R v Coss

[1995] QSC 69

THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 262 of 1994

Brisbane

Before Macrossan CJ

Pincus JA

Thomas J

[R v. Coss]

THE QUEEN

v.

MICHAEL JOSEPH COSS
  Applicant

Judgment delivered 15/03/1995

Separate Reasons for Judgment of each member of the Court;  the Chief Justice and Thomas J. concurring;  Pincus J.A. dissenting in part.
______________________________________________________________________

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED.  SENTENCES BELOW SET ASIDE AND REPLACED WITH TERMS OF EIGHT YEARS IMPRISONMENT EACH, TO BE SERVED CONCURRENTLY WITH ONE ANOTHER BUT CUMULATIVE UPON THE NINE YEAR TERM IMPOSED IN 1988.  RECOMMENDATION FOR PAROLE ON 16 JUNE 1999.
______________________________________________________________________

CATCHWORDS: CRIMINAL LAW - Sentence - armed robberies committed while on home detention - totality principle - pre-sentence custody - application of s. 157 Penalties & Sentences Act - parole eligibility.

Counsel:Mr J L Hutton for the applicant.

Mrs L Clare for the respondent.

Solicitors:P S Russo & Associates for the applicant.

Director of Prosecutions for the respondent.

Hearing date:    31 January 1995.

