Robert John Thomas v The Queen

[2005] ACTCA 8

ROBERT JOHN THOMAS v THE QUEEN [2005] ACTCA 8 (23 MARCH 2005)

APPEAL – sentence made cumulative on earlier sentence where balance of parole to be served – effect of s 24 Parole Act 1976 (ACT) (now repealed) (cf s 43 Rehabilitation of Offenders (Interim) Act 2001 (ACT)) – no basis shown for the sentences to be served concurrently – no error of principle – pre-sentence custody to be reckoned as a period of imprisonment already served under the sentence – s 451 Crimes Act 1900 (ACT) now s 360 – impracticable to backdate the sentence due to balance of parole required to be served – sentence imposed reduced by pre-sentence custody – appeal dismissed.

Rehabilitation of Offenders (Interim) Act 2001 (ACT), s 61

Parole Act 1976 (ACT) s 7, s 8, s 22 , s 24

Crimes Act 1900 (ACT), s 451

Pearce v The Queen (1998) 194 CLR 610

Mill v The Queen (1988) 166 CLR 59

Johnson v The Queen [2004] HCA 15, 30 March 2004

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA  2-2004
No. SCC 81 of 1999

Judges:  Gray, Connolly and Allsop JJ
Court of Appeal of the Australian Capital Territory
Date:  23 March 2005

IN THE SUPREME COURT OF THE  )   No. ACTCA 2-2004
  )  No. SCC 81 of 1999
AUSTRALIAN CAPITAL TERRITORY  )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:ROBERT JOHN THOMAS

Appellant

AND:THE QUEEN

Respondent

ORDER

Judges:  Gray, Connolly and Allsop JJ
Date:  23 March 2005
Place:  Canberra

THE COURT ORDERS THAT:

1. the appeal be dismissed.

IN THE SUPREME COURT OF THE  )   No. ACTCA 2-2004
  )  No. SCC 81 of 1999
AUSTRALIAN CAPITAL TERRITORY  )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:ROBERT JOHN THOMAS

Appellant

AND:THE QUEEN

Respondent

Judges:  Gray, Connolly and Allsop JJ
Date:  23 March 2005
Place:  Canberra

REASONS FOR JUDGMENT

THE COURT:

1. Robert John Thomas (the appellant) is presently a prisoner under sentence in the New South Wales prison system.  From the chronology provided, as later appears, he is presently serving the balance of parole in respect of sentences imposed on him on 14 May 1999 by Crispin J in the Supreme Court of the ACT.

1. By notice of appeal dated 5 May 2004 he appeals, “from sentencing method and corresponding conviction in delayed error of the judgement of His Honour, given on 21 May 1999”.  As will later appear, the sentence that concerns the appellant was, in fact, imposed on 14 May 1999.  A search of the court records shows that the appellant was not before the court on 21 May 1999, that his plea was taken and evidence put before the court on 10 May 1999 and further submissions on sentence and the sentencing itself completed on 14 May 1999.

Leave to appeal out of time

1. On 24 February 2004, the appellant lodged an application for leave to appeal out of time in respect of the sentence imposed by Crispin J in 1999.  The application was supported by the appellant’s affidavit claiming error “in [the] cumulative sentencing” that had taken place.

1. On 14 April 2004, the registrar gave leave to appeal to the Court of Appeal out of time and a notice of appeal was filed on 5 May 2004.  Although the notice of appeal was not filed within the time that the registrar directed that it should be, there appears to be reasons for the delay and nothing turns on this aspect to prevent the appeal being determined by this court.

Written case

1. The notice of appeal sought that the appellant’s case be presented in writing.  Thereafter the parties filed documents as directed by the court to give effect to that request.  The Director of Public Prosecutions (DPP) prepared and filed a chronology of facts.  Both the DPP and the appellant filed written cases and the matter was referred to this court comprising Gray, Connolly and Allsop JJ for determination upon the written materials. 

The chronology of facts

1. The chronology sets out the following matters,

21 May 1993ACT Supreme Court, Miles CJ.  Sentenced to 5 years imprisonment with a non parole period of 3 years for offences of Theft, Obtain Credit Whilst Bankrupt and Breach of recognisances to commence on 21 May 1993 and expire on 20 May 1996.

13 January 1996 Released on parole to expire on 20 May 1998.

8 March 1999 Arrested for committing further offences and remanded in custody.  Some offences committed during the parole period.

