The Queen v Barlow[1998] QCA 2

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 370 of 1994

Brisbane

[R v. Barlow]

THE QUEEN

v.

SHANE ALLAN BARLOW

(Applicant)   Appellant

Macrossan CJ

Pincus JA

White J

Judgment delivered 6 February 1998

Joint reasons for judgment of the Chief Justice and White J. Separate reasons of Pincus JA, concurring as to the orders made.

APPLICATION GRANTED. APPEAL ALLOWED FOR THE LIMITED PURPOSE OF ALTERING THE NON-PAROLE DATE SO THAT IN LIEU OF 12 YEARS AND 9 MONTHS FROM 19 AUGUST 1994, IT SHALL BE REACHED IN 11 YEARS AND 6 MONTHS FROM THAT DATE. THE SENTENCE OF THE CUMULATIVE TERM OF TEN YEARS IMPRISONMENT TO STAND.

JOINT REASONS FOR JUDGMENT - THE CHIEF JUSTICE AND WHITE J

Judgment delivered 6 February 1998

This application for leave to appeal against sentence comes to the Court following an order for remission and determination made by the High Court.

The application for leave to appeal against sentence had been joined with an appeal against conviction but since the appeal against conviction succeeded in this Court, the application was not further considered.   The subsequent history is that the Crown took an appeal to the High Court challenging the order that quashed the conviction.

The applicant Barlow was tried jointly with a number of others following the death of a prisoner Vosmaer as a result of a savage assault in a Brisbane detention centre.  Vosmaer, Barlow and all of those charged with him, were fellow prisoners at the centre.  Either as a result of their own pleas or in accordance with jury verdicts at the trial, Barlow’s co-offenders were found guilty of murder.   However, Barlow, who had pleaded not guilty, was found guilty of manslaughter. 

The Crown case was that Barlow and the others charged devised a plan to entice Vosmaer to the prison gymnasium and there assault him at a time when the inmates were not under supervision.  It was not claimed that Barlow physically participated in the assault: rather it was suggested and the jury were obviously persuaded that he had played a part in facilitating the carrying out of the plan.  More precisely, it was suggested that acting in conformity with the plan Barlow had been instrumental in arranging for Vosmaer to be present in the gymnasium on the chosen occasion when he was assaulted by the co-offenders.  The Crown case so far as it is relevant for present purposes, sought to involve Barlow in responsibility for the assault pursuant to s. 8 of the Criminal Code.   Central questions at the trial which had to be resolved with due regard to the circumstantial evidence were the extent of Barlow’s knowledge of the critical details of the plan for the assault and his intention concerning its outcome.  In his review of the possibilities open on the evidence the trial judge in his summing-up included a direction to the jury along the lines of the decision in R v. Jervis [1993] 1 Qd.R 643 which, depending upon the established intent of the alleged accessory Barlow, would permit a finding of manslaughter against him even though the principal offenders were found guilty of murder.   The jury were directed that if they were satisfied that Barlow was a knowing party to a plan for a serious assault but had not intended that the outcome should be grievous bodily harm or the death of Vosmaer, then he could be convicted of manslaughter.  This direction consistent with the decision by the majority in Jervis accordingly allowed for the possibility of a finding in terms of s. 8 that there had existed “a common intention to prosecute an unlawful purpose in conjunction” namely an assault, but that an intentional killing was not “a probable consequence of the prosecution” of the purpose so far as Barlow was concerned.  The jury were thus directed that the lesser verdict against Barlow was open even though the co-offenders were guilty of murder. 

When Barlow and certain of his co-accused who had been found guilty of murder appealed against their convictions Barlow applied also for leave to appeal against the sentence imposed following his conviction for manslaughter.  That sentence imposed on 19 August 1994 was one of ten years imprisonment cumulative upon an earlier sentence of thirteen years imprisonment imposed on 18 May 1994 following his conviction on two counts of robbery.  Barlow’s appeal against conviction succeeded in this Court with the majority holding that under the wording of s. 8 of the Code it was not open to convict him for manslaughter, that is for a different offence from that found against the co-offenders. The majority in applying this view preferred the principle adopted in R v.  Hind and Harwood (1995) 80 A. Crim. R.  105 and declined to follow the view in R v.  Jervis in accordance with which the trial judge had directed the jury. The remaining member of the Court did not need to express a view on this question considering that Barlow’s appeal should succeed for other reasons.  In these circumstances no further attention was given to Barlow’s application for leave to appeal against sentence.

