R v Burke

[1994] QCA 244

IN THE COURT OF APPEAL [1994] QCA 244

SUPREME COURT OF QUEENSLAND

C.A. No. 34 of 1994.

Brisbane

[R v. Burke]

T H E Q U E E N

v.

JAYSON LEE BURKE

(Applicant)

_______________________________________________________________

The Chief Justice
Pincus J.A.

Davies J.A.

_______________________________________________________________
Judgment of the Court
Judgment delivered 12/07/1994

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED
CATCHWORDS: CRIMINAL LAW - sentence - applicant serving term of imprisonment with non-parole period of 18 months imposed in Supreme Court of Northern Territory transferred to Queensland under Prisoners (Interstate Transfer) Act 1983 (N.T.) -in Queensland sentenced in District Court for robbery in company committed in Queensland prior to absconding on bail to Northern Territory where further offences committed - recommendation for parole after 15 months made - effect of N.T. sentence considered under Prisoners (Interstate Transfer) Act - whether 2 non-parole periods are added together under s. 157(6)(a) Penalties and Sentences Act - whether Queensland sentence manifestly excessive.
Counsel:Mr P Alcorn for the applicant.

Mr P Callaghan for the respondent.

Solicitors:Legal Aid Office for the applicant.

Director of Prosecutions for the respondent.

Date of hearing:14/06/1994.

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 12 July 1994.

This is an application for leave to appeal against sentence. The applicant was convicted of robbery in company in the District Court on 3 March 1993 and sentenced to 4 years imprisonment with a recommendation for parole after having served 15 months; the offence was committed on 2 February 1992.

In the meantime, that is, between the commission of the offence and the date of sentence, the applicant, who had been granted bail, absconded and travelled to the Northern Territory and committed further offences. There, he was on 13 May 1992 convicted in the Supreme Court and sentenced to 5 years imprisonment for armed robbery and 9 months imprisonment on a charge of unlawful use of a motor vehicle, the sentences to be served cumulatively. They were backdated to 30 March 1992 and a non-parole period of 18 months was ordered.

In late 1992, under the Prisoners (Interstate Transfer) Act 1983 (N.T.), the applicant was transferred to Queensland; the effect of that transfer, which was ordered on 21 October 1992, is considered below.

The first question which is raised by this application is the effect of the orders made in the District Court. In making his recommendation for parole the learned primary judge referred to the Penalties and Sentences Act 1992 ("the 1992 Act"), presumably having in mind s. 157 of that Act. Section 157(3) of the 1992 Act reads as follows:

"If a court imposes another term of imprisonment on an offender who is already serving imprisonment for an offence, the court must -

(a)if it is a court of like jurisdiction or higher jurisdiction to the court that last sentenced the offender to a term of imprisonment - make a fresh recommendation for parole relating to the period of imprisonment that the offender must serve; or

(b)if it is a court of lesser jurisdiction to the court that last sentenced the offender to a term of imprisonment, recommend a non-parole period in relation to the fresh term of imprisonment imposed by the court."

The first question is whether this provision had any application to the situation before the primary judge; on the face of it, it had not, because the word "court" in the section presumably means a Queensland court. There falls for consideration the Prisoners (Interstate Transfer) Act 1982 (Qld) ("the 1982 Act"), the general effect of the relevant provisions in which is explained by von Doussa J in Hateley (1988) 35 A.Crim.R. 350; his Honour was speaking of the provisions of the corresponding South Australian legislation:

"Under the scheme of the Prisoners (Interstate Transfer) Acts, once a prisoner is transferred from one participating State to another participating State the courts and the prison authorities of the transferee State assume responsibility to determine the future of the transferred prisoner according to the laws of the transferee State. Where South Australia is the transferee State, those laws include the South Australian Act and the Correctional Services Act."

Relevant provisions of ss. 26 and 27 of the 1982 Act which

correspond to those alluded to by von Doussa J are as follows:
"26. Sentence deemed to have been imposed in this State.

Where under an interstate law an order is issued for the transfer to Queensland of a person imprisoned in a participating State and the person is brought into Queensland pursuant to the order, then from the time the person arrives in Queensland -

(a)any sentence of imprisonment imposed upon him by a court of the participating State (including any sentence of imprisonment deemed by the provision of an interstate law that corresponds to this section to have been imposed by a court of the participating State) shall be deemed to have been imposed upon him; and

(b)any direction or order given or made by a court of the participating State with respect to when that sentence shall commence shall, so far as practicable, be deemed to have been given or made,

by a corresponding court of Queensland and, except as otherwise provided in this Act, shall be given effect to in Queensland, and the laws of Queensland shall apply, as if such a court had had power to impose the sentence and give or make the direction or order, if any, and did in fact impose the sentence and give or make the direction or order, if any.

