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R v McMahon

 

[2002] QCA 18

 

COURT OF APPEAL

 

McPHERSON JA

THOMAS JA

AMBROSE J

 

CA No 233 of 2001

THE QUEEN

v.

SCOTT ANDREW McMAHONApplicant

 

BRISBANE

DATE 06/02/2002

 

JUDGMENT

 

McPHERSON JA:  This is an application for an extension of time within which to apply for leave to appeal against sentence.

 

The applicant was convicted on pleas of guilty in the District Court at Brisbane on 19 December 1997 and sentenced on the same day.  The application was filed by the applicant on 4 September 2001, which is approximately three years and eight months beyond the time allowed for it under the Rules.

 

The periods of imprisonment imposed were as follows; that is, 3 years imprisonment for burglary, 12 months for stealing, 18 months for break and enter and wilful damage, 9 months imprisonment for another count of wilful damage and a further 2 years for use of a motor vehicle with a circumstance of aggravation.

 

The sentences for those offences were ordered to be served concurrently and so resulted in an effective 3-year sentence of imprisonment for the offences involved.  They were, however, made cumulative on an earlier sentence the applicant was already serving at that time, that is, when he was sentenced for the later offences with which we are now concerned.

 

A recommendation was made in respect of the first sentence that the applicant be paroled on and from 20 December 2001.  However, as a result of the subsequent offences, his Honour in sentencing him ordered that the applicant be considered for parole, on what I will call the upshot of the two sentencing processes, to take effect on 20 February 2002.  That would have added to his existing sentence a term of imprisonment of approximately 10 months or so.

 

The circumstances of the offences committed can be summarised as follows.  Counts 1 and 2, that is burglary and stealing, were committed on 5 April 1997, when the complainant's residence was broken into while he was away.  The complainant discovered a large number of items were missing when he came back, but the applicant's fingerprints were found at the scene and he was detected in that way.

 

Counts 3, 4 and 5, which are the offences of break and enter, wilful damage and unlawful use of a motor vehicle were committed on 26 May 1997 when, at approximately 4.45 a.m., the police were called to a video rental store on a complaint that a break and enter was in progress.  A vehicle with its engine still warm was found outside the store.  It had been stolen earlier from Greenslopes where it had previously been locked and secured by the complainant.  The applicant, after being called to come out of the store by police, fled the scene, but was caught after a chase.  The damage to the store included jemmying open the front door and forcibly removing the cash box from an amusement machine of some kind.

 

To my mind, taking account of previous offence, the duration of the imprisonment imposed and the way in which the learned sentencing Judge made it cumulative on the sentence for the earlier offence, as well as his Honour's approach generally to the question of the proper sentence in respect of the later offences, shows in my opinion that the sentence was in no way erroneous.  There is no basis for setting it aside.

 

These events may, however, have some relevance in considering the applicant's explanation for his delay in bringing the present application before the Court.

 

The grounds advanced in support of this application are essentially these.  First, that the impact of the sentence imposed by the Court has since been altered by an Act of Parliament, which abolished remissions in respect of time being served in prison.  The result is, the applicant says, that he is now being punished to a greater extent than was previously required or intended under the law applicable at the time he committed the offences with which we are now concerned.

 

The difference, I understand, is that whereas previously he might have expected to be released in February 2002, he will, owing to the abolition of those remissions, not be released on parole until February 2004.  That is obviously a substantial time which produces a significant difference from the point of view of the applicant.

 

The submission also proceeds along the lines that the impact of that change in the law was not previously known, with the consequence that an appeal was not pursued or contemplated until the introduction of the new Act which had the effect of altering the applicant's sentence.

 

The applicant now seeks an extension of time because his sentence has only been recently altered by the legislation.  The impact of the new laws was not known to him until quite recently, which, as it happens, was only some two weeks before the due date of his expected discharge.

 

At the hearing in December 1997 the learned sentencing Judge said that he had been informed that the applicant's full-time release date from the original sentence he was serving was to have been the 20 February 2001.  His Honour went on to say that, although an earlier release date might have been available with the benefit of remissions, the applicant was perhaps unlikely to receive such a benefit in the circumstances of his offending behaviour.

