Edit: The Final Report has been released. It concludes that the Court of Appeal has not spent a lot of time on these kinds of issues yet, but also agrees that if not acted upon, it has the potential to become more of a burden in future.
The government is looking at a number of proposals to prevent the Court of Appeal being swamped with appeals on sentence.
Under s 5(2AA)(1) of the Sentencing Act 1991, when imposing a sentence a court must ignore,
any possibility or likelihood that the length of time actually spent in custody by the offender will be affected by executive action of any kind.
Executive action includes a decision of the Adult Parole Board (APB) to reimpose a gaol sentence that an offender hasn’t served, because they breached their parole conditions.
The most common breach of parole is fresh offending. When an offender is sentenced for offences breaching their parole, they’re not entitled to a discount on the sentence for the new offences, even though they might later be made to serve their previous sentence as well.
The APB isn’t obliged to wait until after the offender has been sentenced before breaching their parole. It sometimes breaches parole and reimposes the outstanding period of imprisonment after the new offending is found proven but before the new sentence is awarded. R v Piacentino (2007) 15 VR 501 determined that where the APB breaches parole before the new sentence is imposed, a sentencing court can consider the reimposition of the earlier imprisonment when deciding the length of the new sentence.
Under Sentencing Act s 16(3B) , the penalty for the new offending must be made cumulative on the existing parole sentence which has or may be imposed. This is an exception to the general presumption at s 16(1) that multiple sentences of imprisonment will be served concurrently unless otherwise directed.
Section 16(3B) provides:
Every term of imprisonment imposed on a person for an offence committed while released under a parole order made in respect of another sentence of imprisonment (the parole sentence) must, unless otherwise directed by the court because of the existence of exceptional circumstances, be served cumulatively on any period of imprisonment which he or she may be required to serve in custody in a prison on cancellation of the parole order.
If the APB decides to breach an offender’s parole before they receive their sentence for the new offending, an offender is likely to receive a lesser penalty than if the parole is breached afterwards (an event the sentencing judge isn’t allowed to anticipate).
In R v Alashkar; R v Tayar (2007) 17 VR 65, the Court of Appeal ruled the fact that the APB has reimposed the original sentence, after the offender was sentenced for the new matters, could be considered a ground of appeal on sentence.
Given the number of offenders who breach their parole by reoffending, further appeals using the principle in Alashkar’s case are inevitable. There’s currently no provision for a matter to be put back before the original judge or magistrate who sentenced them. The government is concerned the Court of Appeal will have to routinely decide many similar appeals, which probably isn’t the most efficient use of its time.
The Sentencing Advisory Council (SAC) has suggested three remedies. Any of them would probably require some legislative change. One is allowing an offender to apply for re-sentencing to the original sentencing court if the APB reimposes their earlier imprisonment. Alternatively, the APB might be mandated to impose the principle of totality in deciding if to impose the earlier imprisonment. Last, the reimposition might only be permitted prior to sentence and/or it could be made automatic so that a court would know for sure if parole was to be breached.
A full discussion of this issue (along with the separate yet similar topic of the relationship between pecuniary penalty orders under the Sentencing Act 1997 and sentencing practices) is on the SAC website: Sentencing, Parole Revocation and Confiscation Orders: Discussion and Options Paper.