REASONS FOR JUDGMENT - THE CHIEF JUSTICE

Judgment delivered 15/03/1995

The issues which arise for consideration in this appeal appear in the reasons of Pincus JA and Thomas J which I have had the advantage of reading.
           The two robbery offences dealt with by the judge below occurred in July of 1993 and in respect of them on 16 June of 1994 he imposed sentences of 10 years cumulative upon sentences the applicant was then currently serving. He added a certain recommendation for parole consideration but the effect of that portion of his order was not, in the circumstances, entirely clear.  However, it is unnecessary to examine that particular difficulty further because on 7 October 1994 the same judge dealt with the matter again by making a fresh parole recommendation in terms that the applicant should be "considered for parole from 16 December 2000". 
           The earlier sentences which the applicant was currently serving on 16 June 1994 were two terms of nine years imposed on 21 October 1988 also for robbery, but there was no specific parole recommendation then ordered.  The applicant found the opportunity to commit the two subsequent offences of July of 1993 whilst on home detention.   We were informed that although the halfway point of the nine year terms would have been reached on 21 April 1993 no parole had been granted, nor apparently applied for at the time of the subsequent offences. 
The result of the applicant's home detention status at the time the subsequent robberies were committed was that the applicant should have been regarded as having been in custody at that time. Accordingly, in June 1994 when he was dealt with again he could not, within the words of s.161(1) of the Penalties and Sentences Act 1992, have been regarded as having been "held in (prior) custody in relation to proceedings for the subsequent offence(s) and for no other reason", that is for the period of eleven months or so prior to June 1994. It is accepted that the judge in these circumstances incorrectly regarded the offender as being within the ambit of s.161. This feature alone would attract the scrutiny of this Court although the consequences of the judge's mistaken view are not altogether clear. However, the principal feature calling for this Court's attention is the parole recommendation date of 16 December 2000 which the judge ordered accompanying his order with the observation that it did not place "any extra on (the applicant) than would have been the case under the general law".
           Both counsel before us were unable to indicate the steps by which the judge could have arrived at the date of 16 December 2000 and his reason for thinking that the "general law" would have provided a parole date no earlier than that.
The relevant general provisions are now found in s.166 of the Corrective Services Act 1988 taken in conjunction with the definition of "term of imprisonment" in s.10 of the same Act. The result under that legislation in a case like the present is that if a sentencing court does not make a particular recommendation for parole release eligibility an automatic eligibility point arises halfway through the term imposed. Where more than one sentence is imposed on the one occasion and especially when cumulative terms are imposed, some additional calculation may be required to determine the point at which the prisoner will have served half of the term of imprisonment. The definition of "term of imprisonment" in s.10 indicates how this point is to be determined but for the reasons later mentioned there is cause to think that the effect of the prescribed calculation will not be satisfactory in all circumstances. The approach enshrined in the s.10 definition may have been prompted at least in part by the exposure of problems under corresponding earlier legislation: see R v. Mann [1989] 2 Qd.R. 61.
           Pincus JA in his reasons in this case has helpfully devoted attention to the "totality" principle as applied in sentencing, that is the principle that the sentencing court should concern itself with the overall criminality of a relevant range of criminal behaviour when it comes to sentence for one or more of the offences comprised within it.  The utility of a sentencing judge's keeping in mind the totality principle when he sentences in circumstances which admit reference to it will be readily accepted, but while the principle encourages a desirable check to ensure justice in sentencing, it leads to no precise result.  The full range of circumstances in which the principle may apply has not been comprehensively delineated but certain classes of cases in which reference has been made to it appear in the reasons of Pincus JA.  The courts have applied the principle when an offender is currently serving a sentence imposed in one court and comes to be sentenced afresh in another, perhaps in a different jurisdiction, (cf. R v. Mill) (1988) l66 C.L.R. 59 and also where a number of offences fall to be dealt with together on the one sentencing occasion. I am prepared to accept that it would have been appropriate to have some recourse to the principle of totality when the judge came to sentence here in June 1994. However, a particular matter not to be overlooked and which can be precisely stated was simply the effect, in the circumstances, of the imposition of a substantial cumulative sentence with its commencement delayed as was the case here. This is the sort of problem which received attention in the judgments in R v. Clements (1993) 68 A.Crim.R. 167.   Some concern arises in the present case that the ten year cumulative terms may be overly long.
           In arguing the present appeal, counsel for the appellant did not make submissions against the length of head sentences imposed, that is ten years in each case made cumulative upon the terms currently being served.   For this reason the court would not, prima facie, feel called upon to give close attention to the effective length of the head sentences but if for other reasons it becomes necessary to interfere, it can be accepted that the whole effect of the sentences will become more widely open for consideration.  Here, the apparent errors in the sentencing approach identified by Pincus JA and Thomas J, require us to consider the matter afresh.   As already mentioned it is accepted that the judge incorrectly took into account in some fashion the period spent by the applicant in prior custody as wholly attributable to the present offences.  Also, in calculating a parole eligibility date he compared it with what he regarded as one applicable under the general law, but counsel could not, in terms of his declared approach, justify the date selected. 
           As appears from the reasons of Thomas J, if a cumulative term is imposed upon a term currently being served and the matter of parole eligibility is left to be governed by the automatic halfway provision, then a result which can be fairly described as unexpected and indeed anomalous, can follow.  If the further cumulative term is imposed during the course of an earlier term being served and before its halfway point is reached, then there will be some effect under the formula in delaying eligibility as a result of the cumulative term. If, however, the additional cumulative term is imposed at some point in the second half of a sentence currently being served, then the automatic halfway formula actually ameliorates the prisoner's situation by producing an eligibility date earlier than would result from the imposition of a concurrent term of the same length commencing at that time.  A common objective in imposing a cumulative term is to achieve the result that the effective head term will be longer than would result from a concurrent term of the same length but under the automatic formula it can go hand in hand with an eligibility date which is actually earlier.  
           In the present case there are no clear indications that the sentencing judge actually intended to select an eligibility date later than the halfway point of the total sentence calculated in accordance with the procedure indicated by the definition in s.10, (i.e. April 1998, which is nine and a half years after October 1988).  On the other hand, there is no reason in this case why a date as early as the halfway point of an appropriate concurrent sentence starting in June 1994 should be ordered.  I am persuaded by the suggestion of Thomas J that in the circumstances the application should be granted and the appeal allowed, substituting a head sentence of eight years cumulative in each case in lieu of the ten specified below and nominating 16 June 1999 as the parole eligibility date.
This case shows two things. First that a sentencing judge would be wise to consider carefully the result he intends and specify a precise date for eligibility in a case of any complication as for example when cumulative sentences are involved. Second that the automatic eligibility date provisions under the Corrective Services Act in their application to cumulative terms would benefit from further legislative attention.

