(applicant) v THE QUEEN

Commonwealth Director of Public Prosecutions for the respondent

[1] WILSON J: This is an application to reopen a sentence imposed on 26 March 2003.

[2] The applicant was convicted of being knowingly concerned in the importation of narcotics, namely MDMA and MDEA, in not less than trafficable quantities between 13 and 22 May 2001. The offence was a Federal one under the Customs Act 1901. Accordingly provisions of the Crimes Act 1914 (Cth) were applicable to the sentencing.

[3] At the time of conviction and sentence, the applicant was serving a sentence for offences committed against Queensland law. The State sentence was for a term of imprisonment of 3 years with a recommendation for eligibility for post-prison community based release ("PPCBR") after 1 year. The State sentence commenced on 16 January 2002. Before the applicant was tried and convicted of the Federal offence, he made an application for PPCBR under the State sentence: however, the corrections board deferred consideration of the application until after the conclusion of the proceedings relating to the Federal offence, and on his subsequent conviction, the application lapsed: Corrective Services Act 2000 (Qld) s 138. His period of actual incarceration under the State sentence was expected to terminate on 15 January 2004 assuming he did not lose the benefit of remissions under s 75 of the Corrective Services Act.

[4] For the Federal offence, the applicant was sentenced to 4 years imprisonment, cumulative on the State sentence, and to commence immediately upon the expiration of incarceration in respect of the State sentence, with a non-parole period of 2 years. In fixing the head sentence, I took account of the effective loss of the recommendation for PPCBR under the State sentence by reducing the term I would otherwise have imposed from 5 to 4 years.

[5] The applicant appealed to the Court of Appeal against his conviction of the Federal offence, and sought leave to appeal against the sentence imposed for it. Both the appeal and the application for leave to appeal against sentence were dismissed on 8 July 2003: R v MacCormack [2003] QCA 280.

[6] The present application was brought pursuant to s 188 of the Penalties and Sentences Act 1992 (Qld). Subsection (1) provides -

(1) If a court has in, or in connection with, a criminal proceeding, including a proceeding on appeal -

(a) imposed a sentence that is not in accordance with the law; or

(b) failed to impose a sentence that the court legally should have imposed; or

(c) imposed a sentence decided on a clear factual error of substance;

the court, whether or not differently constituted, may reopen the proceeding."

The application was properly brought before this Court, which was the Court which had imposed the sentence: R v McQuire [2003] QCA 523; [2004] 1 Qd R 685; R v Dobie [2004] QCA 140; (2004) 145 A Crim R 472.

[7] Such an application ought ordinarily be made within 28 days after the day when the sentence was imposed, although the Court has power to extend that time: s 188(5). In the present case the application is dated 30 December 2004. The applicant's explanation for the delay is that soon after he was sentenced for the Federal offence, he received sentence calculations from the prison authorities which showed his PPCBR date as being 26 March 2005, and that it was not until late October 2004 that he received sentence calculations showing that date as 16 January 2006. In the circumstances I would be prepared to grant an extension of time for bringing the application if I thought it otherwise had merit. However, as I am about to explain, I do not consider that it has merit.

[8] The application was drawn at a time when the applicant did not have legal representation. It invoked paragraph (c) of s 188(1) (that the sentence was decided on a clear factual error of substance) as follows -

"1. The Crown inadvertently advised the Learned Judge that the recommendation for a non-parole period being made had to commence at the remitted time on the State sentence the applicant was serving.

2. The Learned Judge acting under this mistaken advice reduced the applicants head sentence to reflect the disparity caused by imposing a non-parole period commencing at remitted time.

3. The reduction in head sentence given by the Learned Judge has not been given effect by the Department of Corrective Services and the applicant is serving a period of imprisonment of seven years not the period of six years that was declared.

4. The Crown inadvertently neglected to advise the Learned Judge that under s19(1)(b) of the Crimes Act 1914 the non-parole period on the Federal sentence could have started at the expiration of the non-parole period of the State sentence.

5. The Crown inadvertently neglected to advise the Learned Judge that the non-conflicting State legislation (ss157(3)(a) and (5)(b) of the Penalties and Sentences Act 1992) provided scope for her to commence the non-parole period from the date of sentence."

[9] When the application came on for hearing on 9 March 2005, the following material was before the Court -

(ii) affidavit of the applicant sworn on 26 February 2005;

(v) written submissions on behalf of the Crown (the respondent) 21 March 2003;

(vi) written submissions on behalf of the defendant (the applicant) 24 March 2003;

(vii) transcript of submissions on sentence 17 March 2003;

(viii) transcript of further submissions on sentence 26 March 2003;

(x) reasons for judgment of Court of Appeal 8 July 2003;

The applicant was represented by counsel, and the oral submissions made were recorded and a transcript was subsequently produced.

