R v Cutajar

[1995] QCA 570

IN THE COURT OF APPEAL	[1995] QCA 570
SUPREME COURT OF QUEENSLAND	C.A. No. 338 of 1995
Brisbane
Before	Fitzgerald P. McPherson J.A. Mackenzie J.
[R. v. Cutajar]

T H E Q U E E N

v.

JOSEPH CARMEL CUTAJAR Respondent

ATTORNEY-GENERAL OF QUEENSLAND Appellant

Fitzgerald P.
McPherson J.A.

Mackenzie J.

Judgment delivered 19/12/95
Separate concurring reasons for judgment by each member of the Court.

APPEAL ALLOWED. SENTENCE VARIED BY ORDERING THAT THE SENTENCES IMPOSED ON 15 JULY 1995 BE SERVED CUMULATIVELY UPON THE COMPLETION OF THE SENTENCE OF 7 YEARS IMPOSED IN 1990. FURTHER, IT IS RECOMMENDED THAT THE RESPONDENT BE CONSIDERED FOR PAROLE AFTER THE EXPIRATION OF 5½ YEARS FROM 13 JUNE 1995.

CONVICTIONS SHOULD BE RECORDED. THE PERIOD OF 42 DAYS SPENT IN CUSTODY BETWEEN 13 JUNE AND 25 JULY 1995 BE TREATED AS BEING IMPRISONMENT ALREADY SERVED UNDER THIS SENTENCE.

CATCHWORDS	CRIMINAL LAW - Attorney-General's appeal against sentence - Possession of heroin - Whether sentence should be served concurrently with sentence for previous offence - Whether this obscures the duration of the effective penalty being imposed.
Counsel:	M. Byrne Q.C. for the appellant K. McGuinees for the respondent
Solicitors:	Director of Public Prosecutions for the appellant Legal Aid Office for the respondent
Hearing Date:	3 October 1995

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 19/12/1995

The circumstances giving rise to this appeal are set out in the reasons for judgment of McPherson J.A. Subject to what follows with respect to pre-sentence custody and eligibility for release on parole, I agree with his Honour’s conclusion that a sentence of eight and a half years, cumulative on the respondent’s earlier sentence which he is still serving, was appropriate for the present offence and with his reasons for that conclusion. I add references to R. v. Kiripatea [1991] 2 Qd.R. 686 and R. v. Page and Renton (C.A. Nos. 115 and 99 of 1994, unreported, judgment delivered 13 July 1994) merely to draw attention to factors which have been considered material in fixing a further sentence in such circumstances.

Pre-sentence custody

The respondent was held in custody from his arrest on the present offence on 13 June 1995 until he was sentenced on 25 July 1995. That time does not count as time served under his sentence for the earlier offence because his parole was not cancelled until he was sentenced for the present office: Corrective Services Act, sub-s. 187(1). The sentencing judge held, correctly in my view, that the respondent spent the period from 13 June to 25 July 1995 in custody “in relation to proceedings for the [present] offence and for no other reason”: Penalties and Sentences Act, sub- ss. 158(1) and 161(1). Since, as has earlier been indicated, the sentence for the present offence should have been made cumulative upon, not concurrent with, the sentence for the earlier offence, the order which the sentencing judge made under s. 158 was inappropriate. However, there is no reason why the respondent should not have the benefit of s. 161; accordingly, it should be declared that the period which he spent in custody from 13 June to 25 July 1995, 42 days, is imprisonment already served under the sentence of eight and a half years’ imprisonment imposed for the present offence. Further, sub-ss. 161(3)(d) and (e) must be complied with.

