R v Burton [1995] QCA 445

Court of Appeal (Qld)|1995-10-06|Before: Before McPherson J, Thomas J, Fryberg J, McPherson J, Pherson J

The application for leave to appeal against sentence must be refused.

This is an application for leave to appeal against sentence. The applicant, Burton, has a substantial criminal history. Not all of it is relevant in the present case. That part which is relevant can conveniently be considered under four headings[1].

On 20th January 1994, Kimmins DCJ sentenced Burton for offences of armed robbery and unlawful use of a motor vehicle. On the two robbery counts he imposed sentences of nine years imprisonment and on the two unlawful use counts he imposed sentences of four years imprisonment, to be served concurrently. All of the sentences were ordered to commence on 9th August 1993. In economically expressed reasons for sentencing, His Honour said:

"In view of all the facts and circumstances of the offence and your previous criminal history you should be looking at 12 years on each of the armed robberies, as you probably know.

However, in view of the matters which your counsel has raised, on each of the armed robbery charges I sentence you to nine years."

His Honour did not state what the matters raised by counsel were, but it now appears that one important matter was that His Honour was informed that Burton had offered to give evidence against one of his co-offenders. We have not been told what other matters His Honour took into account, but doubtless they would have included Burton's age (then 21), the fact that he pleaded guilty and the fact that he disclosed the name of the co-offender.

His Honour made no recommendation in relation to parole under s.157 of the Penalties and Sentences Act 1992 ("the Act") and gave no reason for not doing so. Presumably the omission was deliberate. Burton's application to this Court for leave to appeal against the sentence was refused, although the Court described the sentence as "severe...close to the margin".

Burton's co-offender was brought to trial in the District Court in March 1994. Burton was called by the prosecution to give evidence. He flatly refused to answer questions. For that contempt of court Howell DCJ sentenced him to 12 months imprisonment cumulative upon the terms of nine years which he was then serving. His Honour also made a recommendation that "his global parole consideration date be 9/8/99, that is after serving six years of the cumulative 10-year terms".

At some time between March and October 1994 Burton decided that he would give evidence against another of his co-offenders. On 24th October he was called by the Crown and gave evidence at the trial before Howell DCJ. The accused was convicted. Evidently His Honour was impressed by Burton's change of attitude. While sentencing the co-offender, he said of Burton:

"For such a person who one might understandably have said a few months ago that he was a lost cause, Burton is trying at the moment and he must be given every encouragement.

I would strongly recommend to the parole authorities that they consider him for parole after he has served a total of four years' imprisonment. That would mean a recommended global parole consideration date would be January 1998, that is, 18 months earlier than would otherwise have been appropriate."

January 1998 was four years after the date on which Burton was sentenced by Kimmins DCJ and was approximately 18 months earlier than the date which Howell DCJ had nominated in relation to parole when he sentenced Burton for contempt. Unfortunately, Burton's sentence commenced in August 1993, so that four years imprisonment would have expired in August 1997. It may be that this was how Burton understood His Honour. For whatever reason, he shortly thereafter confessed to a number of offences.

On 18th November 1994 Burton was sentenced after pleading guilty to 14 counts contained in two indictments. The first indictment contained five counts: three of breaking, entering and stealing drugs, one of breaking, entering and stealing a computer and one of breaking and entering with intent to commit an indictable offence. The second contained nine counts: two of breaking and entering with intent to commit an indictable offence, two of unlawfully confining persons against their will, two of stealing with actual violence whilst armed and in company, one of breaking, entering and stealing electronic equipment, one of unlawful use of a motor vehicle and one of wilful damage to property of the Commissioner of Police. On two counts, the most serious, he was sentenced to nine years imprisonment. On the remaining 12 counts he was sentenced to three years imprisonment. The offences were committed prior to Burton's imprisonment in January 1994, and until he confessed, he was not even suspected of a number of them.

"As I have mentioned, the important developments are that the prisoner in his own way has made very real attempts to turn the corner, has already given evidence to inculpate a criminal on a serious matter and proposes to do such in the future and he wanted the slate cleaned in respect of an ex officio indictment in particular, including serious charges of which the Crown knew nothing."

After referring to the hardship which Burton had suffered and would continue to suffer by being in the prison protection unit, His Honour continued:

"The Parole Board, when it considers the prisoner's first application for parole, will by that stage have full information on whether he has continued to try and has in fact continued to turn the corner. It will know whether he has in fact given evidence against another criminal or whether he has reneged. It will have all that material.

In those circumstances, I will be bringing the recommended parole date forward 14 months, and the prisoner then has a concrete recognition of what has happened.

