R v Bulmer

[1994] QCA 407

[1994] QCA 407

COURT OF APPEAL
DAVIES JA
McPHERSON JA

MACKENZIE J

CA No 147 of 1994
THE QUEEN
v.

PETER JOHN BULMER Applicant

BRISBANE
..DATE 24/08/94
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McPHERSON JA: This is an application for leave to appeal
against a sentence imposed in the Magistrates Court at
Beenleigh on 11 March 1994. The sentence, which was imposed
in respect of two offences that it is not necessary further to
describe, was effectively a sentence of six months. There was
also added to it by the Magistrate a recommendation that the
applicant be considered for release on parole after serving
four months of that sentence.

The grounds of appeal forming part of the application for leave to appeal against sentence in this case refers to these matters, and proceeds to say, "I am only appealing against the recommendation imposed by the Magistrate." There are, of course, decisions of this Court and of its predecessor to the effect that a recommendation for parole that is to take effect beyond the half way point of the sentence is an unusual one and ought only to be imposed in special circumstances. The recommendation in this case might therefore be vulnerable to the attack that is made upon it in the course of this application for leave to appeal.

The problem is, however, that events have since overtaken the
application that has been made to us. It is necessary, in
order to explain how this happened, to relate some further
facts. First of all, on 10 March 1994 the applicant was
sentenced by a Judge of District Court to a period of two
years and six months imprisonment with a recommendation for
parole after nine months. That was on 10 March, which was the
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day before the subject sentence was imposed in the Magistrates
Court at Beenleigh which, as I have already mentioned,
incorporated a recommendation for parole after four months.

The catalogue of events does not stop there. On 29 March 1994 Judge Healy, in the District Court at Brisbane, sentenced the applicant to a term of imprisonment of 12 months for yet another offence or offences, with a recommendation that the parole date be fixed at 10 December 1994. I said "another offence or offences" but in fact it was a case in which the applicant was brought before the Court to be dealt with for breach of the conditions of a suspended sentence that had been imposed on 20 April 1993.

The effect of His Honour Judge Healy's recommendation for
parole made on that date, that is 29 March 1994, is, according
to the provisions of the Penalties and Sentences Act 1992,
that previous recommendations made by Courts in relation to a
non-parole period for an offender are thereby revoked.
Section 157(5)(a) of that Act expressly provides that a new
recommendation made under subsection (3)(a) of that section
"revokes previous recommendations made by courts in relation

to a non-parole period for an offender".

The effect of Judge Healy's sentence and, more particularly,
recommendation, made on 29 March 1994 therefore is to revoke
the recommendation for parole after four months that was made
by the Magistrate in Beenleigh on 11 March 1994. Since that
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is the recommendation that the applicant specifically wishes
to challenge in this Court, it is not possible for us to
consider the point of his application because the relevant
parole recommendation has now disappeared.

It would be comforting to believe that that was the end of the matter, but there are further circumstances to be considered in this case. They are that when the applicant was before Judge Healy for sentencing on 29 March 1994, the sentencing process proceeded without the Judge or the Crown Prosecutor being aware of the sentence imposed on the Magistrates Court on 11 March 1994. That is something that should have been before the Court on that occasion in order to enable a proper sentence to be considered and imposed.

In order to correct that omission, it is possible for that
sentence to be re-opened pursuant to s.188(2) of the Penalties
and Sentences Act. Mr Clark, who appears on behalf of the
Crown, has been able to assure us that steps will be, and
indeed are being, taken in order to bring the matter back
before His Honour Judge Healy in order to re-open that
sentence. It will then be possible for His Honour to consider
what the appropriate head sentence should be in the matter
that was formerly before him, taking into account any further
convictions and sentences that the applicant may have
sustained, and that were not put before that Judge of District
Courts on the last occasion.
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I should finally add that we are by no means sure that there
are not further difficulties arising from the provisions of
the Act in this regard that may not trouble Judge Healy on the
next occasion, but there is very little we can do about it.
The recommendation for parole with which we are concerned here
having, by virtue of the Act, been vacated, it is really not
possible for this appeal to proceed in its present form or
perhaps at all. The appropriate course, it seems to me
however, is not to dismiss it immediately, but to adjourn the
application before us for leave to appeal until a date to be
fixed, without prejudice to the application, which the Crown
intends making, to re-open the sentence imposed on 29 March
1994 by going back to His Honour Judge Healy under s.188(2) of
the Penalties and Sentences Act.

The order I would therefore propose in this case is that the application for leave to appeal against the sentence in the Magistrates Court be adjourned to a date to be fixed, without prejudice to an intended application by the Crown to re-open the sentence imposed on 29 March 1994.

DAVIES JA: I agree.

MACKENZIE J: I agree.

MR CLARK: Before Your Honours finish with that, could I just
satisfy your question before? Yes, it can be taken to a Court
differently constituted. I see that is provided for in
section 182 subsection 2.
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McPHERSON JA: Oh, it is. Good. That would certainly at least eliminate that difficulty if Judge Healy is away or not available for some reason.

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