R v Harris

[2001] QCA 150

[2001] QCA 150

COURT OF APPEAL

McPHERSON JA
THOMAS JA
HOLMES J

CA No 30 of 2001

THE QUEEN

v.

DARREN JAMES HARRIS

BRISBANE

..DATE 19/04/2001

JUDGMENT

McPHERSON JA:  The applicant for an extension of time within which to appeal against sentence in this case is Darren James Harris.  He was convicted on his own plea of guilty in the Supreme Court at Brisbane of one count of murdering Heather Edgerton, and sentenced to life imprisonment on
4 November 1996 which, of course, is over four years ago.

On 27 October 1990 at Woodenbong in New South Wales the applicant and another man named Carne were involved in the shooting of a man named Jacobson.  The applicant shot Jacobson in the head during a possum hunting expedition.  The body was loaded into a brown Morris 1100 and dumped later that night.  For this offence, the applicant was convicted of murder in New South Wales and sentenced to 20 years' imprisonment with a non-parole period of 14 years.  On the next day after murdering Jacobson (i.e. on 28 October 1990), the applicant and Carne travelled over the border into Queensland. 

According to the applicant's version of events given at the trial of Carne, the car broke down by the side of the road and, seeing it stranded, Heather Edgerton pulled her car over to the side apparently in order to give assistance.  The car in which the applicant and Carne were travelling had a large quantity of cannabis on the back seat and the applicant, apparently becoming convinced that she had seen it, shot her in the head.

Her body was concealed in the car and then later disposed of.  The applicant gave evidence at Carne's trial admitting the shooting and claiming that Carne was not the person with him.  Carne was convicted but successfully appealed and then pleaded guilty as an accessory after the fact.

The grounds advanced in support of the application are, first, that in imposing life imprisonment the learned sentencing Judge ignored the totality principle of sentencing.  The applicant claims to explain the lengthy delay since 1996 in making the application as being due to the disadvantage he has been under in having no legal representation or advice and no legal resources available at Lotus Glen Correctional Centre.

Alternatively, he submits that the prosecution caused a delay of six years between his arrest and his sentence for this offence.  That is, however, plainly not so.  The delay was caused by his having to serve his sentence in New South Wales for murdering Jacobson.  He also submits that the intervention of the State boundaries denied him the opportunity of having both offences dealt with together as in The Queen v. Mill (1988) 166 CLR 59. His Honour the learned sentencing Judge, at page 140 of the transcript of the sentence hearing, is reported as having stated that he was required to give a comment in regard to the amount of time spent in prison. His Honour, it is said, failed to make such a comment. In fact, this is almost certainly, as it seems to me, an instance of simple mistranscription of "a" comment for "no" comment. His Honour was not required by law to make any comment and he did not do so.

The applicant submits that the learned sentencing Judge erred, and that the sentence does not reflect, the fact that the offences were both part of the one criminal escapade pursuant to s.161(1) and (4)(a) and (b) of that section of the Penalties and Sentences Act 1992.

Referring first to s.161(1) of that Act, it provides that if an offender is sentenced to a term of imprisonment for an offence, any time for which he was held in custody in relation to proceedings for the offence, "and for no other reason", must be taken to be imprisonment already served under the sentence.

The offence for which the applicant was sentenced in Queensland in 1996 was the offence of murdering Heather Edgerton.  The offence for which he was held in custody in New South Wales under his sentence there was the offence of murdering Jacobson, for which he had already been sentenced at some time in or after 1990 to a term of imprisonment of 20 years with a non-parole period of 14 years.  His custody in New South Wales was therefore not in relation to proceedings for the offence of murdering Heather Edgerton in Queensland, "and for no other reason".

Section 161(4), on which the applicant relies, applies only to a case in which:  (a) an offender is charged with a series of offences committed on different occasions, and (b) the offender has been in custody continuously since arrest on charges of the offences and for no other reason.

It is plain that this section did not apply to the offence with which the applicant was charged, convicted and sentenced in Queensland, which was that of murdering Heather Edgerton.  It was only one offence and not a series of offences, even assuming, which may be the case, that two offences can constitute a series for this purpose.  Section 161(4) had no application and the learned sentencing Judge was therefore not at fault in failing to apply it. 

The applicant also contends that the aggregate sentence of 19 years, six in New South Wales and 13 in Queensland is manifestly excessive and, he says, counterproductive to his rehabilitation and future prospects.  He submits that if the two offences of murder had been determined together and a sentence imposed for both the parole eligibility date pursuant to s.171(1)(a)(ii) of the Penalties and Sentences Act 1998 would be 13 years from the date of his arrest in 1990.  This is plainly incorrect.

That provision is concerned with the imposition of indefinite sentences as they are defined in s.162 of the Act.  The provision in question was not in force at the time the applicant was sentenced, and what was imposed here was, in any event, not an indefinite sentence in that sense, but a definite sentence, namely a sentence of life imprisonment.  There is therefore no substance in that argument.

At the back of the applicant's submissions is the idea that somewhere, somehow, the learned sentencing Judge should have "backdated" the sentence imposed for murdering Heather Edgerton to the date of her murder or at latest, the date of his arrest. That, however, is not the law. The law in Queensland is that a sentence dates from the time at which it is imposed. Section 154(a) of the Corrective Services Act 1988 provides, and at the time of sentencing provided, that a term of imprisonment starts on the day it is imposed.
Section 158 of that Act recognises certain exceptions to that rule, but none of them is applicable here.  The learned sentencing Judge was therefore not in error in failing to take account of the applicant's period of detention in New South Wales with a view to reducing the sentence in Queensland on that account.

The grounds on which the Crown oppose this application are that the application is misconceived having regard to s.305 of the Criminal Code. Under that section the penalty for murder is life imprisonment, which cannot be mitigated or reduced, or so the provision provided at the time of the sentencing of the applicant in this matter. Both at the time of the murder of Heather Edgerton and of the sentencing for it in 1996, s.166(1)(a) of the Corrective Services Act 1988, as amended in 1990, provided that a prisoner serving a term of life imprisonment was not eligible for release on parole until he had been detained for 13 years.

It is obvious that this section, and the Act as a whole, refer to a prisoner serving a term of life imprisonment, and to his detention, in Queensland and not elsewhere. The learned sentencing Judge therefore had no authority to reduce the 13 year minimum period specified in s.166(1)(a) of the Act.

The Crown also urges that there is no adequate explanation for the delay.  It may be said that the fact that, like most others who come here, the applicant was in prison and did not have ready access to legal advice; but that did not prevent him from applying for leave to appeal.  In any event, as I have said, the sentencing Judge had no option but to impose life imprisonment as from the date of the sentence and the principle in The Queen v. Mill can have no application where, as here, the penalty is mandatory and not a matter of judicial discretion.  There was no pre-sentence custody to be credited to the applicant because all the pre-sentence custody was attributable to the sentence imposed in New South Wales for the Jacobson murder.

I have already given reasons for agreeing with the submissions by the Crown.  In my view the applicant would have no prospect of success if leave to appeal were to be granted.  The application should accordingly be refused.

THOMAS JA:  I agree.

HOLMES J:  I agree.

McPHERSON JA:  The order is that the application for an extension of time within which to apply for leave to appeal against sentence is refused.

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