The Queen v Dinaro[1997] QCA 358

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No.323 of 1997

Brisbane

[R v.  Dinaro]

THE QUEEN

v.

FRANK DINARO

(Applicant) Appellant

Williams J

Lee J

Cullinane J

Judgment delivered 21 October 1997

Judgment of the Court

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED.  APPEAL AGAINST SENTENCE  ALLOWED.  SET ASIDE SENTENCE BELOW ONLY TO EXTENT OF RECOMMENDING  THAT THE APPLICANT BE CONSIDERED FOR PAROLE ON 23 SEPTEMBER 2001.

CATCHWORDS:   CRIMINAL LAW - SENTENCE - Cumulative sentences - recommendation for parole - effect of period on parole before sentenced for later offences

R.  v.  Kiripatea [1991] 2 Qd R 686

S. 185, s. 190 Corrective Services Act 1988

Counsel:  Mr A Rafter for the applicant/appellant

Mr P Ridgway for the respondent

Solicitor:   Legal Aid Queensland for the applicant/appellant

Director of Public Prosecutions (Queensland) for the respondent

Hearing Date:   7 October 1997

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 21 October 1997

This is an application for leave to appeal against sentence.  The applicant was convicted on his plea of guilty on 28 August 1997 in the District Court at Southport of one count of armed robbery in company with actual violence committed on 8 June 1996.  He was sentenced on the same date to nine years imprisonment, to be served cumulatively with other terms of imprisonment he was then serving.  This approach accorded with the Court of Appeal decision in R v Cutajar (1995) 85 A Crim R 280.  Also on that same date, a recommendation was made that the applicant be considered for release on parole on 23 September 2003. 

Notwithstanding that this sentence and recommendation were agreed to by the applicant’s counsel before the learned sentencing judge, this application is made on the ground that the sentence is manifestly excessive.  It was submitted inter alia that because of mitigating features such as the early plea of guilty, willingness to cooperate with the police in another investigation, the robbery was committed to fund his heroin addiction, and his history and remorse, a sentence of seven years should have been imposed with a recommendation for parole on 24 June 2000.  It was further said that insufficient consideration was given to the totality principle and in particular to the approach expounded by the Court of Criminal Appeal in R v Kiripatea [1991] 2 Qd R 686.

The chronology is somewhat convoluted and difficult to follow.  The other terms of imprisonment which the applicant was already serving arose out of proceedings on 24 March 1992 when the applicant, who was born on 5 September 1965 and was then aged 26 years, was sentenced in the District Court at Brisbane to a total of nine and a half years imprisonment for three offences of armed robbery in company with actual violence, and an offence of unlawful use of a motor vehicle all committed between June and August 1991.  That sentence would in the ordinary course have expired on 24 September 2001.  A recommendation was made that the applicant be considered for release on parole after three years nine months so that, in the ordinary course, he would have become eligible for parole after 24 December 1995.  It appears that the applicant had been in pre-trial custody for some eight months prior to sentence although the sentence was not backdated as can now occur pursuant to s. 158 of the Penalties and Sentences Act 1992, which did not commence until 24 November 1992.  The Crown Prosecutor nevertheless conceded before the learned sentencing judge in accordance with the practice at that time, that the result was an effective term of close to eleven years imprisonment, on the basis that eight months on remand was considered to be equivalent to twice that period, or sixteen months, imprisonment.

On 3 July 1992 the applicant was further sentenced in the District Court at Brisbane to a total of five years imprisonment for offences including house breaking, stealing, and arson of a motor vehicle all committed before 24 March 1992 and in roughly the same time frame as the above offences.  These sentences were ordered to be served concurrently with the above sentences imposed on 24 March 1992 and expired on 3 July 1997.  This meant that no additional head sentence over that imposed on 24 March 1992 was ordered.  However, because of s. 157 (3)(a) of the Penalties and Sentences Act 1992 (see Court of Appeal decisions in R v Doyle [1996] 1 Qd R 407 and R v Thorpy [1996] 2 Qd R 77), a fresh recommendation was made that the applicant be considered for release on parole after three years nine months.  The eligibility for parole with respect to the combined set of offences therefore arose on 3 April 1996, which required the appellant to serve a further three months ten days before becoming eligible.  However, it appears that the applicant was in fact released in error some months before on 24 December 1995, that being the date of eligibility for parole with respect to the sentence imposed on 24 March 1992.  As at 24 December 1995, he had served a total of three years nine months since originally being imprisoned on 24 March 1992, then leaving a balance of five years nine months of the original sentence outstanding.

