R v Powderham [2001] QCA 429

FILE NO/S: CA No 72 of 2001 / SC No 454 of 2000

DIVISION: Court of Appeal

PROCEEDING: Sentence Application

ORIGINATING COURT: Supreme Court at Brisbane

DELIVERED ON: 12 October 2001

DELIVERED AT: Brisbane

HEARING DATE: 27 September 2001

JUDGES: McPherson JA, Chesterman and Douglas JJ / Separate reasons for each member of the Court, each concurring as to the orders made

ORDER: Application and appeal allowed, to the extent only of deleting the declaration that the applicant’s conviction or sentence on 9 March 2001 was of or for a serious violent offence

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – GENERALLY – whether the sentencing Judge was required to make a declaration that the conviction was a conviction of a serious violent offence under the Penalties and Sentences Act 1992 (Qld) / Corrective Services Act 1988 (Qld), s 166(1), s 187(1), s 190(1) / Penalties and Sentences Act 1992 (Qld), s 156A(2), s 161A, s 161B, s 161C. / R v Collins [2000] 1 Qd R 45, considered

COUNSEL: J M McLennan for the applicant/appellant / D Meredith for the respondent

SOLICITORS: Legal Aid Queensland for the applicant/appellant / Director of Public Prosecutions (Queensland) for the respondent

McPHERSON JA: So far as relevant here, the applicant was originally sentenced on 24 February 1998 to a term of imprisonment for 3 years with a recommendation for parole after 12 months. The offences for which he was sentenced on that occasion were numerous and included two or possibly three counts of burglary or cognate offences included in the schedule to the Penalties and Sentences Act 1992. As it happened, he was not released on parole until 19 July 1999, and it was while he was on parole that on 27 September 1999 he committed the offences of arson and manslaughter which now bring him before this Court.

Having then been taken into custody, the applicant’s parole was suspended on 5 October 1999, when the prison authorities treated him as having recommenced the sentence imposed on 24 February 1998. On 9 March 2001, he was brought before the Supreme Court and sentenced on pleas of guilty to manslaughter and arson to concurrent terms of imprisonment of 9 years and 4 years respectively. The effect of the convictions for those two offences was, under s 187(1) of the Corrective Services Act 1988 (which then still applied), to cancel his parole. Section 190(1) of that Act provided that no part of the time between the applicant’s release on parole and his recommencing service of the unexpired portion of his term of imprisonment (except for the period in detention following suspension of his parole) should be regarded as time served in respect of that term. The effect of the exception was that the whole of his period in custody from the time of suspension of his parole on 5 October 1999 fell to be regarded as time served under his original sentence of 3 years. When on 9 March 2001 he was sentenced to the further term of imprisonment of 9 years for manslaughter, the original sentence of 3 years was due to expire on 3 April 2001. In response to s 156A(2) of the Penalties and Sentences Act 1992, the sentence of 9 years was ordered to be served cumulatively upon the balance of the original 3 year sentence, of which less than a month then remained.

There matters might have rested had it not been that, on the submission of the Crown, the learned sentencing judge also declared that the sentence was one in respect of a serious violent offence. Strictly, both ss 161B(1) and 161B(3) speak not of the sentence but of the conviction being of a serious violent offence; but the meaning of the declaration is clear. Her Honour made it plain that it was made only because she considered that it was required by the provisions of s 161C of the Penalties and Sentences Act 1992, and that, without those provisions, she would not have made it. This application is designed to test the correctness of her primary conclusion to that effect. No challenge is made by the applicant to the appropriateness of the sentence in any other respect.

Section 161C, which is headed Calculation of number of years of imprisonment, is, so far as material, in the following terms:

“161C(1)This section applies for deciding whether an offender is sentenced –

under section 161A(a) – to 10 or more years imprisonment (the “specified years” of imprisonment; or

under section 161B(3) – to 5 or more, but less than 10, years imprisonment (also the “specified years” of imprisonment);

for an offence –

against a provision mentioned in the schedule; or

…

An offender is sentenced to the specified years of imprisonment if -

…

the term of imprisonment to which the offender is sentenced for the offence is part of a period of imprisonment of the specified years imposed on convictions consisting of the conviction on which the offender is being sentenced and any 1 or more of the following –

a conviction of an offence mentioned in subsection (1)(c) …

a conviction declared to be a conviction of a serious violent offence under section 161B.

For subsection (2), whether the offender is sentenced to the specified years of imprisonment must be calculated as at the day of sentence.”

