R v Clements

[1993] QCA 245

IN THE COURT OF APPEAL [1993] QCA 245

Q UEENSLAND

C.A. No. 279 of 1992

Brisbane

[R. v. Clements]

T H E Q U E E N

(Respondent)

v.
EARL SHANE CLEMENTS

(Applicant)

──────────────────────────────────────────────────────────────

The Chief Justice Mr Justice Pincus Mr Justice de Jersey

──────────────────────────────────────────────────────────────

Judgment delivered 25/06/1993
Joint reasons delivered by the Chief Justice and de Jersey J., separate reasons by Pincus J.A, all agreeing as to the form of order to be made.
──────────────────────────────────────────────────────────────

APPLICATION GRANTED. APPEAL AGAINST SENTENCE ALLOWED. THE TERM OF THIRTEEN YEARS IMPOSED BELOW SET ASIDE AND A TERM OF TEN YEARS SUBSTITUTED. THE FURTHER TERMS OF EIGHT AND SIX YEARS RESPECTIVELY ALLOWED TO STAND. ALL THREE TERMS TO BE SERVED AS AMONGST THEMSELVES CONCURRENTLY BUT ALL TO TAKE EFFECT FROM THE EXPIRATION OF THE DEPRIVATION OF LIBERTY UNDER THE SENTENCE IMPOSED UPON THE APPLICANT BY THE DISTRICT COURT IN NEW SOUTH WALES ON 22 OCTOBER 1991 NOW BEING SERVED UNDER THE PRISONERS (INTERSTATE TRANSFER) ACT 1982.

──────────────────────────────────────────────────────────────

CATCHWORDS:	CRIMINAL LAW - SENTENCE - Appct sentenced to 13 yrs for inter alia manslaughter cumulative on current sentence for NSW offences - Wh excessive given totality principle and fact NSW offences unrelated in nature and 4 yrs prior - Wh sentence ought to have been concurrent.
Counsel:	Mr P. Alcorn for the applicant/appellant.
Mr D. Lynch for the respondent.
Solicitors:	Legal Aid Office for the applicant/appellant.
Director of Prosecutions for the respondent.

Hearing Date: 9 November, 1992.
IN THE COURT OF APPEAL

Q UEENSLAND

C.A. No. 279 of 1992

B risbane

Before The Chief Justice Mr Justice Pincus

Mr Justice de Jersey

[R. v. Clements]

T H E Q U E E N

(Respondent)

v.

EARL SHANE CLEMENTS

(Applicant)

JOINT REASONS - THE CHIEF JUSTICE AND DE JERSEY J.

Judgment delived 25/06/1993.

The applicant seeks leave to appeal against sentences of imprisonment imposed following his conviction on 14 September, 1992. The longest of the custodial terms, and therefore the effective one, was thirteen years for manslaughter. The ground argued was that the sentences imposed were excessive and, in particular, should not have been, as they were, made cumulative upon a term which the applicant was then serving under an order of the New South Wales District Court made on 22 October, 1991.

The applicant had been charged with three offences committed on 7 April, 1986 in the course of his attempted robbery at a bus depot. The charges were: murder; attempted robbery while armed with a dangerous weapon, a gun, aggravated by wounding by discharging the gun; and, lastly, unlawfully using a motor vehicle, again with a circumstance of aggravation, namely using it for the purpose of facilitating the commission of an indictable offence.

The applicant pleaded not guilty to all of these charges and after a trial was found not guilty of murder but guilty of manslaughter, guilty of attempted armed robbery, although not guilty of attempted armed robbery with wounding, and guilty of unlawful use of the motor vehicle with the circumstance of aggravation.

The learned sentencing judge imposed terms of imprisonment of thirteen years for the manslaughter, eight years for the attempted armed robbery and six years for the unlawful use. All terms were ordered to take effect from the expiration of the deprivation of liberty of the applicant under the term of imprisonment imposed in New South Wales in October, 1991. That sentence was described in the criminal history sheet as a minimum term of six years commencing 26 June, 1990 with provision for an additional term of two years. The applicant had been taken into custody on 26 June, 1990 in respect of the offence for which he was sentenced in October, 1991. The offence was stated as threatening to use on 26 June, 1990 an offensive weapon, a loaded nine millimetre Luger automatic pistol, with intent to prevent or hinder the lawful apprehension of himself. The sentencing remarks of the New South Wales District Court judge were made available to this Court on the hearing of the appeal and the following account appears. The applicant had stolen a motor vehicle and subsequently been seen by police officers on patrol. A chase at high speed followed until the applicant's car was brought to a halt by collision with a retaining wall. The applicant and a companion then ran from the car but were pursued and the companion was caught by police. The applicant returned, raised the Luger pistol and pointed it at one of the police officers demanding that his companion be released. Another police officer intervened and the applicant threatened to kill both officers. In a moment of confusion the applicant was disarmed and after a violent struggle he and his companion were apprehended. The Luger pistol was found fully cocked with a round in the breach and seven rounds in the magazine.