Eligibility for release on parole

Under sub-s. 187(1) of the Corrective Services Act 1988, the respondent’s parole in respect of his earlier offence was automatically cancelled when he was sentenced for the present offence, and, by sub-s. 190(1), he is liable to serve a period of imprisonment equivalent to the period of the earlier sentence which had not been served when he was released on parole; a little less than three and a half years. However, under sub-s. 190(2), the Queensland Community Corrections Board may reduce the period of imprisonment which he is liable to serve for that offence. (If it were to do so, the cumulative period of imprisonment to which the respondent is to be sentenced on the present offence would presumably start from the expiration of the reduced sentence for the earlier offence.) Whether or not he also remains eligible for further parole in respect of that offence depends on the relationship between s. 191 of the Corrective Services Act and s. 157 of the Penalties and Sentences Act. Although s. 157 refers to recommendations with respect to eligibility for parole, broadly speaking what a court does under sub-ss. 157(2) and (3) is to determine the period after which an offender is eligible for release on parole in lieu of the period otherwise fixed by statute (see, for example, Corrective Services Act, ss. 165 and 166).

It has been decided that sub-s. 157(3)(a) of the Penalties and Sentences Act has no application when the court which sentenced the offender for the offence for which he or she is already serving imprisonment did not make a recommendation for parole: R. v. Doyle (C.A. No. 454 of 1993, unreported, judgment delivered 6 April 1994; followed R. v. Burton (C.A. No. 492 of 1994, unreported, judgment delivered 6 October 1995)); cf. R. v. Hocking, McCarty and Stephenson (C.A. Nos. 218,220 and 219 of 1993, unreported, judgment delivered 16 December 1993). Hence, a recommendation for eligibility for release on parole could only be made under sub-s. 157(2) in relation to the respondent’s fresh term of imprisonment (cf. sub-s. 157(3)(b)). Otherwise, the respondent’s eligibility for release on parole in respect of the present offence will arise under sub-s. 166(1)(b) of the Corrective Services Act after half the sentence of eight and a half years’ imprisonment imposed for this offence has been served.

If the respondent is required to serve the full period of imprisonment for his earlier offence, the additional period of imprisonment for his present offence will not start for another three years (or a little longer) and he will not be eligible for release on parole for more than four years after that. I agree with McPherson J.A. that, in those circumstances, the respondent should be given the benefit of a recommendation for earlier eligibility for release on parole under sub-s. 157(2) of the Penalties and Sentences Act, and that eligibility should arise two years after he commences serving his cumulative sentence for the present offence.

A difficulty with that course is that the period of imprisonment to which the respondent is sentenced in respect of his present offence has been reduced to recognise appropriate factors, including his cooperation and early guilty plea, and the only justification for a recommendation for early eligibility for release on parole is to ensure that the respondent’s eligibility is not unduly postponed if he serves the full period of his current imprisonment. If he does not do so, the foundation for a recommendation for early eligibility under sub-s. 157(2) of the Penalties and Sentences Act will vanish. The circumstances could be more satisfactorily dealt with by a recommendation under sub-s. 157(3)(a), but that course is not open because of the decision in Doyle.

Unsatisfactory though it might be, I consider that the Court should proceed on the assumption that the respondent will serve the full period of imprisonment which he is presently serving and recommend that, in respect of the present offence, he become eligible for release on parole after serving two years of his sentence of imprisonment for eight and a half years. Because of the decision in Doyle, the Court should not go further and fix a total period of imprisonment which the respondent must serve before coming eligible for release on parole in respect of both offences, or what is substantially the same thing, namely a date when he will become eligible for release in respect of both offences

The appeal should be allowed and the sentence of eight and a half years’ imprisonment in respect of the present offence made cumulative upon the period of imprisonment which the respondent is presently serving. The 42 days’ imprisonment which the respondent served from 13 June to 25 July 1995 should be declared to be imprisonment already served under his sentence for the present offence and other orders made as required by s. 161 of the Penalties and Sentences Act. Further, it should be recommended under sub-s. 157(2) of that Act that the respondent be eligible for release on parole after serving two years’ imprisonment under this sentence.

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered the 19th day of December 1995

This appeal by the Attorney-General is directed to what is said to be the inadequacy of the sentence imposed on the respondent in respect of various drug offences, including one of being in possession of a quantity of heroin in excess of 2 grams, to which the respondent pleaded guilty in the Circuit Court at Cairns on 25 July 1995. The amount of the substance was 25.7 grams which on analysis disclosed the presence of a quantity of pure heroin of 15.935 grams. Its street value has been estimated at $50,000 to $100,000.

