R v Rose

[1995] QCA 414

IN THE COURT OF APPEAL [1995] QCA 414

SUPREME COURT OF QUEENSLAND

C.A. No. 53 of 1995

Brisbane

Before Davies J.A. Moynihan J. Shepherdson J.

[R. v. Rose]

THE QUEEN

v.

MICHAEL STANLEY ROSE

(Applicant)

Davies J.A. Moynihan J. Shepherdson J.

Judgment delivered 15/09/1995

Separate concurring reasons of each member of the Court.

APPEAL DISMISSED.

CATCHWORDS:	CRIMINAL LAW - SENTENCE - whether a prisoner who is released to serve a period of home detention pursuant to s.86(1) of the Corrective Services Act 1988 is still held in custody within the meaning of s.161(1) of the Penalties & Sentences Act 1992; whether a breach of the terms of an instrument of home detention results in subsequent period of custody during the term of imprisonment for the offence in respect of which the prisoner was released to home detention in respect of that offence
Counsel:	Applicant appeared on own behalf Mr W. Clarke for the respondent
Solicitors:	Applicant appeared on own behalf Director of Public Prosecutions for the respondent
Hearing date:	15 May 1995

REASONS FOR JUDGMENT - DAVIES J.A.
Judgment delivered the 15th day of September 1995

The facts giving rise to this appeal are set out in the judgment of Moynihan J. The first matter to consider is whether s.161(1) of the Penalties and Sentences Act 1992 has potential operation here. It provides:

"If an offender is sentenced to a term of imprisonment for an offence, any time that the offender was held in custody in relation to proceedings for the offence and for no other reason must be taken to be imprisonment already served under the sentence, unless the sentencing court otherwise orders."

The question is whether the applicant's custody during the period from 18 April 1994 until 9 June 1994, was "custody in relation to the proceedings for the (April) offence(s) and for no other reason". This depends on whether a prisoner who is released to serve a period of home detention pursuant to s.86(1) of the Corrective Services Act 1988 is still held in custody within the meaning of s.161(1) of the Penalties and Sentences Act; and, if not, whether a breach of the terms of an instrument of home detention meant that any subsequent period of custody during the term of imprisonment for the offence in respect of which he was released to home detention was custody in respect of that offence.

Although Division 6 of Part 3 of the Corrective Services Act, which provides for home detention does not answer the first question specifically, it is reasonably plain that the "release ... to serve a period of home detention" referred to in s.86 is a release from custody so that, during the period of home detention, the prisoner is no longer "held in custody" within the meaning of s.161(1). Subsection (11) of s.86, which provides that the period of home detention shall count as part of the prisoner's term of imprisonment, is further support for that view.

As to the second question, there is no provision in the Corrective Services Act which states that a breach of the terms of an instrument of home detention or apprehension for a crime committed whilst on home detention, automatically revokes the instrument of release on home detention. The only circumstances in which an instrument of release on home detention will be revoked are pursuant to s.86(6) to (8) of the Corrective Services Act. The applicant's instrument was not revoked pursuant to s.86(8) until 9 June 1994. Therefore, until that time, his instrument of home detention was still effective in relation to the offence in respect of which it was ordered. However, because of s.86(11), the fact that he contravened the terms of his instrument of detention by committing the April offences, meant that he was not entitled to have that period onwards counted as part of his term of imprisonment; he could not be said to have been serving his home detention "in compliance with the instrument" which authorised his release. It follows that, because he was in custody from 18 April until 9 June as a result of the April offences only, s.161(1) has potential application. However, for the reasons mentioned by Moynihan J., I do not consider that the applicant is entitled to the benefit of s.161(1).

The applicant also asked for the time spent in custody from 9 June 1994 until the time of his sentence on 13 January 1995, to be included as time served under that sentence. Upon the revocation of his instrument of release on home detention on 9 June 1994, his time spent in custody was referable both to the April offences and the offences committed in respect of which the instrument of release on home detention was granted. Therefore, s.161(1) does not arise for consideration and the applicant is therefore not entitled to have that time included as time served under the sentence imposed in respect of the April offences.

I agree that the application should be refused.

REASONS FOR JUDGMENT - MOYNIHAN J.