The section is far from being a model of drafting lucidity. However, its function is, as the heading to it tends to suggest, to enable the number of years of imprisonment to be “calculated” in sentencing for an offence primarily against a provision mentioned in the schedule to the Act. Manslaughter is such an offence, so that s 161C was apparently relevant on sentencing the applicant on 9 March 2001. The significance of including an offence in the schedule lies in the provisions of s 161A and their impact on the proportion of the sentence that must be served by a prisoner before becoming eligible for release on parole. Speaking generally, eligibility for release on parole does not arise until the prisoner has served half of the term of imprisonment to which he was sentenced: see Corrective Services Act 1988, s 166(1)(d). However, if the term of imprisonment being served is for “a serious violent offence”, parole eligibility is deferred until he has served 80% of that term, or 15 years, whichever is less: Corrective Services Act 1988, s 166(1)(c).

Whether an offender is convicted of a serious violent offence falls to be determined under s 161A of the Penalties and Sentences Act 1992. So far as relevant here, it has that consequence if the offender is convicted of an offence against a schedule provision and is sentenced to 10 or more years imprisonment for the offence “calculated under section 161C”. See s 161A(a). An alternative is provided in s 161A(b), which applies if the offender is on conviction declared to be convicted of a serious violent offence under s 161B(3) or s 161B(4). The distinction between the two principal alternatives in s 161A is given meaning and effect in s 161B. Under that provision, the court must declare it “as part of the sentence” to be a conviction of serious violent offence if the offender is convicted of a serious violent offence under s 161A(a); that is, if it is a schedule offence and the sentence is imprisonment for 10 years or more. In that case a declaration is mandatory. Otherwise it is discretionary. Under s 161B(3), if the sentence of imprisonment “calculated under section 161C” imposed for a schedule offence is 5 years or more, but less than 10, the sentencing court may, “as part of the sentence” declare the offender to be convicted of a serious violent offence. As a further alternative under s 161B(4), such a declaration may, stating it briefly, be made even if the offence is not a schedule offence, provided it involved the use or attempted use of serious violence against a person and it attracted a sentence of imprisonment.

There are therefore three sets of circumstances in which such a declaration may ensue. One is where the offence is a schedule offence that attracts a term of imprisonment of 10 years or more, in which event the declaration is mandatory. The second is where a schedule offence is visited with a sentence of imprisonment in the range of 5 to less than 10 years. The third is where, although not a schedule offence, but one involving the use or attempted use of serious violence, the offence (or, rather, the offender) is punished by a sentence of imprisonment and the court makes the relevant declaration. In those two cases, the making of the declaration is discretionary.

At first sight, this leaves out of account a possible combination of offences and sentences which may, under the philosophy implicit in those sections, be thought to merit treatment as serious violent offences. For example, a sentencing judge might be confronted with, say, two schedule offences. He or she might impose a total sentence of 12 years imprisonment on both, without apportioning the period of imprisonment between them. In such a case, it would not be possible to say that the sentence for either of those offences had attained or exceeded the 10 year barrier in s 161A, or, in consequence, that a declaration of a serious violent offence was mandatory under s 161B(1). The prison authorities would not be able to determine whether the prisoner was eligible for parole at the half way mark, or only after serving 80% of the total sentence of 12 years. Another case in which a similar problem might arise is where cumulative sentences of 4 years were imposed on an offender in respect of each of three schedule offences. Considered individually, none of those three sentences would satisfy the terms of s 161B(3) because none of them equalled or exceeded the 5 year minimum prescribed in that subsection. It would follow that, approached in that way, a declaration would not be authorised under that particular provision.

No doubt it is possible to conceive of many other permutations and combinations of sentences in which questions of this kind could arise. That, I consider, is why s 161A(a)(ii) and s 161B(3)(b) speak of a sentence of 10 or more years imprisonment, or 5 or more years (but less than 10), being “calculated under s 161C”. With examples like those in mind, it is possible to return to s 161C itself. Little about it is clear except that it is concerned with calculating or, as the section itself says, “deciding”, whether an offender is sentenced to what is called the specified years of imprisonment, which may be a term of either: (a) 10 or more years; or (b) 5 or more but less than 10 years, for an offence against a provision mentioned in the schedule. With the aid of the Acts Interpretation Act 1954, the word “offence” in s 161B and in s 161C will presumably take on its plural form, thus giving colour to some of the illustrations I have suggested. When one turns to s 161C(2), its effect is that the offender is to be regarded (or “decided”) as being sentenced to the specified 10 year or, as the case may be, 5 year minimum if the term of imprisonment for the offence is “part of a period of imprisonment” imposed on convictions consisting of: (1) the conviction on which the offender is being sentenced, and (2) any one or more of the following: (i) a conviction of an offence mentioned in s 161C(1)(c); and (ii) a conviction declared to be a conviction of a serious violent offence under s 161B. As to (i), the offence mentioned in s 161C(c) is a schedule offence. As to (ii), it is an offence which, although not a schedule offence, is one that under s 161B(4) is declared to be a serious violent offence.

