R v Collins

Case [1998] QCA 280
IN THE COURT OF APPEAL [1998] QCA 280
SUPREME COURT OF QUEENSLAND

C.A. No. 238 of 1998

Brisbane

[R. v. Collins]

THE QUEEN

v.

PAUL COLLINS

(Applicant)

_______________________________________________________________________

McMurdo P.
McPherson J.A.

Ambrose J.

_______________________________________________________________________

Judgment delivered 18 September 1998

Separate reasons for judgment of each member of the Court, McMurdo P. dissenting

_______________________________________________________________________

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.

________________________________________________________________________

CATCHWORDS: SENTENCING - armed robbery - declaration of conviction of
serious violent offence - sentencing judge’s discretion where 5-
10 years sentence imposed
R. v. Hanzisavvas [1981] Qd.R. 74

R. v. Lennard [1984] 1 Qd.R. 1

Corrective Services Act 1998, s. 166
Corrective Services Regulations
Penalties and Sentences Act 1992, s. 161B, s. 157, s. 161, s. 9
Penalties and Sentences (Serious Violent Offences)

Amendment Act 1997

Counsel:  Mrs D. Richards for the applicant
Mr T. Winn for the respondent
Solicitors:  Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent
Hearing Date:  25 August 1998

REASONS FOR JUDGMENT - McMURDO P.

Judgment delivered 18 September 1998

1        This is an application for leave to appeal against a sentence imposed in the District Court in Maryborough on 22 June 1998. The applicant pleaded guilty to unlawful use of a motor vehicle with a circumstance of aggravation (count 1) and armed robbery (count 2).

2 He was sentenced to seven years’ imprisonment on the armed robbery offence and was declared to be convicted of a serious violent offence pursuant to s. 161B(3) of the Penalties and Sentences Act 1992 (“the Act”). The effect of this declaration is that he must serve at least 80 per cent of that sentence before becoming eligible for release on parole; he is not eligible for any remission of his sentence and no early recommendation for parole can be made: see s. 166(1)(c)(i), Corrective Services Act 1988.

3        There is no complaint in respect of the sentence imposed of two years’ concurrent imprisonment for count 1.

4        The applicant claims the sentence was manifestly excessive and that the declaration of conviction of a serious violent offence was unwarranted.

The facts

5        The applicant is 32 years old. His criminal history, although two and a half pages in length, was not as serious as it first appeared. Many of the entries were traffic matters, although it is worth noting he had breached a number of fine option orders in respect of them. In 1984 he received 12 months’ probation for an offence of unlawful use of a motor vehicle and in 1990 received 40 hours’ community service for a stealing offence. He therefore had only two convictions for dishonesty, the last in 1990 for an offence committed in October 1989, about eight and a half years prior to the commission of this offence. He had no prior convictions for violence.

6        The circumstances of the offence were serious. On 12 February 1998 the applicant and his girlfriend and co-accused Johnson (who has not yet to the knowledge of this Court…

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R v Collins [1998] QCA 280
Case
[1998] QCA 280
Decision Date

CaseChat Overview and Summary

The case of R v Collins was heard before the Supreme Court of Queensland’s Court of Appeal. The applicant, Paul Collins, sought leave to appeal against a decision made in a lower court. The central issue in this appeal was the interpretation and application of specific provisions within the Penalties and Sentences Act 1992 and the Corrective Services Act, particularly regarding the declaration of serious violent offences and its implications for parole eligibility and remission of sentence. The appeal questioned whether the trial judge had the authority to make such a declaration and the extent to which this declaration affects the severity of the sentence imposed.

The Court of Appeal meticulously examined the statutory provisions at hand. It noted that Section 161B(3) of the Penalties and Sentences Act allows a sentencing court to declare an offender convicted of a serious violent offence as part of their sentence, provided the offence was against a provision listed in the Act’s Schedule and the sentence imposed is between five and ten years imprisonment. This declaration has significant consequences under Section 166(1) of the Corrective Services Act, which stipulates that a prisoner serving a term for such an offence is not eligible for parole until 80 per cent of the sentence has been served. Additionally, Section 161D renders the offender ineligible for any remission of the sentence. The Court considered these statutory mandates and their impact on the overall severity of the sentence.

The Court of Appeal held that the making of such a declaration is indeed part of the sentence, as it significantly lengthens the period of incarceration by making the prisoner ineligible for parole until a substantial portion of the sentence has been served, and by abolishing any entitlement to remission. The Court further reasoned that historically, the date of parole eligibility has been regarded as a factor affecting the severity of the sentence, and any judicial recommendation for parole eligibility is part of the sentence. The Court also highlighted that while the sentencing judge no longer has the power to reduce the parole eligibility period to less than 50 per cent of the term for serious violent offences, the judge can still make a recommendation for postponement beyond the halfway mark if warranted by the circumstances. The Court concluded that such a recommendation, if made, would form part of the sentence and could be appealed on the grounds of being manifestly excessive.

