R v Mokany

[2006] QCA 325

SUPREME COURT OF QUEENSLAND

CITATION:	R v Mokany [2006] QCA 325
PARTIES:	R v MOKANY, Steven Julius
FILE NO/S:	CA No 143 of 2006 DC No 2652 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Sentence)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED EX TEMPORE ON:	30 August 2006
DELIVERED AT:	Brisbane
HEARING DATE:	30 August 2006
JUDGES:	McPherson and Holmes JJA and Wilson J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	Application for extension of time refused
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – WHEN REFUSED – where applicant sentenced for property offences on a number of occasions – where sentence of 18 months imprisonment, suspended after 124 days, made cumulative upon balance of activated suspended sentence – where applicant argues that activation of whole of suspended sentence, and cumulative nature of sentence, was unjust – where applicant given incorrect sentence calculation on entry into prison which was later corrected – whether extension of time should be granted
COUNSEL:	A Greenwood for the applicant M J Copley for the respondent
SOLICITORS:	A W Bale & Son for the applicant Director of Public Prosecutions (Queensland) for the respondent

HOLMES JA:  This is an application for an extension of time within which to seek leave to appeal against a sentence imposed on the 13th of October, 2005.  The applicant says that he was misinformed by a sentence calculation provided by prison management to the effect that the time he would actually have to serve was 291 days when in fact, as became apparent from an amended sentence calculation produced on the 1st of May, 2006, the relevant period was 1 year, 291 days.

To give context to that complaint, it is necessary to set out the details of three sentences imposed on the applicant.  On the 27th of August, 2002 he was before the District Court on one count of stealing, nine counts of fraud, and 11 counts of entering or being in premises and committing an indictable offence.  He was sentenced to two years imprisonment, suspended for two years after nine months was served.  For the sake of clarity, I will refer to that as the first sentence.  One hundred and seventy days of pre-sentence custody was declared, so that he had approximately 100 days to serve before the suspension took effect, leaving the balance of one year and three months unserved.

The applicant must have commenced re-offending almost immediately on his release from prison after those 100 days, because the next indictment on which he was sentenced on the 28th of July, 2004 included offences committed as early as the beginning of January, 2003.  He was sentenced on six counts of receiving with circumstances of aggravation, 10 counts of entering or being in premises and committing an indictable offence, two counts of unlawful use of a motor vehicle and two counts of fraud, as well as a number of summary offences.  He was sentenced to a total of three years imprisonment with an operational period of four years, suspended after 439 days: the pre-sentence custody he had served, which was declared in his favour.  No further penalty was imposed on the summary offences.  (I will call this the second sentence.)  The balance of the first suspended sentence imposed in August 2002 was activated to the extent of 12 months. 

The applicant says, in his affidavit, that he understood that that 12 months was to be served concurrently with the second sentence, so that he ought to have been released that very day; but that is a little difficult to follow since the balance of the suspended sentence had, not to that point, been activated.  An alternative version was given by his counsel at the sentence the subject of this application:  that he thought that from July 2004 he was serving both the 12 months and the second sentence.  Again, it is very difficult to see how he could have thought that to be the case, because the second sentence, clearly, was suspended from the date it was imposed.  Neither misconception is particularly relevant.  As it happened, the applicant was given conditional release from custody on 24th of March, 2005, after serving eight months of the activated period of 12 months.

On the 13th of October, 2005 the applicant was before the District Court again on one count of entering premises with intent and two of unlawful use of a motor vehicle.  In addition, he was charged with summary offences of possession of suspected stolen property, possession of tainted property and possession of implements used in the commission of an offence.  Again, he does not seem to have lost much time in
re-offending.  Those offences started on 10 June, 2005 less than three months after his release.  He had stolen a car by entering its owner's garage.  Later that day he crashed it into a light pole.  Two days later, on bail on the charges arising out of those matters, he stole another car.  Various items found on him on each of those occasions gave rise to the summary charges.  In each instance he lied to the police about his involvement.

The applicant was 32 years old.  He was a heroin addict and had lost an eye when assaulted in custody in New South Wales.  At the time of the car thefts he was homeless and had been using amphetamines.  The learned sentencing judge sentenced him on those offences and the entering of premises to 18 months imprisonment with an operational period of 18 months, suspended after 124 days, that being the period he had served in pre-sentence custody.  On the summary offences he was sentenced to 124 days, again the declared period. 

