R v Robinson; ex parte A-G [1998] QCA 107

The two grounds are interconnected, in that the suggestion that the recommendation for parole was invalid depends entirely upon the first ground being accepted; both grounds require consideration of the effect of the Penalties and Sentences (Serious Violent Offenders) Amendment Act 1997 (the 1997 Act), which came into force on 1 July 1997.

There is, however, another question of construction involved and that is whether the recommendation the judge made is authorised by s. 157(2) of the 1992 Act, which reads as follows:

"If a court imposes a term of imprisonment on an offender, it may recommend that the offender be eligible for release on parole after having served such part of the term of imprisonment as the court specifies in the recommendation".

The expression "term of imprisonment" has a definition in s. 4, which says in part that the expression "means the duration of imprisonment imposed for a single offence . . .". If one applied the definition to s. 157(2), such a parole recommendation as was made would not be authorised by the subsection, for here the judge purported to make a recommendation covering not one but two terms of imprisonment, imposed not for a single offence but for four offences. To narrow the question, it is in part whether s. 157(2) allows a court to impose two terms of imprisonment, cumulatively, and then make a recommendation for eligibility for release on parole applicable to the sum of the two terms, considered as a whole. Apart from the definition of "term of imprisonment", a consideration against reading s. 157(2) as giving such a power as we have mentioned is that the next subsection, s. 157(3), uses the expression "period of imprisonment", as well as "term of imprisonment" in a context in which "period of imprisonment" is plainly used in the defined sense of that expression, as meaning "the unbroken duration of imprisonment that an offender is to serve for 2 or more terms of imprisonment . . .".

Despite these considerations, we prefer to go on the assumption that the use of the expression "term of imprisonment" in s. 157(2) is a slip and that the legislature must have intended to empower a court imposing a collection of concurrent or cumulative terms to recommend release on parole after the offender has served such part of the total period as the court specifies; cf. Director of Public Prosecutions for Nauru v. Fowler [1984] HCA 48; (1984) 154 C.L.R. 627 and Cooper Brookes (Wollongong) Pty Ltd v. F.C.T. (1981) 147 C.L.R. 297 at 304, 310, 321.

A literal construction of s. 157(2) leads to a result which was surely unintended. It is contrary to the parole scheme in s. 166 of the Corrective Services Act 1988. The reference to s. 157 of the 1992 Act in s. 166 must be a reference to any recommendation made by the sentencing court in s. 157(2) outside the legislative scheme of eligibility for release after serving 50% of the sentence and to the more complex scheme in s. 157(3) relating to a fresh parole recommendation when another term of imprisonment is imposed on an offender who is already serving imprisonment for an offence.

Section 161A of the 1992 Act, which was inserted by the 1997 Act with operation from 1 July 1997, reads as follows.

" An offender is convicted of a serious violent offence if-

(A)against a provision mentioned in the schedule; or

(B) of counselling or procuring the commission of, or attempting or conspiring to commit, an offence against a provision mentioned in the schedule; and

(ii) sentenced to 10 or more years imprisonment for the offence, calculated under section 161C; or

(b) the offender is convicted on indictment and declared to be convicted of a serious violent offence under section 161B(3) or (4)."

An initial difficulty for the appellant is that it is now accepted that Part 9A, which contains the provisions on which the appellant relies, does not affect offences committed prior to the date on which it came into effect. In Mason and Saunders (C.A. Nos. 355 and 357 of 1997, 28 November 1997), the offences relied on by the Crown were committed before and the convictions took place after 1 July 1997. Approving the decision in Inkerman (C.A. Nos. 294 and 302 of 1997, 29 August 1997), the reasons said that:

". . . Inkerman was correctly decided and consequently this Court should follow it and conclude that Part 9A does not apply to offences committed before its commencement, other than s. 161C(2)(b) which applies to the earlier sentence to which reference has been made".

Section 161C applies for two purposes, one of which is for deciding whether an offender is sentenced under s. 161A(a) to 10 or more years imprisonment, called the "specified years" of imprisonment. Section 161C(2)(b) deals with the problem whether in calculating the "specified years" of imprisonment one can take into account more than one consecutive period of imprisonment. It says:

"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-

(i) a conviction of an offence mentioned in subsection (1)(c) or (d);

(ii) a conviction declared to be a conviction of a serious violent offence under section 161B."

