R v Booth

[1995] QCA 478

IN THE COURT OF APPEAL	[1995] QCA 478
SUPREME COURT OF QUEENSLAND

C.A. No. 189 of 1995.

Brisbane

[A-G v. Booth]

T H E Q U E E N

v.

STEPHEN EDWARD BOOTH

Respondent

ATTORNEY-GENERAL OF QUEENSLAND

Appellant

_________________________________________________________________

Pincus JA
McPherson JA

Demack J

Judgment delivered 27/10/1995

Joint reasons for judgment of Pincus JA and Demack J; separate concurring reasons
for judgment of McPherson JA.
_________________________________________________________________

1.         THE SENTENCES APPEALED AGAINST ARE REDUCED FROM 8 YEARS TO 7 YEARS.

2.         ALL THE SENTENCES IMPOSED IN THE DISTRICT COURT ON 13 APRIL 1995 ARE TO BE SERVED CUMULATIVELY UPON THOSE IMPOSED IN 1991 AND 1992 BUT CONCURRENTLY WITH EACH OTHER; AND

3.         IT IS RECOMMENDED THAT THE RESPONDENT BE CONSIDERED FOR PAROLE AFTER 30 JUNE 2000.

_________________________________________________________________

CATCHWORDS:	CRIMINAL LAW - SENTENCE - offences committed while on parole - whether sentences too light - whether sentences should be made cumulative - effect of parole on calculation of sentence.
Ss. 183, 184, 187, 190 Corrective Services Act 1988
Counsel:	Mr M Byrne QC for the appellant. Mr A Kimmins for the respondent.
Solicitors:	Queensland Director of Public Prosecutions for the appellant.

Jacki Payne & Assoc. for the respondent.

Hearing date:  23 June 1995.

JOINT REASONS FOR JUDGMENT - PINCUS JA AND DEMACK J

Judgment delivered 27/10/1995

This is an Attorney-General’s appeal against sentence. The respondent was convicted in April of a number of offences of which some details are given below. Those which attracted the highest sentence were two offences of armed robbery in company, for each of which a concurrent sentence of 8 years was imposed. The Attorney argues that the head sentences of 8 years were rather too light, but more importantly, says that the sentences should have been cumulative upon sentences then being served. As will appear, the effect, under the relevant statute, of the sentences imposed, requires some analysis.

The respondent was born on 10 August 1969. His first significant offence was committed in 1987 when he was nearly 18. He was then convicted of breaking and entering with intent and sentenced to community service plus 12 months probation. A little later he was convicted of stealing, that offence apparently having been committed on the same date as the breaking and entering; he was again sentenced to 12 months probation. In April 1988, at the age of 18, he was convicted of unlawful use of a motor vehicle, attempted unlawful use and false pretences, which attracted a total sentence of 4 months imprisonment. A few months later he was sentenced to 12 months imprisonment for another breaking and entering committed in March 1988. In 1989 he was convicted of dangerous driving and unlawful use of a motor vehicle; this attracted a 3 month prison sentence and 18 months probation. In the same year he was convicted of charges of breaking, entering and stealing and sentenced to 6 months imprisonment and 2 years probation. In February 1991 he was sentenced to 6 years imprisonment with a recommendation of consideration for parole at the expiration of 2 years for a number of offences: unlawful use of a motor vehicle, breaking entering and stealing, two charges of receiving, 15 charges of false pretences, and another offence of unlawful use for the purpose of facilitating the commission of an indictable offence. In February 1992 he was sentenced to an additional 4 months for being unlawfully at large.

These are the principal offences, but in between them one finds a number of lesser offences: unlicensed driving, wilful and unlawful damage, hindering police, and possession of a dangerous drug. The impression created is that of a young man set in a course of unlawful conduct.

To come now to the offences the subject of the sentences attacked by the Attorney's appeal, the two armed robberies were carried out in May 1994 and August 1994 and in each case the premises where the robbery took place was a TAB agency, that at Holland Park. On the first occasion a replica pistol was used and on the second a sawn off .22 rifle. The total amount taken in the two offences was about $23,500 and in relation to each, a female employee was subjected to a degree of violence. In each robbery the female employee was tied up and in the second she was gagged. The Crown points out that the respondent, who had been granted parole in June 1993, was still on parole when he committed these offences.

