Police v Hatten

[2011] QMC 53

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Police v Hatten [2011] QMC 53

PARTIES:

POLICE

(prosecution)

v

SEAN STEPHEN HATTEN

(defendant)

FILE NO/S:

MAG221183/10

DIVISION:

Magistrates Courts

PROCEEDING:

Sentence

ORIGINATING COURT:

Magistrates Court at Richlands

DELIVERED ON:

17 May 2011

DELIVERED AT:

Richlands

HEARING DATE:

17 May 2011

MAGISTRATE:

Stjernqvist H

ORDER:

9 months imprisonment on each charge, concurrent

CATCHWORDS:

CRIMINAL LAW – JURISDICTION – PUNISHMENT – SENTENCE – parole declarations – concurrent and cumulative sentences – indefinite sentences

COUNSEL:

A Donoghue for prosecution

S Munasinghe (solicitor) for defendant

SOLICITORS:

Prosecution on own behalf

Howden Saggers Lawyers for defendant

1. On the 17 May 2011 the defendant, Sean Stephen Hatten pleaded guilty to:

1.          Serious Assault

2.          AOBH armed offensive weapon

1. Both offences were committed whilst serving an indefinite sentence for Attempted Murder. Both offences are offences mentioned in the Schedule Penalties and Sentences Act (the Act).

1. The indefinite sentence pursuant to s 163 of the Act was imposed by the Brisbane Supreme Court on 3 October 2005 and confirmed by the QCA on 9 December 2008. The nominal[1] period or term was set and confirmed at 15 years.

   [1] S 163(2) Penalties and Sentences Act.

1. All facts surrounding both offences, and submissions from the Prosecutor and Mr Munasinghe have been taken into account. It is suffice to say the facts were brief and that neither complainant suffered any serious injury.

1. Taking these matters into account and the criminal history of the defendant, on each offence the defendant was:

Convicted and sentenced to 9 months imprisonment to be served concurrently with each other.

1. The imposing of the 9 months imprisonment is unremarkable and in line with the submissions made by the parties.

1. It is the consequent issues of parole[2] and whether or not the 9 months must[3] be ordered to be served cumulatively that require further consideration.

Parole.

[2] S 156A Penalties and Sentences Act.

[3] S 156A Penalties and Sentences Act.

S 160A Application of sections 160B to 160D

(1)       Sections 160B to 160D apply if a court is imposing a term of imprisonment on an offender for an offence.

(2)       Sections 160B to 160D are the only law under which a court may, on sentence of an offender for an offence, make an order relating to a person’s release on parole.

1. In my view s 160C applies because s 160D does not.[4]

   [4] R v. Glebow [2007] QCA 230 at para 12.

1. That is to say – the offences for which the defendant was sentenced (to terms of imprisonment) today, are not serious violent offences notwithstanding they are included in The Schedule to the Act.

1. A serious violent offence is defined in section 3 as;

... means a serious violent offence of which an offender is convicted under section 161A.

S 161A When an offender is convicted of a serious violent offence

An offender is convicted of a serious violent offence if;

(a)       the offender is—

(i)        convicted on indictment of an offence;

(A) against a provision mentioned in schedule 1; and

(ii)       sentenced to 10 or more years imprisonment for the offence, calculated under section 161C; or

(b)       the offender is convicted on indictment and declared to be convicted of a serious violent offence under section 161B(3) or (4).

1. Therefore in my opinion s 160C applies.

S 160C – Sentence of more than 3 years and not a serious violent offence.

(1)       This section applies if section 160D does not apply and the offender’s period of imprisonment is more than 3 years.

(2)       If the offender had a current parole eligibility date, the court must fix the date the offender is eligible for parole.

(3)       If the offender had a current parole release date, the court may fix the date the offender is eligible for parole.

(4)       A date fixed under subsection (2) or (3) must not be earlier than the current parole eligibility date or current parole release date mentioned in the subsection for the offender.

(5)       If neither subsection (2) nor (3) applies, the court may fix the date the offender is eligible for parole.

1. Period of imprisonment means the period of imprisonment that includes the term of imprisonment mentioned in s 160A.

S 160A Application of s 160B–160D

(1)       Sections 160B to 160D apply if a court is imposing a term of imprisonment on an offender for an offence.

1. Therefore in my opinion the ‘period of imprisonment’ is the indefinite sentence together with the 2 concurrent terms of 9 months imposed by me today. Given the nominal period was 15 years I am prepared to accept the imposition of the indefinite sentence is a ‘sentence of more than 3 years.’

1. I have before me a pre-sentence custody certificate – no time is of course declarable. That the defendant is serving an indefinite sentence – he does not have a current parole release date or eligibility date. Pursuant to the provisions that apply to offenders sentenced to indefinite terms – the defendant may at some point in time, return to the Supreme Court to receive a finite sentence in order that a parole release date or parole eligibility date be set.

1. This situation is different to that in Glebow[5] wherein, as an offender serving life, he had an eligibility date statutorily set by operation of section 181 of the Corrective Services Act and not a parole eligibility date as defined in section 160 of the Act.

“the date fixed under section 160B(2), 160C(2), (3) or (5), 160D(2) or (3) or 213 as the date the offender is eligible for parole”

[5] [2007] QCA 230.

1. His Honour, de Jersey CJ thus concluded:

“Section 160C(2) therefore did not apply. Consequently, the sentencing court was under no obligation to fix a new date for eligibility for parole. But because sub-s 6 (2) (and sub-s (3)) did not apply, sub-s (5) gave rise to a discretion in the court to fix a new date.”[6]

[6] At para [21].

1. For different reasons, that is, this defendant is not subject to a finite sentence and therefore has no eligibility date, I am of the opinion that – subsections (2) nor (3) of s 160C do not apply and that subsection (5) applies.

1. However, notwithstanding the discretion, I believe I can not make any order in respect of parole as the defendant is subject to the indefinite sentence

Concurrent or Cummulative.

1. The only other issue is that of S.156A which provides:

S 156A Cumulative order of imprisonment must be made in particular circumstances.

(1)       This section applies if an offender;

(a)       is convicted of an offence;

(i)        against a provision mentioned in schedule 1; and

(b)       committed the offence while;

(i)        a prisoner serving a term of imprisonment; or

(2)       A sentence of imprisonment imposed for the offence must be ordered to be served cumulatively with any other term of imprisonment the offender is liable to serve.

1. Now prima facie, in my view the two 9 months concurrent terms, that is a head sentence today of 9 months would ordinarily need to be ordered to be served cumulatively with the defendant current period of imprisonment.

1. However this is no ordinary sentence given the indefinite sentence the defendant is serving and whilst the cumulative provisions might apply by operation of law I feel there is no consequence in me making that order here today simply because I do not know when it could start to take effect.

1. Again I make no specific order.