The Queen v Cherry

[2014] QSC 58

SUPREME COURT OF QUEENSLAND

CITATION:

The Queen v Cherry [2014] QSC 58

PARTIES:

THE QUEEN
V

RODNEY MICHAEL CHERRY

(Applicant)

FILE NO/S:

235/2002

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court Rockhampton

DELIVERED ON:

2 April 2014

DELIVERED AT:

Rockhampton

HEARING DATE:

27 March 2014

JUDGE:

McMeekin J

ORDER:

Leave to extend time to file the application 1.   

The application is dismissed. 2.   

CATCHWORDS:

CRIMINAL LAW – SENTENCE – SENTENCING PROCEDURE – SENTENCING ORDERS – CUSTODIAL ORDERS – LIFE SENTENCE – REDETERMINATION OR SETTING OF MINIMUM TERM OR NON-PAROLE PERIOD – where the applicant seeks to reopen sentence – where at the time of sentence pre-sentence custody existed that was unable to be declared due to outstanding charges – where outstanding charges were later dismissed – whether the time served in pre-sentence custody should now be declared as time served under the sentence.
Penalties and Sentences Act 1992 (Qld) s 188
Criminal Code Act 1899 (Qld) s 305

R v Ainsworth [2000] QCA 163 cited
R v Blake (1995) 2 Qd R 167 cited
R v Cannon [2005] QCA 41 distinguished
R v Cassar, ex parte Attorney-General [2002] 1 Qd R 386 applied
R v Daly [2004] QCA 385 distinguished
R v Fabre [2008] QCA 386 cited
R v Fox [1998] QCA 121 cited
R v Hart [2006] QCA 39 distinguished
R v Heginbotham [2009] 2 Qd R 345 distinguished
R v MacKenzie [2002] 1 Qd R 410 distinguished
R v Lace [2002] QCA 205 cited
R v Massey [2002] QCA 312 applied
R v Maxfield [2000] QCA 320 distinguished
R v Skedgwell [1999] 2 Qd R 97 cited
R v Smithers [2006] QSC 396 cited

COUNSEL:

K Hillard for the Applicant
J Phillips for the Respondent

SOLICITORS:

Fisher Dore Lawyers for the Applicant
Department of Public Prosecution for the Crown

1. McMeekin J: This is an application to reopen the sentence imposed on the applicant, Rodney Michael Cherry, by Dutney J on 8 November 2002.

1. The application is brought pursuant to s 188 of the Penalties and Sentences Act 1992 (“the Act”) which provides:

188 Court may reopen sentencing proceedings
(1) If a court has in, or in connection with, a criminal proceeding, including a proceeding on appeal—

(a) imposed a sentence that is not in accordance with the law; or
(b) failed to impose a sentence that the court legally should have imposed; or
(c) imposed a sentence decided on a clear factual error of substance; or
(d) failed to fix a date for the offender to be released on parole as required under part 9, division 3;

the court, whether or not differently constituted, may reopen the proceeding.
…
(5) The court may reopen the proceeding—

(a) on its own initiative at any time; or
(b) for a reopening under subsection (1)—on the application of a party to the proceeding made within—

(i) 28 days after the day the sentence was imposed; or
(ii) any further time the court may allow on application at any time; …

1. The applicant is over 10 years out of time. He seeks that the time be extended under s 188(5)(b)(ii) of the Act, pleading ignorance of the law. The prosecution did not oppose the application to extend time.

1. The point in issue is whether the Court can bring into account, in an application under s 188 of the Act, knowledge of facts that subsequently come to pass which, if known at the time of sentence, should have resulted in a different sentence being imposed.

Background

1. The applicant was convicted by a jury of 2 counts of murder and sentenced to life imprisonment with a mandatory minimum parole period of 20 years from the date of sentence.

1. To that time the applicant had been held on remand in presentence custody for a period of 537 days. This was not declared as time served under the sentence. It is common ground that it could not have been so declared then. The difficulty was that the period spent on remand was not solely in respect of the murder charges but related also to weapons and drug offences (“the other charges”) in respect of which the applicant had been arrested at the time he was arrested on the murder charges but which were not then before the court.

1. Subsequently the other charges were dismissed. This occurred as a result of the magistrate determining when the matters were next called on, and of his own motion, that as the applicant was serving two life sentences, and the prosecutor who appeared not having authority to discontinue, then it was in the interests of justice that he dismiss the charges. No doubt he reasoned that any sentence he might impose, assuming the charges proven, would have been irrelevant.

