R v Voss; ex parte A-G

SUPREME COURT OF QUEENSLAND

CITATION: R v Voss; ex parte A-G (Qld) [2001] QCA 483

PARTIES: R v VOSS, Daniel Robert (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)

FILE NO/S: CA No 160 of 2001 / DC No 400 of 1999

DIVISION: Court of Appeal

PROCEEDING: Sentence appeal by A-G (Qld)

ORIGINATING COURT: District Court at Ipswich

DELIVERED ON: 9 November 2001

DELIVERED AT: Brisbane

HEARING DATE: 16 October 2001

JUDGES: McMurdo P, Davies JA, Ambrose J / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER: Appeal allowed. Set aside the orders made and sentence imposed in the District Court at Ipswich on 23 May 2001.

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL AFTER INQUIRY AND CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – where District Court Judge re-opened sentence – where matter previously decided by Court of Appeal – Attorney-General’s appeal against new sentence – whether clear factual error shown – whether sentence re-opened in error / CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – re-opening sentence – time for determining clear factual error – determined at time of original sentence / Penalties and Sentences Act 1992 (Qld), s 161, s 161(1), s 188, s 188(1), s 188(1)(c) and s 181(1)(e) / R v Ainsworth [2000] QCA 163, CA No 26 of 2000, 5 May 2000, considered / R v Cassar; ex parte Attorney-General (Qld) [2001] QCA 300, CA No 95 of 2001, 31 July 2001, considered / R v DC [1999] QCA 486, CA No 267 of 1999, 24 November 1999, considered / R v Kelly [2001] QCA 292, CA No 106 of 2001, 9 July 2001, considered / R v McKenzie [2000] QCA 324, CA No 353 of 2000, 11 August 2000, considered / R v Skedgwell [1999] 2 Qd R 97, considered / R v Voss [2000] QCA 176, CA No 33 of 2000, 12 May 2000, considered

COUNSEL: SG Bain for the appellant / J Thompson for the respondent

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

McMURDO P: I have read the draft reasons for judgment of Ambrose J in which the relevant facts and issues are set out.

The respondent was first sentenced on 21 January 2000 by his Honour Judge Pratt QC to an effective term of 3 years imprisonment for an assortment of offences. His application for leave to appeal against that sentence was refused.¹ The main contention in that application was that the sentencing judge gave no or insufficient weight to the time the applicant had spent in pre-sentence custody which was not within s 161(1) Penalties and Sentences Act 1992 (Qld) ("the Act"). This Court determined that the learned judge had given sufficient weight to that factor. After referring to authority which established the proposition that pre-trial custody not within s 161 of the Act should nevertheless be taken into account in sentencing under a general discretion and ordinarily at the first opportunity, I noted (Davies JA and Douglas J agreeing) that –

" . . . this case is not an ordinary one. The further charge was murder, a charge on which the applicant, with his extensive criminal history, will almost certainly not be granted bail, regardless of these offences. Although it would have been preferable had the judge set out a fuller explanation as to the manner in which he was making allowance for the pre-sentence custody, that is not an error in this unusual case. On any view it seems the judge must have allowed three to six months for the pre-sentence custody, which, in the circumstances, was a proper exercise of discretion

Even taking into account his pre-sentence custody and his plea of guilty, I am not persuaded the effective sentence of three years imprisonment for all these offences is manifestly excessive".

The murder charge was subsequently withdrawn and the respondent successfully re‑opened his sentence in the District Court before another judge under s 188(1)(c) of the Act. That judge re-sentenced the appellant to 2 years and 4 months imprisonment instead of 3 years imprisonment, to more accurately, in her view, reflect the time spent in pre-sentence custody other than under s 161 of the Act.

In my view the learned judge erred in re-opening the sentence for two reasons. First, it is not clear precisely what her Honour saw as "the clear factual error of substance" permitting the re‑opening under s 188(1)(c) of the Act. Any error as to the period of time spent in pre‑sentence custody other than under s 161 of the Act and how much of that period should ameliorate the sentence was an error of this Court which considered and rejected the submission that the judge had given insufficient weight to that factor. Her Honour seems to have concluded that the original sentencing judge was obliged to take into account the full 7 months of this pre-sentence custody, not just the 3 months which she determined he had taken into account. But this was the contention rejected by the Court of Appeal in the passage I have set out in [2] of these reasons.

