_R v DC_

[1]

Director of Public Prosecutions (Queensland) for the respondent

[2]

**[1] McMURDO P: I have read the reasons for judgment of Thomas JA and those of Williams J. Williams J has set out the facts and carefully traced the history of s 188 of the Penalties & Sentences Act 1992.

[3]

[2] The question for this Court is whether a judge, who has sentenced an offender on the basis of an accurate criminal history at the time of sentence, and the offender subsequently pleads guilty to a further offence which occurred before the offence the subject of the first sentence, originally "imposed a sentence decided on a clear factual error of substance" under s 188(1)(c) of the Penalties & Sentences Act 1992, entitling the judge to re-open the first sentencing proceeding.

[4]

[3] The relevant time for determination of the question whether there was "a clear factual error of substance" must be the time of the original sentencing proceeding sought to be re-opened. The subsequent conviction cannot alter the fact that at the time of the imposition of the original sentence the offender's criminal history placed before the sentencing judge was factually correct. In such circumstances it is not proper to re-open the sentencing proceedings under s 188(1)(c) of the Penalties & Sentences Act 1992.

[5]

[4] I agree with the orders proposed by Thomas JA and with his reasons.

[6]

[5] THOMAS JA: The facts and issues that arise in this case are stated in the reasons of Williams J.

[7]

[6] The first question that arises is whether on 17 June 1999 the learned judge "imposed a sentence decided on a clear factual error of substance" within the meaning of those words in s 188(1)(c) of the Penalties & Sentences Act 1992. To answer this it will be necessary to examine what happened at the two sentencing procedures of 17 June 1999 and 16 July 1999.

[8]

[7] On 17 June 1999 it was his Honour's task to sentence the applicant for an indecent dealing with a girl under 12 committed in June 1998 ("the 1998 offence"). His Honour was correctly informed of the then criminal history of the applicant with mention being made of sexual offences of which the applicant had been convicted in 1987 ("the 1987 offences") including three counts of attempted incest. There was at that time no other criminal history and his Honour was not misled in any respect. A relevant circumstance however was not brought to his Honour's attention, namely that there was then pending in the District Court another indictment charging the applicant with an unlawful and indecent dealing committed between 1993 and 1995 (which for convenience will be referred to as "the 1994 offence"). The applicant had earlier pleaded not guilty to the 1994 offence. His decision to change his plea was made after he commenced serving the prison term imposed with respect to the 1998 offence. If the sentence for the 1998 offence had been adjourned pending negotiation between the parties with a view to ascertaining whether a plea of guilty would be entered on the outstanding charge, all matters could have been dealt with in due course by the one court on the one occasion. That however did not happen, and it could not have happened because no-one adverted to the other pending charges.

[9]

[8] Unless and until the applicant was convicted of the 1994 offence the court could not be told that he had in fact interfered with another child in 1994. For reasons given hereunder it is fundamental that proof of prior criminality for sentencing purposes can only be established by means of proving the offender's actual convictions. The "criminal history" of an offender may be supplemented by details of relevant circumstances which may tend to show whether he was guilty of a serious or not so serious example of the offence, but, whether or not such details are challenged, the exercise must be based upon the official record of the offender's conviction, the sentence which has been imposed in respect of it, and if necessary the evidence that supported the conviction.

[10]

[9] When the applicant was brought back before the same judge almost a month later to be sentenced upon the 1994 matter his Honour noted the difficulty that had been occasioned from the sequence in which events had unfolded. His Honour observed that the 1998 offence was the more serious of the two offences, and that had he been called upon to sentence the applicant on both offences he may have been inclined to have imposed a slightly higher sentence in respect of that offence, and to have imposed a lesser concurrent sentence in respect of that with which he now had to deal.

[11]

[10] For reasons that will appear later[1], if his Honour considered that the appropriate totality of the sentences to be imposed in respect of these two matters was, say, three years, then that result could have been achieved by imposing a sentence of six months for the offence then before him, with a direction that it be cumulative upon the sentence imposed on 17 June 1999.

[12]

[11] Of course there may well be more than one means of achieving the same or approximately the same result. In the event his Honour accepted submissions from the Crown prosecutor that under s 188 of the Penalties and Sentences Act he could re-sentence the applicant upon the matter that had been before him on 17 June. His Honour held as follows:**

[13]

"By reason of the prisoner's plea of guilty today it is the fact that as at 17th of June 1999 he was guilty of an offence of a similar nature. In my view that is a very relevant fact and would have been a very relevant fact to the sentence to be imposed on the 17th of June 1999. Having proceeded to sentence without having regard to such fact, in my view that sentence imposed on the 17th of June 1999 was decided on 'a clear factual error of substance'...".

