R v Southee

[1993] QCA 418

IN THE COURT OF APPEAL [1993] QCA 418

S UPREME COURT OF QUEENSLAND

C.A. No. 172 of 1993

B risbane

[R v Southee]

T H E Q U E E N
v.
NATAN JOHN SOUTHEE

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The Chief Justice Mr Justice Davies Mr Justice Lee

─	─────────────────────────────────────────────────────────────
J	udgment delivered 20/10/93

JOINT REASONS FOR JUDGMENT BY THE CHIEF JUSTICE AND LEE J.;
DAVIES J.A. DISSENTING
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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED.
APPEAL ALLOWED. SET ASIDE THE RECOMMENDATION FOR RELEASE ON
PAROLE ORDERED BELOW. ORDER IN LIEU THAT THERE BE A NON-PAROLE

PERIOD OF 18 MONTHS STARTING ON 29 APRIL, 1993. IN OTHER

R ESPECTS THE SENTENCE TO STAND.

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CATCHWORDS:

CRIMINAL LAW - Sentence - Applct and co-offender convicted of assault causing bodily harm and sentenced to 3 yrs imprisonment cumulatively upon terms then being served by each with recommendation for eligibility for parole. Recommendation for parole in respect of co-offender: "after serving 18 months of the sentence" - in applct's case "after serving 18 months" - wh difference in wording intended, wh if so it had an effect and wh any different result justified - wh parole recommendation made to commence at some time in future - effect of s. 157 Penalties and Sentences Act

Penalties and Sentences Act, s. 157

C el	ouns :	Ms K. Wenck for the applicant Mr M. Byrne for the respondent
S it :	olic ors	Legal Aid Office for the applicant Director of Prosecutions for the respondent

Hearing date:  21 July, 1993

IN THE COURT OF APPEAL

QUEENSLAND

C.A. No. 172 of 1993

Brisbane
Before The Chief Justice Mr Justice Davies Mr Justice Lee

[R v Southee]

T H E Q U E E N

v.

NATAN JOHN SOUTHEE

(Applicant)

REASONS FOR JUDGMENT - THE CHIEF JUSTICE AND LEE J.

J udgment delivered 20/10/93

The applicant seeks leave to appeal against a sentence imposed on 29 April, 1993. The applicant and one Cartledge were jointly charged with assault upon the complainant, Lawrence, causing him bodily harm. The assault took place on 23 November, 1992 when all three were inmates in a correctional centre at Etna Creek. Circumstances of aggravation charged were that the two named prisoners who assaulted the complainant were in company and armed with an offensive weapon, a typewriter carriage roll. Both the applicant and Cartledge pleaded not guilty but, after trial, were found guilty and sentenced to terms of three years' imprisonment cumulatively upon the terms they were each then respectively serving. A recommendation for eligibility for parole after eighteen months was made in each case but, for reasons which will appear, it will be necessary to look more closely at the terms of the orders making the recommendations.

Two grounds were argued for the applicant. The orders treating the applicant and Cartledge, on the face of things equally, were said to be inappropriate in the circumstances. In addition, it was submitted that in the case of the applicant the learned sentencing judge erred in law in the way in which he purported to set the non-parole period. It was suggested that he set the non-parole period commencing from a date in the future and that this was in breach of s. 157 of the Penalties and Sentences Act.

The circumstances of the offence should first be described.
The complainant, the applicant and Cartledge were prisoners in
the same cell block at the correctional centre. At 7.30 p.m. on
the day of the offence, the complainant, without, so far as
appears, having offered any provocation, was, while seated and
without warning, struck on the head from behind with a
typewriter roll wielded by the applicant. The complainant got
to his feet, put his hand to his head and discovered that he was
bleeding. He left the mess room to seek attention and the
applicant called out, "not to give him up". When the
complainant had got up and turned around after being struck, he
saw the other prisoner, Cartledge, standing nearby laughing. No
doubt Cartledge was convicted for his part in this offence on
the basis of s. 7 of the Criminal Code as one who aided or
encouraged the applicant. Cartledge was also found guilty of a
separate offence with which he, but not the applicant, was
charged and which followed immediately after the first. This
was an offence of unlawfully wounding the complainant. A
further assault caused this wounding and it was a more prolonged
affair. When the complainant left the mess room to seek
assistance he was approached by Cartledge who commenced to slash
at him with some cutting instrument he had hold of. The
complainant was slashed across the face, stomach and arms
approximately ten times and, when the instrument was knocked
from his hand, Cartledge punched and kicked him. Thus, while a
fairly continuous episode followed from the first assault by the
applicant, it was not said that the applicant took part in the
second phase when the wounding occurred.
The learned sentencing judge referred to a number of relevant matters. He said that the courts could not tolerate prisoners taking the law into their own hands to inflict violence on fellow prisoners so that in sentencing for such offences he felt constrained to offer a deterrent to others who might be similarly inclined. He noted that both the applicant and Cartledge seemed to have been intoxicated to some degree when the offences were committed.