In imposing sentence the New South Wales judge was asked to take into account a number of other offences committed within the period shortly before the offence of threatening to use the offensive weapon was committed on 26 June, 1990. There were some five offences of breaking, entering and stealing, stealing a motor vehicle and then further offences involved in the episode of the chase and apprehension on 26 June, 1990. The judge considered that the seriousness of the matters before him and the applicant's previous criminal history did not entitle him to extend any leniency whatsoever. It was in these circumstances that a "minimum" term of six years to run from 26 June, 1990 was imposed on 22 October, 1991.

The offences with which this Court is concerned took place at an earlier time when the applicant was eighteen years of age.

On 7 April, 1986 the applicant, armed with a loaded sawn-off rifle, made his way into a Brisbane City Council bus depot and demanded money from a Council employee, a cashier, who was located in an area enclosed by a grille. While the applicant was demanding the money another Council employee approached and was killed when the loaded rifle in the applicant's possession was discharged.

After the deceased had been given his fatal wound the applicant fled and no money was in fact taken. As it turned out the applicant was not questioned by police in connection with the events of April, 1986 until July of 1989. He at first denied involvement but later made admissions which were recorded.

At the time of the robbery attempt the applicant had been at large having failed to appear in connection with certain breaking and entering charges. Being in need of money he approached an acquaintance, Stevens-Power, who had a criminal history. The applicant inquired if there was any opportunity, whether legal or not, which would bring some money. The armed robbery of the bus depot was then suggested. The plan which was formed involved working in conjunction with another person, Mann, an ex employee of the Council who was able to provide a plan of the bus depot. A further person, Hines, provided the gun for which he was to receive $500. The applicant, Stevens- Power and Mann were to share evenly in the remaining proceeds. The applicant prepared for the event in advance by taking a car about one week before, then purchasing a balaclava and equipping himself with the gun. To carry out the robbery he waited until a time when the depot was almost deserted then he entered and made his way to the cashier's screened area. With the weapon in a loaded state he pointed it at the cashier and demanded that he open the safe. Unfortunately at this time the deceased came upon the scene and said something which attracted the applicant's attention. The gun was discharged and the deceased was shot at point blank range. The applicant's subsequent claim was that he had loaded the rifle beforehand in case it was necessary to frighten someone and it was accidentally and not deliberately discharged. After the robbery attempt the applicant joined Stevens-Power at a pre-arranged meeting place and drove with him to the Gold Coast. On the way he threw the rifle into the Logan River.

The maximum term of imprisonment for manslaughter is life, for attempted armed robbery fourteen years and for unlawful use of a motor vehicle with the relevant circumstance of aggravation ten years.

Two of the applicant's co-offenders pleaded guilty and were dealt with in April, 1990. Hines who supplied the gun knowing it was to be used in a robbery was sentenced to eight years imprisonment. Stevens-Power was substantially involved in the preliminary arrangements and had also assisted the applicant's escape after the robbery and was to receive what was expected to be a greater share of the proceeds than Hines. He was given a head sentence of eleven years imprisonment. He had already spent twelve months in custody on remand, so that if the usual approach to assessment is made, he can be regarded as having received the equivalent of a thirteen year sentence. It was recommended that he be considered for parole after five years.
Mann, following a trial, was convicted of manslaughter and sentenced to a term of imprisonment of six years.

When the applicant was being sentenced the Crown prosecutor, pointing to the extent of his involvement, submitted that he should receive a greater sentence than that imposed upon Stevens-Power and also that whatever sentence was imposed it should be made cumulative upon the minimum sentence of six years imposed in Sydney in October, 1991 commencing from June, 1990. Since this minimum term would expire in June, 1996 it had some three years and nine months to run from the date in September, 1992 when the learned sentencing judge imposed the present sentences.