[14]

The proposed re-sentencing was not opposed by counsel for the applicant below, but that could not confer jurisdiction unless the requirements of s 188 were satisfied. On appeal it was submitted on behalf of the applicant that his Honour erred in so ruling.

[15]

**General interpretation of s 188(1)

[16]

[12] Section 188(1) of the Penalties and Sentences Act 1992 provides:**

[17]

"If a court has in, or in connection with, a criminal proceeding, including a proceeding on appeal-

[18]

(a) imposed a sentence that is not in accordance with the law; or

[19]

(b) failed to impose a sentence that the court legally should have imposed; or

[20]

(c) imposed a sentence decided on a clear factual error of substance;

[21]

the court, whether or not differently constituted, may reopen the proceeding".

[22]

**[13] I am indebted to Williams J who has described the history of earlier provisions dealing with the subject of re-sentencing by various courts in this State. I agree that the present provision should be construed free from constraints or analogies that might be drawn with interpretations of earlier quite different provisions, in cases such as Boyd v Sandercock; ex parte Sandercock[2], R v Williams; ex parte Biggs[3] and Deacon[4]. Clearly the legislature has now given to the courts a useful tool which will enable both legal and factual errors to be corrected. The power is not to be hedged by unnecessary legal distinctions. I do not think that the term "clear factual error of substance" presents any particular difficulty. The use of the word "clear" suggests that the court should not act unless the error is clearly shown, and the words "of substance" suggest that this exceptional procedure should not be invoked in relation to pettifogging points or relatively minor mistakes. Those words suggest to me the need for something of sufficient importance as to be likely to call for some material alteration of the sentence.

[23]

[14] However there are limits upon the liberality with which such a provision should be construed. The pursuit of perfection in a system run by human agents must be balanced against the desirability of finality of litigation and the undesirability of placing all offenders in a position where they have never finally been sentenced. In this respect, s 188(5) allows either prosecutor or offender to apply within 28 days after sentence or to seek an extension of time thereafter, and the court has unlimited power to re-open the proceeding on its own initiative at any time. In the present case it is to be noted that the 28 days had expired and that an extension of time (albeit a short one) was necessary, and presumably was granted.

[24]

[15] The question in this case is this: is s 188(1)(c) satisfied when an offender is subsequently convicted of offences that were committed before the original sentencing process? In all such cases, at the time of sentence the offender has already done the earlier criminal acts but has not been convicted of any offence arising in respect of them.

[25]

[16] The longstanding practice of informing the court of the past criminal record of the offender is not expressly recognised in s 9(2) of the Penalties and Sentences Act 1992 although that subsection requires the court to have regard to the offender's character[5] and to the presence of any aggravating or mitigating factor concerning the offender[6]. Curiously, express mention is made of "the past record of the offender" and "the antecedents" of the offender in s 9(4) which relates to the sentencing of violent offenders. However the general relevance of the antecedent criminal history of an offender is recognised by the High Court in Veen v The Queen (No 2)[7]. Its relevance includes the extent to which that history may illuminate the moral culpability of the offender and the need to impose punishment that will deter the offender and others from committing further like offences. The criminal history therefore qualifies as an "other relevant circumstance" under s 9(2)(p) of the Act.

[26]

[17] It has been held that a statement of an offender's antecedents should not contain allegations of other criminal conduct which has not been proved or admitted[8]. The same principle underpins the rule that reference should not be made to the fact that an offender has been charged but not convicted on a previous occasion. When a statement of fact concerning an offender's antecedents is disputed, it must be proved by admissible evidence[9]. Similar principles apply to the proof of convictions for offences committed after the offence for which the sentence is to be imposed, which are now generally regarded as receivable in evidence to illustrate the history and character of the offender by the time of sentence[10].

[27]

[18] The principle that information concerning other offences can only be given after proof of conviction of such offences may be compared with that recognised by this court in R v D[11] where the vice of punishing an offender for conduct of which he has not been convicted was clearly identified.

[28]

[19] I have concluded that the fact that an offender has done something which would amount to a crime cannot and should not be placed before the sentencing court unless and until the offender is convicted of the specified offence. To allow any inroads into this principle would in my view be dangerous in the administration of criminal justice. "Factual errors" in the sentencing process, in my opinion, do not occur through the failure to mention facts that may not lawfully be placed before the court.

