Court of Appeal (Qld)|2008-03-20|Before: McMurdo P, Holmes JA and Mackenzie AJA, Separate, reasons for judgment of each member of the Court, each concurring as to the, orders made
McMurdo P, Holmes JA and Mackenzie AJA, Separate, reasons for judgment of each member of the Court, each concurring as to the
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION
– APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED
PERSONS –
APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – GENERALLY –
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION– APPEAL AGAINST SENTENCE – APPEAL BY CONVICTEDPERSONS –APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – GENERALLY –where applicant sentenced to threeand a half years imprisonment for fraud witha circumstance of aggravation – where sentence to be cumulative on a 12monthsentence previously imposed in the Magistrates Court for offences ofdishonesty committed whilst on bail – whether sentencingjudge hadsufficient regard to the principle of totality – whether sentencerepresented the total criminality of the offences– whether sentencemanifestly excessiveCRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION– APPEAL AGAINST SENTENCE – APPEAL BY CONVICTEDPERSONS –APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – GENERALLY –where applicant sentenced to three
and a half years imprisonment – where
sentence to be served concurrently with the balance of a suspended sentence
– where
applicant had served 12 months imprisonment before the sentence
was suspended – where sentencing judge reduced the head sentence
by 12
months to account for time already served under the partially suspended sentence
– whether sentencing judge should have
made greater allowance for time
already served
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION
– APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED
PERSONS –
APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – GENERALLY –
where sentencing judge set parole
eligibility date at half the overall total of
the sentences – whether process of calculating the parole eligibility date
miscarried
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION
– APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED
PERSONS –
APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – GENERALLY –
where applicant had spent
13 days in custody awaiting sentence by the
District Court – where need to declare that period as time served was
overlooked
at sentencing – whether that period should be declared as time
already served
Penalties and Sentences Act 1992 (Qld), s 151A, s 159A,
s 160E
R v Alexander [2004] QCA
11
CA No 331 of 2003, 13 February 2004, distinguished
R v
Wishart and Jenkins [1994] 2 Qd R 421
[1993] QCA
563, distinguished
Judgment (40 paragraphs)
[1]
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN REFUSED - GENERALLY - where applicant sentenced to three and a half years imprisonment for fraud with a circumstance of aggravation - where sentence to be cumulative on a 12 month sentence previously imposed in the Magistrates Court for offences of dishonesty committed whilst on bail - whether sentencing judge had sufficient regard to the principle of totality - whether sentence represented the total criminality of the offences - whether sentence manifestly excessive
[2]
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN REFUSED - GENERALLY - where applicant sentenced to three and a half years imprisonment - where sentence to be served concurrently with the balance of a suspended sentence - where applicant had served 12 months imprisonment before the sentence was suspended - where sentencing judge reduced the head sentence by 12 months to account for time already served under the partially suspended sentence - whether sentencing judge should have made greater allowance for time already served
[3]
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN GRANTED - GENERALLY - where sentencing judge set parole eligibility date at half the overall total of the sentences - whether process of calculating the parole eligibility date miscarried
[4]
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN GRANTED - GENERALLY - where applicant had spent
[5]
13 days in custody awaiting sentence by the District Court - where need to declare that period as time served was overlooked at sentencing - whether that period should be declared as time already served
Director of Public Prosecutions (Queensland) for the respondent
[10]
[2] HOLMES JA: I agree with the reasons of Mackenzie AJA and the orders he proposes.
[11]
[3] MACKENZIE AJA: The applicant seeks leave to appeal against sentences imposed in the District Court on 10 September 2007. He was sentenced to imprisonment for three and a half years for false pretences with a circumstance of aggravation that the amount obtained exceeded $5,000. The sentence was ordered to be cumulative on sentences of 12 months imposed in the Magistrates Court at Beenleigh on 14 August 2007. It was also ordered that he serve the whole of the balance of a suspended sentence (two years six months) imposed on 26 May 2006 concurrently with the three and a half year sentence. A parole eligibility date of 30 November 2009 was set.
