R v Riley

[1999] QCA 128

IN THE COURT OF APPEAL	[1999] QCA 128
SUPREME COURT OF QUEENSLAND

C.A. No. 23 of 1999

Brisbane

[R v. Riley]

THE QUEEN

v.

STEPHEN RILEY

(Applicant) Appellant

de Jersey CJ
Davies JA

Fryberg J

Judgment delivered 14 April 1999
Further order delivered 6 August 1999

Separate reasons for further order of each member of the Court, each concurring as to the order made.

RECOMMEND THAT THE APPELLANT BE ELIGIBLE FOR RELEASE ON

PAROLE ON 31 MARCH 2000.

CATCHWORDS:	CRIMINAL LAW - Judgment and punishment - Sentence - Non-parole period - Queensland - Offender already serving imprisonment - Obligation to make parole recommendation - Penalties and Sentences Act 1992 (Qld) s 157(3)
R v Doyle [1996] 1 Qd R 407 followed R v Coss (1995) 78 A Crim R 551 considered R v Pepper and Cornwell, CA Nos 366 and 367 of 1998, 2 March 1999, considered R v Clemens, CA No 404 of 1997, 17 April 1998, referred to R v Walton; ex parte Attorney-General of Queensland, CA No 338 of 1997, 18 November 1997, referred to Penalties and Sentences Act 1992 (Qld) s 157(3) Corrective Services Act 1989 (Qld) s 166
CRIMINAL LAW - Appeal against sentence - Powers of appellate court - Taking account of events after sentencing
R v Maniadis [1997] 1 Qd R 593 referred to R v Cornale [1993] 2 Qd R 294 referred to R v M [1996] 1 Qd R 650 referred to
CRIMINAL LAW - Probation, parole, release on licence and remissions - Queensland - Eligibility for parole where offender already serving term of imprisonment - Commencement of sentence under appeal - When entitlement to remissions arises
McCasker v Queensland Corrective Services Commission [1998] 2 Qd R 261 followed R v Coss (1995) 78 A Crim R 551 referred to R v Griinke [1992] 1 Qd R 196 referred to
Penalties and Sentences Act 1992 (Qld) s 204(6) Corrective Services Regulation 1989 (Qld) ss 21, 22 and 28
Counsel:	Mr B Devereaux for the applicant/appellant Mr C Heaton for the respondent
Solicitors:	Legal Aid Queensland for the applicant/appellant Director of Public Prosecutions (Queensland) for the respondent
Hearing Dates:	14 April 1999 12 May 1999

REASONS FOR FURTHER ORDER - de JERSEY CJ

Judgement delivered 14 April 1999
Further Order delivered 6 August 1999

1. I have had the advantage of reading the separate reasons for judgment prepared by Davies JA and Fryberg J. I agree that the considerations to which their Honours refer warrant this Court’s recommending eligibility for release on parole, in respect of the sentences under appeal, on 31 March 2000.

2. I agree with Davies JA as to the clarity of the ratio decidendi of R v Maniadis [1997] 1 QdR 593, 596-7, and also as to His Honour’s “second qualification”.

3. With relation to Fryberg J’s reservation about the Court’s power as to parole recommendations (para 22), I note that the Court of Appeal addressed the issue in R v Izatt (CA No 87 of 1999, 28 July 1999), ruling that the Court may, under s 157 of the Penalties and Sentences Act, instead of specifying a definite date for eligibility for parole, specify a basis for calculating a date by reference to a future event to occur on a date not yet known. I appreciate of course that that particular issue does not however arise in this case.

   REASONS FOR FURTHER ORDER - DAVIES JA

   Judgment delivered 14 April 1999
   Further Order delivered 6 August 1999

4. I agree with the conclusion of Fryberg J and, subject to two qualifications, with his reasons for that conclusion.

5. My first qualification relates to his Honour's remarks with respect to the decision of this Court in R v Maniadis [1997] 1 Qd R 593. His Honour said that it is not easy to determine the precise ratio decidendi of that case. I disagree with that statement, perhaps unsurprisingly as I was a party to the principal judgment in that case. The ratio of Maniadis, in my view, is that evidence of facts occurring after the date of sentence may be admissible on appeal to the extent that they show the true state of affairs at the time of sentence: see at 597 line 5, 599 line 5. However that decision did leave open the possibility of a wider basis for admissibility of evidence of facts occurring after the date of sentence.

