R v Caruana

[1999] QCA 292

COURT OF APPEAL  99.292

MCMURDO P
THOMAS JA
CULLINANE J

CA No 139 of 1999

THE QUEEN

v

JOHNNY VINCENT CARUANA

TOWNSVILLE

..DATE 28/7/99

JUDGMENT

CULLINANE J:  The applicant seeks leave to appeal against a sentence of four years' imprisonment imposed at the Supreme Court at Mount Isa on 22 March 1999 on a count of carrying on the business of trafficking in methyl amphetamine.

The applicant had been sentenced to a term of four years' imprisonment on 15 February 1994 at the Mount Isa District Court.  After serving what he has told this Court was a period of about 18 months, he was released on parole.  That parole was still current at the time of the commission of this offence.

When the learned sentencing Judge passed sentence, he did not advert to and did not have his attention drawn to the provisions of section 156A of the Penalties and Sentences Act. This provision came into effect on 1 July 1997. Its effect is that, where an offence is committed whilst a person is released on parole under the Corrective Services Act, any sentence of imprisonment imposed for that offence must be ordered to be served cumulatively with any other term of imprisonment that the offender is liable to serve.

In addition, section 157(3) of the Act imposes upon a Court an obligation to make a fresh recommendation for parole where the Court imposes another term of imprisonment on an offender who was already serving imprisonment for an offence where, as was the case here, there was, in respect of the earlier offence, a recommendation for parole.

The consequence of this is that the sentencing process was not carried out in accordance with the requirements of section 156A and section 157. This was conceded by the respondent to the application.

It is plain that His Honour, in imposing sentence, imposed a sentence which he intended to take effect immediately. It follows that the sentence imposed must be set aside. The requirements of section 156A and 157 involve a consideration of a number of matters. This Court does not have before it the necessary information to enable sentence to be passed and there is a real risk that, if it does attempt to impose sentence on the current state of the information, the applicant may ultimately receive a sentence which is more onerous than that which His Honour intended to impose.

In my view, the appropriate course to take is to set aside the sentence imposed and to remit the matter to the learned sentencing Judge for further consideration.

THE PRESIDENT:  I agree.

THOMAS JA: I agree. The fashioning of a fresh parole date when the commencement of the new sentence is delayed by the mandatory effect of section 156A has been considered in some recent decisions of this Court since the Queen v. Booth, which was delivered on 30 March 1999.

To the reasons mentioned by Mr Justice Cullinane I would add that this Court is unable to substitute its own sentence not only in the fact that we do not have sufficient administrative details to make a reasonable and just decision on the question, but also because of the arguable possibility that the sentence that is ultimately fashioned might be seen as more severe than that from which the appellant has appealed.

I do not suggest for a moment that that is the necessary result, but, in the absence of further information, it is a possibility.  Accordingly, I think it necessary that this matter go back to the original sentencing Judge.

THE PRESIDENT:  The orders are the application for leave to appeal against sentence is granted.  The sentence imposed below is set aside.  The matter is remitted to the next sittings of the Supreme Court in Mount Isa for resentence.

...

THE PRESIDENT:  Well, the order is as it stands.

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