[10] Counsel for the applicant relied on paragraphs (a) and (b) of s 188(1), and not para (c). His submissions went to the purpose and effect of s 19(1)(b) of the Crimes Act 1914 (Cth). That provision had been considered at first instance and by the Court of Appeal.

[11] Under s 19(1)(b) -

"(1) Where a person who is convicted of a federal offence or federal offences is at the time of that conviction or those convictions, serving, or subject to, one or more federal, State or Territory sentences, the court must, when imposing a federal sentence for that federal offence, or for each of those federal offences, by order direct when the federal sentence commences, but so that:

(b) if a non-parole period applies in respect of any State or Territory sentences--the first federal sentence to commence after the end of that non-parole period commences immediately after the end of the period."

The expression "non-parole period" is defined in s 16(1) in these terms -

"non-parole period, in relation to a sentence or sentences of imprisonment, means that part of the period of imprisonment for that sentence or those sentences during which the person is not to be released on parole, whether that part of the period is fixed or recommended by a court or fixed by operation of law."

[12] The principal submission for the applicant was that as a matter of law the sentence for the Federal offence should have been directed to commence on 16 January 2003, that is, immediately after the end of the non-parole period in respect of the State sentence. This was submitted to be the effect of s 19(1)(b).

[13] A similar argument was rejected by the Court of Appeal in R v Dobie [2004] QCA 140; (2004) 145 A Crim R 472. In that case the Court which imposed the State sentence did not make a recommendation as to a parole eligibility date; by force of s 166(1)(d) of the Corrective Services Act 1988 such eligibility arose upon a prisoner's having served half his term of imprisonment. After that date had passed, and while the applicant was still in prison pursuant to his State sentence, he was sentenced for Federal offences. The Federal sentence was to be cumulative on the State sentence, and to commence upon the expiration of the State sentence. It was submitted that s 19(1)(b) of the Crimes Act 1914 required the parole eligibility date under the earlier sentence to be the commencement date of the cumulative sentence for the Federal offences. Davies JA (with whom the other members of the Court agreed) said -

"It may be noted that s 19(1)(b) speaks in the present tense: 'applies'. Thus it requires for its operation the existence of a non-parole period applying in respect of a State or Territory sentence at the time when a federal sentence is being imposed."

His Honour noted that the non-parole period under the State sentence had expired before the Federal sentence was imposed, and continued -

"Consequently, it seems to me that, when these sentences were imposed there was no non-parole period applying in respect of the State offence. Section 19(1)(b) therefore had no application at the time the applicant was sentenced for these offences.

It may be added that the construction which the applicant would place on s 19(1)(b) would have the very odd consequence, as this case illustrates, of a sentence imposed by the court commencing before the time it is imposed. If there were any doubt about the correct meaning of s 19(1)(b) I would construe it in a way which would avoid that odd result. The intention of s 19 as a whole appears to be plainly to ensure that there is no gap between the end of a sentence which an offender is serving at the time when he or she is convicted for a federal offence and the commencement of the sentence for that federal offence. The construction which I have adopted here gives effect to that purpose."

An application for special leave to appeal to the High Court against the Court of Appeal's decision in Dobie is pending.

[14] In the present case, the applicant's counsel submitted that Dobie was wrongly decided, and in any event that it was distinguishable.

[15] I am bound to follow Dobie unless it is distinguishable. Counsel for the applicant submitted that it is distinguishable because in the present case the non-parole period in relation to the State sentence was nominated by the Court which imposed that sentence.

[16] In Queensland the decision whether a prisoner is to be released on parole is that of a corrections board, which is not bound by the sentencing Court's recommendation: Corrective Services Act 2000 ss 134 - 140. However, in the case of a Federal sentence of between 3 and 10 years, the Attorney-General must direct that the prisoner be released on parole at the end of the non-parole period or on a specified day not earlier than 30 days before the end of the non-parole period: Crimes Act 1914 s 19AL(1). The definition of "non-parole period" in s 16(1) of the Crimes Act refers to "that part of the period of imprisonment ... during which the person is not to be released on parole, whether that part of the period is fixed or recommended by a court or fixed by operation of law". Thus it applies both to a period at the end of which a prisoner must be released and to a period at the end of which he may apply for release. Further, it applies both to a period nominated by a Court (whether by fixing or recommending) and to one fixed by operation of law (eg. that in Dobie). In my view, the present case is not distinguishable from Dobie.

[17] It follows that neither paragraph (a) nor paragraph (b) of s 188(1) of the Penalties and Sentences Act has been satisfied, and the application to reopen the sentence has no prospect of success.

[18] It was common ground that unless the sentence were reopened and altered, the applicant would be released on 16 January 2006. There were various other dates shown in the sentence calculations provided to the applicant in October last year, some of which were apparently wrong or inexplicable. However, they are matters to be taken up with the prison authorities, and not for correction on this application.

[19] Both the oral application for an extension of time, and the substantive application for reopening are dismissed.