R v Waters [1997] QCA 439

I do not think that the Court on this occasion should pursue that question. No appeal against sentence has been filed by the Attorney-General and the Crown's original submission lodged in response to the applicant's application was concerned to support a contention that the sentence that was imposed was not excessive. For that reason it was suggested the applicant had no prospects of succeeding on an appeal. In these circumstances I do not regard the efficacy of the Judge's parole recommendation as being a matter before us for our determination and I would allow it to remain for the effect to be attributed to it on its face.

The course of leaving the recommendation alone without further investigation appears to me to be more consistent with the approach to the rights of sentenced persons as discussed in Neal v. The Queen [1982] HCA 55; (1982) 149 C.L.R. 305. I regard the wisdom of following the course I suggest as strengthened by the facts that the prisoner is unrepresented and that the Crown, although offering a view upon the extent of the powers possessed by a Court that makes an order under s.147(1)(b) for the whole of a suspended term to be served, suggested to us that if the question were to be pursued on this occasion then notice should first be given to the applicant. This was said to be because of the possibility that the applicant might be left with a "more severe sentence in practical terms". I would leave the further investigation of the question to another occasion. There being no merit in the application by the applicant seeking a reduction in his sentence as ordered, I would refuse the extension of time sought and refuse his application for leave.

Mr Waters, appearing for himself, has applied for an extension of time within which to make application for leave to appeal against conviction. He was sentenced in the District Court on 8 August 1997 in respect of two offences: wilful damage in the night time and common assault. The learned District Court judge imposed a sentence of 3 months imprisonment on each count and also ordered that he serve "the remainder of the suspended term of imprisonment imposed upon you on 16 December 1994". On that occasion the applicant received a number of sentences of imprisonment of 2 years, all concurrent, and in respect of each an order was made that the imprisonment be suspended after 6 months. The "operational period", as it is commonly called, under s. 144(5) of the Penalties and Sentences Act 1992 ("the 1992 Act"), was fixed at 5 years. On 13 August 1996 the applicant appeared in the District Court again on the basis that an offence had been committed during the operational period. The court then ordered that the operational period would be extended for a further 6 months.

When the applicant was sentenced, as I have mentioned, on 8 August 1997, it was necessary for the court to make an order against him under s. 147(1)(b) of the 1992 Act unless it formed the opinion mentioned in s. 147(2) of that Act. It was under s. 147(1)(b) that the court ordered that the applicant serve the remainder of the suspended term. The question which arises is the effect, if any, of a recommendation made by the District Court judge on 8 August 1997:

" . . . I recommend you be considered for release on parole after serving four months of that sentence".

In the application for an extension of time the ground given is as follows:

"That I did not speak with my solicitor after my conviction and have only now been advised I had to appeal within 28 days. I have only recently learned it will be impossible for me to be released after 4 months which is in contrast to the judge's recommendation".

From the oral submissions made by the applicant it emerges that his complaint is that because of what he says are administrative arrangements within the prison, his recommendation for parole cannot be considered after 4 months, but only after a substantially longer period. But Mr Chowdhury, who appeared for the respondent on the application, submitted that it is in truth legally impossible for the recommendation to be given effect to; he argued orally, and later supported the argument by a written submission, that a judge making an order that an offender serve the whole or part of a period of suspended imprisonment, under s. 147(1) of the 1992 Act cannot accompany it by a recommendation for release on parole, under s. 157(2) of the 1992 Act.

Apart from the question just mentioned, the application has no substance. The applicant contended that he had become obliged, because of the commission of relatively minor offences, to serve 18 months imprisonment. This is not correct; the obligation to serve 18 months imprisonment has come about because he committed offences which resulted in the imposition of a partially suspended sentence on 16 December 1994 and because of the offences which he subsequently committed requiring the court to deal with him under s. 147 of the 1992 Act. But if Mr Chowdhury's contention has substance and the judge's recommendation that the applicant be considered for parole after having served 4 months may be legally ineffective, then the case appears to me one in which an extension should be granted because an important legal question has arisen as to the sentence which the judge has purported to impose.