The Crown obtained leave to appeal to the High Court against the decision and in due course that Court by a majority allowed it, three judges out of five in a joint judgment in effect reinstating the authority of Jervis.  In these proceedings there is no need to examine further the legal principle now authoritatively provided by the ruling of the High Court and it is convenient to turn to the sentence.

Barlow had a very bad criminal history.  The aspects of it most immediately relevant for present purposes were two robberies committed while an escapee from lawful custody.  They had attracted the thirteen year head sentence which was imposed in May 1994.  On that occasion a non-parole recommendation for eight years was ordered. 

The sentencing judge in the present case had to consider appropriate orders following the conviction for manslaughter in August 1994.  He carefully explained the basis upon which he decided to proceed.  He resolved to impose a cumulative sentence.   No one has challenged the propriety of his doing this in the circumstances.  He did not overlook the feature that a cumulative sentence of imprisonment postponed in its commencement until a date well in the future called for some moderation in fixing the term as compared with what would otherwise be appropriate for a sentence coming into immediate operation:  see R v.  Clements (1993) 68 A. Crim R. 167.  He decided upon ten years describing himself as allowing for moderating features in the selection of that term. 

Because Barlow, in connection with the term of thirteen years he was already serving, was subject to an eight year non-parole recommendation, it became necessary for the judge to make a fresh parole recommendation when he imposed the further sentence:  see s. 157(3)(a) of the Penalties and Sentences Act 1992.  He indicated that he wished the non-parole point to be fixed as best it could be calculated at the mid point of the operation of the ten year cumulative term that he imposed. 

The earlier thirteen year sentence for robbery imposed in May 1994 would, apart from remissions, run until May 2007 and since the sentencing court on that occasion had fixed the non-parole point after eight years, that would occur in May 2002.   One half of a term of ten years, that is five years, running from May 2002 would produce a date in May 2007. The Judge fixed it accordingly by ordering a non-parole period of twelve years and nine months to commence from the date on which he imposed it, that is 19 August 1994 which would take it to 19 May 2007.

After those orders were made in August 1994, an appeal by Barlow against the earlier robbery sentence of thirteen years was heard and although in the outcome no alteration was made to the head sentence, the non-parole point was reduced from eight years to six and a half years.   One other alteration in Barlow’s circumstances occurred when he was sentenced to a nine months cumulative term for escaping from custody, it being accompanied by an order for a three months cumulative alteration to the non-parole point.  These subsequent events mean that following the date when the judge pronounced the orders now to be considered, Barlow’s non-parole date had been brought back effectively by one year and three months although the head sentence had been increased by nine months.  The result can be summarised by saying that the total in effect of the sentences, apart from the subject one, was a term of imprisonment that altered from a termination date in May 2007 to one in February 2008 and a non-parole period that was shortened from May 2002 to February 2001.

It was submitted to us that the change in circumstances just mentioned should be taken into account when this appeal against sentence is considered.  It is true that the ordinary approach on appeals against sentences is to consider them on the materials placed before the sentencing judge, but this does not mean that attention may not be given to surrounding circumstances in which some change has occurred:   cf.  R v.  Maniadis [1997] 1 Qd.R. 593.  This Court is empowered to reduce sentences when on appeal it considers that they are manifestly excessive.   Here the substratum upon which the sentencing orders were imposed has altered. The actual intention of the sentencing judge clearly appears and the spirit of the order called for a non-parole point halfway through the term from the calculated point at which it would start.  It would be unduly harsh to declare against an adjustment which this change in circumstances so clearly calls for.  Counsel for the Crown accepted that such an order should be made.  The consequence is that the non-parole point should be adjusted for the considerations so far mentioned so that it falls five years on from February 2001, that is in February 2006 instead of May 2007.

