R v Hocking
[1993] QCA 553
•16/12/1993
| IN THE COURT OF APPEAL | [1993] QCA 553 |
| SUPREME COURT OF QUEENSLAND | |
| Brisbane | |
| [R. v. Hocking] [R. v. McCarty] [R. v. Stephenson] |
C.A. No. 218 of 1993
T H E Q U E E N
v.
PAUL RODNEY HOCKING (Applicant)
C.A. No. 220 of 1993
T H E Q U E E N
v.
LAWRENCE LESLIE MCCARTY (Applicant)
C.A. No. 219 of 1993
T H E Q U E E N
v.
GLENN THOMAS STEPHENSON (Applicant)
_________________________________________________________________
DAVIES J.A. AMBROSE J.
CULLINANE J.
_________________________________________________________________
| Ju | dgment delivered 16/12/1993 |
REASONS FOR JUDGMENT PREPARED BY DAVIES J.A. AND CULLINANE J. JOINTLY AND
AMBROSE J. SEPARATELY, AMBROSE J. DISSENTING IN PART.
_________________________________________________________________
1. IN APPEAL NO. 218 OF 1993, APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED. APPEAL ALLOWED. SET ASIDE THE SENTENCE IMPOSED BELOW. IN LIEU, THE APPLICANT IS SENTENCED TO TEN YEARS' IMPRISONMENT CUMULATIVE UPON THE SENTENCE CURRENTLY BEING SERVED, WITH A RECOMMENDATION THAT THE APPLICANT BE ELIGIBLE FOR PAROLE AFTER SERVING EIGHT YEARS THREE MONTHS OF THE TOTAL PERIOD OF IMPRISONMENT THAT HE MUST SERVE UNDER THE SENTENCE IMPOSED BY THIS COURT AND THE SENTENCE CURRENTLY BEING SERVED.
2. IN APPEAL NO. 220 OF 1993, APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED. APPEAL ALLOWED. SET ASIDE THE SENTENCE IMPOSED BELOW. IN LIEU, THE APPLICANT IS SENTENCED TO TWELVE YEARS' IMPRISONMENT CUMULATIVE UPON THE SENTENCE CURRENTLY BEING SERVED, WITH A RECOMMENDATION THAT THE APPLICANT BE ELIGIBLE FOR PAROLE AFTER SERVING NINE YEARS THREE AND A HALF MONTHS OF THE TOTAL PERIOD OF IMPRISONMENT THAT HE MUST SERVE UNDER THE SENTENCE IMPOSED BY THIS COURT AND THE SENTENCE CURRENTLY BEING SERVED.
3. IN APPEAL NO. 219 OF 1993, APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED. APPEAL ALLOWED. SET ASIDE THE SENTENCE IMPOSED BELOW. IN LIEU, THE APPLICANT IS SENTENCED TO TEN YEARS' IMPRISONMENT CUMULATIVE UPON THE SENTENCE CURRENTLY BEING SERVED, WITH A RECOMMENDATION THAT THE APPLICANT BE ELIGIBLE FOR PAROLE AFTER SERVING SIX YEARS OF THE TOTAL PERIOD OF IMPRISONMENT THAT HE MUST SERVE UNDER THE SENTENCE IMPOSED BY THIS COURT AND THE SENTENCE CURRENTLY BEING SERVED.
4. IN EACH APPEAL, THE COURT STATES THAT THE APPLICANT WAS HELD IN PRE- SENTENCE CUSTODY FROM 8 MARCH 1993 TO THE DATE OF THE SENTENCE NOW IMPOSED BY THIS COURT, AND DECLARES THAT PERIOD OF NINE MONTHS AND EIGHT DAYS TO BE IMPRISONMENT ALREADY SERVED UNDER THAT SENTENCE.
_________________________________________________________________
CATCHWORDS: CRIMINAL LAW - SENTENCE - Three applicants sentenced to 10 years with recommendation after 4 years, 12 years with recommendation after 5 years, and 10 years with recommendation after 4 years, respectively for armed robbery in company - All sentences cumulative on terms currently being served - All on parole at time of offence
- Two had previous convictions for armed robbery - All pleaded guilty - Whether proper allowance made for pre- sentence custody - Whether judge intended non-parole period to run from date of sentence - Whether sentences manifestly excessive
Penalties and Sentences Act 1992, ss. 157(3), 161
| Counsel: | M. Byrne for the Crown Ms K. Wenck for the Applicant Hocking T. Williamson for the Applicant McCarty J. Farmer for the Applicant Stephenson |
| Solicitors: | Director of Prosecutions for the Crown Legal Aid Office for the Applicants |
Hearing Date(s): 8 September 1993
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Before Mr Justice Davies
Mr Justice Ambrose
Mr Justice Cullinane
Brisbane
[R. v. Hocking] [R. v. McCarty] [R. v. Stephenson]
C.A. No. 218 of 1993
T H E Q U E E N
v.
