Sweet v Armstrong

[1995] QCA 406

IN THE COURT OF APPEAL	[1995] QCA 406
SUPREME COURT OF QUEENSLAND

C.A. No. 151 of 1995.

Brisbane

Before Pincus	J.A.
Demack J. Shepherdson J.

[Sweet v. Armstrong]

G A SWEET

v.

MARY MICHELLE ARMSTRONG

(Applicant)

Pincus JA Demack J Shepherdson J

Judgment delivered 01/09/1995

Separate reasons for judgment of each member of the Court; Pincus J.A. dissenting in part.

GRANT THE APPLICATION FOR LEAVE TO APPEAL AGAINST THE SENTENCES IMPOSED ON 15 MARCH 1995. SET ASIDE THE SENTENCES OF 12 MONTHS IMPRISONMENT IN RESPECT OF THE SERIOUS ASSAULT CHARGES AND SUBSTITUTE SENTENCES OF SIX MONTHS' IMPRISONMENT, TO BE SERVED CONCURRENTLY WITH EACH OTHER BUT CUMULATIVELY UPON THE SENTENCE IMPOSED IN THE DISTRICT COURT ON 9 DECEMBER 1994 AND CUMULATIVELY UPON THE SENTENCE IMPOSED ON 15 MARCH 1995 IN RESPECT OF THE BREACH OF THE BAIL ACT.

GRANT THE APPLICATION FOR EXTENSION OF TIME WITHIN WHICH TO APPLY FOR LEAVE TO APPEAL AGAINST THE SENTENCE IMPOSED IN THE DISTRICT COURT ON 31 MARCH 1995. GRANT LEAVE TO APPEAL AGAINST THE SENTENCE. SET ASIDE THE NON-PAROLE PERIOD AND ORDER THAT THE APPLICANT BE ELIGIBLE FOR CONSIDERATION FOR PAROLE ON AND FROM 24 JULY 1997.

CATCHWORDS:	CRIMINAL LAW - sentence - serious assault on police officer - spitting in face while in custody - previous convictions - fixing non-parole period. Penalties and Sentences Act, s.157(3)(a) and (b) Bail Act ss 33(4)(a)(ii) & 33(4)(c)
Counsel:	Mr R East, for the applicant. Mr B Campbell, for the respondent.
Solicitors:	Legal Aid Office for the applicant. Director of Prosecutions for the respondent.
Hearing date:	7 June 1995
REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 01/09/1995

I have read the reasons for judgment of Demack J. and agree with his Honour’s view with respect to the sentences imposed for the spitting offences - i.e. the offences under s. 340(2) of the Criminal Code. In my opinion the sentences imposed were manifestly excessive and should as Demack J. says be reduced from 12 months to 6 months.

Leaving aside concurrent sentences of brief duration imposed on 15 March 1995, the sentences imposed on the applicant, all cumulatively, were as follows: 3 months on 2 December 1994, 2 years on 9 December 1994, 12 months on 15 March 1995, 3 months on the same date and 3 years on 31 March 1995. Had there been no parole recommendation with respect to the last sentence, then the position would have been governed by s. 166(1)(b) of the Corrective Services Act 1988 - i.e. the applicant would have not been eligible for release on parole until she had served "at least half of the term of imprisonment to which the prisoner was sentenced". That provision does not itself make clear what its effect is in respect of a series of cumulative sentences, but the definition of "term of imprisonment" in s. 10 of the same Act enables one to ascertain the legislative intention. The definition defines "term of imprisonment" to mean, so far as relevant:

" The unbroken period of imprisonment a person is liable to serve by virtue of a number of sentences, whether ordered to be served concurrently or cumulatively and whether imposed at the same time or at different times . . . "

Applying the definition, the "term of imprisonment" for the purposes of s. 166(1)(b) is the unbroken period arrived at by adding together 3 months plus 2 years plus 1 year plus 3 months plus 3 years - 6½ years.

Therefore, under s. 166(1)(b), if there were no recommendation made on 31 March 1955, the applicant would have been liable to serve 3 years and 3 months from 2 December 1994 before becoming eligible for release on parole - i.e. the parole date would have been 2 March 1998. The recommendation for release on parole on 30 December 1997 which was in fact made on 31 March 1995 was thus a little over 2 months earlier than the non-parole date would have been under the statute. The shortening of the spitting sentences from 12 months to 6 months reduces the total cumulative sentence to 6 years and takes the statutory non-parole date back to 2 December 1997. This is, as it happens, close to the parole date recommended by the judge who sentenced on 31 March 1995; his Honour recommended parole 28 days after the statutory parole date which is arrived at on the basis of the reduced spitting sentences.

In the circumstances, it is my view that the statutory parole date of 2 December 1997 should be moved by 6 months, to become 2 June 1997; I would recommend that the applicant be eligible for release on parole on that date, instead of the date 24 July 1997 mentioned in the reasons of Demack J.

