R v Wishart & Jenkins [1993] QCA 563

Court of Appeal (Qld)|1993-12-21|Before: Pincus J, Thomas J, Mr P

JOINT REASONS FOR JUDGMENT - THE CHIEF JUSTICE AND PINCUS J.A.

These are applications for leave to appeal against sentence. The applicants were represented by the same counsel, Mr Hamlyn- Harris, and the cases were heard together. The applicants were each convicted in the District Court at Cairns of an offence of breaking and entering and other offences arising out of or otherwise related to that offence. Each was sentenced to terms of imprisonment of various lengths in relation to each of the six offences of which he was convicted; the greatest penalty imposed in each case was 8 years and 6 months for armed robbery in company, and it was on that sentence that the argument concentrated. Mr Hamlyn-Harris contended that if one has regard to the level of sentences imposed in other cases it is seen that the armed robbery sentence imposed by the learned District Court judge was too high. It was not submitted that the judge should have discriminated between the two applicants, with respect to the length of the sentences imposed.

The applicants admitted their offences in conversations with the police and pleaded guilty. One might query whether the applicants could have thought they lost any realistic prospect of acquittal by their admissions; but the judge was prepared to allow a substantial discount because of their pleas and we accept that his Honour was right to do so.

Jenkins was born on 15 May 1969 and was thus nearly 24 when the offences were committed on 10 May 1993. His record includes a substantial number of offences, but it is pointed out on his behalf that he has not previously been sent to prison. Notable features of his record are that he committed a few breaking and entering offences at the ages of 14 and 15; that he was convicted in 1991 of drug offences, for which he was placed on probation and ordered to perform community service; and that there is a breaking and entering conviction recorded against him in 1992. As to that last, we were informed by his counsel, and it was not challenged, that that offence was committed in 1988. The record also includes driving offences and street offences. It has to be said in his favour that although a number of breaking and entering offences is recorded against him, all but one were committed when he was very young, and the last some years ago.

The judge was told that Jenkins asserted, when interviewed by the police, that he had intended to telephone and let them know that the owner of the house had been tied up, to enable him to be released; the victim in fact managed to release himself.

Wishart was born on 15 April 1965 and was thus 28 when the offences were committed. His criminal record is rather more substantial than Jenkins' and includes terms of imprisonment: 6 months in 1983 for some offences of dishonesty; 3 months in 1987 for behaving in an offensive manner and two charges of assaulting a female; and 14 days imprisonment in 1991 for breach of the Bail Act. His record also includes a number of drug offences, driving offences and street offences. Wishart had, before he committed the offences here in question, shown himself to be a persistent, although generally minor, offender. His counsel described him as a drug addict with a $500 per week amphetamine habit. The judge was told that Wishart had no idea a knife was going to be used, but Wishart admitted that he had tied the victim up.

The judge's sentencing remarks refer to his Honour's view that "Breaking and entering, housebreaking and associated or similar offences are almost occurring in plague proportions around Cairns in recent years". His Honour accepted that the applicants did not go to the house with the intention of committing any personal offences against the owner. He took into account that each had spent 77 days in custody, and the early indications that each would plead guilty.

His Honour explained that were it not for the pleas of guilty he would have had in mind an effective sentence of 12 years imprisonment for each applicant. He gave 3 years credit for the admission of guilt and for assistance to the police, and a further 6 months credit because of the time spent in custody; the result was, as we have said, a sentence of 8½ years imprisonment each in respect of the offence of armed robbery in company. The other sentences were as follows :

Unlawful use of a motor vehicle with a circumstance of aggravation: 2 years.

It should be added, with respect to the motor vehicle offence, that the applicants drove the vehicle they had taken off the road to escape the police and crashed into a chain fence, causing damage to the vehicle.

It was suggested in argument, both here and below, that the mistreatment of the occupier of the house may have been caused by panic, when he arrived home while the applicants were in the course of robbing his house. That is unlikely; all the two had to do was leave, instead of which they turned their misdeeds into a substantially more serious course including, as we have mentioned, robbing the occupier of his wallet.