6. My second qualification is that it is unnecessary, in the present case, to consider events subsequent to the date of sentence. As at that date, though the applicant had the possibility of remissions being granted it is unlikely that, in total, these would have been substantial and that, consequently, his release date would have been much before 26 July 1999. On that basis, analogizing from s 166(1)(d) of the Corrective Services Act 1988 but having regard to the sentences imposed here and the applicant's prior history, I think that a recommendation that the applicant be eligible for release on 31 March 2000 is appropriate.

   REASONS FOR FURTHER ORDER - FRYBERG J

   Judgment delivered 14 April 1999

   Further Order delivered 6 August 1999

   Introductory

7. On 14 April this year, the court as presently composed allowed this appeal and set aside the orders made by the sentencing judge. In lieu it ordered that the appellant be sentenced to imprisonment for nine months on each of the two counts in the indictment. It ordered that the first term of nine months commence at the conclusion of the term of imprisonment being served on the date the appellant was sentenced in the District Court, viz 13 January 1999 (“the sentencing day”). It ordered that the second term of nine months commence at the conclusion of the first term of nine months.

8. The court made no recommendation pursuant to s 157(3)(a) of the Penalties and Sentences Act 1992. When this was realised, it was too late to reconvene court immediately. The following day, the registrar wrote to the parties advising that the court would reconvene, and a further hearing took place on 12 May 1999. Then, counsel for the applicant submitted that a recommendation for release on parole six months after the sentencing day was appropriate. That submission was based on the assumption that the applicant would be otherwise eligible for parole nine months after that date. Counsel for the Crown submitted that no recommendation for release from custody earlier than would otherwise be the case should be made. It was plain that this submission was based on the assumption that what would otherwise be the case was a period of nine months from the sentencing day. Neither party had procured any calculation showing the position which existed immediately before the sentencing day and neither had given any thought to the operation of s 166 of the Corrective Services Act 1988.

9. In that plainly unsatisfactory state of affairs, the court directed the Corrective Services Commission to provide both parties with comprehensive, precise information as to full time release dates and current parole eligibility and eligibility for remissions. That information was to be provided within 48 hours of request. Each party was directed to provide further written submissions to the court following receipt of that information. The court intimated that it would decide the matter on the further written material, without any further oral hearing, unless that was specifically requested on some substantial ground. Those submissions were not received until mid-June. In them, neither party sought a further oral hearing. The appellant submitted that the court should declare him immediately eligible for parole. For the Crown, it was submitted that the court should recommend that the appellant be eligible for release on parole after having served nine months from what the submission described as “the start of his cumulative imprisonment”, a date which the submission identified as 26 July 1999.

10. Each party’s submission annexed a document entitled “Offender Management Information System - Offender’s Sentence Calculation”. This document was apparently prepared by the Corrective Services Commission and purported to set out the effect of the various sentences which had been imposed on the appellant. Upon examination it disclosed not only the information above, but also the fact that since this court allowed the appeal, the appellant had committed yet another offence in prison. On 1 July, the court sought further information about this matter from the parties and requested submissions as to whether this offence could be taken into account by the court in reaching its decision. The last of those submissions was received on 15 July 1999.

11. To understand the submissions, it is necessary to consider several terms of imprisonment to which the appellant has been sentenced. On 28 March 1995 he was sentenced to imprisonment for three years for one offence of stealing with actual violence. The sentencing judge recommended that he be eligible for release on parole after having served nine months of that term. Pursuant to s 161 of the Penalties and Sentences Act 1992, the judge declared that 132 days was time spent in pre-sentence custody, deemed as time already served under the sentence. Effectively, that backdated the sentence to the date of the offence, 16 November 1994. It meant that the appellant became eligible for release on parole from 16 August 1995.

12. The appellant was in fact granted parole on that date. However the parole was cancelled eight days later and he was returned to custody on 6 September 1995. He was therefore at large for 20 days. He remained in custody until 25 July 1996. On that date he was granted parole and was released. However his parole was suspended the following day and cancelled a month later. Despite this, he was not returned to custody until 18 March 1998. He was therefore at large for 600 days. He has been in custody ever since.