[12]
[4] The context of the sentencing, which is somewhat unusual, has been contributed to by the applicant's conduct as a repetitive fraudster. He is now 62 years of age. His criminal history for such offences began in 1966. He has been dealt with on about 20 separate occasions for offences of false pretences and other forms of dishonesty over the years (often involving multiple offences) and has served terms of imprisonment for some of them.
[13]
[5] The partially suspended sentence activated had been imposed on 26 May 2006 by the same District Court Judge who imposed the present sentence. There were seven offences on that occasion, five of fraud and two of stealing, committed in 2003 and 2004. The money involved was over $28,000 including one amount of $20,000 obtained from a victim. Although the sentencing judge was sceptical about a promised offer to repay the monies owing, he ordered restitution. Restitution was not made. When he completed the 12 months period of custody on 25 May 2007, he remained in custody awaiting sentence for a further offence of fraud, listed for sentence on 7 June 2007. The period of 13 days was attributable only to that offence. The need to declare that period as time served in respect of the offence was mentioned on 7 June 2007, but was apparently overlooked when the applicant was finally sentenced on 10 September 2007.
[14]
[6] The applicant was also sentenced by a Magistrate on 18 July 2006 to three months imprisonment, cumulative on the District Court sentence, for stealing and passing a valueless cheque (involving a total of $2,700) committed in September 2005. On appeal, the same District Court Judge involved in the present matter ordered that the cumulative component of the sentence be served concurrently. This conviction is referred to merely for completeness, since it does not have any bearing on issues to be decided in this application.
[15]
[7] The indictment in this matter contained a count of fraud involving three complainants, committed between 1 January 2006 and 30 May 2006. The offences resulted in the applicant obtaining $23,550 in cash. The pretence practiced on each complainant was that the applicant had an uncle in Japan through whom he was able to import motor vehicles and machinery. The money obtained consisted of deposits paid for items. The applicant told the victims that it would take some months for them to arrive. When they inquired about receiving what they had ordered he told them that the items had arrived in Australia but were held up. Eventually, the police became involved and he was charged.
[16]
[8] The matter was listed for sentence on 7 June 2007 but was adjourned by the sentencing judge because of submissions that, firstly, the applicant's mother had died while he was in prison, leaving a not insignificant estate, and, secondly, his de facto wife was dying of cancer and needed his assistance. This submission was supported by a medical report saying she was undergoing chemotherapy, but with little other information about her prognosis. After hearing evidence from the applicant as to his assets, which he said also included motor vehicles and other items, the sentencing judge was persuaded that the prospect of the complainants obtaining restitution was important. He adjourned the sentence to the next sitting, in September 2007, and granted the applicant bail.
[17]
[9] While on this bail, the applicant had, within three weeks, dishonestly obtained a grease gun and cartridges for it valued at about $378 by telling the victim that his credit cards and money had been stolen in a burglary and that he would come in to pay in the near future when the replacement credit cards arrived. Then, on 31 July 2007, he obtained a motor vehicle by passing a valueless cheque for $5,307 and attempted to obtain another vehicle by means of a related transaction involving another valueless cheque. The cheque involved was $32,227 but since in this instance the vehicle had not been handed over, the victim suffered no loss. These were the offences for which imprisonment for 12 months was imposed on 14 August 2007 and upon which the present sentence was made cumulative.
[18]
[10] The present matter was re-listed for sentence on 10 September 2007. The sentencing judge's reasons disclose that his methodology in imposing the sentences was as follows. If he had dealt with the offences finalised on 26 May 2006 and the present offences at the same time, he would have sentenced on the basis that the loss caused by both series of offences was twice as much as for those dealt with on 26 May 2006. He considered the proper sentence on that assumption would have been four and half years imprisonment, probably suspended after about one third of that period. But because he had served 12 months of that period by the time the present matter came on for sentence, a sentence of three and half years would be appropriate for the present offences.
[19]
[11] The whole of the balance of the suspended sentence would be ordered to be served, but concurrently with the sentences imposed for the present offences. Because he had been subsequently convicted of other offences of dishonesty, but sentenced in the Magistrates Court before the present matters were dealt with, the sentences he was imposing should be served cumulatively on the Magistrates Court sentence. The parole eligibility date would be fixed at about one half of the sentences being served. The date he fixed was 30 November 2009 which is close to the halfway point of the total sentences imposed by him on the day of sentencing.