Mr Callaghan, for the Crown, contended that although severe, the penalty imposed was in the vicinity of the top of the range. In our view, it is difficult to agree with the learned primary judge's suggestion that, but for the plea of guilty and cooperation with the police, 12 years imprisonment would have been in order. That remark applies particularly to the younger applicant, Jenkins, who had never been to prison before. The offences committed were very serious, but one must keep in mind that, as the judge recognised, the two did not go to the house intending to do the occupier any harm and he was not seriously injured, nor subjected to any merely malicious maltreatment; those matters distinguish the case from those such as Barry and Cowen to which we were referred.

In Barry, (C.A. No. 17 of 1993) there were three armed robberies admitted, as well as a number of related offences. In the first robbery, the couple who were being robbed were threatened with a knife; in the second, the occupant was assaulted to the extent that he suffered some "more or less permanent disability"; and in the third, a security guard was robbed after being struck a number of times. Barry, who had an extensive criminal history, was sentenced to 7 years imprisonment and the court described his appeal as having "no merit whatsoever". The reduction in the head sentence for the plea of guilty was said to be one year only; Barry had spent 2½ months in custody. In Cowen, (C.A No. 11 of 1992) a 19 year old who had committed some previous offences, but had never been sent to prison before, was initially sentenced to the equivalent of 12½ years imprisonment. Cowen and his co-offender abducted an old man in his motor vehicle and subjected him to a series of cruel assaults over a substantial period; he suffered injuries. Cowen pleaded guilty. His appeal was upheld and an effective total sentence of 8 years was substituted. It appears evident that the offences dealt with in Cowen were of considerably worse nature than those with which we are presently concerned.

We were referred to a number of other unreported decisions, all of which have been considered, but we find it necessary to mention only one of them specifically; that is Baragwanath (C.A. No. 371 of 1990). There, a 24 year old applicant with quite a number of burglary and theft convictions in his record was convicted of armed robbery. Armed with a loaded revolver, he and a co-offender, armed with a semi-automatic rifle, threatened the receptionist at a hotel and demanded money; the Crown claimed $15,000 was taken, but the applicant admitted only $4,800. A sentence of 7 years imprisonment was upheld, on appeal, but a recommendation was made for parole after 2½ years; Baragwanath had been in custody for 10 months before sentence. He was said to be suffering from a psychiatric condition due to taking steroids. There had been a timely plea, as was admitted before the Court of Criminal Appeal.

There is something to be said for the view that Wishart, the older offender, should have been more heavily punished than Jenkins; apart from the difference in ages, Wishart had a more formidable criminal record than did Jenkins. As we have mentioned, Wishart had served terms of imprisonment. But the judge did not differentiate between the two and we are disinclined to do so, as counsel in this Court did not suggest that the course his Honour took in that respect was wrong. Considering Jenkins then, as a fairly young man not previously imprisoned, and admittedly entitled to a significant discount because of his plea and co-operation, we cannot think that a sentence of 8½ years (equivalent to almost 9 years) is justifiable. We would reduce Jenkins' sentence to 6 years; as we have explained, we would not then impose a heavier sentence on Wishart. A question then arises with respect to the proper form of sentencing order.

Prior to the commencement of the Penalties and Sentences Act 1992 (Qld) pre-sentence custody was ordinarily taken into account by the sentencing judge. The practice was that the sentence which would otherwise have been imposed was reduced by twice the period spent in custody. For example, if 1 year had been spent in custody in relation to the offence for which the sentence was being imposed, and the judge would ordinarily have ordered 5 years imprisonment, then he would impose only 3 years; that would ordinarily give a right to apply for parole after having served half the sentence - in the example given, 18 months.

The relevant provisions of the Penalties and Sentences Act 1992 are ss. 158 and 161. They commenced on 27 November 1992 and have been amended by Act No. 36 of 1993 which commenced on 23 July 1993. It is not very clear why the subject is dealt with in two separate provisions; they do not seem to mesh very well and indeed some obscurities and inconsistencies appear. Section 158(1) gives the court discretion to back-date the term of imprisonment to the day of arrest; so that, in the example given above, the court would, if it exercised that power, perhaps order that the term of imprisonment have effect from a date 1 year before the date of sentencing. Subject to parole, it would expire 4 years after the date of sentencing. Section 161(1) does not contemplate that the sentence will be expressly backdated, but has the effect that, in the circumstances to which it applies, time spent in custody is deemed to be time served under the sentence.