[29]

[20] On balance I see greater inconvenience resulting from a construction which would permit reopening of sentences in circumstances such as the present than from the construction that I prefer. It is now not uncommon for persons to be charged with offences committed many years ago. Many such persons may have convictions for acts they have done in the intervening period. If it is right to re-sentence the applicant in the present circumstances it will be difficult if not impossible to resist the re-opening of intermediate sentences, for it will nearly always be quite arguable that heavier sentences would have been imposed had it been known that the offender had committed earlier serious offences.

[30]

[21] Difficulties of this kind do not arise if one adheres to the rule that sentencing courts deal with previous criminal conduct only after and in accordance with actual convictions, and in accordance with the records of the court concerned and the evidence given therein. I do not consider it unduly restrictive to hold that a court's ignorance of earlier criminal conduct of which an offender has not been convicted fails to reveal any factual error in the imposition of the sentence. This is so whether it is suggested that error lies in the court not knowing that the offender has done these things, or in not knowing what the subsequent criminal history of the offender will turn out to be.

[31]

[22] In my view the plea of guilty that was entered in July 1999 in respect of the 1993 offence did not have retrospective effect such as to convert an impeccable sentencing procedure on 17 June into "a sentence decided on a clear factual error of substance". Neither did the judge's reliance on the criminal record that was tendered on the former date proceed from a factual error. The record tendered was the applicant's actual criminal record at that time.

[32]

[23] The learned sentencing judge therefore did not have jurisdiction to re-sentence the applicant for the 1998 offence on 16 July 1999. His jurisdiction was limited to sentencing the applicant for the 1994 offence to which the applicant then pleaded guilty. In imposing a sentence on that occasion his Honour was entitled to consider what would be the total sentence appropriate for the 1998 offence and the 1994 offence had both matters been dealt with at the same time, and to fashion a further sentence to achieve what is sometimes referred to as appropriate totality. As Street CJ observed in R v Holder & Johnston when speaking of sentencing for two or more offences:**

[33]

"...Not infrequently a straightforward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation the sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences. The effect of this practical consideration is always to produce an ultimate aggregate which is less than that which would be arrived at by a straightforward adding up of the terms appropriate for the offences if each were viewed alone. In carrying out this process of adjustment, it is both inevitable as well as proper that the ultimate decision be arrived at in the light of the totality of the criminality involved in all of the offences"[12].

[34]

"... where the principle of totality comes into effect, it is more often than not of little importance how the ultimate aggregate is made up (that is to say, whether by a series of aggregate terms or by a series of concurrent terms, or by partly one and partly the other). The important factor is the practical significance of the sentencing order"[13].

[35]

**[24] It has been observed in the High Court that the appropriate total effect in respect of sentences for multiple offences may be achieved "through the imposition of consecutive sentences of reduced length with or without other sentences to be served concurrently or through the imposition of a head sentence appropriate to the total criminality with all other sentences to be served concurrently"[14]. Similar observations may be found in Mill v The Queen[15] and Attorney-General (SA) v Tichy[16].

[36]

[25] The need to apply similar principles when the sentencing process has been fragmented is recognised in R v Todd[17].

[37]

[26] The answer to the question posed in paragraph [15] above is "no". The orders that were made on 16 July 1999 (including the sentence of three years imprisonment for the 1998 offence and the order setting aside the sentence of 17 June 1999) should be set aside.

[38]

[27] Such an order will enliven the original sentence of 17 June which was a sentence of two and a half years. The present application does not seek to set aside that sentence, and asserts that it should remain in force. Counsel for the applicant submits that the concurrent sentence of 18 months imposed with respect to the 1994 offence is appropriate. Indeed no appeal has been brought by either party against either the sentence of 17 June for the 1998 offence or the sentence of 16 July for the 1994 offence. The only appeal is against his Honour's determination to re-sentence, and the re-sentence which he then imposed of three years with respect to the 1998 offence. Once those orders are set aside, no question arises of this court re-sentencing the applicant. I mention however that in my view the present result (two and a half years for the 1998 offence and one and a half years concurrent for the 1994 offence) lies within a proper range of sentence in all the circumstances. I do not say that his Honour could not have added a small cumulative component with respect to the 1994 offence consistently with the principles in Holder & Johnston, but observe that the sentences as they now stand are comfortably with the range of a proper sentencing response.

[39]

[28] I would allow the application and set aside the order and the re-sentence of 16 July 1999 in respect of the offence of 9 June 1998 in Indictment No 124 of 1999.

