The Queen v Collins[1998] QCA 280

13. The learned sentencing judge understandably, on the facts of this case, found the exercising of his discretion difficult and noted: “I have given anxious consideration to what I should do in relation to count 2, bearing in mind that it is a scheduled serious violent offence.”
14. The Act gives no specific guidance as to what factors should be considered by a sentencing judge exercising the discretion pursuant to s. 161B(3) of the Act. Part 9A - Conviction of Serious Violent Offences provides pursuant to s. 161B(1) of the Act that if the sentence imposed on a schedule offence is ten years’ imprisonment (or is taken by virtue of s. 161C of the Act to be “the specified years of imprisonment”) then the offender is automatically not entitled to any remission (s. 161D) nor parole until he has served at least 80 per cent rather than the usual 50 per cent of the sentence (s. 166(1)(c)(i) Corrective Services Act 1998) These consequences will not flow if the offender is dealt with for a schedule offence and is sentenced to between five and ten years unless the sentencing judge makes a declaration under s. 161B(3). In the absence of guidance from the Act one would expect that normally no such declaration would be made unless there were reasons to justify the making of a declaration. Some particular reason or reasons must exist to satisfy the court that the declaration is warranted and that in all the circumstances the appropriate sentence is one, in this case of seven years, without remissions and with no parole eligibility until 80 per cent of the sentence is served.
15. The 1997 Act which added Part 9A also amended s. 3 of the Act which deals with the purposes of the Act as follows:

“3. Purposes. The purposes of this Act include -

...

2. (b)
   providing for a sufficient range of sentences for the appropriate punishment and rehabilitation of offenders, and, in appropriate circumstances, ensuring that protection of the Queensland community is of paramount consideration; ...”.

16. It also amended s. 9 of the Act which deals with sentencing guidelines and inserted new sub-ss. (3) and (4) in the following terms:

“(3) However, the principles mentioned in sub-section (2)(a) do not apply to the sentencing of an offender for any offence -

1. that involve the use of, or counselling or procuring the use of, or attempting or conspiring to use, violence against another person; or

2. that resulted in physical harm to another person.

(4) In sentencing an offender to whom sub-section (3) applies, the Court must have regard primarily to the following -

1. the risk of physical harm to any members of the community if a custodial sentence were not imposed;

2. the need to protect any members of the community from that risk;

3. the personal circumstances of any victim of the offence;

4. the circumstances of the offence, including the death of or any injury to a member of the public or any loss or damage resulting from the offence;

5. the nature of extent of the violence used, or intended to be used, in the commission of the offence;

6. any disregard by the offender for the interests of public safety;

7. the past record of the offender including any attempted rehabilitation and the number of previous offences of any type committed;

8. the antecedents, age and character of the offender;

1. any remorse or lack of remorse of the offender;

10. any medical, psychiatric, prison or other relevant report in relation to the offender;

11. anything else about the safety of members of the community that the sentencing court considers relevant.”

17. Section 9(3) set out above refers to s. 9(2)(a) which states:

“(2) In sentencing an offender, a Court must have regard to -

1. principles that -

1. a sentence of imprisonment should only be imposed as a last resort; and

2. a sentence that allows the offender to stay in the community is preferable; ...”.

18. The wording of s. 161B(3) of the Act suggests that the declaration, if made, is part of the sentence.
19. In the absence of specific guidelines in the Act as to what considerations should be taken into account when exercising this discretion, the general sentencing principles including those set out in s. 9 of the Act should be considered. It is conceded that this offence is one that comes within s. 9(3) of the Act and therefore the principles mentioned in s. 9(2)(a) do not apply. Section 9(4) of the Act requires that the sentencing judge “must” have regard primarily to the eleven factors listed in it. The word “primarily” does not exclude other relevant matters also being taken into account as long as the eleven matters listed in s. 9(4) are the primary considerations.
20. This approach is consistent with the second reading speech in Parliament of the 1997 Act when the then Attorney-General, the Hon. D.E. Beanland said:

“The Government went to the people at the last election and made a promise -

‘... to introduce into the penalties and sentences legislation a section dealing with serious violent offences that reflects our concern for community safety as well as community outrage with this form of crime.’

