R v Smithers

[2006] QSC 396

SUPREME COURT OF QUEENSLAND

CITATION:

R v Smithers  [2006] QSC 396

PARTIES:

THE QUEEN
v
ANDREW FREDERICK SMITHERS

FILE NO

559 of 2006

DIVISION:

Trial Division

PROCEEDING:

Reasons for reserved issue on sentence

DELIVERED ON:

21 December 2006

DELIVERED AT:

Brisbane

HEARING DATE:

15 December 2006

JUDGE:

Mackenzie J

ORDER:

It is ordered that the time during which the prisoner was held in custody from 17 March 2005 to 18 August 2006, being 519 days, be taken into account as time already served pursuant to s 159A of the Penalties and Sentences Act1992.

CATCHWORDS:

CRIMIMAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT –  SENTENCE – allowance for time spent in custody – extension of period before eligible for release after two convictions for murder.  

Corrective Services Act 2000 (Qld) s 135
Criminal Code Act 1899 (Qld) s 305(2)
Penalties & Sentences Act 1992 (Qld) s 159A

R v Blake (1995) 2 Qd R 167
R v Fox [1998] QCA 121
R v Holton [1996] QCA
R v Jones [1997] QCA 132
R v Skedgwell (1999) 2 Qd R 97

COUNSEL:

L Clare SC, Director of Public Prosecutions
T Ryan for the prisoner

SOLICITORS:

Director of Public Prosecutions (Queensland)
Legal Aid Office (Queensland) for prisoner

1. MACKENZIE J:  These are the reasons referred to at the conclusion of my sentencing remarks of 15 December 2006. They concern time to be taken into account as time already served and other related issues.  By consent of the parties, the time determined is to form part of the order on sentence.  When the matter was before me on 15 December 2006, I sentenced the prisoner to life imprisonment for two murders with eligibility to apply for release after 25 years, and to a concurrent sentence of 5 years imprisonment for doing grievous bodily harm on a separate and unrelated occasion.

1. Section 159A(1) of the Penalties & Sentences Act 1992, (formerly s 161), provides that any time that the offender was held in custody in relation to the offence and for no other reason must be taken to be time already served under the sentence, unless the sentencing court otherwise orders. Despite the fact that the penalty for murder is life imprisonment which cannot be mitigated or varied, an order may be made under s 159A in respect of a person sentenced to life imprisonment (R v Blake (1995) 2 Qd R 167). I am satisfied that there is no reason to deprive the prisoner of the benefit of a declaration in respect of time for which he was held in custody for no other reason than the murder charges.

1. At the time he committed the murders, he was on bail for the offence of doing grievous bodily harm, committed on 30 May 2004.  However, according to the presentence custody certificate, his bail was not revoked on this charge until 18 August 2006.  It is the period of custody since bail was revoked on that charge that is in contention. 

1. Section 159A(4) of the Act cannot assist the prisoner (R v Fox [1998] QCA 121). From the time of revocation of bail on the charge of grievous bodily harm, the prisoner’s custody is referable in part to that earlier charge of grievous bodily harm. The period from that date onwards cannot be ordered to be taken into account as time already served under s 159A.

1. Problems in applying s159A are by no means a novel thing. Difficulties of this kind were discussed, for example, in R v Wishart and Jenkins [1994] 2 Qd R 421, and R v Holton [1996] QCA 510. In R v Jones [1997] QCA 132, a case not involving a life sentence, the custody was partly due to offences which had been committed while on bail and pre-sentence custody was not able to be declared as time served under s 159A. The issue presenting for consideration was that, if the applicant were acquitted when the subsequently committed offences were dealt with, the benefit of having time spent in custody declared as time already served would be lost. Both Jones and Holton refer to the adverse effect of committing offences while on bail in relation to exercising the general discretion established by R v Skedgwell (1999) 2 Qd R 97 to give a benefit outside the confines of s 159A for time served. In Jones, the learned sentencing judge was found not to have considered the issue of partial benefit for period served and that the benefit of some time served should be allowed. 