The appeal relates only to these two offences, but the judge was entitled to take into account, when fixing these sentences, other offences which were before him at the same time. Between February and March 1994 the respondent took outboard motors to a second-hand dealer and sold them on two occasions, and on a third occasion had possession of an outboard motor which he intended to sell to the same dealer. He admitted that he received all three of them knowing them to have been stolen; he was arrested on 21 March 1994 in respect of these five offences and released on bail. It is to be noted that the robberies the subject of this appeal, in May and August 1994, were committed whilst on bail. The respondent was left at liberty, enabling him to commit the robberies; it appears no action was taken to suspend his parole under s. 185 of the Corrective Services Act 1988, as might have been done.

The other offences may be briefly summarised. In September 1994 the respondent admitted having been guilty of housebreaking, stealing and false pretences. The property stolen included a CD player, the pawning of which was the subject of the false pretences charge. In the same month the respondent admitted having a birth certificate which had been stolen, the intended use of which was to create a false identity. There were also two receiving charges, a stealing charge and three false pretences charges of a similar character - i.e. relating to goods which had been received or stolen and which were pawned.

To sum up the respondent's criminal history, leaving aside lesser matters, he was first sent to prison for 4 months early in 1988, and for 12 months later that year, for an earlier offence; he then got 3 months and 6 months, again, in 1989. In 1991 he was sentenced to 6 years for unlawful use of motor vehicles, breaking entering and stealing, receiving and false pretences. In 1992 he was sentenced to a further 4 months. Having obtained parole in June 1993, he committed all the relevant offences from February to August 1994, being at that stage engaged in a substantial course of dishonest conduct, the highlights of which were the two armed robberies.

The material before the primary judge showed the respondent to have had a very unfortunate childhood and it is said that he lived on the streets for two years between the ages of 11 and 16. He had alcohol problems and then began to use heroin at the age of 18, with some periods of cessation. In 1993 he had a period of alcoholism, but at the end of that year started to use heroin again.

The primary judge pointed out, with respect to the second robbery, that the respondent left a fingerprint behind, making his detection inevitable. Nevertheless, as his Honour pointed out, when questioned about the matter the respondent admitted his guilt. The judge referred at some length to the respondent having pleaded guilty, stating that for some of the offences there was little evidence available against the respondent, but repeating that it was inevitable, given the presence of the fingerprint and other circumstances, that the respondent would have appeared before a court, been found guilty and punished. His Honour referred to the respondent's heroin addiction, saying that it did not excuse the commission of the offences; it was noted that the respondent expressed an intention to recover from his addiction.

As has been mentioned the longest sentences imposed were two concurrent sentences of 8 years each for the robberies described above. The commencement of those sentences was backdated to 8 September 1994, so that they will conclude on 8 September 2002. The judge recommended that parole be considered after 30 June 1998.

There was considerable discussion in this Court with respect to the length of augmentation in the respondent’s sentence which was achieved by these two 8 year sentences. The primary judge was told that the respondent’s "release date" was 21 April 1997 under the then current sentences and if that was correct then the judge added a little over 5 years and 4 months to the head sentence. But that information, placed before the primary judge, appears to be inconsistent with the facts set out in the record.

The case is an example of one in which it was of particular importance to place accurate information before the primary judge, so as to enable the effect of the then subsisting sentences to be calculated; that does not appear to have been done and the error apparently worked in the respondent’s favour. It appears to us better for a trial judge in a case of this kind to impose a cumulative sentence rather than a concurrent one; that at least has the advantage of ensuring that the Court can accurately fix the extent to which the existing sentence is being added to.

