The Queen v Burgess[1997] QCA 385

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 254 of 1997.

Brisbane

[R v. Burgess]

THE QUEEN

v.

PAUL LINDSAY BURGESS

(Applicant) Appellant

Pincus J.A.

McPherson J.A.

de Jersey J.

Judgment delivered 28 October 1997

Joint reasons for judgment of Pincus J.A. and de Jersey J.;  separate reasons of McPherson J.A. concurring as to the orders made.

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED.  APPEAL ALLOWED.  SET ASIDE SENTENCE IMPOSED IN THE DISTRICT COURT ON 27 MAY 1997 AND IN LIEU THEREOF SUBSTITUTE A SENTENCE OF 4 YEARS AND 6 MONTHS TO BE SERVED CUMULATIVELY UPON ALL PREVIOUS SENTENCES.  ORDER THAT APPELLANT IS TO BE CONSIDERED FOR RELEASE ON PAROLE ON 30 JUNE 2003.

CATCHWORDS: CRIMINAL LAW - application for leave to appeal against sentence - armed robberies - applicant sentenced to 10 years and 6 months imprisonment in 1989 - in 1997 applicant sentenced to a further 9 years - whether infringement of totality principle - relationship between the parity and totality principles - whether sentence imposed should have been concurrent, not cumulative.

Counsel:  Mr G Long for the appellant

Mr D Meredith for the respondent.

Solicitors:  Legal Aid Queensland for the appellant.

Director of Public Prosecutions (Queensland) for the respondent.

Hearing date: 2 September 1997.

JOINT REASONS FOR JUDGMENT - PINCUS JA AND DE JERSEY J

Judgment delivered 28 October 1997

This is an application for leave to appeal against sentence.  The applicant’s history is set out in detail below, but the essence of the problem may be stated shortly.  In 1989 the applicant was sentenced to 10 years and 6 months imprisonment for armed robberies;  while on parole he committed another robbery and was sentenced in 1997 to a further 9 years;  the applicant’s contention is that the total sentence of 19½ years infringes the totality principle.  It has been decided in Clements (1993) 68 A.Crim.R. 167, that the totality principle applied in Mill (1988) 166 C.L.R. 59, a case which related to offences committed in different States within a fairly short space of time has broader application;  Clements applied it to circumstances like the present, where there were offences committed years apart in this State, each of which attracted a substantial sentence.  In Postiglione (High Court, unreported, judgment delivered 24 July 1997) the Court we think accepted that the totality principle applies whenever there is a sentence imposed which will be cumulative upon or will overlap an existing custodial sentence;  we refer in particular to the remarks of McHugh J (8).

We note that the essential facts of Coss (C.A. No. 262 of 1994, judgment delivered 15 March 1995) were rather similar to those of the present case:  the offences in question there were robberies and the total of the sentences imposed was 19 years, as opposed to 19 years and 6 months in the present case.  In Coss, the second sentence was reduced from 10 years to 8 years, but in the present case we are invited to treat the applicant more generously than that, by making a second sentence concurrent with the first, and reducing its length.

To come to the present facts in more detail, the applicant’s total criminal history, including the offences the subject of the present application, is as follows:

The present application relates to sentence E., of 9 years, imposed on 27 May 1997.  When the sentences in group B. were imposed in 1989 the applicant had been in custody for 11 months and that must be taken into account when considering the application of the totality principle;  if one notionally doubles the 11 months, as is sometimes suggested to be the proper course, then the total of the 1989 and 1997 sentences grows from 19 years and 6 months to 21 years and 4 months.

In respect of the 1989 sentences, the applicant was released on parole on 24 November 1995 and he committed the armed robbery in question less than 3 months later, on 16 February 1996.  However, the police did not apprehend him until 7 March 1996, when he was found near a service station which he intended to rob.  When the police approached, the applicant fired a gun in the direction of one police officer and threatened another with the gun.  These actions, together with an offence of unlawful use of a motor vehicle, constituted the offences in group D., which attracted a sentence of 18 months imprisonment cumulative upon those imposed in 1989.  In considering the present matter it is necessary to keep in mind that the offence currently in question, the armed robbery, attracted a sentence of 9 years, which in effect included allowance for the serious offences in group D., committed on the occasion of the applicant’s arrest.

The robbery of 16 February 1996 was committed at a building society branch at Sunnybank.  The applicant was armed with a replica pistol and disguised by a balaclava;  he stole $3,300.  The applicant discussed his problems with a psychologist in 1997 and they include depression, anxiety, overuse of alcohol and use of other narcotics.  The record of proceedings includes the sentencing remarks made by de Jersey J in relation to the 1988 robberies;  his Honour mentioned that in committing the offences the applicant used a gun, but the details of those offences are not of much present consequence, for the sentences then imposed are of course, not challenged.

A reason why the totality principle is necessary is that, in its absence, a repeat offender may receive a series of sentences totalling a period which appears to be "crushing" and further, a period which, when one compares it with what might have been imposed had the offences all been dealt with together, is disproportionate.  To illustrate this, suppose an offender is sent to gaol for 10 years for an armed robbery;  he quickly escapes and commits another robbery of a similar character.  It might not seem reasonable to impose a cumulative 10 year sentence, when one considers that if the two offences had been dealt with together - i.e. if the offender had not been caught until after the second robbery - his total sentence could not have been as high as 20 years.  The application of the totality principle in such cases may be seen to be a necessary concomitant of the practice of the courts in declining to impose, for each of a group of offences dealt with at the same time, a total sentence calculated by fixing for each a cumulative penalty which would have been appropriate had that been the only offence before the court.