The maximum sentence provided for assault occasioning bodily harm with, as here, a circumstance of aggravation was seven years. Having sentenced the applicant to three years cumulatively upon the sentence he was currently serving, the judge added a recommendation that he be eligible for parole "after serving eighteen months of the sentence". Literally, this would seem to mean after serving eighteen months of the sentence the judge was then imposing. Cartledge, for each of the two offences in which he was involved, namely the assault and the subsequent wounding, was sentenced to concurrent terms of three years but, once again, they were ordered to take effect cumulatively upon the sentence he was serving. He too received a recommendation of eligibility for parole but in his case it was ordered that this should apply "after serving eighteen months". This was a somewhat different form of words from that used in the case of the applicant. Questions argued before this Court were whether the difference in wording was intended, whether, if so, it had an effect, and finally, whether any different result was justified.

Both the applicant and Cartledge had significant criminal histories. Cartledge's list of previous convictions was very much longer than the applicant's but it did not include such serious episodes of violence. The applicant, after an earlier conviction for assaulting police, was, on 4 March of 1992, sentenced to a six month term for assault occasioning bodily harm and on 22 May of 1992, on a conviction for robbery while armed with an offensive weapon, was sentenced to five years' imprisonment with a recommendation that he be considered for eligibility for parole after eighteen months. This last sentence imposed in the Brisbane District Court was the one which the applicant was serving at the time he was sentenced for the present offence on 29 April, 1993.

The criminal history sheet in the case of Cartledge did not provide as clear an indication of his status as a prisoner in April, 1993. His recent history included certain shorter terms, some of them imposed cumulatively, and it is a little hard to state confidently and with precision when, apart from the sentence imposed in April, 1993, he would have been due for release but, in argument before us, it was accepted that he would have been due for release not long after April, 1993. In his case the most recently imposed sentence, being the one he was then serving, had also been imposed in the District Court.

The continuous nature of the episode in the course of which the complainant was attacked by the other two prisoners, the fact that the applicant's action was the one which seems to have initiated the breach of discipline which was involved and also the respective criminal histories of the two offenders would have justified the sentencing judge in imposing similar sentences and the judge's remarks seem broadly to indicate that this is what he probably intended. Insofar as the present application challenges equality of treatment of the two offenders or challenges the length of the terms actually imposed and the fact that they were to be served cumulatively, it should be rejected. Nothing in the circumstances compelled the judge to treat the two offenders in dissimilar fashion or rendered the imposition of three year terms excessive. However, it is said that the situation in which the two were respectively placed as a result of their currently running sentences might have caused an unequal and unjust result and this point must now be considered.

New provisions governing eligibility for parole appear in s. 157 of the Penalties and Sentences Act. One submission made to us was that the sentencing judge did not have power to order that any parole recommendation should commence at some future time, that is, at a time when the cumulative sentence of three years commenced to run. It was said that this would be in breach of s. 157(5)(b) which states that recommendations made in cases like the present start on the day on which they are made.

It is, of course, open to consider that the sentencing judge in this case may not have specified a commencing date for the running of a non-parole period but may merely have provided a basis upon which the point of eligibility for parole could be calculated, namely eighteen months after the future date, whenever it might be, that the cumulative term of three years would commence to run. For the consideration of this possible interpretation and also in weighing the wider implications of the sentence imposed on the applicant, it is desirable to set out portions of s. 157 which are applicable in a case when, as here, a court of like jurisdiction is imposing a term of imprisonment and making a recommendation for parole eligibility in the case of an offender who is already serving a term of imprisonment. Relevant provisions are as follows:

"157(1) In this section -

...

(2) If a court imposes a term of imprisonment on an offender, it may recommend that the offender be eligible for release on parole after having served such part of the term of imprisonment as the court specifies in the recommendation.