 

His Honour therefore proceeded on the basis that the 20 February 2001 was the date upon which any further sentence being imposed on that occasion would commence to run.  He then added, "If that is correct, it will be up to someone to have these proceedings re-opened."

 

It seems to me quite plain that his Honour, in making that remark, was referring simply to the process of calculating the likely date of release on parole under the sentence he was imposing.  That calculation, and other calculations like it, are quite often a matter of some difficulty, not only, I might say, to his Honour in this case, but to most of us in many other cases.

 

It was only with reference to that matter of what I may call arithmetical calculation, and not in respect of the sentence generally, that his Honour was inviting an application to re-open the sentence in the event that he had his calculations wrong.  It is therefore not possible to say, even if it were relevant (which I do not think it is) that his Honour was inviting anyone to come along and review or revise the sentence if for any reason his sentencing discretion was later shown to have miscarried.  Once a sentencing Judge has arrived at and imposed a sentence in a case, including a sentence of imprisonment of a particular kind or duration, it is not generally open to that Court or Judge to alter or revise that sentence. 

 

Again, speaking generally, such a step can be taken only under the power conferred by s 188(1)(c) of the Penalties and Sentences Act, which provides for a review or reconsideration of a sentence in a case where in terms of that provision there has been "a clear factual error of substance in the sentence".  That expression is not to be given an unnaturally wide interpretation, as can be seen from the recent decision in R v. Cassar, ex parte Attorney General [2001] QCA 300 and also from R v. Kelly [2001] QCA 202.  It plainly does not extend to unavoidable ignorance of every proposed future change in the relevant statutory regime that will at some time in future prevail in prisons and regulate the period of actual time that is to be served under a sentence.

 

A Judge is, of course, bound to apply the law as it stands when he comes to consider a sentence, and not the law as in future it may become.  That is so, I might add, even if he in fact knows or thinks that such a change is likely to ensue.  In the present case it hardly seems likely that the sentencing Judge was aware in 1997 that there would in future be a change of this kind in the prison regime or in the statute or practice that regulates it.  Even if he had known of it, it would not have been right as a matter of law for his Honour to take it into account in arriving at the duration of the sentence to be imposed.

 

The only other avenue for complaint against a sentence is by an appeal against it to this Court.  However, in reviewing a sentence on appeal the function of this Court is to see whether there was an error that affected the sentencing process at the time it was being performed by the Judge in the Court below.  That, of course, means that any relevant error that is found must, to be open to correction in this Court, be an error that exists and can be found in the terms of the Judge's reasons or decision in the court below when he imposed the sentence appealed against. 

 

Now, the fact that in this instance the law was changed after the sentencing process had been completed in December 1997 is not a matter which can be regarded in this Court as an error that is open to correction on appeal.  The critical change in the law occurred after the sentencing process had been carried out; and the fact that we now know there was such a change does not show that at the time the sentence was imposed it was wrong in any respect.  Indeed, as I have already said, the sentencing Judge would, to my mind, certainly have been wrong then to take account of this prospective recent change in the law even if he had known about it as long ago as when the sentencing hearing took place in this instance in 1997. 

 

In substance, and I understand this really to be acknowledged by Mr Smith in his careful submission, both of these points have already been considered and disposed of in this Court in a decision concerned with an application by another prisoner who is similarly aggrieved by the late change in the duration of the sentence he will have to serve.  It is the decision of R v. Stephenson [2001] QCA 407, where the judgments of Justice White and Justice Wilson carefully consider the questions raised before us now.   We are bound by that decision, and would be bound to follow it, even if we did not consider it to be correct.

 

I certainly do consider it to be correct, and we must apply it here.  For that reason the applicant's prospects of successfully pursuing an appeal in this matter are very slight indeed.  Indeed, I would go so far as to say he has no prospects at all of succeeding on appeal even if we were able and disposed to grant him leave to appeal.