But application of the totality principle in such cases can itself produce anomalies.  Suppose that two men rob a bank and one is, but the other is not, an escapee from a prison where he was serving a long sentence for a previous offence.  It might be difficult to see how one could justify treating the circumstances just mentioned as entitling the escapee to a shorter sentence than that imposed on his accomplice.  That would be thought to be an infringement of the parity principle.

The relationship between the parity and totality principles was recently dealt with by the High Court, in Postiglione (above);  there McHugh J (12) took the view that the disparity principle cannot assist an offender "where the disparity can be explained on the basis of different antecedents and/or an application of the totality principle";  but his Honour was in dissent. The possibility of difficulty in sentencing co-offenders and collision with the parity principle is one reason for being cautious in applying the totality principle;  another is that, co‑offenders aside, it may not escape notice that, as between any offenders of similar criminality, one who has as a "mitigating" factor that he committed his offence while serving a previous long sentence may receive the more favourable treatment, and in some instances that may seem to be a surprising outcome.

The Crown did not contest the argument for the appellant that the sentence imposed should have been concurrent, not cumulative;  this Court is not, however, bound by that concession and we question its correctness.  The only practical purpose in imposing a concurrent rather than a cumulative sentence, in the present case, is to avoid setting a sentence which might seem to a person uninstructed in the niceties of sentencing to be too short.  The applicant’s submission is that a sentence of 6 years and 8 months concurrent with the sentences then being served was the appropriate order.

At the time the applicant came up for sentence, on 27 May 1997, he had a little under 5½ years to serve under his previous sentences.  An additional concurrent sentence of 6 years and 8 months would therefore be equivalent to a cumulative sentence of only 1 year and 2 months.  As we (perhaps wrongly) understood the Crown’s submission, a sentence about a year longer than was suggested by the applicant would be preferable;  it is not, we confess, quite clear to us that the Crown intended to say this.

In our opinion both these submissions should be rejected, as involving too short an additional sentence.  It is true that as Mr Long pointed out, the applicant had been in custody from 7 March 1996 when he came before the court for sentence on 1 May 1997 - a period of about 14 months.  That was explicitly taken into account, however, by the District Court judge (McMurdo DCJ) who on 1 May 1997 fixed a period of 18 months imprisonment, in respect of the serious offences committed when the applicant was arrested on 7 March 1996.  We see no reason why the period of custody should be, so to speak, credited again when considering the adequacy of the proposed concurrent sentence.  Nevertheless, the 14 months spent in custody before the sentencing by McMurdo DCJ creates a problem.  The applicant’s parole was cancelled by his conviction in the District Court on 1 May 1997;  that followed from the effect of s. 187 of the Corrective Services Act 1988, there being no evidence of an order of suspension under s. 180.  Under s. 190 of that Act the 14 months spent in custody prior to sentencing by McMurdo DCJ on 1 May 1997 was not to be regarded as time served, subject to a discretion in the Queensland Community Corrections Board to alleviate the effect of that, by a direction under s. 190(2).  There is nothing before us to suggest that such a direction has been given, nor any information as to the likelihood of its being given in the future.  McMurdo DCJ, in her Honour’s sentencing remarks, mentioned that she had been told that the applicant would not be eligible for release on the 1989 sentences until 8 December 1999.  That submission made to her Honour appeared to overlook the effect of s. 190(1) to which we have just referred.

In short, the period spent in custody of about 14 months prior to sentencing on 1 May 1997 prima facie does not count as time served under the 1989 sentences, but the Queensland Community Corrections Board may, by a direction given under s. 190(2) of the Corrective Services Act 1988, shorten the period the applicant has to serve of the 10½ year sentence imposed in 1989 and in particular may decide to treat the 14 months as time served under that sentence.

Considering the matter on the assumption that the 14 months just discussed will not count as time served, then the applicant, if he serves the full period, would have been released in November 2002, consequent upon the sentence imposed by McMurdo DCJ.  The effect of the sentence imposed on 27 May 1997 would have been (again, if the full time was served) to take the ultimate release date to May 2010.  If left alone, then, the effect of the later sentence would be to achieve the result that, having entered custody in or about August 1988, the applicant, absent remissions or parole, would leave prison nearly 22 years later, having been at large for a little over 3 months early in 1996.  This would be practically equivalent to a term beginning at the age of 25 and ending at the age of nearly 47.  In these circumstances the necessity for application of the totality principle is evident, but it is not quite so evident how it should be applied.  The addition of 7 years and 6 months head sentence to what was previously ordered would not, considered in isolation, appear to be anything but moderate.  We would, however, reduce that to a sentence of 4 years 6 months cumulatively upon all the previous sentence (taking 3 years off the period imposed by the primary judge).

There remains to be considered the proper parole date.  We would, in the circumstances, set a date for consideration of release on parole early in the period of the fresh sentence - specifically, on 30 June 2003.  That is substantially different from the parole date suggested by counsel for the applicant, namely September 2000.  We would grant the application, allow the appeal, set aside the 9 year sentence imposed on 27 May 1997 and substitute for it the sentence we have indicated.

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered 28 October 1997

I agree with the reasons of Pincus J.A. and de Jersey J. for allowing this appeal and substituting the sentence they propose.