The Queen v Hartigan[1998] QCA 363

COURT OF APPEAL

de JERSEY CJ

SHEPHERDSON J

CULLINANE J

CA No 109 of 1998

THE QUEEN

v.

BARRY WAYNE HARTIGAN Applicant

BRISBANE

DATE 17/09/98

JUDGMENT

CULLINANE J: The applicant seeks leave to appeal against the sentence of three and a half years imprisonment to commence at the expiration of sentences of imprisonment which he had already been ordered to serve at the time of sentence.

The learned sentencing Judge recommended that he be eligible to be considered for parole as from 16 August 2003. It is with this recommendation that this application is concerned.

The applicant pleaded guilty to the offence of trafficking in heroin. The circumstances of the offence are that over a period of about two months in early 1996 he supplied heroin to an undercover police operative. The quantity involved was 9.398 grams of powder, there being some 5.040 grams of pure heroin which represented between 48 and 56 per cent of the powder supplied.

The applicant entered into a record of interview with police and it would appear co-operated fully.  He also provided assistance to the police and a document dealing with the subject was handed to the Court and placed in an envelope and ordered to be sealed.

The offences were committed whilst the applicant was on parole. He had been sentenced to 10 years imprisonment on 20 November 1992 for each of seven counts of stealing with actual violence whilst armed with a dangerous weapon and in company. He was also dealt with in respect of a number of other offences. A recommendation that he be eligible to be considered for parole after serving a period of two years was made.

He was released on 13 March 1995 and taken back into custody on 6 December 1997. He was sentenced on 15 January 1998 for certain firearm offences and sentenced to six months imprisonment to be served cumulatively upon the sentences which had been imposed in November 1992. He was dealt with in respect of the trafficking count on 16 March 1998.

His Honour was of the view that the provisions of section 156A(b)(ii) of the Penalties and Sentences Act required him to impose a sentence cumulative upon those already being served. Counsel for both the prosecution and the applicant had contended that this was so. In fact, it appears that section 156A came into effect on 1 July 1997. The trafficking offence was committed in early 1996 and the provisions of the section would not, in those circumstances, be applicable to it.

Nonetheless, counsel for both parties were content to proceed here upon the basis that the imposition of a cumulative sentence in respect of the trafficking offence, committed as it was whilst the applicant was on parole in respect of the offences for which he was dealt with on 20 November 1992, would inevitably have been imposed in the exercise of the sentencing Judge's discretion and there was no challenge to the sentence of three and a half years which was imposed.

It is clear that His Honour gave careful consideration to the factors which had to be taken into account in arriving at an appropriate sentence. These were the fact that the applicant had committed the offences whilst on parole, the totality principle which required the Court when imposing a cumulative sentence to impose a sentence which would result in a total term of imprisonment which reflected the total criminality involved and was not such as to impose a crushing term of imprisonment upon the applicant, his plea of guilty and his co-operation.

The applicant was entitled at the time he appeared to a full-time discharge on 12 March 2006.  As I have said, His Honour recommended that the applicant be eligible to be considered for parole as from 16 August 2003.

For the applicant it was contended that this recommendation fixes the earliest date at which the applicant may be considered for parole too far in the future and amounts to the imposition of a sentence which is manifestly excessive in all the circumstances, particularly having regard to the earliest date at which the applicant would be eligible to be released on parole had no recommendation been made.

The Courts have recognised the difficulties facing sentencing Judges in fixing non-parole periods in the case of cumulative sentences, particularly where the original sentences are imposed many years earlier and where the imprisonment has not been continuous. 

I refer in particular to the remarks of Mr Justice Pincus in The Queen v. Timothy Mark Walton ex parte Attorney-General of Queensland Court of Appeal No. 338 of 1997 delivered on 18 November 1997. His Honour said at page 5 of his judgment that it needs little consideration to appreciate that the statutory parole date where the term of imprisonment is made up of a series of cumulative sentences may be quite inappropriate. At page 6 he went on:

"It does not appear to me that any useful rule of thumb is, or could be, devised to assist a Court in fixing a parole date other than the statutory date... There are so many variable factors that any suggested rule of thumb for fixation of a parole date is unlikely to be useful."

In my view it has not been demonstrated that His Honour in fixing the non-parole date which he did has made any error and I would refuse the application for leave to appeal.

THE CHIEF JUSTICE: I agree.

SHEPHERDSON J: I agree.

THE CHIEF JUSTICE: The application is refused.