R v CZ

[2006] QCA 69

SUPREME COURT OF QUEENSLAND

CITATION:

R v CZ [2006] QCA 69

PARTIES:

R
v
CZ
(applicant)

FILE NO/S:

CA No 288 of 2005
DC No 2139 of 1998
DC No 2140 of 1998

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EX TEMPORE ON:

10 March 2006

DELIVERED AT:

Brisbane

HEARING DATE:

10 March 2006

JUDGES:

McMurdo P, Jerrard JA and Holmes J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for extension of time to appeal refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PRACTICE: AFTER CRIMINAL APPEAL LEGISLATION – MISCELLANEOUS MATTERS – QUEENSLAND – PROCEDURE – EXTENSION OF TIME, NOTICE OF APPEAL AND ABANDONMENT – where applicant sentenced on four counts of armed robbery – where applicant not granted parole recommended by sentencing judge – where applicant relied on changes to the Corrective Services Act 1988 affecting remissions – where changes to Corrective Services Act 1988 occurred after sentencing – whether any prospect of success in an appeal against sentence – whether extension of time should be granted

Corrective Services Act 1988 (Qld), s 207B
Corrective Services Act 2000 (Qld), s 71(1)(c)(2), s 278
Penalties and Sentences Act 1992 (Qld) s 188

COUNSEL:

The applicant appeared on his own behalf
C W Heaton for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

HOLMES J:  The applicant seeks leave to appeal against a sentence imposed on 23 July 1998 in respect of four counts of armed robbery.  Plainly enough, he requires an extension of time within which to bring that application.  In considering whether such an extension might be granted, it is appropriate to consider his prospects of success on any appeal.

The sentence imposed was one of nine years with a recommendation that the applicant be considered for parole after he had served a period of four years.  The grounds of the application for leave to appeal against sentence are expressed as follows:  “Due to the amending of the Corrective Services Act, the sentence which was imposed by his Honour M Boyce has become excessive and beyond the intentions of his Honour in sentencing which was under s 13A of the Penalties and Sentences Act.” 

The armed robberies in question entailed hold-ups of four pharmacies over a period of three months.  At the time of sentencing the applicant had a criminal history which included, among other offences, three prior convictions for armed robbery which had attracted substantial sentences of imprisonment.  Indeed, he was on parole on a seven year sentence imposed in 1993 at the time of the pharmacy hold-ups and had to serve the balance of that sentence concurrently with the 1998 sentence.  It is clear that a sentence might well have been imposed in 1998 which attracted the serious violent offence provisions of the Penalties and Sentences Act 1992 (Qld). Counsel at the sentence agreed that in the ordinary course a head sentence of between 10 and 12 years would have been appropriate. However, at the urging of defence counsel, and taking into account the applicant's substantial co-operation with the authorities, the learned sentencing judge imposed, instead, the sentence of nine years imprisonment so that the offences did not have to be declared serious violent offences and the recommendation as to parole after four years could be made. Not surprisingly, no appeal against sentence ensued.

The applicant was provided with a sentence calculation on his reception into custody which showed his full time discharge date as 22 July 2007 and his earliest discharge date as 16 July 2004.  The latter date clearly enough reflects allowance for remissions.  Subsequently, however, an adjustment was made.  A sentence calculation made in August 2001 contains this notation:

"Non granting of remission due to Chapter 10, s 207B of the CSA 2000."

Section 207B of the Corrective Services Act 1988 (Qld) was inserted into the Act by s 278 of the Corrective Services Act 2000 (Qld). Its effect was to extinguish eligibility for remissions for a prisoner who had previously been granted leave of absence to work, home detention or parole. The sentence calculation adjustment presumably reflected a view that the sentence to which remissions were relevant was to be regarded as commencing in 1993, so that a grant of parole in respect of it had extinguished the applicant's remission eligibility. I am not convinced that that is a correct reading of s 207B but it cannot bear directly on the outcome of this application.

The applicant was not successful in obtaining post prison community based release of a type which he felt he could meet until March 2005 when, after a successful application for judicial review of previous refusals, he was released to serve a period of home detention. I should interpolate there that he had been offered work release previously, but because he had been a Crown witness, he regarded that as impracticable, and probably correctly so. Unfortunately at the end of March 2005, after a urine test, he admitted to having consumed cannabis and was returned to custody. Given that the applicant was given home detention in respect of his current sentence, there can be no doubt that the effect of s 75(1)(c)(ii) of the Corrective Services Act 2000, the equivalent, albeit in a slightly different form, of s 207B is to extinguish any eligibility for remissions under it.

The applicant's complaint is this: the sentence as imposed in 1998 was intended to avoid the effect of the serious violent offence provisions, which would have required him to serve 80 per cent of his sentence before eligibility for parole; but because of the amendments to the Corrective Services Act, he lost his eligibility for remissions and now faces the prospect of serving the entirety of his sentence.

The applicant has made an application under s 188 of the Penalties and Sentences Act to re-open the sentence, but it was, not surprisingly, unsuccessful.  He has since applied for community based release.  He was refused parole on 25 November 2005.  It is, it would seem from a document tendered to us, the policy of Corrective Services to permit further release on home detention where a relatively minor breach of the type that was committed by the applicant is concerned, but because of his difficulties with the prospect of constant supervision at home, under home detention, the applicant feels that he is not able to accept that option. 

So far, this has been a discussion of the applicant’s history of experiences with the Corrective Services Department.  It is necessary to turn to consider his prospects of success on appeal in establishing that the learned sentencing judge fell into error.  The fact that the learned judge could not have foreseen legislative change which might affect the applicant, much less that the applicant would himself contribute to his misfortune by breaching the conditions of his home detention, cannot amount to an error in the exercise of sentencing discretion.  Nor can it be said that the sentence was manifestly excessive; the applicant concedes as much.  Since there is no prospect of the applicant succeeding on the appeal I would refuse to give any extension of time for leave to appeal. 

However, I would make this observation: the Community Corrections Board is clearly in a better position to determine whether at any given time the applicant ought to be released than this Court.  But, obviously, there would be considerable advantage in the applicant’s release on actual parole with the assistance of supervision rather than his remaining in prison and being released unsupervised at the end of his sentence.  Accordingly I would recommend that the option of parole at least be very seriously considered on any further examination of the applicant’s application for parole.

THE PRESIDENT:  I agree and I specifically indicate my agreement with the final observations of Holmes J in respect of the recommendation to the Parole Board.

JERRARD JA:  I agree with the reasons and the order proposed by Holmes J and in particular with her remarks recommending actual parole for the applicant when he next applies for it.

THE PRESIDENT:  The application for an extension of time for leave to appeal is refused.

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