The main differences between the two provisions - ss. 158 and 161 - are two. First, under s. 158 the term of imprisonment may be begun from the date of arrest; that may occur even if the custody mentioned in subs. 1 has not been continuous since arrest. Under s. 161, on the other hand, the term of imprisonment cannot be made to begin from the date of arrest unless the offender has been continuously in custody, in the circumstances mentioned in the subsection, since arrest. The second major difference is that backdating takes effect under s. 158 only if so ordered; under s. 161, backdating is automatic unless otherwise ordered.

To an extent the meaning one ascribes to some parts of these sections is arbitrary; the construction we propose is designed to achieve what we believe was Parliament's intention, although it does not accord precisely with all the language used. We have adopted it in an attempt to avoid what would seem to be inconsistencies or anomalies in the drafting. First, the application of para. (2)(c) of s. 158 makes sense only if the Court has made an order under s. 158(1) that the term of imprisonment is to have effect from arrest; but read literally, para. (2)(c) applies even if there is no such order. The solution appears to be to read the introductory part of subs. 2 as if it said "If subsection (1)(a) applies to an offender and the court has sentenced the offender to imprisonment and has ordered that the term of the imprisonment is to have effect on and from the day the offender was arrested, the sentencing court must...". That makes the introductory part harmonise with para. (c) of subs. 2 and also gives point to paras. (a) and (b), subject to one difficulty: if the offender has not been continuously in custody since arrest, the dates and time mentioned in those paragraphs will not reflect accurately the benefit the offender gains by the backdating. There are other obscurities in subs. 2.

Similar drafting errors infect s. 161. The expression "in circumstances to which subsection (1) applies" in s. 161(3) must, we think, be taken to mean "in circumstances to which subsection (1) applies and where the sentencing court has not otherwise ordered under that subsection". The additional words must, we think, be implied to make sense of subpara. (3)(c) and to give point to subparas. (a) and (b) of subs. (3). In the context of s. 161, subpara. (3)(d)(ii) is capable of practical application but, again, the implication of the notation that the declared time was taken into account is unclear. The subparagraph applies if the court has not otherwise ordered, under subs. (1) - i.e. where pre-sentence custody is taken to be time served under the sentence.

We think it useful to state, in summary, the proper use of ss. 158 and 161, by a court at first instance. These provisions apply only where there has been pre-sentence custody in relation to proceedings for the offence for which the sentence is imposed and for no other reason.

1. If the court's intention is that the sentence actually pronounced is to begin to run from the date of sentencing, then the court should order that any time that the offender has been held in custody to date is not to be taken to be imprisonment already served under the sentence, or words to that effect.

2. If the intention is that the sentence actually pronounced is to begin to run at a date before sentencing, then that may be achieved under s. 158 or under s. 161.

3. The court should state whether it is acting under s. 158 or under s. 161; the court may use s. 158 if the offender has been continuously in custody since arrest or it is desired that the term begin from arrest.

4. To achieve backdating under s. 158, the following orders are necessary:

(a) Order under s. 158 that the imprisonment have effect on and from the day the offender was arrested.

(b) The dates between which the offender was in custody in relation to proceedings for this offence and for no other reason are and .

(d) That time is declared to be imprisonment already served under the sentence.

Note: The period mentioned in (c) may be less than the period between arrest and sentencing, but nevertheless order (a) will achieve the result that the sentence imposed begins to run on the day of arrest.

5. To achieve backdating under s. 161, the following orders are necessary:

(a) The dates between which the offender was held in pre-sentence custody are and .

It will also be noted that the Commission is to be advised of the content of these orders.

2. The sentence imposed below is set aside and a sentence of imprisonment for 6 years commencing on the date of sentencing by the primary judge (26 July 1993) is substituted.

3. The time the applicant was held in custody prior to 26 July 1993 is not to be taken to be imprisonment already served under his sentence.

Criminal law - sentences Penalties and Sentences Act Ss. 158, 161 - proper construction - effect of pre-sentence custody - options and forms of order available to sentencing courts.