The applicant had an extensive criminal history. It commenced with breaking and entering offences in 1985. Later, in that same year on convictions for stealing, breaking and entering and unlawful user he was sentenced to his first custodial term, one of six months to be served in conjunction with a three year period of probation. The full picture over the years shows that on various occasions he has been ordered to perform community service, placed on probation and sentenced to custodial terms. Until the New South Wales sentence was imposed in October, 1991 the longest of those terms was one of three years imposed in September, 1989. Overall, he had, prior to September, 1992, been sentenced on about twenty charges of breaking and entering or attempted breaking and entering distributed over four occasions. There were also breaches of the Bail Act and of community service and probation orders. In March of 1990 he escaped from the Woodford Correctional Centre.

After he was sentenced in New South Wales in October, 1991 he was returned to custody in Queensland under the provisions of the Prisoners (Interstate Transfer) Act 1982. When he was sentenced on the present charges the time he had already spent in custody could not be attributed to them.

After paying regard to the criminal history the learned sentencing judge in the present case concluded that the applicant was a continuing danger to the community and he thought that there did not appear to be any call for lenient treatment. The judge noted that the applicant had received a difficult upbringing. It was said that the applicant had settled well into the programmes offered in correction centres while he was in New South Wales and had made conscientious efforts and was regarded as being highly motivated. The applicant was only twenty-four years of age when sentenced.

In contrast with the submission made by counsel for the Crown, defence counsel requested that any sentence imposed should not be made cumulative on the existing term.
The judge correctly noted that the New South Wales six year minimum term commencing in June, 1990 could not have taken into account the Queensland offences with which we are concerned because the applicant, when sentenced, had not been convicted in respect of them. The Crown submission that cumulative terms were appropriate in the present case was said to be based both on a need for adequate punishment and on the fact that the New South Wales offences took place four years later and were unrelated.

The sentencing judge took into account factors which might be thought to call for some amelioration of the term otherwise appropriate. These factors included the delay in sentencing the applicant for crimes committed as long ago as 1986 (even though the delay was largely due to his own actions principally his escape from custody) and included also the approach to rehabilitation demonstrated while the applicant was in custody in New South Wales. The judge said that apart from these factors he would have regarded a sentence of the order of fifteen years as appropriate. As it was he said he looked to the sentence imposed upon the co-offender, Stevens-Power, as providing a basis for comparison equivalent in its effect, as he said, to a term of some twelve or thirteen years. The result was that the judge imposed the terms of thirteen, eight and six years which have already been mentioned. These terms, as amongst themselves, were made concurrent. In their practical effect, the lesser terms are not of the same significance as the term of thirteen years and may be put to one side for the moment.

After he had considered appropriate terms for the sentences, the sentencing judge, as a separate issue, turned to consider whether those terms should be made cumulative upon the New South Wales sentence currently being served. It is clear that the judge considered this aspect to be a separate issue for attention after the thirteen year term and the two lesser terms had been decided on because, having fixed those terms, he said, "This leaves the difficult question of whether the sentences should be served cumulatively on the sentence you are presently serving.".

In approaching his task in the way that he did and, difficult though the matter was, it became highlighted that the judge was considering a rigid choice between two alternatives, one a term of thirteen years from June, 1996, i.e. one which looked to an overall expiry date almost seventeen years into the future, and one of thirteen years to run from the date of his sentencing orders, i.e. one almost four years shorter in its effect. On the face of things it seems a little strange that in deciding what sentencing requirements were called for in the circumstances the judge should have regarded himself as confronted by such a starkly divergent choice of alternatives.

In Mill v. The Queen (1988) 166 C.L.R. 59, a case to which our attention was directed, the High Court considered the feature which has become known as the "totality" principle. The Court had to deal with the case of a person who had to be sentenced in one jurisdiction having already been sentenced in another for an offence of the same nature committed at about the same time. The exact situation in the present case is of course different because the New South Wales offence which resulted in the imposition of the six year minimum term was committed more than three years after the relevant Queensland offences and was not related to them. However, it is correct to say that any sentence which a court imposes should take into account the circumstance of the particular case and if a person who has to be sentenced is already serving a lengthy term, then the imposition of a further term imposed cumulatively needs careful consideration. A term which, because it is ordered to be served cumulatively, does not begin to run until some date well into the future, can have an extremely onerous and perhaps unduly onerous effect. The impact may be overwhelming in some cases.