27. Provisions relating to section 26 sentences. (1) Where under a law of a participating State there has been fixed by a court in respect of a section 26 sentence a minimum term of imprisonment (being a shorter term than the section 26 sentence), during which minimum term the person subject to the sentence is not eligible to be released on parole, then, except as otherwise provided in this Act, that minimum term shall be deemed likewise to have been fixed by the corresponding court of Queensland and, notwithstanding any other Act, that person is not eligible to be released on parole until he has served that minimum term of imprisonment."

The expression "participating State" is defined to mean "any State of the Commonwealth in which there is in force an interstate law" and "State" is defined so as to include the Northern Territory: see the amended definitions in s. 3 of the Prisoners (Interstate Transfer) Act Amendment Act 1987 ("the 1987 Act"), in the 1987 sessional volume at p. 147. "Interstate law" is defined by s. 4 of the 1982 Act as follows:

"'Interstate law' means a law that, under an Order in Council in force under s. 5(1), is declared to be an interstate law for the purposes of this Act."

Section 5(1) of the 1982 Act, as amended in 1987, reads so

far as relevant as follows:
"Subject to subsection (2), the Governor in Council may, by

Order in Council, declare that -

(a)a law of a State (other than Queensland), is an interstate law for the purposes of this Act; and

(b)a specified court of Queensland or any court belonging to a specified class or description of courts of Queensland is, for the purposes of this Act, a corresponding court in relation to a specified court of a participating State or in relation to any court belonging to a specified class or description of courts of a participating State."

It will be noted that under s. 5(1)(b) the concept of "corresponding court", which is used in s. 26 quoted above, is defined. By an Order in Council made on 29 November 1984 (Queensland Government Gazette No. 77, p. 1717), it was declared as follows:

"(a)the Prisoners (Interstate Transfer) Act, 1983 (Northern Territory) is an interstate law for the purposes of the Act;
(b)The Supreme Court of Queensland is, for the purposes of the Act, a corresponding court, in relation to any Supreme Court of the Northern Territory;
(c)A District Court of Queensland is, for the purposes of the Act, a corresponding court in relation to any District Court, County Court or other court, being a court of intermediate jurisdiction in relation to a Supreme Court and a court of summary jurisdiction, of the Northern Territory, and

(d)a Magistrates Court of Queensland is, for the purposes of the Act, a corresponding court in relation to a court of summary jurisdiction in the Northern Territory."

It will be noted that, as one would expect, the Supreme Court of Queensland is, and the District Court of Queensland is not, a corresponding court in relation to the Supreme Court of the Northern Territory.

The result is that under s. 26 of the 1982 Act, as amended, the sentence of imprisonment imposed upon the applicant by the Supreme Court of the Northern Territory before his transfer is deemed after that transfer to have been imposed upon him by the Supreme Court of Queensland. Therefore, under s. 157(3) of the 1992 Act, the District Court, in imposing another term of imprisonment, was required to act under s. 157(3) para. (b), not para. (a), and the recommendation made by the learned primary judge would be taken to have been made under para. (b).

The Court notes, with some regret, that neither counsel was prepared to give us any assistance with respect to the application of the 1982 Act.

Since the learned primary judge made no order under s. 158 of the 1992 Act, the term of imprisonment imposed started on the day the Court imposed it, under s. 154(a) of that Act. But under s. 157(6)(a) of the 1992 Act, the non-parole period imposed in the Northern Territory must be added to that imposed in this State, giving a total of 33 months. To put this more simply, the head sentences were made partially concurrent, but the non-parole periods take effect cumulatively. When sentenced in the District Court on 3 March 1993, the appellant was serving head sentences of 5 years 9 months backdated to 30 March 1992 and therefore due to expire on 30 December 1997. The Queensland sentence of 4 years, which as I have said started on the day the imprisonment was imposed, will expire earlier than the Northern Territory sentence - i.e. on 3 March 1997. The total non-parole period of 33 months, beginning on 30 March 1992, will come to an end on 30 December 1994.

The question arises whether this sentence was excessive. It is of course impossible for the applicant to complain about the head sentence which, as has been pointed out, concludes before that already imposed in the Northern Territory. The only question is whether the imposition of an additional non-parole period of 15 months was excessively harsh.

The applicant was 21 years of age when the offence presently under consideration was committed. He had committed some previous, relatively minor, drug offences and there was a conviction of stealing which was punished by fine. The robbery of which he was convicted was committed by a party of four, one of whom was armed with a knife. The applicant was the driver of a car in which the party travelled to commit the offence; he was not personally involved in the violence associated with the robbery. One of the persons at the premises robbed, a McDonalds Restaurant, was bound with tape and gagged, and the female manager of the store was confronted by one of the party, holding a knife; he accidently cut her. About $9,000 was stolen and the applicant got his share.

The applicant pleaded guilty, but any suggestion that he was remorseful for his part in the Queensland robbery has to take account of the fact that while on bail for this offence he committed a robbery in the Northern Territory, as has been mentioned. There does not appear to be any sound argument, given the circumstances of the offence, in favour of the view that a sentence, whose only substantial effect was to add 15 months to the non-parole period to which the applicant was already subject, is manifestly excessive.

The application should be dismissed.