REASONS FOR JUDGMENT - PINCUS J.A.

The applicant was convicted in 1994 of two offences of armed robbery and seeks leave to appeal against the sentences imposed.  It is common ground that the sentencing orders contain errors which require correction.  It is, however, desirable to deal with the matter in some detail, because there is room for differences of view as to what orders should replace those made below. 

The applicant was convicted of two robberies in 1988 and sentenced on 21 October 1988 to 9 years imprisonment.  In 1993, while on home detention, he committed two further robberies and was sentenced to a further 10 years imprisonment cumulative upon the 9 years.  The issues raised by counsel have to do with the primary judge's recommendation as to parole and his Honour's treatment of pre-sentence custody, both of which appear to have been affected by mistakes, in calculation or otherwise.  There is also a question whether the total accumulated sentences of 19 years are excessive having regard to the "totality" principle;  it is perhaps desirable to deal with this first;  it received little discussion at the hearing. 

If the sentences stand then, subject to remissions and to the possibility of being paroled for these four robberies (two committed in 1988 and two in 1993), the applicant will serve imprisonment beginning at the age of 41 and ending, at the latest, at the age of 60.

The first point requiring discussion is the scope of the totality principle.  It certainly applies where a Queensland court has to sentence a prisoner who has completed a term of imprisonment imposed in another jurisdiction for a further offence, committed about the same time as the Queensland offence, as in Mill (1988) 166 C.L.R. 59. There, the appellant committed three armed robberies, two in Victoria and one in Queensland, within a fairly short space of time. In 1980 he was imprisoned for 10 years in relation to the Victorian offences. In 1988, after release on parole in Victoria, he was sentenced to a further 8 years in Queensland. The High Court allowed an appeal and remitted the matter to the Court of Criminal Appeal, which reduced the 8 year sentence to 3 years (unreported, 7 February 1989).

The totality principle is not confined to cases in which sentences are imposed in different jurisdictions;  that can be deduced from a number of aspects of the reasons given in Mill:  in particular, from the passage quoted at the top of p. 63 and the approving reference to Knight (1981) 26 S.A.S.R. 573. It should also be noted that the passage quoted in the High Court at p. 64, from Todd (1982) 2 N.S.W.L.R. 517, expressly extends the principle further than interstate sentencing. But there is nothing in Mill itself to give any support to the view that the totality principle, requiring that consideration be given to the length of sentence likely to have been imposed if all the offences had been dealt with at once, applies to offences committed years apart. 

Cases of that kind have, however, been discussed in appellate courts.  In Larsen (1989) 44 A.Crim.R. 121 at 126, in the principal judgment, that of Badgery‑Parker J., consideration is given to the question whether the totality principle can be applied where the offences were not closely related in time.  There the New South Wales Court of Criminal Appeal had to deal with an old (1983) offence, following the commission of which the applicant had committed further offences, in 1985 or 1986, in another State.  The applicant was sentenced for the 1983 offence in 1988, while still serving terms of imprisonment for the offences committed in 1985 or 1986.  After referring to Todd and to the facts of the case Badgery-Parker J. said:

"The present offence is not 'closely related in time' to the Western Australian matters.  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...must bear a proper relationship to the overall criminality involved in the various offences being dealt with... A sentencing judge who orders terms of imprisonment to be served cumulatively must examine the aggregate penalty imposed and make such reduction as appears necessary to reflect the totality of the criminality involved in the offences... These principles are applicable whether the successive sentences are being imposed by the one court at the one time or by different courts at different times". (emphasis added)

Mill and Larsen received some consideration in this Court in Clements (1993) 68 A.Crim.R. 167.  There, the applicant was sentenced in 1992 for Queensland offences committed in 1986, at a time when he was already serving a sentence for offences committed in New South Wales in 1990;  there was a 4 year gap between the two batches of offences, comparable with the present case.  In the principal judgment, that of the Chief Justice and de Jersey J., after referring to the factual differences between the circumstances of Clements and those of Mill, their Honours remarked:

"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 other judgment in Clements, approving reference was made (174) to remarks from Larsen, quoted above.