The Court ultimately refused the application for leave to appeal, finding that the trial judge's declaration was within their statutory powers and appropriately considered the consequences outlined in the relevant legislation.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

AMBROSE J
I would refuse the application for leave to appeal. IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND C.A. No. 238 of 1998 Brisbane Before McMurdo P. McPherson J.A. Ambrose J. [R. v. Collins] THE QUEEN v. PAUL COLLINS (Applicant) REASONS FOR JUDGMENT - Judgment delivered 18 September 1998 1 I have had the advantage of reading draft reasons for judgment of the President and those of McPherson J.A. Those reasons together canvas in detail the facts relevant to the issue on appeal and as well set forth the terms of the relevant legislation. 2 It is unnecessary and would be unhelpful for me to re-state those matters. I will therefore merely consider the relatively short points argued upon appeal which have been canvassed at some length by the other members of this Court. 3 Section 161B(3) of the Penalties and Sentences Act 1992 gives a sentencing court a discretion to “declare the offender to be convicted of a serious violent offence as part of the sentence”, where the offender is convicted on indictment of an offence “against a provision mentioned in the ‘Schedule’ to the Act” and the sentence imposed is more than five but less than ten years imprisonment. 4 The consequence of such a declaration being made is to be found in s.166(1) of the Corrective Services Act which provides that a prisoner serving a term of imprisonment for “a serious violent offence” (presumably so declared as part of the sentence) of more than five but less than ten years imprisonment is not eligible for release on parole until 80 per cent of the term of imprisonment imposed has been served. 5 A further consequence of the making of a declaration is that under s.161D the offender becomes ineligible for any remission of the sentence. 6 If a sentencing judge in the exercise of his discretion declines to declare the offender to be convicted of a serious violent offence then under s.166(1)(c)(i) of the Corrective Services Act 1988 the offender will become eligible to apply for parole after 50 per cent of his sentence has been served and he will also of course be “entitled to” or at least eligible for remission of part of his sentence under Part 3 of the Corrective Services Regulations 1989. 7 Having regard to the consequences of making a declaration that an offender is convicted of a “serious violent offence” it is not surprising that the making of such a declaration is treated as “part of the sentence” under s. 161B(3). If such a declaration is made the effect will be to make the sentence of imprisonment imposed for that serious violent offence significantly more onerous than it would otherwise be. While it may be by no means certain that parole will be granted to an offender upon application made when he first becomes eligible to do so, or indeed upon one made long after he has become eligible to do so, nevertheless to lengthen the period of eligibility by 30 per cent of the length of the sentence clearly increases its severity. Similarly the abolition of any entitlement to remission also significantly increases its severity. 8 For many years in imposing sentences this Court, as did the Court of Criminal Appeal, has regarded the date when an offender becomes eligible for parole as a factor affecting the severity of the sentence. 9 In Hantzisavvas [1981] Qd.R. 74 the Court of Criminal Appeal upon a sentence appeal varied the sentence by recommending that the applicant be considered for parole after the expiration of a shorter period than that fixed by the sentencing Judge. The members of that Court held that a sentence included not merely the custodial term imposed but also the recommendation for parole engrafted upon it which affected eligibility for release from custody under the sentence. 10 In R v. Lennard [1984] 1 Qd.R. 1 the Court of Criminal Appeal held that in making a recommendation for eligibility for release on parole, a sentencing Judge had a discretion to recommend that the offender be released at a time earlier than or later than half way through the custodial term imposed. Under s. 157(7) of the Penalties and Sentences Act a sentencing Court no longer has power to reduce the period for eligibility for parole to less than 50 per cent of the term of imprisonment imposed when the offence involved is “a serious violent offence” as defined. 11 For many years now it has been assumed that if the circumstances of a case warrant, it is possible for a sentencing Judge to make an order that an offender become eligible for parole only after serving perhaps 60 per cent or more of the sentence; of course the length of effective postponement of eligibility has been constrained to some extent by any remission of sentence which might be obtained. 12 If such a recommendation for postponement of eligibility beyond the half-way mark in service of a sentence were made, it would clearly be part of the sentence and an offender could seek leave to appeal against such a recommendation on the basis that it rendered the sentence “manifestly excessive”. 13 Up to the present time it has not been within the power of a sentencing Judge to make any order having effect on any entitlement to remission of part of the sentence (for good behaviour etc). The power to grant remission has traditionally been regarded as being within the administrative powers of the Community Corrections Board and designed to assist in the administration of the prison system. 14 Part 9A of the Penalties and Sentences (Serious Violent Offences) Amendment Act 1997 however, gives a sentencing Judge a discretion to make a declaration which will have the effect of -

Ratio Decidendi

Legal Principle Established

Established by: AMBROSE J

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