1. In Massey (2002) QCA 312, Williams JA prefaced what is quoted below by saying that it was not irrelevant that, with the applicant’s history of callous violence, it was highly unlikely that he would be considered for release into the community after serving the 15 years required, as it was under s 135(2) of the Corrective Services Act 2000.  He later said:

“[16]Deciding that the applicant here has no entitlement to have the 755 days of pre-sentence custody taken into account does not affect the reasoning of this court in R v Skedgwell [1999] 2 Qd R 97. The court there recognised that s 161(1) of the Act was not an exhaustive statement of a sentencing court’s power to take into account a period of pre-sentence custody when arriving at the appropriate sentence. Where appropriate, in the exercise of the general sentencing discretion, the court might regard a period of such custody as a factor which might operate in mitigation, by reducing the head sentence, or by accelerating the date for consideration for parole.

[17]But, of course, the approach referred to in Skedgwell cannot be applied where a mandatory life sentence is imposed. It is really only in those cases that the problem with which the court is now confronted will arise. As counsel for the Crown

pointed out, that is not necessarily an anomaly created by the Act; it has always been the position with a life sentence.

[18]Given this applicant’s criminal history particularised above, it is doubtful that in practical terms the inability of the court to declare that the 755 days is time served pursuant to the life sentence will be of significance. It would be for the legislature to intervene if it was considered that, looked at generally, it was only fair and just that time spent in pre-sentence custody should be brought into account where a mandatory life sentence is imposed because of its relevance in determining the date upon which the offender becomes eligible to apply for parole.”

Whichever way one looks at it, there is an element of capriciousness in the operation of s 159A. The present case raises a point which, as far as I am aware, is novel, in that the issue of what allowance should be made for time already served under a sentence for two murders where the discretion given by s 305 of the Criminal Code has been exercised to provide a date for eligibility for release beyond the minimum of 20 years is in dispute.

1. Had bail for the charge of grievous bodily harm never been revoked, the period of custody for the murders could have been declared as time served.  If, on the other hand, bail had been revoked immediately upon the prisoner being charged with the murders, no time would have been allowed.  It is presumably small comfort to the prisoner, but he could have been in the latter situation, which is worse than the intermediate position that he finds himself in.  In R v Fox [1998] QCA 121, McPherson JA said that, in the circumstances of that case, making a declaration that a number of days of custody were to be treated as time served was in accordance with Blake; but the law allowed the sentencing judge to go no further than that in recognising and giving effect to the much longer period of pre-trial custody actually served. 

1. One of the issues thrown up by the present case is that overtly allowing the kind of informal allowance for time served recognised by Skedgwell in a case where the discretionary extension of parole eligibility has been made, can place prisoners in that limited class in a better position than those whose eligibility occurs at the statutory time.  Overtly making an informal allowance would create a disparity between those two categories of prisoners; a prisoner whose eligibility arose at the statutory time could not have the benefit of an informal allowance, but a prisoner whose eligibility for release had been extended could. 

1. Conceptually, the proper approach seems to be to treat the process leading to an exercise of the discretion to impose an extension of the eligibility period as one which involves two aspects. One is taking into account that, by the time of sentencing, the prisoner has spent a certain period in custody. Some may be subject to a declaration under s 159A; some may not. A declaration should be made in respect of the former. The other aspect is determining the minimum time the prisoner should, in all the circumstances of the case, spend in prison until eligible to be released. The extent to which that decision is influenced by time that cannot be declared because it falls outside s159A will depend, as the authorities suggest, not necessarily on mathematics, but on the circumstances of the particular case.

1. Having said that, authority makes it plain that the only time that can be formally declared is the time spent in custody prior to the revocation of bail for the offence of grievous bodily harm. I order that the time that the prisoner was held in custody from 17 March 2005 to 18 August 2006, being 519 days, is to be taken into account as time already served pursuant to s 159A of the Penalties and Sentences Act 1992.