[40]

[29] WILLIAMS J: This application for leave to appeal against sentence arises in somewhat unusual circumstances which must be set out in some detail.

[41]

[30] On 17 June 1999 the applicant pleaded not guilty in the District Court at Cairns to a charge that on 9 June 1998 he indecently dealt with a child under the age of 12 years. Later that day the jury returned a verdict of guilty and the judge proceeded to impose sentence. The court was then informed that the applicant had been convicted in the Rockhampton Supreme Court on 14 September 1987 of three charges of indecently dealing with a girl under the age of 16, and one charge of attempted incest; that the girl involved in all charges was his 14 year old daughter, and that concurrent sentences of imprisonment had then been imposed, the longest being three years for the attempted incest.

[42]

[31] The offence for which the applicant was sentenced on 17 June 1999 involved him bringing his penis into contact with the lips of a nine year old girl. The girl lived with her mother next door to the applicant's residence and apparently he was a close trusted friend of the girl's mother.

[43]

[32] As noted by the learned judge in his sentencing remarks the applicant demonstrated a lack of remorse. That was evident from his plea of not guilty and from his tactic of accusing the girl of sexually molesting him.

[44]

[33] The learned judge also noted that for a time after the initial complaint was made the girl's mother apparently preferred the denials of the applicant. The judge concluded that portion of his remarks by saying:**

[45]

"You have persisted with that account today, requiring that little girl to undergo the severe emotional stress which was observable for everyone to see during the time she gave evidence this morning."

[46]

**[34] Reference was then made to the applicant's personal circumstances. He was born in Mossman on 24 April 1948 making him aged 51 at date of sentence. It was said that he was involved in his second marriage when this incident occurred. As a result of this matter coming to light his wife had left him taking the children with her. He had also lost his job.

[47]

[35] The learned sentencing judge noted that the applicant had "suffered greatly" but went on to say that he had "no sympathy" for him. No credit was given for any remorse, but credit was given "for the fact that apart from these two serious instances of misconduct, you appear to have been a useful, hardworking, law abiding citizen." Given the need for a deterrent sentence, the applicant was ordered to be imprisoned for 2 ½ years.

[48]

[36] Then on 16 July 1999 the applicant pleaded guilty before the same District Court Judge in Cairns to a charge that on a date unknown between 1 January 1993 and 1 April 1995 he unlawfully and indecently dealt with a child under the age of 12 years. The complainant in this case was a cousin of the complainant in the matter referred to above and at material times lived in the same house as that complainant. Again, the applicant was a close and trusted friend of this complainant and her mother. The facts relevant to this charge came to light after the offence previously mentioned was discovered.

[49]

[37] On the occasion in question the applicant was baby-sitting the complainant during the day. He sent other children away to have an afternoon nap and invited the complainant to come into his room. She did so and he locked the door. The girl was aged about six or seven years at the time. He encouraged her to remove her shorts but she kept her underpants on. They then lay on the bed together. He then undid the zipper of his jeans, exposed his penis to the child, and asked if she would kiss his penis. The child refused and became frightened. The applicant then placed his hand between her legs touching her vagina, but not penetrating her in any way. Thereafter the girl managed to get out of the room.

[50]

[38] In the course of submissions made by counsel for the Director of Public Prosecutions, the learned judge raised the fact that if the circumstances of this offence had been known to him at the time of the earlier sentence, that sentence may well have been somewhat greater. He queried as to how he should deal with the situation, mentioning the possibility of imposing a cumulative sentence. After some debate about that the prosecutor drew attention to the power of reopening the sentence pursuant to s 188 of the Penalties & Sentences Act 1992. I will refer to that provision in some detail later. Thereafter the learned sentencing judge indicated that he thought he could act under s 188 on the ground that there had been a "clear factual error". Counsel then acting for the applicant stated that he "would accept that". The judge then said he would proceed on that basis. Counsel for the applicant thereafter made submissions on the issue of the appropriate sentences for each of the offences then being considered.

