R v Matue

[2009] QCA 216

SUPREME COURT OF QUEENSLAND

CITATION:

R v Matue [2009] QCA 216

PARTIES:

R
v
MATUE, Faasala Samu
(applicant)

FILE NO/S:

CA No 87 of 2009
DC No 827 of 2009
DC No 482 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

31 July 2009

DELIVERED AT:

Brisbane

HEARING DATE:

17 July 2009

JUDGES:

Chief Justice, Muir and Chesterman JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made.

ORDER:

Application for leave to appeal against sentence dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant was sentenced, after a plea of guilty, to 18 months imprisonment for an offence of serious assault – where sentence was made cumulative on a sentence of four years and six months for an offence of robbery with actual violence and assault occasioning bodily harm – where parole eligibility was fixed on a date four months after the full time release date of the former four and a half year sentence – where parole eligibility date effectively delayed the applicant’s parole eligibility beyond the halfway mark of the combined sentences – whether parole eligibility date amounted to additional punishment

Corrective Services Act 2000 (Qld), s 205(2)(c), s 209(1)
Corrective Services Act 2006 (Qld), s 184(3)(a)
Penalties and Sentences Act 1992 (Qld), s 160B

R v Griinke [1992] 1 Qd R 196; [1990] CCA 294, cited
R v Hundric[2005] QCA 324, cited
R v Kitson [2008] QCA 86, cited
R v Russell[2005] QCA 392, cited

COUNSEL:

C Heaton for the applicant
M B Lehane for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Qld) for the respondent

1. CHIEF JUSTICE:  I have had the advantage of reading the reasons for judgment of Muir JA.  I agree that the application should be refused, for those reasons.

1. MUIR JA:  The applicant was sentenced on 2 April 2009 after a plea of guilty to 18 months imprisonment for an offence of serious assault committed on 20 July 2008.  The sentence was made cumulative on a sentence of four years and six months imposed on 18 December 2006 for an offence of robbery with actual violence and assault occasioning bodily harm.  A parole eligibility date of 16 November 2011 was fixed.  That was the date four months after the former full time release date for the four years and six months sentence.

1. The applicant seeks leave to appeal against the sentence on the grounds that the sentencing judge erred in fixing a parole eligibility date beyond 12 July 2009,[1] the date at which the applicant would have served three years imprisonment, i.e. one-half of the total of the four and a half and one and a half year terms, after taking into account 157 days of pre-sentence custody.

   [1]Conceded in oral submissions to be 29 December 2009.

1. The applicant was born on 27 April 1979 and was almost 30 years of age when sentenced.  He had a lengthy criminal history, which commenced with a sentence of four years imprisonment for an offence of stealing with actual violence whilst armed in company and using personal violence when he was aged 17.  He was sentenced on the same day for other serious offences.  There were numerous subsequent convictions for offences including assaults occasioning bodily harm and a serious assault prior to the conviction on 18 December 2006.  The subject offence was committed in breach of parole about four months after the applicant's release on parole on 6 March 2008.

1. Early in the morning of 20 July 2008 police officers in Fortitude Valley came upon a group of men having a verbal altercation.  One of the males in the group was arrested.  The applicant then king hit the complainant police officer in the head and punched him a further four times, leaving him dazed, but fortunately not permanently injured.  The applicant pulled the arrested man away from the police and assisted him to flee.  Both men briefly evaded apprehension but the applicant was located less than an hour later.  He again attempted to avoid apprehension but was captured and arrested.  He entered an early plea of guilty.

1. No complaint was made about the sentence of 18 months imprisonment:  the applicant's counsel, at first instance, submitted that a sentence of 18 months to two years was appropriate.  It is submitted, however, that depriving a prisoner of the opportunity to apply for parole amounts to additional punishment.  Reference was made to authorities, which, it was submitted, were to the effect that if eligibility for parole is to be delayed substantially beyond the point at which the statutory regime would entitle an applicant to apply for parole, special circumstances must exist.[2]  In this regard, reference may be had also to R v Kitson.[3]

   [2]R v Griinke [1992] 1 Qd R 196; R v Hundric [2005] QCA 324; and R v Russell [2005] QCA 392.

   [3][2008] QCA 86 at [16] – [19].

1. It was submitted that upon conviction, the applicant's parole was suspended (s 205(2)(c) of the Corrective Services Act 2000 (Qld)) and then cancelled upon his being sentenced to a new term of imprisonment for the new offence (s 209(1) of the Corrective Services Act 2000 (Qld)) but that, pursuant to s 184(3)(a) of the Corrective Services Act 2006 (Qld), the applicant's parole eligibility date of 18 October 2007 remained.

1. Other submissions by the applicant's counsel were to the following effect:

(a)         The effect of the new parole eligibility date delaying the eligibility date beyond the halfway mark of the applicant's combined sentences was not the subject of submissions by counsel and it was unclear that the sentencing judge appreciated that this was the effect of his order;

(b)         The proper approach was for the sentencing judge to consider the total period of imprisonment to be served by the applicant and to determine, by reference to general sentencing principles, the appropriate parole eligibility dates;

(c)         For the sentence not to have a crushing effect, a parole eligibility date "around the end of the present term of imprisonment" should be set; and

(d)       Having regard to the perceived likelihood that the applicant would not get parole as a result of his pattern of offending, the applicant should be given a reduced sentence to provide "some certainty of release".

1. I am unable to accept that the sentencing judge failed to turn his mind to the practical effect of the sentence.  Even disregarding the sentencing judge's observations in the course of argument, his Honour fixed the parole eligibility date only four months into an 18 months term of imprisonment imposed for what his Honour, rightly, described as a serious offence which called for general and also personal deterrence in the light of the applicant's prior criminal history.  In my view, the sentencing judge sufficiently stated his reasons for fixing a parole eligibility date which had the effect of removing any prospect of early release on parole in respect of the four and a half year sentence.[4] The course taken by the primary judge, although resulting in a burdensome sentence, was within the discretion given by s 160B of the Penalties and Sentences Act 1992 (Qld). The applicant had breached his parole conditions by committing a serious offence of violence and he did have a history of similar offending.

   [4]C.f. R v Kitson [2008] QCA 86 at [16] – [19].

1. In fixing the parole eligibility date the sentencing judge may have been mistaken as to the applicant's full time release date for all offences but, if so, any mistake operated in the applicant's favour and may be ignored for present purposes.

1. For these reasons, I would dismiss the application for leave to appeal.

1. CHESTERMAN JA:  I agree that the application for leave to appeal against sentence should be dismissed for the reasons given by Muir JA.