[20]
[12] By deducting, according to the way the sentence was arrived at, one year from the notional head sentence because that period had already been served, the effect would be that parole for the offences would be available six months earlier than if a reduction of 12 months had not been made.
[21]
[13] It is plain from the sentencing remarks that the sentencing judge was of the view that, had all the District Court matters been dealt with together at a time before the offences dealt with in the Magistrates Court had been committed, a benefit of parole eligibility would have been given at about one third of the sentence. That would have given the kind of benefit commonly given for pleading guilty. The sentencing judge did not expressly explain in his sentencing remarks why, instead, he chose a parole eligibility date of about the half point of the sentence. However, it would not be surprising if, by the time the present sentences came to be delivered, the sentencing judge had formed the view that any benefit that there may otherwise have been from the plea of guilty had been dissipated by the applicant. He had made an unfulfilled offer to make restitution to support an adjournment of his sentence on 7 June 2008. He had committed further offences while on bail after he had obtained the adjournment.
[22]
[14] It was open to sentence him on the basis that any element of remorse in the true sense of the word that may have ordinarily been attributable to the plea of guilty and any notion that he was cooperating in the administration of justice had been proven false by his subsequent conduct. In the circumstances, this is one of those cases with unique elements which meant that it was not a manifestly excessive outcome, even though there had been a plea of guilty, for the parole eligibility date to be fixed, as it was, at about half the effective period of imprisonment.
[23]
[15] The applicant argued that the sentence should be set aside on three grounds. In summary, they are the following:
[24]
1. The sentencing judge did not have sufficient regard to the principle of totality insofar as it concerned the 12 month sentence imposed in the Magistrates Court;
[25]
2. The sentencing judge erred in extending the earliest release date from
[26]
3. Alternatively to ground two, the sentencing judge erred in allowing only
[27]
12 months reduction in the notional head sentence for the purpose of taking account of the 12 months already served under the partially suspended sentence.
[28]
[16] It was expressly conceded in the written submissions that the sentence could not be described as "crushing". The flaw was said to be that it did not fairly represent the total criminality involved in all of the offences to which the total period of imprisonment actually served was attributable. The submission was that, in addition to taking into account the 12 months already served under the suspended sentence, there should also have been a further reduction by way of moderation of the effect of the Magistrate's Court sentence. There is no substance in this submission, given the sequence of events in the context of the applicant's history. When he was sentenced for the present offences, he was obliged to suffer no additional punishment for the breach of suspended sentence in practical terms, because the activated portion of it was to be served concurrently with the longer sentence for the present offences. Given the applicant's long history of dishonesty, his persistent offending (which was not of a minor nature), and his disregard of the consequences of the suspended sentence and his obligations under his bail, it was a case where a substantial component of personal deterrence was called for. It was not, in my view, manifestly excessive for the learned sentencing judge to impose a nominal head sentence of four and a half years, which he then moderated by 12 months to allow for the fact that 12 months of the term he considered appropriate, had the sentences been imposed at the same time, had already been served because the sentences had actually been imposed at different times.
[29]
[17] It was in accordance with principle to make the present sentences cumulative on the Magistrates Court sentence. There is no reason in principle why the head sentence was required to be shortened to take account of the sentence in the Magistrates Court. As previously noted, it was not submitted that the overall sentence was crushing. I am not persuaded that the overall effect of the sentence is manifestly excessive in all the circumstances. It represented, in my view, an appropriate assessment of the total criminality involved in the offences, having regard to the applicant's antecedents.
[30]
[18] I will defer the issue of the parole eligibility date until later. It is convenient next to deal with ground 3.
[31]
[19] This ground is based on the proposition that, if the sentencing judge constructed the sentence by taking into account the 12 months served before the sentence was suspended, he should have made greater allowance than 12 months for time already served. It was submitted that he should have either reduced the head sentence by two years or reduced the parole eligibility date by 12 months. Reliance was placed on R v Alexander [2004] QCA 11, in particular the discussion by Williams JA, at paragraphs [16] to [18], of possible approaches to the issue in light of the terms of the Penalties and Sentences Act 1992 (Qld), and the discussion of related provisions, now repealed, in R v Wishart and Jenkins [1994] 2 Qd R 421; [1993] QCA 563.