13. The offences the subject of the present appeal consisted of two counts of assault occasioning bodily harm. Both were committed against prison officers, the first on 12 June 1998 and the second on 20 August 1998. The appellant pleaded guilty to them on 6 November 1998, but the sentencing process was not completed until 13 January 1999.

    The Crown submission

14. The submission on behalf of the Crown required a determination of when the first of the two sentences which this court ordered came or was likely to come into operation. The appellant’s full time release date in relation to the 1995 conviction was, apparently, 26 July 1999. In other words, that is the date on which, assuming no remission and no other sentences, he would have been discharged from custody. According to the submission for the Crown, that was when the first of the two sentences imposed by this court would begin. It was essential to the correctness of that submission that, as counsel put it, “[the appellant] is no longer entitled to remissions and must therefore serve the full time (see the sentence calculation entry dated 25/11/95 and the dialogue following).”

    Commencement of sentence under appeal

15. The sentence calculation document is not easy to understand. It can only be understood in the light of certain of the provisions of the Corrective Services Regulation 1989:

    “21. General entitlement to remission. (1) A prisoner serving a sentence of imprisonment of 2 months or longer and who is of good conduct and industry may, at the discretion of the Commission, and subject to the following provisions of this Part, be granted a remission of one-third of his sentence together with such other remission as is provided for in this Part.

    (2) For the purposes of this Part a prisoner is of good conduct and

    industry if he -

(a) complies with all relevant requirements to which he is
subject;
and

(b)       displays a readiness to assist in maintaining order and a willingness and genuine desire to maintain steady industry in every employment or work which may be required of him.

...

28. Forfeiture of remission where an offence is committed. The Commission shall not grant remission in respect of any period of a sentence of imprisonment served by a prisoner before he commits any indictable offence or offence punishable on summary conviction. The prisoner may become eligible by good conduct and industry for remission on the balance of his original sentence.”

Regulation 22 contains a table which must be used as a guide for the purposes of calculating remission. Under the table, a sentence of 36 months is set against a one-third remission of 12 months.

1. At first reading the sentence calculation document appears to record that at the commencement of the sentence (taken to be 16 November 1994) the appellant was granted a one-third remission; and the end date of the imprisonment was said to be 15/11/96. Then comes an entry “Forfeit Remission 16/11/94 - 21/3/95". That entry follows the notation “+ 41d”, apparently a notation which means the addition of 41 days. On the same line, the end date is now said to be 24/12/96. That loss of remission was apparently brought about by an offence committed by the applicant on 21 March 1995. Forty-one days is approximately one-third of the period of imprisonment up to that date.

2. A little later in the document there is another notation which reads “+ 75d”, apparently indicating a loss of 75 days of remission, for the End Date is enlarged by that amount at that point. It is accompanied by the notation “Forfeit Remission 21/3/95 - 16/8/95 (discharged to parole) and 6/9/95 (returned to custody date) - 24/11/95.” It seems that that is referable to a second offence committed by the appellant on 24 November 1995[1]. The End Date was extended by 600 days (apparently the sum of the 75 days and the period of freedom) to 19 November 1998.

   [1]              The appellant was convicted in the Inala Magistrates Court of this offence and of the offence of 21 March 1995 on 7 December 1995 and was sentenced to 2 months’ imprisonment on each. The sentences were said to be concurrent, apparently with the existing sentence as well as with each other.

3. The entry to which the Crown refers in its submission contains the notation “249d” and the following:

   “25/11/95 - 12/6/98 (date of offence which charges No 5 and 6 relate) total days in this period is 310. Maximum remission that can be lost is 365 days. 249 days is the balance of remission (refer previous remission loss of 41 + 75 + 249 = 365 days).”