1. The applicant contends that each of ss 188(1)(a), (b) and (c) of the Act are available. The applicant contends that the time served in presentence custody must be declared now as time served under his existing sentence for the murders.

1. The prosecution opposes the application to reopen submitting that none of the grounds apply. I agree with the prosecution submission.

Not in Accordance with the Law

1. Section 305 of the Criminal Code provided, as at the date of sentencing of the applicant, as follows:

305 Punishment of murder
(1) Any person who commits the crime of murder is liable to imprisonment for life, which cannot be mitigated or varied under this Code or any other law or is liable to an indefinite sentence under part 10 of the Penalties and Sentences Act 1992.
(2) If the person is being sentenced—

(a) on more than 1 conviction of murder; or
(b) on 1 conviction of murder and another offence of murder is taken into account; or
(c) on a conviction of murder and the person has on a previous occasion been sentenced for another offence of murder;

the court sentencing the person must make an order that the person must not be released from imprisonment until the person has served a minimum of 20 or more specified years of imprisonment, unless released sooner under exceptional circumstances parole under the Corrective Services Act 2000.

1. Dutney J imposed the mandatory minimum sentence applicable to a person being sentenced on more than one conviction of murder. The sentence was the only lawful sentence which could be imposed.

1. As I have mentioned it is common ground that Dutney J could not declare the time served in pre sentence custody as time served under the sentence. That is so because under the legislation governing the sentence he was not permitted to do so. It was not an oversight. Section 161 of the Act, as it then was[1] and so far as it is relevant, was applicable and provided:

   [1]Now s 159A of the Act

161 Time held in presentence custody to be deducted
(1) If an offender is sentenced to a term of imprisonment for an offence, any time that the offender was held in custody in relation to proceedings for the offence and for no other reason must be taken to be imprisonment already served under the sentence, unless the sentencing court otherwise orders.

…
(4) If—

(a) an offender is charged with a series of offences committed on different occasions; and
(b) the offender has been in custody continuously since arrest on charges of the offences and for no other reason;

the time held in presentence custody must be taken, for the purposes of
subsection (1), to start when the offender was arrested even if the offender
is not convicted of the offence for which the offender was first arrested or any other offences in the series.

(emphasis added)

1. Had the applicant been held on remand solely on the murder charges then the time so served could have been declared: R v Blake.[2] But the qualification that the presentence custody be solely in relation to the “proceedings for the offence” in question precluded Dutney J bringing the pre-sentence period in custody into account. The weapons and drug offences were not before him. The matter was expressly mentioned on the sentence and the relevant authority governing the matter referred to: R v Massey.[3] The fate of the other charges then pending was unknown and irrelevant.

   [2][1995] 2 Qd R 167

   [3][2002] QCA 312

1. The situation here is by no means uncommon. In every case where there are charges outstanding at the time of sentence and not before the sentencing court and where the prisoner has been held on remand in relation to those charges the court does not know and cannot know the eventual result of the outstanding charges at the time of sentence. It has never been held, to my knowledge, that the sentencing judge commits an error of law or imposes an unlawful sentence in failing to make a declaration in relation to presentence custody should it later transpire that the outstanding charges are dismissed.

Failed To Impose a Sentence that the Court Legally Should Have Imposed

1. I do not detect any differing principle being applicable to the previous ground argued.

1. One argument advanced was that the sentence imposed on the applicant was unjust as it ignores time actually served and so it followed that it was a sentence that should not have been imposed and that there was thus a failure to impose a sentence that the court should have imposed. That argument conflates fairness with lawfulness.

1. It is no doubt true that had the weapons and drug charges been before the sentencing court and then dismissed, or indeed convictions recorded and sentences imposed, then the time served would have been required to be declared. The result in those circumstances would be that the applicant could have applied for parole about 18 months earlier than is now the case. In this sense the result is anomalous.

1. But this anomaly, if that is what it is, results from the plain wording of s 161(1) of the Act. That time served in respect of charges not before the court and so un-declarable under the legislation had a propensity to result in an injustice has long been recognised. Hence the approach developed in R v Skedgwell[4] and R v Ainsworth[5], and more recently R v Fabre.[6] In the usual case what the court does is moderate the sentence imposed by bringing into account that time served, sometimes by reducing the head sentence, sometimes by setting an earlier parole release date or eligibility date, sometimes by doing both. The important and relevant point is that it is in the exercise of a judicial discretion that these periods of imprisonment are brought into account. The extent to which this is done is a matter of discretion for the sentencing judge.