Solicitors: Legal Aid Office for the applicants

Judgment delivered the 21st day of December, 1993

I have read the reasons of the Chief Justice and Pincus J.A. in these matters and agree with their Honours reasons for holding that the sentences are manifestly excessive. The difficulty arises in formulating the basis of the reduction, and with respect to the proper form of the sentencing orders.

The learned sentencing Judge considered that apart from two discounting factors the appropriate sentence was twelve years imprisonment. This in my view was a higher starting point than the cases justify. Having regard to the cases mentioned in argument (and particularly Barry (C.A. 17 OF 1993), Cowen (C.A. 11 of 1992) and Baragwanath (C.A. 371 of 1990)), I think that the appropriate sentence, apart from the discounting factors, would have been between nine and ten years. I shall therefore take the median, nine and a half years, as the correct starting point.

The learned sentencing Judge allowed three years credit for the plea of guilty and for certain assistance given to the police, and whilst this may be thought to be on the generous side, it was not challenged on behalf of the Crown. It is therefore appropriate that such a credit be brought into account in the appellants' favour. This produces a prima facie sentence of six and a half years.

There remains only the question of pre-sentence custody, the effect to be given to it, and the appropriate form of order. Each offender had spent 77 days in custody before sentence. The custody was continuous from the date of arrest.

Whilst concurring with many of the observations of the Chief Justice and Pincus J.A. in relation to the interpretation of ss. 158 and 161 of the Penalties and Sentences Act, my approach to their application differs in some respects, and separate reasons are necessary.

Until the introduction of the Penalties and Sentences Act, which came into force for most purposes in December, 1992, sentencing in Queensland upon indictable offences was prospective, that is to say it took effect "from the day the court passes sentence upon the offender" (Queensland Criminal Code s. 20). Different practices in other States (including New South Wales), where sentences run from the date the offender is taken into custody, were noted in R. v. Leeth (1991) 1 Qd.R. 391 and R. v. Marshall (1993) 2 Qd.R. 307. It was recognised that prospective sentencing would be unjust unless it gave due allowance to the offender for time already served that was properly referable to the same matter (Marshall above). Recognition of the fact that in the ordinary case the offender would become eligible for consideration for parole at the halfway mark of his sentence led to the development of a rule of thumb which allowed a "deduction from the term otherwise properly imposable as head sentence (of) a period equal to twice the length of any pre-sentence time spent in custody" (Marshall p. 310 per Macrossan C.J., referring to decisions apparently accepting that practice). At the same time His Honour observed that that practice would "yield only approximate justice" and that "any practice of allowing as a discount against the head sentence twice the length of the period spent in custody on remand will not exactly correspond with the logic of the situation" (ibid p. 310).

The Penalties and Sentences Act has given Queensland Courts the option of sentencing prospectively (as previously) or of sentencing in other ways that will have a backdating effect. Unfortunately ss. 158 and 161 do not present the options with the clarity that might be desired.

The inaccuracy of the "doubling" exercise is easily demonstrated by an example such as one where the proper head sentence would be five years and the offender has served one year before being sentenced. If the doubling exercise is performed the Judge will then impose a sentence of three years. This produces eligibility for parole in a further eighteen months, so that when the one year already served is taken into account, the offender will have served two and a half years before being eligible for parole. Thus, so far as parole eligibility is concerned, the correct result is achieved consistently with the notional imposition of a head sentence of five years. The problem is that the head sentence has been cut down to three years plus the one year already served. The effective head sentence therefore cannot exceed four years. This is ex hypothesi inconsistent with the original premise that a head sentence of five years was appropriate. If the Judge applied logic or mathematics to the problem, the correct prospective sentence would be a head sentence of four years with a recommendation for consideration of parole after eighteen months. The so-called doubling exercise is mathematically flawed. Where relatively short periods of pre-sentence custody are involved, not much harm is done. But the longer the pre-sentence custody, the greater the error in the head sentence.

Now that both options (prospective sentences and backdated sentences) are available under a system which also recognises that due credit is to be given for pre-sentence custody, it is necessary to ensure that different results do not flow from the same starting points according to which sentencing method is employed. In my view although the doubling exercise may achieve approximate justice in some cases it is generally to be avoided in favour of the following more accurate approach to prospective sentencing. The head sentence is the sentence properly imposable less the time actually served up to time of sentence; and the non-parole period is half the sentence properly imposable less the time actually served up to time of sentence.