This permits, subject to a matter we shall now mention, the adding together of the sentence imposed under s. 337(1) of the Code, which imposes a liability to imprisonment for unlawful and indecent assault, and the sentence imposed under s. 348 of the Criminal Code, which imposes a liability to imprisonment for rape (defined by s. 347). Here, there was as we have said a 5 year term for the unlawful and indecent assault and 6 years for the rape, making a total of 11 years.

The question the Crown raises is whether this addition may be made where one of the offences in question was committed before 1 July 1997 and the other after that date. This is not a problem to which Mason and Saunders directly supplies an answer. In that case the Court reached its conclusion on the basis of s. 11(2) of the Code and s. 20C of the Acts Interpretation Act. These two provisions are, so far as relevant, as follows.

s. 11(2) "If the law in force when the act or omission occurred differs from that in force at the time of the conviction, the offender cannot be punished to any greater extent than was authorised by the former law, or to any greater extent than is authorised by the latter law."

(3) If an Act increases the maximum or minimum penalty, or the penalty, for an offence, the increase applies only to an offence committed after the Act commences."

The Court in Mason and Saunders, discussing the effect of these provisions said:

"The main effect of the application of Part 9A to offences is that the offender is not eligible for release on parole until he has served 80 percent of the term of imprisonment imposed on him: Corrective Services Act 1988, s. 166(1)(c). The removal of that prospect, in our view, punishes the offender to a greater extent than was authorised by the former law, within the meaning of s. 11(2) and increases the penalty for the offence within the meaning of s. 11(2) and increases the penalty for the offence within the meaning of s. 20(C)(3) of the Acts Interpretation Act. "

Mrs Clare argued for the Attorney that these observations do not affect the present case. If there was a 10 year term imposed on conviction of a serious violent offence within the meaning of s. 161A of the 1992 Act, then one result is that under s. 166(1)(c) of the Corrective Services Act the offender is not eligible for release on parole until he has served ". . . the lesser of the following -

(i) 80% of the term of imprisonment to which the prisoner was sentenced;

In the present case it is subpara. (c)(i) which is relevant. Mrs Clare argued that the only effect of the 1997 Act in the present case is to make the respondent serve 80% of the term of 5 years imposed for the indecent assault committed on 13 November 1997, which is after the date on which the 1997 Act took effect ("the amendment date"). Mrs Clare said that to apply the 1997 Act only to a term of imprisonment imposed for a sentence committed after the amendment date is not to make the effect of the 1997 Act in any sense retrospective.

It appears to us to be correct that s. 166(1)(c) of the Corrective Services Act, read with s. 161A and s. 161C of the 1992 Act, makes the requirement that 80% of the sentence be served before grant of parole applicable only to a sentence imposed for an offence committed after the amendment date - i.e. in the present case, for the 5 year sentence for indecent assault. The effect of these provisions is not to enlarge the non-parole period in respect of any other offence and in particular not to enlarge it in respect of the offence of rape in the present case which was committed before the amendment date. It appears to us that, although this is the proper reading of the provisions, as Mrs Clare says, it produces an odd result where (as here) there are cumulative sentences, the second but not the first of which is caught by the 1997 Act. Assuming the invalidity of the parole recommendation made in the present case, the respondent will become eligible for parole under s. 166(1)(d) after having served half of the 6 year term. As Mrs Richards pointed out for the respondent, under s. 122(2) of the Corrective Services Act the respondent will commence serving the 5 year term -

". . . when, taking into account any remission granted in respect of the first sentence, the prisoner has completed serving the first sentence".

So if parole were granted, under the 6 year sentence, at the earliest date - after 3 years - there would be at least a 1 year gap before the 5 year sentence began.

But this is a consequence of a kind which could always ensue from the fixation, by the 1997 Act, of a fixed parole point (80% of the term) relating to the second of two cumulative sentences, the first of which is not caught by the 1997 Act. It is not a consequence which can be called in aid against the construction of the 1997 Act for which Mrs Clare contends.

