R v Ziegerink [2002] QCA 499

SUPREME COURT OF QUEENSLAND

CITATION: R v Ziegerink [2002] QCA 499

PARTIES: R v ZIEGERINK, Wayne Mark (applicant)

FILE NO/S: CA No 280 of 2002 DC No 2374 of 2002

DIVISION: Court of Appeal

PROCEEDING: Sentence Application

ORIGINATING COURT: District Court at Brisbane

DELIVERED EXTEMPORE ON: 15 November 2002

DELIVERED AT: Brisbane

HEARING DATE: 15 November 2002

JUDGES: de Jersey CJ, Jerrard JA and Mullins J Separate reasons for judgment of each member of the court, each concurring as to the orders made

ORDER: The application is refused

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED –– PARTICULAR OFFENCES – PROPERTY OFFENCES – where applicant concerned with period he would serve in custody for two sentences before being eligible for post-prison community based release – where recommendation by second sentencing judge that he be eligible for parole after serving 15 months – consideration of s 157 Penalties and Sentences Act 1992 as to whether this recommendation was correct / Penalties and Sentences Act 1992 (Qld), s 157 / R v Anderson [1995] 1 Qd R 49

COUNSEL: The applicant appeared on his own behalf T A Fuller for the respondent

SOLICITORS: The applicant appeared on his own behalf / Director of Public Prosecutions (Qld) for the respondent

THE CHIEF JUSTICE: The applicant was sentenced separately on two occasions in the District Court in respect of offending which occurred within the same overall period. He pleaded guilty before one District Court Judge on the 28th of March 2002 to a number of serious property offences and was sentenced effectively to four years imprisonment suspended after 15 months. Those offences occurred between the 25th of November 2000 and the 21st of May 2001.

He was then dealt with on the 30th of August 2002 by another Judge, again following pleas of guilty, in relation to 19 further offences of a similar character committed between the 7th of September 2000 and the 8th of November 2001. That Judge observed that it was unfortunate that those offences had not been dealt with on the earlier occasion and that is undoubtedly true.

The second District Court Judge sentenced the applicant effectively to four years seven months imprisonment, operative from the 30th of August 2002, of course, with a recommendation for consideration of eligibility for post prison community based release on the 30th of November 2003; that is, after the serving of 15 months actual imprisonment as from 30th August 2002.

The second Judge took the view that he was obliged under section 157 subsection 3 of the Penalties and Sentences Act to set a date for consideration for eligibility for parole, because the applicant was, when he came to be sentenced on that second occasion, already subject to a term of imprisonment of more than two years.

In other words, he treated the sentence of the first Judge as imposing a term of imprisonment of four years. But consistently with Anderson, 1995 1 Queensland Reports 49 at 54, with which I agree, the applicant should however have been regarded as then subject to a sentence of only 15 months.

The second Judge appears, with respect, to have approached section 157 subsection 3 in the wrong way. That section obliges a sentencing Judge to make a recommendation for post prison community based release:

"If a Court imposes another term of imprisonment on an offender who is already serving imprisonment for an offence and the offender's period of imprisonment is more than two years."

The term "period of imprisonment" is defined by section 4 of the Act as:

"The unbroken duration of imprisonment that an offender is to serve for two or more terms of imprisonment whether...imposed at the same time or different times."

Importing that definition into section 157 subsection 3, the provision is seen to require focus on the aggregation of the terms of imprisonment to which the offender is already subject and will be subject under the term of imprisonment about to be imposed.

For argument's sake, in this case, when the Judge came to sentence the applicant on the second occasion he would, in determining the applicability or otherwise of the obligation to specify a date for consideration of post prison community based release, have aggregated the 15 months term applicable as a result of the first sentencing process and the four years seven months imprisonment applicable under the second, absent any suspension, and allowing for overlap.

In this particular case there is no challenge to the appropriateness of the four years seven months terms imposed on the second occasion. In those circumstances the "period of imprisonment" which confronted the second sentencing Judge on the 30th of August 2002 plainly exceeded two years, so that that Judge was obliged to make a recommendation for post prison community based release because of the requirement of section 157 subsection 3.

In other words, although for the wrong reason, the second Judge did, in my view, correctly apprehend that he was obliged to make such a recommendation. The applicant's concern is that the Judge on the second occasion appears to have intended that the applicant should be released on the 30th of November 2003.

In his present situation his being released on that date is subject to a favourable determination by the Queensland Community Corrections Board. The applicant has expressed doubts as to the process of that Board, but the Court must proceed on the basis that the Board will proceed regularly and give appropriate weight to the recommendation made by the second Judge in this case.

The applicant has suggested that had the Judge on the first occasion dealt with all of the offending, that is, including the 19 pleas which were determined on 30th August 2002, he would likely have suspended the sentence on the 30th of November to 2003.

I have to say that I do not think that at all clear. While that Judge was prepared to grant the applicant the benefit of a suspension, it may be that had that Judge been dealing in addition with the 19 further offences, he would not have taken such a course, and would have preferred to leave the question of the applicant's release into the community in the hands of the relevant Community Corrections Board.

In any event, that is, in a sense, by the way, because the issue here is whether the Judge correctly made a recommendation. In my view, under the sentencing he proposed, and imposed, he was obliged to make such a recommendation, for the reasons previously expressed. That being so, the application should, in my view, be refused.

JERRARD JA: I agree with the remarks of the learned Chief Justice. I think that in the circumstances where the applicant overall was being sentenced for some 29 offences committed between September 2000 and November 2001 in respect of which $70,000 worth of property was stolen or damaged on the matters before the second sentencing Judge and where the vast majority of those matters being dealt with by that second sentencing Judge in August this year were committed whilst on bail, it is appropriate that the Judge who sentenced the applicant should have made an order requiring the applicant to demonstrate to the appropriate Community Corrections Board why it was safe to release him again into the community, taking into account the recommendation of the Judge that he be considered for release on a reasonable early date as against that offending behaviour of November 2003.

I add only that it would have been theoretically open, in my judgment, to the second sentencing Judge to have imposed a term of imprisonment of which portion was not suspended and portion was suspended with the result that an aggregate unsuspended term of imprisonment of less than two years was achieved. But I do not think that would have been an appropriate order to make in this case.

MULLINS J: I also agree with the reasons of the Chief Justice and the order proposed.

THE CHIEF JUSTICE: The application is refused.