Section 158 deals with a relatively narrow category of cases where a court might think it appropriate to order that a term of imprisonment have effect from the day an offender was arrested. In practice, this is likely to be only in cases where the offender has been continuously in custody since that time or from that date and substantially for all of it. This would seem to be the appropriate way to construe and apply the section even though the draftsman has removed from s. 158 the words "continuously since arrest" which previously appeared.

Section 161 deals with a broader category of cases where an offender has been held in pre-sentence custody although not necessarily from the date of arrest and not necessarily for all or substantially all of the time with the result that while it is appropriate to give effect to the pre-sentence custody it is not appropriate actually to backdate the sentence to the date of arrest.

Section 161 gives the court the option to choose between two sentencing methods. One of these is the prospective sentence, similar to the system previously enforced. The other results in a notional as distinct from actual backdating. Unless the court "otherwise orders", the period of pre-sentence custody is "taken" to be imprisonment already served under it. This requires all persons (including the corrective service authorities) to recognise the backdating effect. In short, under s. 161, a backdating effect is automatic unless otherwise ordered. The court will only "otherwise order" under s. 161(1) when, having done its own calculations, it imposes a reduced sentence on account of the pre-sentence custody served.

There is some peculiarity in the drafting of both sections attributable to the use of the phrase "if subsection (1)(a) applies to an offender, the sentencing court must-" which appears in s. 158(2) and the phrase "if an offender was held in custody in circumstances to which subs. (1) applies, the sentencing court must-" which appears in s. 161(3). Reading each section as a whole, a literal construction is not sensible. The most sensible meaning comes from reading the above phrases to the effect "if the case falls within subs. (1) and the court orders effect from the date of arrest" (this in the case of s. 158) and similarly (in the case of s. 161) "where the case falls within subs. (1) and the sentencing court has not otherwise ordered". These meanings are those which it seems the draftsman intended in his reference to instances where subs. (1)(a) or subs. (1) "applies".

Accordingly, the obligation of a sentencing court to follow the procedure outlined in s. 158(2) is applicable only where the court is ordering effect from the date of arrest, and the obligation to follow the procedure in s. 161(3) is applicable only where the sentencing court has not otherwise ordered.

It is useful to consider, from the point of view of the sentencing court, how the above interpretation translates into practice. The assumption is that there has been pre-sentence custody in relation to proceedings for the offence and for no other reason.

If the court decides to impose a sentence that will begin from the date of sentencing (the old method), the court will first make appropriate discounts from what it would otherwise consider to be the appropriate head sentence, to give effect to time already served. The court will then order that the time for which the offender has been held in custody to date is not to be taken to be imprisonment already served under the sentence.

"The sentence has already been discounted by reason of pre-sentence imprisonment. Under s. 161(1) I direct that the period of pre-sentence custody is not to be taken to be imprisonment already served under the sentence."

In cases in which the offender has been continuously or substantially in

custody since the date of arrest, s. 158 affords a simple and useful option. In such a case the court states the properly imposable term, and the proper recommendation for parole, and orders that the term of imprisonment is to have effect on and from the day the offender was arrested, preferably specifying that date.

In all other cases the primary method contemplated by s. 161(1) will apply.

A sentence will be passed which makes no discount for pre-sentence custody with declarations that -

(i) the dates between which the offender was held in pre-sentence custody are and

(iii) that period is declared to be imprisonment already served under the sentence.

This option has much to commend it, because it will result in a precise credit being given for time already served, and the court needs merely to turn its mind to the appropriate head sentence and the appropriate recommendation for parole without engaging in potentially complex exercises. The judicial determination of the period spent in custody obliges the corrective service authorities to take it as imprisonment already served, and this effects a notional backdating.

In my view the present case affords a suitable example for the application of s. 158. There is little point in engaging in a less accurate rounding exercise under para. 1 above; or in a more precise calculation under the same paragraph leading to a sentence of six years and 115 days; or in the longer exercise under para. 3 above which would yield the same result. However as the other members of the Court prefer to do the rounding exercise (that is paragraph 1 above), the only consequence of which is to grant slightly more leniency in favour of the applicant, I join in the order proposed by the Chief Justice and Pincus J.A.

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