14 May 1999ACT Supreme Court, Crispin J.  Sentenced to 4 years imprisonment cumulative on sentence imposed on 21 May 1993.  As a result, parole automatically revoked (s.61 Rehabilitation of Offenders (Interim) Act 2001) from the date of sentence.  Balance of 1993 sentence expires on 21 September 2001.  New non parole period set to expire on 8 March 2001.  67 days pre sentence custody (8.3.99 to 14.5.99) taken into account on 1999 sentence – thus, 1999 sentence to commence on 17 July 2001 and to expire on 16 July 2005 (21.9.01 less 67 days).  1999 sentence was for offences of Theft (14 counts), Make and Use False Instrument (2 counts each), Obtain Financial Advantage by Deception (4 counts) and Obtain Benefit by Deception (2 counts).

18 July 2000 Parole Board issues Notice of Revocation of 1993 sentence.  Appellant required to serve balance of term of imprisonment – 2 years 4 months 8 days to commence on 14 May 1999 and to expire on 21 September 2001.  Balance calculated as 5 years less time served of 2 years 7 months 24 days from 21 May 1993 to 13 January 1996.

17 April 2001 Released on parole to expire on 16 July 2005.

19 December 2002 Parole order transferred and registered in New South Wales.

28 November 2003 Orange Local Court.  Sentenced to 12 months imprisonment to commence on 18 September 2003 for offences of Pass Valueless Cheque, Obtain Money by Deception (3 counts), Make False Statement to Obtain Money, and Make False Representation resulting in Police Investigation.

Parole order revoked as from 10 March 2003 (date of first offence).  Ordered to serve balance of parole of 2 years 4 months 3 days (the period from 10 March 2003 to the expiry of the sentence imposed on 14 May 1999 ie 16 July 2005) to commence on 18 September 2003 and to expire on 20 January 2006.

The reference in the chronology to s 61 Rehabilitation of Offenders (Interim) Act 2001 (ACT) is an incorrect reference. The relevant provisions at the time were contained in the Parole Act 1976 (ACT). Section 22 (2) of that Act provided,

Where the person to whom a parole order relates is sentenced to a term of imprisonment in respect of an offence (including an offence against a law of the Commonwealth or of a State or another Territory) committed during the parole period the parole order shall be deemed to have been revoked and, if the parole period has already expired, to have been revoked immediately before the expiration of the parole period.

That is what happened when Crispin J sentenced the appellant.  As some of the offences for which Crispin J was sentencing the appellant had been committed during the parole period of the sentence imposed by Miles CJ, that parole period was deemed to be revoked immediately before its expiration.

Balance of Parole

1. Section 24 (2) and (3) of the Parole Act 1976 provides,

(2)  Where a person has been released from prison on parole, whether under this Act or under the Repealed Ordinance –

(a)he or she shall be deemed to be still under sentence of imprisonment and not to have served any period of imprisonment that remained to be served at the commencement of the parole period, until the parole period expires without the parole order being revoked or until he or she is otherwise discharged from that imprisonment;  and

(b)if the parole period expires, without the parole order being revoked, he or she shall be deemed to have served the period of imprisonment that remained to be served at the commencement of the parole period and to have been discharged from that imprisonment.

(3)  Where a parole order is, by virtue of section 22 to be deemed to have been revoked immediately before the expiration of the parole period, subsection (2) has effect as if the parole period had not expired without the parole order being revoked. 

1. The effect of this provision in the present case meant that at the time that the appellant was to be sentenced by Crispin J, he had become liable to serve the two years seven months and 24 days that he had not served under the sentence imposed by Miles CJ.  That means he was liable to be detained in prison until 21 September 2001.  It was inevitable that Crispin J should aggregate the sentence that he wished to impose on the balance that was due to be served by the appellant in respect of the sentence imposed by Miles CJ.  No basis existed for the sentences to be served concurrently.  Accordingly, Crispin J ordered that the sentence that he imposed be cumulative upon the balance to be served under Miles CJ’s sentence.  There is no error of principle in dealing with this matter this way and no reason advanced as to why the sentence that Crispin J wished to impose should be served before the sentence imposed by Miles CJ had been discharged.

1. In his written case, the appellant refers to the matter being one that,

… the DPP and the ACT Parole Board could concur and adjust the “Actual Amount” of previous parole to be determined (About nineteen 19 months).

