R v Corrigan [1993] QCA 417

It is obviously desirable for a sentencing court to state specifically how it is reducing a sentence when it purports to do so. If an appeal is subsequently brought and it is contended that the sentence imposed is excessive because there has been no sufficient reduction made, the question whether there has, in truth, been a reduction at all and also whether the reduction is sufficient will be considered by the appeal court.

We think that a recommendation for consideration for early release on parole can qualify as a reduction of sentence within s. 13. It is an order made which is highly beneficial to an offender and ameliorates the effect of the sentence as it would otherwise apply. An order recommending can be regarded as included within the definition of "sentence" in s. 4 of the Penalties and Sentences Act and such an order has been held to have the character of "sentence" for other purposes as well, namely applications under s. 668D of the Criminal Code: see R. v. Hantzisavvas (1981) Qd.R. 74.

Even though the view that a recommendation for earlier than usual release on parole can constitute a reduction of sentence under s. 13 and notwithstanding the fact that a sentencing judge is not, under the section, actually obliged by a guilty plea to make a reduction in sentence (see s. 13(1)(b)), the present case is one where a clear and apparent reduction of the penalty should have been ordered by reason of the guilty plea. Especially when the benefits to the system of administration of justice are considered, the plea in this case, even though not accompanied by other manifestations of remorse, did call for some more obvious reduction in sentence than the judge ordered by his recommendation for consideration for somewhat earlier parole. The principal sentence which he ordered effectively imposed the maximum term provided by the Code. Even having in mind the extreme seriousness of the present circumstances, the guilty plea should have called for some reduction from the maximum term of years effectively imposed. The slight improvement in release prospects constituted by the recommendation after four years was not enough.

All of the sentences should be ordered to be concurrent and the effective overall term should be reduced to eight years. This should be done by imposing terms of that length for the offences where the circumstances of aggravation were present. The other terms should remain at four years. Notwithstanding the seriousness of the overall criminality involved, the entitlement to consideration for release on parole should remain at four years. Although in the case of the eight year terms this entitlement would accrue without specific order as a result of the provisions of the Corrective Services Act 1988, since we propose allowing the appeal and so that our intentions will be clear we should order that the recommendation made below for eligibility for release on parole after the applicant has served four years of his term should remain.

The applicant was convicted on his own plea on 13 May 1993 on 28 counts of misappropriation of property, 24 of which had a circumstance of aggravation, namely that the property was of a value of upwards of $5,000. At the applicant's request, a further 75 offences of misappropriation of property were taken into account by the learned sentencing judge in imposing sentence.

In respect of all counts of misappropriation with a circumstance of aggravation, the maximum penalty was ten years' imprisonment and in respect of the other counts the maximum penalty was five years' imprisonment. In respect of all the counts of the first kind, the learned sentencing judge sentenced the applicant to imprisonment for six years and in respect of the remaining counts he sentenced him to imprisonment for four years. He then ordered that the sentence of four years in respect of one of the lesser counts be served cumulatively upon the sentence imposed in respect of one of the counts of misappropriation with a circumstance of aggravation. The result was the imposition of an effective term of imprisonment of ten years. His Honour then recommended that the applicant be eligible for release on parole after serving four years of that term.

The applicant was the chief executive and financial controller for the B & W Cabs group of companies. The offences consisted of drawing cheques on one or other of the companies in the group made payable to the applicant, his wife or a company with which they were associated, and concealing the payee of those cheques by placing false particulars on the cheque butts. This practice continued over a period of three and a half years and involved the theft of approximately $1.2 million, none of which has been recovered. During the period in which the misappropriations occurred, the applicant apparently enjoyed an expensive way of life. The B & W Cabs group, on the other hand, went into liquidation, although the applicant's dishonesty was not the sole cause of this.

The applicant's conduct involved a gross betrayal of trust and plainly had a serious adverse effect financially upon the B & W Cabs group and on its drivers and people associated with it. It was on a massive scale, extending over years. There was no demonstrated remorse. However, it must be said in the applicant's favour that his plea of guilty saved the expense of a long trial and his cooperation with the police may have assisted them in further investigations.

The applicant had a number of previous convictions for offences of dishonesty but none since 1981. Although it was submitted on his behalf that there were a number of factors which should be considered in mitigation - his family situation (he had several young children to support), his poor prospects of employment on release from prison, and the fact that the scheme which the applicant operated appears to have been initiated by others - it was not strongly urged that any of these factors should have resulted in lower sentences.

It was submitted that the learned sentencing judge erred in two specific respects. The first was in imposing cumulative sentences; and the second was in failing to reduce the applicant's sentence for his guilty plea. It was submitted that the recommendation for early parole was not a reduction in sentence for this purpose.