PAUL RODNEY HOCKING (Applicant)
C.A. No. 220 of 1993
T H E Q U E E N
v.
LAWRENCE LESLIE MCCARTY (Applicant)
C.A. No. 219 of 1993
T H E Q U E E N
v.
GLENN THOMAS STEPHENSON (Applicant)
R EASONS FOR JUDGMENT - DAVIES J.A. AND CULLINANE J.
Judgment delivered 16/12/1993
These are three applications for leave to appeal against sentence. Each of the applicants was convicted in the District Court at Brisbane on 18 June this year on two counts: the first of armed robbery in company and the second of unlawful use of a motor vehicle for the purpose of facilitating the commission of an indictable offence; both having been committed on 8 March 1993. The applications are, in each case, only in respect of the sentence imposed for armed robbery in company.
Just after 1 p.m. on Monday, 8 March 1993 a Commodore sedan containing three men stopped outside the Commonwealth Bank in Mary Street, Brisbane. Witnesses observed that the driver, who as it turned out was Stephenson, was wearing a false beard, a hat and surgical gloves, while the two passengers wore dark clothing, balaclavas and surgical gloves. The passengers alighted from the car and entered the Bank. An attempt by an observer to warn persons inside the Bank was to no avail.
Inside it was seen that one of the persons, Hocking, was carrying a .357 Magnum and the other, McCarty, held a bag. A number of customers, together with staff, were present. A shot was fired and the bullet struck the bank counter before passing through a door and hitting a glass partition. It was later said in submissions on behalf of Hocking that the shot was fired accidentally.
Persons in the Bank were then ordered to lie on the floor while McCarty jumped the counter and demanded money from a teller and searched drawers, a store room and a strong room. $15,000 was obtained.
Hocking and McCarty then returned to the Commodore which was driven off. Public spirited citizens followed the car to where a second getaway car was parked. The applicants then drove a short distance in the second motor vehicle and then escaped on foot.
However, a passer-by had noted the registration number of the first vehicle and another had noticed the registration number of the second. After the second motor vehicle had been abandoned papers mentioning both McCarty and Stephenson by name were found in it. This led to the apprehension of all three within a couple of hours. The police found the gun in McCarty's possession and that each of the applicants had on him over $4,000 in cash.
Although none of the applicants made any admissions to police, a solicitor for all three told the police on the day they were apprehended that there would be pleas of guilty in each case. This transpired on an ex officio indictment thus saving the State a considerable amount of money. However, it could not be suggested that it was evidence of any remorse on the part of any of the applicants as they had been caught red-handed.
The carrying of a loaded gun, the wearing of disguises, and the use of two get-away vehicles shows a degree of planning and premeditation. However, it was common ground between the applicants that it was Stephenson who planned the robbery, apparently on the night before, and had then enlisted the help of each of the others.
We turn now to the several sentences imposed on the respective applicants.
Hocking was sentenced to ten years' imprisonment cumulative upon a sentence then being served by him with a recommendation that he be eligible for release on parole after serving four years. It is not clear from Hocking's criminal history sheet whether that earlier sentence totalled eight years, eight and a half years or nine years three months. We have assumed, as appears to have been accepted below, that it was eight and a half years. The fact that he was allowed out on parole after serving four years three months is some support for this. Ms Wenck, who appeared for Hocking before us, did not contend that the sentence of ten years, including as it did the recommendation, was excessive subject to two qualifications.
The first was the making of proper allowance for time already spent in custody. The applicant had been in custody from 8 March 1993, the day of the commission of the offences and on which he was arrested, to 18 June 1993, the date of sentence, a period of about three and a half months, and of course continuously since then. Ms Wenck submitted that his Honour, in sentencing the applicant, should have given credit for the period up to 18 June 1993 and, even though in relation to the total sentence it is very small, the applicant was entitled to have it corrected. It is plain that his Honour thought that this period was a period served in respect of the earlier offences. We agree that he was in error in this respect. The applicant remained on parole in respect of the sentence then being served by him until his conviction on these offences, that parole not having otherwise been revoked. Having determined, as we do, that the applicant was held in custody during this period in relation to proceedings for these offences and for no other reason we think that we should take the time from 8 March 1993 to the date of sentence to be imprisonment already served under the sentence (s. 161(1)); and take the further steps required by s. 161(3).
The second qualification made by Ms Wenck is that the non-parole period resulting from his Honour's recommendation should commence from the date of sentence. If it were to commence from the commencement of the term of imprisonment imposed, it would mean that the applicant's total term of imprisonment, adding to his existing term the term imposed in the present case, would be eighteen and a half years, but he would not be eligible for parole until he had served twelve and a half years of that total term.