(3) If a court imposes another term of imprisonment on an offender who is already serving imprisonment for an offence, the court must -

(a)  If it is a court of like jurisdiction or higher jurisdiction to the court that last sentenced the offender to a term of imprisonment - make a fresh recommendation for parole relating to the period of imprisonment that the offender must serve. (Note that at the time the applicant was sentenced in the present case the words 'made a recommendation of a non-parole period for an offender' appeared in this subsection in lieu of the words 'sentenced the offender to a term of imprisonment'. These last words were substituted by an amendment made on 23 July, 1993 but, while the intention of the subsection might be made clearer by the amended wording, in the present case no significant difference results.)

(4) In making a new recommendation under

subsection (3)(a), the court -

(a) must have regard to all the facts known to the court; and

(b)  must ensure that the non-parole period is not less than that mentioned in subsection (2).

(5) A new recommendation made under

subsection (3)(a) -

(a) revokes previous recommendations made by courts in relation to a non-parole period for an offender; and
(b) starts on the day it is made."

It was obligatory for the sentencing judge in the present case to make a fresh recommendation for parole because the applicant had already been sentenced to a term of imprisonment which he was currently serving with a recommendation for parole that had been made on the earlier occasion when he was sentenced.
It was submitted to us that in the present case the earlier recommendation for parole made on 22 May, 1992 would disappear because the court, being a District Court of like jurisdiction, was obliged on 29 April, 1993 to make a "fresh recommendation".
It was suggested, and it may well be the case, that
subs. (3)(a) was enacted to overcome the effect of the decision
of the Court of Criminal Appeal in R. v. Mann [1989] 2 Qd.R. 61.
The operation of s. 157 of the new legislation certainly calls
for careful attention by a sentencing judge both to ensure that
the intended result is achieved and to ensure that what is
intended will be clearly conveyed to persons, including officers

of the Corrective Services Commission, who will later need to

consider the terms of the order.

A more exact description of the situation in which the applicant was placed both before and after the sentence of 29 April, 1993 will be helpful in considering the matters raised for our consideration. Having been sentenced to a five year term on 22 May, 1992 with a parole recommendation after eighteen months, the applicant's point of parole eligibility would have been reached on 22 November, 1993. When he was sentenced again to a cumulative term of three years on 29 April, 1993, the date of release, apart from any question of remissions and earlier release on parole, would have been 22 May in the year 2000. If the applicant had been sentenced to his terms of five years and three years respectively and no recommendation for parole had been made in either case, then he would have been eligible for parole after four years, that is, half of a total of the eight years resulting from the aggregation of the two terms. That date would have been 22 May, 1996. As already mentioned, he did in fact have an earlier recommended parole date of 22 November, 1993, but the benefit of this date vanished because the judge was obliged to make a fresh recommendation. Because of this and apart from any fresh order made and any question of remissions, the applicant would have been obliged to serve the whole of the earlier five year term before he would commence to serve his new three year cumulative term. If, by the words he used, the judge intended that the parole eligibility point would only be reached eighteen months after that new term had commenced to run, that point would have been about five and a half years into the future. That is for the reason that there were approximately four years of the first term still to run and then another eighteen months were to follow. Counsel appearing for the Crown on the appeal submitted that the judge would not have intended by the words he used in the applicant's order that his non- parole period would lie so far in the future. He submitted that the judge should be taken as intending and ordering that the fresh non-parole period should run for eighteen months from the date of sentence, that is, from 29 April, 1993. On this basis it would be reached on 29 October, 1994. This construction would certainly be supported by those indications in the sentencing remarks of a general intention to treat the applicant and Cartledge equally.

As already mentioned, the position of Cartledge when he was sentenced on 29 April, 1993 was that he had only a short time still to serve. It seems that apart from questions of remissions, his release date would be reached in about August, 1993. The order and recommendation made by the judge on 29 April, 1993 meant that his non-parole period would run only for about eighteen months or not much more into the future and this would be so even if the judge intended that his non-parole period would not terminate until eighteen months after he had commenced to serve his new term of three years. However, in respect of Cartledge, when the words which the judge used in his case (quoted above) are considered, there is no reason to think that he intended to order that the non-parole period would end more than eighteen months into the future from the date of sentencing.

