R v. Cornale [1993] QCA 145 (27 April 1993)

In the result Dent was sentenced on 11 December 1992 by Judge Maguire to terms of four years imprisonment in respect of each count of unlawful use, and to 18 months in respect of each count of stealing, to be served concurrently. Acting under s.144 of the Penalties and Sentences Act 1992 his Honour also directed that the sentences he had imposed should be suspended. On 19 March 1993 the other accused Hoffmann came before Judge Healy Q.C., who imposed sentences of imprisonment for three years in respect of the unlawful use offences committed with circumstances of aggravation; two years imprisonment for those offences without any such circumstances; and three years for the stealings. He elected to follow the course adopted in the case of Dent by directing that all the sentences imposed on Hoffmann be suspended.

On appeal the point was made that in relation to the offences of stealing the sentences imposed on the appellants exceeded the permitted maximum of three years. Rectifying this oversight would, however, not reduce the effective duration of the combined sentences, and the real gravamen of the applications for leave to appeal is the disparity that is now said to exist between the sentences imposed on the three applicants and those imposed on Dent and Hoffmann. The applicants are at present in prison, and are likely to remain there for at least another six months or more until the recommended parole period arrives; in contrast, the other two offenders are at liberty, and, if they do not re-offend, can presumably hope to remain free for the duration of the suspended sentences.

It is possible to identify some differences between the two sets of offenders and also, but to a lesser extent, among the individual offenders. The applicants Cornale and Nicholson were both 18 years old, going 19, when they were sentenced; each had a previous conviction recorded in April 1991 for stealing, for which 12 months probation was imposed. They must have been still on probation when the subject offences, or some of them, were committed. P was only 17 years old when he was sentenced and he had no previous convictions. He was suffering from emotional or personality problems which it was said had the consequence that he was easily led by others. That might be thought to go some way in mitigation, but he was involved in taking more vehicles than the other two. He admitted to 28 vehicles; Nicholson to 25; and Cornale to 13. Each of them pleaded guilty to the serious circumstance of aggravation of destroying one of the vehicles by setting fire to it.

Dent was 26 years old at sentence. In the end he did not plead to the circumstance of aggravation mentioned, but he did admit incidental circumstances of aggravation in the case of other vehicles, and he also pleaded guilty to eight stealing offences. The precise details of Hoffmann's involvement do not appear from the record; but he participated with the others in some nine or more offences of unlawfully using motor vehicles, in some instances with circumstances of aggravation, as well as offences of stealing.

There is no compelling reason for distinguishing between these five individuals in the matter of their sentences. Nevertheless, as between the applicants and the other two offenders Dent and Hoffmann, the penalties imposed do have that practical consequence or effect. The difference is, we think, sufficient to induce in the three applicants a justifiable sense of grievance at what they would see as a disparity in the sentencing process as applied to them. They have already been in prison for over five months and can expect to remain there for at least a further six months until the time at which they can first expect to be considered for parole. If their applications for parole fail then or are deferred they will be subject to a further period in custody. By contrast, the other two offenders Dent and Hoffmann have so far succeeded in remaining free and can hope to retain their liberty unless and until they re-offend. The difference between being in prison, but with some prospect of release after 12 months; and not being in prison, but with some risk of being sent there, impresses us as being sufficient to attract the intervention of the Court in cases like these where the overall responsibility, criminality and personal circumstances of each of the offenders are not readily distinguishable.

An obvious means of correcting the disparity would be to suspend the sentences imposed upon the applicants. However, on 30 October 1992 that option was not available in respect of sentences like these. The relevant provisions of the Act including s.144 under which the sentences of Dent and Hoffmann were suspended did not come into force until 27 November 1992. The question is whether in sentencing afresh this Court can now do what could not have been done by the judge who sentenced the applicants on 30 October 1992.