We accept that construction, as we have explained, because it does not appear to us to add any additional penalty in respect of offences before the amendment date and also because of the provisions of s. 206 of the 1992 Act, inserted by the 1997 Act:

"(1) Section 157(7)(b) applies to a recommendation made under section 157 even if the recommendation was made before the commencement of section 157(7).

(2) For subsection 161C(2)(b), sentences of imprisonment imposed on the offender for offences mentioned in section 161C(1)(c) or (d) must be taken into account even if the sentences were imposed before the commencement of part 9A."

The effect of s. 206(2) is to enable sentences to be added together under s. 161C(2)(b) even if one or more of the sentences was imposed before the commencement date; however, no sentence is caught by s. 166(1)(c)(i) of the Corrective Services Act which is not one imposed after the amendment date in respect of an offence committed after the amendment date.

Section 206(2) does not apply in the present case, for there is no sentence imposed before the amendment date. However, the sub-section tends to support the correctness of the view put forward by Mrs Clare. Section 206(2) brings within the reach of the 1997 Act a sentence imposed before the amendment date, in respect of an offence committed before that date; it would be anomalous if the 1997 Act did not apply where the sentence is after and the offence before that date.

Mrs Richards advanced an argument based on the terms of s. 157(7) of the 1992 Act, inserted by the 1997 Act; it has to be read with s. 206(1) of the 1992 Act, also inserted by the 1997 Act. Under s. 157(7)(b):

"If an offender is convicted of a serious violent offence -

(b) no recommendation made under this section by any court can reduce the period of imprisonment that the offender must serve before being eligible for release on parole under the Corrective Services Act 1988, section 166(1)(c)."

Section 206(1) which is set out above applies s. 157(7)(b) "to a recommendation made under section 157 even if the recommendation was made before the commencement of section 157(7)". We confess to having difficulty understanding what is meant by these provisions. Section 157 provides for two distinct sorts of recommendations, under s. 157(2), which we have discussed above and under s. 157(3) which requires a court imposing another term on an offender who is already serving imprisonment to recommend a non-parole period, either relating to the total period of imprisonment under s. 157(3)(a) or relating to the fresh term under s. 157(3)(b). If one reads s. 206(1) quite literally, it is capable of catching a recommendation under s. 157(2) made years ago in relation to an offence which has become a serious violent offence under the 1997 Act. It does not appear to us likely that was the legislative intention, a notion which is supported by the discussion in the Explanatory Notes to the Bill which became the 1997 Act, to be found in 1997 Vol. 1, p. 320, 321. This passage is discussed in Mason and Saunders and it is there suggested that it is not wholly easy to follow. One part of it which is clear enough, however, is the concluding statement, which follows immediately a sentence which refers to s. 206:

"These provisions are not retrospective in the true sense and their application to prisoners is wholly dependant upon subsequent further offending behaviour involving crimes of violence."

Because of the decision in Mason and Saunders and the content of the statutory provisions there discussed, in our view the sentence we have quoted from the explanatory notes should be used as a guide to the intended meaning of s. 157(7)(b), read with s. 206(1). These provisions cannot operate unless a new offence has been committed falling within the scope of the 1997 Act. There remains, as it seems to us, room for argument as to the precise way in which s. 157(7)(b) will operate, but that is not a problem which directly arises here. It is suggested to be relevant only as throwing light upon the correctness of the view put forward by Mrs Clare. We do not, for ourselves, have confidence that solving the problem of the true effect of s. 157(7)(b) is likely to help much in deciding the present case and we prefer to leave that issue for future decision. We leave the subject with the respectful observation that it is a pity that what was intended to be achieved by the combined effect of s. 157(7)(b) and s. 206(1) was not made more evident.

The consequence of our construction of the 1997 Act is that, unless the sentences are altered, there must be a declaration under s. 161B that the conviction for indecent assault was a conviction of a serious violent offence. A second consequence is that, unless the sentences are altered, the recommendation of consideration for parole after having served 4 years of the whole 11 years is, as Mrs Clare argues, invalid.

Mrs Richards said that if we held in favour of the Attorney on the legal point, we should reduce the sentence because to leave it as it is would not be in general accord with the primary judge's intention. Her Honour declined to make a declaration under s. 161B(3) that the respondent has been convicted of a serious violent offence, exercising what she believed to be a discretion. Further, and more simply, one can tell that the legal result for which the appellant contends would not accord with the judge's intention, because her Honour intended that the respondent might serve as little as 4 years.