We would be surprised if his Honour's intention were to impose on the applicant a non-parole period greater than that which he would have served had no recommendation been made. However, his Honour said: "I sentence you to ten years' imprisonment and I recommend that you be considered for parole after serving four years of that sentence." Read literally, that could mean that the appellant would not be eligible for parole until he had served four years of a sentence to commence in approximately August 1997 (that is, eight and a half years from 3 July 1987 together with one year seven and a half months, the time between his release on parole and his recommencing to serve the unexpired portion of that term), thus having the effect referred to in the preceding paragraph. It was conceded by the respondent that, whatever was said, it could not have been his Honour's intention to do that; but rather to ensure that the applicant be eligible for parole after four years from 18 June 1993, the date of the sentence. As it will be necessary, to give effect to s. 161, for this Court to re-sentence the applicant, we must make a recommendation for parole relating to the whole period that the applicant must serve: s. 157(3)(a). We propose to recommend that he be eligible for parole after serving eight years three months of the total period that he must serve under both sentences.
There being no other criticisms by this applicant of his sentence, we turn to the application of McCarty.
McCarty was sentenced to twelve years' imprisonment cumulative upon a sentence of eight years and seven months then being served by him with a recommendation that he be eligible for parole after serving five years. Although it did not immediately appear from his argument, we understand that, in the end, Mr Williamson, who appears for McCarty, also relied on the first point relied on by Ms Wenck. McCarty was also in prison from 8 March 1993 to the date of sentence and, of course, ever since. As he was also on parole in respect of earlier offences and, because that parole had not otherwise been revoked, he remained on parole until his conviction for these offences, we think that the time in custody was in relation to proceedings for these offences and for no other reason and that, in his case also, we should take the time from 8 March 1993 to the date of the sentence which we impose to be imprisonment already served under that sentence.
Mr Williamson did not rely upon Ms Wenck's second point because he submitted that it was plain that McCarty's non-parole period commenced from the date of sentence. We are not so sure. Having sentenced Hocking, his Honour said that similar considerations applied in respect of McCarty. He then said specifically with respect to the recommendation: "I recommend that you be considered for parole after serving a period of five years." We do not think that his Honour could have intended to mean something different in this respect in McCarty's case from that which he meant in Hocking's. We understood the concession by Mr Byrne on behalf of the respondent to apply also to McCarty. We propose in his case also, as we must, to make a recommendation for parole relating to the whole of the period he must serve.
Mr Williamson also submitted that the head sentence was manifestly excessive because of the early plea of guilty.
We do not think that there is any substance in that argument. Having regard to the applicant's shocking criminal record - he had previously twice been convicted of armed robbery and once of attempted armed robbery and was on parole in respect of one of the armed robberies when he committed these offences - and the fact that the applicant was caught red-handed, we think that the sentence imposed gave more than sufficient reduction for the guilty plea accepting, as we do, that it nevertheless saved the State the cost of committal proceedings and a trial.
Stephenson, like Hocking, was sentenced to ten years' imprisonment cumulative upon the term then being served, which in his case was four years, also with a recommendation that he be eligible for release on parole after serving four years. Mr Farmer, who appeared for Stephenson, also relied on the points raised by Ms Wenck. Stephenson was also on parole at the time of commission of these offences and was also in custody from 8 March 1993. His parole not having been revoked, he also was in custody for no other reason than in relation to proceedings for these offences. In his case also we should therefore make the order to which we have referred in each of the other cases.
As to parole, his Honour's recommendation with respect to Stephenson was in similar terms to that with respect to McCarty. He said: "I recommend that you be considered for parole after serving a period of four years."
Again we accept that his Honour's intention was that the non-parole period commence from the time of sentence but we must make a recommendation for parole relating to the whole period that the applicant must serve.
Mr Farmer also submitted the sentence was manifestly excessive having regard to the plea of guilty and its consequent saving of cost and time and the lack of parity with the sentence imposed on Hocking having regard to Stephenson's less extensive criminal record. We have already referred to the pleas of guilty. In the circumstances, though it was appropriate for his Honour to reduce the sentences for those pleas, having regard to the circumstances of this case that should not have been a great reduction and, in the case of Stephenson we think that it was more than sufficient.
It is true that Hocking has a longer criminal record than Stephenson. On the other hand, he had not, as Stephenson had, already been convicted of armed robbery, the sentence for which Stephenson was on parole when he committed these offences. Moreover, Stephenson was the author of the scheme to commit this robbery and enlisted Hocking and McCarty to help him. We think that in the circumstances his Honour was justified in imposing similar sentences on Stephenson and Hocking and, as he did, a heavier sentence on McCarty because of his more serious criminal record.
The application by Hocking is granted and the appeal against the sentence is allowed. The sentence imposed below is set aside and in lieu thereof the applicant is sentenced to imprisonment for ten years cumulative upon the sentence already being served, with a recommendation that the applicant be eligible for parole after serving eight years three months of the total period of imprisonment that the applicant must serve under that sentence and the sentence which he is already serving. The Court states that the applicant was held in pre-sentence custody from 8 March 1993 to the date of this sentence, a period of nine months and eight days, and we declare that period of nine months and eight days to be imprisonment already served under the sentence.