In setting out the powers exercisable by this Court or its predecessor in disposing of appeals against sentence, s.668E(3) of the Criminal Code provides that, if the Court is of opinion that "some other sentence, whether more or less severe, is warranted in law and should have been passed", the Court must quash the sentence "and pass such other sentence in substitution therefor". These and the comparable provisions in the legislation of other Australian States have a common origin in s.4(3) of the Criminal Appeal Act 1907 of England. Surprisingly perhaps, there appears to be no reported authority in which a problem like the present has previously been considered. On their face, the terms of s.668E(3) limit the relevant power on appeal to substituting for the sentence under appeal a sentence that "should have been passed" in the circumstances that prevailed when it was imposed. If (as was the case) there was no power on 30 October 1992 to suspend a sentence of the duration of those imposed here, there would under s.668E(3) not be any power now to do so on appeal.

Section 668E(3) of the Code is not necessarily the only relevant provision. Section 204(1) of the Penalties and Sentences Act 1992 applies generally to any sentence imposed after the commencement of that section; this, the subsection adds, is to be so "irrespective of when the offence was committed". Because any sentence that might now be substituted in this Court would be imposed after s.204 commenced, it could be said that the Act (including s.144) would be applicable in imposing the substituted sentence; and, to that extent, s.668E(3) of the Code would be repealed or displaced. On the other hand, s.204(5) contains a further provision that on one view is specifically directed to cases like this; that is, where, after the commencement of s.204, a sentence is imposed by an appeal court on setting aside a sentencing order made before the commencement of the Act. In those circumstances, the sentence imposed on appeal is, by force of s.204(5), to be "taken to have been imposed at the time the original sentencing order was made".

It is possible to regard s.204(5) as designed to satisfy some limited purpose only, such as ensuring that the time already served under a sentence that is varied on appeal continues to be counted in calculating remissions, parole periods, etc. A difficulty of reading it in that limited way is that the operation of s.204(5) is itself qualified by the words "for the purposes of this section..." which introduce it. Unless, therefore, s.204(5) serves to qualify the general provisions of s.204(1), it is perhaps not easy to see what its function was intended to be. We may add that s.180(2), to which we were also referred, does not seem to us to bear directly on the question being considered here. It is a transitional provision of a sort, but it is one that is evidently concerned with the impact of changes made by the Act in the duration of maximum or minimum sentences that are capable of being imposed.

All these considerations tend to confirm the impression that the purpose of s.204 was not to override the general rule laid down in s.668E(3) that a sentence substituted on appeal must be one that should have been passed in the first instance.

The result is that, although we are persuaded that the difference between the sentences imposed on the applicants and the other offenders Dent and Hoffmann is sufficient to amount to a disparity calling for intervention by this Court, we are not satisfied that it is open on appeal to redress that disparity by directing that the balance of the applicants' sentences of imprisonment should be suspended under s.144. Instead, we consider that the closest approximation capable of being achieved is to order that each of the applicants be sentenced to terms of imprisonment of six months on each count followed in the case of each applicant by probation for three years.

This will have the effect of placing them in a position that, as regards the future, is similar although not identical to that of the other two offenders whose sentences were suspended under the new Act. All five offenders will be out of prison although each of them will be at serious risk of being imprisoned if he re-offends. Serving the sentence of imprisonment that was suspended seems to be the almost inescapable consequence of re-offending during suspension: see Penalties and Sentencing Act 1992, s.145(2). By contrast, the effect of s.207 to 209 of the Corrective Services Act 1988 is to reserve a wide discretion to the Court on re-sentencing a probationer who re-offends. To that extent the applicants may be better placed than Dent or Hoffmann. They will also be subject to what they may regard as the irksome controls of the probation system; but probation is known to have compensating advantages from which they may expect to benefit. It is, in any case, not possible to eliminate every inequality that may have resulted from applying a new sentencing regime to only some of these co-offenders. The course we are adopting here accords generally with what was contended for by counsel for the applicants.

The applications for leave to appeal should be granted and the appeals allowed. The sentences imposed on the applicants should be varied by reducing each of them to imprisonment for six months; in addition, each of the appellants should be ordered to undergo probation for a period of three years on the conditions specified in s.199(1)(a) of the Corrective Services Act 1988.