The Queen v Sayers[1997] QCA 274

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Brisbane

[R. v. Sayers]

[R. v. Frost]

C.A. No.104 of 1997

THE QUEEN

v.

DONALD JEFFREY SAYERS

(Applicant)

C.A. No.137 of 1997

THE QUEEN

v.

ANTHONY JOHN FROST

(Applicant)

Demack J

Mackenzie J

Helman J

Judgment delivered 5 September, 1997

Separate reasons for judgment of each member of the Court, each concurring as to the orders made.

APPLICATION BY SAYERS FOR LEAVE TO APPEAL AGAINST SENTENCE DISMISSED.

APPLICATION BY FROST FOR LEAVE TO APPEAL AGAINST SENTENCE DISMISSED.

CATCHWORDS: SENTENCE - Armed robbery in company with associated offences of deprivation of liberty - Three separate incidents over a three week period with increasing preparation and willingness to harm victims - Sentences of 7, 10 and 12 years imprisonment with recommendations for parole after 5 years not excessive.

SENTENCE - Rape and associated sexual offences - committed by offender who had been involved in a series of armed robberies in company - Increasing willingness to harm victims - Sentence of 18 years imprisonment with recommendation for parole after 8 years not excessive.

STATUTES - Penalties and Sentences (Serious Violent Offences) Amendment Act 1997 - Does not have effect of setting aside recommendations for parole made prior to 1 July 1997.

Counsel:  Mr A.J. Glynn SC for the applicant, Frost

Mr A.J. Rafter for the applicant, Sayers

Mr J. Hunter for the respondent

Solicitors:  Legal Aid Queensland for the applicant

Director of Public Prosecutions Queensland for the respondent

Hearing date:  20 June 1997

REASONS FOR JUDGMENT - DEMACK J.

Judgment Delivered 5 September 1997

These applications for leave to appeal are in respect of sentences imposed on the applicants following their pleas of guilty in the District Court.  The offences were committed between 23 March 1996 and 14 April 1996.  At that time, Sayers was aged 23 years and had no previous convictions.  Frost was also aged 23 years and he had been convicted in the Brisbane Magistrates Court on 8 September 1992 of an aggravated assault of a sexual nature on a 12 year old girl and of an aggravated assault on a boy under the age of 14 years.  He was placed on probation on each charge.

On 11 March 1997, Sayers pleaded guilty to 6 offences of armed robbery in company, 13 offences of deprivation of liberty and an offence of entering a dwelling house in the night-time with intent.  Frost also pleaded guilty to those offences together with 2 offences of indecent assault, an offence of attempted rape, an offence of disabling with intent and 2 offences of rape.

Both men had given an early indication of an intention to plead guilty and in each case there had been a hand-up committal.  All of the people affected directly by their crimes were spared the experience of giving evidence.  Sayers had been examined by a psychologist.  The psychologist’s report showed that, until he was injured in a motor vehicle accident on 14 April 1994, he had lived a generally happy life.  His injuries interrupted his apprenticeship as an electrician and he claimed to have become depressed.  The psychologist’s report contains some speculation about the physical injuries, some unsubstantiated allegations about Frost and some eagerness to find someone else to blame for Sayer’s criminal behaviour.  More significant than that report was his counsel’s statement to the sentencing judge that he came from a close-knit family, 12 of whom were present at court to support him.

It was said by Frost that his mother was schizophrenic and had attempted to kill herself on a number of occasions.  He was assaulted by his step-father.  Both Frost and Sayers seem to have been taking drugs and the suggestion was that the offences were committed to obtain money to purchase drugs.  The offences were committed on three occasions, and it is convenient to describe each occasion in some detail.

23 March 1996

23 March 1996 was a Saturday.  At about 9.20 pm two people were working in the Go Video store at Carina.  They were the employed manager, Mr Moon, aged 44 years, and a 17 year old female assistant.  Sayers and Frost, wearing stocking masks and brandishing replica pistols, ran into the store and demanded money.  They took money from the cash register and from Mr Moon’s pocket.  The amount involved is not disclosed in the record.  The two employees did not know the pistols were replicas.  No impact statement was obtained from the young woman.  Mr Moon left his employment at the video store for personal reasons and is said to remain fearful of taking employment where armed robbery is a possibility.

This incident led to both Sayers and Frost being charged with two counts of armed robbery in company, one in respect of the taking of money from the cash register, the other in respect of the taking of Mr Moon’s money.  Each offender was sentenced to seven years imprisonment.