I proceed then to consider whether it is correct that the District Court judge went beyond her jurisdiction in purporting to make a recommendation that the applicant be eligible for release on parole, attached to an order that he serve the suspended part of the imprisonment imposed on him in 1994. The ultimate question is whether the order the District Court made on 8 August 1997 with respect to the unserved part of the suspended term constituted the imposition of a "term of imprisonment" under s. 157(2) of the 1992 Act:

"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 possibilities are that the original order for a suspended sentence is the imposition of a term of imprisonment, or that the order that the unserved part of the suspended term is the imposition of the term of imprisonment, or that neither order fulfills that description. Section 144 of the 1992 Act says, in subs. 1:

"If a court sentences an offender to imprisonment for 5 years or less, it may order that the term of imprisonment be suspended".

Under s. 144(3) the suspension may be as to whole or part of the term.

It would make no sense wholly to suspend a term and accompany the order for a wholly suspended term by a recommendation of eligibility for release on parole. Nor I think would one expect a court, assuming it had power to do so, to recommend that an offender given a partially suspended sentence be eligible for release on parole after having served part of the sentence ordered to be served. But, at least as to the latter possibility, the language of s. 157(2) seems wide enough to permit the court to make such a recommendation for parole; all one can say is that a recommendation of that sort might seem odd.

The power the District Court exercised, with respect to the suspended sentence, on 8 August 1997, under s. 147(1)(b), was to "order the offender to serve the whole of the suspended imprisonment". On Mr Chowdhury's argument a court which makes an order under that section is not one which "imposes a term of imprisonment on an offender" within the meaning of s. 157(2) of the 1992 Act. He argues that the court did not, in making an order under s. 147 of the 1992 Act, impose a term of imprisonment; it merely ordered that a term previously imposed be served.

The opposing argument is that the word "imposes", although it has no precise technical meaning, is wide enough to embrace an order under which a specified period of imprisonment must be served, whether that is done under s. 147 of the 1992 Act or otherwise.

Mr Chowdhury said that the true position is that the applicant is not eligible for parole until he has served 9 months of the 18 months ordered to be served; but if his contention about the nature of the order made under s. 147 is correct, that would not, in my opinion, be so. Section 166 of the Corrective Services Act 1988 ("the 1988 Act") made the applicant ineligible for release on parole until he had "served half of the term of imprisonment to which [he] was sentenced". That is the form which the relevant part of s. 166 presently has: s. 166(1)(d); the amendments made by Act No. 4 of 1997 do not significantly affect this point. If the "term of imprisonment to which the prisoner was sentenced" mentioned in s. 166 of the 1988 Act is the term of 2 years imposed in December 1994, then the applicant will become eligible for release on parole after having served 12 months of that term, which means he will be eligible after having served a further 6 months, assuming he served 6 months initially.

For three reasons, I think the contention put forward that the judge's recommendation as to parole was beyond power should be accepted. One is that the notion of imposing a term of imprisonment, used in s. 157(2), seems more naturally to refer to the original imposition of a term, under s. 144, rather than to an order under s. 147 that the offender serve the whole or part of the term initially ordered; I note that s. 10(1) of the 1992 Act begins with the expression: "If a court imposes a sentence of imprisonment, including a suspended sentence of imprisonment". A second reason is that the formal order contemplated by s. 147(1)(b) is an order that "the offender . . . serve the whole of the suspended imprisonment . . . "; that was the provision under which the judge acted on 8 August 1997. It would perhaps seem inconsistent with an order in that form to order also that the offender be considered for release on parole. A third reason is that s. 151 of the 1992 Act is so framed as to achieve the result that provisions relating to remission of sentence apply to imprisonment ordered to be served under s. 147(1)(b) or (c). The right to remission arises under regulation 21 of the Corrective Services Regulations 1989 (Queensland Government Gazette Vol. 291 No. 88, 24 June 1989, p. 1720). That regulation says in part that:

"A prisoner serving a sentence of imprisonment . . . may . . . be granted a remission of one-third of his sentence".