Second, the time for determining whether there was a clear factual error is the time of the original sentencing proceeding sought to be re-opened.² The "clear factual error of substance" under s 188(1)(c) of the Act could not be the fact that the prosecution later abandoned the murder charge as this was not an error of fact at the time of the original sentence.

Like Ambrose J, I would allow the appeal and set aside the orders made by the District Court on 23 May 2001.

DAVIES JA: I agree with the reasons for judgment of Ambrose J and with the orders he proposes.

AMBROSE J: This is an appeal by the Attorney-General against an order made by a District Court Judge on 23 May 2001 reopening a sentence imposed by another District Court Judge on 21 January 2000 and imposing a different sentence.

It is contended for the Attorney-General that there was no power to re-open that sentence pursuant to s 188(1) of the Penalties and Sentences Act because it was not demonstrated that there had been any “clear factual error of substance” on the part of the sentencing judge.

The respondent was sentenced for five offences committed on 24 April 1999, the most serious of which was one of assault committed on a police officer.

On each of two of the counts the respondent was sentenced to six months imprisonment and on each of another two counts he was sentenced to 12 months imprisonment. On the most serious count he was sentenced to imprisonment for three years. All sentences were directed to be served concurrently.

In imposing those sentences, the sentencing judge pointed out that the most serious offence had to be viewed in the context of the other offences, to which the respondent pleaded guilty, and should reflect the “total criminality of the respondent displayed by commission of all five offences” all of which had been committed within a relatively short period of time.

It is clear from the material placed before the learned sentencing judge, that subsequent to his arrest on 24 April 1999 for the five offences for which he was sentenced on 21 January 2000, the respondent was charged with murder. He was held in custody upon that charge. It seems also that he elected to serve default periods of imprisonment with respect to fines imposed upon him for other offences which he did not pay.

From an examination of the record, I find details advanced relating to pre-trial custody a little confusing, and perhaps that explains why the learned sentencing judge disregarded the approach this court recommended in R v Skedgwell [1999] 2 Qd R 97 at 100 that.

“it is desirable that in making allowances for pre-sentence custody in matters falling outside the literal terms of s 161(1), the sentencing court or judge should make it plain in the sentencing remarks whether and to what extent and in what manner such an allowance is being made on account of a period of that custody.”

It is unhelpful to analyse in detail the submissions made to the sentencing judge by the Crown prosecutor and by counsel for the accused. It suffices to say that, it was accepted that he spent 15 days in custody in respect only of the five offences for which he was to be sentenced and with respect to this period of time it was appropriate that a declaration be made under s 161 of the Penalties and Sentences Act. It also emerged that the learned sentencing judge was addressed on the basis that with respect to another period of 205 days the respondent was held in custody not only in respect of these five offences but also in respect of the murder charge preferred against him in May 1999.

For the respondent it was contended before the sentencing judge, that it would be “unjust not to give him the credit for the time in custody, because if he is acquitted, ultimately, he will have spent a considerable time in custody and not have got the benefit for it under any of the sentences.”

It emerged in the course of submissions upon sentence, that it was expected that the respondent would appear in the Supreme Court of Queensland on the murder charge brought against him about the middle of the year 2000, although the indictment had not at that time even been presented.

After a discussion concerning making allowance for the period of time spent in custody (other than the period of 15 days to which I have referred) consideration was given to whether the head sentence should be reduced or the matter dealt with by making a recommendation for early eligibility for parole. Counsel for the respondent asked that the sentencing judge “take something off the head sentence.”

For the Crown it was conceded that the sentencing judge “might take his total period of custody into account to some extent in fixing the sentence”.

On 8 February 2000 the respondent sought leave to appeal against the sentence of 3 years imprisonment on the ground that it was manifestly excessive. This Court dismissed that application on 12 May 2000. It is unnecessary to analyse the facts constituting the offences to which the respondent had pleaded guilty or to refer to matters of comparable sentence etc then discussed. However, one of the matters then raised, was that on 18 May 1999, he had been charged with murder and from that time his custody was referable to that charge also as well as to the five charges in respect to which he had been sentenced on 21 January 2000.

