R v Thorpy

[1995] QCA 278

IN THE COURT OF APPEAL [1995] QCA 278

SUPREME COURT OF QUEENSLAND

C.A. No. 126 of 1995

Brisbane

[R. v. Thorpy]

THE QUEEN

v.

ADAM WATSON THORPY

(Applicant)

DAVIES J.A. MOYNIHAN J. SHEPHERDSON J.

Judgment delivered 16/06/1995

Judgment of the Court

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.

CATCHWORDS:	CRIMINAL LAW - SENTENCE: s.188 of the Penalties and Sentences Act 1922 and s.187 of the Corrective Services Act 1988; whether applicant was already serving imprisonment for an offence at time that new sentence was being handed down;
whether sentencing Judge was required by s.157 of the Penalties and Sentences Act to make a fresh recommendation for parole; whether sentencing Judge should have taken into account facts which occurred prior to the date of sentence.
Counsel:	Mr. D. Kent for the applicant
Mr. W. Clark for the respondent
Solicitors:	Legal Aid Office for the applicant
Director of Public Prosecutions (Queensland) for the respondent

Hearing Date: 15 May 1995

REASONS FOR JUDGMENT - THE COURT

Judgment delivered the 16th day of June 1995

This is an application for leave to appeal against a sentence which, it was submitted, was imposed under s.188(3)(b) of the Penalties and Sentences Act 1992. The circumstances which gave rise to the imposition of that sentence are as follows.

On 26 November 1993 the learned sentencing Judge sentenced

the applicant to nine years imprisonment for the offence of

robbery with actual violence whilst armed with a dangerous weapon. His Honour ordered that that sentence be deemed to commence on 20 February 1993 but made no recommendation with respect to parole.

At the time of commission of this offence and at least

immediately prior to his plea of guilty the applicant was on

parole in respect of an offence committed on 13 June 1986 for

which he had been sentenced on 14 June 1991.

On 28 February this year the applicant made application to

the sentencing Judge in purported pursuance of s.188 of the

Penalties and Sentences Act which provides that a court, other

than a Magistrates Court, which has imposed a sentence that is

not in accordance with the law or failed to impose a sentence that the court legally should have imposed, may reopen the

proceeding. The submission made on the applicant's behalf to

the Court on that day was that s.187 of the Corrective Services

Act 1988 had the effect that, upon conviction, the applicant's parole was revoked; that he was, in consequence, already serving

imprisonment for an offence at the time of sentence; and that

therefore the sentencing Judge was required by s.157 of the

Penalties and Sentences Act to make a fresh recommendation for

parole. The learned sentencing Judge accepted that submission

and added a recommendation for eligibility for parole on 20 August 1997. It is from the making of that order that this

application for leave to appeal is brought.

It was submitted to the learned sentencing Judge on the applicant's behalf that he should, in making the recommendation for parole, take into account matters which had occurred since

the original date of sentence. These included secondary and

tertiary study, drug tests, acceptance into a drug

rehabilitation centre upon eventual release and drug counselling whilst in prison. The learned sentencing Judge refused to take these matters into account and the argument on appeal was as to

whether he could and should have done so.

Both parties to this appeal assumed that, at the time the sentence was imposed on 26 November 1993 the applicant was "already serving imprisonment for an offence" within the meaning of s.157(3) of the Penalties and Sentences Act. That assumption is based on the submission made below, and accepted by his

Honour, that on conviction for this offence the applicant's

parole in respect of his earlier offence was automatically

revoked. However s.187, upon which that assumption is based,

provides:
"(1) Where a prisoner who has been released on parole is

sentenced to another term of imprisonment upon conviction for an offence committed in Queensland or elsewhere during the parole period, his parole shall ipso facto be cancelled whether or not the parole period has expired.

... "

Contrary to the above assumption parole is not revoked on conviction. It is cancelled only upon sentence of another term of imprisonment. The applicant was therefore still on parole at the time this sentence was imposed.

The applicant would, however, have been "already serving

imprisonment" within the meaning of s.157(3) when the sentence

was imposed on 26 November if whilst he was on parole he was "serving imprisonment" within the meaning of that section. There are indications in s.157 that that was what the

legislation intended. The definition of "non parole period" in

sub-s.(1) and sub-s.(2) both imply that a term of imprisonment includes the period during which the offender is on parole.

That is consistent with s.184 of the Corrective Services Act

which provides that a prisoner released on parole shall be regarded as still being under sentence, that sentence being, of course, one of imprisonment: cf. s.30 of the Sentencing Act 1989 (N.S.W.). That legislative intention is consistent also with the evident intent of s.157(3) to provide for the case where an offender has to serve a sentence of imprisonment imposed by the court and one imposed by an earlier sentence.

In our view, therefore, the appellant was already serving

imprisonment on 26 November 1993 and consequently s.157(3)(a)

required the learned sentencing Judge to make a fresh recommendation for parole. For that reason, and because he failed to do so it was appropriate for him to reopen the matter

pursuant to s.188. The learned Judge reopened the matter and made a fresh recommendation but refused, as mentioned above, to take into account facts which had occurred since he had

originally passed sentence. His Honour said that he had no power to reopen the sentence; by that his Honour no doubt meant

that he had no power to consider the sentence afresh.

The question whether, upon such a reopening, a sentencing

Judge may take into account facts which have arisen since the

original sentence was imposed does not admit of a clear answer.

There is no express provision on that matter.

However the provision is derived, in part, from s.147A of

the Justices Act 1886 sub-s.(1) of which is in relevantly

similar terms to s.188. Section 147A(1) has been construed on a number of occasions, including by the Full Court and this Court, as being limited to the correction of error or possibly also clarification of an order made; but not as allowing the admission of fresh evidence. See R. v. Williams; ex parte Biggs [1989] 1 Qd.R. 594; R. v. Tommekand, C.A. No. 233 of

1994, judgment delivered 21 December 1994, unreported.

Conflicting views have been expressed in New South Wales on

the extent of the power conferred by s.24 of the Criminal

Procedure Act 1986 (N.S.W.) which is also in similar terms. See

for example Tolmie (1994) 72 A.Crim.R. 416.

Though either construction of s.188 is open no convincing reason was shown for departing from what appears to be a settled construction in this State of a provision which is not materially different. We would therefore conclude that the learned sentencing Judge was correct in refusing to admit

evidence of facts which have occurred since the original sentence was imposed. Accordingly we would refuse the application for leave to appeal.