Judgment delivered 15/09/1995

On the 13th day of January, 1995 the applicant was sentenced in the District Court at Brisbane on one count of armed robbery in company and one count of unlawful use of a motor vehicle with a circumstance of aggravation in that the vehicle was used for the purpose of facilitating the commission of the armed robbery. The offences were committed on 16 April 1994 by the applicant in company with one Stevenson. The applicant had initially denied involvement in the offences but subsequently pleaded guilty. The applicant was sentenced to 6 years imprisonment on the count of armed robbery and 3 years imprisonment on the count of unlawful use of a motor vehicle with a circumstance of aggravation. The sentences were to be served concurrently and it was recommended that the applicant be eligible to be considered for parole after serving 18 months imprisonment. The sentencing judge was told that there was no "pre-sentence custody" to be taken into account.

The application for leave to appeal came before the court founded on a ground that the sentence was manifestly excessive. When the matter came on for hearing it appeared that the applicant's (he appeared in person) complaint ultimately was that the period from 18 April, 1994 (when he was apprehended for the offences for which he was sentenced on 13 January, 1995) to 9 June, 1994 ought be taken into account as pre- sentence custody. The latter is the date on which the applicant's home detention on offences other than those the subject of the present proceeding was revoked.

The applicant came before a Judge of District Courts for sentence in respect of the April offences on 19 October, 1994. The sentencing was adjourned pending the outcome of an Attorney-General's appeal from the sentence imposed on the applicant's co-offender Stevenson. The sentencing judge apprehended the necessity for parity between the sentence imposed on the applicant and the sentence imposed on Stevenson and hence adjourned sentencing the applicant. The applicant remained in custody from 19 October 1994 until 13 January 1995 when he was sentenced for the April offences and he now seeks to have this included as time served under the sentence. After hearing some submissions and considering the material then available to it, the court adjourned the application for leave to appeal against sentence in order to have the applicant's true status under the Penalties and Sentences Act 1992 and the Corrective Services Act 1988 and other matters clarified and to permit the making of written submissions in the light of what might emerge. This has now been done and the court has an affidavit from the applicant and an affidavit and written submissions from the respondent.

As has been said, the offences giving rise to this application were committed on 16 April, 1994; the applicant, who has a significant criminal history, was on home detention at the time. He had been released to home detention by an instrument apparently dated 25 February, 1994 in respect of a term of imprisonment of 3 years which he had effectively commenced to serve on 29 April, 1993 - it was cumulative on other sentences which he had been serving.

The applicant was apprehended on 18 April, 1994 in respect of the 16 April offences and taken into custody. His release to home detention however was not revoked until 9 June, 1994. He had in the meantime failed in an application for bail in respect of the 16 April offences so that although the instrument of release to home detention continued to be in force, his remand for the 16 April offences authorised his being held in custody. It appears that had the applicant been granted bail for the 16 April offences "he would have been released to continue home detention" in respect of the earlier offences. Section 161(1) of the Penalties and Sentences Act 1992 provides:-

"If an offender is sentenced to a term of imprisonment for an offence, any time that the offender was held in custody in relation to proceedings for the offence, and for no other reason must be taken to be imprisonment already served under the sentence, unless the sentencing court otherwise orders".

Subsection 3 of the section relatively provides:-

"If an offender was held in custody in circumstances to which sub-section (1) applies, the sentencing court must -

(a) state the dates between which the offender

was held in pre-sentence custody;

(b) calculate the time that the offender was held
in pre-sentence custody; and

(c) declare the time calculated under paragraph (b) to be imprisonment already served under the sentence; . . . "

"any period of home detention served by a prisoner in compliance with the instrument authorising the prisoner's release shall count as part of the prisoner's term of imprisonment."

Until its revocation on 9 June, 1994 the applicant would seem to have been "released to serve a period of home detention" pursuant to the instrument of 25 February 1994.

Home detention is dealt with by division 6 of the Corrective Services Act. Section 86(1) of the Act provides that, subject to provisions of no present relevance, the Corrective Services Commission may:-

"by instrument, release a prisoner to serve a period of home

detention pursuant to this Division".

Subsection 2 provides that the Commission is not to release:-

". . to serve a period of home detention, a prisoner -

(a) who is detained on remand for an offence;"

The reference in subsection 2 to "release to serve a period of home detention" appears to relate to release by an instrument in terms of subsection 1 rather than to the consequences of a prisoner so released subsequently being taken into custody for other offences. Subsection 6 provides to the effect that the Commission may revoke an instrument by which a prisoner has been released to home detention by giving a written notice and that is what was done in the present case on the 9th of June. It seems to follow that from that trial he was serving the term of imprisonment from which he had previously been released to serve home detention.