   [4][1999] 2 Qd R 97

   [5][2000] QCA 163

   [6][2008] QCA 386

1. But that approach does not apply on a conviction of murder and the imposition of a life sentence. That is so because there is no discretion to be exercised. That the sentencing court on a murder conviction cannot apply the approach in Skedgwell or Ainsworth has also long been recognised: R v Massey[7] where a period of 755 days in pre sentence custody could not be declared, following R v Fox.[8] See also R v Lace.[9]

   [7][2002] QCA 312

   [8][1998] QCA 121

   [9][2002] QCA 205

1. It is true, as the applicant contends, that time served under a sentence for a charge that is subsequently dismissed can be brought into account in reduction of a later sentence imposed: R v Hart.[10] But that occurs not by operation of law but by exercise of a discretion. The Court of Appeal was there considering the appropriate sentence for certain charges. The sentencing judge had brought into account, in reduction of sentence, time that the offender had served in prison for another offence in respect of which the conviction had been overturned and the charge dismissed. The Court of Appeal held that it was proper, in the exercise of the court’s discretion, to bring into account that personal circumstance in mitigation of sentence. So the similarity with the situation here is that in each case time was served, at least in a sense, for offences eventually dismissed. But there are two points of distinction. In Hart the fact brought into account was known and given effect to at the time of sentence. It was not something learned later. And, very significantly, in Hart a discretion existed to be exercised.

   [10][2006] QCA 39 [79]-[81]

1. Here there is no discretion. No personal circumstance is ever relevant to a judge sentencing for murder. Section 305 of the Code and its requirement that the sentence of life imprisonment “cannot be mitigated or varied under this Code or any other law” has that result. I put to one side the discretion to increase the non parole period, a discretion not exercised by Dutney J.

1. R v Smithers[11] was decided after s 161 was amended and became s 159A of the Act, but nothing turns on the changes introduced. The decision is of interest in that there Mackenzie J, after discussing a number of cases, pointed out that s 159A had an “element of capriciousness” in its operation.[12] So much is exemplified here.

Clear Factual Error of Substance

[11][2006] QSC 396

[12]Ibid at [6]

1. The principal ground argued was that the sentence imposed proceeded on a factual error.

1. The applicant argues that the subsequent dismissal of the other charges brought about a material change in the relevant facts, a change that while it was one possible result, could not have been assumed at the time of the sentence. It is submitted that the dismissal of the other charges meant that the applicant had been “held in custody in relation to proceedings for the offence [ie the murder charges] and for no other reason”. The sentence imposed therefore was “decided on a clear factual error of substance”. 

1. In my view there are a number of flaws in the applicant’s argument.

1. First, it seems to take as its starting point that the Court assumes at the time of sentence that the other charges not before it will eventually result in convictions. That is not so. The inability to predict the outcome is behind the approach developed in Skedgwell[13], Ainsworth[14]and Fabre.[15]

   [13][1999] 2 Qd R 97

   [14][2000] QCA 163

   [15][2008] QCA 386

1. Secondly, the fact that the other charges were subsequently dismissed does not mean that the applicant had been “held in custody in relation to proceedings for the [murder] offence[s] and for no other reason” when held on remand. One reason that he was held in custody was that he then faced those other pending charges, whenever they might be brought on and whatever the result. The reason for holding the applicant did not change because of the subsequent dismissal.

1. I am inclined to think, contrary to the applicant’s submissions, that even had the dismissal of the charges occurred, say, on the day before Cherry was sentenced for the murders Dutney J would still not have been able to declare the time served. The reason for holding him until then would not have changed. But it is not necessary to decide this.

1. Thirdly, it is obvious that the criteria laid down by s 188 concerns “the position obtaining at the time of sentence”: R v Cassar, ex parte Attorney-General.[16] The court there held that the section “must be applied strictly on that basis.” What the applicant seeks to do here is to bring into account matters that did not obtain at the time of sentence. Reviewing sentences “in the light of subsequent events” was expressly disapproved by the Court.[17]

   [16][2002] 1 Qd R 386 at 389

   [17]Ibid at p 390

1. In a careful submission Ms Hillard, counsel for the applicant, attempted to demonstrate that subsequent decisions had lessened the strictness of that approach. To a degree that is so, but the occasions have been carefully confined and do not extend to the situation here.