4 April 1996

4 April 1996 was the day before Good Friday 1996.  At about 4.30 pm that day, Sayers and Frost entered the premises of Ray White Real Estate New Farm. Frost was armed with a replica pistol and Sayers was armed with a knife. There were six employees of the business in the premises.  Those on the ground floor were threatened, told to open the safe and forced to lie on the floor.  Two employees who were in an upstairs office were brought downstairs by Frost who struck the male employee with the pistol and the female employee with his hand.  When Sayers and Frost realised there was only $2,000 in the safe they made further threats but were told that the banking had been completed shortly before they arrived.  The six people were then forced upstairs and bound hand and foot with plastic adhesive tape.  At about this time a man arrived to pay his rent.  He was also taken upstairs and bound.  Another woman also arrived to pay rent and was taken upstairs but by then the supply of tape was apparently exhausted.  One of the employees had a pen torn from his shirt and another had a mobile phone and a wallet containing personal papers and money taken from her.  The phones in the premises were torn out.

Seven of the eight people who were detained in this violent and frightening way prepared impact statements which describe the terror Frost and Sayers produced.  Frost was the more vocal and demanding, but Sayers, armed with a knife, reinforced Frost’s display.  From this incident, there were three charges of armed robbery in company and eight charges of deprivation of liberty.  Each offender was sentenced to ten years imprisonment on each count of armed robbery in company and to three years imprisonment on each count of unlawful detention.

14 April 1996

On 14 April 1996, Sayers and Frost went driving around in the evening looking for a house with an open door.  They had the replica pistol, a U.S. Army Colt 45 automatic, a knife, some plastic adhesive tape, Ziplock cable ties and gloves.  They found such a house at Greenbank, and, at about 10 pm, burst into the residence of Mr M.  Mr M lived there with his four children, daughters aged 12 and 3 years and sons aged 9 and 7 years.  The eldest daughter was watching television with her father.  The other children were asleep.  Frost was armed with the replica pistol and Sayers with the knife.  They forced Mr M and his eldest daughter into the boys’ bedroom.  They asked many questions about the people in the house and about the likelihood of others arriving.  They demanded money and credit cards.  Mr M was allowed to bring the youngest girl into the room.  All were then tied up hand and foot with Ziplock cable ties and plastic adhesive tape.  Tape was placed over Mr M’s mouth.  A search was made for valuables and Mr M’s wallet was taken.  This series of events led to each offender being charged with armed robbery in company.  Each was sentenced to twelve years imprisonment.  Each was also charged with five charges of deprivation of liberty for which sentences of three years imprisonment were imposed.

Frost dragged the eldest daughter out of the boys’ bedroom.  He took her to her bedroom.  He put tape around her mouth and head.  He pushed her onto her knees, grabbed her breasts and attempted to have intercourse.  She tried to scream and he squeezed her neck until she had difficulty breathing.  At one point he called Sayers to bring his knife so that he could cut the Ziplock ties around the girl’s wrists.  He was unsuccessful but cut her wrist in the process.  He raped her twice.  This series of incidents in the girl’s bedroom took about 20 minutes.  Frost was charged with and pleaded guilty to 2 counts of unlawful and indecent assault, and was sentenced to five years imprisonment on one charge and to seven years imprisonment on the other.  He also pleaded guilty to a charge of attempted rape and was sentenced to five years imprisonment.  There was a further charge of disabling with intent to commit a crime for which a sentence of ten years imprisonment was imposed.  In respect of each count of rape he received a sentence of eighteen years imprisonment.

All sentences imposed on each offender were to be served concurrently.

Each offender had been in custody from 2 May 1996 until 13 March 1997 when they were sentenced.  That period of detention was declared to be time already served under their sentence.  Sayers was recommended for consideration for parole after five years and Frost was recommended for consideration for parole after eight years.

Sayers’ appeal

Sayers’ application for leave to appeal against sentence relied on the following matters:-

1. The applicant is 24 years old and has no previous convictions.

2. Early notification to the Crown of intention to plead guilty.

3. The Crown accepted that Frost was the active participant particularly during the Ray White and Greenbank incidents.

4. The prosecution argued that the applicant’s criminality should attract a head sentence of 8-9 years.

5. Psychologist’s report from Mr P Perros indicated that at the time of the offences the applicant was clinically depressed.  Further, it stated that the offences are out of character and it was highly unlikely that he would re-offend.

