R v Pavlovich

[1997] QCA 384

IN THE COURT OF APPEAL	[1997] QCA 384
SUPREME COURT OF QUEENSLAND

C.A. No. 249 of 1997

Brisbane

[R v. Pavlovich]

THE QUEEN

v.

TREVOR PAVLOVICH

(Applicant) Appellant

McPherson JA Shepherdson J White J

Judgment delivered 28 October 1997

Joint reasons for judgment of McPherson JA and White J.
Separate reasons for judgment of Shepherdson J concurring as to the orders made.

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED. APPEAL ALLOWED TO THE EXTENT OF RECOMMENDING THAT THE APPELLANT BE ELIGIBLE TO APPLY FOR RELEASE ON PAROLE FROM 31 DECEMBER 1998.

CATCHWORDS:	Offences committed while on home detention under earlier sentences - 3 years cumulative on earlier sentences - parole recommendation - sentence manifestly excessive - Coss CA No 262 of 1994.
Counsel:	Mr M Shanahan for the applicant Mr D Bullock for the respondent
Solicitors:	Legal Aid (Queensland) for the applicant Director of Public Prosecutions (Queensland) for the respondent
Hearing Date:	7 August 1997

JOINT REASONS FOR JUDGMENT - McPHERSON JA AND WHITE J

Judgment delivered 28 October 1997

The applicant for leave to appeal against sentence pleaded guilty in the District Court at Southport to charges on two ex officio indictments. On the first indictment were four counts of obtaining property partly by a false pretence and partly by a false promise and two counts of obtaining money by a wilful false promise between 29 May and 3 June 1996. On the second indictment were two counts of stealing, nine counts of forgery with a circumstance of aggravation and nine counts of uttering with a circumstance of aggravation between 16 June and 10 September 1996.

The applicant was aged 51 years at the time of sentence and had previous convictions for similar offences. At the time of the commission of these offences he was on home detention in relation to sentences imposed for similar offences in 1993 and 1994. On each offence he was sentenced to three years’ imprisonment cumulative on the sentence of seven years’ imprisonment which he was then serving. That sentence commenced on 21 July 1993. The learned sentencing judge recommended that the applicant be eligible to apply for parole on 20 July 2001.

The applicant complains that the sentence imposed was manifestly excessive because of the recommendation for parole eligibility.

It is necessary to consider the details of the offences as well as the applicant’s previous criminal history to ascertain whether that recommendation does indeed impose a manifestly excessive penalty upon the applicant. It is convenient to consider his previous criminal history first. It is not contested that the applicant has been a chronic gambler since his mid-teenage years. In August 1977, the first conviction on his criminal history was a minor one of being present at an unlawful game for which he was fined $40. On 2 May 1983 he was convicted of false pretences and imprisoned for eighteen months suspended with a non-parole period of six months and bound over to be of good behaviour for two years. Those offences occurred in Adelaide. On 5 December 1986 he was charged with five offences of embezzlement in New South Wales with sentence deferred on entering into a recognisance in the sum of $5000 to be of good behaviour for five years. Seventy further counts were dealt with on a schedule. On 21 July 1993 he was convicted in the Southport District Court on counts of stealing, false pretences, attempted false pretences and misappropriation of property with a circumstance of aggravation. On each of the stealing, false pretences and attempted false pretences charges he was sentenced to imprisonment for two years and to a term of imprisonment of seven years for the misappropriation offence with a recommendation that he be considered eligible for parole after serving two years and six months. It was recommended that he be given access to psychiatric and psychological services whilst in custody. He applied for an extension of time within which to apply for leave to appeal against these sentences in December 1993 which was refused.

In the District Court at Brisbane he was sentenced to three charges of stealing as a servant on 9 September 1994 in respect of offences which occurred in July 1993 just prior to being dealt with in the Southport District Court. He was sentenced to a term of imprisonment of two years in respect of each charge concurrent with the sentence he was then serving and recommended as eligible for parole after 20 July 1996. Finally, on 30 January 1996 he was convicted and fined in the Magistrates Court at Inala of possession of property suspected of being tainted.