With that qualification, I am in agreement with the order as proposed by Demack J., substantially for the reasons his Honour gives, apart from those relating to the statutory parole date.

REASONS FOR JUDGMENT OF DEMACK J

Judgment delivered 01/09/1995

This is an application for leave to appeal against some of the sentences a Stipendiary Magistrate imposed on 15 March 1995.

In the early hours of 20 July 1994, police officers arrested the applicant in Roma Street, Brisbane. She was said to have been charged with an offence under s.7(c) of the Vagrants Gaming and Other Offences Act and an offence under s.10.20(A)(2) of the Police Service Administration Act. In the course of the arrest, she spat in the face of one police officer. At the watchhouse, on separate occasions, she spat in the faces of two police officers. She was said to have been charged with three offences under s.340(2) of The Criminal Code. Having been granted bail, she failed to appear.

She pleaded guilty to all these charges and to a breach of the Bail Act on 15 March 1995. She was born on 28 October 1970, according to the material placed before this Court. She had an extensive criminal history. There were previous breaches of the Bail Act on 12 September 1992 and on 2 December 1994. The first was punished with a sentence of two months' imprisonment and the second with a sentence of three months' imprisonment. She had also been sentenced to four months' imprisonment on 27 January 1994 for four serious assaults upon police officers. Only one of the remaining fifty-seven charges that had brought her before the courts since 19 November 1991 needs to be referred to. On 9 December 1994, she had been sentenced in the District Court at Brisbane to two years' imprisonment on a charge of assault occasioning bodily harm whilst in company. The sentence was ordered to be cumulative upon the sentence imposed on 2 December 1994 for a breach of the Bail Act. It was recommended she be considered for parole after serving nine months from 9 December 1994.

On 15 March 1995, the Stipendiary Magistrate imposed a sentence of three months in respect of the breach of the Bail Act. He imposed sentences of fourteen days' imprisonment in respect of a disorderly manner charge and an obstructing police charge. It should be noted that behaving in a disorderly manner is made an offence by s.7(1)(e) of the Vagrants, Gaming and Other Offences Act, not S.7 (c). Nothing appears to turn on this. In respect of the three charges of assaulting a member of the Police Service while acting in the execution of his duty, he imposed sentences of twelve months' imprisonment, cumulative on the sentence imposed on 9 December 1994 but concurrent with the other sentences he imposed with the exception of the sentence for the breach of the Bail Act. Section 340 (b) of the Criminal Code defines assaulting a police officer while acting in the execution of the officer's duty as a serious assault. It appears that Reprint No.1 of the Criminal Code (as at 26 March, 1994) has made the change from s.340(2) to s.340(b) in the interests of drafting style, while Carter's Criminal Code still refers to s.340(2). There has been no change in the wording except in the interests of inclusive language. Checking to ensure that people are correctly charged has become very time consuming.

The application for leave to appeal against sentence is in respect of the sentences imposed for the serious assaults.

When the appeal hearing began, Mr East, who appeared for Miss Armstrong, told the Court that on 31 March 1995, she had pleaded guilty in the District Court in Brisbane to a charge of arson. The District Court Judge who sentenced her on that occasion had apparently been told she was twenty-one years old. She was ordered to serve three years' imprisonment. The sentence was made cumulative and it was recommended that she be considered for release on parole on 30 December 1997.

Dealing first with the substance of the application, the decisions of this Court to which we were referred demonstrate that the sentences were manifestly excessive. In The Queen v. Hope C.A. No. 228 of 1993, the applicant had been sentenced in respect of a number of assaults which he committed on custodial correctional officers whilst he was a prisoner at Lotus Glen Correctional Centre. These included offences which involved spitting in the face of officers and, on one occasion, actually spitting in the mouth of the officer. For these assaults, sentences of three months' imprisonment, cumulative upon the sentence being served, were imposed. The Court observed:

"All of the present offences involved, in our view, serious breaches of discipline. The first was not only degrading but involved the risk of endangering the health of the officer assaulted. It plainly justified a term of imprisonment. The second was even worse, involving as it did an even greater risk to health, and plainly justified a sentence cumulative upon the sentence he was serving."

Similarly, in Gabriel v. Campbell C.A. 130 of 1990 a sentence of three months' imprisonment for a charge of assault, which involved spitting in the face of a detective after the applicant had been sentenced on some drug-related charges, was not interfered with. On the other hand, in The Queen v. Miekle C.A. 134 of 1992, a sentence of four months' imprisonment on two charges involving spitting in the face of police officers in the watchhouse was reduced to 200 hours' community service.

The observations made in Hope clearly apply. Nevertheless, the sentences are so far out of line with the ones to which we were referred that they are manifestly excessive.

In view of the previous convictions for the same offence, an appropriate sentence would be six months' imprisonment on each charge. The sentences should be served concurrently with each other, but cumulative upon the sentence imposed in the District Court on 9 December 1994.

The issue most discussed on appeal concerned the appropriate procedure to follow in respect of the non-parole period.