[51]

[39] In his sentencing remarks on 16 July 1999 the learned judge said:**

[52]

"By reason of the prisoner's plea of guilty today it is the fact that as at 17 June 1999 he was guilty of an offence of a similar nature. In my view that is a very relevant fact and would have been a very relevant fact to the sentence to be imposed on the 17 June 1999. Having proceeded to sentence without having regard to such fact, in my view that sentence imposed on 17 June 1999 was decided on 'a clear factual error of substance'. Therefore pursuant to s 188 . . . I am empowered to reopen the sentence imposed on 17 June 1999 and I propose to do so. "

[53]

**[40] The learned judge then proceeded to give reasons relevant to the sentences he was about to impose. He pointed to the time lapse after the offences dealt with in 1987 but said it was relevant that there was a "close similarity" between all the offences. He spoke of the applicant attempting to corrupt the children. He spoke of the betrayal of trust. He then repeated some of the matters quoted above from his earlier sentencing remarks. Finally he indicated he would give the applicant credit for his plea of guilty with respect to the second offence which had saved the little girl from the emotional stress of giving evidence.

[54]

[41] For the offence for which the applicant was being resentenced imprisonment of three years was imposed. For the other offence imprisonment of 18 months was imposed with a direction that the sentences be served concurrently. A declaration was made that 29 days had already been served with respect to the sentences.

[55]

[42] At the request of the prosecutor the learned sentencing judge then made an order pursuant to s 19 of the Criminal Law Amendment Act 1945. That order was not challenged on the hearing of the application for leave to appeal.

[56]

[43] The application is based on two grounds. Firstly, that in the circumstances there was no jurisdiction to reopen the earlier sentence pursuant to s 188, and secondly, that a sentence of three years imprisonment was in all the circumstances manifestly excessive.

[57]

[44] In determining whether or not there was jurisdiction to reopen the sentence in the circumstances which existed here, it is necessary to consider in some detail the history of the law in Queensland relating to the reopening of a sentence.

[58]

[45] So far as the Supreme Court was concerned, judges had an inherent power to vacate a sentence within the criminal sitting in which the original sentence was imposed. The authorities relevant to that were discussed in R v Craig [1989] 2 Qd R 200. It would also appear that at that time judges of the District Court purported to exercise a similar inherent power; but in Attorney-General v Woodford [1999] 1 Qd R 244 the Court of Appeal (referring to Grierson v R [1938] HCA 45; (1938) 60 CLR 431) questioned whether the District Court had such an inherent power. So far as the Supreme Court is concerned (at least before 1992) there appears to be no doubt that during the currency of the judge's sittings an offender could be resentenced where the initial sentence had been based on an erroneous factual situation.

[59]

[46] Section 147A of the Justices Act 1886 gave a Magistrate power to reopen a sentence in certain circumstances; that section was in these terms:**

[60]

(b) fail to impose a penalty that is in conformity with the law,

[61]

they may, of their own motion or on the application of a party to the proceedings or a clerk of the court reopen the proceedings and after giving the parties an opportunity of being heard, amend the order made on the complaint and impose a penalty that is in accordance with the law.

[62]

(2) Where justices record a conviction or make an order that is based on or contains an error of fact, those justices or any other justices may, on the application of a party to the proceedings or a clerk of the court reopen the proceedings and after giving the parties an opportunity of being heard, set aside the conviction or vacate or vary the order in either case to conform with the facts.

[63]

(3) The powers conferred by sub-section (2) include power to set aside a conviction or vacate or vary an order where the justices are satisfied that-

[64]

(a) the conviction or order has been recorded or made against the wrong person;

[65]

(b) the summons issued upon the complaint originating the proceedings that resulted in the conviction or order did not come to the knowledge of the defendant;

[66]

(c) the defendant in the proceedings that resulted in the conviction or order has been previously convicted of the offence the subject of the complaint originating those proceedings."

[67]

[47] That section was the subject of two decisions of the Full Court; R v Williams ex parte Biggs [1989] 1 Qd R 594 and Boyd v Sandercock ex parte Sandercock [1990] 2 Qd R 26. In the former it was held that the section should not be interpreted as authorising a rehearing of proceedings on the merits. The court considered that the "type or scope of errors" referred to in sub-s (2) should be treated as "very limited"; the court at 594 said that "sub-s (3) points to the type or scope of errors referred to in sub-s (2) being very limited." In Boyd the court was concerned with a situation where the court was not informed as at the date of original sentence of the fact that the defendant had a prior conviction for a similar offence which would have necessitated a higher penalty. The Magistrate ordered that the proceedings be reopened but that order was quashed by the Full Court. Thomas J in delivering the judgment of the Court said at 29:

[68]

"I do not think that it can be held that a penalty is contrary to law merely because the prosecution has failed to prove a fact which would have led to a higher range of penalty becoming applicable, or a higher sentence being imposed."

