R v Walton, ex parte A-G [1997] QCA 411

Between the date of his arrest, 17 October 1996, and the date of the sentencing below, the applicant spent 299 days in custody. There is nothing in the record to suggest that his parole was suspended or cancelled during that period; the sentencing judge was told that the parole would be ipso facto cancelled by the applicant having been sentenced to imprisonment, as he was on 11 August 1997. When sentenced on that date the applicant still had 5 years to serve of his 1989 sentence, subject to the power of the Queensland Community Corrections Board to reduce the unexpired portion under s. 190(2) of the Corrective Services Act 1988. There is no information before the Court as to whether that is likely to occur and it appears to me that the case should be considered without regard to the existence of that power in the Board. The result, on the basis I have mentioned, is that the head sentence imposed in 1989 will not come to an end until August 2002, and the 15 year sentence imposed cumulatively upon it, which gave credit for the 299 day pre-sentence custody, will therefore run until 2016. Subject to the possibility of shortening by remissions, the effect of the sentence imposed in August 1997 will be an entitlement to release on 17 October 2016, when the applicant (now aged 43) will be 62 years of age. The Attorney could hardly complain of an inadequate head sentence. But in fact such a complaint was made by the appellant and it was suggested in the outline filed on the Attorney's behalf that the head sentence should be increased so as to expire when the applicant is 67 years of age, in the year 2021. If that were done then the total period of imprisonment, dating from 1989, would be at the maximum 32 years, less a period of a little over 2 years at large - about 30 years. In oral argument, the suggestion that the head sentence should be increased was abandoned.

The only argument advanced orally was that the primary judge's fixation of a parole date was too generous. When sentenced on 11 August 1997, the applicant had, as I have said, 5 years to serve of his 1989 sentence so that, it was pointed out for the Attorney, the respondent could under the judge's order be considered for parole on 11 October 2005, a little over 3 years from the cessation of his previous sentence if there were no remissions in respect of that sentence.

The first question is at what date the applicant would have been eligible for parole, but for the judge's order. This depends on the terms of s. 166(1)(d) of the Corrective Services Act 1988, read with the definition of "term of imprisonment" in s. 10 of that Act. One view is that, applying the definition to the respondent, the "term of imprisonment" referred to in s. 166(1)(d) of the Corrective Services Act 1988 is the period beginning on 27 July 1989 when he was sentenced to 10 years imprisonment as I have explained above, and ending at the termination of the sentence imposed on 11 August 1997; that date is 17 October 2016.

However, it is not very clear how one applies the definition of "term of imprisonment" to which I have referred where there is no gap in the sentences, but a gap in custody. That can arise where there is an escape, as in Barlow (C.A. No. 209 of 1994, judgment 24 May 1996) or work release, as in Gipters (C.A. No. 25 of 1995, judgment 30 May 1995). In each of those cases, where there was a gap in custody, the definition of "term of imprisonment" was applied to calculate the statutory parole date, despite the reference in the definition of "term of imprisonment" to "the unbroken period of imprisonment". Although the point was not discussed in the cases I have mentioned, the definition was in my view correctly applied in them, because the test is not what imprisonment is actually served, but what imprisonment the person in question is "liable to serve by virtue of a number of sentences . . . ". I note that in Toms (C.A. No. 138 of 1996, judgment 21 June 1996) it was assumed, without discussion, that the definition of "term of imprisonment" applies so as to require the addition of sentences even where there has been a release on parole. Support for that view may be derived from s. 184 of the Corrective Services Act 1988 which requires a prisoner on parole to be "regarded as still being under sentence or detention". But a difficulty, not dealt with in any case I have found, is whether in making the calculation to arrive at the defined "term of imprisonment" one includes or excludes a period spent on parole. This is not a point of critical importance in the present case. It appears to me that the governing notion is liability to serve imprisonment, so that if the imprisonment ordered was discontinuously served because of parole or escape one ignores the gap, and takes into account the length of the ordered sentence. On that view, one deducts from the total period of imprisonment here, from 27 July 1989 to 17 October 2016, the period spent on parole; the term of imprisonment the respondent was made liable to serve by the combined effect of the sentences imposed was a term of 25 years beginning on 27 July 1989, the half-way point of which is 27 January 2002. That was, in my view, the statutory parole date and so parole was deferred by about 3 years and 8 months, by reference to the statutory date.

It needs little consideration to appreciate that the statutory parole date, where the term of imprisonment is made up of a series of cumulative sentences, may be quite inappropriate. For example, if to an existing sentence there is added a cumulative sentence of equal length with the first, then the statutory parole date is simply the date of termination of the first sentence and that will ordinarily be unsuitable. In most instances where a further sentence is imposed on a prisoner who has already begun to serve imprisonment under an earlier sentence, it will be proper for the judge who imposes a further sentence to fix an appropriate parole date, rather than relying upon the statutory parole date.

It does not appear to me that any useful "rule of thumb" is or could be devised to assist a court in fixing a parole date other than the statutory date. That is certainly so with respect to cases of the more usual kind, where the person being sentenced is not already serving a sentence, and I think the same applies to cases like the present. There are so many variable factors that any suggested "rule of thumb" for fixation of a parole date is unlikely to be useful. It was argued in the present case for the Attorney that the prima facie parole date, following a suggestion counsel said was made by Thomas J in Coss (C.A. No. 262 of 1994, judgment 15 March 1995), should be 11 August 2007. Although counsel for the Attorney did not express the matter in this way, I understand that the date 11 August 2007 was arrived at by adding to the new sentence (15 years) that part of the former sentence which was yet to be served (5 years) and dividing by 2, to reach a period of 10 years from the date of the new sentence.