The respondent was as has been mentioned sentenced on 8 February 1991 to 6 years imprisonment and in February 1992 to an additional 4 months imprisonment, so that the combined head sentences which the respondent was already serving would have expired, but for the respondent’s release on parole, on 8 June 1997. He was paroled on 4 June 1993 and arrested about 15 months later, on 8 September 1994. Section 183 of the Corrective Services Act 1988 ("the Act") has the effect that in certain circumstances when a parole period expires the prisoner is deemed to have served his term of imprisonment; but that does not apply to the respondent, as the terms of the provision make clear, since he has been sentenced to a term of imprisonment during the parole period. Under s. 184 of the Act, until the parole period has expired or the prisoner is otherwise discharged from the term of imprisonment:

" . . . a prisoner released on parole shall be regarded as still being under sentence or detention and as not having suffered the punishment to which he was sentenced . . . "

Under s. 187 of the Act the respondent’s parole was cancelled, by his having been sentenced to the terms of imprisonment of which the Attorney now complains. Under s. 190 of the Act, upon cancellation of parole -

" . . . no part of the time between the prisoner’s release on parole and the prisoner recommencing to serve the unexpired portion of the prisoner’s term of imprisonment . . . shall be regarded as time served in respect of that term".

Under s. 190(2) of the Act the Queensland Community Corrections Board has power where parole has been cancelled to make an order, the effect of which is to reduce the term of imprisonment which the prisoner has still to serve. There is nothing to suggest that such an order was made in the present case.

Because of the terms of s. 190(1), the period of time between 4 June 1993, when the respondent obtained parole, and the date when he recommenced serving the unexpired portion of the terms of imprisonment imposed in 1991 and 1992 is not to be regarded as time served in respect of the 1991 and 1992 terms i.e. the terms of 6 years and 4 months. That is so, other than in relation to any period during which the respondent was "kept in custody, consequent upon his parole being suspended"; here, we were initially told that the respondent’s parole had been suspended, but that was subsequently withdrawn and is inconsistent with what is set out in the record. That information (assuming it to be correct) shows that the period of time which is not to be regarded as time served began on 4 June 1993 and did not recommence until 13 April 1995, when the parole was cancelled under s. 187 by the imposition of the terms of imprisonment which are in issue. That is, there was a gap of about 22 months, with the result that, if one left out of account the length of the sentences presently in issue, the respondent would not be entitled to be released until April 1999, two years later than what the primary judge was told was the "release date". The ultimate termination of sentences was deferred by about 3 years and 5 months, by the imposition of the 8 year sentences expiring on 8 September 2002.

There is a degree of artificiality about that calculation, however, because from September 1994 until April 1995 the respondent was in prison and although, on what the Court was told, no steps had been taken to suspend his parole, it is questionable to what extent that non-suspension should disadvantage him. It will be noted that the judge gave the respondent the benefit of his imprisonment from September 1994 to April 1995 by back-dating the 8-year terms.

But even giving the respondent credit, so to speak, for the period from September 1994 to April 1995, the head sentence has in a practical rather than legal sense been lengthened by only about 4 years. This must be too short a period for two armed robberies committed by one with the respondent’s record, while on parole as well as on bail - even leaving the other 1994 offences out of account. Mr A Kimmins, for the respondent, advanced argument to the effect that when one examines the whole of the circumstances of the robberies they were by no means of the worst type and that appears to us to have some substance. Further, it has to be noted that the respondent had not previously committed any armed robbery or other offence of comparable seriousness and he is still a young man. In our opinion the sentences which have been challenged should be reduced from 8 years to 7 years, but made cumulative upon the sentences which were imposed on the respondent in 1991 and 1992.

That leaves for consideration the question of the date on which the respondent should be considered for parole, fixed by the judge at 30 June 1998; that date was perhaps selected on the basis that it was a little less than half way through the additional sentences, imposed to commence on 8 September 1994. We would defer that date by 2 years, recommending consideration for parole on 30 June 2000.

It should be added that on our calculations the term of imprisonment imposed on 4 February 1992 will conclude on 8 April 1999.

The orders are as follows:

1.         The sentences appealed against are reduced from 8 years to 7 years.

2.         All the sentences imposed in the District Court on 13 April 1995 are to be served cumulatively upon those imposed in 1991 and 1992 but concurrently with each other; and

3.         It is recommended that the respondent be considered for parole after 30 June 2000.

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered the 27th day of October 1995

I agree with the joint reasons for judgment of Pincus J.A. and Demack J. and with the order they propose. With respect to the practice of making the sentence cumulative in circumstances like those disclosed here, the appeal in this case may usefully be compared with R. v. Mickelo (CA 196 of 1995, delivered 17 October 1995).