The application by McCarty is granted, the appeal against the sentence is allowed and the sentence is set aside. In lieu thereof the applicant is sentenced to twelve years imprisonment cumulative upon the sentence which he is already serving. The Court recommends that he be eligible for parole after serving nine years three and a half months of the total period of imprisonment that he is required to serve under that sentence and the sentence which he is already serving. The Court states that the applicant was held in pre-sentence custody from 8 March 1993 to the date of this sentence, a period of nine months and eight days, and we declare that period of nine months and eight days to be imprisonment already served under the sentence.
The application by Stephenson is granted, the appeal against the sentence is allowed and the sentence is set aside. In lieu thereof, the applicant is sentenced to ten years' imprisonment cumulative upon the sentence which he is already serving. The Court recommends that he be eligible for parole after serving six years of the total period of imprisonment that he is required to serve under that sentence and the sentence which he is already serving. The Court states that the applicant was held in pre-sentence custody from 8 March 1993 to the date of this sentence, a period of nine months and eight days, and we declare that period of nine months and eight days to be imprisonment already served under the sentence.
THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
C.A. No. 218 of 1993
C.A. No. 219 of 1993 C.A. No. 220 of 1993
Brisbane
Before Mr. Justice Ambrose
| [R. | v. | Hocking | & | Ors] |
| BETWEEN: |
THE QUEEN
v.
PAUL RODNEY HOCKING
LAWRENCE LESLEY McCARTY GLENN THOMAS STEPHENSON
Applicants
REASONS FOR JUDGMENT - AMBROSE J.
Judgment delivered 16/12/1993
In these matters I have had the advantage of reading the reasons for judgment of Davies J.A. and Cullinane J. which set forth the facts relevant to this appeal.
Because I take a different view from that reached by my brothers, I wish only to refer to the following additional facts which, in my view, are relevant to the issues to be determined upon the application:
At the time of the commission of the offences for which each of the
sentences, the subject of this application, was imposed:
The applicant Hocking was on parole for which he had become eligible
pursuant to s.166(1) of the Corrective Services Act 1988.
The applicant McCarty was on parole for which he had become eligible
pursuant to a recommendation for early parole made at the time of his
sentence pursuant to s.166(3)(a) of the Corrective Services Act as it
then stood.
The applicant Stephenson was on parole for which he had become
eligible by virtue of s.166(1) of the Corrective Services Act.
Both Hocking and McCarty were sentenced prior to and Stephenson was
sentenced subsequent to 1 December 1988, the date upon which the Corrective
Services Act 1988 came into force.
Each of the applicants was arrested for the offence for which he was
sentenced and in respect of which he makes this application on 8 March 1993.
Each remained in custody until 18 June 1993, the day upon which the
sentences under review were imposed - i.e. each was in custody for about
three and one half months continuously after his arrest in respect of the
charge for which he was sentenced on 18 June 1993.
In my view upon these applications the provisions of ss.157 and 161 of the Penalties and Sentences Act 1992 must be considered within the context of ss.166, 187, 190 and 191 of the Corrective Services Act 1988.
Under s.5(2) of the Corrective Services Act 1988, a recommendation for early eligibility for parole made under the provisions of s.53(3) of the Offenders Probation and Parole Act 1880 is to be treated as if made under the Corrective Services Act 1988 which came into force on 1 December 1988.
Both Hocking and McCarty were sentenced prior to and Stephenson was sentenced subsequent to 1 December 1988. Each of those applicants however was released upon parole subsequent to 1 December 1988. In light of s.5(2) of the 1988 Act, it is unnecessary to give further consideration to the provisions of the Offenders Probation and Parole Act 1980.
Sections 165 and 166 of the Corrective Services Act of 1988 were amended in significant respects by the Penalties and Sentences Act 1992. The amendments are contained in the schedule of consequential and other amendments having effect pursuant to s.207 of the Penalties and Services Act.
Consideration of the amendments made to the Corrective Services Act in my view, indicates that no significant substantive alteration was made to the law relating to either a prisoner's statutory eligibility for parole or the power of a sentencing judge to recommend that a prisoner become eligible for parole at a time different from when he would become statutorily entitled in the absence of such a recommendation. To my mind the alterations made were designed to incorporate in the Penalties and Sentences Act the statutory provisions relating to the power of a sentencing judge with respect to making recommendations for eligibility for parole and to confine the statutory provisions of the Corrective Services Act to other matters relating to eligibility for parole, its effect, consequences upon its cancellation and the powers generally of the Community Corrections Board with respect to making orders releasing prisoners whether on parole or otherwise.