This Bill delivers that promise.

The provisions of the new Part in the Penalties and Sentences Act 1992 will expressly reflect the Government’s concern with community safety in relation to serious violent offences, as well as community denunciation of this type of crime.  The Government went to the people at the last election promising that -

‘In determining the appropriate length of a custodial sentence for a serious violent offender, a court will take into account the protection of the community as a primary sentencing consideration.’

This Bill delivers that promise by amendments to the purposes section and the sentencing guidelines of the Act.

The previous Government placed three stumbling blocks at the feet of sentencing judges.  One: while the Act currently mentions protection of the community among the purposes of sentencing, section 9(1), there is nothing in section 9(2), the sentencing principles, requiring the court to actually have regard to the protection of the community as a sentencing consideration. ...”

(Hansard, 1997, Vol. 2 Pg. 595).

and

“The new Part 9A will provide that in considering the question of the protection of the community, a court must have regard to:

1. the risk of physical harm to any members of the community if a custodial sentence were not imposed;

2. the need to protect any members of the community from that risk;

3. the personal circumstances of any victim of the offence;

4. the circumstances of the offence, including the death or injury to a member of the public or any loss or damage resulting from the offence;

5. the nature of extent of the violence, whether apparent or real,  used, or intended to be used, in the commission of the offence;

6. any disregard by the offender for the interests of public safety;

7. the past record of the offender, including any attempted rehabilitation and the number of previous offences committed whether serious violent offences or not;

8. the antecedents, age and character of the offender;

1. any remorse or lack of remorse of the offender;

10. any medical, psychiatric, prison or other relevant report in relation to the offender;

11. any other matters relevant to the safety of individuals or the public that the court thinks fit.

The matters listed are to be regarded as primary sentencing considerations and in addition to those sentencing guidelines currently referred to in section 9(2) of the Penalties and Sentences Act 1992.

The matters referred to do not limit the matters to which a court may have regard in determining the length of any custodial sentence imposed upon a serious violent offender, but that they shall be the primary considerations.”

(Hansard, 1997, Vol. 2 Pg. 596)

and

“We recognise that a ten year threshold may in some cases be too high to adequately deal with some offences involving serious harm and serious violence, so the courts will be given a specific discretion to declare a person to be convicted of a serious violent offence where the person is convicted upon indictment of an offence in the Schedule and sentenced to 5 or more than 5 but less than 10 years imprisonment.

Current sentencing patterns suggest that a very significant degree of harm and violence needs to be inflicted and exhibited before the courts will sentence someone to over 5 years imprisonment.

Now the primary consideration will have to be the protection of the community.

If the maximum penalty for an offence is 10 or less than 10 years, then the courts will have the discretion to declare the offender to be convicted of a serious violent offence where the protection of the community is called for by the facts and the offender will serve at least 80% of the term.”

(emphasis added)

(Hansard, 1997 Vol. 2 Pg. 597)

The intention to protect the community from future violent offending seems to have been the paramount consideration of the legislature in enacting the 1997 Act.

