Wainwright v Reibelt

[1993] QCA 304

IN THE COURT OF APPEAL [1993] QCA 304

SUPREME COURT OF QUEENSLAND	C.A. No. 128 of 1993
Brisbane
Before The Chief Justice Mr Justice Davies Mr Justice Lee
[Wainwright v. Reibelt]

IAN WAINWRIGHT

v.

ANTHONY HOWARD REIBELT

(Applicant)

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 19/08/1993

The abovenamed Anthony Howard Reibelt seeks leave to appeal against a sentence imposed upon him in the Magistrates Court on 1 April 1993. On that day he pleaded guilty to two offences: one of unlawful possession of a motor vehicle, the other of false pretences. For the first he was sentenced to two years' imprisonment with a recommendation that he be eligible for parole after serving nine months. For the second, he was sentenced to three months' imprisonment. These sentences were to be served concurrently with each other, and concurrently with sentences which he was already serving. He had been convicted on 22 January 1993 on two counts of possession of a motor vehicle with intent to deprive the owner thereof with circumstances of aggravation, and was sentenced on each count to a term of imprisonment of 18 months, with a recommendation that he be eligible for parole after serving six months, the sentences to be served concurrently. He had thus served only a little over two months of those sentences when he was sentenced in the present case.

The offences in the present case were committed between 9 February 1992 and 5 July 1992. Those for which the applicant was sentenced on 22 January 1993 were committed between 26 February 1992 and 18 May 1992. Although there is no evidence that the offences for which he was earlier sentenced and those the subject of the present application were part of the same course of conduct, they were committed during approximately the same period. It is, we think, appropriate to consider the matter as if the applicant had been sentenced in respect of all of the offences on 22 January 1993 notwithstanding the fact that, as the stipendiary magistrate apparently said, the applicant should have "owned up" to the offences the subject of this application at the time he was being sentenced on 22 January.

Ms. Wenck, who appeared for the applicant, submitted that the sentence was manifestly excessive for three reasons. First, she submitted that the learned stipendiary magistrate did not take into account the applicant's plea of guilty. Second, she submitted that, if the offences the subject of the present application had been dealt with on 22 January 1993, the applicant would not have been sentenced, in total, to more than 18 months' imprisonment. And third, she submitted that the effect of paragraphs 157(3)(b) and (6)(a) of the Penalties and Sentences Act 1992 is that, notwithstanding that the term of imprisonment imposed by the learned stipendiary magistrate is concurrent with that imposed on 22 January, the non-parole period imposed by him is cumulative upon the earlier non-parole period, resulting in an excessive period before which the applicant will be eligible for parole.

Section 13 of the Act required the magistrate to take the applicant's guilty plea into account in imposing the sentence which he did; to state in open court that he took it into account; and, if he did not reduce the sentence because of it, to state that fact and the reasons for not so reducing the sentence. The section also provides that a sentence is not invalid merely because of the failure of the court which does not reduce a sentence for a guilty plea to state that fact and the reasons for not reducing it; but says nothing of the consequence of failure to state in open court that the guilty plea was taken into account in determining the sentence. However, in our view, nothing in this case turns on the construction of s. 13. It is not clear from the material before us whether or not the magistrate took into account the guilty plea and if so whether he consequently reduced the sentence. We therefore cannot accept the first argument advanced. But, because it is not clear, we must consider whether, making an appropriate allowance for the plea of guilty, the sentence is excessive.

Nor can we accept the argument that, if the offences the subject of this application had been dealt with on 22 January 1993, the applicant would not have received a higher sentence than he did receive on that day. It cannot be said that the learned magistrate would have imposed less than the sentence which he did if the applicant had been guilty of only one of the two offences for which he was sentenced on that day. And it cannot be said that, had there been a third, the sentence would not have been higher. Indeed, during the course of argument Ms. Wenck properly conceded that, but for her third argument, to which we now turn, she could not have argued that the effective sentence imposed in this case was manifestly excessive, bearing in mind that it was imposed only a little over two months after the earlier sentence.

At the time the learned magistrate passed sentence in this case, s. 157 of the Act provided, relevantly, as follows:-

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

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

...
(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;

..."

Paragraph (3)(b) has recently been amended by the Penalties and Sentences Legislation Amendment Act 1993 (which came into force on 23 July 1993), but the amendment has no bearing on the present case.

Ms. Wenck submitted that the effect of these two provisions is that where, as in this case, the court is of lesser jurisdiction than the earlier sentencing court, it can recommend a non-parole period only in relation to the term of imprisonment which it imposes; but that that non-parole period is cumulative upon any non-parole period under the earlier sentence. She submitted that in this case, although the magistrate recommended that the applicant be eligible for parole after serving nine months, the effect of the above sections upon this recommendation is that he will not in fact be eligible for parole until 22 April 1994, more than 12 months after the imposition of the sentence. This is because the non-parole period under the earlier sentence (six months from 22 January 1993) did not end until 22 July 1993 and the non-parole period imposed by the magistrate in this case must commence from that date.

These submissions are, in our view, correct. When a court of lesser jurisdiction is imposing a term of imprisonment on an offender who is already serving imprisonment, it must bear in mind, when making a recommendation for a non-parole period, as it must always do, that that non-parole period will be cumulative upon any existing non-parole period.

In our opinion, the length of the non-parole period imposed in this case indicates that the learned magistrate failed to consider the effect of paras. 157(3)(b) and (6)(a) in passing sentence. Consequently, the learned magistrate's sentencing discretion miscarried. We are therefore at liberty to impose a different sentence. Although we would not otherwise have interfered with the sentence of two years, because we consider it necessary to alter the sentence in respect of the non-parole period imposed, we think that, in order to provide for an overall appropriate total sentence, we should substitute for the sentence of two years' imprisonment a sentence of one year and ten months. This is equivalent to a sentence of two years' imprisonment imposed on 22 January 1993.

As to the non-parole period, we think that the learned magistrate should have recommended that the applicant be eligible for parole after a period of three months, which would have resulted in the total non-parole period expiring on 22 October 1993. However, as this Court is now imposing the term of imprisonment on the applicant, we propose to make a fresh recommendation relating to the total period which the applicant must serve; that is a non-parole period expiring on 22 October 1993.

We therefore grant the application and allow the appeal to the extent of setting aside the sentence of two years' imprisonment with a recommendation that the applicant be eligible for parole after nine months imposed below on charge one. We substitute therefor a sentence of eighteen months' imprisonment, to be served concurrently with both the sentence of three months' imprisonment imposed on 1 April 1993 and the sentences imposed on 22 January 1993. We recommend that the applicant be eligible for release on parole on 22 October 1993. The order that the applicant be disqualified from holding or obtaining a driver's licence for a period of two years from 1 April 1993 is to remain.