The applicant was released on home detention on 1 April 1996. The first series of offences concerned a Mr Jack Ackerley. He had known the applicant since 1991 and on one occasion had loaned him some money. He and his wife used to operate a dry- cleaning business which the applicant had frequented prior to his imprisonment in 1993. In late May 1996 the applicant persuaded the Ackerleys to lend him some money to buy a car which he untruthfully said he needed in a job which he had managed to secure. They loaned him $5000, the amount the subject of count 1 on the first indictment. Later that day he returned to their residence and told them that the police were pressing him for $8000 in back-payments for child maintenance and that if he did not pay he would be arrested and sent back to prison. He had told the Ackerleys that he was in negotiations with Suncorp and would receive a substantial amount of money. The Ackerleys gave him a further $8349 which was the substance of count 2. The applicant persuaded them to part with these sums of money by emotional manipulation for reasons which were untrue.

Two days later he contacted Mr Ackerley and persuaded him to lend him $12,850 in two sums for the deposit for the purchase of a unit and later that day he persuaded Mr Ackerley to advance him a further $2800 for his children’s education. A further sum of $8200 was paid to the applicant by Mr Ackerley and all of these loans were against promises of repayment. These loans constituted the balance of the counts on the first indictment.

The applicant did make some intermittent repayments of about $15,000 of the $37,199 which had been advanced. Mr Ackerley began to press the applicant for repayment and after carrying out his own investigations uncovered the false explanations for the need for the moneys. When he confronted the applicant, the applicant produced a cheque in the sum of $23,000 and asked Mr Ackerley to give him $10,000 for the cheque. Not surprisingly Mr Ackerley was somewhat suspicious and would not accept the cheque. He accompanied the applicant to the bank where it was not met on presentation because he was said to have no entitlement to it. At the time of sentence $22,199 remained outstanding of the sums of money which were fraudulently obtained from Mr Ackerley.

Seventeen counts on the second indictment concerned Mr Ackerley’s cheque- book from which some eight cheques were removed by the applicant on or about 17 June. The applicant forged Mr Ackerley’s signature onto the cheques after making them payable to cash in various amounts - similar activity to that which was dealt with in 1993. On eight occasions the applicant forged the cheques and uttered them at the ANZ Bank. He obtained money from the bank totalling some $63,346. Two counts on the second indictment concerned the woman with whom the applicant was then living. He stole a leaf from her cheque-book, forged her signature on it and uttered the cheque obtaining $396. The applicant was interviewed by the police on 9 September 1996 and made full admissions concerning the cheque offences. He was not then questioned about the wilful false promise matters. He expressed remorse for abusing the trust of the Ackerleys but said that he was a pathological gambler.

The total amount involved in respect of all of the offences was $100,641 of which $85,641 was not recovered at the time of sentence. The applicant was returned to custody in July 1996.

After returning to prison the applicant was able to participate in a number of courses to assist in rehabilitating him in respect of his gambling addiction and was regarded as a very well behaved inmate. The learned sentencing judge had the benefit of a psychological report by Dr Peter Golus in which he concluded that the applicant had a strong potential for rehabilitation in respect of his pathological gambling “given his remorsefulness for, understanding of and insight with regards to past behaviours”. Dr Golus concluded that it was highly unlikely that he would reoffend should certain conditions be adhered to. They were -

“Intensive and prolonged counselling and psychotherapy of Mr
Pavlovich’s pathological gambling disorder - whilst incarcerated; and that such counselling and therapy be undertaken following release from
prison.”

The offences were serious breaches of trust aggravated by the fact that they were committed whilst on home detention in respect of very similar offences. The learned sentencing judge accepted that the offences were caused by a pathological gambling disorder and he correctly thought that the imposition of cumulative sentences was called for. Indeed that is not contested and neither is the sentence of three years. The prosecution below had submitted that but for the fact that the applicant was already serving a lengthy term of imprisonment, with his record, a head sentence in the order of six to seven years could have been imposed but submitted for a range of three to five years with a new recommendation for parole at some considerable time in the future so that the applicant would serve some further time before being released. Defence counsel accepted those submissions with respect to the head sentence, but whilst not advancing any particular period, sought an earlier parole recommendation. The learned sentencing judge was informed by defence counsel that the applicant was entitled to apply for parole immediately and that with remissions his sentence in respect of the previous offences would be completed on 30 December 1997.

