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

v.

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, by sub-s. 165(1)(a), the Board could, subject to s. 166, release such a prisoner (unless declared an habitual criminal) on parole. By sub-s. 166(1)(a),

subject to sub-ss. 166(3) and (4), such a prisoner was made ineligible for parole until he or she had been detained for 13

years. Sub-section 166(4) permitted earlier release “at any

time” if the Board was “satisfied that there are special

circumstances”. Whether or not a court’s recommendation under sub-s. 166(3) would have constituted “special circumstances”, the power of a court, upon sentencing, to recommend that a prisoner

“be eligible for release on parole after such period of imprisonment under that sentence as is specified in the

recommendation” in sub-s. 166(3)(a) was literally wide enough to include life sentenced prisoners who had been convicted of murder.

Whatever their effect, those provisions were not, in my opinion,

in conflict with s. 305 of the Code; by its terms, s. 305 was

concerned only with mitigation or variation under s. 19 of the Code. However, there is no purpose to be served in pursuing such

questions since new provisions were introduced by the Penalties

and Sentences Act 1992, which amended both the Criminal Code and
Corrective Services Act. One of the purposes of the Penalties

and Sentences Act was to collect into a single statute general

powers of courts to sentence offenders: sub-s. 3(a).[1]

[1]

Chapter IV of the Code, including s. 19, was repealed, and s. 305

now provides that a “person who commits the crime of murder is liable to imprisonment for life, which cannot be mitigated or

varied under this Code or any other law ...”. That prohibition is quite plainly - and it must be taken deliberately - wider than

the previous prohibition related to s. 19 of the Code.

Sub-section 153(1) of the Penalties and Sentences Act provides

that an “offender liable to imprisonment for life ... may be

sentenced to imprisonment for any lesser period”, and sub-s.
157(2) of the Penalties and Sentences Act provides:

“If a court imposes a term of imprisonment on an offender, it may recommend that the offender be eligible for release on parole after having served such part of the term of imprisonment as the court specifies in the recommendation.”

That provision does not permit a court to determine when a person

is entitled to parole, but when he or she is “eligible”, i.e.,

allowed to be released on parole, a matter otherwise directly

controlled by statute.

Sub-section 166(3) of the Corrective Services Act was repealed by

the Penalties and Sentences Act, and sub-ss. 165(1)(a) and

166(1)(a) and (4) were amended and now provide:

“165.(1) Subject to section 166, the Queensland Community Corrections Board may, by written order, direct that -

(a)  a prisoner who -

(i) is serving a term of imprisonment (including a term of imprisonment for life); ...

...

be released on parole on the date specified in the
order.”

“166.(1) Subject to subsection (4) of this section and section 157 of the Penalties and Sentences Act 1992, a prisoner mentioned in section 165(1)(a)(i) is not eligible for parole -

(a)  in the case of a prisoner serving a term of life imprisonment - until the prisoner has been detained for a period of 13 years;

...

(4) ... the Queensland Community Corrections Board may, where it is satisfied that there are special circumstances relating to a prisoner mentioned in section 165(1)(a), release that prisoner on parole at any time.”

It is plain that, although all these provisions in their current

terms derive from the Penalties and Sentences Act, they cannot all be given literal effect. Both parties agreed that sub-s. 153(1) of the Penalties and Sentences Act must yield to s. 305 of

the Code and, as I understood the arguments, that sub-ss. 165(1)

and 166(1) and (4)[2] of the Corrective Services Act are unaffected by that provision. Their dispute centred upon the relationship

between s. 305 of the Code and sub-s. 157(2) of the Penalties and

Sentences Act. However, acceptance of the parties’ common

position as a starting-point seems to me to gloss over

difficulties associated with their respective positions on the

disputed issue.

The position is further complicated by the Juvenile Justice Act

[2]

1992. The objectives of that Act, which are set out in s. 3, include establishing a code for dealing with children who have

committed offences (sub-s. 3(b)), providing for the jurisdiction and proceedings of courts dealing with children (sub-s. 3(c)), and ensuring that courts deal with children who have committed offences according to principles established under that Act (sub- s. 3(d)). A child is a “person who has not turned 17 years”: s. 5. The principles underlying the operation of the Act, which are

set out in s. 4, include detention in custody “only as a last

resort”.

