R v Degn

In this matter, the Court of Appeal confirmed that s 160F(2) of the Penalties and Sentences Act 1992 “requires that any parole date be set so that it is operative for the entire period of imprisonment being served by the offender, as opposed to relating only to the term of imprisonment currently being imposed”. While the sentencing judge had regard to s 160F(2), the sentence imposed for the present offending was manifestly excessive as it conflicted with the totality principle. This was because the parole eligibility date set had the effect that the applicant was required to serve two-thirds of the total period of imprisonment.

Holmes CJ and Morrison and Mullins JJA

5 March 2021

The applicant was sentenced to six years’ imprisonment, with parole eligibility after serving one-third of that sentence. At the date of sentence, the applicant had served most of an earlier period of six years’ imprisonment imposed for previous offending. [1].

On the application for leave to appeal, the applicant argued that the sentencing discretion miscarried because the sentencing judge failed to apply s 160F of the Penalties and Sentences Act 1992 (“PSA”). The applicant also contended that the sentence was manifestly excessive. [1].

Chief Justice Holmes (with whom Morrison and Mullins JJA agreed) observed that s 160F(2) of the PSA “requires that any parole date be set so that it is operative for the entire period of imprisonment being served by the offender, as opposed to relating only to the term of imprisonment currently being imposed”. [9]. Section 160F(2) does not, however, require the parole eligibility date to be calculated as a proportion of the period of imprisonment. The Chief Justice adopted the view of Fraser JA (in dissent) in R v WBK (2020) 4 QR 110 that s 160F(2) does not prescribe any “sentencing methodology”. [9].

Chief Justice Holmes declined to conclude that the sentencing judge was unaware that the parole eligibility date would apply to the entire period of imprisonment, pursuant to s 160F(2), or that the sentencing judge did not intend to fix a date that applied to the entire period. [10].

Nonetheless, there was a “separate issue” as to whether the sentencing judge appreciated that the totality principle required attention “not only to the head sentence, but to the minimum time required to be served in custody”. [10]. The parole eligibility date set by the sentencing judge (two years from the expiration of the original sentence) required two-thirds of the total 12 year period of imprisonment to be served before the applicant was eligible for parole. [13]. According to Holmes CJ, this produced an “unjust result” that “rendered the total effect of the period of imprisonment so crushing as to require intervention”. As a result, the sentence was manifestly excessive ([14]), although it was not contrary to the totality principle to require the applicant to serve part of the sentence under appeal in actual custody. [15].

In the result, the sentence was varied by substituting a parole eligibility date that arose one year after the commencement of the sentence under appeal. [16]–[17].

S Walpole