6. A statement by the applicant was tendered by his counsel.  This statement revealed the difficulties faced by the applicant while in custody;  he had been raped.

Mr Rafter, who appeared for Sayers, relied particularly upon the decisions of this Court in The Queen v. Lawrence Edgar Gills (C.A. No. 443 of 1995, 2 February 1996) and The Queen v. Simplicio Mervyn Awai, Christopher Roimat Roy Rapana, and Danny Tangia Rapana (C.A. Nos. 118, 136 and 137 of 1994, 15 June 1994).  Each case involved a bad example of violent home invasion.  Gills was sentenced to eight years imprisonment.  He had encouraged eight or more males to enter a victim’s house to search for drugs.  The intruders were armed with a rifle, a base ball bat, tyre levers and sticks.  They had, in fact, entered the wrong house.  They damaged property, terrorised the female occupant of the house and stole some compact discs before leaving.  Gills did not enter the house.  His application for leave to appeal was refused.

Awai, Rapana and Rapana were given head sentences of ten years for offences of armed robbery in company.  Two other men had previously been sentenced to eight years imprisonment for their part in the same offences.  On appeal Awai, Rapana and Rapana received the same sentences.

If Sayers had been involved in only the events of 14 April 1996, it could be confidently asserted that a sentence of twelve years’ imprisonment for a person who had no previous convictions is manifestly excessive.  However that was not the case.  In imposing a sentence of seven years imprisonment in respect of the offence committed on 23 March 1996, the learned District Court judge specifically referred to the decision of this Court in The Queen v. Matthew Kenneth Hammond (C.A. No. 445 of 1996, 10 December 1996).  In that decision the Court reviewed many appeals in respect of sentences for armed robbery.  In Hammond’s case it reduced the sentence of seven years imprisonment for three offences of armed robbery to a sentence of five years imprisonment.  Hammond had committed robbery at three service stations over a period of two days.  On two occasions he was armed with a steering wheel lock and on the third occasion he was armed with a piece of pipe.  He backed up his demands for money by striking the counter on each occasion.  He took about $1,500 in all.  The decisions that were reviewed show that there is a range within which sentences may be imposed and the sentence of seven years for the armed robbery in company on 23 March 1996 is within that range.  Mr Rafter conceded that he could not argue strenuously to the contrary.

While it is the case that Frost was more active and more voluble than Sayers, those things cannot in themselves constitute a sound basis for distinguishing between the culpability of the two men.  They both were armed, they both participated in the criminal conduct and there is no basis for distinguishing between them in respect of the offences with which they both were charged.  In his discussions with the psychologist, Sayers was anxious to dissociate himself from Frost’s sexual offences, but he was not charged with those offences.

When the three events which give rise to the offences for which Sayers was sentenced are considered, they present a frightening escalation in criminality over a matter of weeks.  The first robbery involved no direct violence to the victims, although the replica pistols produced enough fear.  The next involved the striking of at least two people and the binding of seven people, as well as repeated threats and damage to telephones.  The episode was a lengthy one.  In the course of binding up the people, Sayers and Frost ran out of tape.  On the third occasion they were better prepared with Ziplock cable fasteners as well as plastic adhesive tape.  They added gloves to their equipment.  Before there was any assault upon the twelve year old girl, they had bound the four children and their father hand and foot. Frost also taped over Mr M’s mouth.  This shows that there was an increase in the degree of preparation for criminal activity and an increased willingness to do physical harm to their victims.  The fact that Sayers had no convictions prior to 23 March 1996 lost its value as a circumstance of mitigation by 14 April 1996.  This is not a case where a series of offences of equal gravity were committed in one plunge into criminal behaviour.

It cannot be said that when the sentences were imposed on Sayers on 13 March 1997 they were manifestly excessive.

Frost’s appeal

Mr Glynn S.C. recognised that, if the sentence imposed on Sayers were not excessive, there was little that could be said about the additional six years which Frost received.  The offences Frost committed on the twelve year old girl call for a heavy sentence.  If they stood alone, 6 years imprisonment would be grossly inadequate.  Taken as part of an outburst of criminal behaviour, the sentence of 18 years imprisonment is a proper one.  Reference was made to the decision of this Court in The Queen v. Albert Hendrykus Gerrits (C.A. No. 158 of 1991 4 October 1991) where a sentence of 16 years imprisonment for burglary was upheld.  There, a woman, who was asleep in front of the television in her home, was struck on the head with a bottle, taken to her bedroon and subjected to anal rape.  There are obvious differences between that case and this, but it clearly indicates that sexual offences committed violently in the course of an invasion of a woman’s home should be severely punished.

