R v Page & Renton

[1994] QCA 260

IN THE COURT OF APPEAL [1994] QCA 260

SUPREME COURT OF QUEENSLAND

C.A. No. 115 of 1994. C.A. No. 99 of 1994.

Brisbane

[ R v. Page & Renton]

T H E Q U E E N

v.

JASON BRIAN PAGE and
MARC ANDRE RENTON

(Applicants)

_______________________________________________________________

The Chief Justice
Pincus J.A.

McPherson J.A.

_______________________________________________________________
Judgment of the Court
Judgment delivered 13 July 1994

_______________________________________________________________

1	.	In each case:
(a)Application for leave to appeal granted.
(b)Appeal allowed. (c)Sentence imposed below wholly set aside.

2.    With respect to Page (C.A. No. 115 of 1994): (a)A sentence of 2 years imprisonment, starting

from the end of the periods of imprisonment Page was serving at the time he was sentenced for this offence, is imposed.

(b)It is recommended that the applicant be eligible for parole on 23 November 1994.

3.    With respect to Renton (C.A. No. 99 of 1994): (a)A sentence of 2 years imprisonment, starting

from the end of the period of imprisonment Renton was serving at the time he was sentenced for this offence, is imposed.

(b)It is recommended that the applicant be eligible for parole on 7 May 1996.

CATCHWORDS: CRIMINAL LAW - sentence - 3 accused convicted of riot already serving terms of imprisonment at the time of sentence - 2 accused not eligible for parole until some time after sentencing - other applicant immediately eligible for parole at time of sentencing - greater sentence and non-parole period imposed on last applicant - non-parole periods incorrectly calculated - whether periods should be corrected - whether applicant's sentence should be reduced to come in line with others.

Kiripatea [1991] 2 Qd.R. 686	.
Lowe	(1984) 154 C.L.R. 606.

Counsel:Mr R Lynch for the applicants.

Mr W Clark for the respondent.

Solicitors:Legal Aid Office for the applicants.

Director of Prosecutions for the respondent.

Date of hearing:16/05/1994.

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 13 July 1994

These are two applications for leave to appeal against sentence. The applicants were sentenced in the Supreme Court on 23 February 1994, together with one McIlwain. Each was charged with and had previously pleaded guilty to the offence of riot under s. 92 of the Corrective Services Act 1988; there was a circumstance of aggravation alleged in each case, viz that there was wilful and unlawful damage to property. McIlwain has not challenged his sentence, but it is necessary to make reference to it because Page's application depends in part upon an alleged discrepancy between his sentence and that imposed on McIlwain and Renton. The offences were committed on 21 November 1992.

McIlwain and Renton were each sentenced to 2 years imprisonment and Page was sentenced to 3 years imprisonment. To each sentence there was attached a recommendation for parole, but there is some difficulty in stating the effect of the recommendations; indeed, alleged uncertainty in the recommendations seems to have prompted these proceedings. It may well be that the difficulties of the case, and in particular the obscurity of the orders made, are due to uncertainty on the judge's part about the interpretation of s. 157 of the Penalties and Sentences Act 1992; the section is not very easy to follow.

His Honour regarded that provision as requiring that, in the present case, he make a fresh recommendation for parole with respect to all three offenders and counsel before us accepted that this was the proper course.

On the day of the offence, 21 November 1992, Page, Renton and McIlwain, together with some others, began drinking some alcoholic beverage. Page made a proposal to which Renton, McIlwain and another agreed, to "riot and burn up". A riot then took place, fires were started and a great deal of damage was done. Although the Crown did not assert that any of Page, Renton or McIlwain started a fire, each was alleged to be responsible for fires because they all either proposed, or agreed to a proposal, to start fires.

Extensive damage was caused by the fires, and also by the smashing of furniture and fittings to make barricades. The sentence to which the offenders were liable was 10 years imprisonment: s. 92(3)(a) of the Corrective Services Act 1988.

The judge pronounced orders in the following terms:

"In your case, McIlwain, you are sentenced to imprisonment for two years. As I have said, it is cumulative upon the sentence you are already serving. I make a recommendation under the provisions of section 157(3) of the Penalties and Sentences Act that you be eligible to be considered for parole after the expiration of three years and two months. I make it clear that nine months is the period that I would recommend you be eligible for parole after so far as the sentence of two years is concerned.
In your case, Page, you are sentenced to imprisonment for three years, to be served cumulatively. I recommend under section 157(3) you be eligible for parole after two years. Fifteen months is the period that I would fix as a recommendation in respect of the sentence of three years that I have imposed.

In your case, Renton, you are sentenced to imprisonment for two years cumulative upon your present sentence. I recommend under section 157(3) that you be eligible to be considered for parole after three years and three months. I again make it clear nine months is the period that I recommend you be eligible to be considered for parole after in respect of the term of two years."

Mr Lynch who appeared for the applicants submitted, and the submission appears to have some cogency, that it is not clear what the legal effect of these orders is. McIlwain and Renton were serving terms of imprisonment at the date of the offence in question under which they were not eligible for parole for some considerable time; McIlwain was eligible on 31 December 1994 and Renton on 7 August 1995. Page, on the other hand, was immediately eligible for parole, as at the date of sentence.

Page's circumstances are therefore the simplest; but for the sentence in question, he would on 23 February 1994 have been eligible for parole. The judge recommended that he be eligible for parole after 2 years. One could expect that to mean 2 years after the date of sentencing; neither counsel was able to reconcile that with the following statement with reference to Page, fixing a period of 15 months as a parole recommendation for the sentence imposed. Mr Lynch pointed out that, during a discussion between the primary judge and Page's counsel, his Honour said that Page would be eligible for parole after serving about another 10½ months. Mr Lynch suggested that Page's eligibility for parole might have been worked out by adding to the 15 month period his Honour mentioned that period of 10½ months and rounding off to 2 years. Whether or not that is so, it seems evident that what his Honour had in mind was to add to what he understood to be an existing eligibility for parole an additional period of 15 months, with the intention of deferring Page's eligibility for parole by 15 months on account of the riot offence.

