Wiggins v Commissioner of Queensland Police
[2013] QDC 286
•25 November 2013
DISTRICT COURT OF QUEENSLAND
CITATION:
Wiggins v Commissioner of Queensland Police [2013] QDC 286
PARTIES:
CANDICE PAULA-ANN WIGGINS
(Appellant)
and
COMMISSIONER OF QUEENSLAND POLICE
(Respondent)
FILE NO/S:
2052/2013
DIVISION:
Appellate jurisdiction
PROCEEDING:
Appeal against sentence
ORIGINATING COURT:
Magistrates Court at Bundaberg
DELIVERED ON:
25 November 2013
DELIVERED AT:
Brisbane
HEARING DATE:
18 November 2013
JUDGE:
R S Jones DCJ
ORDER:
1. The appeal is allowed;
2. That part of the sentence setting a parole eligibility date is set aside and in lieu thereof parole release is fixed at 12 December 2013;
3. Otherwise the sentence appealed against is unchanged.
CATCHWORDS:
CRIMMINAL LAW – APPEAL AGAINST SENTENCE – SENTENCE MANIFESTLY EXCESSIVE – Where appellant had extensive criminal history including a number of court ordered parole orders – Where offender sentenced on two different occasions in respect of offending that occurred on one day – Whether the court below had to fix the date the offender was eligible for parole – Whether the court below had to fix the date the offender was to be released on parole.
Corrective Services Act 2000
Penalties and Sentences Act 1992
Soanes v Commissioner of Queensland Police [2013] QDC 26
Coolwell v Commissioner of Queensland Police [2010] QDC 487
COUNSEL:
Mr AQ Stark Office of the Director of Public Prosecutions for the respondent
Mr SA Lynch for the appellant
SOLICITORS:
Office of the Director of Public Prosecutions for the respondent
Legal Aid Queensland for the Appellant
This is an appeal pursuant to s 222 of the Justice Act 1886. Pursuant to s 222(2)(c), in circumstances where a defendant pleads guilty or admits the truth of a complaint then she may only appeal on the sole ground that, relevantly here, the penalty or punishment was excessive.
The appeal was argued before me on the last day of the Bundaberg circuit sittings of this court. Notwithstanding the Crown conceding the appeal and consenting to the orders sought by the appellant, I was not sufficiently satisfied at the conclusion of argument to grant the relief sought and therefore reserved my decision. There is however a sense of urgency involved in that the appellant’s parole release date (or eligibility date) is 12 December 2013. In circumstances where the crown has conceded the appeal I did not consider it necessary to give extensive reasons. For the reasons given below the orders of the court are:
1. The appeal is allowed;
2. That part of the sentence setting a parole eligibility date is set aside and in lieu thereof parole release is fixed at 12 December 2013;
3. Otherwise the sentence appealed against is unchanged.
Chronology
The appellant has had an extremely unfortunate life to date including an extensive criminal history. However, only the following events are relevant to this appeal.
17 September 2012 – The appellant was dealt with in the Magistrates Court at Bundaberg for a number of offences and was sentenced to three periods of nine months imprisonment to be served concurrently. A parole release date was fixed at 30 November 2012.
2 December 2012 – Only three days after release on parole, the appellant committed a number of offences at various locations.
29 January 2013 – In the Magistrates Court at Maroochydore the appellant was sentenced in respect of one count of unlawful use of a vehicle for committing an indictable offence. That was one of the offences committed by the appellant on 2 December 2012. She was sentenced to one month imprisonment for that offence to be served concurrently with those sentences already imposed. Because that offence was committed during the operation of a court ordered parole order which was cancelled upon sentence,[1] a parole eligibility date was fixed at 16 June 2013. That date coincided with the full term of imprisonment imposed by the Magistrates Court at Bundaberg on 17 September 2012.
[1]Section 160B(2) of the Penalties and Sentences Act 1992 and s 209 of the Corrective Services Act 2000.
16 June 2013 – Appellant released from custody.
19 June 2013 – Pursuant to an arrest warrant issued on 17 January 2013 the appellant was apprehended and placed on remand. This warrant was concerned with the balance of the offences committed by the appellant on 2 December 2012.