To guard against the possibility of undue impact the total effect in the circumstances should not be lost sight of. In the present case, a term of thirteen years would not have been an insubstantial penalty if it had been imposed at the time when the offence of manslaughter was committed in 1986, but the weight and effect of a term of that length was compounded to some extent by the delay which events caused to be intruded and particularly by the fact that it was ordered to be served cumulatively upon the New South Wales term which, if it ran its full course without further addition, would not end until June, 1996.

In Queensland at the relevant time s. 20 of the Criminal Code governed relevant aspects of sentencing. Under that section a single term could not be ordered to be cumulative only in part upon another term already ordered to be served and also a term could not be ordered to run from a date earlier than the date of sentencing. If the choice for a sentencing judge is between on the one hand imposing a concurrent head sentence which on its face seems excessive but is selected to ensure that a sufficient penalty is ordered in addition to another sentence already ordered and, on the other, imposing a cumulative term which, if its length were considered separately, might appear inadequate for the offence, then there are obvious difficulties.

The judge in the present case, having in mind the circumstances of the offence and the length of the term already imposed upon the co-offender, Stevens-Power, clearly thought that a term of thirteen years running from the date of the order he was making, namely September, 1992, would not be adequate because the additional penalty component would only be about nine years: the first four years in custody would be spent satisfying the requirements of a sentence imposed for a totally unrelated offence. In the end the judge seems to have responded largely to the pressure of this consideration. It is true that his approach had to be tailored to take into account the limited sentencing options available but it remained a requirement that he keep in mind the possibility that he might be imposing a disproportionate sentence for the totality of the conduct involved in the Queensland 1986 offences and the New South Wales 1990 offence. Sometimes a course which will obviously justify itself from every point of view may not be available to a sentencing judge having in mind his sentencing options: cf. Mill v. The Queen (1988) 166 C.L.R. 59 at 67.

It is true that a broad discretion applies when a judge is giving consideration to a decision whether to impose consecutive or concurrent terms. Of course, if no special direction is given then the separate sentences which he pronounces will be concurrent: previously s. 20 of the Criminal Code and now ss. 155 and 156 of the Penalties and Sentences Act 1992. While the discretion as to the imposition of cumulative terms is broad, there are certain approaches which have gained acceptance. In The Queen v. Campbell and Brennan (1981) Qd.R. 516 at 524 it was said that it is important that the court should look for some clear reason why sentences should be served cumulatively in a particular case before so ordering and also should determine whether the resulting effective sentence is out of proportion to the combined seriousness of the offences (the "totality" principle). It also appears to be accepted that concurrent terms will usually be called for in the case of a series of related offences committed over a short time span. In other situations the court may be conscious of a clear and compelling need to visit an offence with a separate additional penalty. However, in many instances the judicial discretion may be at large and less restricted by particular principle. Still, a need for caution will always attend the matter to which attention was drawn in Campbell and Brennan (supra), viz. that an unjust excessiveness may be produced if care is not taken to assess the overall effect of the imposition of cumulative penalties.

Amongst the competing options which would have been in the mind of the judge in the present case were a term of thirteen years to run from the date of sentence, September, 1992 and a term of about nine years to run from June, 1996, that is, cumulative upon the New South Wales sentence already imposed. In practical terms, setting aside consideration of parole, their effect would have been the same but the judge may have felt that both would send the wrong "signal" to the community. Objectively considered, nine years might have appeared to him too light for this serious case of manslaughter and on the other hand it might appear inappropriate not to fix some clear and fully additional penalty for what was an unrelated offence. Instead of the two options referred to, the judge chose a term of thirteen years to run in effect from June, 1996. He did this by making a term of that length cumulative, that is, he chose to make an order which would result in a term being served equivalent in length to about seventeen years commencing from the date of his order.

It may be conceded that there would have been no obvious error in an effective term of thirteen years, that is, if it came into operation immediately and was fully attributable to the manslaughter offence. Considered as a bare term it would have stood in appropriate relativity with the broadly similar term imposed on Stevens-Power (allowing for remand time in that case). However, it appears that the combination of the selection of a term of thirteen years and the imposition of it cumulatively on the current New South Wales sentence had an excessive effect in the circumstances of this case. The conclusion should be reached that the judge allowed his options to be too rigidly confined by his initial separate determination of an objectively proper sentence for the manslaughter and his subsequent separate determination of the question whether the sentence, whatever it was, should be concurrent with the New South Wales sentence or cumulative upon it.

