R v Maclean and Bannerman [2000] QCA 367

The applicant/appellant Maclean appeared on his own behalf

The applicant/appellant Maclean appeared on his own behalf

Legal Aid Queensland for the applicant/appellant Bannerman

Director of Public Prosecutions (Queensland) for the respondent

[1] McPHERSON JA: I agree with the reasons of Thomas JA in these two sentence applications and with the order that his Honour proposes in each case.

[2] THOMAS JA: There are two applications for leave to appeal against sentence which have been heard together.

[3] One is by Brett Stephen Maclean, a 37 year old man, and the other by Toni-Lee Bannerman, a 27 year old woman.

[4] The applicants pleaded guilty to a variety of offences, mostly relating to fraudulent conduct. Indictment 516 charged 10 offences against Maclean alone, namely six of fraud, one of attempted fraud and three of stealing. Indictment 517 charged the applicants jointly with a further 13 offences, 10 of fraud, one of attempted fraud and two of stealing. The sentences were imposed on 21 October 1999.

[5] The learned sentencing judge, Hall DCJ, sentenced Maclean to four years imprisonment on all the offences. As well he activated a part of a previous suspended sentence by ordering him to serve a further 12 months of the term that had been previously suspended, and ordered that that sentence should commence upon the expiration of the four year term. His Honour further recommended consideration of parole after a period of two years from the date of sentence and declared 273 days to have been already served.

[6] In Bannerman's case his Honour imposed a sentence of three years imprisonment. His Honour ordered that that sentence (which was imposed on all 13 counts) should "commence at the expiration of the time you have to serve pursuant to your breach of parole". His Honour further recommended consideration of parole on 20 December 2000. Bannerman had been sentenced in 1997 to five years imprisonment in respect of many offences of dishonesty and had been released on parole on 26 January 1998. Whilst on that parole she committed the present offences and the court was informed that the further convictions caused her parole to be cancelled and made her liable to serve the balance of that earlier sentence (Corrective Services Act 1988 s 187). A substantial portion of the earlier sentence remained to be served, namely two years and eight months at the time of the present sentencing.

[7] The offences in indictment 516 included Maclean's stealing of three trolley loads of electrical goods from the same Coles store on consecutive days. The property involved was worth $4,953 of which $3,853 was unrecovered. The fraud counts on that indictment involved using numbers on various documents found in rubbish bins including bankcard numbers, the ringing up of a supplier and ordering goods quoting the number and then arranging for collection of the items. The attempted fraud was in relation to a freezer, and the only apparent reason why it was not obtained was that he was arrested before it could be delivered.

[8] The charges the subject of the joint indictment reveal that both offenders used a similar method in a joint enterprise between June and September of 1998. The total value of the property in that indictment was $8,972 of which $5,972 remains unrecovered. The property involved included jewellery, a surfboard, a bicycle, an electronic keyboard and golf equipment. The vast majority of the goods were sold in order to finance a serious heroin addiction which they both had. One of the counts was described as accommodation fraud, and two of them were ordinary shoplifting offences involving the taking of electrical goods, on one of which occasion they left the store with a trolley of goods simply without paying for them.

[9] Unfortunately both applicants have serious criminal histories. Maclean's criminal history spans 20 years and ranges over three States. There are dishonesty offences over a wide spectrum including armed robbery, stealing, fraud, breaking and entering. He has served various terms of imprisonment up to five years in New South Wales. At the time of committing these offences he was liable to two sentences of imprisonment imposed on 23 July 1997 for multiple fraud offences. The terms were respectively three years and 18 months, to be served cumulatively, and both had been suspended after serving six months.

[10] Bannerman's criminal history is between 1991 and 1997, consisting mainly of offences of dishonesty. There are multiple offences of stealing, receiving, housebreaking, forgery, uttering, possession of tainted property, and unlawful use of motor vehicles. There are also minor drug offences and breaches of bail. As earlier indicated, she became liable to serve the balance of the five year term of imprisonment imposed on 23 June 1997 in respect of over 100 offences of dishonesty.

[11] The crimes were drug-driven and both offenders are entitled to favourable consideration by reason of their early pleas of guilty. The value of goods taken was not particularly high, but the repetition of the offences in the context of a man with a lengthy criminal history gave the court little option than to impose a relatively substantial sentence.

[12] A number of errors are said to be revealed on the part of the learned sentencing judge. Counsel for the Crown submitted that some ambiguity might result from his Honour's statement "I recommend that you be considered for parole at the expiration of two years from this date" as that might effectively deny the applicant the benefit of the 273 days pre-sentence custody in that respect. However, the formal order endorsed on the indictment has a recommendation for parole "after two years (of combined five year term)". We were informed that the Queensland Corrections authorities have indicated that the two years has been interpreted as two years from the commencement of the custody, and I do not think that any action is required from this court in relation to the abovementioned statement.