Section 157 of the Penalties and Sentences Act provides:
" Eligibility for parole

157.     (1) In this section -

'non-parole period' means the part of a term of imprisonment or period of imprisonment that an offender must serve before the offender is eligible to apply for parole.

(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; or

(b)       if it is a court of lesser jurisdiction to the court that last sentenced the offender to a term of imprisonment, recommend a non-parole period in relation to the fresh term of imprisonment imposed by the court.

(4) In making a new recommendation under sub-section (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.

(6) If a recommendation is made under subsection (3)(b) and the existing non-parole period -

(a)       has not ended - the non-parole period in relation to the total period of imprisonment is the total of all non-parole periods that are in force; or

(b)       has ended - the non-parole period in relation to the fresh term of imprisonment -

(i)	starts on the day the recommendation is made; and
(ii)	must not be longer than the fresh term of imprisonment imposed on the offender. "

Section 157(3)(a) required each of the District Court Judges, who sentenced the applicant on 9 December, 1994 and 31 March, 1995, to make a fresh recommendation for parole. Each of them exercised this power. The Stipendiary Magistrate who sentenced the applicant on 15 March, 1995 was required by s.157(3)(b) to recommend a non-parole period in relation to the fresh term of imprisonment that he imposed. He recommended parole after serving the statutory eligibility period. This refers to s.166 (1)(b) of the Corrective Services Act which provides for eligibility for parole after the prisoner has served at least half the term of imprisonment. This recommendation appears to apply to all the sentences imposed on 15 March, 1995, including the one imposed for the breach of the Bail Act. By virtue of the effect of s.33(4)(a)(ii) and s.33 (4)(c) of the Bail Act, that sentence was cumulative upon both the sentence imposed on 9 December, 1994 and the further sentences imposed on 15 March, 1995.

If the sentence in respect of the serious assaults is reduced, what is to happen to the recommendation made in the District Court on 31 March 1995, that she be eligible for parole on 30 December 1997? Mr East sought to file an application for an extension of time within which to appeal from that order. Mr Campbell submitted that it was a matter of going back before the District Court on an application under s.188 of the Penalties and Sentences Act. That section permits the District Court to reopen a criminal proceeding if a sentence has not been imposed according to law. Mr Campbell submitted that the applicant was not sentenced according to law on 31 March, if this court altered the sentence imposed on 15 March, because she was sentenced on an incorrect factual basis.

No authorities on the application of s.188 were referred to. It is not at all clear that it applies in the way Mr Campbell suggests. It would be unusual to treat the factual basis upon which a sentence has been imposed as involving a question of law, unless irrelevant facts were considered or relevant facts ignored. The course Mr East proposes would bring the sentence imposed on 31 March 1995 before this Court. Mr Campbell did not oppose the extending of time. If time is extended, the matter can be finalised in this Court and the applicant will know what her non-parole period is.

The situation with the various sentences imposed since 1 December 1994 is best expressed in tabular form:

Date Offence Sentences Expiry of Non-parole

(cumulative) sentence date

2.12.94	Breach of bail	3 months	1.3.95	17.1.95
9.12.94	Bodily harm in company	2 years	1.3.97	9.9.95
15.3.95	Breach of bail	3 months	1.6.97	24.10.95
Serious assaults	12 months	1.6.98	24.4.96

sentence then imposed expire on 9 September 1995. If the same information was placed before the District Court Judge on 31 March, 1995, it might have shown a non- parole period expiring on 30 June 1996. This would mean that he intended the non- parole period to be half of the sentence he imposed.

It is not known if there are further charges still outstanding, but it is important to make the situation as clear as it can be. If the sentences for serious assault are reduced to six months, the appropriate non- parole date would be 24 July 1997.

The orders should be -
Grant the application for leave to appeal against the sentences imposed on 15

March 1995. Set aside the sentences of 12 months' imprisonment in respect of the serious assault charges and substitute sentences of six months' imprisonment, these sentences to be served concurrently with each other but cumulatively upon the sentence imposed in the District Court on 9 December 1994 and cumulatively upon the sentence imposed on 15 March 1995 in respect of the breach of the Bail Act.

Grant the application for extension of time within which to apply for leave to appeal against the sentence imposed in the District Court Brisbane on 31 March 1995. Grant leave to appeal against the sentence. Set aside the non-parole period and order that the applicant be eligible for consideration for parole on and from 24 July 1997.

REASONS FOR JUDGMENT - SHEPHERDSON J.

Delivered 1st September 1995

I have read the reasons for judgment of the Honourable Justice Demack. I agree with the orders which he proposes and his reasons.

31.3.95 Arson 3 years 1.6.2001 30.12.97

It appears from this table that the District Court Judge who sentenced the applicant on 31 March 1995 required her to serve more than half the sentence he imposed, before she became eligible for parole. His sentencing remarks do not indicate why this was so. Material was placed before this Court which suggested that officers at the Brisbane Women's Correctional Centre were apparently unaware of the recommendation made on 9 December 1994 that the non-parole period in respect of