Massey v The Queen

Appellant's history 7 It is necessary to say something of the appellant's history. He was born on 13 February 1976 and was 23 at the time of the armed robbery at Fyshwick now under consideration. According to a pre-sentence report he had a very troubled childhood, which his Honour described as "awful", and he had become institutionalised from life in places of custody from the age of 14 years. He now has a wife and child aged two years. He was dependent on illicit drugs at the time of the robbery at Fyshwick. 8 The appellant's relevant previous convictions as an adult may be summarised as follows: · 25 November 1994 - ACT Supreme Court - armed robbery. Five years imprisonment to date from 22 February 1994 to be suspended after 13 months on a three year recognizance; · 25 January 1995 - Goulburn Local Court - assault occasioning actual bodily harm. Three months imprisonment to date from 15 November 1994; · 14 December 1995 - ACT Supreme Court - breach of recognizance of 25 November 1994. Re-sentenced by Supreme Court for armed robbery - three years and eleven months imprisonment to date from 11 September 1995. Non-parole period of one year and eleven months; · 14 December 1995 - ACT Supreme Court - escape from lawful custody. No penalty; · 23 September 1996 - ACT Magistrates Court - assault and resist police. Sentenced to rising of Court; · 22 November 1996 - ACT Magistrates Court - assault occasioning actual bodily harm. Three months imprisonment cumulative on present sentence, non-parole period of one year and eleven months to date from 7 September 1995; · 31 January 1997 - ACT Magistrates Court - assault. No penalty; and · 26 June 1997 - ACT Supreme Court - possess traffickable quantity of heroin for supply. Four years imprisonment to begin at expiry of current sentence, on appeal non-parole period reduced to expire on 10 February 1999. Released on parole 24 March 1999. 9 As a result of that history the appellant appears to have spent only a year or two of the last eight years in the community. 10 The appellant appeals on a number of grounds, including the ground that the sentence was manifestly excessive. The Director of Public Prosecutions ("the Director") conceded at the hearing of the appeal that the sentence was defective in certain respects and that there would have to be a restructuring of the sentence in order to comply with legal principles. 11 Before turning to the grounds of appeal in the order which we find convenient, we acknowledge that sentencing for multiple offences and particularly where the offender is already serving a sentence is a particularly difficult task. The sentencing judge has to exercise not only a broad discretion in order to determine a sentence which is just and appropriate in all the circumstances after having regard to the criteria set out in s 429A of the Crimes Act 1900 (ACT) ("the Crimes Act"), but the terms of the Parole Act 1976 (ACT) ("the Parole Act") and other relevant provisions of the Crimes Act must also be given full consideration. Regard must be had further to the practical operation of these provisions and to sentencing and prison practice. In order to carry out the task properly the sentencing judge needs the full assistance of counsel and of those who by virtue of their office have access to the necessary information.