Mrs Clare argued that a court should not react to a change in the parole provisions such as that presently in issue by designing sentences to avoid it. We agree with that proposition, but it is difficult to see that it applies in the present case. The sentence imposed by the court below was, as has been argued on behalf of the Attorney, invalid in an important respect; the recommendation for consideration for parole was beyond power. But that sentence was a "package"; the sentencing judge no doubt had regard to the severity of the whole: the total of the head sentences as affected by the parole recommendation. Her Honour referred to points in the respondent's favour of such a kind as to justify the order made. She said:

"In all the circumstances, I am finally persuaded I ought not to declare him to be a serious, violent offender and that because of his age and his plea of guilty, I ought to make a recommendation for release on parole slightly earlier than otherwise would be the case".

Had her Honour appreciated that the parole recommendation could not take effect, then it would have been rational for her to recognise the offender's age (18 at the time of the offences), his plea of guilty and the fact that he had no prior convictions, by a shorter head sentence.

In our opinion, having held on the Attorney's appeal that the judge's sentencing orders were in an important respect invalid, this Court has to re-sentence; in doing so it is unfettered and is not bound by the view adopted below as to the proper length of the sentences. The 6 year sentence for rape, although not a heavy one, was not argued to require alteration and that makes it unnecessary, in our view, to discuss the circumstances of the rape. The second sentence, however, poses a different problem. What the respondent did, while on bail for the rape, was to go to a school of which he was a former pupil, there entice a 9 year old girl to a toilet, induce her to undress, prevent her leaving, place a hand over her mouth to stop her screaming, and then to push two fingers into her anus. This was of course a serious offence, particularly because committed while on bail. The Crown submitted below that it would warrant up to 4 years imprisonment and that submission was explicitly made on the basis that the respondent would be eligible for parole "six years and two months into that effective 10 year sentence" (12). The judge imposed a 5 year sentence, as we have mentioned, and might well have done so because of concern about the risk of reoffending. It is possible that her Honour took this course in part because she was not fully made aware of the details of the current remission system, explained in McCasker v. Queensland Corrective Services Commission (Appeal No. 10495 of 1997, 19 December 1997). The delegations discussed in the reasons in that case give prison managers power in certain cases to refuse remissions, not merely having regard to conduct during incarceration, but because of a risk of reoffending. In McCasker's case, the reason for refusal of remission was that McCasker represented a risk to the community if released without supervision; this was based on the serious nature of his offence, the sentencing remarks of the trial judge, his "extensive criminal history" and a psychological assessment. McCasker's offence, for which he had been sentenced to imprisonment for 3 years, was indecent treatment of a child under the age of 16 years with a circumstance of aggravation. In the present case, there seems no reason to assume that remission would be granted at any particular time; in saying this, we do not (of course) imply any opinion as to whether the respondent is likely to re-offend or whether he should be denied remissions. If it happened that neither remission nor parole were granted in respect of the rape sentence, and the 5 year sentence stood, then the respondent would serve at least 10 years in prison. That would be a substantial period of incarceration for an 18 year old with no previous convictions and afflicted, as the psychiatrist's opinion shows, with a schizoid personality disorder.

It is our opinion that the suggestion made by the Crown below that the proper sentence for the indecent dealing was a term of up to 4 years was correct. We would impose a term of 3 years for that offence in lieu of the 5 years imposed below, as we are of opinion that 3 years was the proper sentence. That makes a total sentence of 9 years, which seems to us a proper one.

We should add that it was argued for the respondent that the Court may, under s. 669A(1) of the Code reduce the sentence on an Attorney's appeal and that proposition was not contested by Mrs Clare. Although it is an unusual course, it seems to us proper, in the present case. We would allow the appeal to the extent of:

i. deleting the recommendation for consideration for release on parole made by the learned primary judge;

ii. reducing the sentence imposed for the offence of indecent assault with a circumstance of aggravation to 3 years imprisonment;

The facts and issues are set out in the joint judgment of Pincus JA and White J.