Because the words used in the case of the applicant lend themselves to a different construction more adverse to the applicant and because the order in the circumstances lacks clarity, the application should be granted with a view to restoring the approximate parity between the two offenders which was probably intended and which should, in any case, be ordered.

From one point of view it might be thought that there is some element of generosity to the applicant as compared with Cartledge in proceeding in this fashion because after the sentence was imposed in April 1993 the applicant would have had about seven years of the terms of his cumulative sentences still to serve while Cartledge would then have had something less than three and a half years, yet they both will have the same parole recommendation date. However, there is sufficient justification for proceeding in this fashion because of its conformity with what the sentencing judge probably intended and because before the applicant was sentenced in April 1993 his existing parole recommendation date, November 1993, lay not very far ahead.

The appeal of the applicant should be allowed and the recommendation for release on parole ordered below should be set aside and in lieu thereof it should be ordered that there be a non-parole period of eighteen months starting on 29 April, 1993.

In other respects the sentence should stand.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	C.A. No. 172 of 1993
Brisbane
Before	The Chief Justice Mr Justice Davies Mr Justice Lee

[R. v. Southee]

T H E Q U E E N
v.

NATAN JOHN SOUTHEE (Applicant)

REASONS FOR JUDGMENT - DAVIES J.A.

Judgment delivered 20/10/1993

I accept for the purpose of these reasons the statement by the Chief Justice and Mr Justice Lee of the nature of the charges against the applicant and Cartledge, the grounds of appeal and the circumstances in which the offences by the applicant and Cartledge were committed.

I agree with their Honours that there was no reason in sentencing the applicant and Cartledge to distinguish between them. The applicant was the sole perpetrator of the first offence, although Cartledge was technically a party to it. In consequence of it, the complainant had a substantial laceration to his skull requiring stapling. On the other hand, Cartledge was the sole offender on the second offence of wounding although it appeared to follow on from the first. As to their previous history, Cartledge had a longer criminal record but the applicant had a worse history of violence. And I agree with their Honours that the learned sentencing judge appeared to intend to impose similar sentences upon them.

In imposing the sentences, the learned sentencing judge said:

"In your case, Southee, you have been convicted of an offence of assault causing bodily harm with a circumstance of aggravation. The maximum penalty for the offence in that situation is imprisonment for seven years. I sentence you to imprisonment for three years to take effect upon the expiration of the sentence presently being served. I recommend you be eligible for release on parole after serving eighteen months of the sentence.

In your case, Cartledge, with respect to each offence the sentence will be imprisonment for three years. Those sentences will be concurrent one with the other.

I direct that they take effect upon the expiration of the sentence presently being served. I recommend you be considered eligible for release on parole after serving eighteen months."

The main question before us was the effect of s. 157 of the Penalties and Sentences Act 1992 upon those sentences, having regard to the sentences already being served by each of the applicant and Cartledge.

Notwithstanding the existence of recommendations for eligibility for parole in the sentences which the applicant and Cartledge were serving when they committed these offences, s. 157(3)(a) required the learned sentencing judge in each case to "make a fresh recommendation for parole relating to the period of imprisonment that the offender must serve"; that is the period still to serve under his existing sentence and the period to be served under the cumulative sentence which he imposed which are, for this purpose, to be treated as one sentence. Sub-section (5) then provides that such new recommendation revokes the previous recommendation and starts on the day it is made.

The Chief Justice and Mr Justice Lee in their reasons referred to the difference in wording between the last sentence in each of the above quoted paragraphs: the addition in the first of the words "of the sentence". However, I would construe those additional words as a reference to "the period of imprisonment that the offender must serve". I note that in the previous sentence of this paragraph the learned sentencing judge referred to both the remainder of the existing sentence still to be served and the sentence he was imposing.

I would therefore conclude that the learned sentencing judge in both cases was making a recommendation that the prisoner be eligible for release on parole after serving eighteen months from the date on which he made the recommendation. The construction is consistent with the learned sentencing judge's apparent intention to treat the applicant and Cartledge approximately equally. A construction which would require the period of eighteen months in the sentence imposed on the applicant to be measured from the commencement of the new term of imprisonment would defeat that intention for the reason stated by the Chief Justice and Mr Justice Lee.

In that event, neither the sentence imposed on the applicant nor the recommended non-parole period in respect of that sentence was excessive. However, I think it unfortunate that his Honour's failure to state more clearly that the period of eighteen months was a period calculated from the date of his recommendation resulted in this application which I would refuse.