Further arguments were advanced on Barlow’s behalf. 

It was said that the ten year cumulative term was in any event excessive, postponed as it was to the thirteen year term. Comparisons were made with the point at which persons serving life sentences for murder become eligible for parole.  This occurs after thirteen years: see s. 166(1)(a) of the Corrective Services Act 1988.  The comparison, however, is not particularly apt.  Barlow had to be sentenced for a very serious crime involving gross breach of prison discipline with resulting fatal consequences.  Also the fact that the cumulative term of ten years commences to run well into the future is due to his separate serious criminal behaviour including, in particular, his conviction for robbery that resulted in a thirteen year term.  In the circumstances so far referred to there is no reason to conclude that the head sentence or, apart from the minor adjustment already mentioned, the non-parole order, was excessive.

One further matter was urged.  It was pointed out that Barlow’s conviction appeal to this Court was successful with an order that his conviction be set aside.  Then, following the Crown’s appeal, the conviction has been reinstated and with it the obligation to serve a cumulative sentence for manslaughter.  Reference was made to a principle of double jeopardy with the submission that it should operate in the present circumstances.  It was submitted that Barlow should be given some special consideration on account of it with a reduction in the sentence for manslaughter and a reduction also in his non-parole period. It was suggested that these considerations made appropriate a sentence of six rather than ten years cumulative for manslaughter and a non-parole period that should be expressed as ten years and three months instead of twelve years and nine months running from August 1994.  The calculations offered on Barlow’s behalf in support of these submissions did not, when more closely examined, correspond with the broad terms of the submission.  In particular, the ten years and three months total appears to be an incorrect addition of periods on which it was based, namely six and a half years non-parole for the robbery convictions in May 1994, three months non-parole for the escape from custody and a further three years non-parole period being half of the six years cumulative term now being suggested.  These add up in fact to nine years nine months from May 1994 or nine and a half years from August 1994.  Putting that detail to one side for the moment, the question is whether there is a principle or a set of circumstances which calls for or even one that would justify a reduction in the penalty and non-parole period that is something that could broadly be described as double jeopardy. 

It was drawn to our attention that in the course of the appeal argument before the High Court, counsel appearing for the Crown expressly stated that such a principle could be considered if the Crown appeal against the setting aside of the manslaughter conviction succeeded and Barlow’s application for leave to appeal against sentence then had to be considered.  Again, in this Court, counsel for the Crown accepted that a reduction could be made on this account not however conceding  a sentence reduction to anything less than eight years because of the other serious features present. The alleged operation of the double jeopardy factor was presented rather globally on both sides with no detailed explanation of the considerations that would support it.   Our attention was drawn to observations made by Kirby J. in the High Court in the course of his reasons obviously  prompted by the apparent concession made by the Crown.  The observations included a reference to cases and writings where some attention had been given to the so-called double jeopardy principle. 

Kirby J. did not suggest any particular way in which the principle of double jeopardy should be given effect to by way of reduction of sentence in the present case.   Barlow’s sentence was not involved in the High Court appeal.  The three judges whose conclusions supported the form of the High Court order made remitting the matter to this Court did not make mention of a need to reduce the sentence ordered in August 1994 because of some element of double jeopardy.

While there is no doubt that concessions made by the Crown will often be important considerations in the disposal of an appeal and the Court will be alert to acknowledge requirements of justice that might be involved, it has to be remembered that it was Barlow who initiated the appeal proceedings following his conviction and sentence for manslaughter and while he succeeded in this Court, the Crown quite promptly applied for special leave to appeal so that a hearing took place before the High Court without undue delay.  During the passage of these events, Barlow remained in custody serving a thirteen year sentence for robbery and nine months for escape from custody with his non-parole date years ahead.  He was not, for example, in a position where he may have been remaking his life outside prison under the operation of an intermediate order set aside only after some significant delay.  Broad considerations of justice might favour making some concessions in a case of that kind.   We do not have to consider that here.