21. Pursuant to s. 9(4)(a) and (b) of the Act, the sentencing judge must consider the risk of physical harm to members of the community if a custodial sentence were not imposed and the need to protect any members of the community from that risk. A seven year sentence was warranted in this case but the material provided at sentence did not suggest that the applicant was likely to be at risk of causing physical harm to members of the community in the future. The defence submission, which was not contested, was, in effect, that the applicant committed this offence whilst under stress and that it was out of character. He had no prior convictions for violence.
22. Section 9(4)(c) of the Act requires the sentencing judge to consider the personal circumstances of any victim of the offence. The victim impact statement of Rachel Lorraine Stephenson indicated the offence has had a serious effect on her, both personally and professionally. She has lost confidence in dealing with the public in her position as Property Manager. She was in the early stages of pregnancy with twins at the time of the robbery and whilst she has no medical material to substantiate her claim, feels the stress of this incident is at least in part responsible for complications she now has with her pregnancy. She is much more anxious and security conscious. Sadly, such consequences to victims of armed robbery offences are relatively common. The court recognises this in imposing substantial terms of imprisonment, in this case seven years, for offences of this type.
23. Section 9(4)(d) of the Act requires the sentencing judge to consider the circumstances of the offence, including the death of or any injury to a member of the public or any loss or damage resulting from the offence. Fortunately, no death or physical injury arose out of the offence, however the offence was frightening and potentially dangerous.
24. Section 9(4)(e) of the Act requires the nature or extent of the violence used or intended to be used in the commission of the offence to be considered. Whilst no actual violence was used other than the accidental splashing of petrol on a staff member, the threat of violence in this case was very real to those present. The applicant did not intend to use actual violence although there was real potential for violence.
25. Section 9(4)(f) of the Act requires the sentencing judge to consider any disregard of the offender for the interests of public safety. The applicant here had significant disregard for the interests of public safety. Although he did not intend to light the molotov cocktail or the petrol, he deliberately created a potentially dangerous situation.
26. The sentencing judge is also required pursuant to s. 4(g), (h) and (i) to take into account matters relevant to the offender. His previous lack of a violent history, his attempted rehabilitation, his good prospects, his lack of any convictions since 1989, his remorse, cooperation and plea of guilty have already been noted.
27. Section 9(4)(j) and (k) have no particular relevance in this case.
28. A sentencing judge exercising the s. 161B(3) discretion must also consider the matters listed in s. 9(1) and (2) of the Act, other than s. 9(2)(a). Section 9(1)(c) of the Act states that one purpose of sentencing is to “deter the offender or other persons from committing the same or a similar offence”. The applicant’s conduct in this case warranted the seven year sentence which, it is hoped, would deter him and others from acting in such a frightening and potentially dangerous way.
29. The clear intention of the legislature in enacting the 1997 Act was that judges should exercise the s. 161B(3) discretion in appropriate circumstances. Section 3 demonstrates that protection of the community was an important consideration for the legislature, as was punishment and rehabilitation. Sections 9(3), 9(4)(a) and 9(4)(b) reinforce the view that the legislature was primarily concerned to protect the community from offenders who pose an on-going risk to the community. The Attorney-General’s second reading speech of the 1997 Act is also consistent with this approach.

Was the discretion under s. 161B(3) of the Act properly exercised?

Did his Honour, after considering the primary factors listed in s. 9(4) of the Act and any other relevant factors, properly exercise the s. 161B(3) discretion in declaring that the offender had been convicted of a serious violent offence, such that he should have no remissions and only be eligible for parole after serving 5.6 years of his seven year sentence?

30. In sentencing, his Honour noted:-

“I have concluded that such a declaration should be made.  I think that I must and have concluded that I must make that declaration in discharge of my duty to the public, because the circumstances of this particular offence demonstrate that it was potentially very dangerous, was indeed committed with violence, and it is such that the community should receive the additional protection that it will have if I make such a declaration.

I have concluded, too, that without that declaration and its consequences, the deterrence, the sanction and the rehabilitation opportunities necessary would not be appropriately available.”

31. It is difficult to see what rehabilitation opportunities would be provided by making the declaration. I would have thought a prisoner with limited criminal history, especially for violence, job prospects and family support would have a much better chance of rehabilitation during a substantial parole period in the community, rather than serving a longer jail sentence with a comparatively short parole period in the community.
32. More importantly, whilst his Honour considered the matters set out in s. 9(4)(c)-(e) of the Act and also gave some lesser weight to the matters set out in s. 9(4)(g)-(i) of the Act, he failed to consider the issue, very important in the eyes of the legislature, of whether the applicant needed to be incarcerated for at least 80 per cent of his sentence and without remissions because of the risk of him physically harming a member of the community in the future. Although this incident was frightening, no one was physically hurt. The undisputed defence submissions were that the applicant had no prior convictions for violence, had acted out of character whilst under stress, was genuinely remorseful, had pleaded guilty at an early stage, and was attempting to rehabilitate with family support and job prospects. These factors suggest he is unlikely to commit a similar offence in the future. There is no suggestion that robberies committed in this fashion are prevalent. In my view, his Honour’s sentencing remarks and the facts of this case fail to provide sufficient reasons to justify the making of the s. 161B(3) declaration.
33. It is my view that to require the applicant to serve at least 80 per cent of his seven year sentence is to impose a sentence which is manifestly excessive in all the circumstances, and as a result his Honour’s exercise of discretion pursuant to s. 161B(3) of the Act has miscarried. I would grant the application for leave to appeal and allow the appeal to the extent of omitting the declaration that the offender has been convicted of a serious violent offence.