[32]
[20] In the present case, the time for which the applicant seeks special consideration is time he was obliged to serve and had served under a partially suspended sentence imposed upon him. He had no eligibility for parole in respect of the time served before suspension (Penalties and Sentences Act 1992 (Qld), s 151A). His subsequent offending behaviour caused the unserved balance of the sentence to be activated, concurrently with a longer sentence. The discussion in Alexander and in Wishart and Jenkins is concerned with ways in which the benefit of time already served on remand that is not required to be taken into account as time already served because it is not within the scope of the relevant section of the Penalties and Sentences Act 1992 (Qld) (now s 159A) may nevertheless be extended to the offender.
[33]
[21] The same considerations do not apply to the facts of this case. What the sentencing judge did to allow for such time was to reduce the notional head sentence that he considered would have represented total criminality for the offences for which he received the partially suspended sentence and the later District Court offences, had the offences been sentenced together. That reduced the non-parole period by six months. Therefore, the only complaint the applicant may have is that that outcome requires him to spend more time in custody than he should. There is no substance in the submission that a further reduction should have been made in the head sentence by analogy with the cases concerning time spent on remand.
[34]
[22] There was also a rather complex submission, the focal point of which was the fixed parole release date in respect of the Magistrates Court sentence, 14 December 2007. It was used as the starting point for the purpose of submitting that the sentencing judge had, in the circumstances of the case, added too much to the period to be served before parole eligibility became available on 30 November 2009. It was acknowledged that the breaches of suspended sentences must be seen to have consequences, but it was submitted that requiring the applicant to serve the additional non-parole time was manifestly excessive.
[35]
[23] The difficulty with approaching the question by reference to the previous fixed release date is that, under s 160E of the Penalties and Sentences Act 1992 (Qld), the release date given in the Magistrates Court was automatically cancelled when the sentences were imposed in the District Court. Except for the issues that he may have been deprived of the benefit of his plea of guilty in the Magistrates Court and whether allowance was made, in fixing the new date for parole eligibility, for service of almost one month of the Magistrates Court sentence prior to the sentence in the District Court, the previous fixed parole date is only an indicator in assessing whether the applicant has suffered an undue disadvantage in the process of calculation of the new parole eligibility date.
[36]
[24] The date of 30 November 2009 fixed by the sentencing judge is slightly less than half of four and one half years from the date of the District Court sentence and slightly more than half of it from the date of sentence in the Magistrates Court. In my view, the principle applied by the sentencing judge would not result in an outcome that was manifestly excessive. But in my view, the process of actually calculating the new parole release date miscarried in the respects below, and must be corrected.
[37]
[25] Had the applicant been liable to serve only the Magistrates Court sentence, he would have finished his period in custody four months after it was imposed. Fixing the new parole date at one half the overall total of the sentences means he would spend an extra two months attributable to that 12 month sentence in custody. Allowance should have been made for this in fixing the new non-parole period. In addition, he had already spent a little under one month in custody serving the Magistrates Court sentence by the time he was sentenced in the District Court. The time to be taken as time already served under the three and one half year sentence should also be factored in to the parole eligibility date. It is appropriate to adjust the parole eligibility date fixed by the sentencing judge to allow for these factors. The proposed date does not depart significantly from the sentencing judge's intention, and would do justice to the applicant by accommodating the matters discussed.
[38]
[26] For the reasons previously given, I would make no further reduction for the 12 months served before the partial suspension of the sentence imposed on 26 May 2006. The applicant was not entitled to any eligibility for parole in respect of it and reduction of the appropriate head sentence for the offences dealt with on 10 September 2007 by the same period made allowance for that time.
[39]
[27] I would grant leave to appeal, and allow the appeal only to the extent of setting aside the parole eligibility date of 30 November 2009 and substituting in lieu a parole eligibility date of 1 August 2009. I would declare that 13 days from 26 May 2007 to
[40]
7 June 2007 be taken to be time already served under the sentence of three and one half years imprisonment imposed on 10 September 2007. In other respects, the sentence imposed on 10 September 2007 is confirmed.