He says he has called in every single offence he has committed, including all those that the police did not know about and would be highly unlikely to have found out about."

His Honour imposed the sentences already referred to and made a recommendation "for a global recommended parole date, in relation to these charges and in relation to all sentences he is serving at present, of 9 June 1998".

Burton then applied to this Court for leave to appeal on the ground that this sentence was manifestly excessive.

On 16th January 1995 the Crown applied to His Honour pursuant to s.188 of the Act to reopen the proceedings. His Honour allowed an extension of time for the making of the application. Counsel drew His Honour's attention to the fact that Burton was, at the time of his sentencing in November 1994, already serving a term of imprisonment and was also the subject of a recommendation in relation to parole[2]. It was apparently submitted that in those circumstances because of s.157(4) of the Act, His Honour had no power to fix a non-parole period less than the existing period, which expired on 9th August 1999. Consequently the order fixing the period expiring on 9th June 1998 was not in accordance with law. His Honour accepted that submission and amended his November order to provide "that the global parole date for all matters for which the accused is serving a term in custody both by orders before November 1994 and for orders in November 1994 be 9 August 1999". Apparently at no time during that hearing was His Honour's attention directed to the question of the validity of the order made in relation to parole in the contempt proceedings.

Burton's application for leave to appeal against sentence first came before this Court on 17th March 1995. Counsel for Burton then sought to argue that the amended order was wrong because the recommendation in relation to parole made in the contempt proceedings was invalid. The Court adjourned the appeal to a date to be fixed to allow time for an application raising that point to be made to Howell DCJ.

On 18th May 1995, Burton applied to His Honour under s.188 of the Act to reopen the November proceedings, and also to reopen the contempt proceedings. His Honour allowed that application. He then took the view that he had had no power to make a "global recommended parole date" in the contempt proceedings because at time of those proceedings Burton was not the subject of any recommendation in relation to parole. He amended his order of March 1994 by making an order "that the accused is sentenced to 12 months imprisonment, such to commence at the expiration of the deprivation of liberty on the term or terms of imprisonment he was then serving". Curiously, in the light of his earlier views, he further ordered, "The amended recommended global date for consideration for parole is 9 May 1998". That decision undermined the reasoning which led to the amendment of the November order; so His Honour further amended that order also to provide that Burton be eligible for parole on 9th May 1998. For a reason not explained, he also reduced one of the head sentences of three years imposed by the November order to two years, but otherwise he reimposed the concurrent head sentences originally ordered.

Before this Court, Burton, who was unrepresented, sought to challenge these amended orders. It seems tolerably clear that he ought to have lodged a fresh application for leave to appeal against them[3], but the Crown quite properly took no point about this. The existing application was treated as sufficient. We must therefore proceed as if the application is one for leave to appeal against both orders made by Howell DCJ, as amended.

The first topic which arises is whether His Honour had power to reopen either of the earlier proceedings. Remarkably, these questions were not argued before His Honour. Counsel for both the Crown and Burton appear to have assumed either that the question had been decided in the Court of Appeal or that it was obvious. In fact, the Court of Appeal had done no more than allow time for Burton to make the application if he wished. Nor does it seem to me that the matter was obvious.

Section 188 of the Act provides:

"(2) 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;

the court (whether or not differently constituted) may reopen the proceeding.

(a) must give the parties an opportunity to be heard; and

(b) may impose a sentence that is in accordance with the law; and

(c) may amend any relevant conviction or order to the extent necessary to take into account the sentence imposed under paragraph (b).

(6) Subject to subsection (7), this section does not affect any right of appeal.

(7) For the purposes of an appeal under any Act against a sentence imposed under subsection (3)(b), the time within which the appeal must be made starts from the day the sentence is imposed under subsection (3)(b)."

"Any penalty or imprisonment ordered to be paid or served, or any other order made, by a court after an offender is convicted, whether or not a conviction is recorded."

That definition includes an order making a recommendation in relation to parole[4]. For present purposes, the relevant question is whether in either of the proceedings which were reopened, His Honour had "imposed a sentence that is not in accordance with the law".

The only power which a court has to make a recommendation in relation to parole as part of its formal order lies in s.157 of the Act. It is necessary to refer to that section in full:

"non-parole period" means the part of a term of imprisonment or period of imprisonment that an offender must serve before the offender is eligible to apply for parole.

(2) If a court imposes a term of imprisonment on an offender, it may recommend that the offender be eligible for release on parole after having served such part of the term of imprisonment as the court specifies in the recommendation.

