R v Doyle

[1994] QCA 81

IN THE COURT OF APPEAL [1994] QCA 081

SUPREME COURT OF QUEENSLAND

C.A. No. 454 of 1993

Brisbane

[R v. Doyle]

THE QUEEN

v.

ROWAN CHARLES DOYLE Applicant

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McPherson J.A.

Pincus J.A. Mackenzie J.

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Judgment of the Court
Judgment delivered 06/04/94

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APPLICATION FOR EXTENSION OF TIME WITHIN WHICH TO APPLY FOR

LEAVE TO APPEAL AGAINST SENTENCE REFUSED.

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CATCHWORDS:CRIMINAL LAW - extension of time - sentence - applicant sentenced in District Court for earlier offences - no recommendation for parole made in District Court - whether trial judge sentencing in Supreme Court for later offences committed whilst applicant in custody awaiting trial on earlier offences should have made recommendation for parole -interpretation of s.157(3) Penalties and Sentences Act.

Counsel:Mr J. Farmer for the applicant.

Mr J. Hunter for the Crown.

Solicitors:Legal Aid Office for the applicant.

Director of Prosecutions for the Crown.

Date of Hearing:28/03/94.

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 06/04/94

This is an application for an extension of time within which to appeal against sentence. The application relates to sentences imposed in the Supreme Court at Townsville on 14 October 1993. The material before the Court discloses that after the sentence hearing, then counsel for the applicant expressed to his client the opinion that an appeal against the sentence was warranted and said he would express that view to the Legal Aid Office. On 27 October 1993 the solicitor who had instructed counsel on behalf of the applicant wrote to the Legal Aid Office confirming that counsel had advised an appeal. The applicant's affidavit says, in effect, that he thought an appeal had been filed, but discovered too late that it had not. There is also an affidavit on behalf of the Legal Aid Office to the effect that it was the applicant's solicitor's job to file a notice of appeal; but it is unnecessary to pursue the topic of responsibility for the failure to do that, since it seems plain that there was an intention to take whatever steps were necessary to challenge the sentence and that it was not the fault of the applicant that this did not occur.

Therefore an extension of time should be granted, if the application would have any reasonable prospect of success. Mr Farmer for the applicant argued that question rather fully.

Mr Farmer's main point was that the primary judge should have made such an order as is contemplated by s. 157(3) of the Penalties and Sentences Act 1992. There is a question of interpretation of that provision which arises on the following facts.

On 10 March 1992 the applicant and one Jackson were in custody at Townsville awaiting trial on charges which were to be dealt with in the District Court and which are further mentioned below. The applicant and another prisoner, Jackson, decided early on the morning of that day to attempt to escape from the Townsville Correctional Centre. To that end, the applicant hit a prison officer, one Kybus, on the back of the head, knocking him unconscious. The next step was to attack another prison officer Harrington; he was enticed into the area where Kybus had been hit. The purpose of that, it appears, was to achieve the result that the attack on Harrington would go unnoticed by others, as that on Kybus had been. Harrington was attacked with iron bars by both the applicant and Jackson. Fortunately, they were apprehended; their escape attempt failed, but Harrington suffered most grave injuries.

The applicant was sentenced for these two attacks; as to that on Kybus, the applicant pleaded guilty to assault occasioning bodily harm whilst armed and in company, and with respect to Harrington, he pleaded guilty to doing grievous bodily harm with intent to do grievous bodily harm. The former offence produced a penalty of 3 years imprisonment and the latter 12 years. It was directed that the 12 year sentence be served cumulatively with a sentence of 3 years imprisonment which the applicant was then serving. That term was imposed in respect of the charges in the District Court, referred to above, for numerous offences of unlawful use of a motor vehicle, receiving, stealing and breaking and entering.

The principal question which is sought to be raised by the application is whether the Supreme Court judge was in error, insofar as her Honour omitted to make a recommendation for parole under s. 157(3) of the Penalties and Sentences Act 1992.

The argument was that because the District Court had imposed a sentence of 3 years imprisonment on 9 July 1992, the Supreme Court was obliged to make a recommendation for parole under that provision, on 14 October 1993. The argument advanced was that in the absence of a recommendation under s. 157(3) the, presumably unintended, result would ensue that the applicant's rights to apply for parole in respect of the District Court sentence would be abrogated.

The problem, then, is whether the passing of a sentence in the Supreme Court during the currency of a District Court sentence requires that the Supreme Court judge make a recommendation for parole; in the present case, neither the Supreme Court judge nor the District Court judge made any recommendation for parole.

It is desirable to set out the terms of s. 157 in full.

"Eligibility for parole

157.(1) In this section -
'non-parole period' means the part of a term of imprisonment or period of imprisonment that an offender must serve before the offender is eligible to apply for parole.

(2) If a court imposes a term of imprisonment on an offender, it may recommend that the offender be eligible for release on parole after having served such part of the term of imprisonment as the court specifies in the recommendation.

(3) If a court imposes another term of imprisonment on an offender who is already serving imprisonment for an offence, the court must -

(a)if it is a court of like jurisdiction or higher jurisdiction to the court that last sentenced the offender to a term of imprisonment - make a fresh recommendation for parole relating to the period of imprisonment that the offender must serve;

or

(b)if it is a court of lesser jurisdiction to the court that last sentenced the offender to a term of imprisonment, recommend a non-parole period in relation to the fresh term of imprisonment imposed by the court.
(4) In making a new recommendation under subsection

(3)(a), the court -

(a)must have regard to all the facts known to the court;

and

(b)must ensure that the non-parole period is not less than

that mentioned in subsection (2).