To simplify matters, it is convenient here to limit attention to schedule offences. For s 161C to operate in “calculating” whether a person is sentenced to imprisonment for 10 or more years, or to imprisonment for 5 or more (but less than 10) years, there must be two or more schedule offences. It is only when the sentences imposed for those offences add up to a total of one or other of those specified years of imprisonment that s 161C comes into play. It is on or in this process of aggregation that s 161C(3) is designed to operate. It provides:

“(3) For subsection (2), whether the offender is sentenced to the specified years of imprisonment must be calculated as at the day of sentence”.

As to this, I agree with Mr McLennan’s submission for the applicant that s 161C(3) operates as a limiting provision. Requiring the calculation to be made “as at the day of sentence” is in my opinion intended to restrict it to a sentencing that is taking place on a particular day, and not to include a sentence or sentencing that has already taken place on some other occasion. It is true that s 161C(3) uses the expression “calculated as at”; but that is a reference back to the word “calculated” under s 161C in s 161A(a)(ii) and in s 161B(3)(b), and in both of the corresponding or related provisions in s 161B(1) and s 161B(3) the declaration (whether mandatory or discretionary) is stated to be made as “part of the sentence”.

It is quite possible for anyone or everyone to be wrong about these matters. Section 161C(2)(b)(i) and (ii) speak simply of “convictions” of the kind specified rather than of sentencing on convictions of that kind. But if they are not directed to sentencing on those convictions, it is not easy to see what function s 161C(3) is designed to serve. Why bother to say that the calculation is to be made “as at the day of sentence” if the intention was to permit sentences on convictions at any time in the past to be aggregated in the calculation? And why stop at sentences which have not already been served in full? In the present case, the applicant had a little more than a month of his original 1998 sentence to serve. It would seem arbitrary, not to say harsh, if, because of that, his sentence of 9 years imprisonment for manslaughter now has to be added to the 3 years imposed for the schedule offences and others for which he was sentenced in 1998, so as to require him to serve 80% of the aggregate of those two sentences before becoming eligible for parole, even after he has already served almost the whole of the 3 year sentence.

The fact is that it is not possible to arrive with any real confidence at a firm conclusion about the scope and meaning of s 161C except perhaps in the case of the examples mentioned in para [8] of these reasons, and possibly some others that can be conceived of. It is certainly not clear that, in calculating the specified years of imprisonment, s 161C aims to bring into account sentences imposed for schedule offences in the past. If that had been the intention, it could have been expressed in language much clearer than that used in s 161C. As regards earlier sentences still being served at the time the sentence calculation falls to be made under s 161C, the provisions of s 156A(2) already provide that the new sentence must be ordered to be served cumulatively upon any other term of imprisonment which the offender is liable to serve. That is a specific provision which expressly states the extent to which an existing sentence is to be taken into account. There is no compelling reason for compounding it with s 161C to produce a deferment of parole to the 80% mark.

In solving this legislative conundrum, I do not think that much assistance is to be gained from the definition of “term of imprisonment” in s 4 of the Penalties and Sentences Act 1992, or from the definition of “period of imprisonment” in that section. The expression “term of imprisonment” means primarily “the duration of imprisonment imposed for a single offence”. It is not clear how it would apply in conjunction with s 161C in a case where a single unapportioned head sentence of imprisonment was imposed for a number of offences some of which are, and others are not, schedule offences. The truth is that the precise scope and effect of s 161C are uncertain and ambiguous, while the effect of s 161B or a declaration under it is penal and prejudicial to the liberty of the person being sentenced: see R v Collins [2000] 1 Qd R 45, 56. In those circumstances, the ambiguity ought to be resolved against, rather than in favour of, an interpretation that gives a wider and more extensive operation or effect to s 161C.

In the present case the applicant was sentenced to a term of imprisonment of 9 years for manslaughter, which is a schedule offence. The sentence of 4 years for arson, which is not a schedule offence, was ordered to be served concurrently. He was not convicted of or sentenced for any other offences, scheduled or otherwise, on that day, and her Honour deliberately refrained from making a declaration under s 161B(3) in respect of the manslaughter offence. There were as at that day no other convictions on which such a declaration might have been made or by means of which the aggregate sentence might have been calculated. The convictions for which the applicant was sentenced in 1998 were, I consider, not convictions within the terms of either s 161C(2)(b)(i) or (ii). The learned sentencing judge was therefore not required by s 161C to bring them into the calculation of the sentence being imposed on 9 March 2001, or to declare that, because of them, the applicant was convicted of a serious violent offence.

I would allow the application and appeal to the extent only of deleting the declaration that the applicant’s conviction or his sentence on 9 March 2001 was of or for a serious violent offence.

CHESTERMAN J: I have read the draft reasons for judgment prepared by McPherson JA. I agree with what his Honour has written and with the orders proposed.

DOUGLAS J: I agree with the reasons of McPherson JA and with the order he proposes.