1. It is plain that the Court will permit a reopening where facts, existing at the time of sentence and that should have been known by the sentencing judge at the time of sentence, but were not, later come to light: eg R v Heginbotham[18] where the sentencing judge simply had not been informed of a period of existing pre sentence custody. That is a clear example of sentencing on a mistaken basis of fact. There the relevant facts did obtain at the time of sentence but were simply unrecognised. But that is very different to the situation here.

   [18][2009] 2 Qd R 345

1. Properly understood R v Maxfield[19], R v MacKenzie[20] and R v Daly[21] fall into that category. Each was concerned with mistaken assumptions concerning the effect likely to be given to recommendations for parole. But each case concerned mistaken assumptions viewed as at the time of sentencing. The mistake made and which justified the re-opening was not an assumption that the recommendation would be given effect to, but that it could be given effect to. The decisions do not assist the applicant.

   [19][2002] 1 Qd R 417

   [20][2002] 1 Qd R 410

   [21][2004] QCA 385

1. R v Cannon[22] on its face seems to offer some assistance to the applicant but it does not. There the subsequent overturning on appeal of an unrelated charge, the propriety of the conviction having being assumed by the sentencing judge for the purpose of the sentence under consideration, was held to justify a re-opening. So in that sense facts that did not obtain at the time of the hearing were brought into account.

   [22][2005] QCA 41

1. Cannon was not a reopening case but was an application for leave to appeal sentence before the Court of Appeal. It was held that in the circumstances that had occurred the sentence could have been reopened under s 188 and, by inference at least, that the re-opening court could have adopted the same approach as was adopted by the Court of Appeal.

1. There were two points in Cannon. First, the sentencing judge had not brought into account time served in pre sentence custody that could not be declared - for the same reason that Dutney J could not declare time served here: the existence of unrelated charges when held on remand, charges not before the court at the time of sentence. Secondly, the sentencing judge had imposed a sentence cumulative to one already in place for an unrelated charge. That latter sentence was revoked upon a successful appeal against conviction and the ordering of a new trial. So the very basis for the commencement date of the sentence had changed.

1. It was the second point, not the first, that justified classifying the case as one fit for reopening. So Cannon stands for the proposition that a fact not obtaining at the time of sentence can justify a re-opening under s 188 where it goes to the very heart of the sentence – in that case the commencement date of it. The after learned fact here does not have that quality. But it is instructive, nonetheless, to examine what the Court in fact did there.

1. The court determined to bring into account 404 days spent in prison. There were four relevant periods for the Court to consider: Time spent on remand of 304 days before release on bail; time spent in prison for the unrelated charge, one involving a home invasion, between 26 February and 5 August 2004 (when convicted of the charge under appeal and sentenced to a term of imprisonment cumulative to the “home invasion” sentence); 5 August to 19 November 2004 (when the “home invasion” conviction was overturned); and time spent in prison from 19 November to the resentencing by the Court of Appeal – 100 days time served solely for the crime in question. In determining the appropriate sentence the Court brought into account the first and fourth periods but not the second or third. At that time the fate of the home invasion charge was still unknown. But it was possible that the prisoner might still be acquitted of that charge. Despite that, the time served for that unrelated charge was not brought into account. There was no suggestion made that the court would need to reconsider the sentence once the outcome of the outstanding charge was known. As to the first period the Court held the sentencing judge was required to allow for the time spent on remand, to the extent thought just, to arrive at the appropriate sentence, applying the standard approach exemplified in cases such as R v Skedgwell[23] and R v Ainsworth.[24]

   [23][1999] 2 Qd R 97

   [24][2000] QCA 163

1. The significant point for present purposes is that the Court of Appeal was not concerned with the fate of either the retrial or the charges pending while Cannon was held on remand. It seems unremarkable for the Court to have been concerned with the actual time that the prisoner had spent in custody, solely in relation to the charge under consideration, in fixing the sentence. Importantly no legislation prevented the Court from bringing those facts into account. The Court had a discretion to exercise and did so.

1. But here there is no discretion to exercise. Legislation mandates the sentence.

1. There is no error of fact shown.

Conclusion

1. In my opinion there is no merit in the application. Leave to extend time is given but the application should be dismissed.