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

(a) if it is a court of like jurisdiction or higher jurisdiction to the court that last sentenced the offender to a term of imprisonment - make a fresh recommendation for parole relating to the period of imprisonment that the offender must serve; or

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

(4) In making a new recommendation under subsection (3)(a), the court -

(a) must have regard to all the facts known to the court; and

(b) must ensure that the non-parole period is not less than that mentioned in subsection (2).

(5) A new recommendation made under subsection (3)(a) -

(a) revokes previous recommendations made by courts in relation to a non-parole period for an offender; and

(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; or

(b) has ended - the non-parole period in relation to the fresh term of imprisonment -

(i) starts on the day the recommendation is made; and

(ii) must not be longer than the fresh term of imprisonment imposed on the offender."

The empowering provisions are sub-ss.(2) and (3). Unless the orders were authorised by either of those subsections, they were not in accordance with the law.

I turn first to the contempt proceedings of March 1994. In those proceedings, the substance of His Honour's original order was a recommendation that Burton's global parole consideration be after serving six years of the cumulative 10 year terms.

There is clear authority that s.157(3) did not apply in relation to Burton in the circumstances existing in March 1994[5]. That is because at that time there was no existing recommendation in relation to parole in respect of him. Consequently, unless the order was authorised by s.157(2), it was not one in accordance with the law. The first question, therefore, is whether s.157(2) could have any application in the case of a person already serving a term of imprisonment (and not subject to an existing recommendation), particularly if, as was said to be the position in the present case, the absence of a recommendation was the result of a deliberate decision a Court to allow s.166(1) of the Corrective Services Act 1988 to operate. Clearly, if there was no such power, His Honour was entitled to reopen the proceedings.

In my judgment, the circumstances to which I have referred are not sufficient to take a case outside the ambit of s.157(2). First, I see no warrant for reading down the plain words of the subsection. They are ample to cover the situation. Second, I think such a result would be most unfortunate. It would create a situation where neither s.157(3) nor s.157(2) applied to a not uncommon class of case. It would mean that until the prisoner was released, it would never be possible for a court to make a recommendation in respect of further offences. Moreover the section does not restrict a court to a recommendation of a period less than that provided for in s.166(1) of the Corrective Services Act 1988. It also allows the recommendation of a longer period. If it cannot apply in the circumstances under consideration, a court would be unable to recommend a longer period in cases where such might plainly be warranted[6]. I do not think the legislature would have intended that result.

This interpretation is the one applied by Ambrose J in R v Hocking[7]. Although that was a dissenting judgment in this respect, the majority judgment must be taken to have been overruled by the unanimous decision of the Court in R v Doyle[8]. While Hocking was not referred to in the reasons for judgment in Doyle, the reasoning and the result in the latter case are inconsistent with the former. Being later in time they must prevail. It follows that s.157(2) was applicable to the situation before Howell DCJ in March 1994.

However His Honour's order was not in accordance with the law for another reason. Section 157(2) requires that any recommendation made under it be for eligibility for release after having served "part of the term of imprisonment" imposed by the court making the recommendation. "Term of imprisonment" is defined to mean the duration of imprisonment imposed for a single offence. The expression is in marked contrast to the definition of "period of imprisonment"[9]. The term of imprisonment which His Honour imposed was one year cumulative upon Burton's existing imprisonment. However His Honour's original recommendation did not relate to part of that term. It related to part (6 years) of the gross amount of the two terms which were accumulated. This problem cannot be cured by treating the order as referring to the period up to the date specified by His Honour. That period almost certainly will be ended before the term of imprisonment imposed by His Honour can begin[10]. His Honour correctly held in May 1995 that he had had no power to make a "global recommendation". His decision of March 1994 was not in accordance with the law.

I would add that I entirely agree with McPherson JA. that s.157(2) does not authorise a court to add a recommendation on to a sentence of imprisonment previously imposed by another court. That follows from the requirement that any recommendation be for eligibility for release after having served "part of the term" imposed by the court making the recommendation. Provided this requirement is complied with, however, it is my opinion that the subsection authorises a recommendation (in a case to which it applies) of a period less than that specified in s.166(1) of the Corrective Services Act. That subsection is in my judgment intended solely as a default provision. It is explicitly subordinated not only to s.157 of the Penalties and Sentences Act but also to s.166(4) of the Corrective Services Act. I see no reason, either as a matter of policy or in any canon of statutory interpretation, to accord it precedence over either of those provisions - quite the reverse. Nor do I accept the argument that to allow s.157(2) to have the operation proposed would in effect allow a later court to sit on appeal from an earlier one. It was suggested that this would occur where the first sentencing judge had deliberately made no order so as to enable s.166(1) of the Corrective Services Act to operate. In my judgment it is always open to a court which wishes to recommend a non-reducible non-parole period of 50% of the head sentence to make a recommendation to that effect. If that is done, the case will fall under s.157(4)(b)[11] and the desired effect will be achieved. I agree with McPherson JA. that s.157(2) does not authorise a court to alter a previous recommendation in the course of imposing a sentence for a different offence on a later occasion.