The learned sentencing judge said of matters favourable to the applicant - his timely pleas on ex officio indictments and steps towards rehabilitation and model conduct in prison - “Those are matters which can be taken into account by way of a recommendation for early parole”(R13). His recommendation was that the applicant be considered for parole on 20 July in the year 2001.

At the time when the applicant committed these offences he was on home detention. Any period of home detention served by a prisoner in compliance with the instrument authorising his release counts as part of the term of imprisonment, s.86(11) Corrective Services Act 1988. His parole eligibility had been 20 July 1996 as a consequence of a fresh parole recommendation made in the District Court on 9 September 1994 which had the effect of extending his parole eligibility period by six months but it passed no doubt because the applicant had been returned to custody for breach of the home detention conditions and the new offences.

Pursuant to s.157(3) of the Penalties & Sentences Act 1992, when the applicant came to be sentenced for these offences the learned sentencing judge was required to set a fresh recommendation for parole relating to the period of imprisonment that he was required to serve. The expression “period of imprisonment” is defined in s.4 of the Penalties & Sentences Act 1992 to mean -

“. . . the unbroken duration of imprisonment that an offender is to serve for

2 or more terms of imprisonment, whether -

(a) ordered to be served concurrently or cumulatively; or

(b) imposed at the same time or different times;

and includes a term of imprisonment.”

In the Corrective Services Act 1988 the expression “term of imprisonment” means -

“ (a) the term of a single sentence; or

(b)  the unbroken period of imprisonment a person is liable to serve by virtue of a number of sentences, whether ordered to be served concurrently or cumulatively and whether imposed at the same time or at different times;

. . .”

Section 157(1) of the Penalties & Sentences Act provides that “non-parole period” means -

“the part of a term of imprisonment or period of imprisonment that an
offender must serve before the offender is eligible to apply for parole.”

By s.122(2) of the Corrective Services Act a prisoner commences to serve a cumulative sentence when, taking into account any remission granted in respect of the first sentence, the prisoner has completed serving the first sentence.

By virtue of s. 166(1) of the Corrective Services Act a prisoner is not eligible for release on parole until the prisoner has served at least one half of the term of imprisonment to which he was sentenced subject to the provisions of s.157(4) of the Penalties & Sentences Act which requires a sentencing court to ensure that the fresh non-parole period is not less than the period recommended in the original recommendation. As was observed by the Court in Coss CA No 262 of 1994, where a prisoner has passed the halfway mark during the course of an earlier term of imprisonment before an additional cumulative term is imposed the application of the automatic halfway provision can result in a sentence which is too much ameliorated, per Macrossan CJ at pp.5, 6 and Thomas J at pp.1-3.

The period or term of imprisonment which the applicant was liable to serve as a consequence of the 1993, 1994 and the subject sentences was ten years (the 1994 sentences being concurrent). By operation of the provisions of the Corrective Services Act (without reference to s.157 of the Penalties & Sentences Act) the applicant was then entitled to apply for release on parole after serving five years of that sentence, s.166(1)(d), namely, 20 July 1998. 20 July 1998 would be a further two years from the previous fresh recommendation of 20 July 1996 which was made on 9 September 1994.

The effect of the learned sentencing judge’s recommendation for release on parole on 20 July 2001 means that the applicant must serve eight years of the combined ten-year term of imprisonment. We accept Mr Shanahan’s submission that his Honour appears to have intended that the applicant serve twelve months of the three-year cumulative head sentence which he imposed. This would be consistent with his comment that he proposed to recognise the factors favourable to the applicant by an early recommendation for parole. It seems likely that the learned sentencing judge overlooked the applicant’s expected release date with remissions on 30 December 1997 and assumed that the cumulative sentence which he was about to impose would commence at the expiration of the seven year earlier sentence after 20 July 2000. The significance of the date was not drawn to his attention by counsel.