[13] More serious however is the consequence of the postponement of the taking effect of the one year of the suspended sentence until after the sentence of four years on the current charges. The recommendation for consideration of parole would take effect during the course of the initial sentence of four years. If parole were to be granted, he might be released before the commencement of the one year sentence. It seems to me that in recommending parole before the commencement of the new term under the suspended sentence the learned sentencing judge erred in law (compare R v Waters [1997] QCA 439; [1998] 2 Qd R 442). This particular problem could be avoided by reversing the sequence of the two sentences. In that event, in the absence of any further order, the automatic entitlement to consideration of parole would arise at the halfway mark of the combined sentences.

[14] There are however other errors which require more than this simple correction. His Honour imposed four years imprisonment in respect of all the offences before him. In doing so he imposed sentences in respect of attempted fraud counts beyond the maximum sentence of two and a half years available for those offences. That will have to be corrected.

[15] A further issue arises from the apparent oversight of the fact that two suspended sentences had been imposed on 23 July 1997, and the consequences of the applicant re-offending were dealt with only with respect to one of them. This leaves the applicant vulnerable to further action in respect of the 18 month sentence. There is no reason why both matters could not or should not have been dealt with at the same time, and it is undesirable that the appellant be left vulnerable in respect of the undetermined matter. In the circumstances, the appropriate solution seems to be to make a similar concurrent order with respect to that sentence that it be likewise activated for one year.

[16] The applicant submitted that shorter terms should have been imposed than those which his Honour indicated he intended to impose. However, I see nothing excessive in the particular terms proposed by his Honour either in respect of the suspended sentences or the sentences for the present offences, or with the intention that eligibility for parole should arise two years after the commencement of his custody on the present matters.

[17] I agree with the submission on behalf of counsel for the Crown that the intended effective sentence totalling five years imprisonment (four years plus one year) with a recommendation for parole eligibility after serving two years of the combined sentence was well within an appropriate range for the present matters.

[18] In order to achieve this result the following sentences should be imposed:

(a) that pursuant to s 147(1)(c) of the Penalties and Sentences Act the applicant serve one year of the suspended three year term imposed on 23 July 1997 in respect of 27 charges of false pretences, for the reasons here indicated;

(b) that pursuant to s 147(1)(c) of the Penalties and Sentences Act, the applicant serve one year of the suspended 18 month term imposed on 23 July 1997 in respect of 10 charges of attempted false pretences concurrently with the period mentioned in (a) above, for the reasons here indicated;

(c) that he be sentenced to four years imprisonment in respect of each of the fraud and stealing counts, and to a term of two years imprisonment in respect of the attempted fraud offences, concurrently with one another but cumulatively on the service of the suspended sentences;

(d) declare 273 days between 21 January 1999 and 21 October 1999 to be time already served in respect of the offences on which he is now sentenced;

(e) recommend that he be eligible to be considered for parole on 21 January 2001.

[19] His Honour recommended that Bannerman be considered for parole on 20 December 2000, apparently on the footing that she had only to serve another 56 days of the original sentence for which her parole had been cancelled. His Honour was of the view that she would serve out the 56 days of the old sentence and then that she should be eligible for parole after serving one year of the new sentence. This was incorrect. In fact she had a further two years and eight months to serve. The three year term that his Honour then proceeded to pass on the current matters was ordered to commence "at the expiration of the time that you have to serve pursuant to your breach of parole". The error was apparently the result of an inaccurate statement by counsel for the Crown in the proceedings before his Honour.

[20] In the event, the sentence imposed by his Honour did not reflect his Honour's intention, and this is conceded by counsel for the Crown on the appeal. The error was substantial. It may be noted in passing that this applicant did not obtain any credit for the 308 days spent in prison before sentence, as this counted as part of the service of the sentence for which parole had been cancelled.

[21] The background to the imposition of the current sentences is the automatic cancellation of parole on the former matters that is required by s 187 of the Corrective Services Act 1988. Although the parole on the earlier sentence has ipso facto been cancelled, it will not necessarily be the case that the offender serves the whole of that term, because the Corrective Services Board has power (under s 190(2) of the Corrective Services Act) to order that the prisoner serve part only of the unexpired portion of the term. Where the unexpired portion is lengthy (as it is in the present case) it may sometimes be the case that a requirement that the offender serve the whole of the unexpired period is itself an adequate punishment for the new offence. But, as mentioned, the court cannot know whether the offender will in fact be relieved to some extent from that consequence. The absence of any power in the courts to make a combined recommendation in relation to both consequences creates a difficulty. In such circumstances the court must pass what seems to be an appropriate sentence on the current offences knowing that it is possible but not necessarily the case that the offender will serve the whole of the earlier term.

