R v Brockfield [1993] QCA 348

Court of Appeal (Qld)|1993-09-21|Before: Mr J, Ambrose J, White J

The applicant seeks leave to appeal against the failure of the sentencing judge to make a recommendation for release on parole or, alternatively, objects to remarks made by him when passing sentence that might have the affect of preventing his release to community based supervision in accordance with the statutory scheme prior to the expiration of the sentence imposed. No complaint was made concerning the sentence of 2 years and 3 months imprisonment which was imposed.

The applicant was found guilty of indecent assault upon a young woman in February 1992. He had seen her that night at a nightclub where they had both been drinking but they were unknown to each other. When the club closed around 1 a.m. the complainant decided to walk home because her boyfriend was lingering speaking to someone. She passed the applicant at a bus stop, and he mumbled something. The complainant felt a little uneasy and started to run and the applicant followed her, tackled her near a vacant allotment and pushed her to the ground. A struggle ensued in the course of which the applicant put his hand up the complainant's skirt and attempted to insert a finger into her vagina. In the course of doing so, he caused a 4 cm. scratch along the left lip of her vagina which bled. The complainant's screams, which the applicant had attempted to suppress by putting his hand over her face, aroused a couple asleep in the house across the road. The man ran out and challenged the applicant who ran off. He was chased for some kilometres and in due course the police arrived. During the period at the end of the chase when the man, a Mr. Darcy, had enlisted the aid of a taxi driver, he had an opportunity to observe the applicant and noted that he was visibly affected by alcohol.

The applicant's story told to the investigating police was that he believed that the complainant was interested in him sexually and that they had danced together in the course of the evening in the nightclub and that they had walked down the road after leaving the nightclub together. He said that when he attempted to be intimate with her she started to scream and cried rape. The sentencing Judge described this as a bizarre story. The applicant was 20 years at the time of committing the offence. He enjoyed a good relationship with his family and has a reasonable work history. He had some previous convictions of a relatively minor kind, none involving violence or indecency. In sentencing the applicant to 27 months imprisonment, the sentencing judge remarked:

"What may be of concern, more particularly to the appropriate authorities, if and when you should be released or allowed loose on the public again, is your quite bizarre story. The fact that you were able to make up such a totally false and bizarre story might be worthy of quite some time of a psychiatrist and/or other experts."

His Honour went on at the conclusion of his sentencing remarks:

"I strongly recommend to the appropriate authorities that you not be released to community based supervision unless and until the relevant authorities are satisfied on proper material that you are psychiatrically and psychologically suitable for such release. I strongly recommend that you not be released unless and until the authorities are comfortably satisfied you are no longer a danger to women."

The applicant, who appeared on his own behalf, objected to these latter remarks on the ground that, apart from the offence itself, there was no evidence to suggest that he was a danger to women. He pointed out that he had been released on bail for 16 months from the date of the commission of the offence until the hearing of the trial in June this year and that nothing had occurred over that period which would support the observations of the learned sentencing judge.

The legislative scheme for the release of prisoners on parole is to be found in the Corrective Services Act 1988, subject to amendments made by the Penalties and Sentences Act 1992 not presently relevant to this matter. Generally, a prisoner is not eligible for release on parole until at least one-half of the term of imprisonment to which he was sentenced has been served (s.166(1)). The statutory scheme provides for two relevant exceptions, namely, that a sentencing court may recommend release on parole earlier or later than the service of one-half of the sentence (s.166(3)) and the Community Corrections Board may, where it is satisfied that there are special circumstances relating to a prisoner, release the prisoner on parole at any time (s.166(4)).

A recommendation as to eligibility for release on parole is part of the sentencing process, notwithstanding that it is only that, a recommendation, R. v. Hantzisavvas [1981] Qd.R.47;

R. v. Tilley (1991) 53 A.Crim. R.1; R. v. Griinke [1992] 1 Qd.R.196 and R. v. Tramacchi C.A. Nos. 68 and 89 of 1993, unreported decision of Court of Appeal of 31 May 1993.

Thus it is clear that a convicted prisoner who is aggrieved at the recommendation as to parole made by the sentencing judge or, even the failure to make a recommendation, may appeal to this Court. In its practical effect, the recommendation made by the sentencing judge was tantamount to a recommendation for later release on parole.

It is likely that the recommendation made by the learned sentencing judge set out above will, if allowed to stand, be given weight by a Community Corrections Board if it receives an application for release into the community by the applicant and that it will operate adversely against him. It is of the utmost importance that any observations which are made in the course of sentencing, and which are intended to be brought to the attention of a Board or to the prison authorities, should be carefully considered and should reflect the evidence in the case.

There did not emerge any evidence, apart from the evidence inherent in the charge itself, that would suggest that the applicant had a psychiatric or psychological problem which caused him to be a danger to women. This is not in any way to diminish the seriousness of the attack upon the complainant and the need to punish that conduct. There was no feature in the evidence which would preclude the applicant from having the benefit of the statutory scheme, subject to the usual requirements of the authorities that he be a fit person to be released into the community under supervision.

There is nothing in the authorities which were referred to the sentencing judge nor before this Court which would suggest that the head sentence imposed by his Honour was inappropriate. However, it is arguable that some recommendation for early release different from the statutory scheme is justified.

It is an unfortunate circumstance which allows a young man to be on bail for 16 months before being offered a trial and then to be sent to prison. In an offence of this kind the need to follow the offence with a relatively early trial and adjudication is plainly desirable. It is something which the sentencing judge might well have regarded as a factor indicating a recommendation

or early release on parole. An appropriate recognition of the long period on bail undergone by the applicant would be a recommendation that he be considered as eligible for release on parole after serving one-third of his sentence.

For these reasons leave to appeal against sentence is granted and the appeal upheld and the recommendation made below is set aside, and in lieu thereof it is recommended that the applicant should be considered as eligible for release on parole after serving 9 months of his sentence.

Corrective Services Act 1988

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Judgment (17 paragraphs)

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