R v Gilchrist

[1998] QCA 273

IN THE COURT OF APPEAL	[1998] QCA 273
SUPREME COURT OF QUEENSLAND

C.A. No. 196 of 1998.

Brisbane

[R v. Gilchrist]

T H E Q U E E N

v.

MARK CAMPBELL GILCHRIST

(Applicant) Appellant

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McMurdo P.
Pincus J.A.

Mackenzie J.

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Judgment delivered 11 September 1998

Judgment of the Court
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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED. APPEAL AGAINST SENTENCE ALLOWED. SENTENCE IMPOSED BELOW IN RESPECT OF THE FOURTH COUNT, BEING RAPE, COMMITTED ON 13 MARCH 1997 SET ASIDE AND IN LIEU THEREOF A SENTENCE OF 7 YEARS IMPRISONMENT IMPOSED. SENTENCES IMPOSED BELOW OTHERWISE CONFIRMED AND IN PARTICULAR CONFIRM THAT THE 5 YEAR SENTENCES ARE CUMULATIVE UPON THE 7 YEAR SENTENCE.

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CATCHWORDS: CRIMINAL LAW - application for leave to appeal against sentence -

first group of offences committed in March 1997 and second group in November 1997 - offences committed during operational period of a suspended 3 year sentence - judge declared convictions for second group of offences were convictions for serious violent offences - applicant sentenced to 9 years imprisonment for one offence in the first group of offences and 5 years imprisonment for the second group of offences to be served cumulatively - suspended sentence ordered to be served concurrently with new sentences - whether 80% provision applies only to imprisonment order on post-1 July 1997 offences.

Penalties and Sentences (Serious Violent Offences) Amendment Act 1997.
Penalties and Sentences Act 1992, ss. 161A, 161B, 161C, 206(2)
Corrective Services Act 1988, s. 166(1)(c)

Robinson (C.A. No. 72 of 1998, 26 May 1998)

Counsel:	Mrs D A Richards for the applicant/appellant. Mr J Henry for the respondent.
Solicitors:	Legal Aid Queensland for the applicant/appellant. Director of Public Prosecutions (Queensland) for the respondent.
Hearing date:	7 August 1998.
REASONS FOR JUDGMENT - THE COURT

Judgment delivered 11 September 1998

1 The applicant for leave to appeal against sentence, Mr Gilchrist, was convicted in the District Court on 27 May 1998 in respect of two groups of offences, the first committed before and the second after the law relating to sentencing was substantially changed by the Penalties and Sentences (Serious Violent Offences) Amendment Act 1997; the substantive provisions of that Act ("the 1997 Act") came into force on 1 July 1997. As will appear, the fact that some of the offences are to be dealt with under the former law and some under the new law gives rise to a legal difficulty, a solution to which is not to be found in the transitional provisions of the 1997 Act.

1. The first group of offences, committed in March 1997, arose out of the following facts. A young woman took some rubbish out to the bin at her home, about 8.30 pm, and when she came back inside found the applicant, a man aged 23, inside the house. He attacked her and grabbed her around the throat, propelled her onto a bed and removed her clothing. He tied her hands and ankles and raped her, then took $60 from her wallet. On the basis of these offences the applicant was, on pleas of guilty, convicted of breaking and entering with intent, assault occasioning bodily harm, deprivation of liberty, rape and stealing. Each of the offences attracted 3 years imprisonment, except for the rape on which the judge sentenced the applicant to 9 years imprisonment, and the stealing for which the penalty was 1 year in prison. All these sentences were concurrent.

2. The second group of offences, committed in November 1997, consisted in an attack on a 38 year old woman, who lived with her 8 year old daughter. One morning the daughter opened the front door to the applicant. Hearing this, the woman got out of bed and began walking to the door. She encountered the applicant in the dining room. He grabbed her and began punching her repeatedly. She fell down and he kept on punching her, telling her to be quiet. The applicant picked the woman up from the floor and a scuffle ensued; she struggled and screamed and the applicant then fled. The applicant pleaded guilty to counts of doing grievous bodily harm with intent to do so and breaking and entering with intent. For each offence, he was sentenced to 5 years imprisonment. These 5 year sentences were made cumulative upon the 9 year sentence.

3. The first complainant suffered relatively minor physical injuries, but according to an impact statement which is Exhibit 6, the psychological damage was very considerable. The second complainant suffered bruises, abrasions and lacerations as well as three rib fractures and a ruptured spleen; that organ was in the end removed surgically.

4. When the police first questioned the applicant about these matters he denied any knowledge of them, but provided a blood sample which enabled the police to obtain a match with blood found at the scene of the attack on the second complainant and sperm found in the first complainant. The applicant eventually admitted involvement in the offences.

5. The applicant had previous convictions, of which the more serious were the following. In 1992 he was convicted of breaking, entering and stealing and that produced a sentence of probation and community service. In 1994 he was fined $1,000 for the unlawful use of a motor vehicle. On 16 January 1995 he was convicted of a number of charges of stealing and false pretences and that attracted a probation order. On the same day he was convicted of two offences of breaking and entering with intent and was sentenced to a suspended period of imprisonment of 3 years. In addition, the applicant has a number of drug offences in his record.