By s. 108, a child must only be sentenced under that Act “despite

any other Act or law”. Section 109 requires a court sentencing a child to have regard to various matters, including a number of “special circumstances” which are set out in sub-s. 109(2); these include:

“(e) a detention order should be imposed only as a last resort and for the shortest appropriate period.”

See also sub-s. 165.

Section 115 provides:

“115. Mandatory sentence provisions inapplicable. A
court that sentences a child for an offence -

(a)  must disregard a requirement under any other Act that an amount of money or term of imprisonment must be the minimum penalty for the offence; and

(b)  must take a requirement under any other Act that an amount of money or term of imprisonment must be the only penalty for the offence as providing instead that the amount or term is the maximum penalty for the offence.”

Under sub-s. 121(3), a child convicted of a “serious offence”

(sub-s. 8(1)) that is a “life offence” (as defined in s. 5) may

be ordered to be detained for 10 years (sub-s. 121(3)(a)), or 14

years if the offence involved violence against a person and is

“particularly heinous” (sub-s. 121(3)(b)). Further, by sub-s. 188(1), a child must be released after serving 70% of the period

of detention, and a court may order a child to be released after serving “50% or more, and less than 70%” in special circumstances.

Part 4 Division 9 permits an adult who committed an offence as a

child to be sentenced as an adult in certain circumstances, but the period of imprisonment imposed must not be “longer than the

period of detention that the court could have imposed on the

offender if sentenced as a child” (sub-s. 106(3)(a)), “even though an adult would otherwise be liable to a heavier penalty which by operation of law could not be reduced” (sub-s. 106(4)).

The prosecution submitted that, despite the generality of its

language, s. 305 of the Code is directed only to sentencing

courts, not other bodies such as the Queensland Community Corrections Board. However, such a construction of s. 305 of the

Code would not prevent conflict with the Juvenile Justice Act

when the person sentenced for murder is a child. Further, any resolution of that conflict must be extremely subjective. Each statutory provision is concerned with a “special” matter; s. 305 of the Code (relevantly) with sentencing for murder: the Juvenile Justice Act (relevantly) with sentencing children. Again, while

the Penalties and Sentences Act (No. 48 of 1992) was assented to

after the Juvenile Justice Act (No. 44 of 1992),[3] the Juvenile Justice Act substantially came into effect later (1 September

[3]

1993).[4]
That aside, there seem to me a number of difficulties with the

[4]

prosecution position. One is the language in which s. 305 of the

Code is expressed. It is difficult to envisage a more direct

conflict than exists between that provision and sub-ss. 165(1) and 166(1), (4) and (5) of the Corrective Services Act if, as the prosecution accepted, indeed submitted, early release of a

prisoner on parole “mitigates” his or her sentence.[5] Although I

[5]

do not propose to discuss them in detail, there also seem to me

difficulties in reconciling the prosecution’s argument with the

operation of s. 157 of the Penalties and Sentences Act and s. 191 of the Corrective Services Act if the offence of murder for which a person has been or is to be sentenced is not the only offence for which a term of imprisonment must be served.

While I do not find the prosecution argument attractive, it does

not follow that the applicant’s argument is correct. There seems to me no satisfactory alternative to considering the applicant’s

argument without reference to the prosecution position, leaving
other issues to future resolution.
The broad legislative scheme may be briefly summarised. Subject
to qualifications and exceptions which generally do not require
detailed discussion for present purposes, the Code states the

maximum, and in some cases, the minimum punishment to which a person convicted of an offence is liable, and the Corrective

Services Act prescribes minimum periods of imprisonment which

must be served before a person sentenced to imprisonment is eligible for release on parole; however, under the Penalties and Sentences Act, a sentencing court may alter the period of

imprisonment which must be served before the prisoner is eligible

for parole, either increasing it or decreasing it, and, under the

Corrective Services Act, the Queensland Community Corrections

Board or a regional community corrections board may in some

circumstances release a prisoner who is not “eligible for parole” on parole. The applicant’s essential argument is that, in this context, a sentencing court’s determination (“recommendation”) that a prisoner who would not otherwise then be eligible for

parole is eligible for parole at a specified time or after a

specified period does not “mitigate” that prisoner’s sentence.

I did not understand the applicant to dispute that, ordinarily,

such a recommendation would properly be characterised as mitigating the sentence, and such a conclusion is supported by Power. The submission required mitigation to be given a special

denotation in this context, requiring it to be limited to a

reduction in the term of imprisonment, or perhaps an order of a type which might previously otherwise have been made under s. 19

of the Code, or at least as excluding a course which a court might have taken under the Corrective Services Act prior to 1992.