   Despite its terms, this apparently relates to the first of the two counts the subject of the present appeal. It seems to indicate that in respect of the period from November 1995 to June 1998, the appellant has forfeited 249 days of remission, that being all that he had left to forfeit. The methodology of the previous two entries has not been followed. The previous two entries resulted in loss of one-third of the days already served, a loss which would be consistent with the terms of s 28 of the Regulation. Assuming the correctness of the figure of 310 days referred to in the note, one would have thought that 103 days would have been lost. If that were so, the appellant’s discharge date with remission as it appeared on the day of sentencing by the learned District Court judge would not necessarily have been 26 July 1999.

4. It is unnecessary to pursue that question further. If the sentence calculation document is to be read in the sense just described, it demonstrates an invalid exercise of the power conferred by s 21 of the Regulation. Although that section does not specify any time for the exercise of the power conferred by it, the requirement that the prisoner be of good conduct and industry is incapable of satisfaction at the very beginning of a prisoner’s term. There are indications in s 28 that the power should not be exercised until just before the time when, if remission were granted, the prisoner would be discharged. That section obliges the Commission not to grant remission in certain circumstances, but confers no power to forfeit remission already granted. Since we have no detailed evidence on how any discretion has in fact been exercised (or even whether the question has been considered), we should read the document simply as an indication of the considerations which have been or would be taken into account for the purposes of the exercise of the discretion.

5. On the information available to the sentencing judge on the sentencing day, the position was that the appellant was not entitled to any remission for imprisonment served before 20 August 1998, the date of his then latest offence. His full time release date was 26 July 1999. He was however entitled to be considered for award of remission in respect of the period 20 August 1998 to 26 July 1999. Consequently, his earliest discharge date were he to receive maximum remission for this period was about 4 April 1999. If the judge had imposed the sentences which this court imposed in April, the range within which the first of the sentences would have been expected to commence was about 4 April 1999 to 26 July 1999. The sentences which this court imposed are taken to have been imposed at the time the original sentencing order was made[2].

   [2] Penalties and Sentences Act 1992, s 204(6).

6. The sentencing judge was in no position to form a view on the question whether the appellant would serve his full time or be granted remission. It is true that s 21 of the Corrective Services Regulation 1989 is headed “General Entitlement to Remission” and that the heading forms part of the section[3]. Moynihan J adopted this description in R v Griinke[4] and in the same case, Thomas J referred to remission amounting to one-third of the prison sentence as “generally obtainable”. In R v Coss[5], Thomas J referred to such remission as being granted “in the ordinary course”. Nonetheless, at least since the decision of this court in McCasker v Queensland Corrective Services Commission[6], the granting of remission could not have been assumed by the sentencing judge. Nor could it have been assumed that remission would not be granted in respect of the period of the sentence after 20 August 1998. True, the appellant’s behaviour up to that date, insofar as it was known to the court, did not fall within the definition of “good conduct and industry” in s 21(2) of the Regulation, in that he had committed a number of offences. However s 28 specified the effect that those offences should have on the grant of remission; without more, the offences would not be sufficient to disqualify the appellant from remission in respect of the period after 20 August 1998. On the material available on the sentencing day, a conclusion regarding remission would have been speculative.

   [3] Acts Interpretation Act 1954, s 35C(1).

   [4] [1992] 1 Qd R 196 at p 201.

   [5] (1995) 78 A Crim R 551 at p 559.

   [6] [1998] 2 Qd R 261.

7. It follows therefore that the submission made by the Crown must be considered on the basis that it was not possible as at the sentencing day for the court to specify precisely when the first of the two cumulative sentences which it imposed would commence. Perhaps the submission implicitly recognised this, in that the terms of the recommendation for which it contended were expressed to be measured “from the start of his cumulative imprisonment”. Such an order would have overcome the problem of the date of commencement being unknown on the sentencing day. However the submission would have raised the question whether the court can make a recommendation for a period to commence at a future date.

   Events after the sentencing day

8. On 11 February 1999, the appellant again assaulted a Commission officer. On 5 May, he was sentenced to one month’s imprisonment, cumulative, in the Magistrates Court at Inala. No recommendation relating to parole was made. It seems that the stipendiary magistrate was unaware of the orders of this court made on 14 April 1999.

9. On the day following this court’s decision, the appellant again assaulted an officer. For that offence he again appeared in the Magistrates Court at Inala (the parties do not agree on whether this occurred on 3 June 1999 or 30 June 1999, but it does not matter which). He was sentenced to three months’ imprisonment, concurrent, and a non-parole period of one month was fixed.