Should a recommendation for parole be given?

34. The next issue is whether a recommendation for early release on parole should be given. Prior to the 1997 Act, an early recommendation for release on parole earlier than halfway through, and sometimes after one third of the sentence, was commonly given in sentences of this type where there were substantial mitigating factors. The applicant was cooperative with authorities and pleaded guilty at an early stage. For the reasons already mentioned, he appears to have good prospects of rehabilitation. It is my view that a recommendation for release on parole after serving two and a half years’ imprisonment is warranted.
35. I would allow the appeal and vary the sentence below by deleting the declaration and adding a recommendation that he be released on parole after serving two and a half years’ imprisonment.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

 C.A. No. 238 of 1998

Brisbane

Before McMurdo P.

McPherson J.A.

Ambrose J.

[R. v. Collins]

THE QUEEN

v.

PAUL COLLINS

(Applicant)

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered 18 September 1998

1. This is an application for leave to appeal against sentences of imprisonment, ordered to be served concurrently, of (1) four years for unlawful use of a motor vehicle with circumstances of aggravation, and (2) seven years for armed robbery, to which the applicant pleaded guilty in the District Court at Maryborough on 22 June 1998. In imposing sentence, the learned judge also made a declaration under s. 161B(3) Penalties and Sentences Act 1992 that the applicant was convicted of a “serious violent offence”.
2. It is primarily against the making of that declaration that the present application is brought. The effective sentence of imprisonment for seven years was, I understand, not seriously challenged at the hearing before us. Even if I am mistaken about that, I would in any event not be disposed to give leave to appeal against that sentence. Two offences were involved, and the robbery was plainly a very serious one.
3. On 12 February 1998, which was a working day, the applicant entered the business premises of a real estate agent in Hervey Bay. He was equipped with a bucket of petrol, a cigarette lighter, and a bottle, which contained petrol and a rag. It was described in the indictment, and without objection at the hearing below, as a “molotov cocktail”, which was no doubt the appearance it was designed to present. The applicant had a stocking over his face, and he demanded money from those in the office. His demand was not at first treated with much attention by the four staff members and customer who were present, so the applicant emptied the contents of the bucket over the counter and on to the carpet behind it. Some of it went over the legs of one of the employees, who was a young woman named Miss Bowie. At the sentence hearing, counsel for the applicant said it was not the intention to throw the petrol over anyone; but it is difficult to accept that such a consequence was not both foreseeable and foreseen. Having paid $3.00 for the petrol at the service station that morning, it is a fair inference that the quantity involved was some four litres or more. The stain it left on the carpet, as it appears in photographic ex. 2, can be seen to cover a substantial area, more or less precisely where one would have expected members of the office staff to have been standing behind the counter when he approached them and threw the contents of the bucket.
4. When the applicant did this, he was facing the property manager, who was a Mrs Rachel Stevenson. She saw that in his right hand he had the molotov cocktail or bottle containing petrol, and that in his left hand he had a cigarette lighter. He was slowly rolling the flint wheel of the lighter, while holding up the bottle and lighter, saying as he did, “Hurry up. I’m going to light this”. He was given some $1,200 from the cash drawer, which was placed in a sports bag he had brought with him, but he insisted on more. The staff assured him that there was no second till as he claimed, but he was not persuaded by what they said. His actions then became sufficiently threatening for a customer to approach him and offer him his own wallet. The applicant refused to take it, saying he wanted the estate agent’s money. Eventually he left the office with what he had been given, and drove off in the car (which was the subject of count 1), which had been left waiting with its engine running outside.
5. He was later identified through the discovery of his fingerprint on the bucket which he had left behind at the scene, and in the course of a later search at the place where he lived some clothes and a length of hose were found. After being interviewed, he confessed to having committed the offence, and explained the circumstances which had led him to do it. In essence, it was that he was desperate for money to pay various pressing debts, such as car registration, and so on.
6. Accepting as I do that a sentence of imprisonment for seven years was not inappropriate for the second offence, and certainly not for the two offences taken in conjunction, the question on this application is whether the learned judge was wrong in declaring the offender to have been convicted of a serious violent offence. The concept is a new one, having been inserted in the Penalties and Sentences Act 1992 by an amendment to the legislation which came into effect on 1 July 1997. Section 157(7) of that Act provides in substance that, in sentencing an offender convicted of such an offence, a court cannot, under s. 157, make a recommendation that reduces the period of imprisonment which must be served before the offender becomes eligible for release on parole under s. 166(1)(c) of the Corrective Services Act 1988; and that a recommendation of that kind will have no effect in accelerating such eligibility to a point earlier than that fixed by the statute. Reference to s. 166(1) of the Corrective Services Act shows that a prisoner is now not eligible for release on parole:

9. The result was that all the conditions of s. 161B(3) were fulfilled subject only to the court exercising the power conferred by that subsection to declare the offender to be convicted of a serious violent offence as part of the sentence. It is clear that, in using the word “may” in s. 161B(3), the intention was not to confer a power which is to be applied mechanically or automatically, but rather to invest a discretion to be exercised judicially and with proper regard for all relevant circumstances including the consequences of making the declaration. So much is shown by the structure of the provisions comprising Part 9A itself. It is only in relation to the first category of offences under s. 161A(a) that the court under s. 161B(1) “must” declare the conviction to be of a serious violent offence. Where it is an offence in the second category under s. 161B(3), the court “may”, but is not bound, so to declare. Moreover, since the effect of such a declaration is penal and prejudicial to the liberty of the subject, the conclusion necessary to sustain the declaration is not one that is to be reached unless it is fully warranted in the circumstances. The impact on the applicant here will be that, disregarding the matter of remissions, his eligibility for parole will be postponed from 3.5 years, as it would otherwise ordinarily have been under s. 166(1)(d) of the Corrective Services Act in the case of a seven year sentence, until he has served 5.6 years of that sentence. That is not a result that is to be arrived at without proper judicial consideration, even if it is true that, as is often claimed, not all prisoners are granted parole before they have served out their sentence in full.
10. The provisions of Part 9A provide no specific guidance about the way in which the discretion under s. 161B(3) is to be exercised in making a declaration of a serious violent offence. That being so, the general principles or considerations ordinarily governing the sentencing of offenders fall to be applied so far as they are relevant and applicable to a matter like this. Those principles or considerations were at one time largely contained in judicial practice and reported decisions of the courts; but, at least since 1992, they have been specified in s. 9 of the Penalties and Sentences Act 1992. Most of the relevant matters are listed there, but the statutory specification cannot be considered exhaustive if for no other reason than that, after prescribing the various factors to which a sentencing court must have regard, the list in s. 9(2) concludes with:

14. The learned President in her reasons, which I have had the advantage of reading, approaches s. 9(4) on the footing that, in the absence of other more specific guidance (of which none is given by Part 9A), the exercise of the discretion under s. 161B(3) to declare a serious violent offence is governed by the factors or considerations specified in s. 9(4) including s. 9(4)(a) and (b). Adopting that approach is said to have the consequence of exposing an error in the sentencing process in the present case, in that the material provided at sentence did not suggest that the applicant was likely to be at risk of causing physical harm to members of the community in the future; and, further, that ss. 9(3) and 9(4)(a) and (b) reinforce the view that the legislature was primarily concerned to protect the community from offenders who pose an ongoing risk to the community. The drafting of all these provisions is no doubt in some respects unsatisfactory; but, with great respect, I am unable to accede to this interpretation of these and other relevant provisions or, in consequence, to regard them, when so construed, as governing the exercise of the discretion conferred by s. 161B(3) to declare a serious violent offence.
15. There are several reasons for arriving at a contrary conclusion. It may be accepted that the principal objects of s. 9(4)(a), in requiring a sentencing court to have regard to the risk of physical harm to members of the community “if a custodial sentence were not imposed”, is to engage the sentencing process as a means of protecting the community “from offenders who pose an ongoing risk to the community”. The fact that such a risk is posed, and that community members need to be protected from it, is a cogent reason for sentencing such offenders to a term of imprisonment. But that is not the question which a court, when called on to make a declaration of a serious violent offence under s. 161B(3), would be engaged in considering at that stage. To have arrived at that juncture in the sentencing process, the judge must already have concluded at least that a sentence of imprisonment of not less than five years ought to be imposed. Otherwise the jurisdiction to make the declaration under s. 161B(3) would not exist. Indeed, on a literal reading of s. 161B(3)(b), the court must first have imposed a term of imprisonment of the requisite duration before the jurisdiction becomes exercisable at all.
16. It follows, of course, that in a case in which the making of such a declaration is being properly entertained, there can be no inquiry whether or not community members will be put at risk “if a custodial sentence were not imposed”. That question must at that stage necessarily already have been resolved in favour of imposing such a sentence. Equally, the need, in terms of s. 9(4)(b), to protect community members from that risk by sentencing the offender to imprisonment will also have been resolved before the matter of exercising the discretion arises under s. 161B(3). At that juncture the question that the court will be considering will not be whether the offender should be sentenced to imprisonment as a protection to the community, but whether, having been so sentenced, he is to be deprived of eligibility for parole after serving half his sentence and further penalised by deferring it until 80 per cent of that sentence has been served.
17. Support for this conclusion is to be found in the form in which s. 9(4)(a) is expressed. It speaks of “the risk ... if a custodial sentence were not imposed”. That form of language is what is known as the old English subjunctive, described in Fowler as “a verbal form or mood expressing hypothesis usually denoting what is imagined, wished, demanded, proposed, exhorted, etc.”. The New Fowler’s Modern English Usage, 3rd ed., title subjunctive mood. Used as it is in s. 9(4)(a) it confirms that what the drafter had in mind was a state of affairs in which the court was still in the process of considering the hypothesis of whether or not to impose such a sentence. It is not a form of expression appropriate to the making of a declaration under s. 161B(3), where such a sentence must already have been imposed before the jurisdiction to make a declaration becomes exercisable at all.
18. It follows in my opinion that ss. 9(4)(a) and 9(4)(b) cannot be considered as governing, or indeed even relevant to, the exercise of the discretion to make a declaration under s. 161B(3). Having regard to the express exclusion by s. 9(3) of “the principles mentioned in subsection (2)(a)” of s. 9, it seems reasonably clear that the function of paras.(a) and (b) of s. 9(4) is limited to filling the void created when those two paragraphs of s. 9(2) were specifically displaced in their application to sentencing of offenders for offences involving (a) the use of violence, or (b) the infliction of harm, against another person. Without some provision like those inserted in s. 9(4)(a) and s. 9(4)(b), there would have been no statutory prescription of the kind that the legislature intended to supply for the sentencing of such offenders of the kind described in s. 9(3) and, indeed, no statutory guide at all in such cases.
19. The conclusion I have reached therefore is that s. 9(3) and s. 9(4)(a) and (b) do not control the discretion exercisable under s. 163B(3) to declare a serious violent offence to have been committed. If it is correct to say that in other respects s. 9(4) provides guidance in the exercise of that discretion, then the succeeding paragraphs of the subsection provide ample authority for performing that task, concluding as they do with the final para. (k), which enjoins the court to have regard in sentencing to:

“(k) anything else about the safety of members of the community that the sentencing court considers relevant.”