It cannot be said that the sentences imposed on Frost on 13 March 1997 were manifestly excessive.

Eligibility for Parole

Sayers and Frost were sentenced on 13 March 1997.  The Penalties and Sentences (Serious Violent Offences) Amendment Act 1997 (“the Amending Act”) was assented to on 3 April 1997 and came into operation on 1 July 1997.  The Amending Act added Part 9A to the Penalties and Sentences Act 1992 (“the Act”).  The scheme of Part 9A is to define serious violent offences as a cluster of crimes set out in the Schedule (schedule crimes)  in respect of any of which an offender is sentenced to more than 10 years imprisonment (s. 161A).  Courts are given the power to declare that offenders convicted of one of the schedule crimes and sentenced to 5 or more but less than 10 years have been convicted of a serious violent crime (s. 161B).

It is clear from these sections that a conviction for a serious violent offence occurs after a two stage process.  First there must be a conviction of one of the schedule crimes and then there must be the imposition of a sentence of 10 years or more or an appropriate declaration.  The conviction of a serious violent offence occurs only when the sentencing is completed or the declaration made.  This is a situation similar to that which the Court of Criminal Appeal said occurs following a plea of guilty (R. v. Cole (1965) 2 Q.B. 388).  The concept then is not novel.  However, it does mean that there may be a significant period of time before a jury’s verdict or an accused’s plea of guilty becomes, after sentence, a conviction of a serious violent offence.

The question raised on these applications is whether the Amending Act has any effect upon the recommendations for parole made in respect of Sayers and Frost.  Sayers has an effective sentence of 12 years with a recommendation for parole after 5 years and Frost has an effective sentence for 18 years with a recommendation for parole after 8 years.  If the Amending Act applies they will be required to serve 80% of the sentences imposed, which is 9.6 years in the case of Sayers and 14.4 years in the case of Frost.

The Act gave Courts power to make recommendations about eligibility for parole (s. 157).   The recommendations made in respect of Sayers and Frost were made under s. 157(2) which was not altered by the Amending Act. The Amending Act added the following sub-section to s. 157:

“(7) If an offender is convicted of a serious violent offence -

(a) the court that sentences the offender for the serious violent offence can not make a recommendation under this section that reduces the period of imprisonment the offender must serve before being eligible for release on parole under the Corrective Services Act 1988, section 166(1)(c); and

(b) no recommendation made under this section by any court can reduce the period of imprisonment that the offender must serve before being eligible for release on parole under the Corrective Services Act 1988, section 166(1)(c)”

Section 166(1)(c) was added to the Corrective Services Act by s. 24 of the Amending Act.  It is the provision which requires an offender convicted of a serious violent offence to serve 80% of the sentence imposed.

“The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts and events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to past events”, per Dixon C.J. in Maxwell v. Murphy (1957) 96 C.L.R. 261, at p. 267.

Section 20(2) of the Acts Interpretation act 1954 provides:-

“The repeal or amendment of an Act does not -

(c) affect a right, privilege or liability acquired, accured or incurred under the Act”.

A recommendation for parole made under s. 157(2) may properly be described as a privilege acquired under the Act.

Both s. 20C(3) of the Acts Interpretation Act 1954 and s. 11(2) of the Criminal Code are to the effect that if an Act increases the penalty for an offence, the increase only applies to an offence committed after the Act commences.  It is debatable whether the Amending Act increases penalties.  Its purpose is to alter the regime under which certain sentences of imprisonment are to be served.

The difficulty that arises here is found in s. 16 of the Amending Act which adds s. 206 to the Act in these terms:-             

“Transitional provisions for Penalties and Sentences (Serious Violent Offences) Amendment Act 1997

s. 206(1) Section 157(7)(b) applies to a recommendation made under s. 157 even if the recommendation was made before the commencement of s. 157(7).

(2)For subsection 161C(2)(b) sentences of imprisonment imposed on the offender for offences mentioned in section 161C(1)(c) and (d) must be taken into account even if the sentences were imposed before the commencement of part 9A.”

By virtue of s. 14(2) of the Acts Interpretation Act the heading is part of the Act, so that the section is limited to transitional matters, arising in the implementation of the Amending Act. 