[69]

**[48] So far as error of fact within sub-s (2) was concerned his Honour said that the question was answered by Williams "where it was held that the reference in that sub-section is to facts already before the court in the proceedings on the complaint". On that approach there was no error of fact in that case.

[70]

[49] Thus immediately before the Penalties & Sentences Act 1992 was passed the position in Queensland was that a judge of the Supreme Court had a limited inherent power to reopen a sentence, and a Magistrate had power to do so in accordance with s 147A of the Justices Act. Given what was said in Woodford it is doubtful that a judge of the District Court had any power to do so.

[71]

[50] Section 188 of the Penalties and Sentences Act as originally enacted was in these terms:**

[72]

"(1) This section does not apply to Magistrates Courts.

[73]

(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;

[74]

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

[75]

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

[76]

(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).

(4) The court may reopen the proceeding -

(a) on its own initiative at any time; or

(b) on the application of a party to the proceeding made within -

[77]

(i) 20 business days after the day the sentence was imposed; or

[78]

(5) Application for leave to make an application under sub-section (4)(b)(ii) may be made at any time.

[79]

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

[80]

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

[81]

(8) This section applies to a sentence imposed, or required to be imposed, whether before or after the commencement of this section."

[82]

**[51] One can readily see that that s 188 was based on s 147A of the Justices Act, though the wording of the two provisions was not the same. Conflict was avoided because s 188 applied to the Supreme and District Courts, whereas s 147A only applied to the Magistrates Court. The most important difference between the two sections was that s 188 did not confer (as did s 147A(2)) jurisdiction to reopen where there had been an error of fact.

[83]

[52] That last point was highlighted by the judgment of Thomas J in Deacon (1993) 65 ACrim R 261. There it was said at 263:**

[84]

"The jurisdiction to resentence arises in this case only if the sentence of 18 December was 'not in accordance with law' . . . The fact that the parties may have erred in placing those details before the learned sentencing judge as facts when they were not sustainable facts is really not to the point. The jurisdiction to proceed under s 188 exists only if there has been a legal error, and here the error is not of that kind."

[85]

**[53] In that case the defendant had been sentenced on the basis of producing more heroin than was established by the analyst's certificate which was not available until after sentence had been imposed.

[86]

[54] The original s 188 was next considered by the Court of Appeal in the unreported matter of R v Thorpy CA No 126 of 1995, 16 June 1995. In that case the offender was sentenced to imprisonment for the offence of robbery with actual violence whilst armed with a dangerous weapon. The sentencing judge ordered that the sentence be deemed to commence on a certain date but made no recommendation with respect to parole. Sometime later it became obvious that the sentencing judge had erred; in accordance with a requirement of the Penalties & Sentences Act he should have made a recommendation for parole because at the time of sentence the offender was serving a sentence of imprisonment for another offence. The parties went back before the judge and persuaded him to reopen the sentence pursuant to s 188 and make a fresh recommendation for parole. Counsel for the offender submitted that the sentencing judge should at that stage "take into account matters which had occurred since the original date of sentence." The learned judge declined to do so.

[87]

[55] On the appeal the critical question was whether or not matters which had occurred since the date of original sentence could be taken into account. The court noted that s 188 as it then stood was derived in part from s 147A which has been "construed on a number of occasions, including by the Full Court and this Court, as being limited to the correction of error or possibly also clarification of the order made; but not as allowing the admission of fresh evidence . . . Though either construction of s 188 is open no convincing reason was shown for departing from what appears to be a settled construction in this State of a provision which is not materially different. We would therefore conclude that the learned sentencing Judge was correct in refusing to admit evidence of facts which have occurred since the original sentence was imposed."

[88]

[56] The final relevant case on the original s 188 is Woodford; though not reported in the Queensland Reports until 1999 the judgment was delivered on 8 November 1996 and it is clear that it was based on the original provision. The Court of Appeal held that s 188 should be construed so as to oust any inherent jurisdiction of the District Court to reopen its sentencing process. The only jurisdiction which that court had to reopen was derived from s 188 which did not extend to the situation where the original sentence imposed was based on a misapprehension as to the facts. Relevantly the court said at 246:**

[89]

"It seems to us improbable that the legislature wished to preserve in parallel, so to speak, with the power of reopening given by s 188(2), a power to reopen on the ground of factual error a completed sentencing process . . . It is unlikely that the law relating to the time limits applicable to reopening for legal error should have been intended to be quite different from that applicable to reopening for factual error. More generally, one would have expected that, if s 188 was not intended to cover the whole ground of reopening a completed sentencing process on the ground of error of substance (other than in the Magistrates Court), there would have been some indication to that effect in the section, or elsewhere in the Act . . . It is desirable to add that the Penalties & Sentences Act 1992 might with advantage contain power to do what we have held, in this judgment, cannot presently be done. The Parliament might be asked to consider an amendment of s 188 so as to enable the correction of a sentence (within some suitable time limit), where the original sentence has been based on a clear factual error."