The question then is whether the recommendation that was made led to a sentence which was manifestly excessive. The totality principle was more than adequately acknowledged by the learned sentencing judge by adding a further three years to the existing sentence. There is no doubt that the applicant committed serious offences whilst on home detention. He will continue to be a danger to the community unless he can successfully undergo the intensive programme referred to in Dr Golus’ report and ought not to be released into the community prior to the expiration of his sentence unless this has occurred. The learned sentencing judge recommended that he receive such treatment during imprisonment. Ultimately it is a matter for the Board to decide when it is safe to release the applicant back into the community with his past conduct in mind. It is not appropriate in this case that the automatic halfway point be selected for parole application eligibility as that would lead to an insufficient sentence but there is no reason why the applicant should not have the benefit of the learned sentencing judge’s clear intention that he should be required to serve twelve months of the new sentence.

We would grant the application for leave to appeal against sentence and allow the appeal to the extent only of recommending that the appellant be eligible to apply for release on parole from 31 December 1998.

REASONS FOR JUDGMENT - SHEPHERDSON J.

Judgment delivered 28 October 1997

I have read the draft joint reasons for judgment prepared by McPherson JA and White J. I am grateful to accept the facts as set out in their Honours’ reasons. The present application raises yet again problems arising from a judge having set a fresh recommendation for parole pursuant to s.157(3)(a) of the Penalties & Sentences Act 1992.

The facts and circumstances concerning the offences for which the applicant was sentenced on 27 May 1997 are set out in the reasons of McPherson JA and White J who have also summarised the applicant’s prior criminal history.

Relevant to the central issue in this application the following chronology appears from

the record:-

21 July 1993	Applicant’s appearance in the Southport District Court when sentenced to 2 years imprisonment on 1 count of stealing, 1 of false pretences and 1 of attempted false pretences and at the same time sentenced to 7 years imprisonment for misappropriation of property with circumstances of aggravation. Recommendation to be considered for parole after serving 2 years and 6 months - the effective date of that recommendation was 21 January 1996.
9 September	Applicant’s appearance in the Brisbane District Court on 3 charges
1994	of stealing - all offences committed in July 1993 and before 21 July 1993 - sentenced to 2 years imprisonment concurrent with term then being served. Recommended eligible for parole after 20 July
1996.
1 April 1996	Applicant released to home detention - [any period of home detention served by the applicant in compliance with the instrument authorising his release counted as part of his imprisonment - s.86(11) Corrective Service Act 1988].
29 May - 3 June	Applicant committed the offences concerning Ackerley described in
1996	the first indictment and for which sentenced on 27 May 1997.
In or about June	Applicant committed 20 offences referred to in second indictment
1996	for which sentenced on 27 May 1997.
July 1996	Applicant returned to custody - apparently partly because of the 1996 offences and partly because of the breach of home detention.
27 May 1997	Applicant appeared in District Court at Southport and pleaded guilty to all offences in indictments 1 and 2. Learned sentencing judge was informed that the 7 year term imposed on 21 July 1993 expired on 20 July 2000 and (before the sentence was pronounced on 27/5/97) the learned sentencing judge informed the applicant’s earliest possible release date was 30 December 1997, taking all remissions into account. (T12)

It is apparent that because the applicant had committed the offences in mid-1996 his recommended eligibility for parole date - 20 July 1996 passed by uneventfully. The applicant was in custody from sometime in July 1996 until sentence on 27 May 1997 - it seems - although it is not clear - that that custody was probably mostly in respect of the 7 year sentence imposed on 21 July 1993.

On 27 May 1997 the learned sentencing judge imposed another term of imprisonment - 3 years to commence at the expiration of the term the applicant was then serving. His Honour gave effect to s.157(3)(a) of the Penalties & Sentences Act and made a fresh recommendation for parole. That recommendation was that the applicant be considered eligible for parole on 20 July 2001 - this recommendation revoked the recommendation which had been made on 9 September 1994.

The applicant does not complain about the 3 years imprisonment cumulative on the 7 year term of imprisonment - he says that the recommended eligibility for parole date - 20 July 2001 results in a sentence which is manifestly excessive.