Section 86(11) of the Corrective Services Act provides that any period of home detention:-

"served by a prisoner in compliance with the instrument authorising the previous release shall count as part of the prisoner's term of imprisonment".

It is difficult to conclude that the applicant was "serving" a period of home detention in compliance with an instrument . . " when he was remanded in custody in respect of the offences of 16 April. It would seem that had he not been on such remand he would have been released to home detention by the instrument of 25 February and the home detention would have counted it as part of his term of imprisonment for that offence. It therefore seems that the applicant was "held in custody in relation to proceedings for (the offences of 16 April) and for no other reason" in terms of s.161(1) of the Penalties and Sentences Act from 18 April to 9 June 1994. Once the instrument of release to home detention was revoked he was held in custody for the additional reason of the sentence in respect of which he was no longer entitled to be released on home detention.

It follows that the sentencing judge's discretion miscarried in a technical sense; had he not been told that there was no pre-sentence custody and apprised of the correct position he would no doubt of had regard to the provisions of s.161(1) and (3) of the Penalties and Sentences Act. The question which now arises is whether the court should order pursuant to s.161(1) that the time in custody from 18 April to 7 June not be taken to be imprisonment served for the 16 April offences.

The court pointed out to the applicant that given his criminal history and the seriousness of his offences he had received a particularly lenient sentence for the 16 April offences only because of the sentence imposed on Stevenson. The applicant has been convicted of more than 70 criminal offences since 1977 and has been sentenced to imprisonment on many occasions. He has convictions for drug related offences, fraud, firearms offences and stealing firearms and other property related offences. He took advantage of his release to home detention to commit the 16 April offences. Those offences involved robbery of a pharmacy while the applicant and Stevenson were masked and armed with a knife and a gun respectively, and drugs to a total value of $15,000 were taken from the pharmacy safe, after threats to the pharmacist and two assistants. The sentencing judge thought 8 years was an appropriate sentence but felt constrained by the sentence in Stevenson to impose 6 years.

In the circumstances the applicant's time in custody from 18 April to 9 June should not be taken into account in the sentences imposed for the 16 April offences. The application should be dismissed.

JUDGMENT - SHEPHERDSON J.

Judgment delivered 15 September 1995

I have had the benefit of reading in draft the reasons for judgment of Moynihan J. As I take a slightly different approach to the matter I shall state my reasons and I am grateful to accept His Honour's statement of the facts.

In this Court the applicant has sought primarily to have his
time held in custody between 18 April 1994 and 9 June 1994 made

the subject of a declaration pursuant to subs.161(3)(c) of the

Penalties and Sentences Act 1992.

The present matter involves consideration of s.161 of the Penalties and Sentences Act and s.86 of the Corrective Services Act 1988.

Subsection 161(1) of the Penalties and Sentences Act reads:-

"Time held in presentence custody to be deducted. (1) If an offender is sentenced to a term of imprisonment for an offence, any time that the offender was held in custody in relation to proceedings for the offence and for no other reason must be taken to be imprisonment already served under the sentence, unless the sentencing court otherwise orders."

(The underlining is mine)
Subsection 161(3) commences:-

"If an offender was held in custody in circumstances to which subs.(1) applies, the sentencing court must - ...."

The use of the word "must" shows that the legislature intended that once subs.161(3) is enlivened the sentencing court must do each of the acts then specified in subs.161(3). One of these is, after calculating the time that the offender was held in presentence custody, to declare the time calculated to be imprisonment already served under the sentence.

However, before subs.161(1) can possibly operate in the present case it must be shown that the applicant was held in custody in relation to the two charges for which he was sentenced on 13 January 1995 and for no other reason.

The provisions of s.86 of the Corrective Services Act 1988
and more particularly subs.86(11) of that Act must be considered.
Section 86 appears in Division 6 of the Act and that division is
called "Home Detention".

"Home detention" is not defined in the Corrective Services Act. Subsection 86(1) reads:-

"Subject to this section, the Commission may, by instrument, release a prisoner to serve a period of home detention pursuant to this division."

