R v Foy

[1998] QCA 37

IN THE COURT OF APPEAL	[1998] QCA 037
SUPREME COURT OF QUEENSLAND

C.A. No. 458 of 1997.

Brisbane

[R v. Foy]

T H E Q U E E N

v.

MARK ANTHONY FOY

(Applicant)

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Pincus J.A.
McPherson J.A.

Fryberg J.

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Judgment delivered 6 March 1998

Judgment of the Court

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED
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CATCHWORDS: Criminal law - leave to appeal against sentence - offences of sexual misconduct involving children - extensive criminal history including prior offences of a sexual nature - sentences imposed were cumulative upon term of imprisonment applicant ordered to serve as offences committed during the operational period of a suspended sentence - recommendation that applicant be eligible for release on parole after serving 7 months - whether recommendation in relation to 7 months of the consecutive sentences or 7 months of the new sentences - whether sentences imposed manifestly excessive.

Counsel:	Applicant appeared on his own behalf. Mr T Winn for the respondent.
Solicitors:	Applicant appeared on his own behalf. Director of Public Prosecutions (Queensland) for the respondent.
Hearing date:	25 February 1998.
REASONS FOR JUDGMENT - THE COURT

Judgment delivered 6 March 1998

This applicant for leave to appeal against sentence was convicted in the District Court of a number of offences involving sexual misconduct; he had a significant criminal history including convictions for offences of a kind similar to the present offences.

He was charged on 10 counts of offences involving children, boys and girls of various ages between 9 and 12, committed between February and April last year. The 10 counts related to four incidents and it is enough to explain two of them. Counts 1 and 2 related to the applicant having masturbated in the presence of an 11 year old and a 12 year old girl who were swimming at a creek. He masturbated underwater, but the girls could see him doing it. Counts 7, 8 and 9 involved two boys aged 9 and 10. The applicant masturbated in front of them, one child’s pants were pulled down and the applicant began to suck on his penis and had the child suck the applicant’s penis. As to counts 3 - 6 and 10, they were rather similar to the facts of counts 1 and 2.

The applicant, aged 36, has been a persistent offender since the age of 19. His record includes offences of burglary in 1980, 1982, 1983, 1993 and 1994. He has also been sentenced for stealing motor cars and attempting to do so; damaging property and assaulting police. His record for sexual offences appears to begin in 1989 when he was sentenced on four counts of indecent assault. Then in 1993 there were four offences of indecent assaults and other offences of a sexual nature in 1995 and 1997. He was first sentenced to imprisonment in 1982 and received other sentences of imprisonment later in 1982; on several occasions in 1983 and also in 1984, 1985, 1986, 1988, 1993, 1994 and 1997. The longest period since 1982 when he has not been before a court in relation to some offence or other appears to be a period of over 2 years beginning in August 1990; otherwise he has been punished at least once every year for 15 years. He was sentenced in the present case to 2 years imprisonment in relation to counts 7 and 8 and 1 year for each of the others, all concurrent. Those sentences however were cumulative upon a term of imprisonment which the judge ordered the applicant to serve in consequence of his having committed an offence during the operational period of a suspended sentence. On 26 February 1997 the applicant was convicted of wilful exposure in the magistrates court and sentenced to 4 months imprisonment suspended for 3 years, and the judge’s order required the applicant to serve that 4 months. A question was raised at the hearing as to the precise effect of the sentences imposed. It appears that the applicant was arrested and began a period of custody on 28 April 1997, eight days after the commission of the last of the offences with which we are concerned. He was in custody in respect of these offences until 26 June 1997 when he was sentenced in the magistrates court in respect of three offences of wilful exposure to 4 months imprisonment. He ceased serving that term on 15 September 1997, but remained in custody in respect of these offences. The judge was told that the applicant had served a total of 117 days in respect of pre-sentence custody relating to these offences and his Honour declared that period "to be imprisonment already served under the sentence". His Honour also imposed as we have mentioned concurrent sentences of 2 years imprisonment and 1 years imprisonment in respect of the present offences. His Honour said:

"All of those sentences are to be concurrent but as I said cumulative on the term of imprisonment to be served pursuant to the sentence passed on 26 February 1997.

I recommend that you be eligible for release on parole in respect of the sentences that I have passed after you have served seven months of that term of imprisonment."

The word "sentences" where it secondly appears in the passage quoted might be a reference to the new sentences passed or to those plus the reactivated sentence. Some light might be thrown on the problem by the following passage in his Honour’s reasons in which after referring to the suspended sentence he went on:

". . . the appropriate course is to order that these further sentences be cumulative upon that sentence but to take into account the time that you will serve by way of that sentence of imprisonment in determining an appropriate period after which you would be eligible for parole under the sentences which I am imposing today."

In that passage the words "under the sentences which I am imposing today" refer without doubt to the 1 year and 2 year sentences, not the suspended sentence. That supports the idea that when his Honour spoke of "the sentences I have passed" in the passage we quoted earlier he intended to refer to the 1 and 2 year sentences. Another factor pointing in the same direction is that to recommend the applicant for parole after having served only 7 months of the consecutive sentences would have been a remarkably generous course, particularly when one keeps in mind that under the declaration the applicant had served, already, nearly 4 months of the 1 and 2 year sentences.

In short, it is in our view clear enough that the intended effect of the recommendation for release on parole was that the applicant would become eligible after having served 7 months of the 1 and 2 years sentences which, as we have explained, were made consecutive upon the 4 month sentence. In calculating the date of eligibility it will be necessary to give the applicant credit for the 117 days the subject of the declaration; that comes off the 1 and 2 year sentences.

The construction we have placed on the judge’s orders removes any need to consider whether the decision of this Court in Waters (C.A. No. 379 of 1997, 9 December 1997) has any application to this case. It was there decided that a judge making an order under s. 147(1) of the Penalties and Sentences Act 1992 that an offender serve the whole or part of a suspended imprisonment had no power to recommend that the offender be eligible for release on parole after having served part of the term. In the present case the recommendation for release on parole made reference only to the new 1 and 2 year terms, not the suspended term.

In a letter dated 18 February 1998 the applicant informed the Court that he had been told at his correctional centre that he could possibly do his full time or close to it, "meaning that I will get out on remissions, over my parole recommendation in April this year". The length of time a prisoner actually serves, when sentenced by a court, is in substantial part dependent on the exercise of administrative discretions, by the parole authorities and others - including the managers of prisons. We cannot adjust sentences on the basis of information as to the course likely to be taken by those people.

It is impossible to support the view that the sentence imposed by the primary judge was excessive. It was plainly a moderate one - merciful rather than harsh. There is no basis on which this Court could lawfully interfere with the sentence; in particular it could not be altered for the reason that the applicant gives.

To reiterate, the proper interpretation of the judge’s order is that the applicant will become eligible for parole 7 months after he completes serving the 4 month sentence; that is, the 7 months is calculated from the beginning of the 2 year sentences.

The application is refused.