Under s.165(1)(a)(i), it is provided:
"(1) Subject to s.166 the Queensland Community Corrections
Board may by written order direct that -
(a) a prisoner who -
(i)
is serving a term of imprisonment (including a term of imprisonment for life) or
(ii) ...
be released on parole on the date specified in the order."
Under s.166 of that Act (as amended in 1992) it is provided -
"(1) Subject to sub-section (4) of this section and section 157 of the Penalties and Sentences Act 1992 a prisoner mentioned in s.165(1)(a)(i) is not eligible for release on parole until he has served half at least of the term of imprisonment to which he was sentenced."
Prior to its repeal by the Penalties and Sentences Act 1992, s.166(3) which closely followed the form of s.53(3) of the Offenders Probation and Parole Act 1980, empowered a court "upon sentencing a person convicted of an offence to a term of imprisonment" to recommend that he be eligible for release on parole after undergoing such period of imprisonment under that sentence as was specified in the recommendation.
The Penalties and Sentences Act 1992 repealed that provision and provided in its stead by s.157(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."
There was nothing in the Corrective Services Act 1988 or the Offenders
Probation and Parole Act 1980, nor is there expressly in the Penalties and Sentences Act 1992, any statutory provision requiring a sentencing judge to make in every case, a recommendation for parole when imposing a sentence of imprisonment.
The only constraint in the Corrective Services Act 1988 before its amendment in 1992 upon the power of a judge to make a recommendation for parole under s.166 of that Act, was to be found in s.166(3)(c). Under that section, where a sentence of imprisonment was imposed to be cumulative upon one which the prisoner was then undergoing, the sentencing Judge was empowered to recommend that he be eligible for release on parole after undergoing such period of imprisonment as was specified in the recommendation which had to be a period not shorter than that which the prisoner was required to undergo before becoming eligible for release on parole with respect to the first sentence. The object of this provision was obviously to prevent a sentencing Judge when imposing a second cumulative sentence from making a recommendation which might make the prisoner eligible for parole with respect to the total of the first term of imprisonment and the cumulative term of imprisonment at an earlier time than he would have become eligible under the first term of imprisonment had he not been sentenced for the second offence; the second sentencing Judge was unable by his recommendation to in effect shorten the non-parole period applying with respect of the first sentence whether or not it resulted from a recommendation by the first sentencing Judge.
It is against that legislative background, in my view, which the provisions of s.157(3) of the Penalties and Sentences Act must be considered.
The "term of imprisonment" (used inter alia in s.166 of the Corrective
Services Act) is defined in s.10 of that Act as follows:-
"Term of imprisonment" means -
(a) the term of a single sentence or
(b) the unbroken period of imprisonment a personis 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 atdifferent times
- -"
On the facts of this case it was only the applicant McCarty who was, at the time of his arrest for the offence for which he was sentenced by the learned sentencing judge, on parole in respect of a sentence which had been imposed with a recommendation for early eligibility pursuant to s. 166(3)(a) of the Corrective Services Act.
No such recommendation for early eligibility had been made with
respect to the sentences imposed upon the applicants Hocking and Stephenson.
Under s.187 of the Corrective Services Act 1988 (not amended by the
Penalties and Sentences Act of 1992) it is provided that -"Where a prisoner
who has been released on parole is sentenced to another term of imprisonment
upon conviction for an offence committed in Queensland or elsewhere during
the parole period his parole shall ipso facto be cancelled whether or not
the parole period has expired".
In my view it follows from this provision that when each of the applicants was sentenced for the offence committed on 8 March 1993 during the period of his parole the order for parole made with respect of the earlier sentence or sentences was "ipso facto" cancelled.
Under s.190 of the Corrective Services Act 1988 (not amended by the
Penalties and Sentences Act of 1992) it is provided -
"(1) Upon the cancellation of a prisoner's parole the original warrant of commitment or other authority for his imprisonment -- shall again be in force and no part of the time between his release on parole and his recommencing to serve the unexpired portion of his term of imprisonment -- other than the period (if any) during which he was kept in custody consequent upon his parole being suspended, shall be regarded as time served in respect of that term."
Under ss.190(2) and 191 wide power is given to the Queensland Community Correction Board when parole is cancelled to release once more on parole or to release absolutely free of parole prior to the expiration of the term of the sentence in respect of which parole was granted.
Upon the facts of this case in my view when the sentencing judge imposed the sentences which the applicants seek to review the parole which they enjoyed at the time of committing the offence for which they were imprisoned was "ipso facto" cancelled.
Under s.190 of the Act each of the applicants then became liable to serve the balance of the term of imprisonment he had been ordered to serve before release upon parole and "no part of the time between his release on parole and his recommencing to serve the unexpired portion of his term of imprisonment" was to be regarded as time served in respect of that term of imprisonment which had in effect been suspended upon release upon parole and the original warrant of commitment to prison again came into operation and authorised detention in custody until either the expiration of the term of imprisonment initially imposed or the making of a further order by the Community Corrections Board.