1. As far as we can see, that was never a matter that was put to the sentencing judge.  There was never any question that the amount to be served by the appellant under the previous sentence was anything other than the two years four months and eight days required to be served consequential upon the appellant’s breach of parole. 

Pre-sentence custody

1. In respect of the sentence that Crispin J determined to impose there was a requirement, pursuant to s 451 of the Crimes Act (now s 360) that the 67 days that the appellant had spent in pre-sentence custody be reckoned as a period of imprisonment already served under the sentence. At the time, s 451 of the Crimes Act 1900 (ACT) provided,

If an offender is sentenced to a term of imprisonment in respect of an offence, any period of time during which he or she was held in custody in relation to proceedings for that offence or proceedings arising from those proceedings, shall be reckoned as a period of imprisonment already served under the sentence.

1. In order to achieve this objective, Crispin J recognised that he had to take into account the 67 days that the appellant had served in respect of the sentence with which he was dealing. He recognised that it was impracticable to backdate the sentence because of the balance of parole that the appellant was now required to serve. That 67 days custody was not referrable to the sentence imposed by Miles CJ and could not “be reckoned as a period of imprisonment already served” under the sentence imposed by Miles CJ. The only practicable way of giving effect to the time spent in custody could be by deducting the period spent in pre-sentence custody from the term to be imposed. This was done administratively in this case; the sentence imposed by Crispin J was expressed in the amended warrant which removed the appellant to serve his sentence in New South Wales as “four years (less the 67 days already served by virtue of s 451 of the Crimes Act 1990)”.  In fact, the amended warrant expressed the commencement of the sentence as that of 21 September 2001 which is the two years four months and eight days from the date of sentencing, 14 May 1999.

Fixing a new non-parole period

1. Crispin J, having sentenced the appellant to a term of imprisonment of not less than 12 months, was required to fix a non-parole period as the period during which the person was not to be eligible to be released on parole (then s 7 of the Parole Act 1976 (ACT) and cf s 31 of the Rehabilitation of Offenders (Interim) Act 2001 (ACT)).

1. Section 8 of the Parole Act 1976 (ACT) provides,

8.  Fixing of nonparole period where person serving a previous sentence

(1) Where a person who is serving a sentence of imprisonment (in this section called “the previous sentence”) is sentenced to a further term of imprisonment (in this section called “the further sentence”), subsections 7(1) and 7(2) apply as if the court by which the further sentence is imposed had sentenced the person to imprisonment for a term equal to the aggregate of the terms of the previous sentence and the further sentence.

(2) Subsection (1) applies whether the previous sentence was imposed before or after the commencement of this Act.

(3) The imposition of the further sentence revokes any nonparole period fixed in respect of the previous sentence.

(4) A non-parole period fixed at the time of the imposition of the further sentence -

(a)shall be taken to have commenced on the date on which the previous sentence was imposed;  and

(b)shall not be such as to render the person eligible to be released on parole earlier than would have been the case if the further sentence had not been imposed.

1. In this case, Crispin J fixed what he described as “an overall non-parole period to expire on 8 March 2001”. That was a period of two years from 8 March 1999 when the appellant had been taken into custody in respect of the offences for which Crispin J was sentencing the appellant. By fixing this date, the appellant’s non-parole period took into account the 67 days served. The commencement of the non-parole period, if the appellant was considered to be “serving a sentence of imprisonment” in terms of s 8 of the Parole Act 1976 (ACT), would be taken to have commenced on 21 May 1993 (the date of the sentence imposed by Miles CJ) but would be 67 days less than it would otherwise have been if the two years that Crispin J intended to fix dated from the time he made the order.

1. Arguably, the appellant was not serving the sentence of imprisonment imposed by Miles CJ at the time Crispin J made his orders.  In that case, if the non-parole period was referrable only to the sentences imposed by Crispin J, then the non-parole period was notionally fixed at two years but credit was given as from the date it was being fixed (14 May 1999) for the 67 days served from 8 March 1999.  The non-parole period was fixed to expire on 8 March 2001.

1. In any event, the effect was that the non-parole period fixed by Crispin J was to expire before the sentence that he was imposing commenced.  As we have earlier noted, that sentence was also reduced by the 67 days time spent in custody.

1. Accordingly, there is no substance in the appellant’s complaint in his written case that,

Thus the cumulative wording in the judge’s comments on the day of sentencing did not reflect that the extra conviction time as handed down by his Honour already INCLUDED the new non-parole period to be added.