6. A psychiatric report given in May 1998 said, in effect, the applicant had a completely unsatisfactory childhood and that he became addicted to amphetamines. The psychiatrist thought that he was under the influence of amphetamines and alcohol at the time of the offences we have mentioned. The report said that a period in gaol would be salutary but, if too prolonged, could have an adverse effect. There is also a psychologist’s report which emphasised the applicant’s poor upbringing and various events in the applicant’s life which were extremely disturbing to him.

7. The learned sentencing judge pointed out that the offences in question were committed whilst the applicant was on probation, ordered in 1995, and during the operational period in respect of the suspended 3 year sentence ordered on the same occasion. As to the adverse effects of drugs, the judge expressed the view that the applicant had failed to avail himself of an opportunity to tackle the problem, which he could have done under the terms of the probation order; it contemplated psychiatric and psychological treatment. With respect to the second group of offences, the judge declared that the convictions for them were convictions for serious violent offences within the meaning of the relevant provisions of the 1997 Act. His Honour ordered that the suspended 3 year sentence be served concurrently with the new sentences and made a declaration with respect to a period of 174 days spent in custody. His Honour remarked:

   "Some of the convictions are for serious violent offences. The imprisonment is for a period of 10 years or more so you will be required, pursuant to the provisions of the Penalties and Sentences Act, to serve 80 per cent of that sentence".

The judge made a declaration with respect to serious violent offences only in relation to the second group of offences, but the remarks we have quoted shows that his Honour regarded the whole total of 14 years as being subject to the provisions of s. 166(1)(c)(i) of the Corrective Services Act 1988 ("the 1988 Act"), which requires a prisoner serving a term of imprisonment for a serious violent offence to serve the lesser of 80% of the term or 15 years imprisonment. In the result, then, the applicant was sentenced to a total of 14 years imprisonment, on the basis of the judge’s understanding that the applicant would not be eligible for parole until he had served 11 years 10 weeks and 3 days imprisonment.

1. The first problem, before one comes to consider whether the sentence was excessive, is to determine its legal effect. The relevant provisions are s. 166(1)(c) of the 1988 Act whose effect we have just explained and ss. 161A, 161B, 161C and 206(2) of the Penalties and Sentences Act 1992 ("the 1992 Act"), inserted by the 1997 Act. We do not propose to set these provisions out here, but assume that the reader will have them at hand.

2. In Robinson (C.A. No. 72 of 1998, 26 May 1998) two questions were decided. First, it was held that despite the use of the defined term "term of imprisonment" in s. 157(2) of the 1992 Act, that provision enables a court which imposes cumulative terms of imprisonment to make a recommendation for parole applicable to the whole period of imprisonment - the sum of the terms; it does not appear that this part of the case is presently relevant. Second, it was submitted for the Attorney-General in Robinson, and accepted by the Court, that the 80% provision in s. 166(1)(c) of the 1988 Act applies, in such a case as the present, only to the term of imprisonment imposed for offences committed after 1 July 1997; in the present case the Crown adopted the same position - that the 80% provision applies only to the imprisonment ordered in relation to the post-1 July 1997 offences. It appears to us that we should, again, accept that as correct.

3. The result, in the present case, is that the learned primary judge (who, as it happens, dealt with this matter on the day following the decision in Robinson) was in error in thinking, as he did, that the 80% provision applied to the whole 14 year total; in truth it defined the non-parole period only for the term imposed for the serious violent offence committed after the statute came into force - i.e. after 1 July 1997. As was pointed out during the hearing before us, the 9 year sentence imposed for the rape, committed before 1 July 1997, had the effect of making the 5 year sentence one which was, so to speak, deemed to be one of 10 or more years, by the operation of s. 161C(1)(a) read with s. 161C(2)(b) of the 1992 Act.

4. Although it was necessary for the judge to declare, as his Honour did, that the convictions which lead to the 5 year sentence were convictions for serious violent offences, the effect of s. 161C was that (even if no such declaration had been made) the applicant had, for the purposes of s. 161A(a)(ii), to be treated as if he had been sentenced to 10 or more years imprisonment for the offences committed after 1 July 1997 - the second batch.

5. The difficulty of applying the provisions may be illustrated by taking a rather more extreme case, of a prisoner who in the course of serving a 12 year sentence for, say, manslaughter, under a sentence imposed before 1 July 1997, commits after that date an assault occasioning bodily harm in prison and is sentenced to 1 year more. Under s. 161C(2)(b), read with s. 206(2) of the 1992 Act, the offender would be taken to have been sentenced to 10 or more years of imprisonment and so, because of the interpretation accepted in Robinson, the post-1 July 1997 offence would be caught by the 80% provision. But the offender would still be entitled to apply for parole after having served 6 years of the 12 year sentence. Then, even if granted parole, he would not begin to serve the 1 year sentence until the 12 years had expired: see s. 122(2) of the 1988 Act and s. 184 of that same Act.