[90]

[57] Parliament responded promptly; on 3 April 1997 the Criminal Law Amendment Act 1997 received Royal assent. By Schedule 2 of that Act, s 147A of the Justices Act was repealed, and a new s 188 inserted in the Penalties & Sentences Act which applied to all courts. That new section was in these terms:

[91]

"(1) If a court has in, or in connection with, a criminal proceeding, including a proceeding on appeal-

[92]

(a) imposed a sentence that is not in accordance with the law; or

[93]

(b) failed to impose a sentence that the court legally should have imposed; or

[94]

(c) imposed a sentence decided on a clear factual error of substance;

[95]

the court, whether or not differently constituted, may reopen the proceeding.

[96]

(a) a court has in, or in connection with, a criminal proceeding reduced a sentence because the offender has undertaken in a written declaration to cooperate with law enforcement agencies in a proceeding about an offence, including a confiscation proceeding; and

[97]

(b) the offender, without reasonable excuse, does not cooperate under the undertaking;

[98]

the court, whether or not differently constituted, may reopen the proceeding.

[99]

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

[100]

(i) for a reopening under sub-section (1)(a) - to a sentence in accordance with law; or

[101]

(ii) for a reopening under sub-section (1)(b) - to a sentence the court legally should have imposed; or

[102]

(iii) for a reopening under sub-section (1)(c) - to a sentence that takes into account the factual error; or

[103]

(iv) for a reopening under sub-section (2)- to a sentence under sub-section (4); and

[104]

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

[105]

(a) if the court is satisfied that the offender has completely failed to cooperate, the court must resentence the offender having regard to the sentence that would otherwise have been imposed if an undertaking under s 13A had not been given; or

[106]

(b) if the court is satisfied that the offender has partly failed to cooperate, the court may substitute for the reduced sentence the sentence it considers appropriate, not greater than the sentence that would have been imposed if the undertaking had not been given.

[107]

(b) for a reopening under sub-section (1)- on the application of a party to the proceeding made within -

[108]

(ii) any further time the court may allow on application at any time; or

[109]

(c) for a reopening under sub-section (2)- on the application of the prosecution made at anytime, whether or not the appeal period under the Criminal Code section 671(2) has expired.

[110]

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

[111]

(7) For an appeal under any Act against a sentence imposed under sub-section (3) or (4), the time within which the appeal must be made starts from the day the sentence is imposed under sub-section (3) or (4).

[112]

(8) This section applies to a sentence imposed, or required to be imposed, whether before or after the commencement of this section."

[113]

**[58] The Explanatory Notes to that new section 188 refer to the inclusion of a specific provision dealing with the situation where an offender fails to live up to a written undertaking, and go on to say that "courts will also be able to correct sentences imposed which were decided on clear factual errors of substance."

[114]

[59] The Second Reading Speech (Hansard 4 December 1996 P.4876) makes a similar allusion; specifically the Attorney-General said:**

[115]

"With these inclusions a court will be able to take into account, in passing sentence, cooperation with authorities by accomplices and others. The court will also be able to reopen the sentence, even after the usual appeal period, if the person fails to cooperate, or if the court has acted on a clear factual error of substance."

[116]

**[60] It has been necessary to undertake that lengthy review of the law relating to the reopening of sentences because argument before this Court concentrated on authorities such as Williams, Boyd and Thorpy. Counsel for the applicant specifically contended that those authorities were relevant to the interpretation of the present s 188. Clearly that is not so. This is the first occasion on which this Court has been called upon to construe s 188 as inserted in 1997 and it is so different from its predecessor that the earlier authorities are in no way determinative of its proper construction. Indeed, the legislature appears to have revamped the section in order to overcome difficulties highlighted in the earlier authorities.