(5) A new recommendation made under subsection (3)(a) -
(a)revokes previous recommendations made by courts in relation to a non-parole period for an offender; and
(b)starts on the day it is made.
(6)If a recommendation is made under subsection (3)(b) and

the existing non-parole period -

(a)has not ended - the non-parole period in relation to the total period of imprisonment is the total of all non-parole periods that are in force; or
(b)has ended - the non-parole period in relation to the

fresh term of imprisonment -

(i)starts on the day the recommendation is made; and

(ii)must not be longer than the fresh term of imprisonment

imposed on the offender."

The essence of the argument advanced for the applicant is that because of its opening words ("If a court imposes another term of imprisonment on an offender who is already serving imprisonment for an offence..."), the obligation to make a recommendation for parole under subs. 3 arises where two successive sentences of imprisonment are imposed, the obligation being, of course, on the court which imposes the second sentence.

In our opinion, subs. 3 does not apply unless there has been a recommendation for parole attached to the earlier term of imprisonment. It is true that the opening words of subs. 3 read in isolation suggest otherwise, but there is a number of indications in s. 157 of the Penalties and Sentences Act 1992 that the intention of subs. 3 is to impose an obligation to make a recommendation for parole on the court imposing a later sentence only if there is a current recommendation for parole, attached to an earlier sentence. Those indications are, or include, use of the expression "fresh recommendation for parole" in para. 3(a); that subs. 4 and 5 speak of a "new recommendation made under subs. 3(a)" and that the phrase "the existing non-parole period" in subs. 6 assumes that such a period will exist or have existed. It might be added that presumably the legislative intention is that subs. 3 does not apply where the whole of the earlier term of imprisonment, being that to which a recommendation for parole was attached, has expired; but it is unnecessary to determine that point in the present case.

Our conclusion is that the verbal context in which para. 3(a) is to be found is inconsistent with a reading of subs. 3 which would impose an obligation on the court handing down the later sentence to make a recommendation with respect to parole simply because of the existence of an earlier sentence, albeit one with no parole recommendation.

But Mr Farmer advanced a contention that this result would lead to injustice; it was argued in effect that in circumstances such as the present, unless a recommendation for parole is made by the court handing down the second sentence, the entitlement to consideration for parole created by s. 166(1)(b) of the Corrective Services Act 1988 will not arise until half way through the second term of imprisonment. Mr Farmer suggested that the law is that if a term of imprisonment is imposed and later a second term is imposed, cumulatively on the first, eligibility for release under s. 166(1)(b) will not arise until half-way through the second term. Section 166 reads, so far as relevant, as follows:

"166. Eligibility for parole. (1) Subject to subsection (4) of this section and section 157 of the Penalties and Sentences Act 1992, a prisoner mentioned in section 165(1)(a)(i) is not eligible for release on parole -
...

(b)in the case of any other prisoner - until the prisoner has served at least half of the term of imprisonment to which the prisoner was sentenced."

Paragraph (a) deals with a prisoner serving a life term. The argument was, in effect, that the "term of imprisonment" to which para. (b) refers is that secondly imposed, in cases such as the present.

In our opinion that is not so, for s. 10 of the Corrective Services Act 1988 has a definition of "term of imprisonment" which reads, so far as relevant:

"(b)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 at different times..."

The result is, in the present case, that the effect of the order of the Supreme Court, coupled with that of the District Court, is that the "term of imprisonment", for the purposes of s. 166, is the unbroken period of imprisonment which the applicant is liable to serve by virtue of the cumulative sentences imposed in the two courts, being a period of 15 years commencing on the date of sentence in the District Court, namely 9 July 1992. The applicant thus becomes eligible for parole half-way through that 15 year period, i.e. after 7½ years - more precisely, on 9 January 2000. We reject the subsidiary argument, advanced on behalf of the applicant, that the effect of the Supreme Court sentence was that eligibility for parole would not arise until half-way through the period of 12 years imprisonment added in the Supreme Court.

For all these reasons, we have come to the conclusion that the learned Supreme Court judge was not obliged, under s. 157(3) of the Penalties and Sentences Act 1992, to make a recommendation for parole.

The remaining question sought to be raised is whether the Supreme Court sentence was too heavy. Mr Farmer suggested that, considering that the applicant was already serving 3 years, to add a 12 year sentence making a total of 15 years was excessive.

The submission requires some further reference to the facts.

Of the two victims, Harrington was by far the worse injured; his state is indeed pitiable. He incurred a serious brain injury causing grossly defective vision and other consequences which have had disastrous effects upon his life. He also has disabilities in the orthopaedic area. So savage was the attack upon him that one would be inclined to say that he was fortunate to survive; but the consequences for him were such that the accuracy of such an observation would be questionable. His family has also been badly affected by the circumstances that we have mentioned.

Although the applicant was a young man at the time - 20 years of age - he had a significant criminal record. It was conceded that his responsibility for the assaults on the two prison officers was similar to that of Jackson. The judge, rightly in our view, declined to accept that the applicant was remorseful. Her Honour took into account the applicant's pleas of guilty.

In our opinion, there is nothing in the suggestion that the sentence of 12 years imprisonment was excessive, nor in the allied suggestion that it should not have been made cumulative upon the sentence imposed in the District Court for earlier and unrelated offences. In any community attempting to uphold civilised standards, cold-blooded brutality of the order with which the Court is here confronted must be severely punished.

The application for an extension of time will be refused.