Relevant legislation 12 In the present case, apart from s 429 and s 429A of the Crimes Act, the following provisions of the legislation are relevant: "429BMatters not to be taken into account The court shall not, in determining the sentence to be imposed on a person, increase the severity of the sentence that would otherwise be imposed because of any of the following: (a) legislation which has not come into operation; (b) any alleged offences which the person has not admitted in accordance with section 448; (c) that the person chose not to give evidence on oath; (d) that the person may have committed perjury or been guilty of contempt of court during the course of proceedings; (f) the person's behaviour in court; (g) that the person chose to plead not guilty. … 443 Concurrent and cumulative sentences (1) Every term of imprisonment (except a term imposed in default of payment of a fine or sum of money or one imposed on a person in respect of an offence committed while in custody) shall, unless the court otherwise directs, be served concurrently with any uncompleted part of any sentence of imprisonment imposed on that person, whether before or at the same time as that term. (2) … (3) Where a court sentences a person to a term of imprisonment in respect of an offence committed while in custody, the term shall, unless the court otherwise directs, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that person, whether before or at the same time as that term. (4) A court which imposes a term of imprisonment for an offence against the law of the Territory on a person already serving a sentence or sentences of imprisonment for an offence against the law of the Territory, the Commonwealth, a State or another Territory, shall direct when the new term commences which shall be no later than immediately after - (a) if a nonparole period or pre-release period (as defined in Part 1B of the Crimes Act 1914 (Cwlth)) was fixed in respect of the sentence or the last of those sentences - the end of the period so fixed; and (b) in any other case - the completion of the sentence or the last of those sentences. (5) A court may direct that part of a sentence be served concurrently with or cumulatively upon another sentence. (6) Where a court directs that 2 or more sentences shall be cumulative, they shall take effect one after another as the court directs or, in default of any direction, in accordance with the sequence in which the convictions are recorded. (7) In this section - (a) … (b) a reference to any uncompleted part of any sentence of imprisonment shall be read as including a reference to the remainder of a period for which a child has been committed to an institution by an order under paragraph 47(1)(j) or 47(1)(k) of the Children's Services Act 1986; and (c) … 446 Previous sentences to be noted in new sentence Whenever an additional, or cumulative, sentence is passed, the fact of the previous sentence, or sentences, specifying the date, or dates, thereof, and of the term, or terms, of sentence shall be entered on the minutes and record of the sentence lastly passed. … 451 Time held in custody to count (1) 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. (2) Subsection (1) does not apply - (a) to a period of custody of less than 1 day; or (b) to a sentence of imprisonment of less than 1 day; or (c) to a sentence of imprisonment which has been wholly suspended or to the suspended part of a partly suspended sentence of imprisonment. (3) If a person charged with a series of offences committed on different occasions has been in custody continuously since arrest, the period of custody for the purposes of subsection (1) shall be reckoned from the time of his or her arrest even if he or she is not convicted of the offence with respect to which he or she was first arrested or other offences in the series." 13 The relevant provisions of the Parole Act are: "7. Court to fix nonparole period (1) Subject to subsection (2), where a court sentences a person to a term of imprisonment of not less than 12 months or to terms of imprisonment that, in the aggregate, are not less than 12 months, the court shall fix a period as the period during which the person is not to be eligible to be released on parole in pursuance of this Act. (2) Subsection (1) does not apply - (a) in the case of a person sentenced to 1 term of imprisonment - if that sentence is suspended; (b) in the case of a person sentenced to 2 or more terms of imprisonment - if both or all of those sentences are suspended; (c) if the court, having regard to the nature of the offence or offences and the antecedents of the person convicted, considers that the fixing of a nonparole period would be inappropriate; or (d) if the person is sentenced to imprisonment for life.

(3) Subsection (1) applies whether the offence in respect of which a sentence is imposed was committed before or after the commencement of this Act and whether the person was convicted before or after that commencement. (4) Where a court sentences a person to imprisonment but fails to fix, or fails properly to fix, a nonparole period, the court may, upon application bythe Attorney-General, the informant or the person sentenced, fix a nonparole period. 8. Fixing a 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. … 22. Parole order revoked where person sentenced to imprisonment (1) … (2) 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. 23. Release on parole after previous parole order revoked (1) …

(2) A parole order may be made in relation to a person notwithstanding that a previous parole order in relation to the person has been revoked or is to be deemed to have been revoked. 24. Effect of parole order on sentence (1) … (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."

Plea of not guilty and conduct of trial 14 The principle that an accused person is not to be punished for defending a criminal charge in respect of which there is a subsequent conviction is reflected in s 429B(g) of the Crimes Act, as set out above. However, we do not think that there is any substance in the ground that the learned sentencing judge allowed himself to be influenced by the fact that the appellant had pleaded not guilty to the charge of armed robbery and had required the prosecution to prove his guilt of that offence. 15 After referring to the facts of the offence of escape and to a prepared statement of the appellant which had been handed up for the consideration by the Court in sentencing, his Honour referred to the nature of the defence raised at trial. The defence was in the nature of an alibi and depended upon the alleged presence of a person named only as "Roger". His Honour commented that the appellant had "deliberately chosen not only not to find out who Roger is, nor even to make any inquiries so that he or someone else could inform the authorities". His Honour continued: "The consequence of all this is that the prisoner, Matthew Massey, has not only invented Roger but has dragged other people into a false story which he has determinedly pursued from the commencement of the investigation. One of them has pleaded guilty to contempt for not disclosing Roger's name to the Court and been sentenced to 12 months imprisonment. The penalty which the Court is now required to impose has to be viewed in the light of all the circumstances, not merely the personal ones which he would wish to place before the Court to diminish what must otherwise be a substantial term of imprisonment. Lying on oath and importuning witnesses to give false evidence are not matters which can be regarded lightly or as creditable." 16 We agree that in these passages it appears that his Honour was, contrary to the requirements of s 429B(d), taking the matter of the appellant lying on oath into account for the purpose of sentence. As a result there must be a real possibility that his Honour treated that matter as one of aggravation to be reflected in the severity of the sentence itself. The attitude may be understandable, particularly in view of the conviction and sentence by his Honour of one of the witnesses for contempt in failing to answer questions about the identity of "Roger". In other jurisdictions such matters have been treated as matters relevant for the purpose of sentence: see Sentencing Act 1991 (Vic), s 5(2)(c). However, there is such a strong a case for a contravention of s 429B(d) that the Court would be justified in setting the sentence aside on this ground alone. The Director conceded as much.