The problem is that the first offence contributing to the sentence of imprisonment for a period in excess of ten years was committed prior to the commencement of the relevant part of the Act. However, the transitional provisions in s.206(2) do not seem to touch upon this since no sentence was imposed in respect of that offence before the commencement of Part 9A. Since such a sentence is the only one to which the transitional provision applies, it does not have operation.

The Attorney does not argue for the operation of the part of the Act to the conviction and sentence for the first offence, but only for the inclusion of the period of imprisonment for that sentence in the totality of the period of imprisonment so that the part of the Act might operate in respect of the second offence.

The failure of the transitional provisions to refer to a sentence after its commencement for an offence which occurred before its commencement means that it is necessary to consider the primary provisions of the Act in order to determine whether they support the inclusion of that sentence in the calculation of the relevant period of imprisonment. In order to achieve this, the Attorney's argument would need to establish that although the operation of those provisions does not apply to the sentence for the first offence itself, it may be taken into account in calculating the total term of imprisonment for the later offence.

On their face, the words of s.161C(2)(b)(i) such a reading would not have a retrospective operation that disadvantages the respondent in respect of the first offence. The proposed operation does not impose a retrospective penalty or disadvantage in respect of the first offence.

Its only operation is prospective. At the date of commencement of the relevant part of the Act, the position was that the respondent had committed the first offence but was yet to be sentenced for it. At that time, he is deemed to have known that if he were to commit any further offence that came within the relevant part of the Act in its own right then the pending sentence that was already in existence could be taken into account in respect of the prospective sentence for the later offence. The clear focus of this system relates to the sentence of 10 years or more imprisonment "for the offence", that in this case is, the later offence. If the penalty that is affected is limited to the later offence, then at the time of the commencement of the provision, there is no retrospective operation simply by the inclusion of the sentence for the past offence in the arithmetic relating to the total period of imprisonment when it is joined with a later offence.

The drafting of the legislation is unhappy in another way. Section 161A, which lays down the limits of operation of the part says, where relevant,

"An offender is convicted of a serious violent offence if-

(ii) sentenced to 10 or more years imprisonment for the offence, calculated under section 161C; . . ."

It will be seen that in order to be convicted of a serious violent offence it is required that the offender must be sentenced to the period as calculated under s.161C "for the offence". The difficulty is that that section does not say that the calculation of combined sentences amounts to a sentence of imprisonment for the required period "for the offence".

"161C.(1) This section applies for deciding whether an offender is sentenced-

(a) under section 161A(a)--to 10 or more years imprisonment (the "specified years" of imprisonment) . . .

(c) against a provision mentioned in the schedule . . .

(2) an offender is sentenced to the specified years of imprisonment if-

(b) 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-

(i) a conviction of an offence mentioned in subsection (1)(c) or (d) . . ."

The expression in subs.(1), "the specified years", refers only to the period of "10 or more years imprisonment." It is not said to be "10 or more years of imprisonment for the offence." So when in subs.(2)(b) the combined terms of imprisonment are said to come within "the specified years of imprisonment", that is not ordained to be the specified years of imprisonment for the offence.

Assuming all else to be in order, a term of imprisonment calculated in accordance with subs.(2)(b) may amount to a sentence to the "specified years" of imprisonment, but it does not amount to, and the subsection does not say that it amounts to the specified years of imprisonment "for the offence". The terms of subs.(1) do not seem to cure this omission. It may have been cured if subs.(2) had read-

"An offender is sentenced to the specified years of imprisonment for an offence if- . . ."

or if the words "(the `specified years' of imprisonment)" had been placed after the words "for an offence" in subs.(1).

However, any other reading would be absurd, for the section would then have no operative content. It seems plain that the defect is merely a subtle drafting deficiency. While s.161C commences "This section applies for deciding whether an offender is sentenced . . . under s.161A to 10 or more years of imprisonment," its only relevant purpose is to determine whether there has been a sentence to that period of imprisonment for the offence mentioned in s.161A(a)(ii).

It should therefore be read in a way that gives it the only sensible meaning that could have been intended, that is, that if the combined period of imprisonment for the offences referred to in the schedule exceeds ten years then each should be treated as a serious violent offence for the purpose of that part of the Act.

I agree with the orders proposed by Pincus JA and White J and with their reasons.