21 June 2013 – Appellant was released on bail.
13 September 2013 – Appellant pleaded guilty to the balance of the offences committed on 2 December 2012 and, relevant to this appeal, was sentenced to nine months imprisonment and a parole eligibility date was fixed at 12 December 2013.
It was not in dispute that the offences dealt with by the Magistrates Court at Bundaberg on 13 September 2013 were scheduled offences. His Honour considered that he was required to fix a parole eligibility date “because the offences were committed whilst you were on parole…”[2]
[2]Sentencing remarks at T2, L35.
It was asserted on behalf of the appellant that his Honour erred in law in fixing a parole eligibility date stating:
“Where a defendant commits an offence while on parole, and gets sentenced after the full time discharge date for the breaching offence, the court must order a parole release date.”[3]
The head sentence imposed is not subject to attack and it is only the order concerning parole that is the subject of this appeal.
[3]Appellant’s written submissions para 6.
The legislation
Section 160B of the Penalties and Sentences Act 1992 (PSA) relevantly provides:
“(1)This section applies if neither section 160C nor 160D applies;
(2)If the offender has had a court ordered parole order cancelled under the Corrective Services Act 2006, section 205 or 209 during the offender’s period of imprisonment, the court must fix the date the offender is eligible for parole;
(3)If subsection (2) does not apply, the court must fix a date for the offender to be released on parole…” (emphasis added)
Neither s 205 or 209 of the Corrective Services Act 2006 (CSA) are applicable.
The term “period of imprisonment” is defined variously within the legislation.[4]
[4]See s 4 and the dictionary in the schedule to the CSA and the definition in s 4 of the PSA and s 160 of the PSA.
Prima facie, s 160B(2) would appear to cover the subject situation speaking as it does in the past tense. That is, when being dealt with in the Bundaberg Magistrates Court on 13 September 2013, the appellant was an offender who has had a court ordered parole order (that order being made on 17 September 2012) cancelled upon the sentence imposed on 29 January 2013.
However, s 160A of the PSA relevantly provides:
“(1)Sections 160B to 160D apply if a court is imposing a term of imprisonment on an offender for an offence;
(2)Sections 160B to 160D are the only law under which a court may, on sentence of an offender for an offence, make an order relating to a persons release on parole…”
The wording of s 160A, in my opinion, is concerned with the operation of s 160B to 160D at the time the offender is being sentenced for the relevant offending. As at 13 September 2013 the appellant had served the full term of her period of imprisonment imposed in respect of both the offending dealt with on 17 September 2012 and that dealt with on 29 January 2013. Accordingly, when dealt with on 13 September 2013 there was nothing to be cancelled. In particular, there was no court ordered parole order on foot, which could be cancelled pursuant to s 205 or 209 of the CSA.
That being the case the learned Magistrate erred at law in imposing a parole eligibility date and not fixing a parole release date. Accordingly, the appeal must be allowed and the appellant re-sentenced.
It might well have been the intended policy that an offender who had been given the benefit of parole, but then committed further offences while on parole was thereafter required to be considered eligible for parole by the appropriate authority. However, while that end could be readily achieved by relatively simple drafting (if that was the intended policy) as presently drafted, the legislation did not permit, in my opinion, the imposition of a parole eligibility order in the circumstances of this case.[5]
[5]However, it would seem that the Department of Corrective Services seems to take the view that if an offender has no outstanding or unexpired period of imprisonment at the time of sentencing, despite an offence being committed while on court ordered parole, a fixed parole date should be ordered. See Coolwell v Commissioner of Queensland Police [2010] QDC 487 and R v Bond [2009] QDC 28.
Finally, I should say that it is understandable that the court below made the orders that it did. Such an order would, on the face of it, be more consistent with the likely intended policy and arguably make more sense of the operation and effect of s 209 of the PSA, which relevantly provides:
“(1)A prisoner’s parole order is automatically cancelled in the prisoner is sentenced to another period of imprisonment for an offence committed, in Queensland or elsewhere, during the period of the order.
(2)Subsection (1) applies even if the period of the parole order has expired”. (Emphasis added)
However, this being a penalty provision I consider any ambiguity ought be resolved in favour of the appellant.
For the reasons given, the orders of the court are:
1. The appeal is allowed;
2. That part of the sentence setting a parole eligibility date is set aside and in lieu thereof parole release is fixed at 12 December 2013;
3. Otherwise the sentence appealed against is unchanged.
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