In my view there is nothing in s. 157(3) of the Penalties and Sentences Act which expressly or by implication in the circumstances of this case required the sentencing judge to make a fresh recommendation for parole with respect to the sentences imposed upon either Hocking or Stephenson, because it is clear that no recommendation for parole had been made in respect of either applicant which led to his release upon parole. It was only with respect to McCarty that a recommendation had been made which led to his release on parole during which he committed the offence on 8 March 1993 for which he was sentenced on 18 June 1993.
Section 157(2) does not require the making of a recommendation for eligibility for release on parole by a sentencing judge. It simply empowers the judge to make such a recommendation if he thinks it appropriate.
Section 157(3) should be construed in the light of the express provisions of s.166(1) of the Corrective Services Act 1988 and s.157(2) of the Penalties and Sentences Act 1992.
It is clear from those sections read together that a prisoner sentenced to imprisonment will in the absence of any recommendation made under s.166(3) of the Corrective Services Act (repealed in 1992) or a recommendation made pursuant to s.157(2) of the Penalties and Sentences Act subsequent to that time be statutorily entitled to be considered for parole when he has served at least one half of the term of imprisonment to which he is sentenced.
With respect to Hocking and Stephenson, having regard to the terms of s.166(1) and the definition of "term of imprisonment in s.10 of the Corrective Services Act, each would have become statutorily entitled to be considered for parole at the expiration of one half of the total of the sentence formerly imposed in respect of which a parole order had already been made and the term imposed by the sentencing Judge.
That is not to say that the learned sentencing Judge was not entitled to make a recommendation that each be eligible to be released upon parole at a different time from that at which pursuant to the express provisions of s.166(1) of the Corrective Services Act he would otherwise become entitled.
However, in my view, the learned sentencing Judge was not required to make a recommendation for eligibility with respect to either Hocking or Stephenson.
With respect to McCarty, however, it is clear that at the time of the commission of the offence he had been released upon parole after a sentence of imprisonment imposed upon him with a recommendation for early eligibility for parole. This recommendation had been made apparently by the sentencing Judge pursuant to s.53(3) of the Offenders Probation and Parole Act 1980, which is to be treated as if it had been made under the Corrective Services Act 1988.
In my view, s.157(3) of the Penalties and Sentences Act imposed upon the learned sentencing Judge an obligation to make "a fresh recommendation for parole" in McCarty's case. Section 157(3) provides:
"(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 made a recommendation of a non-parole period for an offender - make a fresh recommendation for parole relating to the period of imprisonment that the offender must serve."
Section 157(4) provides:
"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)."
It seems clear that the object of s.157(4)(b) is to achieve under the 1992 Act what had been achieved in s.166(3)(c) of the Corrective Services Act 1988, which it repealed.
Section 157(5) makes it clear that subsection 3(a) has an effect only upon previous recommendations made by courts. It provides -
"(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."
The provisions of s.157 avoid the unsatisfactory state of affairs which existed under s.166(3) of the Corrective Services Act where a second sentencing judge could not in effect revoke a previous recommendation for parole and in respect of the sentence he imposed could not recommend eligibility for parole with respect to that sentence at a time before the prisoner concerned was eligible for parole with respect to the first term of imprisonment imposed. It should be kept in mind that a sentencing judge may either reduce or lengthen the period of imprisonment specified in s.166(1) of the Corrective Services Act to be served before a prisoner becomes eligible for parole.
It is only with respect to McCarty, in my view, that the sentencing Judge in this case was obliged to make a "fresh recommendation" under s.157(3)(a) of the Penalties and Sentences Act. He was required to do so only because the previous sentence on McCarty had been accompanied by a recommendation for eligibility at a time different from that provided for under s.166(1).
Upon the facts of this case at date of sentence both Hocking and Stephenson had the statutory entitlement to apply for parole given them by s.166(1) of the Corrective Services Act; each then became liable to serve the total of the unserved balance of the sentence or sentences in respect of which they had been released on parole and the whole of the sentence imposed on 18 June 1993. On the facts the learned sentencing Judge, as he was entitled to do under s.157(2) of the Penalties and Sentences Act, did make a recommendation for early parole which had the effect simply of shortening the period to be served in prison before they became entitled to apply for parole. In my view, the recommendation made in respect of Hocking and Stephenson was not a "fresh recommendation" of the sort contemplated under s.157(3) of the Act. It was simply a recommendation which the sentencing Judge was empowered to make pursuant to s.157(2) of the Act.
In my view it was unnecessary for the learned sentencing Judge and it is unnecessary for this Court to make any recommendation for parole referable to the imprisonment to be served by Hocking and Stephenson with respect to the sentence or sentences in respect of which they had been granted parole prior to the commission of the offence on 8 March 1993.