Upon application for leave to appeal, reference was made to the fact that the learned sentencing judge indicated that he was making “allowance” for the full period in custody without specifying to what extent and in what manner he was making that allowance “contrary to the preferred practice stated in R v Skedgwell [1999] 2 Qd R 97.” It was contended on behalf of the respondent upon appeal, that the 205 days spent in pre-sentence custody with respect also to the murder charge should have “more specifically been taken into account in the sentence.”

Reference was made to the decision in R v Ainsworth (delivered 5 May 2000) [2000] QCA 163. In that case it was held that where no declaration is possible, having regard to the terms of s 161 of the Penalties and Sentences Act because custody was not in respect of the subject offence and for no other reason, such custody should be taken into account “under a general discretion”.

In delivering judgment with which the other members of the court agreed, Davies JA observed that there is “much to commend the approach that the whole of the pre-sentence custody should ordinarily be taken into account at the first opportunity.” His Honour then reaffirmed the desirability of adopting the practice recommended in Skedgwell in the event that s 161 cannot be applied directly.

It suffices to observe, that in determining that the application for leave to appeal by the respondent against the sentences imposed on the ground that they were manifestly excessive should be dismissed, the President observed after considering the very matter relied upon as demonstrating “a clear factual error of substance” under s 181(1)(e) of the Penalties and Sentences Act that –

“even taking into account his pre-sentence custody and his plea of guilty, I am not persuaded that the effective sentence of three years imprisonment for all these offences is manifestly excessive.”

Davies JA observed with respect to that sentence –

“It would not have been obligatory upon the learned sentencing judge in my opinion, to take any part of that custody into account in respect of the earlier offence. However, he did so in the exercise of his discretion and as Mr Byrne has pointed out, an allowance of up to six months could have been made by His Honour for that pre-sentence custody without rendering this sentence manifestly excessive.

His Honour’s only error, was in failing to state how much he allowed for that period of pre-sentence custody, and that error did not in my opinion, either vitiate the sentence or render it manifestly excessive.”

When the application for leave to appeal against sentence was debated before this Court, the respondent was still charged with murder and was still being held in custody awaiting determination of that charge.

Eventually, it seems an indictment upon the murder charge was presented and the matter set down for trial. However, when the trial was called on for hearing the Crown entered a nolle prosequi.

It was contended on behalf of the respondent, that had that step been taken by the Crown before the matter of sentence was debated before this Court, it would have approached the application for leave to appeal on the basis of a reduction in sentence, by allowing the whole of the period of 205 days spent in custody with respect to the pending murder charge, in determining whether the period of three years imprisonment was manifestly excessive.

Apparently adopting the observations made by Davies JA in this Court in May 2000, to which I have referred, upon the application under s 188(1)(e) of the Penalties and Sentences Act, made on 11 May 2001, the learned judge embarked upon an exercise to determine the likely sentence that would have been imposed by the sentencing judge in January 2000, apart from any pre-sentence custody served by the respondent.

She concluded eventually, that it is likely that he would have –

“had in mind originally a sentence of three and a half years and took six months off the top of that sentence to allow for the three months pre-sentence custody that he was allowing out of the total seven months that Mr Voss had already spent in custody.”

She continued –

“Having come to that view, it seems that in the interest of justice, the sentence should be re-opened because Mr Voss is now short four months custody time from that sentence.”

Her Honour then purported to re-open and vacate the sentence of three years imprisonment imposed, with respect to the most serious offence on 21 January 2000, and to re-sentence the respondent for that offence to imprisonment for two years and four months to run from 21 January 2000. The declaration previously made by the sentencing judge with respect to 15 days pre-sentence custody was allowed to stand.

