R v Musson
[1996] QCA 526
•20/12/1996
| IN THE COURT OF APPEAL | [1996] QCA 526 |
| SUPREME COURT OF QUEENSLAND |
C.A. No. 302 of 1996
Brisbane
[R v. Musson]
THE QUEEN
v.
KENNETH JOHN MUSSON
(Applicant)
Pincus JA Dowsett J Fryberg J
Judgment delivered 20 December 1996
Judgment of the Court
THE APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE IS REFUSED.
CATCHWORDS:CRIMINAL LAW - JUDGMENT AND PUNISHMENT - Sentence -
Totality principle - Further offences while on parole
R v Rose, unreported, CA 191/96, 23 August 1996
R v Cutajar; ex parte Attorney-General, unreported, CA 338/95, 19 December 1995
| Counsel: | Mrs D Richards for the applicant Mr J Henry for the respondent |
| Solicitors: | The Legal Aid Office of Queensland for the applicant Queensland Director of Public Prosecutions for the respondent |
Hearing Date: 10 September 1996
REASONS FOR JUDGMENT - THE COURT
Judgment delivered 20 December, 1996
On 17 August 1990 the applicant was convicted of six offences in the District Court at Southport. On one count he was sentenced to two years' imprisonment, on four counts he was sentenced to three years' imprisonment and on one count, robbery, he was sentenced to six and a half years' imprisonment. No recommendation in relation to parole was made. He was then aged 27. We were told nothing of the circumstances of those offences and it must be assumed that their criminality was properly reflected in the sentences imposed.
On 7 July 1992, less than two years later, he was apparently granted leave of absence. He failed to comply with the conditions attaching to that leave of absence and later that month was convicted and sentenced to three days' imprisonment for that offence. Two months later he was again at large, again, it seems, without escaping; but somehow he was or became unlawfully at large. In consequence, he was sentenced in November 1992 to four months' imprisonment cumulative on his existing sentences. His total period of imprisonment thereby became six years and ten months.
On 1 February 1994, three years five months and two weeks after he was sentenced, the applicant was released on parole.
Sixteen months later, on 5 June 1995, he broke and entered a dwelling house at the Gold Coast with intent to commit an indictable offence. He also stole, inter alia, a television set and $550 from the owner of the house. A little over two weeks later he was convicted of a breach of the Bail Act 1980 and fined $100. On 2 October he received a radio and a camera which he knew had been stolen. He was questioned by police about the June offences on that day and presumably was then charged with them and with receiving. He was however granted bail. It seems he did not comply with the bail conditions, for on 16 February 1996 he was sentenced to imprisonment for one month for another breach of the Bail Act. He has been in custody ever since.
An ex officio indictment was presented to the District Court on 19 June 1996, charging the applicant with the three offences committed while he was on parole. The period of imprisonment which he was at that time liable to serve was due to expire in July 1999, but his putative release date, taking into account remissions to which he had or might become entitled, was 2 June 1998. The judge was informed of that date. On both the breaking and entering count and the receiving count, he sentenced the applicant to imprisonment for three years and on the stealing count he sentenced the applicant to imprisonment for six months. He ordered that those sentences be concurrent with each other but cumulative upon the period of imprisonment which the applicant was already serving[1]. Because of various matters favourable to the applicant which had been put before him, he recommenced that the applicant be considered for release on parole after serving 12 months of the three year sentences[2]. He did so on the basis that the applicant would in consequence become eligible to be considered for release on parole in June 1999. That seems to be correct[3]. It also seems to follow as a matter of mathematics that with full remissions that sentence would result in his release in about June 2000, or with no remissions, in about June 2001.
[1]None of the custody from 16 February to 19 June was solely in respect of these three offences.