A similar approach appears to have been taken in Western Australia.  In Mickelberg (1984) 13 A.Crim.R. 365, the Court of Criminal Appeal of that State had to consider cumulative sentences imposed in relation to quite unrelated offences. The offences immediately under consideration were held to be appropriate, considered in isolation (371, 372);  but because the Mickelbergs were already serving substantial sentences, it was held that the totality principle justified the reduction of those sentences, on the ground that "the prior sentences cannot realistically simply be ignored" (372).

The question whether the cumulative total of sentences here - 19 years - is excessive is one which I have found difficult and depends, as is said in Clements, on the circumstances of the case.  Before the applicant was 20 (he is now 48) he had committed a number of offences of stealing, breaking and entering and the like and he continued to offend while in his 20's.  By 1975 the applicant had been sentenced to a number of separate terms of imprisonment, but from then until 1988, although he continued to offend, there was, it appears, no offence serious enough to warrant imprisonment.  At the end of that 13 year period the two robberies were committed which produced the sentence of 9 years imprisonment mentioned above;  the details of them do not appear in the record.  With respect to the two 1993 robberies, committed on successive days, it appears that each was committed at a bank and involved the use of firearms. There was a co‑offender, one Hills;  the applicant was the instigator. 

The applicant was tried in relation to the first robbery committed on 5 July 1993, which was done by Hills, using a hand gun;  the applicant drove the get‑away vehicle and the object of the robbery was a bank. The second robbery committed on the next day, in respect of which the applicant pleaded guilty, was done by the applicant armed with a sawn-off rifle.  The applicant got out of a car driven by Hills and went into a bank, where he forced staff to supply him with money by using the rifle as a threat.  The total amount involved in the robberies was about $17,000.

All armed robberies are serious;  subject to that, these robberies might properly be described as ordinary, having no particular aggravating or mitigating factors.  Having regard to the applicant's record, and in particular to the 1988 offences it could not be said that a sentence of 10 years imprisonment on each count was, the totality principle aside, excessive.

Mention should be made, at this stage, of the judge's ancillary orders.  One, conceded to be erroneous, was that a period of 11 months and 10 days, which the applicant had served after being arrested on 6 July 1993, should be taken to have been served under the 10 year sentences.  The judge was given but scanty information relevant to the applicant's position under the 1988 sentences, being merely told that "for a period prior to 6th and 5th of July he was on home detention".  The applicant was eligible for parole on 21 April 1993;  it seems clear that he had not been paroled and it appeared to be suggested to the judge that he had not applied for parole, but that was left obscure.  In these circumstances, the declaration with respect to the period of 11 months and 10 days cannot be and has not been thought to be supported.

Then there is the question of eligibility for parole under the 1994 sentences.  On 16 June 1994 the judge recommended that the applicant be considered for parole "after serving a period of seven years of this sentence and the sentence that you are currently serving", the intended effect of which order is not very clear.  On 7 October 1994 the judge withdrew that and recommended instead that the applicant be considered for parole from 16 December 2000;  but after making that recommendation his Honour remarked:

"That doesn't place any extra on him that would have been the case under the general law..."

The law to which his Honour referred is s. 166 of the Corrective Services Act 1988, which makes the applicant eligible for release on parole, prima facie, after having served half "of the term of imprisonment to which the prisoner was sentenced". The expression "term of imprisonment" is defined in s. 10 of that Act so as to mean, in the present case:

"...the unbroken period of imprisonment a person is liable to serve by virtue of a number of sentences, whether ordered to be served concurrently or cumulatively and whether imposed at the same time or a different time...".

Adding the two sentences together, then, the applicant would, apart from any recommendation made by the Court, be eligible for parole after half of the total period of 19 years - i.e. on 21 April 1998.  The judge's recommendation deferred eligibility by about 2 years and 8 months, but it does not appear that his Honour intended that result.