Renton was, at the date of the sentence under consideration, eligible for parole on 7 August 1995. Again, it seems to us that his Honour's intention was to add, to the period which his Honour understood remained to be served under existing sentences until eligibility for parole, a further term of 9 months. We express that view although Renton had a little under 18 months to serve until eligibility for parole, so that a recommendation to achieve his Honour's apparent purpose should have been for parole after about 2 years and 3 months, not 3 years and 3 months.

Mr Clark for the respondent conceded fairly and we think correctly that the sentences imposed on Page and Renton require correction to reflect the judge's intention: as to Page, to defer eligibility for parole by 15 months, and as to Renton, to defer it by 9 months. It should be added that a similar error has been made in McIlwain's case, but that is not before us; the Registrar will, however, arrange for McIlwain to receive a copy of these reasons.

Mr Lynch said that the Court should go further and not content itself with specifying correct parole dates for Page and Renton; he argued that, in accordance with the principle of Lowe (1984) 154 C.L.R. 606, the sentence imposed on Page was such as to give him a justifiable sense of grievance. Mr Lynch's contention related, as we understood it, principally to the parole period, but consideration requires to be given to the head sentence also.

When one considers the serious nature of Renton's conduct, and its consequences, it is not easy to understand why such a light sentence was imposed as that which appears to have been intended by the learned primary judge - i.e. 2 years imprisonment, with the non-parole period extended by only 9 months. Renton had a significant criminal record culminating in three armed robbery convictions in April 1993, producing a sentence of 9 years imprisonment commencing on 7 August 1992. The learned primary judge pointed out that Renton's sentence would not expire until the year 2001 and referred to Kiripatea [1991] 2 Qd.R. 686 as requiring the exercise of a degree of moderation in sentencing Renton. What was said by Williams J in Kiripatea was that:

"When a sentence is deferred for a lengthy period, and in my view 5 years is such a period, then some moderation is called for with respect to the length of the sentence in question. The sentence imposed should not be a crushing one, and there is good reason for avoiding a sentence which would effectively destroy any hope a prisoner may have for rehabilitation". (702)

The principle just stated was not applied in favour of Page, apparently on the ground that his head sentences were due to expire at the end of 1995. Since, as appears from the record, the judge treated the three prisoners before him as deserving sentences broadly equivalent to one another, it may be deduced that Page's head sentence was made half as long again as those imposed on McIlwain and Renton, and his non-parole period two-thirds as long again as that applicable to McIlwain and Renton, not because Page was treated as being more culpable, but because the principle of Kiripatea was applied to the other two but not to Page. We would respectfully question whether it was appropriate to apply the principle with the result of which complaint is now made. The total sentences imposed upon each of the three prisoners, before those in question were imposed, were similar in length: McIlwain had a total of 8 years 4 months, Page a total of 8 years 6 months, and Renton 9 years. The substantial difference between them was that Page had been in gaol longer than the other two, having commenced serving his initial sentence in 1987. Application of Kiripatea in favour of McIlwain and Renton so as to shorten what would otherwise have been their sentences produced conflict with the principle of Lowe. We are inclined to think that a better course would have been to impose heavier sentences on McIlwain and Renton than were in fact imposed and to make the sentences imposed on all three equal. But the Crown does not seek an increase in the sentences imposed on McIlwain and Renton. The course which seems to us necessary, therefore, is to reduce Page's sentence to make it equal, both with respect to head sentence and the parole recommendation, to that imposed on Renton.

It may be useful to refer to discussion which took place before us, with respect to the proper approach to s. 157 of the Penalties and Sentences Act 1992 where a court has to make a fresh recommendation for parole: s. 157(3)(a). Such a recommendation "starts on the day it is made" under subs. 5(b), which plainly means that the period fixed runs from that day. It will often be convenient for the court to state a particular date on which the prisoner will become eligible under the fresh parole recommendation, rather than expressing the recommendation as being so many years or months after sentencing. Indeed, a statement of the date upon which the applicant is to be eligible for parole under the fresh recommendation is desirable, to avoid the ambiguity which might otherwise arise.

It appears to us that if a judge imposing sentence on say, 23 February 1994, wishes to achieve the result that the prisoner will become eligible for parole after having served another 9 months, then it may be convenient to specify the period for the purposes of s. 157(3)(a) as being "the period from the present date to 23 November 1994". But if the judge simply specifies, in making the fresh recommendation for parole, that the prisoner is to become eligible for parole (in the case postulated) on 23 November 1994, that would be both clear and a sufficient compliance with the requirements of s. 157.

For the reasons we have given, the following orders will be made. For the sake of clarity, the orders made below will be totally replaced.

1.	In each case: (a)Application for leave to appeal granted. (b)Appeal allowed. (c)Sentence imposed below wholly set aside.
2.	With respect to Page: (a)A sentence of 2 years imprisonment, starting

from the end of the periods of imprisonment Page was serving at the time he was sentenced for this offence, is imposed.

(b)It is recommended that the applicant be eligible for parole on 23 November 1994.

3. With respect to Renton:
(a)A sentence of 2 years imprisonment, starting

from the end of the period of imprisonment Renton was serving at the time he was sentenced for this offence, is imposed.

(b)It is recommended that the applicant be eligible for parole on 7 May 1996.