There is no suggestion that the occasion was not one when s.157 operated.
As at 27 May 1997 the applicant had served more than half the sentence of 7 years

imposed on 21 July 1993. If at that date he had served less than half then the case may well have been one where the decision of this Court in The Queen v. Coss (CA No.262 of 1994 - Judgment delivered 15/3/95) should have been applied. Had that occurred then the old and new sentences would have been added and half of that total specified as the new non-parole period e.g. in the present case the new non-parole period would then have ended on 20 July 1998. In Coss Thomas J said:-

“ However quite apart from any obligation under s.157, a sentencing judge
needs to consider the point at which parole will be considered, and if the automatic half way effect of s.166 of the Corrective Services Act seems inappropriate, to specify the appropriate non-parole period. The pitfall may arise in cases where an offender is already serving a prison term and where it is intended to impose a cumulative sentence. In cases where the offender has served less than half of the first sentence a prima facie reasonable result may be obtained if one adds together the old and the new sentence and specifies half of that as the new non-parole period. However, in a case like the present where the first sentence has gone beyond its half way point (apparently upon the offender’s own choice) the application of such a formula will produce the result that he will have a parole eligibility less than halfway through the new sentence. In other words it can produce an artificial abatement with the effect
that the overall result is too light.”

The effect of the latter portion of this extract from His Honour’s judgment is that care should be taken to ensure that a fresh recommendation does not affectively set at nought or close to nought the cumulative aspect of the later sentence. In the present case, the learned sentencing judge was told that the earliest possible release date in respect of the 7 year sentence was 30 December 1997. His Honour might well then have reasonably concluded that the cumulative sentence would begin on or about 31 December 1997. If that were so the 3 years cumulative sentence will expire on 30 December 2000. If the formula mentioned by Justice Thomas as applicable where a prisoner had served less than half the first sentence were applied, then arithmetically speaking the recommendation of eligibility for parole would have occurred 5 years after 21 July 1993 namely 21 July 1998. In the present case, assuming that the 3 year sentence commenced on 31 December 1997 such a result would substantially neutralise the cumulative 3 year sentence. It is true that the learned sentencing judge did say:-

“On the positive side however you come before me on ex officio indictment.
You pleas are obviously timely ones. You have taken significant steps towards your own rehabilitation since your return to prison last year and it is correct to describe you as a model prisoner. Those are matters which can be taken into
account by way of a recommendation for early parole.”

A little later, in speaking of the offences for which His Honour was then sentencing him His Honour said to the applicant:-

“I must have regard most of all to the fact that these were serious breaches of
trust. It is essential that there be a penalty apparent in respect of those offences. To impose anything other than a cumulative term would give a clear impression that there was no penalty in the light of the period of time which you
are likely to have to serve in respect of those earlier offences.”

His Honour then went on to impose the 3 years imprisonment cumulative and expressly said that that term was “to commence at the expiration of the term which you are presently serving”.

The matter is difficult in the sense that one cannot say with any degree of certainty exactly when the 3 year cumulative term began. Based on the information before His Honour, it is my view that the earliest possible date at which the 3 year term would commence is 31 December 1997. If that is so then His Honour’s recommendation for parole on 20 July 2001 would operate after the 3 years expired.

If such is the case the recommendation is meaningless. It seems that His Honour sentenced on the basis that the 3 years cumulative did not commence until 21 July 2000. On that basis His Honour recommended that the applicant be considered eligible for parole after serving 1 year of such a sentence.

I must say that judges asked to sentence in a case such as the present really must be given as detailed and accurate information as possible from the Corrective Services Commission to indicate with as much certainty as possible the likely date when a cumulative sentence can commence. I note s.122 of the Corrective Services Act 1988 in which appears:-

“Cumulative sentence” means a sentence of imprisonment that is to take
effect upon the expiration of deprivation of liberty for another sentence of
imprisonment (the “first sentence”).”

Sub-section 122(2) provides that a prisoner shall commence serving a cumulative sentence when, taking into account any remission granted in respect of the first sentence, the prisoner has completed serving the first sentence.

I have found this a rather difficult matter and I suspect the problem stems from the learned sentencing judge inadvertently failing to take account of the date when the cumulative sentence might reasonably have been expected to begin. The learned sentencing judge did make a recommendation for early parole as he had promised the applicant. On the basis that the cumulative sentence began on 31 December 1997 then, accepting the 3 years cumulative is not challenged, I would set aside the recommendation of eligibility for parole on 20 July 2001 and in lieu recommend that the applicant be considered eligible for parole on 31 December 1998.