[22] The consequences of s 187 of the Corrective Services Act may be more drastic than may be thought appropriate as the measure of a sentence appropriate for the new offence that has been committed. Obviously the loss of the benefit of parole is a consequence of the new offence, and it cannot be ignored by the sentencing court any more than other secondary disadvantages from the conviction such as loss of a profession, loss of a job, loss of the opportunity to travel or even physical injury consequential upon commission of the offence.

[23] The sentence of three years slightly exceeds the maximum balance under the previous term, and I do not understand it to be seriously contended by either party that this was inappropriate, provided of course it commences at the date of sentence. The difficulty arises in relation to the date, if any, which should be specified as the date for consideration of parole under that sentence. In the absence of any recommendation by the court, s 166(2) of the Corrective Services Act gives the applicant the right to seek parole on that sentence at the half-way mark, that is to say after 18 months. However his Honour's recommendation was for consideration of parole somewhat earlier than that, namely on 20 December 2000.

[24] The question arises whether the court has the power to make such a recommendation when such recommendation might fall short of the time the offender is required to serve under the earlier activated term. The decision of this court in McCormick[1] established that where the offender is sentenced to imprisonment in circumstances such as the present, any prior recommendations are cancelled by operation of s 187 of the Corrective Services Act, so that s 157(2) rather than s 157(3) of the Penalties and Sentences Act is the appropriate source of power to make any recommendation. Such a power is, of course, limited to a recommendation in respect of the sentence for the new offence. That the court has power to make such a recommendation is supported by R v Ho ex parte Attorney-General[2], although in that case the power was not exercised. In that case Davies JA (with whom McPherson and Thomas JJA agreed) observed:

"This court may make a recommendation in respect of the sentence which I would now impose (s 157(2)) but that could have no effect upon the respondent's eligibility for parole under the 10 year sentence the balance of which he would now be required to serve. I do not think therefore that any such recommendation would perform any useful purpose and accordingly I would not make one."[3]

In the present case it is by no means obvious that the giving of an early recommendation, say for consideration on 20 December 2000, would be futile or that it could not benefit the applicant. It is true that it would be of no benefit to the applicant unless the Community Corrections Board also sees fit to grant relief under s 190(2) of the Corrective Services Act in respect of the other term. But it cannot be assumed that the Board will not do so. On that footing, if the court declined to make the recommendation that it considers appropriate in respect of the present sentence, it would disadvantage the applicant and give her less than her entitlement to early consideration of parole on the present sentence. In my view, a recommendation by a court in circumstances such as the present is no less appropriate than the automatic entitlement which would otherwise arise under s 166(2) of the Corrective Services Act.

[25] I conclude therefore that despite the uncertainty as to whether the making of such a recommendation will in fact benefit the offender, a sentencing court may make the recommendation which it considers appropriate in relation to the time when parole ought to be considered in relation to its new sentence.

[26] In all the circumstances it is not unreasonable that Bannerman should be considered for parole at approximately the date mentioned by his Honour, and I do not understand the Crown to oppose a new sentence being fashioned which will achieve this.

[27] An alternative submission of counsel for the Crown was that a sentence of two and a half years imprisonment should be substituted on all matters, concurrent with the earlier sentences. On that basis the half-way mark at which she has a statutory right for consideration for parole would arise 15 months after the sentencing date, that is to say 21 January 2001. That however would put the applicant in a worse position in respect of consideration of parole than the original sentence, and of course there is no appeal brought by the Attorney-General.[4] The error is one that could be corrected by a re-sentencing as a result of an error of fact under s 188 of the Act. On such a proceeding the sentence might be increased, but the Crown has not sought to do this.

[28] Had his Honour been supplied with the true facts in relation to the period that this applicant would have to serve pursuant to s 187 of the Corrective Services Act it seems unlikely that his Honour would have imposed any sentence more unfavourable to the applicant than that which was imposed.

[29] As I understand the submissions of both parties there is no objection to the view that any substituted sentence should fix the same day as that which his Honour originally fixed.

[30] In the result the sentences imposed upon Bannerman should be as follows:

(a) Three years imprisonment in respect of each of the fraud and stealing charges and two years imprisonment (concurrent) in respect of the attempted fraud charge, concurrent with the term that Bannerman is now serving by reason by her breach of parole upon the offences for which she was sentenced in the Brisbane District Court on 23 June 1997;

(b) A recommendation for consideration of parole on the matters upon which she is now sentenced on 20 December 2000.

[31] Leave to appeal is granted in each case and the appeals are allowed. In Maclean's case the sentence below is set aside and replaced with that stated in para [18] above. In Bannerman's case the sentence below is set aside and replaced with that stated in para [30] above.

[32] ATKINSON J: I agree with the reasons of Thomas JA and the orders that he proposes.

[1] R v McCormick ex parte Attorney-General [1999] QCA 354, 27 August 1999.

[2] [2000] QCA 283, 21 July 2000.

[4] cf Neal v The Queen [1982] HCA 55; (1982) 149 CLR 305.