It is not clear to me that this process is what Thomas J had in mind. His Honour said:

"In cases where the offender has served less than half of the first sentence a prima facie reasonable result may be obtained if one adds together the old and the new sentence and specifies half of that as the new non-parole period. However, in a case like the present where the first sentence has gone beyond its half-way point (apparently upon the offender's own choice) the application of such a formula will produce the result that he will have a parole eligibility less than half-way through the new sentence."

I notice that his Honour said "if one adds together the old and the new sentence", and made no reference to deducting from the old sentence that part which has already been served.

To return to the submission made by counsel for the Attorney, what the method amounts to is of course that one augments the statutory non-parole period by half the time already served. If there is, as in the present case, a 10 year sentence followed by a 15 year sentence, then the statutory non-parole period ends half-way through, at 12½ years. If the offender is sentenced for the second offence half-way through serving the first sentence, then the method suggested on behalf of the Attorney fixes the parole date 2½ years later, at 15 years from the beginning of the 25 year total sentence - 10 years from the time when the respondent resumes serving his (half-served) original sentence.

I would be concerned if the method suggested on behalf of the Attorney were adopted as a prima facie rule. Under the suggested method, if the new sentencing is 1 year from the beginning of the first sentence, then that augments the non-parole period by 6 months; if it is 2 years from the beginning, that augments the non-parole period by 1 year, and so on. The minimum period to be served is increased by an amount which is proportionate to the time already served when the court sentences for the new offence.

It is not clear to me why an offender who is minded to (for example) escape and commit a robbery very early in his sentence should be treated more leniently than one who takes this course rather later. To apply that to the present case, I do not see why commission of the new offences half-way through the first sentence should produce additional punishment - by way of deferring the parole date - twice as great as that which would have been produced if the offender had committed the new offence only a quarter way through the first sentence.

And if the suggested method is a sound one, it should be sound for offences committed in the second half of the first sentence as well as those committed in the first. The principle's operation is quite uniform: the parole date is deferred in proportion to the length of time already served, under the first sentence. Apart from the difficulty of justifying giving the early offender an advantage as compared with the later one, the suggested method creates a problem if the second sentence is much shorter than the first; then the early offender's parole date will often fall before the second sentence begins. If the first sentence is unaccompanied by a parole recommendation, that simply cannot be done. Apart from that, such a parole date - before the beginning of the second sentence - will look odd.

It will ordinarily be right to make the new parole date, fixed at the second sentencing, one which is a substantial period ahead of the second sentencing date; but that can be done without applying the rule suggested.

Apart from having the supposed merit of conformity with the prima facie rule advocated on behalf of the Attorney, the parole date of 11 August 2007 does not appear to me to have any obvious merit, as compared with the date fixed by the learned sentencing judge, 11 October 2005. If the respondent is fortunate enough to be released on the fixed parole date - plainly, no certainty in his case - he will, under the sentence appealed against, have served a total of 14 years imprisonment at the date of release; under the Attorney's suggestion he will have served a little less than 16 years; using the method of reasoning sometimes adopted, the former period corresponds to a head sentence of 28 years and the latter to a head sentence of 31 years and some months.

In fixing the sentences he did, the primary judge was bound to take into account the totality principle. The leading case was Mill [1988] HCA 70; (1988) 166 C.L.R. 59; recently the principle has been considered again in Postiglione (High Court of Australia, unreported, 24 July 1997). That chiefly concerned the application of the parity principle to two offenders and it is enough to mention the circumstances of one, Postiglione: he was sentenced to long periods of imprisonment in Italy in 1980, in Australia in 1988, and again in Australia in 1993. At the time of the 1993 sentence, which was that which was in issue in the High Court, he had not completed either the Italian sentence, or the Australian sentence imposed in 1988. Despite the substantial gap in time between the first and last offences in question it was held or at least assumed that the totality principle applied: I refer to the reasons of Dawson and Gaudron JJ at p. 3, those of McHugh J at pp. 8 and 11, and those of Kirby J at pp. 28 and 29. McHugh J pointed out (p. 8) that a recent decision in the New South Wales Court of Criminal Appeal had extended the ambit of the totality principle; his Honour quoted with apparent approval a statement by Hunt CJ at C.L.:

"When a custodial sentence is to be imposed which will be cumulative upon, or which will overlap with, an existing custodial sentence, the judge must take into account that existing sentence so that the total period to be spent in custody adequately and fairly represents the totality of criminality involved in all of the offences to which that total period is attributable".

As Postiglione illustrates, there may be a clash between the operation of the totality principle and that of the parity principle; the totality principle has other difficulties and must be applied with caution, to avoid encouraging the thought that an offender will be rewarded for having, say, committed robberies while an escapee from gaol, rather than committing them after completion of a sentence. But in the present case the totality principle gives fair support to the course the primary judge took.

As was emphasised by counsel for the Attorney, the present is a particularly bad case of involvement in a business of prohibited drugs, persistently and on a very large scale. While the penalty imposed by the learned sentencing judge was not, in my view, a particularly harsh one, it appears to me well within the bounds of a proper exercise of discretion.

I agree that this appeal should be dismissed for the reasons given by Pincus JA.