1. By reason of s 28 of the Corrective Services Regulation, the latter offence meant that the appellant could not receive remission of his original sentence for any period up to 15 April 1999. The maximum amount of remission which he could receive for the period from that date to 26 July 1999 was about 34 days. In the circumstances as they now exist, no injustice would be done to the appellant by assuming that he has not received that remission. A just recommendation can be made by assuming that the sentences ordered by this court commenced on 26 July 1999.

2. However this approach can be adopted only if it is legitimate for this court to take into account events occurring after the sentencing day. Both parties submitted that this court should not do this. Counsel for the Crown submitted that the court must place itself in the position of the original sentencing court and make an appropriate sentence as at the sentencing day. He did not condescend to cite authority for this proposition. Counsel for the appellant submitted that the court had a discretion to admit further evidence, but submitted that the subsequent sentences were not relevant and had no effect on the issue outstanding in the appeal. He referred to R v Maniadis[7], R v M [8] and R v Cornale[9].

   [7] [1997] 1 Qd R 593.

   [8] [1996] 1 Qd R 650.

   [9] [1993] 2 Qd R 294.

3. It is not easy to determine the precise ratio decidendi of the most recent of these decisions, R v Maniadis. However there is considerable support in that decision for the proposition that this court has an unfettered discretion to admit further evidence on an application for leave to appeal against sentence when to do so is in the interests of justice. Although there are theoretical difficulties with this view, they were not addressed by counsel in their submissions to us, and it would be inappropriate for consideration to be given to them now. On this basis, the court may, in its discretion, consider the events subsequent to the sentencing day. In my opinion we should do so. It is in the interests of justice that our recommendation under s 157 of the Penalties and Sentences Act 1992 be based on the best available information.

4. For the reasons set out in paragraph 19, we can assume that the sentences which we imposed on 14 April commenced on 26 July. It is unnecessary to resolve the question whether the court can make a recommendation in relation to parole for a period to commence at a future date.

   The appellant’s submissions

5. The appellant initially argued that the court should declare him immediately eligible for parole because that would have been the position had he fallen within the terms of s 166 of the Corrective Services Act 1988. So far as is relevant, that provides that a prisoner is not eligible for release on parole until the prisoner has served half of the term of imprisonment to which the prisoner was sentenced. On the same basis, he now argues that eligibility for parole should be recommended effective 1 August 1999. At first sight, the appellant’s is an odd argument. It was not argued that the appellant actually fell within s 166 of the Corrective Services Act 1988, nor in my view could it have been so argued. That section is expressly made subject to s 157 of the Penalties and Sentences Act 1992. This is a case where the court is imposing another term of imprisonment on an offender who is already serving imprisonment for an offence. He is a prisoner in respect of whom a recommendation for parole attached to the earlier term of imprisonment. It was settled in R v Doyle[10] that s 157(3) applies in such a case. In R v Coss, Thomas J suggested[11] that where the original recommended date had passed (as is the position in the current appeal), s 157 did not require the making of a “fresh recommendation” for parole under the decision in R v Doyle. Perhaps that view was based on a rather opaque sentence in R v Doyle, where the court said:

   “It might be added that presumably the legislative intention is that sub- s (3) does not apply where the whole of the earlier term of imprisonment, being that to which a recommendation for parole was attached, has expired; but it is unnecessary to determine that point in the present case.”[12]

   In my view that passage does not support the suggestion made by Thomas J. I see nothing in the reasoning in R v Doyle, nor in the terms of s 157, to support the limitation which his Honour proposed. This case falls within s 157(3) of the Act. A recommendation was mandatory. There was therefore no scope for s 166 to operate.

   [10] [1996] 1 Qd R 407.

   [11] (1995) 78 A Crim R 551 at p 559.

   [12]            [1996] 1 Qd R at p 410.

6. However, that result is reached only because a recommendation relating to parole was made by the judge who sentenced the appellant in 1995. Had no recommendation then been made, s 157(3) would not apply, and, absent a recommendation by this court under s 157(2), s 166(1)(d) of the Corrective Services Act 1988 would apply. It is legitimate for the appellant to argue by analogy with this situation.