That sentence, the third sentence, was stipulated to be cumulative on the balance of the three years suspended sentence which his Honour then activated, a period, as he made clear, of one year, 291 days.  Indeed having activated that sentence, he twice repeated its effect to the applicant saying, in so many words, "you have got to do the 21 and a half months."  His Honour went on to say that he did not know if there would be any remissions or early release on that period.  He explained to the applicant that once he had served that period, the third sentence would begin; but because the 124 days before suspension had already been served, he would be released immediately.

The applicant says that as part of the classification process on his entry into prison he was given a conditional release date of 25th of April, 2006.  That certainly accords with the sentence calculation and verdict and judgment record which he was given.  Those documents seem to have been the result of simple error, which was subsequently corrected by an amended verdict and judgment record and sentence calculation provided to the applicant in February 2006.  The application for an extension of time was not lodged until 31st of May, 2006.  In his affidavit, the applicant says that he engaged lawyers in April 2006 having been prevented from doing so earlier by a need "to gather all relevant documents".  He does not explain further. 

As to the substance of the proposed appeal, the applicant's counsel argues that the learned sentencing judge in October 2005 erred in failing to consider whether it was unjust to activate the entire suspended sentence.  It is submitted that the applicant was unfairly disadvantaged by the effect of suspension of the second sentence as at the date of sentence in July 2004, so that it was not running concurrently with the 12 months activated on the first sentence; or, put another way, that it was unfair to require the 12 months of the first sentence to be served, in effect, cumulatively with the second sentence.  The learned sentencing judge on the third sentence then, it is contended, ought, because of that consideration, to have activated only 291 days of the second sentence, rather than the one year and 291 days.  It was, as I understand the argument, a special circumstance under S147(3) making it unjust to require the applicant to serve the whole of the second sentence. 

It was argued, in addition, that the fact that the third sentence was imposed cumulative on the second means that the applicant has to serve the entirety of the second sentence without eligibility for parole.  That too, it is said, was unjust.

For a number of reasons, I would not grant an extension of time.  Firstly, it is plain from the sentencing remarks that his Honour went to considerable pains to explain directly to the applicant that he was required to serve one year and 291 days.  He could not have failed, having been told three times, to understand that was the period he was required to serve and consequently to appreciate that the documents provided to him later contained an error.  Secondly, given that the revised verdict and judgment record was given to him in February 2006, there is no satisfactory explanation as to why it took until the end of May to make this application.

Thirdly, I do not think that an appeal in this matter has merit.  The argument that his Honour should have considered and then come to a conclusion that it was unjust to require the applicant to serve the entire balance of the second sentence suffers, as counsel for the Crown pointed out in his written submissions, from the flaw that at sentence, the applicant's counsel submitted that an appropriate punishment would entail the suspended sentence being activated in full.  That submission went in tandem with a further submission that the applicant should be given the benefit of suspension of the third sentence after the period already served in pre-sentence custody.  If counsel for the applicant at sentence disavowed any special circumstance producing injustice, I do not think it was incumbent on the judge to go looking for one in order to form the opinion referred to in S147(2).

In any event, returning to the argument as to why it was unjust, I do not see any reason that the period of the suspended sentence activated in July 2004 should not have been cumulative.  The applicant had breached the earlier sentence almost immediately on release.  There was no reason to neutralise its effect by making it concurrent.  As it was, he was given the benefit of being required to serve only 12 months of it rather than the full 15 months which remained unserved, and, if in fact, he had not then breached the second sentence as well, its cumulative effect would have been immaterial.  It is entirely through his own efforts that he has produced the activation of the second sentence.

There might have been some advantage to reversing the order of the sentences, so that the third sentence was suspended immediately and the applicant was eligible for release on parole so far as the second was concerned, primarily because of the advantage of supervision.  But the order of imposition did not render the activation of the sentence in full unjust, nor did it necessarily take the sentences as a whole outside a proper exercise of discretion.  The learned sentencing judge, perhaps a little surprisingly in view of the applicant's record, gave him the further concession on the third sentence of being required to serve no further time in custody beyond the pre-sentence custody.  That meant he was required to serve less than a quarter of the head sentence provided, of course, he managed not to re-offend on his release.  That, of course, is entirely in his own hands, but that sentence seems to me lenient.

Taking the sentences imposed on the applicant since 2002 in total, he has been sentenced to six and a half years imprisonment and, primarily as a result of his pattern of prompt breaching of suspended sentences, will have to serve about 4.6 years before he is released on the current matters.  That does not seem to me unjust or to offend the totality principle.  Accordingly, I would refuse the application for an extension of time within which to seek leave to appeal against sentence.

McPHERSON J:  I agree.

WILSON J:  I agree.

McPHERSON J:  The order of the Court is the application for extension of time is refused.

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