It should not be assumed, in view of the applicant's conduct while on home detention, that he would be released on parole at the earliest possible date;  nor should any contrary assumption be made on that subject, which will be a matter for the relevant authorities when the time comes.  The proper head sentence is the problem.  The totality principle does not appear to have been a factor in the sentencing judge's approach;  in my respectful view it should have been given some weight.

I have already suggested that, considered in isolation, the 10 year sentences for the 1993 robberies were proper.  In fixing them his Honour was, correctly, influenced by the judgment of this Court in the cases of Hocking, McCarty and Stephenson, C.A. Nos. 218, 220 and 219 of 1993, (unreported, 16 December 1993).  It was pointed out during the hearing that in determining the head sentence the judge might conceivably have been influenced by the period of about a year he, wrongly, thought could be treated as having been already served;  but it is doubtful whether that would in itself justify any reduction in the 10 year sentence.

A useful starting point is to consider what might have been done if all four robberies had, whether or not committed about the same time, fallen to be considered together.  It is unlikely that so heavy a sentence as 19 years would have been imposed, particularly having regard to the fact that the applicant had not been given a term of imprisonment since 1975.  But the applicant's position is not closely comparable with a person being sentenced for all four together, principally because the second batch of robberies were committed while the applicant was on home detention, in the course of serving terms of imprisonment imposed for the first two.  This circumstance greatly aggravates the applicant's guilt, but does it do so sufficiently to justify a total period of 19 years?

I have concluded that it does not.  The impression gained is that the applicant is an amateurish offender. Although the applicant's ingestion of alcohol cannot mitigate his offences, it is perhaps the explanation of the relatively incompetent fashion in which the robberies were committed.  It appears to me that the Court has a freer hand when, because of the errors in the sentences which have been made, it is necessary that the applicant be re‑sentenced by this Court. In deference to the totality principle, I would somewhat reduce the head sentence, but so that the total would still remain a substantial term of 17 years, entitling the applicant to release, at the latest, in October 2005.

The question of a parole eligibility date in a case of this sort is a difficult one.  The subject robberies were committed some 11 weeks after the previous eligibility date, in July 1993, but sentencing did not occur, initially, until 16 June 1994 and was not completed until 7 October 1994;  these dates are in a sense fortuitous, being dependent upon such factors as the pressure of work in the courts and, as to the last date, upon a judicial change of mind rather than calculating the new eligibility date from either of them.  It appears to me convenient to fix a new date by reference to the old one - i.e. by deferring eligibility by a certain number of years.  If there had been pleas of guilty in respect of both the 1993 robberies I would have favoured a more lenient course, but in the circumstances of the present case I would defer eligibility to the date contended for on behalf of the applicant, i.e. to 21 April 1998.

REASONS FOR JUDGMENT - THOMAS J

I have read the reasons of  Pincus J.A. which set out the relevant circumstances and which propose consideration of parole on 21 April 1998.  I agree generally with his Honour's reasons, and in particular that it is necessary to examine the combined potential effect of the 1988 sentences and the present sentences imposed on 16 June 1994.   Whilst a head sentence of ten years would ordinarily be appropriate, one of eight years is preferable in order to avoid what could be regarded as an unduly oppressive combined effect.  However, in my view the proposed recommendation that he be eligible for release on parole on 21 April 1998 would result in the present sentences being too light.
           The learned sentencing Judge obviously misunderstood the applicant's status as a prisoner still serving an earlier term when he committed these offences.  He had already served more than half of the 1988 sentences and had chosen not to apply for parole.  He was thus in the category of persons recognised in R v. Griinke [1992] 1 Qd.R. 196, 198-199.

"Under the sentencing system currently in force in Queensland the benefit of remissions amounting to one-third of the prison sentence are generally obtainable.  This means that prisoners who do not relish the thought of the obligations that go with parole over the post-parole part of their sentence may choose to abstain from applying for parole.  Some prefer to serve the additional one-sixth of their sentence which occurs between the half and two-thirds points of the sentence rather than become subject to the very real obligations of parole."