 

The applicant's real complaint is that he will now be serving a sentence considerably longer than may have been intended when the sentence was imposed in December 1997.  That is, however, the result of the recent legislation abolishing remissions for good behaviour within the prison system, and is not due to any error on the part of the judge who imposed sentence in 1997.  It is the consequence of a decision or action taken not by the Judge but by Parliament over which this Court has no control at all.  It is not the result of any mistake or error which judges have power to correct.  Any hardship that has been suffered by the applicant is not of our making and it is beyond our authority to redress it or put it right.

 

The case in one respect to some extent resembles the kind of problem that was considered by the High Court in Siganto v. R (1998) 194 CLR 656, at 662, where their Honours said that an Act was intended to apply to offenders being sentenced for offences committed before the commencement of the Act.  Giving effect to an intention like that produced the result that people who had previously offended, but had not yet been sentenced, would be treated differently from people who had previously offended and had been sentenced.  "This" their Honours said, "is not relevantly inequality before the law, it is a consequence of a change in the law."

 

There are some obvious differences between the point being considered in that case and this.  The present case is not one in which the applicant is being treated differently from any other person who has committed an offence before a change in the law.  It is a case in which the applicant was serving a sentence when the law was changed, and will now be treated in the same way as any others who undergo their sentences under the same regime; but differently from those undergoing a prison system who complete their sentences before the new regime was introduced. 

 

There is, however, no doubt that Parliament has authority to make changes like these, and, although it usually does not do so in the case of sentences already being served, there is no legal impediment to its doing so, and no legal basis on which are able to reject the Act or refuse to apply it.  The result is that, however hard it may seem to the applicant (and it appears to me to be working harshly against him here), the new Act has to be given its effect.  It is not within our power to detract from it or alter or modify its provisions or effect.

 

I should perhaps add, in case it be thought that I have not clearly expressed myself on the subject, that the delay in appealing here is, I consider, sufficiently explained by the applicant; but, for the reasons I have already stated, he has no prospect of succeeding on an appeal because no error was made in sentencing him for which we can in law give any redress either in this or any other matter of a similar kind.  I would, therefore, refuse the application for leave to appeal.

 

THOMAS JA:  We are asked to entertain an appeal the aim of which is to have this Court set aside a sentence that contained no legal or factual error.  If we set it aside we would then be asked to re-sentence on the footing of what the learned sentencing Judge would have done had he known what Parliament would later do in 2000 by enacting section 207B of the Corrective Services Act.

 

In my opinion no one would be entitled to be sentenced on such a basis, either at the time of the original sentence or now.  No question of procedural fairness arises here such as arose in Pantorno v. The Queen (1989) 166 Commonwealth Law Reports 466.  I can understand the applicant's concern over the position in which he now finds himself but his grievance directly results from an Act of Parliament that produces harsh administrative effects.  These effects are not something that can be reversed by judicial decision. 

 

I agree generally with the observations of Mr Justice McPherson and with his proposed refusal of the application.

 

AMBROSE J:  I agree with what has been observed by my brothers.  It is not contended on behalf of the applicant in this case that the sentence was manifestly excessive at the time that it was imposed.  It is only contended that a subsequent loss of privilege by virtue of the passing of section 207B of the Act made it arguably manifestly excessive. 

 

In those circumstances, in my view, it has not been demonstrated that there is any prospect of success on an application for leave to appeal if an extension be granted.  I would, therefore, reject the application for an extension.

 

McPHERSON JA:  The order of the Court is that the application for leave to appeal against sentence is refused.

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Editorial Notes

  • Published Case Name:

    R v McMahon

  • Shortened Case Name:

    R v McMahon

  • MNC:

    [2002] QCA 18

  • Court:

    QCA

  • Judge(s):

    McPherson JA, Thomas JA, Ambrose J

  • Date:

    06 Feb 2002

Litigation History

Event Citation or File Date Notes
Appeal Determined (QCA) [2002] QCA 18 06 Feb 2002 -
Special Leave Refused [2003] HCATrans 844 25 Jun 2003 -

Appeal Status

{solid} Appeal Determined - {hollow-slash} Special Leave Refused (HCA)