Fixing of a non-parole period 17 The learned sentencing judge in his remarks ordered that the nine years sentence for armed robbery was to commence at the expiry of the then current sentence, that is on 10 November 2003. As his Honour said, that meant that the sentence for armed robbery will expire on 10 November 2012. As to the sentence of one year imprisonment for escaping from lawful custody, his Honour said that it was "to commence from the expiry of the current sentence but be cumulative with the sentence for armed robbery". It is not disputed that, although there appears to be some contradiction in the words used, it was intended that the latter sentence be cumulative, that is additional upon the sentence for armed robbery and therefore not to commence until the expiration of the sentence imposed for the robbery. His Honour should be taken to have "otherwise" directed, in accordance with s 443(3) of the Crimes Act. Both sentences however were qualified by the statement by his Honour that each was to be reduced for time spent in custody awaiting trial and sentence. The result was that the accumulation of sentences meant that the additional sentence for escape from lawful custody will not expire until a date fixed by advancing the date 10 November 2013 by the total time already spent by the appellant in custody in relation to both offences. 18 As to the non-parole period, his Honour stated that it was fixed "commencing from the end of the current sentence and expiring on 10 November 2009". We accept the submission of the Director that, in accordance with s 8(4) of the Parole Act, his Honour had no power to fix the non-parole period to commence at the end of the then current sentence. The effect of that subsection and of s 7 is to authorise and require the fixing of a single non-parole period to accompany multiple "terms of imprisonment that in the aggregate are not less than 12 months". Where a sentence is already being served the non-parole period is taken to have commenced on the date of the imposition of that previous sentence. It is at least confusing for it to be expressed to commence on any other date. His Honour should therefore be taken to have done what the Parole Act required, namely, having sentenced the appellant to terms of nine years and one year respectively, to have fixed a single period as the period during which the appellant was not to be released on parole, such period to commence in accordance with s (4)(a) on the date on which the previous sentence for armed robbery was imposed, namely 6 June 1997. However, the error is of no practical significance since s 8(4) provides that the new non-parole period "shall be taken" to have commenced on the date on which the previous sentence was imposed, regardless of when that date was. That deeming provision applies regardless of what a sentencing judge might say, or omit to say, about the commencement of the new non-parole period. What is important is that the sentencing judge make clear that the sentence clearly designate the period before the expiration of which the offender will not be eligible for release on parole. That may be done by reference to the length of the period, for instance in years or months, or by reference to the date of the expiry of the period. 19 In the present case the learned sentencing judge appears to have chosen the latter course by designating 10 November 2009 as a date from which the date for eligibility for release on parole could be calculated by advancing the date for release by whatever time the appellant had already spent in custody pending the trial and sentence for the offences in question. 20 Whilst we would agree with the Director's submission that his Honour's intention as to the non-parole period might have been expressed more clearly, and should have been expressed after imposition of the additional sentence for the escape from lawful custody, we do not think that the somewhat convoluted approach involved any error of principle. We do not accept the submission on behalf of the appellant that his Honour was in error in failing to fix a separate and discrete non-parole period for the escape from lawful custody. Apart from the substantial difficulties of application of such an approach to the matter of parole, the Parole Act in s 7(1) clearly envisages that one non-parole period be fixed in respect of all offences for which an offender is sentenced at the same time. Where, as in the present case, the offender is already serving an unexpired sentence or sentences, a non-parole period is fixed to take into account the previous sentence or sentences as well as those for which the offender is being sentenced for the first time. Thus from a practical point of view, the fixing of the single non-parole period is conveniently postponed until the sentence for each offence has been pronounced and the effective head sentence is thereby ascertained. 21 Accordingly, we do not think that the imposition of a single non-parole period, nor the method of fixing it, indicated any error of principle.