[117]

[61] The critical, and only, question for present purposes is whether or not the learned District Court judge in imposing sentence on 17 June 1999 acted on a clear factual error of substance. There is no doubt that as at that time he was not aware of the commission of an offence between 1 January 1993 and 1 April 1995; indeed at that time no such offence had been proven. Counsel for the respondent submitted to this Court that the facts establishing that earlier offence were in existence as at 17 June 1999, and because they were not put before the sentencing judge on that date he acted on a clear factual error of substance. On the other hand counsel for the applicant submits that the critical fact is the conviction for that earlier offence; that fact did not come into existence until 16 July 1999. If that was the decisive consideration then it could not be said that in imposing the first sentence the judge had acted on a clear factual error of substance.

[118]

[62] Counsel for the applicant also submitted that there were other ways (for example, by imposing a cumulative sentence) that the judge could have overcome the difficulties when imposing the second sentence on 16 July. It is true that then he would have been entitled to have regard to the overall criminality of the applicant's conduct demonstrated by three convictions for offences of indecently dealing with girls under 12. But it would be unusual to impose a heavier sentence because the court took into account conduct which occurred subsequently to the commission of the offence in question.

[119]

[63] Once the applicant pleaded guilty to the offence committed between 1 January 1993 and 1 April 1995 that meant that at all times after the event the facts constituting that offence were established and were relevant to the applicant's criminal history. Those facts were not before the sentencing judge on 17 June 1999 and therefore the sentence handed down on that date was predicated on a "clear factual error of substance". It is the fact that the earlier incident occurred rather than the timing of the conviction which is relevant to the sentence to be imposed for the 1998 offence. Once that factual error is established the judge was empowered by s 188 to reopen the sentence.

[120]

[64] The reasoning of Thomas JA amply demonstrates that a sentencing judge should not lightly exercise the power of reopening a sentence. Certainly the power should not be exercised where there was a significant time lapse between the sentencing procedures. But here the time lapse was not great, the reopening was not opposed by counsel for the offender, and there was a remarkable similarity between the offences. In those circumstances it was appropriate to exercise the jurisdiction and reopen in this case.

[121]

[65] Once it is established that the judge had jurisdiction then there appears to be no ground for interfering with his exercise of discretion. Indeed, counsel for the applicant did not make submissions to the contrary. It follows that the learned District Court judge was entitled to act under s 188 and to reopen the sentence imposed on 17 June 1999.

[122]

[66] That leaves for consideration the question whether or not a sentence of three years imprisonment for the offence committed on 9 June 1998 was, in all the circumstances, manifestly excessive. The basic contention of counsel for the applicant was that the original sentence imposed, namely two and a half years, was the appropriate one and that anything in excess of that was manifestly excessive.

[123]

[67] The court was referred to a number of authorities, but it is not necessary to refer to them in detail. Those authorities would suggest that three years imprisonment was at the top of the range for the offence committed on 9 June 1998 by a person with two prior convictions for similar offences. With respect to each of the three incidents a position of trust existed between the applicant and the complainant girl; one was his daughter and the other two regarded him as an uncle. Each of the two later offences involved the complainant's mother leaving the young girl with a person she believed to be a trusted friend. The two girls involved in the later offences were very young; each was under 10 years of age. Then there is the lack of remorse, referred to above, with respect to the offence of 9 June 1998.

[124]

[68] Despite the time lapse between the offence involving his daughter and the other two, the learned sentencing judge was entitled to conclude that there was a pattern about the applicant's conduct and that he constituted a threat to young girls.

[125]

[69] Taking all those matters into consideration, though the sentence is at the top of the range, I cannot persuade myself that it is manifestly excessive so that this Court would be justified in interfering.

[126]

[70] For all those reasons the application for leave to appeal against sentence should be refused.**

[127]

[2] [1990] 2 Qd R 26.

[128]

[3] [1989] 1 Qd R 594.

[129]

[4] (1993) 65 A Crim R 261.

[130]

[7] [1988] HCA 14; (1988) 164 CLR 465, 467; R v Hansen [1961] NSWR 929, (1961) 79 WN (NSW) 148; compare R v Aston (No 2) [1991] 1 Qd R 375.

[131]

[8] R v Hansen [1961] NSWR 929; Maxwell v DPP [1935] AC 309, (1934) 24 Cr App R 152.

[132]

[9] R v Sargeant (1974) 60 Cr App R 74; Barnfield v Calandro [1964] VicRp 98; [1964] VR 762; R v Campbell (1911) 6 Cr App R 131; compare Practice Direction [1966] 1 WLR 1184; [1966] 2 All ER 929; and Practice Direction [1993] 1 WLR 1459. Proof may be made under the Evidence Act 1977, s 53, which permits proof by means of a certificate of conviction under the hand of the registrar or proper officer of the court.