In making his submissions on the first of these grounds, Mr Martin, for the applicant, frankly conceded that the learned sentencing judge's intention was to impose an effective term of ten years' imprisonment for these offences. His Honour's remarks made during the course of the sentencing hearing support that concession. Moreover, putting on one side for the moment the guilty plea, I do not think that an effective term of ten years' imprisonment for these offences was manifestly excessive. The learned sentencing judge, who was very experienced, said that this was the largest misappropriation that he had encountered. Moreover, the deceit and gross breach of trust involved in the commission of these offences, the serious financial consequences to the applicant's colleagues, and the lack of demonstrated remorse required a sentence towards the high end of the permissible range for offences of this kind.

All of the offences were committed in perpetration of the scheme to which I have referred and consequently, although they extended over three and a half years, they constituted a series of offences which I think should have been taken together for the purpose of determining a total effective sentence. There was no reason, in this case, to impose cumulative sentences. His Honour should, I think, have made the sentences concurrent. But having concluded that the offences, taken together, required the maximum sentence of ten years, I do not think that the total effective sentence imposed by his Honour was wrong. Subject to what I say below, I would, however, vary the sentences which his Honour imposed by imposing sentences of ten years on each of the offences of misappropriation with a circumstance of aggravation, and sentences of five years in respect of each of the other offences.

The other specific ground of appeal involves the construction of s. 13 of the Penalties and Sentences Act 1992. That section provides:

"Guilty plea to be taken into account. (1) In imposing a sentence on an offender who has pleaded guilty to an offence, a court -

(b) may reduce the sentence that it would have imposed had the offender not pleaded guilty.

(2) A reduction under subsection (1)(b) may be made having regard to the time at which the offender -

(b) informed the relevant law enforcement agency of his or her intention to plead guilty.

(3) When imposing the sentence, the court must state in open court that it took account of the guilty plea in determining the sentence imposed.

(4) A court that does not, under subsection (2), reduce the sentence imposed on an offender who pleaded guilty must state in open court -

(5) A sentence is not invalid merely because of the failure of the court to make the statement mentioned in subsection (4), but its failure to do so may be considered by an appeal court if an appeal against sentence is made."

In imposing the sentence which he did, the learned sentencing judge said that he took into consideration the guilty plea and the consequent saving of the expense of a long and protracted trial; and also the effect on his personal situation and on his prospects of employment. It is plain that he did this by making the recommendation for parole which he did. However, the applicant submits that the making of that recommendation was not a reduction of the sentence within the meaning of s. 13. He further submits that failing to reduce the sentence or to state reasons for not doing so was a breach of s. 13 justifying the interference of this Court; or, alternatively, that it was a wrong exercise of discretion justifying such interference.

The term "sentence" is defined in s. 4 of the Act to mean:

"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."

The applicant submitted that the recommendation is not "imprisonment ordered to be ... served"; nor is it "any other order made".

By ss. 165 and 166 of the Corrective Services Act 1988, every term of imprisonment ordered to be served is qualified, in a sense, by the eligibility of the prisoner for release on parole, at least generally, after having served one-half of that term: s. 166(1)(b). Section 157(2) of the Penalties and Sentences Act

allows the court to recommend that an offender be eligible for release on parole after having served some part of the term of imprisonment more or less than one-half, the recommendation having a similar qualifying effect.

Whilst I would doubt whether such a recommendation could be described as a sentence because it can have no independent operation, nevertheless I think that it forms part of a sentence because, as I have said, it qualifies the order made for imprisonment. Compare R. v. Hantzisavvas [1981] Qd.R. 74. It follows that the effect of the recommendation in the present case is that the sentence is less than it would have been had the recommendation not been made (s. 166(1)(b)) and therefore that the recommendation reduces that sentence for the purpose of s. 13.

It remains to consider whether the sentence reduced by that recommendation is manifestly excessive, having regard to the applicant's guilty plea and his personal situation. In considering that question, it must be borne in mind that there was no evidence of remorse and, on the contrary, evidence from which it could be reasonably inferred that, as the Crown submitted, the plea was entered for the purpose only of mitigating the penalty. The fraud was detected early in 1990. A full investigation followed. The applicant was interviewed by police in January 1991 and did not cooperate in any meaningful way; he denied having done anything unlawful. His committal took place in October 1991 and his trial was to commence on 1 February 1992. At the last moment he indicated that he intended to plead guilty and he did so on 10 February 1992. It is plain, as the Crown submitted, that the plea of guilty did not save anything as far as the investigation of the offences were concerned or the preparation for trial, the Crown being ready to proceed on 1 February 1992. The plea therefore saved only the court time of the trial, estimated at four weeks.

Whilst it is important to encourage pleas of guilty by appropriate reductions in sentences, I think that the facts to which I have just referred require only a small reduction in this sentence, particularly when regard is had also to other features of the case to which I have earlier referred: the absence of any restitution and the effect of the fraud on the B & W Cabs group and the applicant's colleagues.

Accordingly, I would grant the application, allow the appeal and, in lieu of the sentences imposed I would impose, in respect of each of the offences of misappropriation with a circumstance of aggravation a sentence of ten years' imprisonment, and in respect of each of the other offences sentences of five years' imprisonment. And I would recommend that the applicant be eligible for release on parole after having served four years of those terms.