On the other hand the recommendation made in respect of McCarty was a "fresh recommendation" for eligibility for parole of the sort contemplated by s.157(3) of the Penalties and Sentences Act and the recommendation which the learned sentencing Judge in fact made, was one that he was required to make. He was required to do this because in respect of the earlier sentence with which the sentence he imposed was to be served cumulatively, there had already been made a recommendation for early parole under the equivalent of s.166(3) of the Corrective Services Act.
The Crown had no argument as to the recommendation for parole made by the learned sentencing Judge in respect of each of the three applicants. I would therefore approach the applications made before this Court on the assumption that the learned sentencing Judge, when he imposed the sentences which the applicants seek to review, decided as he was empowered to do under s.157(2) of the Penalties and Sentences Act to make a recommendation for early eligibility for parole in respect of Hocking and Stephenson and that the recommendation was lawfully made.
Whether or not the learned sentencing Judge had his attention directed to the point, he certainly did make a recommendation for parole with respect to the applicant McCarty and, in my view, it can be correctly characterised as a "fresh recommendation" within the meaning of s.157(3) of the Penalties and Sentences Act. As far as I am able to determine from the record the non-parole period under the recommendation made by the learned sentencing Judge must have been not less than the period specified in respect of the first sentence because after all McCarty had been released upon parole at a time prior to the commission of the offence for which he was sentenced. The date recommended for early eligibility in McCarty's case was of course subsequent to the date of sentence.
The second point which requires consideration is the effect to be given to the period of approximately three and one half months each of the applicants spent in custody between the time of his arrest on 8 March 1993 and the time of sentence on 18 June 1993.
In my view, both ss.158 and 161 of the Penalties and Sentences Act may
have application.
Section 158 provides -
"If
(a) an offender -
(i) is convicted of an offence; and
(ii) has been in custody continuously since arrest on a charge of the offence and for no other reason; and(b) the court sentences the offender to imprisonment for the offence; the court may order that the term of imprisonment is to have effect on and from the day the offender was arrested."
At first sight this section would appear to apply to the facts in this case, because each of the applicants was held in custody continuously from the time of his arrest for the offence upon which he was sentenced until the time of sentence, and for no other reason. One might think that s.158 would have application in most cases where an offender is held in custody awaiting trial or sentence without the benefit of bail.
Section 161 on the other hand, contemplates an offender being sentenced where he has spent some time in custody in respect of the offence for which he is sentenced, but perhaps has not been held in custody from the time of his arrest until time of sentence. One might think this section would normally apply where an offender is released from custody upon bail pending the determination of the charge against him.
Section 161(1) provides:
"(1) If an offender is sentenced to a term of imprisonment for an offence any time that the offender 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 unless the sentencing court otherwise orders."
Under s.161(3), where s.161(1) applies, the sentencing court must
(a) declare the time held in pre-sentence custody to be imprisonment already served under the sentence and
(b) cause to be noted in the record of the courts
(i) the fact that the declaration was made and its details and (ii) unless the court otherwise order under subsection (i) the fact that the declared time was taken into account by it in imposing sentence and
(c) cause the commission to be advised of the declaration and its details.
It is clear that under both ss.158 and 161, the court has a discretion as to the effect it will give to pre-sentence custody which has occurred in respect of the offence for which the prisoner is sentenced. Under s.158, the court is given a general discretion in that it "may order" that the term of the imprisonment is to have effect on and from the day the offender was arrested. It is unnecessary in this case to consider whether in its discretion a court might order that the term of the imprisonment have effect from any subsequent day under that section.
Under s.161 pre-sentence custody "must be taken to be imprisonment already served under the sentence unless the sentencing court otherwise orders". There may therefore be circumstances in which pre-sentence custody ought not to be ordered to be taken to be imprisonment already served under the sentence.
In my view, neither s.158 or 161, either expressly or by implication, relate to the length of a sentence of imprisonment imposed by a sentencing judge; the legislation contemplates that length of sentence will be determined having regard to other matters relevant to the sentencing process. If a court does not make the order contemplated under s.158 then doubtless it would take into account the length of time spent in custody by the prisoner continuously since the time of arrest awaiting sentence in determining both the length of sentence and the time at which eligibility for parole may be recommended. However, in my view, in fixing the length of sentence it is clear that the express terms of s.158 contemplate that time spent in pre-sentence custody is to be treated as service of part of the sentence imposed for the purposes of s.166(1) of the Corrective Services Act so that eligibility for parole will commence to run when half the term of imprisonment has been served where the commencement of that term is fixed at the date of arrest, rather than the date of imposition of sentence.
Apart from the exception contained in it, s.161(1) of the Penalties and Sentences Act, it seems to me, is directed not to the sentencing judge, but rather to the Queensland Corrective Services Commission to whom the warrant of commitment is addressed when sentence is passed. This view is confirmed by the provisions of s.161(3)(c) and 5(c) of the Act. In this respect I refer to ss.32 and 33 of the Corrective Services Act 1988 and to the observations made upon them in R. v. Seul (1992) 1 Qd. R. 203 and at particularly at p.205 l. 1 - 12 and p. 209 l. 5 - 35.