The only basis advanced for this proposition was the legislative

history, which cannot support the conclusion for which it was

advanced.

The applicant accepted that, in that event, the resultant

conflict between s. 305 of the Code, and sub-s. 157(2) of the Penalties and Sentences Act must be resolved by reading the

generality of the latter provision subject to the special provision which s. 305 of the Code makes with respect to persons

convicted of murder.

Accordingly, the application must be refused.

JOINT REASONS FOR JUDGMENT - DAVIES J.A. AND MOYNIHAN J.

Judgment delivered the 3rd day of November 1995

This is an application for leave to appeal against sentence. The applicant was convicted on 26 June this year of murder. In accordance with s.305 of the Criminal Code he was ordered to serve a sentence of life imprisonment. The trial Judge made no recommendation as to early parole and though none was requested at the time of sentence, it is against this failure so to recommend that the applicant seeks leave to appeal.

The question which arises for the determination of this Court is whether a power exists in a sentencing judge to make an early recommendation for parole when sentencing a person who has been convicted of murder. By s.305 of the Code, a person who is convicted of murder is liable to imprisonment for life, "which cannot be mitigated or varied under this Code or any other law." The reference to “cannot be mitigated” must mean cannot be mitigated by a court because otherwise this would be inconsistent with s.166(4) of the Corrective Services Act 1988. This section gives the Community Corrections Board authority in special circumstances to release on parole at any time, a prisoner who is serving a term of life imprisonment.

The question which then arises is whether a recommendation by a court for early parole mitigates the life sentence. If it does then the application must be refused. In R. v. Corrigan (C.A. No.184 of 1993) Macrossan C.J. and Lee J. said:

"a recommendation for consideration for early release on parole can qualify as a reduction of sentence within s.13 (of the Penalties and Sentences Act). It is an order made which is highly beneficial to an offender and ameliorates the effect of the sentence as it would otherwise apply."

In that case, Davies J.A. said:

"I think that (a recommendation for early parole) forms part of a sentence because ... it qualifies the order made for imprisonment ... It follows that the effect of the recommendation in the present case is that the sentence is less than it would have been had the recommendation not been made: s.166(1)(b)."

Similarly in Power v. The Queen (1974) 131 C.L.R. 623, Barwick C.J., Menzies, Stephen and Mason JJ., referring to Australian Capital Territory legislation under which a court was required, when sentencing, to specify a lesser term during which the person sentenced was not to be eligible for parole said:

"To read the legislation in the way we have suggested fulfils the legislative intention to be gathered from the terms of the Act, i.e. to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence."

In our opinion, it follows that a recommendation for early release on parole is a mitigation of sentence within s.305 and therefore cannot be ordered.

However, the applicant submitted that the phrase in s.305, quoted above, was intended only to exclude the operation of s.153(1) of the Penalties and Sentences Act 1992 which provides:

“An offender liable to imprisonment for life, or for any other period, may
be sentenced to imprisonment for any lesser period.”

It was submitted therefore that it had no application to a recommendation for parole. This submission was made on the basis of the history of the Criminal Code, the Penalties and Sentences Act and the Corrective Services Act which we find it unnecessary to elaborate upon. An analysis of the history of legislation can be of assistance in certain circumstances, particularly when the legislation is ambiguous or an application of its literal interpretation leads to an absurd result. Neither of these factors exist here; s.305 is clear and unambiguous on its face and an application of its literal operation does not lead to an absurd result.

The applicant needed and sought an extension of time within which to seek leave to appeal. Decision on that application was reserved and the Court heard the argument on the substantive application. In view of the conclusion which we have reached on it we would refuse the application for an extension of time.

The wide operation intended for the Penalties and Sentences Act is to be seen from its preamble, purposes (s. 3) and “Governing Principles” (Part 2).

see also sub-s. 166(5).

Morgan v. 15 Bannerman St Pty Ltd (1971) 1 N.S.W.L.R. 601, 607.

Black v. Director-General of Education (1982) 2 N.S.W.L.R. 714,
716.

cp. Power v. R. (1973) 131 C.L.R. 623; Lowe v. R. (1984) 154
C.L.R. 606, 615.