The sentence imposed was 8½ years. That is said to be inadequate not only because of the commercial appearance which the possession of so large a quantity presents when taken with other circumstances in which the offences were committed, but because of the respondent's criminal record, and because the sentence now under review was made concurrent with an earlier sentence which the respondent was undergoing. At the time he committed the offences now before us he was on parole after serving half of a 7 year sentence of imprisonment imposed in 1990 for an earlier offence of possession of heroin. He was paroled on 11 March 1994, and at the time of this sentence had already received a warning from the Community Correctional Board for another, but relatively minor, drug offence committed after being granted parole on that date.

The respondent sustained his first conviction for a heroin-related offence in Bangkok in 1976, receiving a sentence of 4 years which he served in a Thai prison. In 1980 he was again convicted for offences, including importation and possession of heroin, with which he was charged in Victoria. Although sentenced on that occasion to imprisonment for 12 years with a minimum of 10 years, he appears to have been released before the minimum period had expired. The offence of which he was convicted in 1980 was thus the third, and the subject offence the fifth, in a series of like offences. Needless to say, the respondent is himself an addict, which affords an explanation, but no excuse, for his exploiting others by engaging in sale of the drug, as he was evidently doing on this occasion. He is a person of 42 years, with technical training in electronics, who merits some sympathy for his unfortunate experience in prison in Thailand, which served only to confirm his addiction. On the other hand, it is the impression of the Community Correctional Officer in Cairns that the respondent "is not fully prepared to address the motivation behind his substance abuse".

No more than half of the respondent's 7 year sentence had been completed when he was granted parole in 1994. The sentence imposed on this occasion operated to cancel his parole obliging him to serve out the 3½ years balance of that sentence. See Corrective Services Act 1988, ss.187, 190(1). In arriving at the appropriate sentence for the instance offence, it would have been proper to take account of that circumstance, although not to such an extent as in effect to negate the legislative intention manifest in the statutory provisions referred to. The combined effect of resurrecting the sentence imposed in 1990 and imposing sentence for the later offence ought not be such as to make them a "crushing" burden for the respondent. At the same time it would plainly be an error so to structure the later sentence as to disregard the commission of yet another offence of the same description in the course of his parole.

The learned judge arrived at a sentence on this occasion of imprisonment for a term of 11 years, which he proceeded to discount to 8½ years in order to take account of the respondent's early plea of guilty and his co-operation with the police and prosecution. In doing so, however, and in particular by making that sentence concurrent with the balance now to be served of the 1990 sentence, his Honour exercised his discretion in a way which leads to an unexpected result. In relation to the 8½ year sentence imposed, the respondent may fairly expect to be considered for parole after serving half of it, or approximately 4¼ years. Of that term, a period of 3½ years is referable to the balance of the 7 year sentence imposed in 1990, meaning that, in the result, only 9 months is attributable to the sentence for the offence under review.

In allowing the sentence of 8½ years to be served concurrently with the balance of the 7 year term still to be served, the learned judge was acting on a suggestion to that effect from counsel. Having regard to something that was said in the course of submissions, his Honour may also have been influenced by an impression that there was "some uncertainty" as to how much of the 1990 sentence the respondent would be serving. In view of ss.187 and 190(1), it is not easy to understand why that was thought to be so.

However that may be, the impression remains that an effective additional penalty of imprisonment for only 9 months for an offence of such seriousness (which was a repetition, while on parole, of another such offence, represented the fifth of that kind committed in less than 20 years) is manifestly inadequate. The problem in this instance has, we consider, arisen largely because the sentence was made concurrent with the balance of the 7 years sentence imposed in 1990, which the respondent is now obliged to continue serving. Adopting the course of making such a sentence concurrent has several disadvantages. It tends to obscure the duration of the effective penalty being imposed for the subject offence. In addition, as became apparent in argument in R. v. Mickelo (C.A. 196 of 1995), the need to adjust the duration of the subject sentence, in order to allow for completion of the balance of the earlier sentence which has to be served, tends to distort the sentencing tariff applicable to offences of that description. There is a real risk that on later occasions courts may be persuaded that the sentence imposed for the later offence sets an appropriate benchmark without due allowance being made for the fact that its duration is likely to be affected by the fact that it is being served concurrently with the balance of an earlier sentence.