To the contrary, there was no non-parole period to be served in respect of the four years imprisonment that Crispin J imposed.

1. Although Crispin J fixed 8 March 2001 as the expiration date of the non-parole period, the appellant was not released on parole until 17 April 2001.  At that stage he had not completed serving the balance of parole owing in respect of the sentence that Miles CJ had imposed, there also still being cumulative upon that sentence the four years imprisonment for the offences dealt with by Crispin J.  Accordingly, the term of the appellant’s release to parole was not to expire until 16 July 2005.

The further offences

1. The appellant committed further offences of dishonesty and was sentenced to 12 months imprisonment for those offences in the Orange Local Court.  Those offences took place in 2003 and his parole order was revoked to serve the balance of parole calculated from the date the appellant committed the first of the offences with which he was charged, to the date of expiry of the sentence imposed by Crispin J.  It is the commission of the further offences that places the appellant in the position in which he now finds himself namely, having to serve the balance of Crispin J’s sentence from 10 March 2003 (the date of the first offence which caused the revocation of the appellant’s parole) to the date of expiry that he imposed (16 July 2005) to commence on the date that the parole order was revoked (18 September 2003).  As well, the sentence of 12 months imprisonment imposed by the Orange Local Court was not the subject of an order making it cumulative upon the balance of parole to be served and the appellant had the benefit of that sentence being served at the same time as he was serving the balance of parole in respect of Crispin J’s sentence.

1. In effect, the appellant, if he completes the service of his present sentences without further release on parole, will have actually served one year four months and three days of the four year sentence imposed by Crispin J, at which time he will be entitled to release without parole being applicable to him.

Administrative arrangements

1. We note that administratively, the four year sentence imposed by Crispin J has been regarded as commencing 67 days before the expiry of the balance of parole due in respect of the sentence fixed by Miles CJ.  The balance of parole was to expire on 21 September 2001 and the commencement of Crispin J’s sentence has been taken as commencing 67 days before that namely, 17 July 2001.  That approach appropriately takes into account the 67 days.

The length of the sentence imposed by Crispin J

1. The appellant, by ground 3 of his appeal, states,

The judgement sought is that I respectfully seek a re-determination of the facts that were presented for His Honour between the 14^th May 1999 and 21^st May 1999, this could rectify the double sentencing that occurred, and they seeming [sic] lengthy sentences for the charges, so committed.

1. The matter of the length of the sentences is not addressed in the appellant’s written case.  Having regard to the seriousness of the offending and the commission of offences whilst on parole, there was little reason to extend leniency to the appellant and the overall sentence imposed of four years imprisonment does not appear to us to be at all excessive but rather to be within the proper sentencing discretion of the sentencing judge.

1. The sentences for the 24 offences fixed at four years were all made concurrent.  In Pearce v The Queen (1998) 194 CLR 610 at 624 [45], McHugh, Hayne and Callinan JJ said,

A Judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality.

If cumulative sentences had been imposed in the present case of the 24 offences, including 14 charges of theft carrying a penalty of imprisonment for 10 years that the appellant faced, a question of totality would clearly be raised.  The sentencing judge’s task in such circumstances is to arrive at an appropriate sentence for all the offences, Mill v The Queen (1988) 166 CLR 59 at 63 per Wilson, Deane, Dawson, Toohey and Gaudron JJ,

Where the principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed.  Where practicable, the former is to be preferred.

The approaches to be taken in both those cases were endorsed generally by all members of the Court in Johnson v The Queen [2004] HCA 15, 30 March 2004, and in particular the Court held that there was no inconsistency between the approaches.

1. In the opinion of this court, a structured approach of partly cumulative and partly concurrent sentences for the 24 offences that his Honour dealt with, had such an approach commended itself to his Honour, would not result in a lesser overall sentence than the four years his Honour considered appropriate to reflect the overall criminality of the appellant’s conduct.

Conclusion

1. No good ground has been shown as to why this court should set aside or interfere in the sentences imposed.

1. The appeal must be dismissed.

   I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

   Associate:

   Date: 23 March 2005

Matter dealt with in Chambers, 14 February 2005, by written submissions.
Counsel for the Appellant:  Self litigant
Counsel for the Respondent:  Ms H Locke
Solicitor for the Respondent:  ACT Director of Public Prosecutions
Date of hearing:  14 February 2005
Date of judgment:  23 March 2005