The doctrine of double jeopardy as usually understood does not have a great deal to say that is relevant to the present situation.  The examination of the concept undertaken by Gibbs CJ with the agreement of Wilson and Dawson JJ and by Mason and Brennan JJ in Davern v.  Messel (1984) 155 C.L.R. 21 does not directly help the applicant.  Some debate in the past has centred upon the availability to the Crown of a further appeal from an appellate decision setting aside a conviction entered following a jury verdict at trial but the state of Australian authority does not accept that the double jeopardy principle precludes the possibility of a Crown appeal to correct an order quashing a conviction when that order is held to have been made in error.

The submissions made to us in this case appear to ignore the warning sounded by Gibbs CJ in Davern v.  Messel (supra) at 33 that “double jeopardy is not a mere fetish, an empty formula to be applied blindly in all circumstances.  It exists, as I have said, to ensure fairness and prevent oppression”.  Nor does it give weight to the observation of Mason and Brennan JJ in the same case at 55 that “The thrust of the double jeopardy rule is that no man shall be tried twice for the same offence”, that is, it deals with vulnerability to the possibility of a retrial not with quantum of sentence.

The present case itself provides an example where the High Court has heard an appeal from the intermediate court’s order for acquittal with the result that the conviction entered at trial has been restored.   We are now to deal with the sentence imposed upon a conviction which, on the High Court ruling, “should never have been disturbed”, cf. Gibbs CJ in Davern v.  Messel (supra) at 40.  If the double jeopardy principle does not prevent a review of an acquittal entered at the appellate level it can hardly directly bear upon the appropriateness of a sentence ordered at the trial.  It is not surprising that no authority was cited in support of any different view of the situation.   The reality is that the occurrence of successive appeals with fluctuating outcomes for the convicted person who initiates the appellate process cannot, as a matter of principle, have any direct effect upon the proper level of sentencing.  That is not to deny that in a particular case in which a convicted person has been placed in a situation of unusual hardship during the progress of the appellate process he may, on general grounds of justice, be able to suggest that some reduction in the term originally imposed is called for.  Circumstances of that kind do not exist here.  In the absence of some justification for it there should be no shallowly considered reduction made in Barlow’s sentence simply because at one point in the appellate process it appeared that there might be a favourable outcome for his appeal against conviction.

Accordingly the application for leave is granted and the appeal against sentence allowed for the limited purpose only of altering the non-parole date ordered so that in lieu of twelve years and nine months from 19 August 1994 it shall be reached in eleven years and six months from that date. The sentence of the cumulative term of ten years imprisonment should stand.

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 6 February 1998

I have read the joint reasons of the Chief Justice and White J.  The High Court has allowed an appeal from an order of this Court setting aside the applicant Barlow's conviction of manslaughter and restored that conviction.  The decision is now reported in (1997) 188 C.L.R. 1.

Since we must proceed on the assumption that the applicant's conviction of manslaughter was founded on s. 8, consideration needs to be given to what his conviction under that section implies.  That depends on the directions the trial judge gave;  the critical passage is set out in the judgment of McHugh J., 188 C.L.R. 1 at 16.  So the jury must have been satisfied, not that an intentional killing was a probable consequence of the offenders' plan, but that the death of Vosmaer was a probable consequence of that plan.  Although the judge has used the expression “intentional killing”, this meant in the context a killing with an intention of causing death or grievous bodily harm.  The case is therefore one in which it is particularly difficult to assess a suitable penalty.  It is not especially easy to think what sort of plan of attack on Vosmaer might be so serious that death was its probable consequence, yet not so serious as to be likely to involve an intent to cause grievous bodily harm.  Subject to these remarks I agree with the joint reasons of the Chief Justice and White J.

Looking at the matter broadly, it appears to me that the head sentence fixed below should stand and that the only alteration required is that resulting from the orders proposed by the Chief Justice and White J, with which I agree.