R v Bafico - [1995] QCA 485

IN THE COURT OF APPEAL	[1995] QCA 485
SUPREME COURT OF QUEENSLAND

C.A. No. 195 of 1995 C.A. No. 282 of 1995

Brisbane

[R. v. Bafico]

THE QUEEN

MICHAEL RICHARD BAFICO

(Applicant)

Fitzgerald P.
Davies J.A.
Moynihan J.

Judgment delivered 03/11/1995

Joint reasons for judgment by Davies J.A. and Moynihan J.; separate reasons by

Fitzgerald P. concurring as to the order.

APPLICATION FOR EXTENSION OF TIME IN WHICH TO APPEAL AGAINST
SENTENCE REFUSED.

CATCHWORDS: CRIMINAL LAW - SENTENCE - murder - whether early recommendation for release on parole is mitigation of sentence; whether can mitigate murder sentence.

Counsel:	Mr. J. Jerrard Q.C., with him Ms. D. Richards for the applicant Mr. M. Byrne Q.C. for the respondent
Solicitors:	Legal Aid Office for the applicant

Queensland Director of Public Prosecutions for the respondent

Hearing Date:

15 August 1995

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 03/11/1995

The general nature of this proceeding is set out in the reasons

for judgment of Davies J.A. and Moynihan J. Like their Honours, I find it unnecessary to detail the facts, but emphasise that

discussion of the legal point on which the applicant’s argument

is founded does not indicate that a recommendation for

eligibility for early release on parole might have been appropriate if the power to make such a recommendation exists and a request had been made for its favourable exercise prior to the applicant being sentenced.

The applicant’s argument discussed the present terms of s. 305 of

the Criminal Code by reference to the historical evolution of the

provisions of the Code and associated legislation with respect to

punishment and parole. It is possible to start as late as 1988

without detracting from the argument.

Section 650 of the Code empowers a court to “pass sentence” on a

convicted offender. Until 1992, s. 305 provided that a person convicted of murder was “liable to imprisonment with hard labour for life which cannot be mitigated or varied under s. 19 of this

Code”. Section 19 would otherwise have permitted a variety of

orders in mitigation or variation; e.g. a “shorter term” (sub-s. 19(1)), “imprisonment without hard labour” (sub-s. 19(2)), :a

fine ... instead of - imprisonment” (sub-s. 19(3)), and see also

sub-ss. 19(7) and (9).
When those provisions were first introduced, there was no

statutory provision authorising the release of prisoners on parole, but by 1988 a sentencing court could recommend the

release of a prisoner on parole after a period of imprisonment specified by the Court had been served. However, that power did not extend to prisoners sentenced to life imprisonment: Corrective Services Act 1988, sub-s. 166(3). The power to

release such prisoners on parole was reserved to the Governor-in- Council on the recommendation of the Queensland Community

Corrections Board: Corrective Services Act, ss. 165 and 182.

The Corrective Services Act was amended in 1990, and power to

release life sentenced prisoners was transferred from the Governor-in-Council to the Board. Further, changes were made to

sub-ss. 165(1) and 166(1). Thereafter,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Bafico

Details

AGLC: R v Bafico [1995] QCA 485
Case: [1995] QCA 485
Decision Date: 3/11/1995

CaseChat Overview and Summary

In the case of R v Bafico, the applicant, Michael Richard Bafico, sought leave to appeal against his sentence for murder, arguing that the trial judge's failure to recommend early parole was grounds for an appeal. Bafico was convicted of murder and sentenced to life imprisonment under s. 305 of the Criminal Code, which states that a person convicted of murder is liable to imprisonment for life, which cannot be mitigated or varied under the Code or any other law. The applicant argued that a recommendation for early parole eligibility does not constitute a mitigation of sentence under s. 305 of the Code.

The legal issues before the Court of Appeal were whether a sentencing judge has the power to make an early recommendation for parole when sentencing a person convicted of murder, and if such a recommendation constitutes a mitigation of the life sentence, which would be prohibited under s. 305 of the Code. The Court considered the legislative history of the Criminal Code, the Penalties and Sentences Act, and the Corrective Services Act to determine the meaning and scope of s. 305 and its interaction with other provisions.

The Court of Appeal, in a joint judgment by Davies J.A. and Moynihan J., concluded that a recommendation for early parole eligibility does indeed constitute a mitigation of the sentence for murder under s. 305 of the Code. The Court found that the phrase "cannot be mitigated" in s. 305 was intended to exclude the operation of s. 153(1) of the Penalties and Sentences Act, which allows an offender liable to imprisonment for life to be sentenced to imprisonment for any lesser period. However, the Court held that s. 305 is clear and unambiguous on its face, and its literal operation does not lead to an absurd result. Therefore, the application for leave to appeal against the sentence was refused.

Orders