On the facts of this case, it is my view that upon imposition of the sentences which the applicants seek to have reviewed, the parole upon which each was at liberty at the time of commission of the offence, was ipso facto cancelled. He was held by the Corrective Services Commission when sentence was imposed. Upon imposition of the sentence sought to be reviewed a second warrant issued and under ss.32 and 34, both warrants became operative immediately.
On my reading of ss.158 and 161, the learned sentencing Judge doubtless had a discretion to make orders of the sort contemplated in those sections. It would be surprising, indeed, if a sentencing judge would not make such an order unless for good reason. The giving of the discretion in s.158 and the express power for the sentencing Judge to "otherwise order" under s.161 indicates that it was the view of the Legislature that there may be occasions on which orders contemplated by those sections ought not be made.
The facts and circumstances in the present applications, at first sight to my mind, present some difficulty in a direct application in a satisfactory way of the provisions of either ss.158 or 161. The difficulty arises from the definition of "term of imprisonment" to be found in s.10 of the Corrective Services Act 1988, because the balance of the sentence formerly imposed which had to be served when parole was cancelled by the imposition of the sentence under review, together with the sentence of imprisonment imposed on 18 June 1993, constitute an "unbroken period of imprisonment a person is liable to serve by virtue of a number of sentences -- ordered to be served -- cumulatively -- imposed at -- different times".
The express terms of ss.158 and 161 do not, at first sight readily have application to the facts of cases such as these where the only sentence to which those sections can have application is a sentence of imprisonment to be served cumulatively with an existing sentence of imprisonment which has some years to run before the newly imposed sentence of imprisonment commences to run. Section 158(b) could only have application on the facts of the present case, if the first three and one half months of what was intended to be a cumulative sentence were treated as having already been served during the period of pre-sentence custody which could not to be treated as imprisonment under the first sentence because of the effect of the parole order which was not cancelled until the imposition of the second cumulative sentence. Service of the balance of the cumulative sentence, would then in effect be postponed until the expiration of the balance of the first sentence when it would once more have operation and the prisoner concerned would be imprisoned for the balance of the cumulative sentence imposed upon him.
I can find nothing in the cases to suggest that the term of a cumulative sentence may not be served in this manner. It would be unusual for the matter to arise: I think it really might only arise for consideration in circumstances of the kind to be considered upon the present applications, keeping in mind the express provisions of ss.158 and 161.
I can see no objection in principle why the period spent in custody awaiting sentence for the second offence ought not be treated as service in part of the imprisonment imposed upon each of the applicants on 18 June 1993.
Sentences may be served either concurrently or cumulatively. The object of a cumulative sentence is to require that the period of imprisonment specified be served in addition to and at a time different from that when any other period or periods of sentence which are or have at that time been imposed, are served.
Upon the facts of these applications I can see no reason why it was not open to the learned sentencing Judge to order that the terms of imprisonment he imposed upon the applicants have effect as to the first three and one half months from the time of arrest for the offence upon which they were imprisoned and the balance of that sentence to be served cumulatively with the unexpired portion of the sentence of imprisonment previously imposed by the earlier sentencing Judge.
An alternative available to the learned sentencing Judge was to order under s.161 that the three and one half months each of the applicants had already spent in custody between arrest and imprisonment be taken to be imprisonment already served under the sentence he imposed.
Under s.161(3) the learned sentencing Judge may have declared that the time held in pre-sentence custody between 8 March 1993 and date of sentence on 18 June 1993 be imprisonment already served under the sentence he imposed on 18 June 1993. He could then have caused the notifications and advice to be given contemplated by s.161(3)(b) and (c).
On the circumstances of this case, in my view, the learned sentencing Judge ought to have applied the provisions of either s.161(1) or s.158. In my view, such a course would have no effect upon the order made generally that the sentences imposed on 18 June 1993 should be served cumulatively with the sentences already imposed, and in respect of which the applicants were each on parole at the time of their arrest.
The failure of the learned sentencing Judge to advert expressly to either s.158 or 161(1) of the Penalties and Sentences Act or to state what, if any, consideration he gave to the three and one half months of pre- sentence custody experienced by each of the applicants suggests that he may have overlooked this matter. The Crown did not contend to the contrary.
In respect of each of the applicants, I would grant leave to appeal. I would allow the appeal. I would make an order under either s.158 or 161 of the Penalties and Sentences Act with respect to the period of approximately three and one half months spent in pre-sentence custody. The effect of an order under either section would be to make each applicant eligible to apply for parole at the end of the period served in custody recommended by the learned sentencing Judge, such period to be calculated from the date of arrest for the offence for which he was sentenced, 8 March 1993.
I would not otherwise interfere with the sentences appealed against.
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