It is not a point of great significance, but one might have expected that, if the parole provisions were to similarly apply to imprisonment ordered to be served under s. 147, the legislature would have said so, in express terms.

In the result, I have formed the view that it is correct, as Mr Chowdhury argued, that the judge's order for consideration for parole after 4 months had no legal effect, being beyond power. The true position is in my view that the applicant will not become eligible for parole until the time indicated by s. 166 of the 1988 Act - i.e. until he has served half of the 2 year term of imprisonment ordered in 1994. Assuming that he originally served 6 months of that term, as contemplated by the order then made, he will not become eligible until he has served an additional 6 months.

It follows, in my view, that the application for an extension of time must be granted and leave to appeal also granted. It is in my opinion unnecessary, however, to hold a further hearing, in order to dispose of the appeal. This is so because the only complaint made was about the effect of the prison's administrative arrangements on the judge's parole recommendation. Since the appeal does not concern those arrangements, and the recommendation has no effect, there is nothing we can do to meet the appellant's complaint. Looking at the matter more broadly, since no contention is made under s. 147(2) of the 1992 Act (nor could any such contention sensibly be made) the outcome is, so to speak, inevitable.

Since writing the above I have had the advantage of reading the reasons of McPherson J.A. I agree that, for the reasons stated by McPherson J.A., it is prudent to make the suggested declaration.

I would grant an extension of time, grant leave to appeal and dismiss the appeal.

As has been said more than once in the past, the provisions of s.157 of the Penalties and Sentences Act 1992 present some difficulties of interpretation. Some points in relation to that section are, however, settled by decisions of this Court. One is that neither s.157(2) nor s.157(3) of that Act authorises a judge, in imposing a term of imprisonment on an offender, to recommend that the offender be eligible for release on parole under a term of imprisonment imposed by another judge or on another occasion when no such recommendation was made by that judge or on that occasion. See, as regards s.157(2), R. v. Burton (C.A. 492 of 1994); and, as regards s.157(3), R. v. Doyle [1996] 1 Qd.R. 407. The decision in this case resolves another question, which is that, in exercising the power under s.147(1)(b) of the Act to order that an offender serve the remainder of a term of imprisonment previously suspended under that section, the sentencing judge has no power under either s.157(2) or s.157(3) to attach a recommendation for parole to the sentence or part of it so ordered to be served. In acting under s.147(1)(b), the judge is not, within the meaning of s.157(2) or s.157(3), imposing a term of imprisonment, or another term of imprisonment, but is ordering a term of imprisonment already imposed but suspended to be served. On this I agree with the reasons of Pincus J.A., which I have had the advantage of reading.

The question is what is to be done about it in this matter. Pincus J.A. has concluded that the order recommending parole after four months, which was made below, was and is beyond power. I agree that the learned sentencing judge was not authorised to make such an order. For a number of reasons, however, it seems to me to be undesirable to allow that order to remain on the record leaving the prison authorities to work out, from reading the reasons of the Court in this matter, that the parole recommendation is ineffectual. To do so might lead to confusion on the part of the applicant or those authorities.

I would therefore make a declaration that the applicant will not be eligible for release on parole until he has served a total of 12 months of the 2 year suspended terms imposed on him on 16 December 1994. Taking that course would not, in my opinion, involve any breach of the principle in Neal v. The Queen [1982] HCA 55; (1982) 149 C.L.R. 305. The Court would not be passing a sentence more severe than that imposed below, but simply stating the effect in law of the sentence already in fact passed. The result would then be as is stated to be "the true position" by Pincus J.A. in the third-last paragraph of his reasons.

With that addition, I agree that leave to appeal should be granted and that the appeal should be dismissed.