7. The application of s 166(1)(d) of the Corrective Services Act 1988 in circumstances similar to those in the present case was considered in R v Pepper and Cornwell[13]. At issue was the meaning of the expression “term of imprisonment” in s 166(1)(d). That phrase is defined in s 10 of that Act as follows:

   [13] (1999) 104 ACrimR 135.

   “ “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;

   and for the purposes of this definition a person is deemed to be serving a term of imprisonment by virtue of a sentence where the person is undergoing imprisonment in default of payment of a fine or for failure to comply with any order of a court.”

   The Court of Appeal unanimously applied a dictum of Pincus JA in R v Walton; ex parte Attorney-General of Queensland[14]. His Honour had said:

   “It appears to me that the governing notion is liability to serve imprisonment, so that if the imprisonment ordered was discontinuously served because of parole or escape one ignores the gap and takes into account the length of the ordered sentence.”

   In the present case, that means that in applying s 166(1)(d) one would take into account not only the period since the appellant was returned to custody on 18 March 1998, but the totality of the sentences to which he was liable on the sentencing day.

   [14]            CA No 338 of 1997, 18 November 1997.

8. Following the imposition of the sentences ordered by this court, the appellant was liable to three sentences to be served cumulatively and totalling four years and six months. Under s 166(1)(d) of the Corrective Services Act, had it applied, he would have become eligible for parole after serving two years and three months of that total. It is common ground between the parties that on this basis, he would have been eligible for parole early in November 1998 - in other words, before the sentencing day.

9. On its face, that is an artificial outcome. The mechanism by which it comes about was described by Thomas J in R v Coss:

   “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 (1988) (Qld) 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 halfway 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.”[15]

   [15] (1995) 78 A Crim R 551 at p 559.

10. For the appellant, it was submitted that the outcome was not anomalous in the present case because:

    (a)       the order is only a recommendation; it does not mean that the appellant would escape the consequences of his sentence;

    (b)       the outcome reflects a statutory formula;

    (c) the outcome takes into account s 191 of the Corrective Services Act 1988 by which a prisoner may again be released on parole notwithstanding an earlier cancellation of parole;

    (d)       the outcome prevents unfairness caused by delay in sentencing.

    None of these arguments should be accepted. The first implies that the recommendation process is meaningless. It is not. A judge’s recommendation must be taken very seriously by the parole authorities. The second ignores the fact that the statutory formula is a default provision, not a standard. In other words, s 166(1)(d) makes provision for what is to happen when no recommendation is made; it is neutral on the question of what recommendation should be made in a particular case. That is the task of the sentencing court, considering each case on its merits. As to the third, s 191 of the Corrective Services Act 1988 does not, with respect, bear upon the present problem. As to the last argument, it is true that the sentencing process was delayed in the present case from November 1998 until January 1999 by reason of the obvious need for the preparation of pre-sentence reports. Without that need, the appellant might have been sentenced in early November 1998. However that delay is immaterial. In early November 1998, the position would have been the same as it was when sentencing finally took place. The delay has not prejudiced the appellant.

11. We should not approach the making of a recommendation in the present case on the basis that s 166(1)(d) of the Corrective Services Act 1988 in any way supports a recommendation having the effect that the appellant is immediately eligible for parole.

    Our recommendation

12. A recommendation under s 157 of the Penalties and Sentences Act 1992 must be tailored to the circumstances of the particular case. It must fit with the other parts of the sentence and must produce a meaningful result. The mandatory provisions of s 157(3) may occasionally, in very unusual circumstances, be the subject of little more than lip service[16], but the present is not such a case.

    [16]            See R v Davidson and Dalton (1999) 105 ACrimR 142, especially per McPherson JA.

13. The relevant circumstances were adequately set out in the reasons for judgment given on 14 April 1999. There is no need to repeat them in full here. One passage, however, does bear repetition:

    “There was in the material to which I have referred an extensive review of the applicant’s psychiatric health. It appears that he has a long history of disturbed behaviour. He has a history of psychiatric examination and a personality disorder which may be attributable to frontal lobe damage.