If he had not committed these offences he would in the ordinary course on 21 October 1994 have been granted remission of the balance of the sentence and have been free of any further obligation with respect to it.  If he had then committed offences similar to the present ones he could have expected a sentence of not less than ten years' imprisonment with a non-parole period of five years.  The fact that he committed these offences before his existing prison sentence had expired and whilst he was being extended the benefit of home detention hardly entitles him to a sentence with a potentially lighter overall effect than he would have received in the situation just mentioned.   Courts are entitled, in the words of the learned sentencing Judge, to take a "dim view" of offences committed by persons who are supposed to be in prison, and it may be regarded as an aggravating factor suggestive of poor  rehabilitation prospects.
The present case affords a good example of a pitfall in setting a non-parole period. It seems that there was no existing date for consideration of parole, as the original date had passed, and he was probably, at the time of imposition of the present sentence, serving the balance of the original ten-year sentence having lost the benefit of remissions that he would otherwise have expected to obtain. It follows that this was not an occasion when s.157 of the Penalties and Sentences Act required the making of a "fresh recommendation" for parole (R. v. Doyle [1993] C.A. 454, 6 April 1994). However quite apart from any obligation under s.157, a sentencing judge needs to consider the point at which parole will be considered, and if the automatic half-way effect of s.166 of the Corrective Services Act seems inappropriate, to specify the appropriate non-parole period.  The pitfall may arise in cases where an offender is already serving a prison term and where it is intended to impose a cumulative sentence.  In cases where the offender has served less than half of the first sentence a prima facie reasonable result may be obtained if one adds together the old and the new sentence and specifies half of that as the new non-parole period.  However, in a case like the present where the first sentence has gone beyond its halfway point (apparently upon the offender's own choice) the application of such a formula will produce the result that he will have a parole eligibility less than halfway through the new sentence.  In other words, it can produce an artificial abatement with the effect that the overall result is too light.  Counsel for the applicant submitted that the appropriate result was specification of a new non-parole period namely 21 April 1998 which is the date that follows from adding the sentences together and dividing by two.  For the reasons just mentioned I do not think that is the correct solution to the present problem.
           It seems accepted that the present crimes of the applicant were committed in circumstances which would justify the imposition of a cumulative sentence, which in the ordinary course is  regarded as a harder form of sentencing than a concurrent sentence.  However, a parole eligibility date of 21 April 1998 is earlier than that which would result from a fresh sentence (of say ten years) which ran concurrently with the old sentences.  It would grant a parole eligibility on all sentences of less than four years from the date of sentence, and only six months after the actual commencing date of the cumulative sentence (21 October 1997).
           When the applicant committed the present offences he could not seriously have expected that if apprehended he would receive anything less than ten years and be required to serve five.  Leaving aside for the moment the possible effect of the time served between his earlier parole eligibility date (21 April 1993) and his date of sentence for the new offences (16 June 1994) it would be wrong to treat him any more leniently, either in prospect or overall,  than a person who had already finished his earlier sentence.  A sentence of ten years, with a halfway parole eligibility date of 16 June 1999 would seem appropriate in such a situation.
           So far as his imprisonment between April 1993 and June 1994 is concerned I do not think that this calls for any significant adjustment to the sentence, although it must not be lost sight of in viewing the possible maximum period of imprisonment that he might in fact serve when the new sentences are imposed.
           There are several ways by which a reasonable result might be obtained in the present matter.   One would be simply to impose a concurrent sentence of ten years with the same non-parole date, 16 June 1999.  This might be thought to err on the light side because any cumulative effect is lost, but it marks in my view the minimum response of the courts to the present situation.   Another would be by the imposition of a cumulative sentence of eight years and a specification of a new non-parole date, 16 June 1999.
           I would order that the sentences be set aside and replaced with terms of eight years imprisonment concurrent with one another but cumulative upon the nine-year term imposed in 1988;  and that he be eligible for consideration of parole on 16 June 1999.