Betros v Commissioner of Police

[2009] QDC 310

[2009] QDC 310

DISTRICT COURT

APPELLATE JURISDICTION

JUDGE ROBIN QC

MATTHEW DAVID BETROS	Appellant
and
COMMISSIONER OF POLICE	Respondent

MARYBOROUGH

..DATE 24/09/2009

ORDER

CATCHWORDS

Justices Act 1886 s 222, s 224(1)

Penalties and Sentences Act 1992 s 160B

Appeal from Magistrate to District Court allowed - appellant complained that a parole release date rather than a parole eligibility date had to be made - for offences committed while on probation appellant was sentenced to two years imprisonment, also ordered to serve suspended term of one year, with a fixed parole release date - in subsequent proceedings Magistrate resentenced to short concurrent imprisonment for offending leading to probation, ordering a parole eligibility date (being the same date)

HIS HONOUR: This appeal under section 222 of the Justices Act 1886 has come on as a matter of urgency and with the concurrence of the Director of Public Prosecutions representing the respondent, somewhat curiously identified as the Commissioner of Police, has been allowed.

It comes before the Court by way of indulgence because it has been filed late. The justification for allowing an extension of time is that the appellant has been pursuing the outcome he seeks by other means, including by his former solicitors who acted at the time of the order under appeal. Now Mr George's firm are acting. It is for practical reasons, including delay attributable to obtaining legal aid, that the appeal hasn't been lodged in time. There's no opposition to time being extended under s 224(1).

The point of the appeal is that on the 5th of August this year when the Magistrate was required to deal with a breach of probation, and did so by re-sentencing to imprisonment, he ordered a parole eligibility date (PED in his endorsement on the Bench charge sheet) rather than a parole release date.  The probation order had been made in Cairns on the 16th of May 2008 for two public nuisance offences, one wilful damage offence and one breach of domestic violence order.

Mr Betros breached that order by offending and, if one's technical about it, perhaps as well by some delinquency in his reporting.  For the breaching offences he was before this Court on the 20th of February this year when he was sentenced to two years' imprisonment for that offending and also ordered to serve, on a cumulative basis, a 12 month suspended sentence.  A declaration of credit for 219 days of pre-sentence custody was made, producing a full-time release date of 16th of July 2011.  A parole release date of the 17th of September 2009 was ordered by his Honour.

Reference to the criminal history reveals the existence of the Cairns probation order and the District Court judge must have been aware that the new offences constituted a breach of probation and ought to be taken as having had that in consideration.  The sentencing remarks aren't available. 

This matter necessarily comes on as an urgent one because if it's not dealt with today or tomorrow it will have to await the next Maryborough circuit which isn't until the end of November. 

For some reason (which it seems to me is difficult to discern, if one takes a sensible practical approach), the authorities decided to report the breach of probation by re-offending and his Honour had little option but to deal with that on the 5th of August 2009.  Essentially he took action only in respect of the breach of domestic violence order, imposing a sentence of two months which he ordered to be served concurrently with the existing imprisonment. 

Then controversially a parole eligibility date of 17 September 2009 was set. This immediately caused consternation to the sentence managing section at the Maryborough Correctional Centre, having regard to their interpretation of section 160B of the Penalties and Sentences Act 1992 which provides:

160B Sentence of 3 years or less and not a serious violent offence or sexual offence:

(1) This section applies if neither section 160C nor 160D applies.

(2) If the offender has had a court ordered parole order cancelled under the Corrective Services Act 2006, section 205 or 209 during the offender’s period of imprisonment, the court must fix the date the offender is eligible for parole.

(3) If subsection (2) does not apply, the court must fix a date for the offender to be released on parole.

(4) If the offender had a current parole eligibility date or current parole release date, a date fixed under subsection (2) or (3) must not be earlier than the current parole eligibility date or current parole release date.

A formal written approach by the correctional centre to the Magistrates Court did not succeed from the point of view of having a parole release date fixed rather than a parole eligibility date.

The appellant's then solicitors were then brought into the matter.  They, in writing, requested the Magistrate to review the sentence which he declined to do.  Perusal of the Magistrates Court file indicates that that course was taken after some wider consultation with the Magistracy.

I agree with Mr George's written submission, as does Mr Morrison for the respondent, that section 160B requires that a parole release date had to be fixed in the circumstances under subsection (3). The written submissions exhaustively analyse the situation which is that neither section 160C nor section 160D applies because the sentence was not of more than three years, nor did it involve a serious violent offence or a sexual offence. The factual circumstances that would attract section 160B(2) simply do not apply here, therefore subsection (3) indicates what the Court ought to have done.

There's perhaps a possibility, given the way in which subsection (4) is expressed, that it might've been seen as giving the Magistrate a discretion to check between a parole eligibility date and a parole release date, but that clearly, in my view, involves an erroneous interpretation.

The cost to the appellant of the error is real and potentially enormous.  From occupying the position of a person with a guaranteed release date his situation is made quite uncertain, dependant on his making an application for parole and on the relevant authorities acceding to it.  There is a possibility that he might even have to serve the whole of the sentences of the 20th of February this year imposed in the District Court.  The Magistrate cannot have intended that.  There has already been a cost of seven days incarceration paid by the appellant in respect of the circumstance that his latest offending occurred while on probation.

It's unclear what the Court's intentions were on the 5th of August.  It may have been that the view was taken that it ought to be for the parole authorities to ascertain if and when the appellant should be returned to the community, but that seems to me to overlook entirely the considered judgment which the District Court made about the man's future on the 20th of February this year.  There may possibly have been an intention that the two months' imprisonment ought to be served in full, even if the District Court's sentences were not.  In that event the appellant would have another couple of weeks' custody.

I've gone to some length to state my view, that in circumstances such as the present the community corrections authorities ought to exercise some discretion and judgment about breaching offenders abusing the benefit of community based orders by reoffending and where, as here, the reoffending has been punished by significant imprisonment, I can understand the view being taken that those who persist in offending, although given the advantage of probation, ought to have it demonstrated to them that there's a cost involved in doing so.

In the circumstances it's an appropriate outcome to validate the punishment which the appellant has already received and suffered in that regard by fixing the parole release date as at today's date - which involves one week's additional custody.

It would've been open to the Magistrate who had no discretion to fix a date earlier than the 17th of September 2009 to fix a later one, but in the circumstances it's this Court's judgment about the appropriate date that matters and I've indicated what that is.

Order in terms of the initialled draft.

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