"This division" means division 6. By subs.86(2) the Commission shall not release to serve a period of home detention a prisoner who is detained on remand for an offence.

Subsection 86(5) provides:-

"An instrument authorising the release of a prisoner to serve a period of home detention shall be in the prescribed form and shall specify any conditions to which the release is subject."

As Moynihan J. has already pointed out there is power to revoke the instrument.

Subsection 86(11) provides:-

"Any period of home detention served by a prisoner in compliance with the instrument authorising the prisoner's release shall count as part of the prisoner's term of imprisonment."

What has happened in the present case is that this applicant, for reasons unknown, did not have his home detention instrument revoked until some 52 days had elapsed after he was arrested and charged on 18 April 1994.

It is true to say that the applicant did not serve any home detention from 18 April 1994 to 9 June 1994.

Because the applicant's release to home detention continued to operate until 9 June 1994, he was, by virtue of the instrument of release, entitled not to be held in custody during that period and his detention in custody from 18 April 1994 to 9 June 1994 could only have been for one reason namely, because of the two charges on which he had been arrested on 18 April 1994. To suggest otherwise really is to ignore the effect of the release to home detention instrument.

When the learned sentencing judge imposed the sentence of six years on 13 January 1995 he said that it commenced on that date. The learned sentencing judge was initially told (on 19 October 1994) that the applicant was eligible for earliest release on 28 March 1995 but that his remission date was "in flux" because of the prosecutor's instructions that the application would forfeit a portion of his remissions due to the fact that he reoffended in April 1994. The learned sentencing judge had been told that a three year sentence imposed on the applicant on 6 November 1992 had begun on 29 April 1993. One would expect that that sentence in the normal course of events would expire on 29 April 1996. The applicant had statutory eligibility to apply for parole after serving half that sentence but it seems that he was still in custody when sentenced on 13 January 1995. The applicant's earliest release date of 28 March 1995 mentioned on 19 October 1994 must be qualified by the prosecutor's above mentioned comments about remissions. At the adjourned hearing on 16 December 1994, the applicant's counsel and the prosecutor agreed in a rather tentative way that the applicant would be "free and clear" of his 3 year 1992 sentence in January 1996. One wonders why the learned sentencing judge said, as he did, on 13 January 1995 that the sentence he had just imposed began on that date when there seems to have been no suggestion that by that date the applicant was not still serving his 3 year 1992 sentence.

This case has shown difficulty with the Penalties and Sentences Act and its co-ordination with the Corrective Services Act. I must say I agree with the comments of Moynihan J. that the applicant received a lenient sentence. However, the learned sentencing judge was constrained by parity of sentencing and a lenient sentence imposed on the co-offender Stephenson at an earlier date.

If this Court concludes that subs.161(3) operates then it is obliged to give full force subs.161(3).

In my view of this case, the applicant has shown that in respect of the above 52 days subs.161(1) prima facie operates. I say prima facie because subs.161(1) concludes "unless the sentencing court otherwise orders". I find it strange that in subs.161(1) the legislature has used the imperative "must" and then, apparently removed the mandatory aspect by adding the above quoted final phrase.

The effect of subs. 161(1) is to give the sentencing court an option (see The Queen v. Holman (C.A. 484 of 1993) a decision of this Court delivered on 5 May 1994.)

Unfortunately, the learned sentencing judge was not asked to consider s.161 because he was told (several times) there was no presentence custody.

In dealing with this application, it is necessary to bear in
mind the provisions of s.668E(3) of the Criminal Code which are:-

"(3) On an appeal against sentence, the Court, if it is of opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal."

The sentences imposed on the applicant are not manifestly severe. The learned sentencing judge was led by both the prosecution and defence counsel into believing that there was no presentence custody. His Honour did not therefore consider s.161 and as a result did not consider exercising the options given by subs.161(1).

The perhaps rather unusual circumstances of this case are such that, because the release to home detention took so long to revoke, the applicant has been able prima facie, to come within s.161(1). He committed these two offences while on release to home detention and I should not have been in the least surprised if the learned sentencing judge had exercised against the applicant his discretion in respect of the 52 days.

I would dismiss the application for leave to appeal against sentence. I should add that the applicant also sought to have the period from 19 October 1994 to 13 January 1995 included in what he called "the backdate" of his sentence. Section 161 did not apply during this period. I reject his claim to seek such "backdate".