Time served awaiting trial and sentence 22 As this Court has pointed out in Keen v The Queen [2000] FCA 940 at [7] and Geiger v The Queen [2001] FCA 475, s 451 of the Crimes Act is productive of difficulties, some of which might be removed by the addition of words such as "unless the Court otherwise orders". 23 We incline to the view expressed in Geiger that, unless the Court indicates that it has already taken previous time spent in custody into account in order to reduce the time which the offender is to serve before the sentence is to expire, or to reduce the length of the non-parole period, or both, then those responsible for the execution of the sentence are required to do the "reckoning" required by s 451. It is obvious that the sentencing judge cannot do the reckoning for himself or herself without reliable information, preferably evidence from a gaol recorder, as in New South Wales: see R v Holder [1983] 3 NSWLR 245, or from an officer of the Central Records Office of the Correctional Services Commissioner as in Victoria: see DPP v Ibrahimoff [2001] VSCA 46 and the Sentencing Act 1991 (Vic) ss 18 and 35. It may not be quite as obvious but it is important to recognise also that, for the purpose of an appeal against sentence, the appropriateness or otherwise of a sentence may not be possible to assess unless and until such information is available. 24 Information of such reliability does not appear to have been before his Honour, and there was no error in expressly leaving the reckoning of time spent in custody to those responsible for the execution of the sentence. However we were informed at the hearing of the appeal, and it was not disputed, that the time which the appellant had spent in custody, within s 451, was one year and one month. That appears to accord with the appellant's history. Thus the effect of the sentencing in the Supreme Court will be that the expiry of the head sentence will take place on 10 October 2012 and the appellant will be eligible for release on parole on 10 October 2008.

Was the sentence or non-parole period excessive? 25 We are in a position to assess the appropriateness of the sentence and non-parole period in the light of the facts and his Honour's intention. 26 Clearly it was intended that the head sentence of ten years (less time served) be added to the current sentence due to expire on 10 November 2003. In our view, nine years imprisonment is in itself not excessive for an offence of armed robbery. Nor is an additional one year for escaping from lawful custody, particularly for an offender with a serious criminal history. The offender's youth would not be enough to justify intervention by this Court on appeal. However, the present case involves a consideration of the totality of the period to be spent in custody in respect of all offences, including the sentence the appellant was serving for the drug supply offence committed in 1995. From the time of his arrest on the day of the robbery at Fyshwick on 15 November 1999 until the expiry of the head sentence as it is now perceived, the appellant will have been liable to serve nearly 13 years. 27 Similarly, in relation to the non-parole period, the offender will not be eligible for parole until some nine years since the date of his arrest. 28 We were told from the bar table, and again regrettably it is not a matter supported by evidence, that because the appellant now has on his record a conviction for escaping from lawful custody, he will be held in strict custody whilst in prison and will not be eligible for programs like work release. Whilst we do not know whether he will be held in solitary confinement, we are satisfied that, because of the security considerations, the prison experience for this young man is likely to be substantially more rigorous than it is for most offenders. We acknowledge of course that this is the result of his own doing. 29 Nevertheless, the principle of totality requires that an offender should not be left to serve a crushing sentence without some cause for hope on his part. As things stand, by the earliest time the appellant may be released into the community on parole he will be 32 years of age and, as we have said, will have served all but some year or two of the previous 14 years in prison. By the time of the expiry of his sentence he will be 36 years old. It appears to us that despite his criminal history the time necessarily spent in prison will be excessive for such a young man, particularly with regard to the non-parole period.

Outcome 30 In summary, we conclude that his Honour fell into error in taking into account the fact, as he found, that the appellant had lied on oath. Further, because the structure of the sentence results in a manifestly excessive sentence, particularly in relation to the period during which the appellant would have to remain in custody before he may be released on parole, we would allow the appeal and set aside the sentence of the Supreme Court. However, there is the remaining question of whether this Court should assess and formulate for itself the proper sentence to be imposed. This may well have been appropriate had the Court not become appraised of the further conviction of the appellant for the offence of armed robbery committed before that at Fyshwick on 15 November 1999. Clearly, this Court has no power to sentence for that offence, yet, if the matter of the conviction and the circumstances of that offence were before this Court, the question whether the head sentence and non-parole period were manifestly excessive may well have been answered differently. 31 In the circumstances, we think that the appropriate course is to allow the appeal and to set aside the sentences and to remit the matter to the Supreme Court so that the appellant may be re-sentenced there for the armed robbery at Fyshwick and the escape, as well as for the further armed robbery committed on the earlier date. 32 The order of the Court will therefore be that the appeal against sentence is allowed, orders and sentences of the Supreme Court of 9 February 2000 are set aside and those matters are remitted to the Supreme Court for sentencing with the recommendation that the appellant be sentenced at the same time for these remitted matters as he is sentenced for a further conviction for an offence of armed robbery committed prior to 15 November 1999. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court. Associate: Dated: 7 December 2001 Counsel for the Appellant: Mr C Everson Solicitor for the Appellant: Saunders & Co Counsel for the Respondent: Mr R Refshauge SC Solicitor for the Respondent: ACT Director of Public Prosecutions Date of Hearing: 15 August 2001 and 16 August 2001 Date of Judgment: 7 December 2001