totality principle is engaged.

Legislation and Cases Referenced

Legislation:
- Parole Orders (Transfer) Act 1983 (NSW), s 10(1)
- Parole Orders (Transfer) Act 1984 (Qld), s 10
- Queensland Corrective Services Act 1988, ss 187, 190(1) and (2)
- Corrective Services Act 1998 (Qld)

Cases:
- R v Todd [1982] 2 NSWLR 517
- Mill v The Queen (1988) 166 CLR 59