R v Hartley

[1996] QCA 103

IN THE COURT OF APPEAL	[1996] QCA 103
SUPREME COURT OF QUEENSLAND

C.A. No. 461 of 1995

Brisbane

Before McPherson J.A.

Pincus J.A. Ambrose J.

[R. v. Hartley]

T H E Q U E E N

v.

MICHAEL WILLIAM HARTLEY

(Applicant)

McPherson J.A.
Pincus J.A.

Ambrose J.

Judgment delivered 19/04/96

Reasons for judgment of the Court

APPLICATION FOR LEAVE TO APPEAL REFUSED; BUT THE CORRECT DATE

FOR PAROLE ELIGIBILITY TO BE RECORDED AS 28 AUGUST 1996

CATCHWORDS	CRIMINAL LAW - SENTENCE - Effect of accumulated sentences on date for parole eligibility. s. 126(4) Penalties & Sentences Act; ss.29(2) and 33(4) Bail Act 1980; ss.170, 173 and 174(1) Juvenile Justice Act 1992; R. v. Gipters (CA 25 of 1995).
Counsel:	Applicant appeared on his own behalf M. Byrne Q.C. for the respondent
Solicitors:	Applicant appeared on his own behalf Director of Public Prosecutions for the respondent
Hearing Date:	21 March 1996

REASONS FOR JUDGMENT OF THE COURT

Judgment delivered the 19th day of April 1996

This is an application for leave to appeal against a sentence imposed by his Honour Judge Skoien in the District Court at Brisbane on 25 October 1995 for an offence of burglary and a further offence, committed on another occasion, of robbery with personal violence. The sentence imposed on that date was imprisonment for two years. The sentence was to be served concurrently with another term of imprisonment already being served by the applicant.

The burglary for which the applicant was sentenced was committed on 13 July 1993. The complainant in that case was waiting outside her house when she heard the sound of glass breaking. The police were called but the offenders decamped. The applicant was later traced through fingerprints on a broken window near the kitchen. Damage to the extent of $100 was done, but not much, if anything, of value was taken.

The robbery was committed on 11 August 1994 in the course of another breaking and entering offence. The occupant of the dwelling house found the applicant inside the house. The applicant had already taken a briefcase, which he swung at the complainant causing an injury to his arm, which required suturing. That offence was committed only a day or so after the applicant had been released on bail after being charged with attempted housebreaking.

The applicant was 18 years old when he was sentenced by Judge Skoien for the two offences. His Honour had originally admitted him to probation for three years. That was on 21 April 1995; but the probation order was breached when the applicant committed another housebreaking offence on 13 May 1995. It was when he was brought back before Judge Skoien for re-sentencing on 25 October 1995 that he received the two-year term now under appeal.

When he was admitted to probation before Judge Skoien on 21 April 1995, the applicant was also sentenced as a child for another offence of burglary and for a further offence of unlawful use of a motor vehicle. For those two offences he was ordered to serve one year of detention but was given the benefit of an immediate release order. On 7 July 1993 he was dealt with by his Honour Judge Noud for breach of that order, resulting in revocation of the release order. On 12 July 1995 he was convicted in the magistrates court of the housebreaking offence committed on 13 May 1995. On that occasion he was sentenced to imprisonment for six months cumulative on his existing sentence.

There can thus be little doubt that when the applicant came before Judge Skoien on 25 October 1995, a sentence of imprisonment was called for. The community correctional officer reported that the applicant's response to supervision had, from the outset, been unsatisfactory. He had reported on only four out of eight occasions in the space of two months. The last such occasion had been 24 May 1995, after which he failed to respond at all. He lost all contact with the officer, and his whereabouts were not known until after he was sentenced by Judge Noud on 7 July 1995 for breach of the immediate release order. In her report to Judge Skoien, the correctional officer recommended that, under s.126(4) of the Penalties and Sentences Act, the applicant should be dealt with as if the subject offences had just been committed. So far as the duration of the sentence is concerned, it appears that on that occasion counsel for the applicant did not contest it.

In these circumstances the application to appeal against sentence should be dismissed. However, some confusion seems to have arisen about the precise impact of the sentencing regime to which the applicant is now subject. With the assistance of Mr Byrne Q.C. for the Crown, it is possible to set it out as follows:

A.        21.4.1995 (cor. Skoien D.C.J.)

(1) 3 years probation -

(a)       burglary; and

(b)       robbery with personal violence

(2)

1 year detention; immediate release order -

(a)	attempted burglary; and
(b)	unlawful use of a motor vehicle;

B. 7.7.1995 (Cor. Noud D.C.J.)
Breach of A(2): ordered to serve 1 year detention (28 days was declared as
already served).

C.        12.7.1995 (Magte. Ct., Beenleigh)

(1)	breach of bail: imprisonment for 1 month;
(2)	enter dwelling house with intent: 6 months cumulative;

D.

25.10.1995 (cor. Skoien D.C.J.)
Breach of (A)(1) - 2 years imprisonment

E.

In addition to the matters on the criminal history, the applicant "called in" fines on
7 December 1995 resulting in 24 days cumulative imprisonment.
It should be noted that the criminal history shows that the term of imprisonment

for one month imposed under item C above on 12 July 1995 was to be served concurrently with the term of six months imposed for entering a dwelling house. That is so because the offence was charged under s.29(2) of the Bail Act 1980, and not under s.33(4) of that Act, where a cumulative sentence is mandatory. It should also be noted that the applicant turned 18 in May 1995, and so was an adult when sentenced on 12 July 1995. The combined effect of ss.170 and 173 of the Juvenile Justices Act 1992, is that in such circumstances a sentence of imprisonment may be made cumulative upon an order for detention: see s.173(1)(b) of that Act.

The applicant's eligibility for parole is to be calculated as arising after serving half the period of detention or imprisonment which he is liable to serve: R. v. Gipters (CA 25 of 1995). That period is to be considered as beginning on 9 June 1995 because the sentence of detention for one year imposed by Judge Noud was "backdated" by 28 days: Juvenile Justices Act 1992, s.174(1): see item B, above. The period is to be considered as ending on 17 November 1997, because the concurrent two-year sentence imposed by Judge Skoien has the effect of supervening on and so "absorbing" the earlier cumulative sentences. To this, the 24-day cumulative sentence in item E above must be added.

Aggregation of the foregoing periods produces a period of 2 years 5 months and 8 days, of which a half (R. v. Gipters) is 1 year two months and 19 days. Based on this calculation, the applicant will become eligible for parole on 28 August 1996. Before being sentenced by Judge Skoien on 25 October 1995 to the two-year term, the applicant would have been liable to serve a total period of one year and six months (items B and C above), with the consequence that his parole date would have been nine months from 9 June 1995, namely 9 March 1996. The result is that the effect of the sentence of two years imposed by Judge Skoien was to postpone the applicant's parole date by a little less than six months. The prison summary from Borallon Correctional Centre gives the applicant's parole eligibility date as 7 November 1996, but it seems that this has been arrived at by failing to have regard to periods of detention before 25 October 1995.

The application for leave to appeal should be refused; but the correct date for parole eligibility should be recorded as 28 August 1996.