    He plainly needs, on the material, considerable supervision in whatever place he is to live his life. It is unfortunate that there is, since decisions were taken some 15 tor 20 years ago to close protective institutions, nowhere where people such as the applicant can live in an institutional environment. He is not a suitable candidate for a mental establishment and prison is not an option for a person who only needs institutionalisation.

    He does not have a psychiatric disability which excuses his conduct. Plainly, he is aware of his misconduct and the need to sentence him arises in the context of that awareness.”

    The further offences which the appellant has committed since his appeal was allowed leave one with the uncomfortable suspicion that he is deliberately and systematically committing assaults on prison officers in order to prolong his incarceration. If that is so, it is a tragic situation and a sad reflection on our community.

14. Our recommendation should not nullify the effect of the remission provisions of the Corrective Services Regulation 1989. In other words, the period should be shorter than the period which might be served if full remission were granted. On the other hand, it is necessary that the possibility of parole prior to service of a significant portion of the additional sentences should be avoided. Otherwise, the recommendation will be meaningless and useless as a deterrent. It is not legitimate to make the recommendation to reflect some element of preventive detention[17]. This is true notwithstanding the terms of the recommendation in the presentence report accepted by the learned trial judge:

    “It is respectfully recommended that at this time Stephen Riley is not suitable for either supervision in the community or to be released to the community unsupervised. With his current behaviour and the level of supervision required to keep him from self-harm and from harming others, at this time, release to the community is not recommended.”

    [17]            R v Griinke [1992] 1 Qd R 196 at p 202 per Moynihan J.

15. To make a recommendation for 1 August 1999 would not reflect these considerations. It might result in the appellant serving only 5 days of the cumulative sentences. That would be unacceptable. The fact that the appellant has had to serve the full term (or at least almost the full term) imposed in 1995 is the result of his own misconduct. That fact should not be used to support an unusual recommendation now.

16. It is appropriate that the appellant serve a minimum of eight months of the imprisonment imposed by the two sentences under appeal. In R v Coss, Macrossan CJ said, “A sentencing judge would be wise to consider carefully the result he intends and specify a precise date for eligibility in a case of any complication as for example when cumulative sentences are involved.”[18] Strictly, s 157 requires a judge to nominate a period rather than a date; but there is benefit in the former Chief Justice’s suggestion. In R v Clemens[19], the court said:

    “Because the fresh recommendation for parole required by s 157(3)(a) supersedes any recommendation for parole made on the earlier sentence, many judges prefer to fix a specific date in the future at which the prisoner is to be considered for parole, rather than to express it as a period of months or years after the cumulative sentence has begun to be served. Adopting that course has some advantages in terms of certainty and ready ascertainability.”

    If a date is nominated, there is no difficulty in most cases in regarding it as a short- hand way of referring to the period from the date of sentencing until the stated date. Provided these matters are kept in mind, there should be no problem with adopting the method of expression suggested.

    [18] (1995) 78 A Crim R 551 at p 554.

    [19] (1998) 101 ACrimR 169.

17. For these reasons, I would recommend in relation to the sentences under appeal that the appellant be eligible for release on parole on 31 March 2000.

    The Magistrates Court proceedings on 5 May 1999

18. Both parties submitted that the sentence of the Magistrates Court at Inala on 5 May 1999 was wrong in law in that the court failed to recommend a non-parole period in relation to the fresh term of imprisonment imposed by it. Counsel for the Crown submitted that the matter should be remitted back to the Magistrates Court at Inala so that the sentences imposed by that court might be reviewed and corrected. Counsel for the appellant submitted that it was not for this court to remit the matter because it was not before this court. That is plainly correct. From what we have been told, that court erred in not making the recommendation referred to. Moreover, it seems from the further outline of submissions placed before us on behalf of the Crown that the Magistrates Court was misled by having an inaccurate criminal history placed before it: we were told that the criminal history placed before that court recorded the original sentence of the District Court of 13 January 1999, not the reduced sentence ordered by this court on 14 April 1999. It is a matter for the parties to determine what, if any, action should be taken in respect of these errors, and to take any action promptly. If it helps, I would urge that the appellant be granted legal aid to enable the matter to be considered.