It seems clear enough, that if the whole of that period of 205 days (7.25 months) had been deducted from 3.5 years, it would have resulted in a sentence of 2.75 years and not 2.33 years. It seems unarguable then that there has been some miscalculation in purporting to apply a “former practice” (the acceptability of which was debatable in any event), to which reference is made in R v Skedgwell [1999] 2 Qd R 97; that practice sometimes adopted before s 161(1) of the Penalties and Sentences Act came into force was summarised at P 99:

“It was the practice in sentencing to take account of a period of pre-sentence custody as going to some extent in reduction or mitigation of the penalty being imposed. Sometimes this was done by reducing the head sentence; on other occasions by accelerating the recommended date for parole. There was some debate whether when the first of these methods was adopted the allowance for the period of pre-sentence custody should not be doubled. That was because if that period of custody had been served as part of the sentence rather than before it was imposed, the prisoner would to that extent had been closer to the statutory half way mark at which he would or could first be considered for parole.”

In my view, it would be unprofitable to debate this former practice. However, if its application in the circumstances of the present case, resulted in the reduction of the sentence appropriate in the absence of pre-sentence custody, by a period of time twice the length of pre-sentence custody, it would clearly be inconsistent with the general legislative intent demonstrated by s 161(1) of the Penalties and Sentences Act.

Indeed the respondent does not attempt to uphold the reduction of sentence made upon re-sentence upon this appeal. It is contended that the sentence should have been re-opened but that the sentence imposed on re-sentence should have been two years and eight months (2.66 years) imprisonment.

Under s 188(1)(c) the District Court in this case had power to re-open the sentencing proceedings of 21 January 2000, only if the court imposing the sentence had decided it on a clear factual error of substance.

The learned District Court judge in re-opening the sentence did not specify what “clear factual error of substance” had been established.

The factual error of course, had to be one made by the sentencing judge whose sentence was being re-opened.

On my analysis of the material, no factual error on the part of the learned sentencing judge is disclosed. He certainly made no factual error with respect to the period of 205 days spent by the respondent in custody with respect also to the murder charge upon which he was then held. It is abundantly clear from submissions of counsel before him and by his observations in the course of those submissions that he was well aware of all relevant facts existing. The only possible “error” that could be made would be one of judgment involved in the exercise of his sentencing discretion. That of course would not be an error within s 188(1)(c).

I can find nothing in the reasons given for re-opening the sentence which even suggests what factual error (whether substantial or otherwise) was made by the sentencing judge.

In my view, the District Court judge in purporting to re-open and vary the sentence had no power to do so.

Jurisdiction under s 188(1)(c) of the Penalties and Sentences Act is confined to cases “where the sentence has been decided on a clear factual error of substance.” It is quite insufficient for a judge to be persuaded that having regard to events that have occurred subsequent to the imposition of sentence, it is arguably “in the interests of justice” that the sentence should be re-opened and varied.

It would be a quite unacceptable interference with the sentencing process, should a judge at trial level, be enabled to re-open and vary a sentence under s 188 (1)(c) having regard to matters already canvassed before and rejected by this court, upon an application for leave to appeal against this sentence.

The only alteration in the factual situation that intervened between the decision of this court refusing leave to appeal against sentence and the application to re-open that sentence for variation seems to be that the Crown entered a nolle prosequi upon the indictment for murder and therefore, the respondent was not thereafter held in custody in respect of that charge. It is undeniable however, that he had been lawfully so held, both at the time he was sentenced on 21 January 2000 and at the time his application for leave to appeal against that sentence was dismissed on 12 May 2000. To the extent that even arguably, that could amount to a change in any relevant factual situation, it clearly occurred long after the sentencing judge imposed sentence in January 2000 and indeed long after this court dismissed an application for leave to appeal against that sentence in May 2000.

Critical to the proper exercise of jurisdiction under s 188(1)(c) is an error of fact made by the sentencing court at the time when the sentence is imposed. See R v Cassar; ex parte Attorney-General (Qld) [2000] QCA 300 paras 11 to 16.

I would allow the appeal and set aside the orders made by, and the sentence imposed upon the respondent by the District Court at Ipswich on 23 May 2001.

Footnotes

1. R v Voss [2000] QCA 176; CA No 33 of 2000, 12 May 2000. ↩

2. R v DC [1999] QCA 486, CA No 267 of 1999, 24 November 1999, [3]; R v McKenzie [2000] QCA 324, CA No 353 of 2000, 11 August 2000, [27]; R v Kelly [2001] QCA 292, CA No 106 of 2001, 9 July 2001 [15]. ↩