The applicant, who committed this offence whilst on parole, was arrested on 9 June 1996.  His parole, according to the submissions of the Crown prosecutor before the sentencing judge, was suspended on 17 July 1996.  It was said that this was empowered by s. 185 of the Corrective Services Act 1988 which also allows cancellation.  The precise terms of the order were not placed before this court but in any event, the applicant was held in custody continuously from 9 June 1996 until his sentence on 28 August 1997 for the present offence.

As indicated, the sentence imposed on 28 August 1997 was nine years imprisonment to be served cumulatively with the term of imprisonment already being served.  A period of 39 days between 8 June 1996 and 17 July 1996 was declared to be time already served under the sentence imposed on 28 August 1997.  The learned sentencing judge, as well as counsel for the applicant, assumed that the effect of the nine year sentence meant that the total sentence would then expire on 24 September 2010 (ie.  24 September 2001 + nine years).  However, this was an error because of the effect of  s. 190 (1) of the Corrective Services Act, either because the parole was in fact cancelled on 17 July 1996 or because of the effect of s. 187(1).   S. 187(1)  provides that, where a prisoner who has been released on parole is sentenced to another term of imprisonment upon conviction for an offence committed in Queensland or elsewhere during the parole period, the prisoner’s parole shall in fact be cancelled whether or not the parole period has expired.  S. 190(1) provides:

“Upon the cancellation of a prisoner’s parole, the original warrant of commitment or other authority for the prisoner’s imprisonment or detention shall again be in force and no part of the time between the prisoner’s release on parole and the prisoner recommencing to serve the unexpired portion of the prisoner’s term of imprisonment or detention, other than the period (if any) during which the prisoner was kept in custody consequent upon the prisoner’s parole being suspended, shall be regarded as time served in respect of that term.”

The effect is that the five and a half months the applicant was on parole from 24 December 1995 until his arrest on 9 June 1996, does not count as part either of his original sentence, nor of the cumulative sentence, so that the expiry date of the original sentence must be extended.  This is because he has to serve the whole five years and nine months outstanding as at 24 December 1995 from the date he was again in custody consequent to his parole being suspended, namely 17 July 1996.  The original sentence thus expires on 17 April 2002.  He receives no credit for the period in respect of which  he was released on parole as would otherwise have been the case pursuant to s. 154 of the Corrective Services Act: R v Thorpy.  When the nine years cumulative sentence, minus the 39 days declared already served between 8 June 1996 and 17 July 1996 for the subject offence is added to 17 April 2002, the total sentence would not expire until about 9 March 2011, depending on how the days in the months are calculated which roughly accords with the date of 14 March 2011 on the “Offenders Management Information System” dated 3 October 1997 tendered by Mr Rafter.  The five days difference has not been explained.  The result is that the cumulative sentence imposed on 28 August 1997, minus the 39 days declared to be already served, was effectively deferred to commence on 17 April 2002, a deferral of about four years and seven months, and not on 24 September 2001.  This factor appears to have been overlooked by the learned sentencing judge and both counsel below.

Before the learned sentencing judge, the Crown Prosecutor submitted that there should be a nine year cumulative sentence with a figure of three years added on to the original expiry date of the sentence (thought to be 23 September 2001), making an eligibility for parole at 23 September 2004.  Counsel for the applicant submitted before the sentencing judge that such a parole date was excessive.  His Honour then said that he proposed to order that the applicant spend at least two years in prison to commence from 23 September 2001, resulting in the ultimate recommendation that he be considered for parole on 23 September 2003.  Counsel for the applicant agreed with that course.  In actual fact, because of the months during which the applicant was out on parole from 24 December 1995 and which do not count as part of the five years nine months unexpired original term, the order provided only for an additional period of imprisonment of about seventeen months after 17 April 2002.