Considering all of the options again, the preferable way to proceed is to allow the decision to stand imposing cumulative terms but to make some reduction in effective length. If ten years is substituted for the thirteen year term for the manslaughter offence, an appropriate result would be achieved. There is no compelling need in that case to make any alteration in the length of the other two terms of eight years and six years respectively. This result gives sufficient weight to the judge's understandable view that the length of the Stevens-Power sentence should provide some measure of the penalty to be imposed and to his view that a cumulative penalty should be ordered but rejects a narrow, inflexible adoption of those factors in favour of a broader assessment which, with respect, pays greater regard to the impact of the effective penalty in the circumstances. It admittedly does not conform with the precise result argued for by counsel for the applicant who sought removal of the order that the sentences be served cumulatively upon the sentence already imposed in New South Wales but it does result in some reduction overall and best produces a practical and just result.

The application should be granted and the appeal against sentence allowed with the term of thirteen years imposed below set aside and a term of ten years substituted and the further terms of eight and six years respectively allowed to stand with an order that all three terms be served as amongst themselves concurrently but all to take effect from the expiration of the deprivation of liberty under the sentence imposed upon the applicant by the District Court in New South Wales on 22 October, 1991 now being served in Queensland under the Prisoners (Interstate Transfer) Act 1982.

THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 279 of 1992

Brisbane

Before The Chief Justice
Pincus J.A.
de Jersey J.

[R v. Clements]

T H E Q U E E N

v.

EARL SHANE CLEMENTS

(Applicant)

REASONS FOR JUDGMENT - PINCUS J.A.

J udgment delivered 25 June 1993

I have read and agree with the reasons prepared by the

Chief Justice.

The applicant was only 18 years of age when the offences in question were committed, in April 1986. A little over four years later he committed the offence in relation to the Luger automatic pistol which resulted in his being arrested and, ultimately, sentenced for that and other offences in New South Wales. The New South Wales sentence provided for a minimum term of 6 years commencing 26 June 1990; to that the learned primary judge added a Queensland sentence of 13 years.

The case, in my view, involves the principles discussed in Mill (1988) 166 C.L.R. 59. That case is considered to have reaffirmed the "totality" principle, described in Griffiths (1989) 167 C.L.R. 372 at 381 as "appropriate to a series of related offences committed in a short period". In Larsen (1989) 44 A. Crim R. 121, Badgery-Parker J., in a judgment with which the other members of the New South Wales Court of Criminal Appeal agreed, dealt with the scope of the principle of Mill and that of Todd (1982) 2 N.S.W.L.R. 517, discussed in it. His Honour remarked :

"It is by no means self evident that the principles expressed in these cases are directly applicable here. In Todd all of the New South Wales offences and the

Queensland offence occurred in the space of only a couple of months. In Mill all of the offences occurred within a period of about six weeks. In each the court was specifically concerned with the problem of sentencing where crimes closely related in time and in nature are committed in more than one State or Territory (see at 62; 469). Here the facts are very different...However, the principle of totality must always inform the sentencing process when a prisoner comes to be sentenced for an offence at a time when he is already serving another sentence. When cumulative sentences are to be imposed, the appropriateness of each sentence has to be assessed by having regard to the ultimate aggregate sentence that results from the adoption of that course of action. The totality of the sentence imposed on the offender must bear a proper relationship to the overall criminality involved in the various offences being dealt with..."

I respectfully agree. In my opinion the totality principle is capable of application to a matter such as this where there was a substantial gap in time, namely four years, between the two groups of offences. The circumstances that the appellant was serving terms of imprisonment for one group of offences when sentenced for the other made it necessary to consider whether the whole of the punishment was appropriate. This is not to say that in every case the totality principle would require that the prisoner be given a lesser sentence for the second offence or group of offences than would otherwise have been appropriate; the question must always be whether the total is proper.

I agree that in the circumstances of this case the principle requires that the Queensland sentence of 13 years be reduced and that the matter should be disposed of as is proposed by the Chief Justice.