[2]His Honour correctly made his recommendation by reference to the new term of imprisonment which he was imposing: see
The applicant seeks leave to appeal to this court on the ground that the sentences of the District Court were manifestly excessive. Only the sentences imposed in relation to counts one and three were the subject of argument on the application. Our attention was drawn to a number of factors which his Honour was obliged to take into account in the applicant's favour. He had co-operated with police; he had allowed the matter to proceed by way of ex officio indictment; and he had pleaded guilty. The offences were not professional in nature and were apparently unpremeditated. The applicant had an unfortunate background, including a significant long term addiction to heroin. On the other hand, his Honour was entitled to take into account (and did take into account) the fact that the offences were committed whilst the applicant was on parole; and the fact that the applicant had previous convictions for similar offences. Ms Richards, who appeared on his behalf, conceded that in the light of these matters, it was not possible to argue that the sentences imposed in the District Court, standing alone, were excessive. However, she argued, it was otherwise when the totality principle was taken into account. In particular, Ms Richards emphasised that on the best view of things for the applicant, if the cumulative sentences began in June 1998 and he were given parole in accordance with the recommendation, he would still end up serving six years and 10 months of a total possible period of imprisonment of eight years and 10 months. This, she submitted, was disproportionate and in breach of that principle.
The principle relied upon by Ms Richards has been stated by the Court of Appeal in these
terms:
"Where a person is already serving a substantial term of imprisonment and is to be sentenced for other offences in circumstances where a cumulative sentence is appropriate, it is necessary to consider what the total effect of the sentences will be to ensure that it is not unduly onerous. Where the imposition of a cumulative sentence of a duration which would, standing alone, be appropriate but which would have an excessive effect in the particular circumstances of the case, appropriate allowance must be made for that factor in the sentence actually imposed (Mill v The Queen (1988) 166 CLR 59; R v Clements C.A. 279/92)."[4]
R v Cutajar[5] resembles the present case in that the prisoner committed a second series of offences while on parole for earlier offences. There, McPherson JA stated the totality principle in terms applicable to such circumstances:
"The combined effect of resurrecting the sentence imposed in 1990 and imposing sentence for the later offence ought not to be such as to make them a 'crushing' burden for the respondent. At the same time it would plainly be an error so to structure the later sentence as to disregard the commission of yet another offence of the same description in the course of his parole."
What were the qualities of the sentences in the present case which could have made them unduly onerous or "crushing"? From the perspective of the sentencing judge, the applicant was a man who had served nearly three and a half years in prison prior to February 1994, but who had then been at large, on parole, for two years. During that time he committed the three offences which brought him before the judge and also twice committed offences under the Bail Act. Presumably, his parole was suspended or cancelled[6]. At the time of sentencing, the applicant would, as a result, have had to serve a further three years and one month if his period of imprisonment were to have gone full term. However with remissions he could have expected to be released on 2 June 1998, only two years into the future[7].
[7]He could have expected release even earlier were the Queensland Community Corrections Board to have exercised its power to
The effect of the sentences the subject of the application was that he would have to serve a minimum additional period of 12 months, making a total of three years and four months continuous imprisonment, of which four months had already been served. He would then be eligible for parole. If he failed to obtain parole he would (given good behaviour) be entitled to release on the basis of remissions after a further 12 months[8]. However it is not correct to treat all of this imprisonment solely as punishment for the offences for which he was being sentenced. The words of Pincus JA and Dowsett J in R v Morris[9] are apposite:
[8]Corrective Services Regulations 1989, s.21.
"But it is too simple a view to regard the extra imprisonment as flowing only from the subject offences; to a substantial extent the applicant will be paying, one could say, the balance of the price for the [earlier] offences ... ."
Moreover it is to be remembered that the applicant had spent two years at large. One cannot assess the onerousness of the sentences as though he were serving six years and ten months continuously.
In assessing the head sentence of three years, the judge correctly took into account the fact that the applicant took improper advantage of parole to commit further offences[10]. Whether the head sentence fully reflected that fact might be debated, but is immaterial for present purposes. On the other hand, the sentence was mitigated by the recommendation for early parole. This was not a case where the cumulative sentences were imposed at an early stage of the first period of imprisonment. The total period of imprisonment faced by the applicant as a result of the sentences under challenge was not in the circumstances unduly onerous.
The application is refused.
Penalties and Sentences Act 1992, s.157(2) and R v Burton, unreported, C.A. 492 of 1994, 24 August 1995.
months before the matter came before his Honour. His Honour was informed that the applicant had been in custody
prior to the day of sentencing, but that none of the time in custody was solely attributable to the offences before him.
direct that he serve part only of the unexpired portion of his term of imprisonment or to release him again on parole:
see Corrective Services Act 1988, s.190(2), 191; but presumably these possibilities were remote.
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