It is unnecessary in the present proceedings to decide the effect which such a recommendation would have - in particular, the effect of such a recommendation under the opening phrases of s.166(1) of the Corrective Services Act. We have had no argument on the question. Probably it arises only when the sentences in question are concurrent, not cumulative as in the present case. It can be decided if and when an appropriate case comes before the Court.

Was His Honour entitled in May 1995 also to reopen the November 1994 proceedings (as amended by him in January 1995)? It is plain that the amended order in those proceedings setting the recommended date for eligibility for consideration for parole at 9th August 1999 was made on the assumption that there already existed a legally correct recommendation for that date made in the contempt proceedings. That order was the very reason why His Honour made his first amendment to the recommendation of the November proceedings. If it was void, then the later order was necessarily made on a false legal foundation. Even if it was effective until set aside, the later order could not properly have been made without considering whether to exercise the power under s.188 of the Act in relation to the proceedings in which the earlier order was made. That did not occur. It is therefore unnecessary to consider the precise effect of an order of the District Court not made in accordance with law. On any view of the matter, the order made in the November proceedings (as amended) was itself not in accordance with the law.

In the result, Howell DCJ was entitled to exercise the powers conferred on him by s.188 in relation to the November proceedings. He exercised the discretion conferred by s.188 in favour of reopening both the earlier proceedings. It was not suggested that in the making of this decision his discretion in any way miscarried. Plainly it did not.

In exercising its power upon a reconsideration, a court is not in my judgment restricted merely to rectifying the error of law which led to the reopening. In many cases that will doubtless be all that the Court is required to do; but it seems to me that the power conferred by s.188(3)(b) is a power to resentence as at the date of the reopening. That is implicit in s.188(7). Consequently, the Court may take account of events occurring after the date of the original proceedings. That is what Howell DCJ did in the present case and in my view, he was correct to do so.

However the sentence which the Court imposes must still be one in accordance with the law[12]. That means that it must comply with (inter alia) s.157 of the Act, so far as it is applicable. An earlier order may be amended under s.188(3)(c) only to the extent necessary to take into account a sentence properly imposed under para. (b). In relation to the contempt proceedings, Howell DCJ reimposed the head sentence of 12 months imprisonment cumulative on the existing sentence. It was impossible for the earlier date which he specified, 9th May 1998, to fall within that term of imprisonment, whenever it might commence. Consequently the period leading up to that date could not on any view of things be regarded as "part of the term of imprisonment" imposed in the proceedings. For those reasons, His Honour's order in relation to the recommendation made in the contempt proceedings was in error, and it should be set aside.

That is not to say that the result which His Honour sought to achieve was unattainable. To achieve it His Honour ought in my view to have set aside his recommendation in relation to parole made in the contempt proceedings and not replaced it with any other order. Once that was done, it would have been open to His Honour to exercise the power conferred by s.157(2) in relation to the November 1994 proceedings. Upon the reopening of those proceedings, His Honour could have set aside the existing recommendation in relation to parole and ordered in lieu that Burton be eligible for release on parole after having served (if my mathematics are correct) three years and 172 days of the sentence imposed in those proceedings[13].

In my judgment, even if we do not allow this appeal, we should set aside the orders appealed from, and make orders in accordance with the foregoing reasons. We should consider the merits of the appeal on the basis that these were the orders which His Honour made.

By my count the proceedings affected by this appeal have been the subject of six different Court hearings[14]. It seems that Burton has not been represented by the same counsel twice, and on some occasions he has been unrepresented. Counsel for the Crown has also changed from time to time. This undoubtedly made His Honour's task particularly difficult.

Before His Honour made the orders now appealed from, he discussed them with counsel for Burton. In particular, His Honour proposed the date 9th May 1998 for comment, and counsel responded, "Yes, well, that would be satisfactory". In these circumstances, it might be asked, how can Burton now complain when that was the very order which His Honour made. I am not convinced that there is a satisfactory answer to that question. However I am emboldened to proceed by four matters. First, the way in which the various proceedings below arose and were conducted may have disadvantaged Burton. Second, counsel for the Crown stated before us that the Crown had no objection to our looking at the problem and, apparently, reducing the non-parole period, if we were able to devise a way to do that. Third, Burton was unrepresented before us. Finally, Burton was told in the hearing before us that we would help him if we could.

