R v Izatt - [1999] QCA 290

99.290

COURT OF APPEAL

de JERSEY CJ
BYRNE J
WHITE J

CA No 87 of 1999

THE QUEEN

MATTHEW HARTLEY IZATT Applicant

BRISBANE

..DATE 28/07/99

JUDGMENT

THE CHIEF JUSTICE: The applicant pleaded guilty on
17 February 1999 to three counts of supplying heroin and was sentenced to concurrent terms of two years imprisonment. Counsel had agreed, before the learned sentencing Judge, on a range of two to four years. The Judge selected two years because of the pleas of guilty and some cooperation with the police and indicated that he believed he was proceeding leniently towards the applicant with a view to fostering some hope for his future and that of his family.

When the applicant committed the first of these three offences on 10 April 1996 he was only one week into a period of home detention. That related to a period of eight years imprisonment imposed upon re-sentencing (following legislative provision) for drug trafficking in relation to a life term imposed originally on 14 March 1989.

The eight year term was to commence from that date - 14 March 1989 - with a recommendation for parole after two and a half years. When released from actual custody, in the course of terms of imprisonment, the applicant has habitually reoffended. By the time he fell to be sentenced on 17 February 1999 for the instant offences his full-time release date was October 2001, allowing for remissions 15 October 2000, with eligibility for parole on 15 November 1998.

The learned Judge ordered that the applicant serve the two years imprisonment for the instant offences cumulatively upon the terms then being served. There is and can be no complaint about that. Neither is there nor can there be complaint about the two years itself which was, on any view, moderate, as the Judge emphasised.

It was necessary for the Judge to make a fresh recommendation for parole "relating to the period of imprisonment that the offender must serve" in terms of section 157 3a of the Penalties and Sentences Act and that, in terms of subsection 5b, was to "start on the date it was made". As subsection 5a provides, the fresh recommendation revokes earlier extant recommendations. As intended by the provision in subsection 5b that the new recommendation "start" when made, it becomes thenceforth the newly operative recommendation, even though it ordinarily relates to a date in the future. As at the time of sentencing, 15 November 1998 was the operative date for eligibility for parole. Counsel appeared to accept as unrealistic the prospect the applicant might be released on parole in relation to the term then being served, bearing in mind his conviction for trafficking in March 1989, his conviction in January 1994 for possession of heroin in November 1993, and his conviction for these offences, committed between April and July 1996.

The Judge took the view that, with relation to these offences, the applicant should be eligible for parole 12 months after commencing to serve these two…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1999] QCA 290
Decision Date: 28/07/1999

CaseChat Overview and Summary

The case of R v Izatt involved the applicant, Matthew Hartley Izatt, who had pleaded guilty to three counts of supplying heroin. The sentencing Judge imposed concurrent terms of two years imprisonment, considering the plea of guilty and some cooperation with the police. The applicant's history of reoffending upon release from imprisonment led to the Judge ordering that the two years imprisonment for the instant offences be served cumulatively upon the terms then being served. The key legal issue was whether the Judge erred in ordering that the non-parole period commence at a date in the future, in contravention of Section 157 5b of the Penalties and Sentences Act.

The Court of Appeal found that the Judge's approach was reasonable and did not contravene Section 157 5b. The Judge had provided a basis for calculating eligibility for parole, which was acknowledged as a permissible approach in Southey and Bealing. The new recommendation for parole became operative and started from the date of sentencing, 17 February 1999, and thus met the statutory requirement. The Court also rejected the submission that the Judge's approach unduly disadvantaged the applicant by deferring his entitlement to apply for parole until 15 October 2001. This approach was deemed fair to the applicant and in line with the justice of the case, considering his past history and the moderation in the selection of the two-year terms.

In conclusion, the Court of Appeal refused the application, agreeing with the learned Judge's approach to the sentencing and parole eligibility. The reasoning was based on the allowance for uncertainty in the applicant's release date due to possible remissions and the fairness of the Judge's consideration of the applicant's past conduct and the moderation in the sentence imposed.

Orders