Parker v The Queen

[1994] HCATrans 388

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B4 of 1994

B e t w e e n -

JAMIE DEAN PARKER

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

BRENNAN J
DAWSON J

McHUGH J

Parker.J 29/6/94

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 29 JUNE 1994, AT 4.26 PM

Copyright in the High Court of Australia

MR K.C. FLEMING, OC: If the Court pleases, with

MS K. McGINNES, for the applicant. (instructed by

the Legal Aid Office (Queensland))

MR M.J. BYRNE, OC:  May the Court please, I appear with my

learned friend, MR M.C. CHOWDHURY, for the

respondent. (instructed by D. Field, Solicitor to

the Director of Prosecutions (Queensland))

BRENNAN J: Yes, Mr Fleming.

MR FLEMING: If the Court pleases, a young man pleaded

guilty to a charge a month before a significant

of bringing a matter before this

piece of legislation came into force in Queensland. circumstances

Court on parity or, in this case, disparity of

sentencing but, nevertheless, it is our submission

that there is a violation of sentencing principles

because in this case the Court of Appeal did not

take into account the Penalties and Sentences Act

which came into effect about a month after he was

sentenced initially.

The young man initially was inclined to plead

guilty but do so at a time later than he did.	He
was advised to plead guilty when he did.	He did so

against his own inclinations and as a result he

missed the possibility of being dealt with by the

Penalties and Sentences Act by a short period of

time.

When the matter came to the Court of Appeal

there is not a mention of the Penalties and

Sentences Act in Their Honours' judgment and nor can I say that the matter was raised directly with

Their Honours. It seemed, as a result of some concessions, to come down to a very simple

proposition and that is whether he should have been

dealt slightly differently with a man called Brown

who was an accomplice in especially the armed

robbery; that Brown had committed a further armed

robbery.

To complicate matters, there was a third

person involved, a young woman named Osbourne, who

a couple of weeks later was sentenced and received

probation for three years. Now, Parker received penalties of five years, two years and two years for crimes that we have set out and we do not need

to go to. He was then given two years non-parole

period on the five years.

Your Honours, when the matter came before the

Court of Appeal, it is our submission that the

Penalties and Sentences Act should had been

Parker.J 29/6/94

adverted to by somebody and we would submit that

under the circumstances there has been a

miscarriage of the sentencing -

BRENNAN J:  Why? Why should it had been adverted to?

MR FLEMING: Because, Your Honours, we submit that the Act

itself applies to such circumstances. Where there

has been a sentence, a person is then dealt with

subsequent to the Act coming into effect by a Court

of Appeal, the Penalties and Sentences Act has to

be taken into account.

BRENNAN J:  What part of it?

MR FLEMING: Section 9.

BRENNAN J: Subsection (4).

MR FLEMING: Yes, and subsection (2).

BRENNAN J:  What is the difference between the Penalties and

Sentences Act and the principles that were embraced

in R v Price?

MR FLEMING:  Your Honours, we say that it is imperative that

a young man does not go to gaol; that is entrenched

in legislation and that is the significant

difference.

BRENNAN J:  What is the difference in principle?

MR FLEMING: Because it is now entrenched in legislation,

Your Honour, the judge has to advert to the

Penalties and Sentences Act and if he does not

advert to it then, we would submit, there is a

miscarriage of the sentencing discretion.

Now, similarly, we say the Court of Appeal

ought to have and we would submit that section 9(4)

is very clear in its desire to keep young men,
first offenders, out of gaol.	When one adds to

that subsection (2), then it is abundantly clear,

we would submit, this young man should have been

given the benefit of the Penalties and Sentences

Act.

McHUGH J:  I am sorry, perhaps I have just read

this legislation upside down but I thought

section 204(5) made it plain that the Act did not

apply to a sentence on appeal? A sentence on

appeal was deemed to have been imposed at the time

or as originally granted for the purposes of the

Act and therefore the 1992 legislation did not

apply.

Parker.J 29/6/94

MR FLEMING:  Yes. Your Honours, we submit it is the very

reverse of that. It is a sentence imposed under

the 1992 Act but it has effect from when the

sentence was first imposed. We would submit that

is the proper interpretation of subsection (5).

BRENNAN J:  I am looking at what I think is the renumbered

section of subsection (6). Is there any difference

in text?

MR FLEMING:  No, Your Honour.

BRENNAN J: Looking at that, it says, with reference to:

a sentence imposed by an appeal court ..... on

setting aside a sentencing order made before

the commencement -

which is what the court would have done if it had

acted in this case -

is taken to have been imposed at the time the

original sentencing order was made.

MR FLEMING:  Yes.

BRENNAN J: Before the Act came into force.

MR FLEMING: Yes, so that this says that a sentence now made

under this Act is taken to have gone back to the

point in time before the Act commenced.

BRENNAN J: For the purposes of this section.

MR FLEMING: Yes, for the purposes of this section.

BRENNAN J: What are the purposes of this section?

MR FLEMING:	The purposes of this section is to give:
any sentence imposed after the commencement of
this section, irrespective of when the offence
was committed.

That is under subsection (1).

BRENNAN J:  To apply the Act to that.

MR FLEMING: Yes, to apply the Act to any sentence,

irrespective of when the - but I understand what

Your Honour is saying to me. We say - - -

McHUGH J: If subsection (5) was not there you would have a

very strong argument of saying that if you were

sentenced on appeal then 204(1) applies, but

subsection (5) seems to be designed to put that

argument to rest.

Parker.J 4 29/6/94

MR FLEMING:  Your Honours, our simple argument is that you

can read subsection (6) in a way which backdates

the sentence made under this Act to a date before

the Act commences and it is deemed to have been

made from that point in time. We are giving it a

beneficial construction on behalf of the person who

has been sentenced.

Your Honours, that is the simple proposition

in the appeal. Thank you, Your Honours.

BRENNAN J:  We need not trouble you, Mr Byrne.

This application, so far as it relates to

parity of sentences, raises no issue of principle
but only the application of familiar principles to

the circumstances of the case. So far as the

application relates to the introduction of the

Penalties and Sentences Act 1992 (Qld) it does not

appear that the provisions invoked in support of

the application, namely sub-sections 9(2) and (4),
prescribe any new sentencing policy. Moreover,
section 204(6), as it now stands, denies the
application of the Act to sentences imposed by a
court of criminal appeal on the setting aside of a

sentencing order made prior to the commencement of

that section.

Accordingly, special leave will be refused.

AT 4.35 PM THE MATTER WAS ADJOURNED SINE DIE

Parker.J 29/6/94