Under s.668E of the Criminal Code, it is the duty of this Court to impose the sentence which the Court below should have imposed[15].

In the present case, Burton pleaded guilty and allowed the proceedings against him to proceed by way of ex officio indictment. He seems to have satisfied Howell DCJ that at least for the time being he had genuinely repented of his crimes. In addition one must take into account the cooperation which he has given to the police and the prosecuting authorities. It is well settled that a prisoner who cooperates with police, who identifies his co-offenders and who gives evidence against them may be given a substantial reduction in his sentence, which may be reflected in a reduced non-parole period[16]. Not only does this cooperation assist in the enforcement of the law; but also it causes a significant detriment to the informer. He is required to serve his period of imprisonment in the protection unit at the prison, a very confining experience, and his safety both in prison and afterwards is endangered.

Against these factors must be set Burton's very bad record, the serious nature of the crimes which he has committed and the fact that at the time he was sentenced the residue of his existing period of imprisonment was almost as long as the term of imprisonment imposed. Moreover, as far as the evidence before this Court is concerned, an important part of his cooperation remains promissory. He has given evidence against one co-offender, but we do not know whether he has done so against others. In the light of his record I would not grant him credit merely for promises.[17] Having regard to what has been proved in his favour before us, and to the other factors to which I have referred, a recommendation for a non-parole period expiring on 9th May 1998 - the result intended by Howell DCJ - is in my opinion appropriate.

I would allow the application and the appeal. I would order that so much of the order of Howell DCJ made on 9th March 1994 and amended on 18th May 1995 as recommended that the applicant's parole consideration date be 9th May 1998 be set aside. I would further order that so much of the order of Howell DCJ made on 18th November 1994 and amended on 18th May 1995 as recommended a parole date of 9th May 1998 be set aside and in lieu thereof it be recommended that the applicant be eligible for release on parole after having served 3 years and 172 days of his term of imprisonment.

[ 1] It is graphically depicted in the annexure to this judgment.

[ 2] That is, the recommendation made by His Honour on the contempt proceedings in March.

[ 5] R v Doyle, unreported, C.A. 454/93, 6.4.94. In my judgment s.157(3) confers an additional power to that conferred by s.157(2). It does not merely identify an occasion when the power in s.157(2) must be exercised.

[ 6] For example persistent crimes of violence committed while in jail.

[ 10] By reason of Regulation 28 of the Corrective Services Regulations 1989, Burton will not be eligible for any good conduct remission in respect of the first seven months of the sentence imposed by Kimmins DCJ. Consequently the maximum remission which he can receive for good behaviour (the so good "automatic remission") is 33 months and 20 days. Even allowing some extra days for miscellaneous other remissions, it is highly improbable that the imprisonment imposed by Kimmins DCJ could be completed before 9th August 1999. Consequently, that date would not fall within the term of imprisonment imposed by Howell DCJ for contempt of Court.

[ 11] Assuming of course that the later court is of like or higher jurisdiction. If it is not, the non-parole periods in force are accumulated: s.157(6)(a).

[ 13] I.e. the period from 18th November 1994 to 9th May 1998 - that being the date specified by His Honour.

[ 14] Two in the Court of Appeal (counting the hearing before us) and four before Howell DCJ.

[ 15] R v Cornale [1993] QCA 145; [1993] 2 Qd.R. 294; Poulton v Welling, unreported, C.A. 474/94, 5.5.95.

[ 16] Bulger v Queensland Community Corrections Board [1993] QCA 493; [1994] 2 Qd.R. 239; Attorney-General v Onley, unreported, C.A. 72/94, 18.5.94; Attorney-General v Demir, unreported, C.A. 13/95, 4.8.95.

[ 17] If the promises are (or have been) fulfilled, the parole authorities have ample power to recognise that conduct under s.166 of the Corrective Services Act 1988.

There is not much that this Court can do to compensate for that state of affairs. We do not manage the prison system. We were referred to the decision in Bulger v. Queensland Community Corrections Board [1993] QCA 493; [1994] 2 Qd.R. 239 as presenting a possible way out of the difficulty. In that case a judge of District Courts made a recommendation that the respondent be considered for parole after he had served five years of a 12 year sentence. Later his Honour made a further recommendation for parole after only two years in consequence of the respondent's having given very useful evidence and assistance to the prosecution at a later trial or trials before the same judge. This Court held that the recommendation was a factor which the Board ought, in the public interest, to have taken into account in considering whether to grant parole to the respondent.

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