6. But for the decision in Robinson, which decision appears to us correct, it might have been thought to be the position, in the present case, that the 80% provision in the 1988 Act has retrospective effect to the extent not merely of requiring the 9 year sentence to be taken into account in determining whether the 5 year sentence must be treated as one of 10 years or more, so that the 5 year sentence becomes a sentence for a conviction of a serious violent offence - but also retrospective in that it affects the right to parole under the earlier sentence. For the reasons given in Robinson this second sort of retrospective operation cannot have been intended. And that gives rise to the possibility that the applicant might be released on parole after having served 4 years and 6 months of the rape sentence but, after completion of the parole period, return to prison to serve at least 4 years of the 5 year sentence. Mrs Richards, for the applicant, argued that the parole authorities would undoubtedly refuse an application for parole in respect of the 9 year sentence and, if that is so, then this applicant will serve at least 13 years of the 14 year sentence. (The period of 13 years, after which a person serving a term of life imprisonment for an offence committed before 1 July 1997 can apply for parole, has become 15 years for offences after that date; see s. 166(1)(b) of the 1988 Act.)

7. We have pointed out the difficulty which arises from the fact that a person convicted of a serious violent offence and sentenced to a term of imprisonment cumulative upon a sentence for an earlier offence may have a right to apply for parole, under the previous sentence, on a date falling years before he may apply under the new sentence. No similar difficulty affects the matter of remissions; if the applicant is granted a remission in respect of the 9 year sentence, then under s. 122(2) of the 1988 Act the 5 year term will begin at that time. However, we were informed from the bar table that the prison manager’s right to refuse remissions to prisoners, on the basis of considerations having some resemblance to those applicable to the grant of parole, continues to subsist: see McCasker v. Queensland Corrective Services Commission (Appeal No. 10495 of 1997, 19 December 1997) and note that in that case one of the reasons for the manager’s refusal of remission was that the appellant’s offence (committed before 1 July 1997) was considered to be of a "violent serious nature". At best for the applicant, he could obtain a one-third remission on the 9 year sentence, and parole after 4 years of the 5 year sentence, thus serving a total of 10 years. We express no view as to the likelihood of remission being granted; no doubt consideration will be given to that, having regard to the applicant’s behaviour while in custody and any other factors made relevant by the then current law.

8. If, as Mrs Richards suggests, the practical outcome of the sentences imposed turns out to be that the applicant is not treated, for practical purposes, as eligible for parole until he has served 13 years, then that would seem an anomalous result. That is so for two reasons. First, the primary judge’s understanding was that the applicant would be eligible for parole nearly 2 years earlier than that. Secondly, if the applicant had murdered one of his victims he would have been eligible for parole after either 13 years or 15 years, depending upon the date of the offence. As against that, neither of the sentences of 9 years and 5 years, considered in isolation could be argued to be excessive, nor could it be contended that the primary judge was in error in making the sentences cumulative.

9. In the end, after anxious consideration, we have come to the conclusion that a combination of circumstances makes it right to reduce, in some way, the total of the head sentences. These are that the primary judge did not appreciate that (as had just been held, in Robinson) the effect of the 1997 Act was that the applicant did not become eligible for parole under the 5 year sentence until 4 years of it had been served; that the applicant was 22 years of age at the date of the first batch of offences and 23 when he committed the second batch; that he pleaded guilty to all the offences; that he never previously committed offences of violence; and that he had evinced a high degree of remorse, according to the psychiatric report. If the sentence in respect of the first group of offences is reduced to 7 years making the total sentence 12 years and as seems likely, no serious consideration is given to parole until 80% of the second sentence is served, the applicant will have served 11 years before parole. That appears to us a more appropriate outcome than that which is likely to ensue from the sentences imposed by the learned primary judge. If granted full remission in relation to the 7 year sentence and granted parole at 4 years of the other, the applicant will serve a total of 8 years 8 months.

10. Summary

1. The total sentence of 14 years imposed on the applicant consists of a 9 year and a 5 year sentence; the applicant is entitled to apply for parole, as a matter of law, after half the first sentence and after 80% of the second sentence.

2. It seems likely that, as a matter of practicality, in these circumstances parole would not be granted until 13 years have been served.

3. This outcome would not follow directly from the 1997 amendments to the Penalties and Sentences Act 1992, which does not express an intention to affect rights of parole in respect of offences committed before the amendments.

4. We have mentioned the question of grant of remission, as to the rape sentence. That will be a matter to be considered by the relevant authorities, in the light of reports as to the applicant’s behaviour in prison.

5. We reduce the sentence in respect of the fourth count, rape, committed on 13 March 1997 from 9 years to 7 years, but otherwise confirm the sentences imposed below, and in particular confirm that the 5 year sentences are cumulative upon the 7 year sentence.