These factors combine to suggest that in this, and no doubt many similar cases, the preferable course is to impose a sentence that is fixed to commence on completion of the earlier sentence of which the balance still has to be served. When regard is had to the factors already mentioned, including the respondent's persistent recidivism and the seriousness of the offence or offences committed on this occasion, a sentence of 11 years, reduced to 8½ years in recognition of the respondent's co-operation and early plea of guilty, remains appropriate; but it should be made cumulative upon the sentence of 7 years imposed in 1990 which the respondent continues to serve. It should, however, also be recommended that the respondent be considered for parole after serving two years of that cumulative sentence. In effect this will mean, unless other events interpose, that he may expect to be considered for parole approximately 5½ years from the date of his arrest on 13 June 1995, which was the date when the sentence was ordered to commence.

The appeal should be allowed and the sentence is varied by ordering that the sentences imposed on 15 July 1995 be served cumulatively upon the completion of the sentence of 7 years imposed in 1990, and also by recommending that the respondent be considered for parole after the expiration of 5½ years from 13 June 1995. The convictions should be recorded. The period of 42 days spent in custody between 13 June and 25 July 1995 should be treated as being imprisonment already served under this sentence.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 338 of 1995

Brisbane

Before Fitzgerald P.

McPherson J.A.

Mackenzie J.

[R v. Cutajar and A-G of Qld]

T H E Q U E E N

v.

JOSEPH CARMEL CUTAJAR

(Respondent)

ATTORNEY-GENERAL OF QUEENSLAND

(Appellant)

REASONS FOR JUDGMENT - MACKENZIE J.

Judgment delivered 19 December 1995

The facts of the matter are set out in the judgment of McPherson J.A. I agree that the

Attorney-General's appeal should be allowed. The sentence imposed by the learned trial judge

was 8½ years concurrent with a sentence of seven years for an earlier similar offence. The

respondent had previous convictions for drug offences and had been on parole for only 15

months in respect of a previous conviction for possession of more than the specified quantity of

heroin. The learned trial judge took the view that the starting point for sentencing was a period

of 11 years which he reduced by significantly discounting the period of imprisonment to 8½

years for cooperation in pleading guilty on ex-officio indictment. The Crown Prosecutor had

raised as one option the imposition of a cumulative sentence but adverted to the possibility that

that option, if based on the assumption that the respondent would serve the whole 3½ years of

the unexpired sentence in respect of which parole was cancelled by the present conviction, might be undermined if he was not required to serve the whole of the balance of 3½ years of the

previous sentence. He had earlier referred to R. v. Doyle (C.A. No. 454 of 1993, unreported, 6

April 1994) in which it was held that s.157(3)(a) of the Penalties and Sentences Act was

concerned with the situation where, on the earlier sentencing, there was a specific non-parole

period imposed by order of the trial judge.

In my opinion the appropriate way of imposing sentence was a period of imprisonment

cumulative upon the preceding term. A term of 8½ years cumulative with a recommendation

the intent of which is that the respondent remains in prison for 5½ years before being eligible

for parole for the offence with which we are concerned is appropriate. Because of the

assumption upon which the minimum appropriate period in prison before the respondent can

apply for parole has been determined, a date 5½ years from the date of arrest should be fixed as

the date upon which the respondent is eligible for parole. The period spent in custody from 13

June 1995 to 25 July 1995, being 42 days, should be treated as imprisonment already served. I

would allow the appeal and vary the sentence by ordering that the sentence imposed on 15 July

1995 be served cumulatively upon completion of the sentence of seven years imposed on 23

August 1990. I would recommend that the respondent be considered for parole on a date being

the expiration of 5½ years from 13 June 1995, the date of arrest. I would declare that the period

13 June 1995 to 25 July 1995 be imprisonment already served under the sentence for the present

offence. A conviction should be recorded.