It should also be observed that the learned sentencing judge acted on the basis that because the appellant pleaded guilty to the current offence, he lost all eligibility for parole and would stay in gaol until the term expired.  That was then thought to be until the year 2001.  The Crown Prosecutor agreed with His Honour and defence counsel did not submit to the contrary.  Mr Rafter submitted before this court that this assumption was incorrect because of s. 191 of the Corrective Services Act which enabled the applicant to again be released on parole notwithstanding that his parole had previously been cancelled on any prior occasion.  It was said that this assumption undoubtedly played a part in the learned sentencing judge’s reasoning in setting a parole date as 23 September 2003 (i.e. some two years after what was thought to be the original expiry date of the first sentence on 24 September 2001).  Mr Rafter also submitted that the practical effect of the order was that before the applicant could be considered for parole on 23 September 2003, he would effectively have served at least twelve years imprisonment, having regard to the eight months presentence custody served prior to 24 March 1992.  He also submitted that in respect of all sentences imposed, the total possible period of imprisonment amounted to about twenty years, and was grossly excessive.  As indicated, it was submitted that to give effect to the principles in R v Kiripatea, a head sentence of seven years was appropriate with a recommendation from 24 June 2000.

Mr Ridgway on behalf of the Crown submitted that it could not be said that the sentence as imposed or the recommendation was manifestly excessive and that a balance had to be struck between the need for condign punishment to act as a deterrent to the applicant who was a recidivist, and other possible offenders on the one hand, and any question of modification of the sentence because of the totality principle on the other.  This is doubtless correct. Various other possibilities were submitted by both counsel as to how the sentence should have been approached but it is not necessary to discuss them in any detail in this particular case.

It is therefore necessary that some examination be undertaken of the circumstances of the offence and the applicant’s prior criminal history and circumstances.  The target of the robbery was a liquor store in the shopping centre at Carrara on the Gold Coast near Nerang.  The applicant confronted the sole staff member shortly before closing time at 7.50 p.m.  He carried a sawn-off shotgun and wore a mask.  The weapon was pointed at the staff member’s head and the staff member produced the money demanded in the sum of $960.  Whilst it seems that the gun was not loaded, the applicant did have shells for it in his pocket at the time.  As the staff member was being ushered into a back room with the threat that he would be shot if he came out, police officers in a passing police car saw the get-away vehicle parked dangerously nearby.  As they were approaching the vehicle, the applicant ran to it and the vehicle drove off.  A high-speed chase followed in which the applicant and the driver, a female companion, escaped but were arrested later that night or the next day after a police investigation.  The applicant denied involvement and over a period of days and several interviews, he sought to place the responsibility for the robbery on another person.  He maintained that stance throughout the committal and afterwards.  He arranged through a solicitor to have a further formal interview with police after committal in which he repeated that the person responsible was a man he named as King.

The accomplice driver was a young woman named Stretonovich.  She was subject to a nine months suspended sentence which was activated and she received a further four years imprisonment cumulative upon that sentence.  She cooperated with the authorities, made admissions and pleaded guilty.  She had a very long history of dishonesty offences including one break and entering and stealing, but nothing of violence and no armed robberies until the offence the subject of this application.

The applicant has a significant criminal history extending over fifteen years with numerous offences of violence and dishonesty.  In 1981 when he was sixteen years of age he was convicted in the Melbourne Children’s Court of unlawful use of a motor vehicle and given a bond.  In 1985 he was convicted in the Melbourne Magistrates Court of assault occasioning bodily harm and fined.  On 29 September 1986, he was convicted in the Melbourne County Court of quite serious offences (rape, armed robbery, false imprisonment, conspiracy, going equipped to steal, assault with intent to rob), and was sentenced to eight years imprisonment with a minimum of six years imprisonment to be served.  In 1987 he was further sentenced to three months imprisonment for receiving and theft.  He was next convicted in 1991 in Balmain, New South Wales for a fraud offence but not gaoled.  This must have been committed very soon after his release from prison in Victoria.