“In Thorton on Legislative Drafting, 3rd ed. (1987), p. 319, it is said:

“The function of a transitional provision is to make special provision for the application of legislation to the circumstances which exist at the time when that legislation comes into force.”

One feature of a transitional provision is that its operation is expected to be temporary, in that it becomes spent when all the past circumstances with which it is designed to deal have been dealt with, while the primary legislation continues to deal indefinitely with the new circumstances which arise after its passage.”Per Lord Keith in Reg V. Secretary of State for Social Security, Ex parte Britnell (1991) 1 W.L.R. 198, 202.

Consequently, s. 206 is not likely to have an effect on recommendations about eligibility for parole made before the Amending Act was assented to.

Section 157(7), which has already been referred to, begins with the words “if an offender is convicted of a serious violent offence”.  As has been noted, such a conviction occurs by a two stage process.  There must be a conviction of a schedule offence and the imposition of a sentence in excess of 10 years.  Such an event can only occur after the concept of a serious violent offence has been defined because until then no crime has been so identified.  The use of the present tense “is” rather than the past tense encourages the view that s. 157(7) applies only to convictions which occur after 1 July 1997.  This is consistent with the principle expressed in s. 20C(3) of the Acts Interpretation Act 1954 and s. 11 of the Criminal Code, even if those sections do not apply.

Section 206(1) does not declare that offenders convicted of what is now a schedule offence  and sentenced to more than 10 years imprisonment prior to 1 July 1997 are deemed to have been convicted of a serious violent offence.  If refers only to recommendations for eligibility for parole which, in the context of s. 157(7), can only apply to recommendations made after 1 July 1997.

The situation is clarified by the absence of any specific transitional provisions in respect of the amendment to the Corrective Services Act 1988.  It is under this Act that the application for parole is made.  The Amending Act amended s. 166 of the Corrective Services Act to include s. 166(1)(c) as follows:-

“Subject to subsection (4) of this section and the Penalties and Sentences Act 1992, s. 157, a prisoner mentioned in section 165 (1)(a)(I) is not eligible for release on parole -

(c) If the Prisoner is serving a term of imprisonment for a serious violent offence - until the prisoner has served the lesser of the following -

(i) 80% of the term of imprisonment to which the prisoner was sentenced;

(ii) 15 years.”

Section 157 of the Act is the section under which Courts make recommendations about eligibility for parole, and s. 166 leaves such recommendations unaffected except in respect of offenders convicted of serious violent crimes.  As has been said, such offenders can only be those so convicted after 1 July 1997.  If community corrections boards are required to ignore a recommendation about eligibility for parole made prior to 1 July 1997 some provision to that effect would have been added to the Corrective Services Act.  In the absence of such provision, the recommendations in respect Sayers and Frost, having been made prior to 1 July 1997, are unaffected by the Amending Act.

It is difficult to understand what transitional circumstances are covered by s. 206(1).  However, the scheme of the Amending Act adheres to the presumption against retrospective operation of an amending law, and it would be very dangerous to change the apparent effect of permanent legislation by attaching too much weight to the particular wording of a transitional provision: see Inland Revenue Commissioners v. Metrolands (Property Finance) Ltd (1981) 1 W.L.R. 637, 649.

It follows then that the recommendations made on 13 March 1997 were properly made and by virtue of s. 166(1) of the Corrective Services Act remain as recommendations to be considered by the appropriate community corrections board in due course.

The applications for leave to appeal against sentence are refused.

REASONS FOR JUDGMENT - MACKENZIE J.

Judgment Delivered 5 September 1997

I agree, for the reasons given by Demack J that the sentences were not manifestly excessive and with the orders proposed by him.  With respect to the application of Part 9A of the Penalties and Sentences Act, my view accords with that of Helman J in The Queen v. Christopher John Coghlan (CA No. 139 of 1997).             

REASONS FOR JUDGMENT - HELMAN J.

Judgment delivered 5 September 1997

I agree that the orders proposed by Demack J. should be made.  I agree with Demack J.’s reasons for concluding that the sentences imposed on the applicants were not manifestly excessive and with his conclusion that the recommendations made by the learned sentencing judge concerning parole are not affected by the recent amendments to the Penalties and Sentences Act 1992.  The question that arose on these applications as to the latter matter is not materially different from the question that arose in R v. Coghlan, C.A. no. 139 of 1997, 5 September 1997, in which I gave my reasons for reaching the same conclusion as Demack J. has on the question.