He then apparently came to Queensland, because in 1991 he was convicted of stealing and ordered to perform eighteen hours community service.  Then followed the serious offences referred to above in respect of which he was convicted on 24 March 1992 and 3 July 1992.  Those offences were all committed between August and June of 1991.  As Mr Ridgeway submitted, the history shows a continuous pattern of offending behaviour since 1987.  This offence  was committed whilst he was on parole, a very serious matter and after a long and serious criminal history with similar offences.

In his favour it should be noted that in October 1996 he indicated that he would plead guilty.  This was a timely plea.  He also made what were said to be genuine efforts to help the police with respect to a different investigation.  He had a very difficult personal life and upbringing, as a psychologist’s report demonstrates.  That report also indicates that the appellant was addicted to heroin and that the robbery was committed in order to feed that addiction.  This does not excuse his conduct but perhaps goes some way to explain it.  He performed poorly at school and has a significant reading and mathematical disability.  He has the support of a forty  year old woman who has continued to regularly visit him and has stuck by him.  He has expressed a desire to discontinue the use of drugs and appears to be anxious to undergo counselling and treatment while in custody.  Through his counsel he expressed remorse to the victim of this offence.  He is  thirty two years of age and providing he can rehabilitate himself, he should be able to make a useful contribution to society on his release.

Whilst this is not a case for the strict application of the traditional ‘totality’ principle referred to in R v Mill (1988) 166 CLR 59, because the offences involved are quite discrete and committed a considerable time apart (see R v Coss (CA 262 of 1992 per Pincus JA at p. 3-4, with whose comments the Chief Justice and Mackenzie J agreed)), the judgments in Coss make it clear as did this Court in Clements v R (1992) 68 A Crim  R 167, that the particular case must be carefully looked at in the case of a prisoner serving a lengthy term.   This is because a further term imposed cumulatively does not begin to run until well into the future and may have an extremely onerous or perhaps an overwhelming effect in some cases.   A passage in the judgment of Williams J, with whom Ambrose J agreed in R v Kiripatea at 702, illustrates the correct approach in a case such as this.  His Honour said:

“When a sentence is deferred for a lengthy period, and in my view five years is such a period, then some moderation is called for with respect to the length of the sentence in question.  The sentence imposed should not be a crushing one, and there is good reason for avoiding a sentence which would effectively destroy any hope a prisoner may have for rehabilitation.  It is obvious that by imposing cumulative sentences deferred for a lengthy period of time the Court could impose in reality a sentence more severe than that of life imprisonment.”

As indicated, if the present recommendation stands, the current sentence was deferred to commence some four years and seven months into the future, which is a deferral for a lengthy period.  It is also clear because of the Crown’s concession that the sentence imposed on 24 March 1992 was close to eleven years imprisonment, (having regard to the eight months in presentence custody), the applicant will have served about thirteen years imprisonment by the time his parole eligibility arises on 23 September 2003.  If he does not get parole, he may in fact serve a very lengthy term in prison.  To put it another way, given that the eligibility date for parole with respect to existing terms of imprisonment was 3 April 1996, he would be required to serve about an additional seven and a half years in custody before being eligible for parole on 23 September 2003 with respect to this offence.  In an ordinary case, eligibility for parole occurs after half the sentence has been served although, in appropriate circumstances, a recommendation may be made past the half way mark:  s. 157(2) of the Penalties and Sentences Act.

In all of the circumstances of this case, it cannot be said that a head sentence of nine years is manifestly excessive for this particular offence, given the appellant’s appalling criminal history.  He will have every incentive to reform his ways and so earn his parole at the earliest possible opportunity.  If he obtains early parole, he will then be under supervision in the community until about 9 March 2011.

However, whilst it is impossible for a sentencing judge, any more than this Court, to foresee precisely what will happen in the future, this depending on so many variables, this is an appropriate case where this Court should interfere with respect to the eligibility date for parole to give effect to the foregoing principles.

It seems to us that there should be a recommendation that the applicant be considered for parole on 23 September 2001.  That means that the applicant must still serve at least four years in custody from 28 August 1997, before becoming eligible for parole.  In the result, we would grant the application,  allow the appeal and set aside the declaration for parole from 23 September 1993 and in lieu thereof, make a recommendation that the applicant be considered for parole on 23 September 2001.  The order as to 39 days already served in presentence custody remains as well as the head sentence of nine years imprisonment.